European Union governance: effectiveness and legitimacy in European Commission committees

European Union Governance

The European Commission has increasingly focused on the benefits it can derive from the greater participation of organised civil society in its role and activities. In the face of general decline in public trust in the institutions of government, it facilitated and encouraged new channels of access and consultation opportunities as a means to legitimise its position within the European political system. Karen Heard-Lauréote’s comparative analysis of four European Commission advisory forums innovatively investigates the existence of a conflict between the capacities of such forums to deliver standards of good governance. The author questions whether these venues can provide efficiency gains via the production of sufficient policy output without delays or deadlocks at reasonable cost and sustain adequate democratic credentials such as legitimacy. This study makes a significant contribution to its field by pursuing contemporary legitimacy debates asking whether under certain conditions or in certain policy-making contexts, legitimacy and efficiency may be reconciled or become at least partially compatible in European Commission committees. European Union Governance will be of interest to students and researchers of European Union politics and policy-making.

Karen Heard-Lauréote is Senior Lecturer in European Politics and Public Policy, University of Portsmouth.

Routledge / UACES Contemporary European Studies Edited by Tanja Börzel, Free University of Berlin, Michelle Cini, University of Bristol and Roger Scully, University of Wales, Aberystwyth, on behalf of the University Association for Contemporary European Studies. Editorial Board: Grainne De Búrca, European University Institute and Columbia University; Andreas Føllesdal, Norwegian Centre for Human Rights, University of Oslo; Peter Holmes, University of Sussex; Liesbet Hooghe, University of North Carolina at Chapel Hill, and Vrije Universiteit Amsterdam; David Phinnemore, Queen’s University Belfast; Mark Pollack, Temple University; Ben Rosamond, University of Warwick; Vivien Ann Schmidt, University of Boston; Jo Shaw, University of Edinburgh; Mike Smith, University of Loughborough and Loukas Tsoukalis, ELIAMEP, University of Athens and European University Institute. The primary objective of the new Contemporary European Studies series is to provide a research outlet for scholars of European Studies from all disciplines. The series publishes important scholarly works and aims to forge for itself an international reputation. 1 The EU and Conflict Resolution Promoting peace in the backyard Nathalie Tocci 2 Central Banking Governance in the European Union A comparative analysis Lucia Quaglia 3 New Security Issues in Northern Europe The Nordic and Baltic states and the ESDP Edited by Clive Archer 4 The European Union and International Development The politics of foreign aid Maurizio Carbone 5 The End of European Integration Anti-Europeanism examined Paul Taylor 6 The European Union and the Asia-Pacific Media, public and elite perceptions of the EU Edited by Natalia Chaban and Martin Holland 7 The History of the European Union Origins of a trans- and supranational polity 1950–72 Edited by Wolfram Kaiser, Brigitte Leucht and Morten Rasmussen

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European Union Governance Effectiveness and legitimacy in European Commission Committees

Karen Heard-Lauréote

First published 2010 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2010. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.

© 2010 Karen Heard-Lauréote All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Heard-Lauréote, Karen. European Union governance : efficiency and legitimacy in European Commission committees / Karen Heard-Lauréote. p. cm. – (Contemporary European studies series ; 13) Includes bibliographical references. 1. European Commission–Management. 2. European Union–Management. 3. Executive advisory bodies–European Union countries. 4. Legitimacy of governments–European Union countries. 5. European Union countries– Politics and government. I. Title. JN33.5.H43 2010 341.242'2–dc22 2009043905 ISBN 0-203-85262-1 Master e-book ISBN

ISBN 10 0-415-43582-X (hbk) ISBN 10 0-203-85262-1 (ebk) ISBN 13 978-0-415-43582-6 (hbk) ISBN 13 978-0-203-85262-0 (ebk)

To my daughter Madeleine.

Content

List of illustrations Acknowledgements Abbreviations and acronyms Introduction

x xi xii 1

Legitimacy and effectiveness – two principal standards of good governance

16

2

Assessing (input/output) legitimacy

37

3

The EU Eco-Labelling Board Consultation Forum

51

4

The European Health Policy Forum

84

5

The Trade Contact Group and Civil Society Dialogue

111

6

The Agricultural Advisory Groups

149

Conclusion: Trapped between legitimacy claims – managing expectations for ECAFs

181

Bibliography Index

219 237

1

List of Illustrations

Figures 1.1 Prerequisites for democratic legitimacy 3.1 Number of meeting days per year 2001–08 Tables 3.1 Interests represented in Civil Society Organizations 3.2 Total minutes produced per meeting days 2000–08 3.3 Number of product group criteria and licenses approved by the EUEB 4.1 Member organizations of the EUHPF according to grouping 5.1 Constituency groups represented in DG Trade0 s Civil Society Dialogue 5.2 Location of organizations registered for Civil Society Dialogue 5.3 Number of Civil Society Dialogue meetings per year Jan. 2002–Oct. 2008 6.1 Committee/Advisory Group on Common Agricultural Policy 6.2 Committee/Advisory Group on Forestry and Cork 6.3 Committee/Advisory Group on Rural Development 6.4 Committee/Advisory Group on Agriculture and the Environment

25 74

52 66 81 89 113 115 135 150 150 150 150

Acknowledgements

I would like to thank the Nuffield Foundation and the Centre for European and International Studies Research within the Faculty of Humanities and Social Sciences at the University of Portsmouth for funding this research. I would also like to thank the Series and Routledge editors for their valuable input and effective cooperation. I thank all those who agreed to be interviewed for this research project. Without their contributions the empirical case studies would not have been possible. The text has benefited enormously from the help and continuous guidance of Wolfram Kaiser. Warm thanks go to Lucy Makins and Anna Syngellakis for their comments and suggestions and their time spent reading and editing previous drafts. Anna Lewkowicz’s help compiling the index has been invaluable. I thank Nathalie LovenouMelki, Janet Bryant and Alix Kelso for their unrelenting support and encouragement during this project as well as Louise West, Julie Fehr, Zoe Jones, Sandra Cross, Nerida Whale, Nikki Knobel and Sharon Warrington for their morale boosting. Finally, the biggest thank you of all goes to Alain … for everything.

Abbreviations and acronyms

AAE AAG(s) A&E AG AEC AER AESGP AGE AHWGs AIM APRODEV

Aids Action Europe Agricultural Advisory Group(s) Agriculture and Environment Advisory Group Association of European Consumers Association of European Regions Association of the European Self-Medication Industry European Older People’s Platform Ad-Hoc Working Groups Association Internationale de la Mutualité Association of World Council of Churches Related Development Organisations in Europe ASPHER Association of Schools of Public Health in the EU Region BEUC Bureau Européen des Unions de Consommateurs BI Birdlife International BUSINESSEUROPE The Confederation of European Business (formerly UNICE – Union des Industries de la Communauté européenne) CAP Common Agricultural Policy CAP AAG Common Agricultural Policy Advisory Group CB(s) Competent Bodies CBO(s) Community based organizations CD Commission Decision CED Council of European Dentists CEJA European Council of Young Farmers0 CF Consultation Forum CIAA Confederation of the Food and Drink Industries of the EU CIDSE International network of 16 Catholic development agencies COFACE Confédération des Organisations familiales de l0 Union européenné COGECA Comité Général de la Coopération Agricole de l’UE CONECCS The database for Consultation, the European Commission and Civil Society COPA Comité des Organisations Professionnelles Agricoles de l’UE CPE European Farmers Coordination CPME Standing Committee of European Doctors

Abbreviations and acronyms CSD CSO(s) DG(s) DG SANCO EATG EC ECAF(s) ECH ECJ ECL ECPC ECSC EDF EEA EEB EEC EESC EFA EFFAT EFN EFPIA EGA EGAN EHMA EHN EHTEL EMA EMAS ENGO ENSP EP EPF EPHA EPSU ER-WCPT ESF ESIP ESMHD ETUC EU EU15

xiii

Civil Society Dialogue Civil Society Organization(s) European Commission Directorate(s) General Directorate General for Health and Consumers European Aids Treatment Group European Commission European Commission Advisory Forum(s) European Committee for Homeopathy European Court of Justice Association of European Cancer Leagues European Cancer Patient Coalition European Coal & Steel Community European Disability Forum European Economic Area European Environment Bureau European Economic Community European Economic and Social Committee European Federation of Allergy and Airways Diseases Patients’ Associations European Federation of Food, Agriculture and Tourism Trade Unions European Federation of Nurses Associations European Federation of Pharmaceutical Industries and Associations European Generic Medicines Association European Genetic Alliances’ Network European Health Management Association European Heart Network European Health Telematics Association European Midwives Association Eco-Management and Audit Scheme Environmental Non-Governmental Organization European Network for Smoking Prevention European Parliament European Patients’ Forum European Public Health Alliance European Federation of Public Service Unions European Region of the World Confederation for Physical Therapy European Services Forum European Social Insurance Platform European Society for Mental Health and Deafness European Trade Union Confederation European Union The EU comprising 15 Member States as it was until 2004

xiv Abbreviations and acronyms EU27 The 27 Member States of the EU EUCOMED Representation of designers, manufacturers and suppliers of medical technology EUEB European Union Eco-Labelling Board EUHPF European Union Health Policy Forum EUPHA European Public Health Association EUROCARE Advocacy for the prevention of alcohol related harm in Europe EUROCHAMBRES The Association of European Chambers of Commerce and Industry EuroCommerce The retail, wholesale and international trade representation to the EU Euro Coop European Community of Consumer Cooperatives EUROGROUP Eurogroup for Animals EuroHealthNet European Health Network EUROPA DONNA The European Breast Cancer Coalition EURORDIS European Organisation for Rare Diseases EWC European-wide constituency F&C AG Forestry and Cork Advisory Group FoEE Friends of the Earth Europe FOEI Friends of the Earth International FTA Foreign Trade Association FTAs Free Trade Agreements GAMIAN-Europe Global Alliance of Mental Illness Advocacy Networks GIRP Groupement International de la Répartition Pharmaceutique HA High Authority HAI Health Action International HOPE European Hospital and Healthcare Federation IAPO International Alliance of Patients’ Organizations IPPF EN International Planned Parenthood Federation European Network ISC Inter-Service Consultation (within European Commission DGs) IUHPE International Union for Health Promotion and Education MAI Multilateral Agreement on Investment MHE Mental Health Europe MS(s) Member State(s) MTP Minimum Threshold Principle NGO Non-Governmental Organization PGEU Pharmaceutical Group of the European Union QMV Qualified Majority Voting RC/EU Office Red Cross/EU Office SEA Single European Act SHP Stake-Holding Principle SME(s) Small and Medium-sized Enterprise(s) SOLIDAR European network of NGOs and labour movement organisations

Abbreviations and acronyms SPS TCG TEU RD RD AG RELEX UEAPME UEHP UEMS WG WIDE WTO WWF YFJ

Sanitary and phytosanitary measures Trade Contact Group Treaty on European Union Rural Development Rural Development Advisory Group European Commission DG for External Relations European Association of Craft, Small and Medium-sized Enterprises Union Européenne de l’Hospitalisation Privée European Union of Medical Specialists Working Group European feminist network of women’s organizations World Trade Organization World Wildlife Fund Youth Forum Jeunesse

xv

Introduction

Since at least the late 1990s, the European Commission has increasingly focused on the benefits it can derive from the greater participation of organised civil society in its role and activities. It has done this in the face of increasing deficits in legitimacy, including its perceived alienation from the public, a decreased level of public trust in so-called ‘faceless Eurocrats’ and a more general decline in public trust in the institutions of government. It has, in fact, found it necessary to create and open new channels of access and consultation opportunities to encourage and facilitate the increased direct participation and involvement of multiple and diverse civil society stakeholders. This, it regards as a means to legitimise its position within the European political system and compensate for the lack of democratic accountability with which it is often charged.1 The basis of this charge is two-fold. First, the Commission lacks an electoral mandate and therefore the involvement of a broader cross-section of outside groups representing societal interests in the policy- and decision-making processes may increase its legitimacy and political accountability. Second, the incorporation of expertise and knowledge detained by external groups may improve the quality of policy proposals that result from its policy initiation task, its principal raison d’être in the European level institutional framework. While business groups are thought to provide technical expertise, economic significance and financial resources, the NGO community has leverage on its constituencies. External groups, of course, have their own pressing concerns. First is their lack of regular and intimate access to decision-makers. Second, they require information about the Commission’s future policy proposal plans and other Civil Society Organizations’ (CSOs’) positions. Third, they are often seeking a sort of ‘badge of official recognition’ as formal stakeholders vis-à-vis the Commission, which they can then publicise to their (potential) membership base as a justification for joining and paying fees. As a result, CSOs are willing to cooperate in helping plug the legitimacy and knowledge gaps in exchange for greater access. Because it may be possible to plug EU legitimacy gaps by encouraging civil society participation or facilitating active citizenship,2 politics and policy-making can be opened up to citizens and CSOs as part of the solution to these deficits (Warleigh-Lack 2007: 58).

2

Introduction

Since at least the late 1990s, a Commission-propelled discourse has emerged and developed, which attributes increased importance to the participation of organised civil society as a means to legitimise the institution’s own role and activities. It is increasingly keen to point out, in fact, that its legislative proposals are based on wide consultation with civil society. Gradually, the EU generally and the Commission specifically have shifted their ‘rhetorical emphasis’ away from ‘groups as a necessary source of expertise and implementation power (to aid output legitimacy)’ towards an emphasis on ‘groups as agents to enhance core democratic functions through participation (to aid input legitimacy)’ (Greenwood and Halpin 2007: 195–96). More than a decade after the launch of its civil society participation discourse, the Commission seeks to portray itself as inclusive. One of the means by which it assures stakeholder participation is via the constellation of advisory groups, advisory committees, advisory forums, consultative committees, consultative groups, expert committees or expert groups, as they are variously labelled. For the purposes of this volume, the label of European Commission Advisory Forums (ECAFs) will be employed as an all encompassing one for the four advisory structures explored: the EU Eco-Labelling Board (EUEB);3 the European Health Policy Forum (EUHPF);4 the Trade Contact Group (TCG) and associated Civil Society Dialogue (CSD);5 and the Agricultural Advisory Groups (AAGs).6 These are all examples of participatory mechanisms. The overall task of committees established at European Union level and thus ECAFs is to assist the Community institutions and they are involved at all stages of the legislative process. For its part, the European Commission regularly consults committees of experts at the pre-proposal stage, before drawing up a new proposal for legislation. These committees are generally comprised of private sector or national government experts who are representatives of the milieux involved. The Commission’s main aim in working with committees is to ensure that it remains open to the concerns of those who will be affected by the legislation. At the time of writing the Commision’s Register of Expert Groups lists over 1000 formal and informal expert groups. The ECAFs examined in this volume are composed wholly or in part of organised civil society representatives, who are perceived by the Commission, their convenor and sponsor, as those most interested and affected by the issues discussed as part of their mandates. Given their status as participatory mechanisms, these ECAFs can be linked to the Commission’s discourse that participation can be a legitimising credential. It is, however, significant that these types of forums in their earliest 1960s manifestation were not in fact primarily created and developed as a means to boost input legitimacy but rather to provide a different kind of value to the EU, that is, to boost output legitimacy. It is equally noteworthy that, in parallel to its contemporary pursuit of civil society participation as a legitimising tool, the Commission has also continued to promote it as a means to improve policy-making performance and the quality of outputs and outcomes.

Introduction

3

The question posed by this volume is whether ECAFs possess the capacity to contribute simultaneously to a legitimising discourse by adding value in terms of inputs while at the same time contributing to the quality of policy by reinforcing output legitimacy. In so doing, this analysis complements existing debates as to whether input legitimacy7 can only be improved by compromising output legitimacy8 or effectiveness and efficiency,9 or whether the two standards can be pursued in tandem. The ECAFs may provide proof that legitimate and effective governance does not necessarily have to be mutually exclusive but can be complementary – even mutually reinforcing. While effectiveness cannot compensate for a lack of legitimacy, better participation and deliberation can bring more effective policy outcomes by strengthening inclusiveness and accountability. Following a brief outline of the main rationale underlying this volume, the remainder of this introductory chapter proceeds as follows. First, it tracks the Commission’s discourse regarding participation as a legitimising tool. It does this via a short examination of several major policy documents produced by this institution since 1997. Second, it introduces at a general level the European participatory governance structures at the heart of this discussion: the ECAFs. Thereafter, it more specifically introduces the Forums forming the focus of the case studies: the EUEB, the EUHPF, the TCG and CSD, and the AAGs. Although these can be linked to the Commission’s participation discourse as a legitimising tool, it is significant that they were first developed to boost policy- and decision-making effectiveness. The Commission’s discourse of participation to enhance effectiveness is thus also briefly tracked using some of the same major policy documents as in part one. Having set the scene for the remainder of the volume, this introductory chapter ends by charting the aims and content of the remaining chapters, as well as considering the methodology utilised. A systematic investigation into the EU’s capacity for conducting effective and legitimate governance using the ECAFs as illustrative cases is timely for several reasons. First, such studies are ‘hard to find’ in existing literature (Neyer 2004: 19). Moreover, any available literature predominantly focuses on the EU’s problem-solving capacity without fully operationalising the term or collecting systematic empirical data (Neyer 2004: 19). Second, the EU’s legitimacy is a priority for academic research (Lord and Magnette 2004: 183), particularly given the uncertainty which preceded the ratification of the Lisbon Treaty. Third, ECAFs are key components of the EU’s administrative infrastructure, the study of which has been described as ‘an intriguing affair’ (Wessels 1998: 209). At risk of falling in with that category of ‘strange academics’ who study the Union’s administrative networks of governance, the author considers a deeper exploration of these institutional structures worthwhile both from the standpoint of political debate and academic research (Wessels 1998: 209). As locations for ‘low politics’ and informal decision-making, ECAFs offer, for instance, an excellent opportunity to study an example of the EU’s informal

4

Introduction

politics. Finally, and from the conceptual perspective of deliberation, the EU, and particularly the Commission committee system is also interesting. Indeed, it has been variously referred to as an example of ‘deliberative supranationalism’ (Joerges and Neyer 1997) and a venue for the development of an esprit de corps with potential for deliberative problem-solving (Joerges 2006: 787). Given the ECAFs’ apparently low deliberative capacity, this is contestable. Furthermore, the representativity and accountability of such committees has equally posed a thorny question for academic research (Dehousse 2003: 799). As several of its major policy documents illustrate, the Commission has gradually developed a discourse regarding participation as a legitimising tool. It was arguably 1997 that really marked the beginning of this participation discourse whereby citizen membership of CSOs and their participation in its activities constitute a complement to conventional sources of democracy. In a Communication entitled Promoting the Role of Voluntary Organizations and Foundations in Europe, the Commission promoted the participation of Voluntary Organizations (VOs) as a supplement to the democratic process, and a complement to the normal electoral framework and representative democracy. First, the Communication characterised VO membership as a ‘vital’ means of expressing and strengthening a sense of citizenship, which ‘is of growing importance at the European level’ (EC 1997: 5). These actors are equally envisaged as a means of contributing to EU citizenship. Second, and given their capacity to ‘foster a sense of solidarity and citizenship’, VOs help ‘provide the essential underpinnings of … democracy’. In so doing, they ‘make a profound and indispensable contribution to the democratic life of Europe’ (EC 1997: 5). Third, the Commission recognises that, for many, VO membership ‘may be their only experience of democratic processes outside of the normal electoral framework’ (EC 1997: 6). A 2000 Commission Discussion Paper entitled The Commission and NonGovernmental Organizations: Building a Stronger Partnership further reinforced the participation rhetoric. Here, the Commission made various claims regarding the benefits of NGO participation. It noted first a fundamental freedom in a democracy: the right of citizens to form associations to pursue common purpose. Belonging to an association, it maintains, provides an opportunity for citizens to participate in new ways other than, or in addition to, involvement in political parties or trade unions. As additional participatory mechanisms, NGOs can afford any democratic system of government valuable support. Second, although the Commission recognises that the decisionmaking process in the EU is first and foremost legitimised by the elected representatives of the European people, it notes that NGOs, nevertheless, help foster participatory democracy both within the EU and beyond (EC 2000: 4). Third, NGOs are particularly able ‘to reach the poorest and most disadvantaged and to provide a voice for those not sufficiently heard through other channels’ (EC 2000: 5). They do this by representing to the European institutions the views of particular groups of citizens regarding specific issues,

Introduction

5

such as, for example, the elderly and the disabled, ethnic minorities on consumer, environment or animal welfare issues. NGOs established at Community level with an EU-wide presence are particularly recognised for their ability to ‘channel and focus the views of the various NGOs’ and their special ability to speak with one voice (EC 2000: 5). Equally, NGO involvement in policy-shaping and policy implementation helps win public acceptance for the EU and may act as a ‘balance to the activities and opinions of other interests in society’ that would otherwise dominate (EC 2000: 5). Finally, NGOs contribute to European integration. By encouraging teamwork and collaboration, European NGO networks make an important contribution to the formulation of a European public opinion, usually seen as a prerequisite to the establishment of a true European political entity. The Commission discourse and approach conveyed in this Discussion Paper provides a clear argument against adopting an exclusively parliamentary approach to representation and accountability in the EU’s political system (Lord 2001: 653) and a promotion of increased stakeholder participation as a complement. It is also noteworthy that the Discussion Paper’s release coincided with a period in which the Commission was needful of reasserting its legitimacy basis. The 1999 resignation crisis had provided the catalyst for a ‘far-reaching process of administrative reform’ aimed at promoting ‘more service-orientated behavior and an improvement in the management culture of the Institution’. As part of this, the Commission promised to increase transparency and accountability to its principal interlocutors (EC 2000: 2). Clearly, civil society participation in the shape of NGOs is a legitimisation tool representing one of the Commission’s preferred options for rebuilding its tainted reputation. The 2001 White Paper on governance continues the discourse by suggesting a new understanding of how the Union broadly, and the Commission specifically, may secure greater democratic legitimacy. It ‘proposes opening up the policy-making process to get more people and organisations involved in shaping and delivering EU policy’ (EC 2001: 3). Various justifications are given for the ‘important role’ (EC 2001: 14) attributed to interest participation and the dialogue between the Commission and civil society. First, it is considered a response to ‘the expectations of the Union’s citizens’ (EC 2001: 35), by facilitating the adoption of ‘a less top-down approach’ (EC 2001: 4) which renders policy-making ‘more inclusive and accountable’ (EC 2001: 8). All these factors should, in turn, augment ‘the quality, relevance and effectiveness of EU policies’, ‘create more confidence in the end-result and in the institutions which deliver policies’ (EC 2001: 10) and produce ‘a sense of belonging to Europe’ (EC 2001: 11). Second, participation is credited with helping to reinforce the legitimacy of the Commission’s activities and institutional position as well as the overall legitimacy of EU governance10 by opening up ‘policy-making to make it more accountable’. It also compels the EU to ‘connect … more closely to its citizens’ (EC 2001: 8). Today, the document notes, democracy is contingent on ‘people being able to take part

6

Introduction

in public debate’ (EC 2001: 11), while legitimacy ‘depends on involvement and participation’. Consequently, ‘the linear model of dispensing policies from above must be replaced by a virtuous circle, based on feedback, networks and involvement from policy creation to implementation at all levels’ (EC 2001: 11). Third, civil society gives ‘voice to the concerns of citizens’ and helps deliver ‘services that meet people’s needs’ (EC 2001: 14). Fourth, CSOs ‘mobilise people and support, for instance, those suffering from exclusion or discrimination’ (EC 2001: 14). Fifth, civil society ‘is a chance to get citizens more actively involved in achieving the Union’s objectives and to offer them a structured channel for feedback, criticism and protest’ (EC 2001: 15). Sixth, greater interaction and more effective communication with civil society facilitates the public’s ‘(necessary) access to reliable information’ on European issues and renders them better ‘able to scrutinise the policy process at its various stages’ (EC 2001: 11). Finally, the quality of EU policy ‘depends on ensuring wide participation throughout the policy chain – from conception to implementation’ (EC 2001: 10). Direct civil society participation based on the notion of participatory democracy clearly constitutes a key component within the Governance White Paper. It emphasises the importance of securing greater direct popular support for European governance and an understanding of democratic legitimacy whereby citizens and organised civil society play an active role. Many of the paper’s proposals are directed at rendering the EU, ‘its governance, political project and policies more understandable, attractive and directly acceptable to citizens’. The key assumption is that if citizens can be made to better understand what the Union does and how it provides benefits, citizen support will be secured (Tsakatika 2005: 210). Participation actually comprises one of the five major principles of ‘good governance’, along with openness, accountability, effectiveness and coherence. It would be difficult for the Commission to deny that the White Paper is at least partially intended to utilise consultation and participation processes as a legitimisation tool, especially to generate improved public acceptance and credibility of its policy-making role. Following the Governance White Paper, the Commission launched a proposal on how to consult European civil society, which was subject to a period of consultation with interested parties. In December 2002, a Communication entitled Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation11 of Interested Parties12 by the Commission was produced, and has since become part of the EU legal framework on consultation. Participation is one of four general principles for Commission consultations on major EU policies, the quality of which is contingent on wide citizen participation in the different policy-making process phases from conception to implementation. Elsewhere, the Communication reiterates the assumption that belonging to an association complements political parties and the electoral process as another way for citizens to participate actively in modern democracies. CSOs help to respect one of the fundamental rights of citizens: that is, ‘to form associations in order to pursue

Introduction

7

a common purpose’13 (EC 2002: 5). The Commission equally re-emphasises its commitment to an inclusive approach when developing EU policies, ‘which means consulting as widely as possible on major policy initiatives’ (EC 2002: 16). It also again stresses its need to consult widely before proposing legislation and, wherever appropriate, publish consultation documents. Adherence to these principles and the fulfilment of its ‘duty to consult’ are intended to enhance ‘the Commission’s accountability’ (EC 2002: 3) and give ‘the legislator greater scope for scrutinising the Commission’s activities (e.g. by making available documents summarising the outcome of the consultation process)’ (EC 2002: 5). Although consultations are seen as supplementing (and not replacing) the procedures and decisions of legislative bodies, which possess democratic legitimacy (Slob and Smakman 2007: 29), clearly the Commission is reutilising the notion of increased civil society participation as an antidote to the frequent charges of democratic deficit and as a means to bring the European decision-making process closer to the individual citizen. More recently, to address the continuing democratic and legitimacy deficits debate and to ‘put its own house in order’ (EC 2006: 7), the Commission has identified communication as one of its key strategic objectives. In July 2005 it published its Action Plan to Improve Communicating Europe. Communication, it notes, ‘is a dialogue, not a one way street. It is … about citizens expressing their opinions so that the Commission can understand their perceptions and concerns. Europe’s citizens want to make their voices in Europe heard and their democratic participation should have a direct bearing on EU policy formulation and output’ (EC 2005c: 3). Communication is thus considered ‘more than information’ because it ‘establishes a relationship and initiates dialogue with European citizens, it listens carefully and it connects to people’ (EC 2005c: 2). The Action Plan resulted in a White Paper on a European Communication Policy, published in February 2006. Here, communication is seen as part of the solution to ‘the gap’ between the EU and its citizens (EC 2006b: 2), the remoteness felt by citizens from decisions (EC 2006: 4) and their ‘sense of alienation from “Brussels”’ (EC 2006b: 4). Communication is equally highlighted as ‘essential to a healthy democracy’ to the extent that the latter ‘can flourish only if citizens know what is going on, and are able to participate fully’. Participation constitutes one of the common principles at the heart of communication. Indeed, citizens, it notes, have a right to express their views, be heard and have an opportunity for dialogue with the decision-makers. At EU level, where there is an added risk that institutions are remote from the citizens, this principle is of particular importance (EC 2006b: 6). For its own part, the Commission underlines the ‘major strides’ it has already made ‘in the way it consults on major policy initiatives and minimum standards for consultation have been introduced’ (EC 2006b: 7). Nonetheless, the EU institutions have a responsibility to continue their efforts to better connect with citizens and as such it proposes that its minimum standards for consultation be reviewed ‘to ensure a more balanced representation of interest groups and a more responsive follow-up’ (EC 2006b: 8).

8

Introduction

The document further underlines the ‘very important’ role that CSOs can play in public awareness raising on European issues and policy debates, and in encouraging active participation in these (EC 2006b: 12). In sum, the Paper proposes ‘a new approach’ moving from information exchange to genuine dialogue and discussions about European policies. Rather than one-way, institution-centred, and Brussels-based communication in the sense of ‘telling people what the EU does’, greater future focus will be on reinforced and decentralised citizen-centred dialogue and communication. The discourse on promoting participation via consultation processes is once again extended in the Plan-D for Democracy, Dialogue and Debate launched by the Commission in October 2005 following the negative referenda on the Constitutional Treaty. Its launch coincided with the European Council’s call for a ‘period of reflection’ and was also intended to ‘dovetail’ with the Commission’s work on constructing a Communication Policy. An entire heading (4.2) is given over to ‘Promoting citizens’ participation in the democratic process’. The Plan first establishes that, in order to deal with the perceived lack of legitimacy and limited involvement of European citizens in the political systems, it is necessary to further enhance their sense of participation and involvement in the European ideal at all levels (EC 2005a: 9). The document thus establishes the Commission’s intention to ‘have a more direct contact with citizens, to listen to their concerns’ (EC 2005a: 7) and further underlines the importance of maintaining ‘the trust and involvement of Europe’s citizens’ (EC 2005a: 3) and civil society in debates. It also reiterates the right of EU citizens to have their voices heard (EC 2005a: 4). Again, the Commission notes its own progress in improving the way it consults on major policy initiatives. The sharp rise in the number of consultations with stakeholders through Green and White Papers and internet consultations is provided as evidence. The Commission launched the European Transparency Initiative on 9 November 2005, which extends its discourse on increased legitimacy via civil society participation. In the context of this Initiative, the Commission adopted a Green Paper in May 2006, which focused on measures aimed at improving transparency within the European administration. The Green Paper specifically launched a debate on transparency and interest representation, external feedback on progress made in the implementation of the Commission’s minimum standards for consultation, and the publication of data on beneficiaries of EU funds. The Commission’s commitment to widening stakeholder opportunities to actively participate in EU policy-shaping is repeated in this document, as are the perceived benefits of lobbying.14 The latter is seen as a legitimate part of the democratic system, regardless of whether it is carried out by individual citizens or companies, CSOs and other interest groups or firms working on behalf of third parties (public affairs professionals, think-tanks and lawyers). This is because lobbyists15 can help bring important issues to the attention of the European institutions. In some cases, the document notes that the Community is even prepared to offer financial

Introduction

9

support to ensure that certain interest groups’ views are effectively voiced at European level (e.g. consumer interests, disabled citizens, environmental interests, etc.) (EC 2006a: 5). Perhaps the pinnacle of the Commission and EU’s rhetoric on participation came in the aftermath of the failed Treaty establishing a Constitution for Europe and as a result of the uncertainty that followed surrounding the Lisbon Treaty. Under Title Five of the former entitled The Democratic Life of the Union and Title Three of the latter entitled Provisions on Democratic Principles, participatory democracy was included as the last of three principles after the principle of democratic equality and the principle of representative democracy. The relevant articles in each document established that the European institutions should ‘by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’. Second, the institutions should ‘maintain an open, transparent and regular dialogue with representative associations and civil society’. Third, that the Commission should carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. A final provision related to the citizens initiative to invite the Commission to submit policy proposals. Although much of the contents of these articles are already codified practice, enshrined in secondary legislation and built into the Commission’s framework of improved governance as outlined above, it remains significant that they were attributed treaty status in these Treaty documents. More than a decade after the launch of its increased participation of civil society discourse, the Commission ‘prides itself ’ on stakeholder inclusiveness (Lord 2001: 649). One of the means by which it assures such participation is via its constellation of advisory forums. ECAFs constitute participatory mechanisms comprising organised civil society representatives established, for the most part, at the Community level. They are exclusive rather than inclusive structures to the extent that they include the interests perceived (by the Commission and in some cases those groups already present) to be those which are the most affected or interested in the issues that fall within their respective mandates. The majority of participants are external to the Commission but it is the latter who usually appoints new members based on nominations from actual participants. Participating CSOs are explicitly expected in most cases to be representative EU-level organisations with wide European coverage. The focus here rests on ECAFs located within four Commission Directorate Generals (DGs): DG AGRI’s AAGs; DG Environment’s EUEB; DG Trade’s TCG and associated CSD; and DG SANCO’s EUHPF. ECAFs are mostly active at the policy development phase, which includes agenda setting, policy initiation, preparation of initiatives and formulation of proposals.16 As the name suggests, they are advisory mechanisms producing non-binding advice, usually on technical rather than political issues for the Commission. Their non-binding nature means that the Commission is under

10

Introduction

no obligation to listen to them or take into account their advice or recommendations. It is important to note that ECAFs are different from the Comitology committees, which are composed of national representatives and ‘assist the Commission in the exercise of its implementing powers’ (Vos 1999: 20) according to the executive powers delegated to the Commission by the Council of Ministers. ECAFs have no formal policy or decision-making power and can thus only influence policy by making a convincing case in favour of their analysis. Broadly then, these bodies advise the Commission on the preparation of proposals. Commission committees were first created in relation to the CAP in the early 1960s, The first committees created in this light were those under the ‘management committee procedure’. Here, in response to significant national opposition to any unconditional delegation of powers from the Council to the Commission, the former obliged the latter to consult a committee composed of national representatives prior to the adoption of implementation decisions. If via QMV the management committee agreed the measure or failed to reach a decision, the Commission could freely adopt it. Where a measure was rejected in committee it had to be referred back to the Council. The ‘regulatory committee procedure’ was developed later in 1968 and guaranteed the Council even stronger power of oversight of the Commission’s implementing powers. Gradually, multiple versions of the aforementioned committees as well as less powerful ones under the ‘advisory committee procedure’ were developed. These were created as a direct result of the 1972 Paris Summit, which called for the increased participation of economic and social interests in the Community policy-making process. In response, the Commission created committees composed of interested representatives in specific fields. Since their origins, the number of committees involved in the preparation and implementation of Community policies has undergone rapid expansion. Of the four ECAFs explored here, the AAGs are the most mature, created as they were in 1987 in their original manifestation as Agricultural Advisory Committees. For its part, DG Trade’s CSD process (of which the TCG is now a part) was launched in 1998. The TCG itself was only set up in 2000 and that year also saw the creation of DG SANCO’s EUHPF and DG Environment’s EUEB and the Consultation Forum (CF) it comprises. The EUEB, created by Regulation 1980/2000, constitutes the lead competent body and the central structure underpinning the EU’s voluntary EcoLabelling scheme and ‘the Flower’ label. The broader scheme was set up to promote products with a reduced environmental impact and provide consumers with information on this. The specific label is an actual award for nonfood products and services with reduced environmental impacts and was developed as a market-based instrument to help manufacturers, retailers and service providers to gain recognition for good standards and to help purchasers/consumers to make reliable choices. An EU Eco-Label award scheme has been operating since 1993 and the first product groups were established shortly afterwards.

Introduction

11

There are several different layers to the Eco-Label structure. At one level there are Ad Hoc Product Working Groups, largely attended by experts. At another level there is the Regulatory Committee, which is comprised of Member State (MS) representatives. Two other sub-structures exist as part of the EUEB, the Co-operation and Co-ordination Management Group and the Marketing Management Group. A third, the Policy Management Group, is no longer in operation, having been wound down in December 2004. At a different level is the EUEB, which manages the Eco-Label. It is composed of the national Competent Bodies (CBs) who are responsible for managing the European Eco-Label’s implementation across the EU. These CBs are designated by EU MSs and are usually officials from the national ministries with competence for environmental matters. The Board is also composed of the Consultative Forum (CF) and is the focus of this discussion. It comprises CSOs and is as such a venue for groups and sectors interested in the Eco-Label to meet, exchange views and be consulted by the European Commission and the national CBs on issues related to the European Eco-Label. DG Trade triggered the CSD in response to a blend of specific internal and external pressures. With regard to the latter, the various developments in the run up to 2000 in the international trade arena, especially those surrounding the Multilateral Agreement on Investments (MAI) and WTO negotiations were significant. In addition, and closer to home, ‘the perceived alienation of the Commission from the wider public’ (Slob and Smakman 2007: 11) was a major contributory factor. Key internal catalysts were more closely related to Commission policy developments. Around this time, there was a growing realisation within DG Trade that due to the important linkages between trade, development and environment, the latter two areas needed to be integrated within the EU’s trade negotiations. This realisation was aided by the growing awareness that developing countries and an increasing number of CSOs focused on highlighting and opposing the effects of international trade agreements on development were becoming more vocal in their demands for a greater say in policy processes. Furthermore, the collapse of the MAI, the Millennium Round of trade talks at the WTO Ministerial in Seattle in late 1999 and the ensuing media attention on the role of NGOs in instigating this collapse ‘impressed on the Commission the fact that these actors could no longer be avoided’ (Slob and Smakman 2007: 26). Consequently, at the following WTO meeting that took place in Doha in 2001, many countries included NGOs in their official delegations. More generally, the CSD served as a response to the criticisms levelled at the Commission of it harbouring a democratic deficit. Trade policy came under particular scrutiny. It is dense and complicated, the scene of ‘complex, technical deals between obscure negotiators’ (Meunier 2006: 2). Additionally, it is a policy area of exclusive Community competence with many of its details decided in the Article 133 Committee comprising representatives from the European Commission and the Council of Ministers. It has consequently been traditionally perceived of as being a predominantly closed policy

12

Introduction

domain. The aforementioned external and internal triggers as well as globalization and the increased liberalization of world trade mean that this policy area was increasingly seen as affecting the lives of European citizens, touching as it progressively did on employment and environment. The undemocratic nature of trade policy was thus a matter of increased concern. To kick-start the process, the Trade Commissioner at the time, Pascal Lamy, appointed a member of his Cabinet to oversee civil society relations: Mr Robert Madelin. Lamy also persuaded the Council of Ministers to include a group of CSOs in the EU’s 1999 Seattle delegation (Fazi and Smith 2006). Following the collapse of Seattle, and as a direct response to the efforts of both Lamy and Madelin (Slob and Smakman 2007), the CSD was made a permanent feature of DG Trade. The TCG was itself officially set up after DG Trade had sent out a letter to participants already registered in early consultations asking them to nominate from their midst representative organisations. DG Trade’s Contact Group and CSD make an interesting comparison with the other cases in being widely regarded as an example of good practice in consultation process (Jarman 2008; Greer and Massard da Fonseca, and Adolph 2008; Slob and Smakman 2006). The CSD ‘is currently the largest and most structured stakeholder forum’ in the European Commission (Bizzarri and Iossa 2007: 5) and has been described as ‘the most visible meeting point for the trade policy community’ (Gerlach 2006: 178). DG SANCO’s EUHPF was born out of a Commission Communication on the European Community Health Strategy published in May 2000 (Slob and Smakman 2007: 88). The central themes underlying this new Community approach to health were openness and transparency. Within this document, the Commission announced its intention to set up the European Health Forum as an important element of this new health strategy. Accordingly, the Forum was to serve as an information and consultation mechanism to ensure that the aims of the Community’s health strategy and the mechanisms by which they were to be pursued were made clear to the public and respond to its needs. Prior to the Forum’s creation, consultation had taken place with a select group of stakeholders, with which DG SANCO already had regular informal contact. According to DG SANCO officials, CSOs were consulted on the organisation of the Forum as a means to better understand what the major issues were and which organisations should be included in the process. The EUHPF is now one of numerous stakeholder platforms within DG SANCO; with others including the Food Safety Forum and the Consumer Protection Forum. This DG does not rely solely on the EUHPF. It also uses other advisory mechanisms to consult on specific issues such as the Obesity Platform. Because the ECAFs are participatory structures, they can be linked to the Commission’s discourse that participation can be a legitimising credential. However, it is significant that these structures were essentially created and developed to provide a different kind of added-value to the EU system, that is, to provide improved quality of policy outputs. As Vos confirms, the ad hoc

Introduction

13

evolution of committees came about because of a ‘need to achieve effective and efficient decision-making’ (1999: 19). The early 1960s saw the establishment of the first CAP-related Commission committees. The expansion of this first ‘common’ European public policy led the Council to delegate certain implementation or executive tasks to the Commission in an effort to reduce its own workload. This occurred on a discretionary basis with the Council maintaining strong oversight. Given that, at the time, agriculture was the most intensively regulated sector of the European economy, and those committees were perceived of as a means to facilitate MS consent to and implementation of regulations, it is no surprise that they were first developed in this policy sector (Joerges 1999: 8–9). Effectiveness concerns have evidently long been a high priority in committee development. It is noteworthy that parallel to its pursuit of civil society participation as a legitimising mechanism the Commission has also conceived of it as a means to improve the quality of policy outputs. In its 1992 Communication entitled An Open and Structured Dialogue between the Commission and Special Interest Groups, for example, part of the rationale behind the adoption of measures designed to broaden participation in the preparation of proposals and decisions is the pragmatic assumption that such openness to outside input is ‘fundamental to the development of its policies’ (EC 1992: 1). Instead, the Commission recognises that being accessible to interest groups is in its ‘own interests’, since they ‘can provide the services with technical information and constructive advice’ (EC 1992: 1). In its 1997 Communication entitled Promoting the Role of Voluntary Organizations and Foundations in Europe, the promotion of VO and Foundation participation is also based on the assumption that these elements of organised civil society contribute to the effectiveness of representative democracy. Not only are they intermediaries in the exchange of information and opinions between government and citizens, they equally facilitate citizens’ ability to examine critically government actions or proposals with expert advice, guidance on popular views and feedback on the effects of policy measures (EC 1997: 7). In its 2000 Discussion Paper entitled The Commission and Non-Governmental Organizations: Building a Stronger Partnership, the importance of NGO participation as well as the maintenance, strengthening and enhancement of existing co-operation between the Commission and interests is described as three-fold. NGOs contribute to policy-making via the provision of specific expertise and ‘feedback on the success or otherwise of specific policies’ (EC 2000: 5). They also facilitate project management by managing, monitoring and evaluating EU-financed projects, particularly in environment protection (EC 2000: 5). Finally, the Commission’s ‘right of initiative’ and desire to ‘improve policy design and increase efficacy’ render ‘timely consultation’ with all stakeholders important (EC 2000: 7). Effectiveness remains integral to, even ‘reign[s] supreme’ in the 2001 White Paper on European Governance (Tsakatika 2005: 211; Magnette 2003;

14

Introduction

Kohler-Koch 2001: 179–80). Indeed, the majority of its proposals are dedicated to making EU governance more efficient (Tsakatika 2005: 11). The Paper certainly sustains the Commission’s long-held internal belief that ‘the Union would be legitimate if it produced good policies’ (Magnette 2003: 147–48). It also recognises that what ultimately interests citizens ‘is not who solves these problems, but the fact that they are being solved’ (Prodi 21 July 1999 cited by Magnette 2003: 148). Within the Paper, the Commission contends that the legitimacy of EU governance in a given area is characterized by its superior efficiency when compared to separate national actions in that same area. This superior efficiency is a result of the European level’s propensity to deliver technocratic governance derived from expert and specialist advice. According to the Commission, rather than engaging in politics and political conflict, the Union must deliver on citizens’ expectations via governance based on expertise and interest conciliation. Such technocratic governance will facilitate delivery and thus ensure efficiency. Participation is mentioned specifically as boosting both the effectiveness and legitimacy of European governance. The result is an increase in ‘the quality, relevance and effectiveness of EU policies’, so that there can be greater confidence in policy delivery in terms of outputs and outcomes (EC 2001:10). In its 2002 Action Plan: Simplifying and Improving the Regulatory Environment, the Commission also clearly envisages consultation as a means of improving the quality of legislative proposals. In another 2002 Communication entitled Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties by the Commission, good consultation is equally credited with improving the effectiveness and overall quality of policy outcomes. This is because proposals are more likely to be ‘technically viable, practically workable and based on a bottom-up approach’ (EC 2002: 5). Furthermore, CSOs are attributed an important role as ‘facilitators of a broad policy dialogue’ (EC 2002: 5). As a final example, in its 2006 Communication on the European Transparency Initiative, the Commission reaffirms that wide consultation ‘is an essential tool for improving the quality of the Commission’s legislative proposals’. This volume proceeds as follows. Chapter One examines the plausibility of realising the two principal standards of good governance, legitimacy and effectiveness, simultaneously, and examines the extent to which the EU broadly and the European Commission specifically have attempted this feat. Chapter Two establishes a framework for assessing the legitimacy and effectiveness of ECAFs and creates a set of feasible benchmarks for empirical application. Thereafter, the four case study chapters examine, in turn, DG Environment’s EUEB, DG SANCO’s EUHPF, DG Trade’s TCG and associated CSD and DG AGRI’s AAGs, with a view to drawing conclusions regarding their capacity to serve as venues where the pursuit of effectiveness and legitimacy may be reconciled. The majority of the research activity took place over a period of several months from April 2007 to February 2008. It

Introduction

15

involved desk studies of relevant EU, Commission and CSO documentation and more than 36 in-depth interviews with Commission officials and CSO representatives. It is also worth pausing to note that the definition of civil society utilised here is a broad one and is ‘a collective term for all types of social action, by individuals or groups that do not emanate from the state and are not run by it’ (Smismans 2003: 491). CSOs are conceived of here as the principal structures of society outside of government and public administration (EC 2002). More specifically, they are organisations that possess certain key features: independence from the state or any political institutions; voluntary membership; possession of a particular aim and pursuit of a common interest without being motivated by private gain or profit (Fazi and Smith 2006: 16). Our definition therefore corresponds to the European Commission’s designation of civil society,17 which is ‘shorthand to refer to a range of organisations’. These include: labour-market players (i.e. trade unions and employers federations – the ‘social partners’); organisations representing social and economic players, i.e. consumer organisations; NGOs/environmental, human rights, charitable organisations, educational and training associations; CBOs (communitybased organisations), set up within society at grassroots level which pursue member-orientated objectives, e.g. youth organisations, family associations and all organisations through which citizens participate in local and municipal life; and religious communities (EC 2001: 14).

1

Legitimacy and effectiveness – two principal standards of good governance

On the basis that effectiveness and legitimacy are the most important standards of good governance, this chapter initially undertakes their definition. Given their multifaceted nature, particularly of the latter, this is a complex task. The exact nature of the relationship between effectiveness and legitimacy is also complicated but its exploration is nevertheless undertaken as a second task. As a starting point, they are considered in light of the input/output approach whereby the participation of civil society actors is perceived of as helping to generate legitimacy on the input side while factors that enhance the performance and delivery of policy can help on the output side. The most significant question here is whether these two governance standards can be realised simultaneously or whether there is an inherent tension between them, rendering them incompatible if not irreconcilable. There is a significant body of evidence that they are divergent concepts, fundamentally at odds with each other and therefore mutually constraining. The contending view however is that under certain conditions they can be complementary and even mutually reinforcing. Indeed, with the help of the input/output approach we can appreciate the convergent relationship between them whereby they lead to the same result: the achievement of democratic legitimacy. Civil society participation stands at the heart of this co-terminus understanding of effectiveness and legitimacy, capable as it is of contributing to the quality of policy inputs as well as outputs. Whatever the relationship between effectiveness and legitimacy, modern political systems regularly find themselves more or less successfully trying to ensure a workable if not optimum balance between the quality of input and output. More often than not, however, this results in pendulum shifts between them, as if they represented separate poles. Both the European Union as a polity and the European Commission as one of its primary institutions of governance have previously demonstrated throughout their history such pendulum style reactions to effectiveness and legitimacy. Via its various Advisory Forums, the Commission may however have (inadvertently) found a location to reconcile the two governance standards given that these participatory structures arguably possess the capacity to help the Commission simultaneously improve system effectiveness and sustain adequate democratic credentials like legitimacy.

Legitimacy and effectiveness

17

Effectiveness and legitimacy are the most important normative standards of good governance and crucial for the maintenance of long-term political order (Börzel and Panke 2006). Ineffective governance structures cannot maintain themselves in the long term while any attempt to sideline legitimacy and simply adopt effectiveness as a yardstick for successful governance, actually risks generating ‘attestations of success where there is none’ (Börzel and Panke 2006). In short, both the governance standards of effectiveness and legitimacy are required to ensure that any democratic system’s political order is rightful (Risse 2004: 8).

Defining legitimacy and effectiveness The assumption at the heart of this discussion is that for governance and governance structures to be successful, it/they must be both effective and legitimate. The definition of these concepts is, however, complicated. Indeed, their contestability is beyond debate and as such their meanings shift according to the context in which they are used. Most scholars would agree that legitimacy is a complex concept (Brown, Lentsch and Weingart 2005: 82). Moreover, it is perhaps ‘one of the most frequently used and misused concepts in political science’ (Schmitter 2001: 1). Nonetheless, it seems clear that ‘it has something to do with support, and, especially, popular trust for political decisions, personalities and institutions’ (Bechev and Andreev 2005: 11; Blondel 1995: 62; Lord 2000: 1). In its broadest and even classic sense, the concept of legitimacy relates to the exercise of power in society; quite simply it asks why political authority is justifiable. Indeed, when we talk about a legitimate political system, we mean that it is the best available and that it ‘is achieving the right policy goals, i.e. policy goals that are perceived [by the governed] as valuable and worthwhile’ (Born 2002: 1). Public belief in the operation of democratic institutions, therefore, provides the moral authority for government action and defines the proper ambit or scope of government action (Beetham 1991; 1993). Voluntary public consent to and some degree of social acceptability of or consensus around rules or norms in society, public policy and systems of governance are obviously central notions to legitimacy. Authority also represents a significant dimension to legitimacy; via political legitimacy, governing bodies are invested with the authority to make publicly binding decisions so as to arrive at the unforced co-operation of citizens (Lord 2000: 3). Here then, legitimacy is about obedience of individuals with collectively binding norms and rules; what may otherwise be called a ‘generalised preparedness to accept, within a certain margin, a decision whose content is not yet known’ (Luhmann 1975: 25). In relation to lawfulness, legitimacy also comprises a belief on the part of the ruled that the social order in which they live and operate is lawful (Weber 1980: 123). This implies that the ruled are under a ‘socially sanctioned

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Legitimacy and effectiveness

obligation to comply with government policies even if these violate the actor’s own interests or normative preferences, and even if official sanctions could be avoided at low cost’ (Scharpf 2003). In short, although it may be costly, the ruled exercise voluntary compliance. Rulers equally consider legitimacy according to a cost-benefit analysis: because coercion and supervision necessitates greater resources, legitimacy is a less costly option (Scharpf 2003). The concept of legitimacy has been further specified in various ways. It can be general or take a macro-perspective, which relates to the formal properties of an overall political system and it can be specific or take a micro-perspective, which relates to the attitudes and actions of citizens towards the political system or to individual policies or governance structures (Weatherford 1992: 149; Easton 1965: 311–19; Blondel 1995). Existing methods for assessing the legitimacy of a political system or governance structure are various. One way is to evaluate the extent to which the system or structure conforms to certain normative criteria (Holzhacker 2007: 259). At a macro-level, for example, accountability, efficiency, procedural fairness and distributive fairness could be described as four key attributes of a legitimate political system (Weatherford 1992). Accountability is that of rulers to the governed via a wide and participative process. Efficiency relates to whether government can deliver on society’s needs without unduly wasting time and resources. Procedural fairness concerns the structuring of the political system so as to ensure the resolution of issues in a regular and predictable way as well as open and equal access to decisional arenas for the governed. Distributive fairness means that any advantages and costs allocated by the system are either equally distributed or wholly justified where not according to the principle of equality (Weatherford 1992: 150). A second way of evaluating legitimacy is to assess empirically the extent to which the system or structure is perceived of by citizens as right and deserving of loyalty (Holzhacker 2007: 259; Easton 1965; Schmitt and Thomassen 1999). At a micro level, investigations of legitimacy could for example focus on three perception-based attributes. First, the levels of a citizen’s political interest and involvement or the extent to which citizens feel that the benefits of political participation outweigh the costs in terms of time and commitment. Second, ‘interpersonal or social precursors’, which must be in place before citizens will become politically involved, such as feelings of trust or suspicion towards, for example, decision-makers. Third, citizens must feel optimism about the responsiveness of the political system, which, in turn, is derived from perceptions about macro attributes regarding the political system’s procedural and distributive fairness (Weatherford 1992: 150). The concept of effectiveness also constitutes an essential component of democracy. It refers to the capacity of a political system, its institutions and procedures, to satisfy the demands they were designed to cope with by achieving the goals and producing policies that solve the problems of the citizens. As such, effectiveness is about both goal attainment and problem-solving capacity and can be assessed in simple terms by exploring whether the action or

Legitimacy and effectiveness

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process delivers its intended outcomes. Efficiency is intrinsic to effectiveness denoting the capacity of the political system to achieve its aforementioned goals and solve citizens’ problems at reasonable cost and without undue delay.

The relationship between legitimacy and effectiveness: the input and output side One way to conceive of the relationship between legitimacy and effectiveness is to assess them in the context of inputs and outputs, which together form the core notions of democratic legitimacy. On the input side, modern and predominantly Western notions of legitimacy are today based ‘almost exclusively on trust in institutional arrangements that are thought to ensure that governing processes are generally responsive to the manifest preferences of the governed’ (Scharpf 2003: 3): This input legitimacy can otherwise be labelled as ‘government by the people’. On the output side, notions of legitimacy refer to the idea that adopted policies will generally represent effective solutions to the governed’s common problems. This output legitimacy can otherwise be labelled ‘government for the people’. Thinking of legitimacy in terms of a two-dimensional concept, which encompasses both the inputs as well as the outputs of a political system, provides a useful basis for this discussion. On the input side, democratic legitimacy is contingent on the presence of mechanisms or procedures that link political decisions (outputs) with citizens’ preferences or translate the will of the people into political decisions. If these mechanisms are judged ‘democratic’ or ‘good’ by citizens then there is input legitimacy. In short, input legitimacy concerns the question of whether outputs are reached in an appropriate and acceptable manner; a manner which contains appropriate checks and balances and which provides some form of accountability. Input legitimacy can therefore be said to be in place when citizens accept a system because they are able to shape the agenda and contribute to debate. In modern democratic political systems, input legitimacy is tied normally to the procedures by which laws are made and the ability of citizens to hold government accountable for the decisions it makes on their behalf and with their consent (Smythe and Smith 2006). In this way, the mechanisms linking political decisions and citizens preferences are reflected in representative institutions in which political decision-makers can be held accountable via electoral and party competition. However, input legitimating strategies also ‘rely on the rhetoric of “participation” and of “consensus”’ (Scharpf 1999: 7). This is because the ability of citizens to hold to account is linked to the ‘participatory quality of the decisionmaking process leading to laws and rules. Those who have to comply with the rules ought to have an input in rule-making processes’ (Risse 2004: 7). In this way, the acceptability of the EU’s policy outcomes is enhanced by ‘democratising’ the policy formulation process. This can be done for example by integrating citizens and providing space for participatory input. It also means

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Legitimacy and effectiveness

involving citizen ‘stakeholders’ in a process of deliberation. By representing ‘the will of the people’, providing real opportunities for citizens to effectively influence policy-making and thus linking political decisions to public preferences, deliberation is an important source for input-oriented democratic legitimacy. Based on the discussion so far, it seems clear that input legitimacy has something to do with popular support. Cultivating relations with representatives of civil society is one way by which to generate this and their role is thus significant in the cultivation of legitimacy. Indeed, the centrality of the notion of participation to the broad concept of political legitimacy is clear: procedural opportunities for participation at the macro-level and citizen optimism about the responsiveness of the political system to citizen input at the microlevel can help secure legitimacy (Weatherford 1992). In addition to participation, transparency is often seen as a key to ensuring a government’s input legitimacy because it is critical to accountability – a citizen’s right to know is central to their capacity to evaluate government decisions and is a building block of trust in the political system. Whether it is direct citizen participation or participation of representatives of civil society, input legitimacy and the notion of participation are intrinsically linked and this linkage is a core underlying current to this discussion. It is this aspect of participation which has been at the heart of a fundamental debate regarding the primary governance standards of legitimacy and effectiveness. The question is whether the two can be realised simultaneously. In democratic political systems, output legitimacy broadly ‘deals with the likelihood of acceptance of the decision based … on its impact or results and its effectiveness in advancing or attaining community values’ (Smythe and Smith 2006). More specifically, this legitimacy refers to the problem-solving capacity, the quality of rules and laws (Risse 2004: 7–8) and the acceptance that some decision or some structure of governance ‘works’ and ‘performs’ and is thus able to ‘deliver the goods’. Output legitimacy occurs whereby citizens accept the outcome of the decisionmaking process without questioning the mechanism that produced it because this outcome is widely recognised as appropriate. Taking the EU as our example context, output legitimation strategies are linked to results-based legitimacy. Democracy would after all be an ‘empty ritual’ if the democratic procedure was not able to produce effective outcomes, that is, ‘achieving the goals that citizens collectively care about’ (Scharpf 1997: 19), notably, effective and efficient public services. As a result of this brief discussion of the central concepts, it is clear that for our purposes, input legitimacy concerns democratic decision-making at the EU level through the participation of citizens and interest groups and output legitimacy relates to the EU’s general effectiveness in dealing with problems (Bouwen 2002: 371). Based on the assumption that well-functioning European governance structures require effectiveness and legitimacy, it is necessary to investigate the relationship between the two standards. This, however,

Legitimacy and effectiveness

21

is eminently more complex, not least because, although questions of legitimacy and effectiveness are rarely far from scholarly debates and are often implicitly if not explicitly considered, the complex relationship between them remains under-researched. It is perhaps understandable that such a void exists given that conceptual overlap and complexity renders an analysis of the relationship between the two problematic. What appears at first sight to be a relatively straightforward relationship quickly becomes increasingly complicated the more deeply they and their mutual juxtaposition are explored.

Legitimacy and effectiveness: a tensile relationship? The conceptual relationship between effectiveness and legitimacy can be described as fundamentally tensile; that is, they constitute divergent concepts, at odds with each other and are thus ultimately mutually constraining. In short, they may be incompatible if not irreconcilable, which casts doubt on the possibility that they can be simultaneously realised by a political system or governance structure. The basis of this ‘mutually obstructive’ (Blühdorn 2006) relationship between legitimate and effective governance rests on the view that legitimate structures and processes tend to be inefficient and thus ineffective while ineffective and inefficient arrangements often lack democratic openness and legitimacy. The impact on bureaucracy was an early illustration of the constraints that efficiency imposes on legitimacy and democracy (Weber 1921). While comprehensive bureaucratic structures are the key prerequisite to securing the efficient management of complex societies, such structures are also dysfunctional given their non-susceptibility to democratic scrutiny and accountability. In short, on the one hand, efficiency requires centralisation, leadership and top-down hierarchical structures. On the other hand, while decentralised and participatory structures may certainly be more legitimate, they are equally inherently slow, inefficient and susceptible to democratic sclerosis (Weber 1921). Considerations of the relationship between legitimacy and effectiveness/ efficiency must bear in mind that there may be a sharp discord between ‘the dual and conflicting imperatives’ of technical effectiveness and democratic responsiveness (Aberbach, Putnam and Rockman 1981: 3). Although political organisations of all types may frequently start out with a high commitment to democratic principles, these may soon become overshadowed by the necessary development of oligarchic structures as a means to pursue substantive objectives more efficiently (Michels 1962). Nowhere is this more amply illustrated than in the context of the operation of the ‘welfare state’, where efficiency and legitimacy undermine each other and cannot be simultaneously pursued (Offe 1984). Given that liberal democracies operate within the boundaries of their institutional mandate to maintain the preconditions of private exchange and wealth accumulation, the state is committed to ensuring market efficiency as a means to sustain these conditions. Simultaneously, however, the state must also concurrently preserve its legitimacy vis-à-vis the electorate. This necessity

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to maintain both popular support and private wealth accumulation presents a ‘contradiction’ to the state to the extent that the pursuit and achievement of either imperative undermines the preconditions for the survival of the other. Such a destabilisation occurs because private wealth accumulation and increasing capital intensity of production result in the displacement of labour (i.e. abroad) and a decrease in labour’s share of the national income. The state is therefore obliged to intervene in the market so as to alleviate some of the distributional consequences of capitalism (perhaps via unemployment benefit) and to provide services which the private sector abandons (pension provision). The state is under this obligation in order to maintain popular support. However, its actions divert resources that would otherwise be channelled into the private sector and thus reduce the latter’s efficiency. Within a global economy, capital has the facility to relocate to regimes that are more profitable. This, in turn, will result in further labour dislocations and further demands on the state’s welfare programs (Offe 1984). This ‘conflict’ or ‘troubled’ relationship between effectiveness, efficiency and legitimacy and democracy (Heinhelt 2000; Blühdorn 2006) confirms the doubts regarding their simultaneous realisation. If one objective is frequently pursued at the expense of the other, a zero-sum relationship occurs so that the more effective governance is (i.e. the higher the output legitimacy), the more problems of (input) legitimacy it suffers and vice-versa. Given the risk that democracy may only at best constitute a momentary experience where the ‘democratic moment’ will soon elapse to be swiftly replaced by an ‘inevitable entropy of democracy’ (Crouch 2004: 104), effectiveness and legitimacy may in fact be solely reconcilable via a periodic pendulum shift of policy emphasis from one pole to another (Hendriks and Tops 1999: 133; Blühdorn 2006: 3). As well as doubts over the feasibility of simultaneous realisation, problems also arise where one may be pursued at the expense of the other. On the one hand, for example, effectiveness gains can compensate for legitimacy deficiencies. However, given that any one-sided pursuit of efficiency increases any modern industrial society’s natural tendency towards authoritarianism and technocracy (Steffani 1973: 2, cited by Blühdorn 2006), greater effectiveness may be achieved at the risk of neglecting questions of legitimacy. Indeed, while there may be gains in efficiency yields, other democratic credentials like transparency and representation ‘may be sacrificed in the process’ (Häge and Kaeding 2007). On the other hand, if it is accepted that broad participation fosters consensual decision-making where there are no losers, then questions of legitimacy may be denied altogether. This may particularly be the case where there is a one-sided pursuit of the maximisation of participation and transparency. Understandings of democracy and legitimacy based on involvement and openness alone are incompatible with the resolution of problems suffered by complex societies (Steffani 1973: 2, cited by Blühdorn 2006), which often require specialised expertise and rapid timeframes. Indeed, democratic openness invariably reduces a political system’s steering capacity due to the increase in the number of veto points and players. However, democratic

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inclusiveness is equally damaged when any attempt is made to increase a system’s steering capacity and overall effectiveness (Tsebelis 1995; 2002). Aside from the general level of incompatibility between legitimacy and effectiveness, on the specific issue of civil society participation, it is possible to make an even stronger case for their incongruity. Opening up governance structures to the participation of multiple actors with a diversity of interests engaged in processes of arguing generates clear risks and costs in terms of longer decisionmaking processes and difficulties in achieving consensus. The increased participation of private actors can also contribute to the ‘de-governmentalisation’ and ‘commercialisation’ of politics (Brühl et al. 2001), especially where public actors are dependent on large sector-based ‘insider’ interest groups able to invest large resources in lobbying. Indeed, transparency deficits are often associated with such questions of who exactly participates and what their motivations are for doing so. Participation is often selective, meaning that those given access are elite transnational Civil Society Organizations (CSOs). This emphasizes the gap between such groups and the wider public. Moreover, the internal democratic accountability of CSOs is itself questionable as is the extent to which they really represent the public interest rather than being themselves self-interested and élite driven (Keohane and Nye 2001). The sheer size of participant numbers can impose considerable burdens on democracy, so that in the end excessive public expression could at least harm effectiveness (Karty 2005: 421). Indeed, the cost of political decisions may be increased where communication is expanded to such an extent that citizens are more closely involved in policy-making (Sarcinelli 2003: 46). Wider access, consultation and participation may even damage the quality of policymaking given the costliness of the mechanisms necessary to collect responses, evaluate and aggregate these and feed them into decision-making (Eichenberg and Dalton 2003: 270). Governments may therefore perform less well where there is an over reliance on the quality of citizen input over that of elected representatives (Eichenberg and Dalton 2003: 270). The ultimate risk, of course, is that both effectiveness and legitimacy may be jeopardised and weakened in cases where transparency ‘is taken to an extreme’ (Eichenberg and Dalton 2003: 271). In sum, increased citizen access and consultation risk posing a dilemma and contributing to a ‘centrifugal drift’ between legitimacy and efficiency. In short, legitimate structures may be inefficient while efficient structures may be illegitimate (Raschke 1993: 30). This ‘democratic dilemma’ aptly describes the situation at EU level where the relationship between effectiveness and legitimacy is potentially problematic and tense. Input legitimation strategies like increasing stakeholder participation in EU policy formulation risk undermining the effective resolution of problems requiring collective action; a major component of output legitimacy (Skogstad 2003: 322). Some sort of ‘trade-off’ (Okun 1975: vii; Dahl 1994; Börzel and Hösli 2003) may therefore be necessary between citizens’ capacity to ‘exercise democratic control over the decisions of the polity’ (citizen effectiveness) and ‘the

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capacity of the system to respond satisfactorily to the collective preferences of its citizens’ (system effectiveness) (Dahl 1994). Although the EU constitutes a large political system and as such may be able to better cope with problems that matter most to citizens, on the negative flipside, citizen opportunities ‘to participate in and greatly influence decisions are vastly reduced’ (Dahl 1994: 28). It would seem therefore that citizens face a stark choice: either they preserve their capacity ‘to influence the conduct of their government’ or they recognise that the political unit’s capacity should be increased so that it can deal more effectively with important issues (Dahl 1994: 23–24).

Legitimacy and effectiveness: a complementary relationship? Notwithstanding the discussion so far, the contending view of this tensile relationship is that effectiveness and legitimacy do not in fact constitute competing yardsticks for good governance because under certain conditions, they can arguably be complementary and even mutually reinforcing. If we return to the input/output conceptualisation, clear linkages exist between legitimacy and effectiveness. As a primary aspect of the output side, effectiveness is at the heart of legitimacy and so the relationship between the notions is relatively non-tensional, convergent and coincident. Undeniably, there is a conceptual separation between output and input legitimacy but this does not mean that the two pillars of legitimacy should be regarded as independent. Important interactions actually exist between the two and they may be mutually supportive. Indeed, a certain level of input legitimacy is required for any governance system to work and when such a system produces positive outcomes (output legitimacy) this may also enhance input legitimacy by reinforcing the idea amongst citizens that governance has been in the right hands. In short, with regard to public acceptance of governance structures, input and output legitimacy may be to some degree interchangeable. Governance systems that are lacking in input legitimacy may be accepted as legitimate because of their performance and vice-versa (Svensson 2004). Improvements in effectiveness may therefore be sufficient to bring about improvements in legitimacy. A convergent relationship whereby legitimacy (input legitimacy) and effectiveness/efficiency (output legitimacy) lead to the same end result, the achievement of democratic legitimacy, is perhaps best demonstrated in tabular form. Such an understanding of convergence between effectiveness and legitimacy rests on the idea that democratic political systems must be both effective and legitimate because one which has the first characteristic but not the other ‘can hardly be called a democracy’ (Born 2002: 1). Encapsulated within this coterminus approach is the idea that legitimacy problems can be compensated for by effectiveness gains (Reinicke 1998). Participation is a key element in this co-terminus approach to effectiveness and legitimacy. Output legitimacy can be secured via the achievement of pre-defined objectives (effectiveness) and the accomplishment of tasks without undue wastage in terms of time and resources (efficiency). Participation (a key element

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Figure 1.1 Prerequisites for democratic legitimacy

of input legitimacy) can at least partially contribute to the achievement of effectiveness and efficiency. Because of action in both areas, overall political legitimacy is enriched. Participation can in fact be a generator of both output and input legitimacy because political systems or governance structures that are open to the inclusion of different actors and their interests are likely to perform better and lead to greater effectiveness (Jost and Jacob 2004; Parkinson 2004). The social problems that modern public policy must address are increasingly complex, rendering civil society participation increasingly significant. The well-worn adage that we live in a ‘network society’ made up of various social networks in which complex interdependencies prevail between actors means that the boundary between government and society has become blurred. Indeed, policy-making no longer occurs in vertical hierarchical structures but rather in horizontal modes of cooperation between governmental and societal actors where the government is only one actor among others within a network. Increasingly therefore, governing actors are dependent on resources held by economic and social actors. To improve the quality of policy content and due to the resource needs of government, other parties are required to be involved in policy-making. Increased civil society participation provides such information for government upon which it can make better-informed decisions (Regéczi 2005: 209; Coote, Kendall and Stewart 1994: iii). Many decisions can in fact arguably be better informed and their information base more credible where interested and affected parties are appropriately and effectively involved (Stern and Fineberg 1996). The policy-making system ought anyway to be inclusive. Integration and consensual proceeding alone offer the best conditions to prevent political decisions from encountering resistance at later stages of the policy process. Indeed, participation can help secure success by smoothing the policy implementation stage (Jost and Jacob 2004: 4). Furthermore, it can be an effective tool for generally resolving public conflict. Giving citizens a direct voice in

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the political system’s distribution of resources further improves democracy via the development of more active, engaged citizens. In addition, public participation in policy-making, is necessary to reflect and acknowledge democratic ideals such as fairness because it results in more just or more equal decisions (Barber 1984; Dahl 1989; Hunold and Young 1998; Schlosberg 1999). Participation also strengthens trust in regulators and enhances the transparency of regulatory systems (Rowe and Frewer 2000: 24). Indeed, stakeholder involvement in the decision-making process ensures the greatest degree of transparency in government, as groups consistently challenge each other’s views and force information into the public arena that might otherwise remain secret. Finally, where the participation of organised CSOs is concerned, their consultation can save time and effort in the governance process (Magnette 2003: 148–50).

The European Union: between legitimacy, efficiency and effectiveness? Whether effectiveness and legitimacy are inherently conflictual and mutually obstructive or co-terminus, concomitant to attaining the common goal of political legitimacy, modern political systems often find themselves more or less successfully trying to ensure a workable if not optimum balance between input and output legitimacy. The inherent risk is that this manifests itself as the sort of pendulum shifts outlined earlier between the two concepts.1 Both the European Union generally and the European Commission specifically have risked reacting in such pendulum style to the pressures of seeking and securing effectiveness and legitimacy. As a form of ‘governance beyond the nation state’ (Radaelli and Kraemer 2005: 5) the EU is perhaps predestined to raise concerns about concepts like democracy, legitimacy, efficiency and effectiveness. While nation state polities derive legitimacy from their capacity for direct accountability, the EU as a supra-state political entity and governing arrangements cannot do the same (Skogstad 2003: 323). Although democratically accountable principals may be able to transfer policy-making powers to ‘non-majoritarian institutions’ they are not able to ‘transfer their own legitimacy’ (Majone 1999: 4). Since the launch and early formation of the European integration project in the 1950s and subsequent debates regarding its future direction, the dilemma between the notions of effectiveness, efficiency, and legitimacy has bedevilled the Union’s evolution. Although it did succeed in helping the integration process to progress, the original Monnet method of integration was also the source of multiple tensions; not least between technocracy and democratic accountability (Wallace and Smith 1995). Deliberations as to whether integration should proceed based on one or the other, or indeed both, have penetrated debates during the intervening period. On one side of the demarcation line that separated the leading thinkers of the early years stood the advocates of a future federal European entity who

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frequently stressed the importance of shaping familiar heretofore national democratic institutions at a supranational level as a means to achieve integration. Indeed, the Italian wartime resistance leader Altiero Spinelli defended the importance of ‘reconstruct[ing] the old state institutions (Spinelli and Rossi 1988: 26) and was thus highly in favour of giving a major role to a parliamentary assembly in the original institutional framework. Spinelli was equally in favour of the ‘creation of political federal institutions on the (European) Continent’ (1957: 54). In fact, Spinelli and other federalists argued that popular consent or legitimacy for the European project would arise precisely from ‘a leap to federation’; a leap to representative government above the nation state, which would ‘release latent popular support and so transfer legitimacy and authority’ to the emerging integration project (Wallace and Smith 1995: 144). The creation of the Council of Europe in 1949, also part of the first phase of European construction, symbolises the strong mood and desire of the time to construct classic political institutions, envisioning as it did large-scale cooperation based upon the development of democracy via such traditional institutions (Magnette 2005: 11–12). It is thus that the Council of Europe included a parliamentary assembly, which Spinelli ardently hoped would be charged with drafting a constitution for the United States of Europe (Spinelli and Rossi 1988: 26). These hopes were of course largely unrealised. On the other side of the aforementioned demarcation line stood the advocates of an ‘élite-led’ gradualist and pragmatic approach to European integration that underlined the immediate need for effective and efficient policy-making and prioritised the problem-solving capacity of European governance (Rhinard 2002: 187; Wallace and Smith 1995: 140). The integration by efficiency strategy or the ‘Monnet Method’ is how this governance mode came to be known. The overall purpose of such an approach was to skim over ‘high’ political issues in favour of splitting decisions along functional and administrative lines to ensure efficient and effective problem solving. Indeed, Monnet was an élitist and a pragmatist (Duchene 1994). Rather than Spinelli’s ‘big bang’ approach to European integration, which foresaw large-scale collaboration, Monnet favoured functional economic integration whereby close economic cooperation would occur between countries in strictly defined sectors. In the latter’s view, therefore, popular consent in legitimacy would naturally, if slowly, arise as a natural evolution to élite-led gradualism (Duchene 1994). Although mainly a ploy to reconcile reticent national governments to the integration project, it was Monnet’s strategy that triumphed (Rhinard 2002). Labelled as the ‘supranational compromise’, it represented a tactic that would generate significant transfer of authority in strictly limited fields while difficult and divisive issues of national sovereignty and the future role of national institutions could be deferred. Monnet and his supporters’ objective of achieving such a supranational compromise via ‘bargaining and brokerage’ was principally aimed at placating the major political forces involved, thus

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nullifying any likelihood of an inflammatory public debate (Lindberg and Scheingold 1970: 16). The 1950 Schuman Plan is a clear illustration of the emphasis placed on integration via efficiency in this period. Designed as it was to respond to ‘the contradictory requirements of reviving the West German economy and of containing a reviving German state’ it was ‘an élite enterprise, not a response to any popular pressure’ (Wallace and Smith 1995: 141). Just as this initial bargain was élite-led, so have been all those that have occurred subsequently (Wallace 1990). Indeed, the 1957 Treaty of Rome was equally clearly concerned with ‘Enlightened administration on behalf of uninformed publics, in cooperation with affected interests and subject to the approval of national governments’ (Wallace and Smith 1995: 143). Throughout the 1950s then, the triumph of the ‘Monnet Method’ meant a retreat at the European level from an integrated Europe based on ideas of political accountability via federation. Instead, the pursuit of integration was based on functional organisation and technocratic administration so that ‘Democracy and legitimacy were left in the hands of nation states – at least for the time being’ (Wallace and Smith 1995: 139). The so-called ‘idealists’ who staffed the ECSC High Authority and later the EEC Commission, continued to hope, however, that success in fostering faster economic growth and greater welfare throughout the Communities would eventually generate a progressive shift in perceived interests, and then in loyalties, to this new level of administrative government (Seidel 2008). This neo-functionalist logic to European integration continued to reign throughout the 1960s. The idea developed that based on an incremental strategy promoting elite-level group interaction, sentiments of a ‘common interest’ and understandings of the benefits of working together could be enhanced. This strategy was complemented by wider public-level transborder interactions and would in time, it was hoped, engender a wider political community where groups and individuals would transfer loyalties, expectations and political activities to a supranational centre (Haas 1989). Long into the early formative years of European integration, the EU was clearly based on a rational vision of targeting economic growth and, as such, it pursued and prioritised efficiency at the expense of legitimacy. In fact, for a number of reasons, during the first few decades of the EU’s existence, there was thought to be no pressing need to address the issue of legitimacy at all. First, it was initially assumed that the European integration project would be popularly accepted and thus assured of legitimacy on solely instrumental or technocratic grounds. Accordingly, because it represented the best way to achieve the aims of European unity: lasting peace, economic prosperity, and stability, a functional, incremental, gradual, technocratic and élite-led approach was considered the best means to accomplish this project. Indeed, it was initially considered that there was no room for the direct involvement of uninformed publics in such technocratic administrative affairs (Lord 2000: 4; Wallace and Smith 1995). Instead, rational, scientific analysis would provide

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grounds for consensus (Radaelli 1999: 37) and technocrats would be able ‘to draw upon a stock of legitimacy fuelled by competence’ (Radaelli 1999: 27). According to this technocratic perspective, EU institutions best derive their legitimacy via their problem solving ability and capacity to provide Paretoimproving solutions (Majone 1993; Radaelli and Kraemer 2005: 6). This renders them more technically able to improve the welfare of the overwhelming majority of citizens in terms of their own felt preferences than MSs (Lord and Magnette 2004: 186). The technocratic and utilitarian capacity of EU institutions to redistribute, in a reasonably efficient manner, valuable public goods to both key interest groups and wider society (Majone 1996; 2001), has always been an important reason for the European population’s ‘permissive consensus’ (Bechev and Andreev 2005: 12). In sum, the early European integration years were based primarily on such performance-based legitimacy claims (Scharpf 2003: 2). Integration effectively relied ‘upon the authority of non-elected legal and technical experts’ (Skogstad 2003: 321). As long as the EU was deemed useful, that there was satisfaction with its work and a sense that the policy outcomes of supra-state governing were beneficial, its weak democratic nature, lack of democratic accountability and distance from popular identification were deemed irrelevant (Majone 1999). This meant that for decades, until the late 1980s and early 1990s, political actors and publics alike were content to assume the legitimacy of both European institutions and policy processes (Scharpf 2003: 2). Secondly, it was assumed that indirect legitimacy would be conferred on the EU via the ‘Community Method’. Accordingly, the original High Authority proposed and issued regulations, while democratic oversight was secured via the Assembly with its members drawn from national legislatures and the Council of Ministers. Judicial oversight was secured via the ECJ, which would ensure that European governance was conducted according to the rule of law. In sum, indirect legitimacy was borrowed from the MSs by the supranational authorities (Scharpf 1994; 1999b; Wessels and Diedrichs 1997; Höreth 1998; Moravcsik 2002). MSs had their own democratic rule of law derived in part from Community law and the various revisions to the Treaties. They also had legitimate national-level governments and corresponding institutions as well as national agreements in place that conferred powers on European institutions. All this was thought to be sufficient (Lord 2000; Tsakatika 2005). Finally, Jean Monnet and later those who continued to support a technocratic strategy, believed that the problem of popular consent or legitimacy could be deferred. Accordingly, the EU was initially reliant on a combination of the aforementioned technocratic and indirect legitimation sources and it was deemed that issues of democratisation and identify formation could be dealt with later once people gained practical experience with the very institutions that were in need of legitimation. In time, the creation of an effective administrative government in discrete policy areas would provide the economic welfare, which would in turn generate further public support for the European project (Lord 2000).

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In contrast to this focus on its output legitimacy, the EU’s input legitimacy has been rather thin. If the issue of the Union’s legitimation had, however, been avoided up until then, it is undoubtedly the Single European Act in 1986 and the 1992–93 crisis provoked by the Maastricht Treaty’s ratification process and the Danish rejection of it that crystallised its position at the top of the agenda. It is possibly the pre-Maastricht discussions and the reforms generated by the Maastricht Treaty that really marked a watershed as the first time in the Union’s history that significant questions regarding the legitimacy of the integration process were raised (Tsakatika 2005: 200). Indeed, the Maastricht Treaty perhaps best symbolises the beginning of democratic Europe (Wolton 1997). Maastricht raised two key public concerns. First, integration was seen to be having ‘undesirable homogenising effects’ and thus failing to sufficiently guard against the erosion of national and sub-national diversity. Second, integration was being achieved via stealth tactics whereby an incessant centralisation of decision-making power and authority at the European level was taking place without sufficient public consent for this (Tsakatika 2005). When these two elements were added to wide societal perceptions of the increased complexity of governance and confusion over who does what in the EU, it is not surprising that any future integration could only be perceived as legitimate if it respected diversity and subsidiarity. Worries of forced homogenisation and competence creep also demonstrated two new realities. Primarily, the EU could no longer take public consent or legitimacy by default for granted. Indeed, any previous passive permissive consensus was well and truly at an end. Also, the EU was in the process of fledging into a political system in its own right. Consequently, it could no longer escape allegations that it harboured a ‘democratic deficit’. Two other issues clearly influenced the change of focus on input legitimacy. First, majority voting and the greater autonomy enjoyed by supranational institutions undercut the argument that indirect legitimation was guaranteed by the parallel consent of all EU MSs on each decision taken. Second, via the SEA and Maastricht Treaty, EU institutions became increasingly involved in areas where the Union was unable to claim legitimacy solely on the grounds of performance or efficiency (Lord 2000: 4). Whatever the reason for the change of focus from output to input legitimacy, there appears to be agreement among many analysts and policy-makers that the EU is today a political system in ‘democratic deficit’ (Eriksen and Fossum 2000: 5; Follesdal and Hix 2006: 533). This perceived shortfall in its democratic credentials, one of which is legitimacy, receives much academic attention ‘with ever-more convoluted opinions as to the symptoms, diagnoses, cures and even side-effects of any medication’ (Follesdal and Hix 2006: 533). It is important to bear in mind however that the deficit thesis is not universally shared. Indeed, several studies, some from a liberal-intergovernmentalist perspective, have questioned the assumption that the EU is ‘a democratic wasteland’ (Hix 1999; Lord 1999, 2001b; Magnette 2000a, 2000b; McCormick

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1997; Schmitt and Thomassen 2000; Lord 2001a: 643; Moravcsik 2002; Majone 1998). There is little use in rehearsing debates here over its existence, however.2 Suffice to say that there is no single meaning of the term (Lord 2001: 642). Indeed, ‘definitions are as varied as the nationality, intellectual positions and preferred solutions of the scholars or commentators who write on the subject’ (Follesdal and Hix 2006: 534). Most noteworthy is that in response to the multiple and various deficit criticisms addressed to it by scholars, policy-makers and citizens, the EU, as a whole, has had to undergo a substantial rethink as to how it can reinforce its legitimacy basis. The primary response in the majority of Treaty revisions has been to boost the EP’s powers. If élite technocratic policy-making generating popular consent and a permissive consensus based on indirect and output legitimacy ever used to be enough, today it certainly is not and the EU has been confronted with the task of generating direct public consent for its role and activities. The more explicit inclusion of civil society views and voices in policy-making through consultation processes became an important element in addressing the ‘democratic deficit’ (Slob and Smakman 2007: 27–28); indeed, the number of initiatives, measures and tools aimed at increasing the participation of European citizens in the EU has multiplied over time, as has the rhetoric on its importance. Despite this, the late 1990s and early 2000s witnessed an increasing sense of frustration with the lack of perceived citizen influence, particularly at supra-national levels and citizen alienation from the EU and the work of policy makers. In fact, there is little evidence to suggest that the legitimacy gap has been plugged at all, even via additions to the EP’s powers. Electoral turnout has certainly not increased at the same rate as its mandate has been strengthened. Perhaps, after all, the EP’s democratic mandate can only conceivably be improved by the development of a stronger European identity and the formation of a real demos among European citizens. The disconnection between the citizens and the EU continued into 2005 with the negative French and Dutch positions on the Treaty Establishing a Constitution for Europe. This will perhaps prompt further volumes of academic books and articles on the EU’s ‘democratic deficit’ as some suggest (Follesdal and Hix 2006: 533). The rejection has certainly served to heat up the rhetoric and some have gone so far as to proclaim a ‘crisis’ of democratic legitimacy in the EU (Holzhacker 2007: 257). EU MSs were asked by the European Council to encourage internal debates on EU values and methods and these continued up until the recent ratification of the Lisbon Treaty.

The European Commission: between legitimacy, efficiency and effectiveness? Having examined the way in which the European integration project as a whole bears out the efficiency/legitimacy tension, it is worth now pausing to examine the way in which this tension applies to the European Commission. This supranational institution serves as a salient example, given that its

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evolution from earliest institutional manifestation to its present one arguably provides a striking illustration of the inherent tension between efficiency, effectiveness and legitimacy. By establishing the European Commission’s predecessor, the High Authority (HA) of the European Coal and Steel Community (ECSC) in 1952, the Treaty of Paris created a structure, which embodied a particular conceptualisation of the European integration project rooted in neofunctionalist instrumentalism and technocratic élitism (Tsakatika 2005). Created to serve as an expert and authoritative body (Wallace and Smith 1995: 142) and initially presided over by Jean Monnet, the Treaty invested the HA with independent powers to impartially manage and regulate coal markets and steel. In short, its ambition was to act as a small informal ‘organisationally flexible and adaptable’ team (Hooghe and Nugent 2006: 150). Its members were high-ranking civil servants and experts. Together they were intended to form a slick and high performing regulatory mechanism as a means to enhance efficiency. For Monnet, size was indeed everything and central to the HA’s performance leading him to state that ‘If one day there are more than two hundred of us, we shall have failed’ (Monnet 1987: 405 cited by Hooghe and Nugent 2006: 148). Monnet’s original vision for the HA was a European level duplication of the Commissariat du Plan (Planning Commission), which he had headed in his native France during the post-WWII period. Aided by the advice of a Consultative Committee comprised of equal numbers of producers, of workers and of consumers and dealers nominated from lists of representational organisations (Articles 18–19), the HA’s early emphasis was clearly on functional representation assisting technical experts. In the early years of integration, the HA was the ECSC’s ‘cornerstone’ (Fazi and Smith 2006: 13). Technocracy was in turn at the heart of the ECSC, and constituted one of the founding principles of the HA, the Commission’s predecessor. It was championed by Monnet and his supporters as a means to overcome the inefficiencies associated with the ‘instability of the parliamentary regime, the importance of rhetoric, politicians’ dependence on electoral cycles’ (Magnette 2005: 15). Monnet was thoroughly convinced of the need ‘to correct the defects of the political game by using the virtues of technocracy’ by relying on the ‘continuity of the public service’ (Magnette 2005: 15) and the technical knowledge of economists and engineers. This early emphasis naturally gave the HA and later the Commission a largely technical profile. The Commission’s initial basis of legitimacy rested entirely on its association, even enmeshment with two Monnet legacies, the principle and method. The first is the idea that the legitimacy of European governance, rests on its superior efficiency to that of the national-level. The second concerns the Commission’s ability to take responsibility for integration, act as a motor for integration and as guardian of the common European interest. Based on its exclusive right of initiation, this institution was deemed best placed to take the long view and provide coherence to integration; as such it could act as a

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continuous stimulator for it. In addition, the common interest would be safe in its mediator hands given the widely assumed capacity of technocrats to act impartially and provide knowledge and expertise (Tsakatika 2005: 199–200). However, just as the Maastricht Treaty and the associated demise of the permissive consensus served as a turning-point for the wider EU in terms of the democratic deficit charges it attracted, the Commission’s legitimacy basis also came under sustained fire from about this time. The perception of the Commission’s particular democratic deficit was exacerbated by various internal scandals in the late 1990s. The Santer Commission resignation following charges of fraud, mismanagement and nepotism undoubtedly further compounded criticism. Increasingly the Commission was perceived as the main agent of ‘creeping competence’, responsible as it was deemed to be for enlarging the scope of European competence via its agenda-setting function, its exclusive right of initiation and its constant issuing of regulations. As the declared generator of further integration, a task considered unnecessary by some publics, its role and place within the institutional framework came under increasing scrutiny. The institution was also progressively seen as a source of centralisation and homogenisation, while the development of the principles of proportionality and subsidiarity also undermined the supranational character of integration, which the Commission had hereto embodied. In short, it was increasingly and variously condemned for being a ‘black box’ in which decisions are taken in obscurity’ (Slob and Smakman 2007: 27) by unelected elite technocrats playing a political role for which they are not effectively accountable. The result of all this was a growing perception of alienation from the wider public. Based on the understanding that consultation and participation of nonstate civil society actors in policy-making promotes input-legitimacy, from the late 1990s, the European Commission developed a new discourse to complement its technocratic claims to legitimacy. In so doing it has deliberately drawn private civil society actors directly into policy-making, both to compensate for its democratic lacunas as well as to enhance the effectiveness of policy outcomes (Skogstad 2003: 326; Peterson 1995; Kohler-Koch 1996; Börzel 1998; Eising and Kohler-Koch 1999; Héritier 1999). Ever since, the Commission has sought to pursue in parallel efforts aimed at increasing civil society participation as a legitimising tool and generating more effectiveness by enhancing performance so that citizens see that it can deliver results that matter to them.

ECAFs as a mechanism to secure both legitimacy and effectiveness European Commission Advisory Forums (ECAFs) possess the capacity to help the Commission simultaneously improve system effectiveness and sustain adequate democratic credentials like legitimacy. They potentially constitute ideal supranational governance locations where a balance can be struck between the two most important standards of good governance; their potentially

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high problem-solving capacity can generate effectiveness and thus output legitimacy while their participatory nature can generate input legitimacy. ECAFs also contribute substantial added-value to the European integration process by enhancing effectiveness in several key ways. First, ECAFs ensure organised interest consultation and participation. Indeed, the Agricultural Advisory Groups (AAGs) were set up under the auspices of DG AGRI as a result of the 1972 Paris Summit which called for the increased participation of economic and social interests in the Community policymaking process. In response, the Commission created committees like the AAGs composed of interested representatives. This is significant and clearly indicates the initial contribution they were intended to provide. Second, ECAFs function on the basis of the institutionalisation of collective rule and are thus ‘an expression of, and a catalyst for, decision-making based on consensus and consultation’ in the EU (Christiansen and Kirchner 2000: 9). This is one of the ‘hallmark[s] of European integration (Christiansen and Kirchner 2000: 9) respecting the multiplicity and diversity of views and positions and the variety of vantage points and opinions within the policy community. Third, ECAFs provide an institutionalised access point to the Commission’s Directorates General (DGs) and thus overcome many of the problems and weaknesses associated with informal direct lobbying in more ‘closed’ policy sectors such as trade and agriculture. Fourth, ECAFs are ‘resorted to by the Commission in an attempt to satisfy its demand for technical and scientific information’ (Vos 1999: 21), which members can supply. Indeed, the Commission’s limited resources in terms of staff and expertise render CSOs highly attractive. They possess an obvious capacity to address its information deficit, as well as its need to aggregate interests. As well as maximising the inflow of useful information, the Commission also uses them to gain strategic information regarding the position of MSs on issues; CSOs may be more aware of these than Commission officials. ECAF’s represent potential arenas for smooth technocratic problem solving; they may even be functional necessities for adopting a common approach to tackling technical problems (Wessels 1998: 214). Fifth, ECAFs can help speed up policy-making in at least two ways. The participation and consultation of organised interests can assist the later passage of legislation through both the Council and the European Parliament (EP). It can do this by providing an early indication of voting intentions. ECAFs may also bolster the Commission’s position when it comes to differing opinions in these two bodies. By gathering relevant information and mobilising support early, the Commission may be able to guarantee a specific preferred solution to a problem. As the Community’s formal initiator of legislation, the Commission can also derive credibility from formulating efficient and accepted policies and portraying itself as an action taker. The Commission can furthermore ease the subsequent implementation phase, which should be smoother and indeed become a formality where large interest groups have had an opportunity to comment and participate. By being principally active at the crucially important policy development and formulation

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stage means that participants can also frame the issues being considered for legislative action, contribute to setting the Union’s agenda and to a certain extent pre-decide issues. Sixth, ECAFs facilitate multi-level governance by providing a context for linkage between actors at different levels. The location of such committee-like venues within a multi-level system of governance like the EU also means that they have the potential to adopt an interaction style dominated by functional ‘problem-solving’ rather than political ‘bargaining’ (Scharpf 1988) and an intra-group interaction characterised by ‘camaraderie’ among supranational experts. Although they are usually not decision-making forums, agreements on joint positions may be reached via a process of joint deliberation. From this common analysis, most appropriate technical solutions to a problem could be deduced based on the interest of the common good. ECAF members also have the capacity to form a type of ‘epistemic community’ (Haas 1992: 3) where shared patterns of reasoning, policy projects based on shared values and a shared commitment to the application and production of knowledge can emerge (Haas 1992: 3). Given these qualities, ECAFs also provide a venue for transnational networking. The diversity of interests and nationalities represented creates a supranational, multi-interest arena that can be likened to an epistemic community. Finally, ECAFs facilitate processes of transnational socialisation and mutual learning. They are a form of international social interaction and thus help in the process of constructing the identities and interests of actors involved in them. This is particularly important for example where accession countries send representatives with observer status. Cultural learning is promoted by organised civil society members familiarising themselves with the nature of the Commission’s processes and procedures. Advisory forums manifestly provide multiple sources of output legitimacy by integrating manifold actors; guaranteeing an early indication of policy problems and solutions; providing an information gathering instrument and an environment for consensus building thus limiting implementation resistance. In short, they are functionally useful and demonstrate an obvious capacity to generate legitimacy based on efficiency and effectiveness in solving common problems. From the perspective of input legitimacy, ECAFs are an example of a nonhierarchical setting for the participation and consultation of civil society beyond the nation state and thus represent an arena for cooperation and the brokering of different political, economic and societal interests without a hierarchical centre of decision-making and control. Such a formal mechanism for the participation of civil society representatives is important. CSOs are one of the most important means of picking up individual European citizens’ concerns, giving a voice to them in the wider public sphere where the issues are discussed and carrying them further to the ‘strong public’ of the institutionalised EU political system and its policy process (Zito 2007: 75; Friedrich 2006: 7). CSOs thus play a key role in providing citizens with an alternative form of participation in politics, essential in a context of supranational governance; in doing so they render decision-making processes more

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transparent and accountable (Steffek and Nanz 2008: 8). According to Warleigh, NGOs as a type of CSO are considered a useful channel of citizen influence as well as ‘ambassadors’ for Union citizenship helping to create a participatory culture (EC 2000b: 239–40). By channelling and containing citizen demands directly or via CSOs, the ECAFS help legitimise proposed policy action on the part of the Commission from the outset. Decisions can after all be better informed and their information base more credible if the interested and affected parties are appropriately and successfully involved (Stern and Fineberg 1996). Although Commission advisory structures potentially represent locations for the reconciliation and dual pursuit of input and output legitimacy, evidence suggests that they encounter empirical problems in practically achieving this reconciliation.

2

Assessing (input/output) legitimacy

An assessment of the European Commission Advisory Forums’ (ECAFs’) capacity to serve as a venue for the reconciliation and dual pursuit of input and output legitimacy requires the development of a series of determining parameters. This chapter consequently advances a framework which comprises evaluative criteria pertaining to both inputs and outputs. In the case of the former, balanced composition and deliberative capacity are suggested as appropriate yardsticks while in the case of the latter, a series of structural design, behavioural and perception-based features are suggested as benchmarks against which to evaluate effectiveness. ECAFs constitute European-level or supranational participatory governance structures, which are composed of public and private actors engaged in a resource exchange relationship. In such a relationship, public actors like the European Commission are responsible for formulating and implementing collectively binding rules and can offer private actors policy influence. Private actors like Civil Society Organizations (CSOs), on the other hand, provide public actors with important resources to make policies work such as information, expertise, a membership base and political support. Because they are intended in part to ensure the participation of representatives from transnational CSOs, to enhance participatory democracy and help improve the correspondence between ‘rulers’ and ‘ruled’ towards the creation of a European demos, legitimacy is automatically an issue for governance structures like ECAFs. To maintain themselves, they must enjoy public support. In other words, there must be some degree of acknowledgement on the part of those participating in and subject to the outputs and outcomes generated by these structures that their existence and tasks are rightful, just and worthwhile. Legitimacy is, however, notoriously difficult to empirically assess. The concept certainly ‘ranks up there with “power” in terms of how much it is needed, how difficult it is to define and how impossible it is to measure’ (Schmitter 2001: 1). Perhaps the only certainty is that its evaluation always needs to be carried out relative to some sort of appropriate criteria. This volume aims to bridge this gap by proposing a normative model of evaluation, which stipulates a number of input/output legitimacy evaluation criteria

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as benchmarks. The formulation of the latter constitutes the principal aim of this chapter. Attempts have previously been made to construct criteria by which to assess the legitimacy of institutional settings (Beetham and Lord 1998). For example, an institution can be said to be legitimate to the extent that it serves a purpose that is valued by relevant actors. This will serve as compensation for any loss of autonomy involved in complying with institutional policy. Legitimacy can equally be assumed if power holders can claim some kind of authority (democratic, religious or technical for example), qualifying them to make judgements and wield power appropriate to the purpose. Legitimacy can also be derived where power holders are restrained by a set of rules that ensure their power is only used for that purpose. Finally, legitimacy can be assured where positions of authority are confirmed by the express public consent or affirmation of appropriate actors (Beetham and Lord 1998). The input/output conceptualisation of legitimacy is another useful device in helping to develop a yardstick to assess the conditions that need to be satisfied for an institution to be called legitimate. Input legitimacy relates to political choices which derive legitimacy from reflecting ‘the will of the people’: that is, the authentic preferences of European Community citizens (Scharpf 1999, 2003).

Assessing input legitimacy via representativity and deliberation The input-orientated legitimacy tradition is shaped by the ideals of participatory democracy in the Greek Polis and of the French Revolution. The starting point is Rousseau’s equation of the common good with the ‘general will’ of the people. Under this equation, legitimacy is ensured by institutions maximising either the direct participation of the governed in policy choices or the responsiveness of governors to the (collective) preferences of the governed. In other words, legitimacy is linked to representativity. However, because not every aggregate of persons constitutes an electorate and because it is not certain that members of the electorate or their representatives will be orientated toward the common good, input-legitimacy in its modern sense also has an emphasis on ‘government by discussion’ (Scharpf 2003: 4) or deliberation. As a result, representativity and deliberative capacity constitute two possible criteria by which an institution’s input-legitimacy can be judged (Smismans 2003: 8).

Representativity In both public administration and political studies, representativity usually infers likeness. In the former body of literature for example, representativity refers to the resemblance or similarity between representative (bureaucracy or civil service) and constituent (the population). In politics, the idea of representativity is commonly linked to the tradition of ‘descriptive’ representation,

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‘which [also] conceives representation in terms of resemblance or similarity between representative and constituent (Pitkin 1967; Brown, Lentsch and Weingart 2005: 84). The assumption underpinning this understanding of representativity as likeness is that ‘descriptively similar representatives will spontaneously act as their constituents would have acted’ (Brown, Lentsch and Weingart 2005: 84). The role of descriptive representatives is therefore partly to ‘call attention to the questions, concerns, and social perspectives that they share with their constituents’ (Young 1997; Mansbridge 1999; Brown, Lentsch and Weingart 2005: 84). According to this descriptive perspective, an institution should literally mirror society in terms of its physical make-up. The use of descriptive representativity as a criterion to assess the input legitimacy of ECAFs is problematic since they are not intended to possess a composition that exactly mirrors society. If this were the case, all societal interests would need to be represented in exact proportion to their numbers in the population as a whole. This is certainly a difficult ratio to calculate. As one Commission official states in relation to the EU Eco-Labeling Board (EUEB), if you wanted a truly representative EUEB then ‘members of the public [as consumers] would be a major cross section of who the European Eco-Label affects … in that case the EUEB would be 90 percent members of the public’. Research carried out in the context of other advisory institutions has advanced that the criterion of representativity can also refer ‘to the degree to which … [they] incorporate diverse social, political, and disciplinary perspectives’ (Brown, Lentsch and Weingart 2005: 84). It is also interesting to compare EU-level advisory committees with their trans-Atlantic equivalents whereby the US Federal Advisory Committee Act of 1972 requires that advisory committees be ‘fairly balanced in terms of points of view represented’ (Brown, Lentsch and Weingart 2005: 84). One of three political design features of institutions identified by Schmitter (2001: 6) as necessary to secure legitimacy is balanced composition to ensure balanced participation. It is posited that the balanced composition of the Commission’s consultative forums for interest representation can be best assured via adherence to five principles. First, the institution should adopt a ‘minimum threshold principle’ (Schmitter 2001: 6). Respect of this principle requires a non-cumbersome and streamlined composition where the number of participants is rationalised. To maintain such a ceiling, there should be no other active members than those necessary to fulfil the institution’s mandate or judged capable of contributing to its designated core task. Based on the idea that ‘For true representativity to be achieved, members of all affected communities … should be canvassed’ (Rowe and Frewer 2000: 12), the institution should second conform to a ‘stake-holding principle’. Those who hold a stake in a governance structure are those interested in and affected by the issues raised according to its mandate. Grounded in the assumption that CSOs with broader constituencies are representative of a greater proportion of affected interests, governance structures should third conform to the ‘principle of European privilege’ and thus comprise organisations that represent

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European-wide constituencies. When Euro groups come forward with broadly united and coherent positions, they greatly assist the Commission by allowing it to deal with the aggregated views of their affiliated members and enabling it to avoid becoming entangled in multiple and perhaps conflicting national views (Nugent 2004: 287). Accordingly, the Commission has often demonstrated a strong penchant towards CSOs with such European-wide constituencies. Fourth, because participation processes should be conducted without bias (Rowe and Frewer 2000: 13), the governance arrangement should respect the ‘adversarial principle’; it should not therefore be composed of ‘a preponderance of representatives who are known to have a similar position or who have already formed an alliance for a common purpose’ (EC 2001: 8). Participants should therefore be selected to represent constituencies that are known to have diverse and, especially, opposing interests. The involvement of such interests is central to the representativity of institutions (Brown, Lentsch and Weingart 2005: 84), which is in part assured via a process of exposing decision-makers to a range of views, questions, data, analyses and options (Esty 2002: 16). For decision-makers to be exposed to a broad range of views ‘ … Policy-making should be open to participation of citizens and associations that facilitate the consideration of a plurality of interests’ (Benz 2003: 3). Finally but linked to the fourth principle, an institution should respect the criteria of ‘putative equality’.1 This is based on the view that ‘a meaningful dialogue needs equal footing’ (Bizzarri and Iossa 2007: 20). Accordingly, all participants in a governance arrangement should be considered equal so that ‘Even when they represent constituencies of greatly differing size, resources, public or private status, and “political clout” at national level, no [European Governance Arrangement] EGA should have second and third class participants’ (Schmitter 2001: 8).

Deliberation Deliberation generally refers to ‘talk-centric’ processes or discussion and infers a process in which reason not power coercion predominates (Trénel 2004: 2). Deliberation is central to the theoretical concept of deliberative democracy which argues that ‘reason-giving for a particular position and deliberation between actors, beyond mere bargaining, allow normative interests and the empirical facts on which policy choices are based to be assessed and evaluated’ (Holzhacker 2007: 259). Deliberative democracy thus encapsulates ideas of liberty to participate in politics, equal participation of those affected (stakeholders) by policies, transparent agenda-setting and accessible decision-making processes. Deliberative democracy has been the subject of ever increasing theoretical2 and empirical research activity.3 These, like this study, have attempted to operationalise deliberation by assessing the degree to which it is present in various settings. Based on the idea that ‘a deliberation process lends legitimacy to political decisions’ (Trénel 2004: 2), ECAFs for interest representation will have

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greater input legitimacy where deliberation occurs. Input legitimacy is served by deliberative democracy for several reasons. First, the increased access of affected actors intrinsic to deliberation fosters conditions of ideal discourse. This is based on the assumption that high inclusion rates of citizens and/or their representatives will generate high quality discursive interactions which will, in turn. facilitate outcomes that go beyond lowest common denominators (LCDs) (Deitelhoff 2003). A second important source of input-oriented democratic legitimacy derived from deliberation is that processes of dialogue lead to better quality and more informed preferences and opinions. This is because the involvement of citizens and/or their representatives in a deliberative process engages them in a learning process whereby they can validate their own preferences by confronting them with those of others. Finally, processes of dialogue will increase trust in government and produce more legitimate decisions. In the same way that deliberation is the subject of definitional debates, there is equal disagreement regarding its measurement; indeed, deliberation is no exception to the general rule that all abstract terms are difficult to operationalise (Trénel 2004: 2). Moreover, deliberation remains difficult to investigate empirically due to the largely unspecified assumptions and vague hypotheses advanced by its chief advocates.4 Several issues relating to the empirical assessment of the deliberative capacity of ECAFs are also noteworthy at this stage. First, deliberation in these structures does not involve ordinary citizens but representatives of CSOs. Second, studies of deliberation are often actor-based with a focus on the behavioral traits and actions of the deliberators or participants in the discourse i.e. whether they act according to principles of rationality, universality, equality, reciprocity, etc. This focus generates two measurement options: actual deliberation (concrete actions) and the potential for it (intentions). A number of analyses of concrete actions have been undertaken using quantitative research methods to examine emails (Trénel 2004), speeches (Steenbergen et al. 2003) and small group meetings of citizens which they attended (Muhlberger 2000) in order to isolate aspects of text/speech to indicate behavior. Because the Commission advisory forum meetings are, for the most part, closed to the public and minutes, where they exist, do not provide a full account, accessing accurate meeting transcripts is problematic. Instead, this study assesses deliberation potential and does this via the examination of certain structural design arrangements and the attitudes of participants towards deliberation. The latter should indicate whether participants have the right attitudes to allow them to deliberate if the advisory forum provides the opportunity for this to occur (Muhlberger 2000: 16). Although this means only measuring participants’ normative positions, it remains valuable. First, it has the merit of at least providing some general sense of participatory activities. Second, participants ‘who possess these norms and are reminded of them should be inclined to deliberate’ (Muhlberger 2000: 16). With regard to the former, different venues arguably offer different features that support or hinder deliberation (Macoubrie 2003: 16). The extent to which deliberation

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delivers benefits depends therefore on not only individual behavior but also on situation and environmental factors such as the institutional, structural design of the deliberation forum (Sanders 1997: 370). If deliberation tends to increase input legitimacy it is necessary to establish whether it occurs in the ECAFs. Clearly some form of discussion takes place yet according to deliberative theory; various qualities of a discussion make it deliberative. In order to examine whether the ECAFs possess any potential or capacity for deliberation some of the necessary behavioural features of the actors involved and design features of the structure must be identified. Although a plethora of scholars have examined deliberation and outlined various and often competing qualities, a brief survey of the literature suggests that in a political context certain core dimensions to the concept or deliberative norms are common across multiple studies (Habermas 1975; 1996, Cohen 1997, Spörndli, Gutmann and Thompson 1996). Four of these are outlined below. A number of institutional design conditions allow groups to engage in deliberation in ECAFs. First, deliberation is a process that addresses or seeks to resolve conflict and (moral) disagreement and builds coordination. To do this a deliberative discussion must take into account a broad range of views and perspectives on an issue spanning the political spectrum. Participants in the discussion should be exposed to this broad spectrum of views so that they have an opportunity to ‘take into account the goals or values of persons unlike themselves’ (Burkhalter et al. 2002: 403). This deliberative process should take place via argumentation whereby convincing cases must be made by citing evidence (Sebeok 1986: 51). The deliberation structure should consequently allow a broad range of perspectives from across the political spectrum to be taken into account on any given issue. If deliberation necessitates mutual challenges to participants’ positions, then their opinions must be aired (Trénel 2004: 13). If opinion statements are not present, the communicative exchange can hardly be called a deliberation process (Trénel 2004: 12). Second, a discussion is arguably more deliberative if it is based on reason and incorporates technical arguments and accurate knowledge of relevant information and quality expertise. This expertise is a highly significant resource and modern politics has ‘become unthinkable without the continual reliance on various forms’ of it (Brown, Lentsch and Weingart 2005: 81). Most modern polities lay emphasis on the legitimacy it provides (Warleigh 2000a: 7); essentially because by using it, politicians seek to make their decisions more democratically legitimate (Brown, Lentsch and Weingart 2005: 81). Expertise in fact gives decisions a greater claim to public acceptance; ‘politicians hope that citizens will be more willing to accept a decision based on (or at least rationalised with) expert advice. Using expertise to either develop or explain policy decisions allows politicians to make a justifiable claim to public acceptance’. (Brown, Lentsch and Weingart 2005: 81–82). Expertise is also highly valued by the European Commission and is one of the critical motivations for it to consult large CSOs via advisory forums. The Commission’s task is to select from the multiple, competing demands directed at it from

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various interested parties. It manages this based on the CSOs ability to solicit substantial policy input (Obradovic 2005: 5; Brown, Lentsch and Weingart 2005: 82). In short then, the deliberation should be based on expertise, knowledge and rationality and the deliberative capacity of ECAFs will consequently be enhanced where participants provide reasons, justify claims and demands, support arguments with reasons and evidence. Third, deliberation requires that deliberators act according to the principles of openness and equality. Openness is understood here as the extent of availability of accurate and meaningful information (Crosby et al. 1986: 171) assured by the advisory forums’ sponsoring agency: the European Commission. Openness has clear links to transparency and participation processes benefit from being transparent (Frewer 1999). In assuring this, public suspicions about the Commission and its motives may be allayed (Rowe and Frewer 2000: 15). There is equally likely to be greater public acceptance of the Commission’s authority to propose and formulate policy where there is a clear view of who is making the decision and on what basis they are deciding; this necessitates disclosure of the informational foundation for the decision and who has tried to shape it (Aman 2001; Shapiro 2001; Esty 2002: 16). If the design of the deliberation structure should adhere to the principles of openness, equality and intelligibility, primarily, meetings should be open (either physically i.e. to the public or be transparent in their content) in order to help reduce any ‘mystery’ or ‘suspicion’ that may surround the process. Openness may also help to hold participants accountable for what they say and prevent them from pushing own agendas. Indeed, openness may ‘reduce inappropriate, off-the-cuff remarks’ and encourage participants not ‘to say something unless they feel they have a good reason to say it, and can back up their words with evidence’ (Karty 2005: 427). Such transparency is a valuable tool for putting ideas out for review and public commentary (Karty 2005: 428), which, in turn, improves accountability. Access to information is a further noteworthy element of openness. The European Commission is of course bound by the references to the principles of right to information and freedom of expression in the EU Treaty and in the European Charter of Fundamental Rights5’ (EC 2006: 5). To generate deliberation, participants in the process have a moral right to receive necessary and available information, and those who have access to such information have a responsibility to provide it (Gastil 1993). Any information provided should be organised and presented in a meaningful way without being patronising. However, access to information is insufficient; participants must also receive sufficient time to learn and reflect on it. Without time, information is meaningless and cannot inform advisory forum discussions. In relation to the ECAFs, such information includes publication of meeting dates, the meetings’ participant lists, agendas and minutes. It also includes documentation on procedural aspects such as information regarding the participant selection process and the process of taking account of the views expressed in the deliberation. Because of all this, the perceived credibility of

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the participation exercise may be enhanced both amongst the general public and active participants. Equality is related to inclusiveness and fairness. Fairness refers to all interested and/or affected parties being provided with an opportunity to assume any legitimate role in the policy process (Webler and Tuler 2000: 568). A deliberation necessitates that all participants and stakeholders should have an equal opportunity to participate and to be heard so that they have an equal chance to affect the topic, contents and outcomes of the deliberation (Muhlberger 2006: 5). In terms of equal opportunities for action, three can be highlighted in the context of the ECAFs. Notwithstanding the principle that all interested and affected interests must have the opportunity to be present,6 each participant in a deliberative group should first have equal and adequate opportunities to speak and take part in the discussion (Gastil 1993; Fiorino 1990: 230). This is based on the concept of par condicio used in TV journalism according to which different parties are credited equal time and space to present their positions. In order to achieve equality in this area, all participants must demonstrate a willingness to give all pertinent parties an equal standing in the discussion and an equal voice (Bohman 1996). In this way, none should be prevented, by either internal or external coercion, from freely participating in the discourse and contributing assertions (Habermas 1984, 1989, 1996; Steenbergen et al. 2003). Free participation in the discussion includes the opportunity to defend assertions where necessary, challenge the assertions of others or ask for more clarity (Webler and Tuler 2000: 580). In short, there should be no monopolisation of discussions by vociferous individuals (Rowe and Frewer 2000: 23). Second, participants in a deliberation should be able to participate in the decision-making. This includes equal participation in the resolution of disagreements that emerge throughout the discussion in order to bring about closure via a process of compromise and in the spirit of collegiality (Webler and Tuler 2000: 582). Finally, participants should be able to equally influence the agenda.

Assessing output legitimacy via effectiveness In political science, effectiveness is a relatively under-researched concept and one that often generates confusion (Rowe and Frewer 2000: 24). Studies examining the effectiveness of specific political institutions are especially hard to come by. There have, nonetheless, been some attempts to specify criteria against which effectiveness may be assessed (Fiorino 1990; Webler 1995). The organisational sciences and organisation theory literature has, for example, made multiple attempts to define and measure effectiveness in relation to organisations. Indeed, effectiveness has been described as a ‘fashionable’ (Cameron 1986: 539) topic in this area and has accordingly generated a great deal of interest. As a concept, on the up side, it has in fact been variously characterised as ‘powerful’ (Kanter and Summers 1987; Hrebiniak 1978; Campbell et al. 1974), ‘critical’ (Goodman and Pennings 1980), ‘prominent’

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(Cameron 1986: 539) and ‘central’ (Quinn and Cameron 1983: 33). Despite its popularity within this sub-field, effectiveness has unfortunately however not been satisfactorily developed or defined in organisation theory either (Quinn and Cameron 1983: 41) so that its meaning, even here, is rudimentary (Steers 1975). On the downside therefore, it has been deemed an ambiguous, confusing, problematic, untidy and elusive concept (Cameron 1986: 539; Kanter and Summers 1987; Hrebiniak 1978; Campbell et al. 1974); particularly given that its meaning varies according to the people asked (Kanter and Summers 1987; Forbes 1998: 183). Discouragement with the disarray, which characterises effectiveness in the organisational theory literature, has led some scholars to advocate its complete abandon from scientific investigation (Hannan and Freeman 1977; Goodman, Atkin and Schoorman 1983). Yet, despite being the subject of controversy and confusion (Forbes 1998: 183), it has proven to be incredibly durable (Herman 1990 in Forbes 1998). In the context of government, legitimacy on the output side is contingent on effective performance (Scharpf 1999). This understanding of effectiveness is linked to the extent that performance satisfies two basic functions of government. The first is the presence of democratic procedures that can promote the common welfare of a given constituency (Scharpf 1999: 6); In other words, the extent to which policy outcomes succeed in effectively solving social problems. Here then, effectiveness is clearly linked to the collective-problem solving quality of a structure’s outputs and outcomes (Boedeltje and Cornips 2004). The second is linked to results and performance and concerns the achievement of goals, which citizens collectively care about (Scharpf 1999: 19); In other words, the extents to which citizens are satisfied with the content of government policy. What then constitutes effectiveness? Does it have indicators or predictors? Can it be specified or measured? Does it change with time and organisational maturity? Can it be sought, gained, enhanced, or lost? Why is one organisation effective at one time and not at another, or why is one organisation effective and another not? (Lewin and Minton 1986: 514). While, any investigation into effectiveness will necessarily have to address these questions, the problem is that its definitional confusion is accompanied by confusion over its measurement (Cameron 1986: 539). Yardsticks developed to assess effectiveness are numerous (Herman 1990; Forbes 1998: 183; Campbell 1977), yet it is impossible to reach consensus on the most appropriate set of indicators. Criteria tend to vary and contradict each other depending on individuals’ values and preferences; depending whom one asks a different set is identified (Campbell 1974; Quinn and Cameron 1983: 41; Cameron 1986: 541; Steers 1975: 549; Whetton 1978; Friedlander and Pickle 1968; Rohrbaugh 1981). Returning to the organisation theory literature, effectiveness is often assessed using the goal-attainment approach (Yuchtman and Seashore 1967: 892). Indeed, some of the earliest models developed to assess organisational effectiveness were goal based (Etzioni 1960; Steers 1977) and this approach has since been the most widely discussed (Molnar and Rogers 1976: 402).

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Given the paucity of empirical examples of the effectiveness of stakeholder participation exercises in academic literature and the insufficient development of appropriate benchmarks against which the quality of participation exercises can be assessed and compared (Rowe and Frewer 2000: 4; Lowndes et al. 1998), this study borrows the aforementioned perspectives from organisation theory. Moreover, for the purposes of this study, the conceptualisation and measurement of effectiveness is arguably best done using some combination of three major approaches to effectiveness (Forbes 1998: 184). This multidimensional or multivariate strategy is borrowed from organisational theory7 and constitutes a more sophisticated and comprehensive understanding of effectiveness (Steers 1975: 546). The goal-attainment, systemresource and perception-based approaches can complement each other by measuring separate, but related dimensions of organisational effectiveness (Molnar and Rogers 1976: 412). The effectiveness of ECAFs can thus be measured as a construct, the sum of a set of relevant criteria derived from the three approaches. It is equally noteworthy that this volume’s approach to effectiveness is based both on subjective data (i.e. the questioning of individuals), and on objective data (i.e. the study of documents or the use of observation) (Price 1972). The first approach is goal attainment according to which perspective effectiveness concerns the extent to which a given entity succeeds in meeting, accomplishing or attaining goals (Barnard 1938; Price 1972) or internally determined objectives.8 Two assumptions form the basis of effectiveness as goal attainment. First, the entity under study must have an ultimate end goal (mission/function). Second, this goal must be clear, unambiguous and empirically identifiable so that progress toward it can be measured (Yuchtman and Seashore 1967: 892). There are at least two techniques for determining organisational goals (Perrow 1961; Weiss 1972). The first is to obtain external goals; these are official or prescribed and contained in mission statements, legal documents, annual reports and other documentation (Molnar and Rogers 1976: 402). The second is to determine internal objectives. These are an organisation’s operative goals which are reflected in the tasks and activities performed within the organisation (Molnar and Rogers 1976: 402). There are problems associated with the aforementioned underlying assumption of the goal-attainment approach to effectiveness, the idea that organisations have goals. First, organisations may simultaneously pursue multiple goals such as formal and official goals, informal, unofficial, latent, or implicit goals (Herman and Renz 1997: 187; Pollitt 2000; Wildavsky 1979: 139). Second, these goals may not only be multiple but conflicting and contradictory or even vague, ambiguous, intangible or amorphous (Pollitt 2000; Wildavsky 1979: 139; Forbes 1998: 185). The result is that goal achievement may be difficult to determine. Moreover, it is difficult to pinpoint when outcomes are being arrived at; final outcomes of some programs may lie a long way in the future which means that timescales have to be taken into consideration when examining goal achievement and it is difficult to safely attribute any

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observed effects to a programme in question (Pollitt 2000). Third, organisational goals may not constitute preferred end-states toward which the organisation is striving but instead represent nothing more than ‘courses of action imposed on the organisation by various forces in its environment’ (Yuchtman and Seashore 1967: 894). Goals may also obviously be modified and it is difficult to establish the impact of environmental influences on such changes of course. Fourth, effectiveness criteria linked to goal attainment are always going to represent someone’s values or biases (Cameron 1978: 606). In other words, criteria will always be subjective to the extent that statements of purpose are likely to differ from one another and do not therefore provide an unambiguous account. Public participation programs constitute a good example of this. Fifth, measuring formal goals is particularly problematic given that it would be naive to use ‘official’ or formal goal statements as a yardstick of organisational effectiveness (Connolly, Conlon and Deutsch 1980: 212; Perrow 1961; Porter, Lawler and Hackman 1975). Organisational goal statements often lack specificity (Herman and Renz 1997: 187). Whether they are obtained from written documents or decision-makers, they may be misleading when those who develop statements about goals idealise, rationalise, distort, omit, or otherwise misrepresent or conceal the real purpose (Katz and Khan 1966: 150). Organisational goals statements may also fail to prioritise among different goals (Herman and Renz 1997: 187). Sixth, organisations are not real individuals and it has been argued that only individual people can be meaningfully said to have goals (Herman and Renz 1997: 187). Goals, it is argued, are in fact cultural entities that arise outside of the organisation (in minds of individuals who set them) and so cannot be seen as properties of an organisation itself (Yuchtman and Seashore 1967: 893). This understanding perceives goals as norms or sets of meanings, which depict a desired end state. In the same way, organisations are social systems (Etzioni 1960: 258); because goals are ideal states, their realistic assessment is problematic. These criticisms do not however necessarily render an assessment of effectiveness via goal attainment unfeasible (Yuchtman and Seashore 1967: 895). The second major approach to effectiveness is a system-resource one which focuses on assessing the means necessary to achieve organisational goals (Miles 1980). Accordingly, an effective organisation is one that is able to exploit its environment using its bargaining position to acquire scarce and valued resources (Yuchtman and Seashore 1967; Molnar and Rogers 1976: 401), which will enable it to sustain its own functioning and thus increase its effectiveness (Georgopolous and Tannenbaum 1957; Yuchtman and Seashore 1967). Effective organszations are therefore those that draw greater resources from their environments (Molnar and Rogers 1976: 403). Effectiveness in this sense also concerns the flow of resources from the organisation to the environment: it is not simply about an organisation’s ability to obtain resources (exploit the environment) but also the amount of resources it provides to its relevant environment (Molnar and Rogers 1976: 403–4). This approach to effectiveness can therefore test for the presence of certain design and process

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features or even participant behaviour features which can attribute to the augmentation of an organisation’s effectiveness. The third approach to effectiveness explored here is a perception-based approach. Here, effectiveness can be assessed via an examination of the reported opinions of key persons9 (Herman and Renz 1997: 196). Under this reputational or perception-based approach, an organisation is effective where key persons perceive that they accomplish something, that their time and efforts ‘matter’, are worthwhile or ‘make a difference’ (Karty 2005: 419). It is thusly essentially concerned with participant or represented constituency satisfaction; a requirement for any organisation’s continued existence (Lewin and Minton 1986: 520). Such perceived effectiveness is assessed according to the self-reported opinions of some set of persons who are familiar with the organisation, such as regular participants (Jobson and Schneck 1982). In this way, it aligns effectiveness criteria with constituency satisfaction. It is important to bear in mind that perceptions of effectiveness may be based more on procedures than on outcomes, if an organisation functions well, meets regularly, is seen to conduct important work, and its participants work well together, it may be perceived to be effective whether or not there is a change in outcomes (Eaton and Nocerino 2000: 274). There is an obvious link therefore between the system-resource and perception based approaches. As a result of the above discussion of how to assess the effectiveness of European Commission stakeholder participation exercises such as the ECAFs, a number of claims can now be established and developed. First, based on the goal-attainment approach, the effectiveness of ECAFs is partially contingent on whether their official goal matches the shared participant perceptions of their purpose. This is because effectiveness is arguably enhanced where participants share a common understanding of the primary purposes aims and goals. The issue of shared purpose is significant given that advisory forums may accomplish the purpose of their convenor and sponsor; the European Commission yet at the same time be perceived as ineffective by stakeholder participants. The Commission’s real purpose may be for example ‘to enlist support of the regulated in the process of regulation’ (Karty 2002: 222) or its primary aim may be for example to delay addressing issues, air viewpoints, deflect criticism, co-opt interests, and monitor stakeholders. Yet these are all purposes that may impair perceptions of effectiveness among participants (Karty 2005: 419). In addition, requesting that participants judge whether the advisory forums attain their stated goals is problematic to the extent that multiple and differential interpretations are likely as to what constitutes goals. Based on the system-resource approach, the effectiveness of ECAFs is contingent on the presence of certain conditions. In short, when an institution is in possession of certain attributes or resources, this will lead to greater effectiveness. Based on the assumption that the way in which ECAFs are structured makes a difference to outcomes,10 the first noteworthy set of attributes are structural design features.

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If they are to contribute to the achievement of goals, forum participants must understand them (Perrow 1972). ECAFs are therefore likely to be more effective where their formal goal and purpose, nature and scope of their task or mandate, expected output and the procedure mechanisms (such as rules, policies, and guidelines) are clearly and unambiguously defined and specified at the outset. Effectiveness is likely to be affected by any misunderstandings amongst participants regarding their goal and mandate and this, in turn, may cause disputes. Accordingly, confusion should be kept to a minimum (Rowe and Frewer 2000: 16; Price 1968: 44; Mott 1972: 71). The effectiveness of ECAFs and the quality of participation within them is likely to be enhanced where certain functioning or procedural characteristics are present. Effectiveness will be augmented for example where face to face discussions occur over a lengthy period of time (Fiorino 1990). It therefore necessitates a high frequency of formal meetings; frequent contacts and informal meetings between all participants (Commission and CSOs) outside of formal meetings so as to provide opportunities for networking; and a high density of meetings. Because absenteeism and turnover amongst participants are indicators of low commitment (Angle and Perry 1981: 3), high attendance rates and low participant turnover are likely to increase the effectiveness of these advisory forums. The effectiveness of advisory forums is contingent on the Commission, as their convenor and sponsor, offering high levels of administrative support (Karty 2005: 422). Part of this support is the supply of relevant and appropriate resources such as information to forum participants thus increasing the likelihood that they will successfully fulfil their mandated task (Rowe and Frewer 2000: 15). The prior availability of such materials and information to amply prepare for forum meetings is likely to particularly impact upon (perceived) effectiveness. The presence of senior officials in Commission advisory forum meetings is valuable because of their ability to provide leadership, initiate change, prompt the follow-up of any recommendations produced, demand a full explanation for delays and secure scarce resources for the forum (Bryce and Manga 1985). Accordingly, seniority is an important determinant of their effectiveness. Rather than the Commission adopting a ‘decide, announce, defend’ approach (Chess and Purcell 1999: 2687), which encourages reaction to its proposals and may leave participants feeling patronised and frustrated, stakeholder participation in policy matters should occur as soon as is reasonably practical to allow early input into the development of Commission policy proposals (e.g., Ng and Hamby 1997; Middendorf and Busch 1997 see also Andersen and Eliassen, 1996: 46; Budd and Jones 1989: 61 cited in PhD). In its own minimum standards for consultation (EC 2002), under the heading Time Limits for Consultation, the Commission underlines the importance of it providing ‘sufficient time for planning and responses to’ consultations and establishes that it ‘should strive to allow at least eight weeks for reception of responses to written public consultations and 20 working days notice for meetings’. Effectiveness will therefore be increased where issues that fall

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within the scope of Commission advisory forum tasks arise on their agendas at as early a stage as possible (Rowe and Frewer 2000: 14). Design, alone, will not ensure effectiveness. Even where structural prerequisites are met, a crucial requirement for effectiveness remains: participants in the advisory forum must behave in a manner supportive of its goals (Angle and Perry 1981: 2). Certain participant behavior features or characteristics are a further resource, which must therefore be acquired by the ECAFs in order to augment their effectiveness. The most noteworthy behavioural characteristic essential to the effectiveness of the advisory forums in question is proactivity. On the basis that forum members must be active participants in terms of contributions to the agenda and discussions rather than passive bystanders, the effectiveness of ECAFs will be augmented where participant input and proactivity is higher. The behavior of the forum Chairperson is also important. Whether forums are chaired by a Commission official or CSO representative should facilitate the discussion by helping overcome difficulties and providing support to the discussion (see Rowe and Frewer 2000: 3). The Chair should also demonstrate leadership, encourage information sharing, cooperation and compromise, and ensure each member has a chance to participate and that the views of participants are given equal recognition (Crosby et al. 1986: 172). ECAFs will be more effective where the Chairperson assures these elements. Based on an investigation of participant perceptions, the effectiveness of ECAFs is contingent on perceived commitment and perceived worth of the forums on the part of those involved. First, effectiveness will be strengthened where there is a perceived real commitment on the part of the Commission to the process from the standpoint of participants (Rowe and Frewer 2000: 16). Second, effectiveness is likely to increase where the advisory forums are perceived to be worthwhile and useful. In short, they are likely to be more effective where members feel their forum is doing a good job, and see its role as important and tasks as significant (Lindell and Whitney 1995: 444; Karty 2005: 421). Finally, the perceived working atmosphere and climate within ECAFs makes an important contribution to effectiveness (Lindell and Whitney 1995). Climate can be improved via effective mutual communication and where there is a mentality of collegiality and workgroup cooperation where all participants contribute towards the achievement of the forum’s mandated task (Lindell and Whitney 1995: 444). Role conflict, role ambiguity, role overload, task insignificance, lack of leadership by committee Chairperson, and lack of cooperation between members can all contribute to a negative climate. The more skilled those forum members become in interpersonal communication so that they respect, value and avoid degrading each other (Spörndli 2004), the more successful it will be. From here on and throughout the four case study chapters that follow, on the EUEB, the EUHPF, the TCG/CSD and the AAGs, the various criteria and benchmarks established within this chapter, will be used and applied as a means to ascertain the capacity that ECAFs possess to secure both legitimacy on the input side and effectiveness on the output side.

3

The EU Eco-Labelling Board Consultation Forum

The first case study is of the EU Eco-Labelling Board (EUEB), the advisory body at the heart of DG Environment’s voluntary Eco-Labelling scheme and ‘the Flower’ label. In operation since 1993, the label award scheme seeks to promote products with a reduced environmental impact. Situated within a complex and multi-layered structure, the EUEB is composed of MS-based Competent Bodies and Civil Society Organizations (CSOs), which meet as part of the Consultation Forum (CF). Based on the legitimacy on the input side and effectiveness on the output side gauge established in Chapter Two, the primary aim here is to ascertain the CF and EUEB’s capacity to simultaneously secure both elements. It begins by examining the Forum’s balanced composition and deliberative capacity with regard to inputs before scrutinising its effectiveness. It is posited that several of these structures’ composition, functioning and design features jeopardise their ability to deliver in both areas.

Balanced composition An application of the Minimum Threshold Principle (MTP) to the CF and EUEB helps to establish whether their composition in terms of participant numbers is streamlined rather than cumbersome. The CF’s membership is regulated by article 3 of its rules of procedure1 and although these do not specifically indicate actual numbers, the organizations named in Table 3.1 constitute its current members. So although the CF currently includes representatives of consumer groups, Environmental NGOs, trade unions, industry, SMEs and commerce, its exact membership total is unfixed and thus subject to increase or decrease. UEAPME’s acceptance as a CF member in 2001 constitutes a clear example of membership expansion.2 It is equally difficult to judge whether the EUEB is streamlined. Again, attendance numbers are difficult to calculate here. According to its rules of procedure, each CF member must designate a contact person or General Representative and because the CF meets in the EUEB, these representatives should participate in all Board meetings. Article 15 of the rules provides that

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Table 3.1 Interests represented in Civil Society Organizations CSO

Interests represented

BEUC Replaced COFACE; the original consumer representative. Replaced COFACE; the original consumer representative. Bureau of European Union Consumers

Consumers: Coordinates the representation of consumers – on behalf of Coface, Eurocoop and AEC

EEB European Environment Bureau ETUC The European Trade Union Confederation BUSINESSEUROPE Previously UNICE Previously UNICE

Environmental organizations: The official representative of environmental organizations in the EU Eco-Label Consultation Forum Trade unions

UEAPME European Association of Craft, Small and Medium-sized Enterprises EUROCOMMERCE

Industry: SMEs, crafts

Industry: Confederation of European Business

Retailers: The official representative of all European retailers’ in the EUEB and the Consultation Forum and also represents Non European Manufacturers

a participating CSO may generally send no more than three representatives each. The aforementioned formal members of the CF (BEUC, EEB, ETUC, BUSINESSEUROPE, UEAPME and EuroCommerce) can therefore send a combined minimum of six and a maximum of 18 to any given meeting. It is noteworthy however, that BEUC and EEB only usually send one representative between them, ETUC do not usually attend and BUSINESSEUROPE does not participate on a regular basis either. Article 16 of the rules allows that representatives of the EU and (European Economic Area (EEA3) Member States (MSs) who are designated by their national government may also participate in the EUEB meetings. These nationally appointed members have the collective title of Competent Bodies (CBs).4 Their numbers are also limited to three representatives each. We can therefore add a further 30 to 90 members to the potential tally. Candidate EU countries5 may also send an observer each, while Commission personnel also participate with between one and five staff members attending from the Unit that oversees the EUEB. The Chairperson or DG Environment may also, where appropriate, invite other

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interested parties. Indeed, often meetings require the presence of officials from, amongst others, DG Enterprise, DG Trade and DG AGRI. A number of experts also attend EUEB meetings. Each CF member designates at least one technical representative per product group. These participate principally in the Ad-Hoc Working Groups (AHWGs) set up in relation to specific product groups. However, they may also participate in the Board. Technical experts are often drawn from specific companies relevant to the different product groups. The only requirement is that they should as far as possible be expert and knowledgeable of that product group. Accordingly, it appears that just the tally of experts can reach at least 36. Finally, according to a DG Environment official, ‘Anyone else, who for specific items on the agenda is interested in coming along, can be there’ they simply have to make a formal request to the Commission (personal communication, November 12, 2007). Taking into consideration all of the above membership criteria, minimum numbers at a EUEB meeting appear to be able to range from approximately 70 to potentially over 130. It is also noteworthy that its statues allow the EUEB to adapt its membership to ensure a balanced participation of all relevant interested parties and it can make such modifications either at the request of the Commission or on its own initiative. In the case of the latter, however, the Commission must give its approval. As to whether the estimated number of participants is indicative that EUEB membership is streamlined; this is difficult to judge objectively. From a subjective standpoint, however, for some CF participants, it clearly is not streamlined. One notes that maybe EUEB membership is ‘too open in the sense … there are so many people … that it’s difficult to understand why some … are there and what they have to say exactly. But nobody can say that people with something to say are kept outside’ (CSO representative, personal communication, July 25, 2007). The Stake-holding principle (SHP) refers to whether a governance structure comprises no other active members than those necessary and relevant to contribute to the EUEB’s overall goal(s) and specified task(s). Accordingly, all participants should be interested in and affected by the issues covered. The relevancy of CF participants is a key concern for the Commission. It emphasised this element when it drew up the first revision to the original EcoLabel Regulation in 2000. According to recital 5 of Regulation 1980/2000, for example, it is essential that environmental NGOs and consumer organisations play an important role in the development and setting of criteria for Community Eco-Labels to ensure the general public’s acceptance of the Eco-Label Award System. Relevancy is again highlighted in article 14 of the aforementioned Regulation, which states that the EUEB’s CF ‘should provide for a balanced participation of all relevant interested parties concerned with … [different] product group[s]’. On its Eco-Label website, DG Environment confirms that the CF ‘consists of principal interest groups’ (BEUC, EEB, ETUC, BUSINESSEUROPE, UEAPME and EuroCommerce) and is intended to represent ‘all European stakeholders’6 via their constituencies (consumers, environment interests, trade unions, industry, SMEs and commerce).

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To establish who holds a stake it is useful to revisit the aims of the EUEB and the Eco-Label scheme it manages. Because these goals are discussed in detail in a later section, suffice to say here that the Board and the Label are intended: * to achieve significant environmental improvements – by developing, publishing and promoting criteria that push the market forward, in order to minimise the environmental impacts of a wide range of products and services over their whole life-cycle; * to ensure the credibility of the award – by efficient administration and through criteria which:  are environmentally strong;  are based on good science, including the precautionary principle;  take account of consumer health;  require good product performance;  are developed transparently and cost-effectively, with the participation of stakeholders;  are reasonably attainable;  are up to date. * to encourage manufacturers, retailers and service providers to apply for the award, to publicise their own participation in the scheme, and to promote the availability of eco-labelled products and information about them; * to encourage purchasers to buy products and services with the award; * to improve consumer awareness and behaviour regarding the environmentally optimal use of products and services. From this mission statement, multiple stakeholders can be identified: manufacturers; retailers, importers and exporters, service providers, industry (federations and specific companies) and producers – who apply the label to their products; consumers – who choose to buy products with the label; public and local authorities (including public and private purchasers); environmental organisations; marketing and media organisations; trade unions and health bodies. It is therefore noteworthy that DG Environment only specifically highlights the participation of producers, retailers, environmental organisations and consumers on the EUEB website, while article 15 of Regulation 1980/2000 is more detailed and includes as ‘interested’ and ‘concerned’ parties ‘industry and service providers, including SMEs, crafts and their business organisations, trade unions, traders, retailers, importers, environmental protection groups and consumer organisations’. Unquestionably, all the CF members are valid stakeholders; there are, however, some noteworthy absentees. During the process of developing product group criteria within the EUEB framework, for example, decisions are taken regarding the exclusion of certain chemical substances. Such decisions are taken not just on the grounds that they are harmful to the environment but also that they are harmful to human health. It is therefore surprising that

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health bodies are not expressly included as interested and affected actors. Moreover, and although endowed with full CF membership, some CSOs choose to never or rarely attend EUEB meetings (CSO representative, personal communication, July 24, 2007). In reality therefore, there may be lacunas in the representation of supposedly present interest constituencies such as trade unions and industry. Moreover, the actual relevance of EUEB participants is also disputed by some CF members. One complains that although it is meant to comprise principal interest groups, many company-based individuals also attend. Because some participating producer and retailer groups include companies as affiliate members, such individuals can be nominated to attend the EUEB as experts. It is interesting that in its consultation on the revision of the European Eco-Label Scheme launched in 2006, the Commission underlined the need to strengthen the role of stakeholders in the scheme and to this end proposed a reform of the EUEB’s composition with the principal aim of reinforcing public acceptance of the Board’s work and thus its legitimacy. With regard to the European-wide constituency (EWC) principle, both the Commission Decision establishing the EUEB7 and its rules of procedure provide that it should represent ‘all European stakeholders’. In fulfilment of this requirement, the EUEB membership includes the EU27, plus the EEA and candidate countries. A ‘Community-level’ requirement for representatives of industry, retailers, environmental organisations, consumers and trade unions is also detailed on the Consultation Forum page of the EU Eco-Label website.8 If further confirmation were necessary, a Commission official also confirms that the ‘permanent members of the EUEB are … all Europe-wide organisations’ (Personal communication, November 12, 2007). Notwithstanding these formal requirements and the Commission’s verbal confirmation, it seems that in practice ‘anyone can come to the EUEB’ and it is not restricted to purely European-wide constituencies. As already mentioned, ‘An individual company … representative can come and make his point’ (Commission official, personal communication, November 12, 2007); the risk being that ‘Sometimes … an individual company would come along to a meeting and say something which maybe isn’t relevant’ (Commission official, personal communication, November 12, 2007), a source of criticism for some CF members. In addition, a CSO like BUSINESSEUROPE represents industries that are not specifically European-wide but multinationals, with interests, for example, in the USA. If the interests represented within the EUEB were restricted to those with European-wide constituencies, one CSO representative believes the EUEB would be more progressive, making it easier to phase out certain chemicals (brominated flame retardants for example) from different product groups (such as televisions). Multinational companies boasting global markets and the ability to wield enormous economic pressure (such as Sony and Philips, for example), can exert an influence within the EUEB which stunts progress in these areas via their affiliation to member CSOs (personal communication, July 24, 2007).

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The Community-level requirement is also undermined by the uneven nature of participation within the EUEB by the EU27, particularly the May 2004 entrants. Although some are extremely active, such as Slovenia, other new MS CB representatives are not always present. This is problematic because when a new set of criteria for an individual product group needs to be established or revised, the EUEB selects a lead CB from all those registered as members. The Commission then finances this lead CB to develop the criteria. As part of this developmental process, the lead CB forms an ad-hoc working group. Although the Commission’s Eco-Label website expressly states that the lead CB should ‘seek … balanced participation of all interested parties’ in these groups, it is mostly the pre-2004 EU members ‘which have more voice’ (CSO representative, personal communication, July 24, 2007). When CBs are absent therefore, the EUEB’s smooth functioning can be impeded. Some CSO representatives are highly critical of the new MSs for their lack of input in EUEB meetings. Indeed, the 2004 and 2007 enlargements are described, as ‘a waste of time’ by one CSO who notes that if you ‘get a reasonable answer from one or two of these 12 new MSs’, ‘it’s a wonderful result’. This is because in most cases, rather than contributing constructive opinions of their own, their standard reply is ‘we don’t have any opinion on this subject’ or ‘we still haven’t got the time to consult our industry’ or ‘yes we approve what somebody else said’. The representative concludes that ‘they’ve got no clue whatsoever what is going on’. Instead ‘they are just there because they are obliged to come’ and/or because they are able to take advantage of the regular trip to Brussels. There is no evidence that ‘they work on files’ or ‘study’ or ‘consult civil society to know what they think about the criteria’. Unfortunately, they nevertheless ‘have the power of voting’ and tend to use this to ‘vote for the majority’ even where this vote is obviously against the interests of the ‘the eco label [or] … the manufacturers, who then … apply these criteria’ (CSO representative, personal communication, July 25, 2007). The achievement of Community-wide representation is also undermined by the absence of Luxembourg, which according to the Commission is even ‘less interested’ in the EUEB to the extent that it ‘doesn’t come at all’. Indeed, in the Regulatory Committee that meets to vote after EUEB meetings, Luxembourg gives its vote to Belgium and thus has no influence at all on proceedings (Commission official, November 12, 2007). According to the adversarial principle, EUEB composition should avoid a preponderance of interests which are known to share a similar position or which have already formed an alliance for a common purpose. The EUEB’s membership generates a number of concerns in this area. Industry and retail interests, for example, complain that the NGO-type CSOs represent a ‘clear case’ of forming an alliance outside of the EUEB because ‘they always had the same opinion; I mean they work together’ (CSO representatives, personal communications, July 24 and 25, 2007). The fact that the EEB and BEUC share a EUEB co-ordinator who attends meetings on behalf of both organisations is an obvious manifestation of working together. Because the greens

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and the consumers represent two large sections of civil society their formal coalition is considered ‘quite important’ when used strategically. This is because ‘they want basically the same thing – they want the eco label to be developed in a certain way, to represent certain kinds of instruments in the EU environmental policy and they fight for these ideas’ (CSO representative, personal communication, July 25, 2007). The reality is however, that the EEB/ BEUC sends only one individual between them to EUEB meetings; in short, although an ‘alliance for a common purpose’ has clearly been formed between them, it is difficult to support any claim that these CSOs represent any physical preponderance of interests on the Board. A further informal and natural alliance reported by EUEB participants is that between the Nordic MS CBs of Sweden, Finland, Denmark, Norway which tend to work in close partnership, often coordinating their position in talks prior to EUEB meetings. A criticism voiced by one CF member is that they: ‘always together take the stand that SMEs don’t need any specific assistance or discounts [monetary concessions]; that everything goes well with the SMEs in the Nordic countries’ (CSO representative, personal communication, July 25, 2007). Because of this attitude, they fail to appreciate the difficulties and costs experienced by SMEs across the EU in applying the EcoLabel. The issue is particularly salient given that most businesses applying for the Eco-Label are SMEs.9 This so-called Nordic coalition often extends to include the NGO-type CSOs; a natural alliance considering that the Nordic countries are often perceived leaders in the development and application of environmental legislation. These CBs ‘share some general basic position on the Eco-Label, how it should be developed’ and moreover ‘they use this position whenever there’s a general discussion’ and when there are discussions on ‘the exclusion of some substances – like PVC … they always have the same position (CSO representative, personal communication, July 25, 2007). A coalition of ‘laggards’ is also identified within the EUEB. This tends to include those MSs grouped around the Mediterranean such as Italy, Greece and Spain. These countries have no national eco-label scheme, which perhaps renders them less experienced in ‘green’ thinking. This is often reflected by a more conservative approach to the EU Eco-Label because the product group criteria developed are difficult for these countries to apply and fulfil. Again, however, there is no evidence that either the Nordic or laggard coalition of countries occupy a physical preponderance of seats. With regard to a physical rather than perceived preponderance of particular interests, two areas of concern are noteworthy. First, although it praises the EUEB for ‘offering NGOs a concrete democratic platform’ (EEB 2006: 16), the EEB has expressed concerns about Environmental NGOs being a minority and the ‘parity balance between environment and industry’ being ‘disturbed’ within the EUEB (EEB 2004: 10). Indeed, the structure’s low level of ambition is in part attributed to the influence of conservative industry positions. The EEB has specifically complained of the ‘too frequent evidence of industry participation overload’ throughout the EUEB process (EEB 2004)

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and has requested ‘a reduction of imbalance in conservative industry influence’ and ‘clearer guidelines on stakeholder balance’ (EEB 2004: 28). Interviews duplicate this concern that the civil society voice ends up being lost among a miasma of MS government and industry representatives (CSO representatives, personal communications, July 24 and 25, 2007). The impact of industry influence can apparently be felt at several points within the EUEB framework; first and most obviously via the industry representatives of the CF who sit at EUEB meetings. Second, the CBs decide the product groups. The risk here is that because ‘industry voices are strong’, ‘they can push the competent body’ rendering it more susceptible to industry interests (CSO representative, personal communication, July 24, 2007). For one CSO, many MS CBs are only consulting with industry representatives with varying degrees of ambition, while there is little or no consultation of environmental advocates at national level (CSO representative, personal communication, July 24, 2007). Third, following the AHWG phase of product criteria revision or development, proposals are sent out to other Commission DGs for Inter-service Consultation (ISC). The risk at this stage is that DG Enterprise listens closely to industry and because DG Enterprise carries more political and economic clout than DG Environment this will affect the flavour of the product criteria proposals that return from the ISC process (CSO representative, personal communication, July 24, 2007). The second area of concern is that while the EEB complains of industry overload in the EUEB, a Commission official focuses more keenly on the over-representation of MS interests; while ‘ … there’s 27 people from the different member states’ there are ‘only one or two from environment and one or two from industry’ (personal communication, November 12, 2007). MS interests are also prominent in the EUEB meetings via the CBs, who are after all designated by the MSs. Although officially they are not supposed to function in the common interest of the Eco-Label, CBs are actually often representing the interests of their MSs; this is particularly true where the CB is a ministry unit. A Commission official explains that ‘there shouldn’t necessarily be any need for member state representation’ (personal communication, November 12, 2007). The consequent risk of MS involvement is two-fold; First, the national interest may be promoted over the Community one, and second, the differing national viewpoints on product criteria between northern and southern MS can result in a ‘slight loss of technical … consistency’ (personal communication, November 12, 2007). The Commission official wonders why the MSs ‘should be voting on the criteria when they weren’t even in the technical discussion’ (Commission official, personal communication, November 12, 2007), which takes place in the AHWGs between CSOs and CBs. It is however, important to note that since 1992, the MS position is less dominant within the EUEB: when the Eco-Label was first established, MSs were solely in charge of selecting product groups and also had the task of defining the criteria jointly with MS and CSO experts (EEB 2004: 7). These functions are now fulfilled by the CBs and the CF meeting within the EUEB.

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The dominance of national interests points to an issue at the heart of the Eco-Label process and a point of friction between the CSOs and MSs, the Commission and the Council. The Eco-Label scheme is about developing European-level criteria for different product groups, which can then be universally applied via the Flower logo to products and services across MS boundaries. However, criteria developed at the European level may conflict with criteria developed at the domestic level for national environmental labels. All the while that the Community interest is being pursued in the EUEB there is an undercurrent of protection of national interests, a common dilemma in supranational institutions of this kind. Adherence to the principle of putative quality necessitates the equal consideration10 of participants by the Commission so that none feel they are second or third class participants. The EUEB framework automatically generates perceptions of non-equal consideration among some participants, most notably when it comes to voting on product criteria. The technical elements of product criteria are developed in an AHWG piloted by a lead CB and composed of CB and CF representatives. These criteria are then put before the EUEB, also composed of CB and CF representatives, for discussion at a more general level. It is noteworthy therefore that the formal influence of the Commission within the EUEB framework is limited to agenda setting; it has no vote on product criteria. It is the MS CBs that choose product groups, draw up product criteria and vote on them in the Regulatory Committee. The prominent role of CBs and MSs engenders a perception, particularly amongst the CF representatives, that ‘the voice of the stakeholders is on some occasions only vaguely listened to’ (CSO representative, personal communication, July 25, 2007). Instead, the Commission’s attention in EUEB meetings is perceived by CSOs to be accorded to CBs because ‘they have the power of voting’ (CSO representative, personal communication, July 25, 2007), while the civil society groups do not. It is not that CSOs ‘don’t have influence, but at the end of the day the decision is taken by the member states and depending on where you stand you might as a stakeholder feel that the final criteria is to your liking, or on the contrary you might feel that your views haven’t been taken into account’ (CSO representative, personal communication, July 25, 2007). In 2006 DG Environment launched a discussion on the EUEB’s future. In this process, balancing the structure’s membership was a major consultation question. One of the reform options the Commission suggested was to create a new Board on which stakeholders would be given formal decision-making powers via voting rights in the selection of product groups and criteria. Consumer and Environmental NGOs led by BEUC and the EEB have also argued that because the Eco-Label is a societal tool ‘decisions should come from organisations that have a societal mandate, rather than private interests’ (EEB-BEUC 2006: 3). The EEB and BEUC have argued that the EUEB framework should maintain the democratic representation of each MS and the EU institutions (Commission, Parliament, Council) and societal

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organisations but exclude from voting rights those bodies at risk of a conflict of interest, i.e. industry (federations and individual companies). A further issue that fosters a perception of the Commission’s non-equal consideration of EUEB participants is funding. Following the CF’s creation, the EEB was asked to participate and initial meetings took place. Soon after the EEB withdrew itself from the process it made ‘clear to the Commission that it would not return unless it was guaranteed travel costs and per diem for its forum members. This was finally granted for three people’. When it became obvious however that the real decisions on criteria were made in ad-hoc working groups requiring the EEB’s regular participation, the Commission made a further offer: ‘a contract that allowed the payment of staff at the EEB office along with fees, travel expenses and per diem for an expert to participate in the ad hoc technical working groups (EEB 2004: 10). Because the EEB and BEUC now have a joint EUEB coordinator, DG Environment funds both organisations’ attendance. Other CF members regard this as evidence that this DG has a preference for those it funds (CSO representatives, personal communications, July 24 and 25, 2007). This funding has its own repercussions on those in receipt of it. The EEB and BEUC criticise DG Environment for hiding behind them in the way that they rely too much on their organisations to help inform their own views and provide them with evidence. The EEB and BEUC would like DG Environment to be more proactive. Notwithstanding the CSO perceptions outlined above, a DG Environment official responds that ‘I think we treat everybody equally and the only time that people … wouldn’t be … treated equally is if they don’t talk to us at all’ (Commission official, personal communication, November 12, 2007).

Deliberation The EUEB’s capacity to generate input legitimacy rests in part on its ability to exhibit the key attributes of a deliberation, which both addresses and seeks to resolve conflict through debate by involving opposing viewpoints and building coordination. EUEB meetings usually proceed in one of two ways, dependent upon whether the purpose is to update participants on progress made to revise or develop a product group’s criteria, or to amend texts such as the Regulation. The first takes the format of ‘points for information’; a presentation is made by a Commission service, the lead CB or other relevant actor, and an informal question and answer session usually follows. In such a format, the capacity for debate is limited because the primary interaction occurs between the presenters and the CSOs rather than between the CSOs themselves. The revision of texts requires a more formal meeting comprising one or several ‘tour(s) de table’ where all participants are asked to give their opinion (Commission official, personal communication, September 20, 2007). Although some CF representatives report an overall lack of debate and an absence of any real attempt to reach mutual compromise (CSO representative, personal communication, July 24, 2007), more debate is certainly likely in the

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second option. One CSO representative reports that ‘after the first tour de table there is a debate where the Commission and the Chairman always try to see whether it’s possible to reach a compromise’ and this often results in the development of a new version of the criteria. This tour de table procedure is positively perceived by some participants because it at least reflects the tenor of debate. For its part, the Commission values the inclusion of varied and opposing views; certainly where issues are complex and multiple perspectives have to be taken into consideration. When assessing, for example, the level of a toxic substance to be added to a product like paint, ‘If you just listen to an environment group they might say “Oh all these toxic substances are bad”. But then if you listen to the industry perspective or the consumer perspective, you realise that that’s not necessarily the case … you may need this substance which has a higher toxic level to make a product work’. What good would be a shampoo, for example, which after all the toxic substances are removed ‘doesn’t actually clean your hair’ (Commission official, personal communication, September 20, 2007). Such a process of debate also helps move the process along. After all, all members have an interest in approving criteria so that they can say that the Eco-Label is developing with increasing product groups and criteria. Although the EUEB apparently allows some scope for debate, the issue of participant numbers is perceived as a significant impediment to it. The group is described as being ‘too large’ to really develop consensus and compromise towards the achievement of ‘common shared goals’. Consequently, ‘often the Commission has to find a balance themselves … we’re the ones who mediate in order to find a compromise as opposed to it happening automatically … ’ (Commission official, personal communication, September 20, 2007). The obvious issue with both large participant numbers and the tours de table format is ‘if it takes two hours to do a tour de table it’s quite difficult to have … back and forth discussion’ (Commission official, personal communication, September 20, 2007). In order to deal with participant numbers, the Commission has made proposals (January 2008) to form a smaller EUEB group and amend the Regulation accordingly so ‘that the CF doesn’t include the member states … because it’s impractical at the moment … it’s too slow and bureaucratic’ (Commission official, personal communication, September 20, 2007). Aside from numbers and issues of timing, another hindrance to debate is the nature of the interventions made by EUEB participants during the tours de table. Many, particularly CF representatives tend to draft written contributions ‘So when you go there, very often you just tend to repeat what you put on paper’ (CSO representative, personal communication, July 25, 2007) and this may simply be a declaration of pre-determined views or a repetition of what was previously said on the same issue. Neither is conducive to debate towards compromise. PVC, and whether it should be excluded from products under the Eco-Label, is highlighted as an example of an issue which is regularly the subject of discussion. While some EUEB members support its complete exclusion from products carrying the Flower label, others accept its

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presence until suitable alternatives are found. The problem is that the discussions are based on a lack of scientific evidence preventing an informed decision either way. The risk of repetitions is that they can generate a sense of inevitability, which can soon dominate meetings: ‘you know what they’re going to say, and you hear the industry saying the same thing, the NGOs saying the same thing’ (Commission official, personal communication, September 20, 2007). If participants only receive important documentation one week prior to a meeting, it is probable that this will encourage repetition and duplication. The EUEB’s capacity for debate is also obstructed by needless bickering over small, inconsequential issues and by unsatisfactory management of the process (Commission official, personal communication, September 20, 2007). According to a Commission official, ‘in some product groups we get stuck, everyone disagrees. It doesn’t quite work.’ Hours are often spent discussing recurring issues like DEET or flame retardants or ‘sometimes the group can get too political … instead of discussing the specific environmental merits of a product compared to another product, we end up discussing things which are headline political environmental issues … I think that’s a mistake personally’ (Commission official, personal communication, September 20, 2007). The risk of constant squabbling is ‘you get the feeling things are done just because they have to be, and for the Commission to say “Well you know there was a discussion”’ (CSO representative, personal communication, July 25, 2007) but it was impossible to determine any kind of common perspective. The above discussion highlights that although the format of some EUEB meetings goes some way to providing the conditions conducive for debate to occur, in reality there is an overall deficiency in this area. DG Environment places experts ‘at the core of the discussion’ without whom, it says, ‘we couldn’t do anything’ (personal communication, November 12, 2007). In short, the possession of technical expertise in the EUEB process is ‘absolutely vital’. Almost any agenda issue requires an ‘extraordinary’ and ‘mind-blowing’ amount given their ‘unbelievably complicated and technical and scientific’ nature. Some of this expertise is highly specific to particular industries.11 Many CSOs attend meetings with technical experts ‘who are chosen for their wider vision of environmental impacts and the depth of their technical knowledge’ (EEB-BEUC 2006). It is important to consider two levels within the EUEB framework at which expertise and knowledge are necessary to function: the AHWGs and the EUEB meetings. The AHWGs do the majority of work on product group criteria. In the EUEB statutes, the Commission emphasises the need for technical expertise in WGs. Here it notes that the technical experts designated by each EUEB member should as far as possible be expert and knowledgeable of the product group in question. They require, for example, detailed expertise of particular chemical compounds and the implications for a product if these compounds are omitted. CF representatives attending without appropriate technical experts are likely to find it difficult to follow discussions. As well as the technical expertise, these AHWGs also necessitate English

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language skills. In fact, the often-complex documentation resulting from AHWGs is usually only available in English. The level of some AHWGs members’ knowledge is deemed unacceptable. Indeed, many of the WG participants are considered unsuitable, demonstrated by their regular inability to ensure the criteria are ‘stringent enough’ (CSO representative, personal communication, July 25, 2007). There are further concerns regarding knowledge levels. These refer to the involvement of some individuals in their national eco-labels, and the impact this may have on their behavior in the Europeanlevel award scheme. Individuals who are closely involved in their national ecolabels may, based on their national-level experience of uptake, argue that particular product group criteria will attract few applicants for the European Eco-Label. If this leads the AHWG to adopt a more conservative collective view when developing the European Eco-Label, this will in turn slow the label’s application. A final noteworthy point in relation to the AHWGs concerns the producer groups and DG Environment’s purported over-reliance on the knowledge they detain. Such groups traditionally defend a more conservative stance within the AHWGs, which risks swaying EUEB outcomes in a particular direction. EUEB meetings require a second level of expertise and knowledge; this is broader and covers the Eco-Label’s general priorities, its strategic direction and the links between the Eco-Label and other EU environmental policy measures. The Commission also notes: ‘You have to understand the Regulation and how it works and what the limitations are … you can’t just come along and make any old statement … you have to be realistic … [and know] what’s feasible’ (personal communication, November 12, 2007). The need for more strategic knowledge in the EUEB to give the process more direction is also emphasised. The deficiency in this area is attributed to ‘the eco labelling community liv[ing] in their own little world’ (CSO representative, personal communication, July 24, 2007). Another expertise related dilemma arises when issues are transmitted upwards from the AHWG to the EUEB. Board meetings are sometimes viewed as more of a political arena where technical expertise may be redundant. The risk is that CSO representatives will not consider it worthwhile bringing an expert to Brussels. Where a CF member attends the EUEB without their expert, although ‘you may know your position you may not be able to respond to technical questions’ (CSO representative, personal communication, July 25, 2007). One participating CSO overcomes this risk by always trying to take a technical specialist ‘particularly when there are criteria which are very complicated and controversial.’ On the rare occasions that this is impossible, however, ‘generally’, if you have experience of working on environmental issues ‘you always manage … to make your point even if you don’t have very in-depth expertise’ (CSO representative, personal communication, July 25, 2007). The Commission notes disparate levels of knowledge between participants in EUEB meetings. Most CF participants (like most CSO staff located in Brussels) are in fact generalists with no hard science

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background. They have, nonetheless, sufficient knowledge and experience of the Eco-Label scheme as a whole. The CBs, on the other hand, attend the meetings ‘with very different levels of knowledge background interests and reasons for saying what they say’ and varying domestic contexts including different degrees of own-government investment (Commission official, personal communication, November 12, 2007). In the Netherlands, for example, there are at least three national-level expert scientific committees for the discussion of environmental and EcoLabel issues and the Dutch CB attends the EUEB with this context in mind. Any issues raised by the Dutch are almost guaranteed to have passed through a committee of experts who have reached a common viewpoint. Denmark is a further example of a CB perceived by the Commission as highly committed to the process. Its possession of an eco-label tradition and a subsequently higher level of expertise is a possible explanation. These examples illustrate how ‘there are some member states and competent bodies who have big organisations working on the Eco-Label and they have a lot of expertise. So they do a lot of talking and have a lot of influence’ (Commission official, personal communication, November 12, 2007). Other CBs are part of a national context where the cost to individual companies of participating in an Eco-Label scheme is considered too high to sustain any real interest. Others still may have only one desk officer skim reading papers immediately prior to a meeting without being involved in any kind of preparatory meeting and who is therefore less well informed about the whole process. Some CBs will not even attend with experts. The Commission also notes that some CBs and governments are more greatly influenced by their industry associations while others are more greatly and directly influenced by environmental concerns. It concludes that this is largely a result of a ‘variation in member states’ resources to invest into this subject’ (Commission official, personal communication, November 12, 2007). All of these issues mean that certain CBs attend EUEB meetings lacking innovative and progressive ideas. For the Commission, although it admits ‘Sometimes we’re in a position where … nobody in the world knows the answer’, it is happy that any expertise, which is present is ‘all shared’ so that ‘If a person comes along with someone brilliant then we can all listen and make our opinions based on what they say’ (personal communication, November 12, 2007). In contrast, some stakeholders signal insufficient levels of knowledge pooling: ‘For instance now with the eco-label for televisions we have a concern about the hazardous substances that are in televisions … we would like to exclude more hazardous substances. But it will depend only on the producers if we get this information or not’ (CSO representative, personal communication, July 24, 2007). DG Environment is often singled out by itself, academics or interest groups, as a leader amongst Commission services in its openness to stakeholder input. This general receptivity to interested parties is also apparent in the EUEB process. According to one DG Environment official, if ‘anyone wants to come and see us at any time they can, and talk about anything, then

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they can.’ In any case, the official adds ‘We have to listen to them very carefully’ (personal communication, November 12, 2007). Easy access is particularly apparent during the EUEB’s criteria development or revision stages at which time although, ‘They cannot simply pop in’, anyone ‘who flags up that they have something to say can say it’ (CSO representative, personal communication, July 25, 2007). The EUEB process is nevertheless criticised for its unclear, burdensome and cumbersome decision-making process, procedures and organisational structures, which are said to ‘limit the scheme’s ability to grow and respond to opportunities’ (Report on the Public Consultation Revision of the EU Eco-Label Regulation (EC) No 1980/2000, October 2007: 4). In the Scheme’s early development, one of the main EUEB transparencyrelated issues was the Inter-Service Consultation (ISC) phase; ‘While facts were well documented and openly discussed’ during meetings ‘and even regulatory committee voting was not particularly secret, the picture became obscure once a file entered the Commission services’ (EEB 2004: 7). Today, EUEB members continue to report a general lack of transparency and openness in relation to the ISC. Three problems are paramount. The first is the general inability of interested parties to follow the process. EUEB participants are not systematically informed of which DGs are involved in each ISC. Additionally, because no report is established on the criteria before and after ISC, it is difficult to accurately trace modifications to texts by particular DGs. The second problem concerns the ISC’s duration; files can remain with the Commission services involved for a long time (EEB 2004: 7). Previous ISCs have been particularly lengthy where DG Enterprise has blocked criteria (i.e. criteria for printed materials) and a situation may remain in limbo for one or one and a half years before the blockage clears. Again, disclosure of information about delays is limited. At meetings DG Environment purportedly says ‘“Oh we’ll definitely find an agreement in the next month, and when we get to the next EUEB you’ll see that we will present you a draft” … and the next comes and there’s another excuse … and things drag on and on forever’ (CSO representative, personal communication, July 24, 2007). The third ISCrelated problem is the risk of heavy industry lobbying during this phase, which means that files rarely emerge ‘unaltered’ (EEB 2004: 7). The ISC provides opportunities for ‘hidden’ lobbying outside of meetings held within the EUEB framework. Indeed, any interest, which feels that DG Environment has not sufficiently heeded it during criteria development, can take action to lobby another DG involved in the ISC, such as Enterprise. One CSO reports that ‘Very often this happens because the big groups go to DG Enterprise and say “we don’t want this rubbish, it’s totally against our interests, and this disturbs our markets” so DG Enterprise simply blocks it’ (personal communication, July 25, 2007). The tension between the Environment and Enterprise officials is reported as palpable at some meetings; although they might put on a front that they are working together for the positive development of the eco-label, ‘you see that there’s a lot of tension’ (CSO representative, personal communication, July 25, 2007). It is important to

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note that the impasse itself is not the issue; rather the lack of information transmitted to the EUEB as to whether criteria have met with concerns that they present a valid risk or whether it is simply the result of some effective lobbying by big interests. Although those participating in meetings held as part of the EUEB framework receive minutes, their fullness is another issue of contention. Some complain that they are often a simple summary of meetings containing no detail as to who said what, action points to be addressed or rationales for decisions taken. Although it is possible to comment on or amend minutes during their circulation for approval following a meeting, they are not then recirculated to allow verification that comments or amendments have actually been inserted. Notwithstanding whether minutes are drafted and circulated to meeting participants, a significant transparency related concern lies in the fact that there is little public disclosure of minutes on the Eco-Label website. At the time of writing, no minutes have been posted for 2008 for AHWG, EUEB, RC or Marketing Management Group meetings. In 2007, minutes were posted for all three Marketing Management Group meetings, both EUEB presidential meetings, four of the eight AHWG meetings, the sole Regulatory Committee meeting and one of the three Competent Body meetings. However, no minutes were produced for the two Cooperation and Coordination Management Group meetings and most significantly for this discussion, for the six days that the EUEB met during 2007, no minutes were posted. As the table indicates, between 2000 and 2004 minutes of almost all EUEB meetings (including preparatory) were posted, whereas during the period from 2005 to 2007 a very low proportion have been uploaded. The issue of minutes reflects a significant contradiction identified by some CF participants, at the heart of the Eco-Label. It was actually developed in part so that consumers would know about it and make choices about Table 3.2 Total minutes produced per meeting days 2000–08

Total minutes produced/ Total number of meeting days (including EUEB preparatory meetings)

2000

2001 2002

11/00

02/01 04/01 06/01 09/01 12/01 5/5

1/1

2003

2004

2005

2006 2007

2008

02/02 05/02 09/02 12/02

02//03 05/03 09/03 12/03

02/04 06/04 09/04 12/04

05/05 09/05

04/06 04/07 09/06 09/07 12/07 12/07

04/08 09/08 04/08 12/08

4/6

5/6

5/6

2/7

2/7

0/4

1/4

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consumer products based on environmental criteria. The irony is however, that consumers potentially know very little about it and the Flower logo has a very low public profile. DG Environment appears to rate the lacuna in public awareness as a priority given its placement at the top of the agenda in the Eco-Label Regulation revision process (EC 2007a). In a recent ‘public’ consultation launched by the Commission in conjunction with the reform, 92.5 percent of of the 168 respondents declared that they knew about the EU Eco-Label and 92.7 percent knew what it stood for (EC 2007a: 19). However, as the Commission itself admits, the consultation’s results cannot be considered ‘as the opinions of the EU population as a whole’, but rather ‘as a representation of the views of those who are interested in the revision of the Eco-Label Scheme, were aware of the consultation and were able to fill in the questionnaire’. Moreover, the respondents required internet access and a command of the English language given that the questionnaire was only available in English. Responses were also not received from all MSs (EC 2007a: 4). One interest group considered it a ‘miracle’ if consumers even know it exists (personal communication, July 24, 2007). CSO interviews also reveal that feedback deficits are a further concern relating to the EUEB’s transparency and openness. How are these views then incorporated in the policy formulation process asks one participant. If the intention is for the Commission to simply ‘say okay we’ve got everybody around the table’ or to give the Commission the impression ‘that they are doing what they should’, or that everybody who should be there is or that ‘everything is transparent’, then that is fine. But how the views sought are integrated by the Commission and how it decides which argument to include and which to omit is unclear (personal communication, July 24, 2007). The fact that views expressed in EUEB meetings are not followed up with feedback on whether and how they have been taken on board is responsible for much frustration among CSO participants who blame the Commission for its ‘ultimate responsibility’ in drafting documentation. This lack of feedback is costly; generating a perception that the EUEB is a ‘hollow’ participatory mechanism where civil society input is welcomed but, when further drafts of documentation are received, there is no evidence that the views of those participants have had an actual visible impact. The completely opaque process of creating new documentation drafts adds to the frustration over perceived lack of feedback. One participant notes cases ‘where suddenly the Chair … or the Commission’ suddenly produces a new version or changes something within the text without proper justification and without it seemingly being recommended by the relevant AHWG. Perhaps ‘someone from member states or NGOs’ produces ‘some new data’ which the ‘Commission is convinced by’ and suddenly changes occur. Although ‘some justifications are more or less given … it’s never 100 percent clear why and how’ the new text emerges, ‘where it comes from, who’s been consulted and who’s not’. Whereas at the previous meeting you may have been convinced that a text was going in a particular direction, you may suddenly one day receive a new

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draft by email ‘which goes totally in the opposite direction. And it’s not clear why this happened’ (personal communication, July 25, 2007). One representative calls this process a ‘souk’ where ‘everybody says something and then you try to modify it to get an agreement’ (CSO representative, personal communication, July 25, 2007). The problem is, ‘you may not have the required expertise to assess’ at short notice ‘the implications of the changes to the text’. It may also be difficult to ‘understand the impact’ of modifications contained in a new draft ‘on the whole system’ (CSO representative, personal communication, July 25, 2007). Such a process of producing drafts ‘at the last moment’ renders it nigh on impossible to trace the origins of and rationale for amendments. It also creates problems for participants trying to assess ‘the impact of changes on the whole structure of the criteria’ and contributes to a sentiment among some EUEB participants that ‘the EUEB often overrides decisions of the ad-hoc working groups in the end’ (Meeting Report – EU Eco-Label presidency meeting 30–31st May 2007, Berlin). Indeed, the months of preparation at AHWG level prior to the revision or development of product criteria can be worthless when final texts are drafted in this way. The practice of disclosing product criteria votes also fits into the general picture of there being ‘no systematic and coherent or consistent approach’ to following-up on EUEB meetings. The EUEB is not a formal decision-making body so product criteria are simply discussed during meetings; usually on the first day. On the second, the CBs, the only participants who vote on criteria, are often willing to provide an informal indication of how they intend to vote in the Regulatory Committee. The latter is closed to stakeholders and only MS representatives and Commission officials attend. However, sometimes CBs will want to reflect overnight so the Consultative Forum members may be completely unaware of the result of the vote taken or the final criteria adopted. Moreover, Committee minutes are not usually immediately available to stakeholders following the Committee meeting. Indeed, only one set of Committee minutes posted to the website between 2000 and May 2008 (26/04/07) even records votes, for, against and abstentions. One CSO representative claims ‘we are never informed afterwards who voted in favour … They actually don’t even tell you whether the text has been approved or not, you don’t know anything’. The Commission’s Eco-Label unit is charged with being at fault for not at least circulating an email with the outcome of the vote or who voted in favour or against. Indeed, CSO participants have to undertake a certain amount of guesswork where Committee votes are concerned. One method ‘to understand whether it has been approved or not’ is to telephone the Commission and enquire how it went. Otherwise, if, as is normally the case, ‘I don’t hear anything’ then ‘I presume it has been approved … and then months later [anything between 3 to 6] … you receive an email from the Commission saying the criteria have been approved and published in the Official Journal, here are all the translations’. To this participant, this indicates ‘a strange lack of transparency at the end of the process’ (personal communication, July 25, 2007).

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If openness presents several causes for concern, equality appears better assured. Indeed, notwithstanding whether certain stakeholders absent themselves intentionally from EUEB meetings, all of the formal members, including the CF, the CBs and the MS representatives, have an equal opportunity to attend. To facilitate this, the schedule for meetings is posted on the Eco-Label website and the Commission unit responsible for providing the secretariat informs participants of these dates and any changes to them. Matters pertaining to the reimbursement of expenses incurred to attend EUEB meetings are not completely clear but it would seem nevertheless that any participants travelling to meetings from outside of Brussels can also access reimbursement; Brussels-based members receive none. All participants also have access to the reimbursement of expenses paid to all EUEB participants when they travel outside of Brussels for meetings organised as part of the EUEB framework, such as those organised by the Presidency in their own MS. The two general formats for EUEB meetings, approximately 15-minute update presentations of AHWG work followed by question and answer sessions or tours de table, also pose no problems to equality. There is no evidence that any stakeholder feels overlooked in the first format and under the second, contributions are sought from the CBs first in alphabetical order of the MS represented (country’s own language) followed by EEA and candidate countries. Stakeholders then contribute, not necessarily in any particular order but sometimes according to seating12 or alphabetical order or sometimes the EEB may be asked to go first. The EUEB Chair oversees speaking time. Inequality with regard to opportunities to contribute to meetings was not raised by many participants as an issue as all appear to be accorded an equal period (within the time constraints of the overall meeting). The Chair has even been known to cut short overly lengthy contributions. For one industry stakeholder there is a monopolisation of discussion time by environmental interests; this is rationalised by the probable existence of some form of perceived obligation on the part of these interests to justify the funding they receive from DG Environment (personal communication, July 25, 2007). Given that environment groups are often only represented by one individual (shared, with consumer interests), this is surprising. Where certain interests are said to dominate the discussion, this is arguably more a question of the personality of the representative. Those who front NGO-type CSOs are ‘naturally more aggressive’ and are completely convinced by what they have to say ‘it’s their philosophy of life’ and leads them to ‘take the floor every two minutes to say something’ (CSO representative, personal communication, July 25, 2007). The associated risk is of course that ‘discussion drags on and on and on, and then they intervene again and then again on whatever anybody else said, so it’s very heavy’ (CSO representative, personal communication, July 25, 2007). Ultimately though, it is recognised that, ‘if the others don’t react it’s also in a certain way their fault’ (CSO representative, personal communication, July 25, 2007). It is also interesting to note that while some complain of an excess by certain participants, it is reported that often

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industry representatives will not all take the floor at all because once it gets to the EUEB meeting they are simply interested in who is going to vote in which direction (CSO representative, personal communication, July 24, 2007). Finally, equal opportunities to influence the agenda are assured. Point 13 of the annex to Commission Decision 2000/730/EC outlining EUEB rules of procedure states that: Meetings of the EUEB shall be convened by the Chair, who shall, with the assistance of the Vice-Chairs and of the secretariat, be responsible for preparing and circulating the invitations, agendas and supporting papers, as well as drafting and circulating the corresponding minutes. One CSO representative attests to the relative ease of inserting items onto the EUEB agenda. The Chairperson apparently often notes in the introduction to agenda points whether they were proposed by a particular MS or CSO. In short, the impression is that ‘if you ask and you’ve got good reasons and you explain why you would like a point on the agenda; it’s possible to put it on’ (personal communication, July 24, 2007). Inserting items under ‘any other business’ is also described as particularly easy. Although the issue may not be discussed as a main agenda point and may be subject to limited time or attendance at the end of a meeting, it may be broached under Any Other Business (AOB) with a view to it being inserted on the main agenda at a subsequent meeting.

Effectiveness Based on the goal-attainment approach, the EUEB’s effectiveness is firstly contingent upon the presence of a common perception amongst participants as to what its goal, aims and functions actually are. There is, however, little shared understanding between participants of the EUEB’s formal mandate, and CSO comments provide illustrative examples of this. One participant considers that the EUEB was primarily established to allow ‘confrontation’, ‘discussions’ and to ‘try and get to a consensus’ for voting on product group criteria (CSO representative, personal communication, July 24, 2007). For another, the EUEB was created to manage the eco label system ‘at the highest level’, to set priorities, decide on new product groups and criteria, revise others, discuss substances to be included and those that should be removed and discuss all aspects related to marketing and coordination between national and European labels (CSO representative, personal communication, July 25, 2007). A third notes that one of the primary objectives of the EUEB is to raise awareness of the Eco-Label amongst the public and to ensure sufficient flower-labelled products on the market thereby enhancing consumer choice (CSO representative, personal communication, July 24, 2007). Although hardly conflicting, the variety of perceived aims gives some indication of the ambiguity of the EUEB’s formal goal.

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An absence of agreement on the Eco-Label’s overall goal and ambition represents another unresolved and recurrent problem re-emerging as a key element in revisions of the Regulation. Two schools of thought are clear. Some want the label to be an élite instrument used by 2 percent of businesses and an indicator of environmental excellence. The Eco-Label should thus have strict criteria that have no, or only a few, applications and little market penetration. Others envisage the label as a well-known instrument that a large share of the market uses. Here Eco-Label criteria would be less strict and would have more ease of application and more likelihood of market penetration. The loss of the EUEB’s Policy Management Group, a ‘relevant’ forum capable of providing the Eco-Label scheme with strategic direction is significant (CSO representative, personal communication, July 24, 2007). In its absence there is no longer a venue to broach strategic issues; when they are raised in the EUEB the Commission and MSs are often reluctant to discuss them (CSO representative, personal communication, July 24, 2007). In January 2007, an EEB/BEUC joint letter to the MSs requested the group’s reinstatement on the basis that without it the scheme lacks ‘clear vision’: We are uneasy about the inefficient running of the Ad-Hoc Working Group meetings, and a general decision-making process that appears increasingly divorced from wider environmental policy. We believe this is having an overall negative impact on the running of the scheme and represents a serious threat to its credibility … To help correct this situation, we would like to suggest that the Policy Management Group be reestablished, to re-introduce a forum where policy issues can be discussed … Re-establishing the Policy Management Group would assist the Commission team and would provide the crucial policy guidance needed to result in quality criteria. (letter to EUEB coordinator in Unit G2, 31/01/07) At a meeting on April 23rd 2007, the Commission and the MSs recognised the significance and relevance of the PMG’s ability to develop a strategic view and links between the Eco-Label and other relevant directives such as REACH and admitted that a similar forum should be re-established in the future. In accordance with the system-resource approach, the effectiveness of a commission advisory forum like the EUEB is also contingent on the presence of certain design features. The first of these is that the structure should have clarity as to its formal goals and purpose, nature and scope of its task or mandate, expected output and the procedural mechanisms (such as rules, policies, and guidelines). These elements should be clearly outlined in formal documentation. Before discussing clarity of goals, it is first noteworthy that the Eco-Label structure is highly complex. According to a Commission official, it is the most elaborate and convoluted of all those forums active within DG Environment (personal communication, November 12, 2007). There are in fact at least eight different elements to the EUEB framework:

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1 Ad-Hoc Product Working Groups on, for example, footwear or hard and soft floor coverings, which are largely attended by experts, and the purpose of which is to discuss the technical aspects of product group criteria. 2 The EUEB Preparatory meetings13 prepare the main work of the EUEB once the AHWGs have taken place. 3 The EUEB Competent Body meeting is attended by the CBs in the run up to an EUEB meeting 4 Co-operation and Co-ordination Management Group meets to coordinate Product Group development, mutual recognition, marketing and consumer information and also assures homogenisation of criteria across MSs. 5 Marketing Management Group14 meets to discuss marketing initiatives, publicity and communications etc. 6 The EUEBs comprising the CBs and the CF go through all the updates to the product groups and are attended by CBs and Stakeholders. 7 The Regulatory Committee votes on product group criteria. 8 EUEB ‘Presidentials’ are informal meetings of the EUEB organised by the MS holding presidency of the Council. These meetings tend to be more political and attended by national ministry personnel. This understanding of the institutional framework provides a basis to understand the goals of the overall Eco-Label scheme and the structural framework in which this sits. These goals are themselves complex and at times overlapping. At the primary level, the formal mission of the broader EU EcoLabelling Scheme, is to promote recognition of the Flower label15 as an award, which is designed to encourage business to market greener products. The official statutes16 of the Scheme specify two formal objectives: product promotion and the provision of guidance and information to consumers. It particularly promotes ‘products which have the potential to reduce negative environmental impacts, as compared with the other products in the same product group, thus contributing to the efficient use of resources and a high level of environmental protection’. At a second level, the specific role of the EUEB is established as twofold; to promote the design, production, marketing and use of consumer products and services that have a reduced environmental impact during their entire lifecycle, and to provide consumers with better information on the environmental quality of products and services, to help them make informed environmental choices in their purchases. The Board’s aims are also multiple. First, it sets out to achieve significant environmental improvements: by developing, publishing and promoting criteria that push the market forward, helping to minimise the environmental impacts of a wide range of products and services over their whole life cycle. Second, it aims to guarantee the credibility of the award and seeks to do this via efficient administration and the establishment of criteria for individual product groups (paper products, textiles, detergents, paints and appliances). These criteria should be environmentally strong, based on good science, including the precautionary principle, and take account of

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consumer health. They should also guarantee good product performance, be developed transparently and cost-effectively, with the participation of stakeholders as well as being reasonably attainable and up to date. Criteria should also encourage manufacturers, retailers and service providers to apply for the award, to publicise their own participation in the scheme, and to promote the availability of eco-labelled products and information about them. Finally, the product group criteria should encourage purchasers to buy products and services with the award, help improve consumer awareness and behavior regarding the environmentally optimal use of products and services and provide guidance to consumers. The EUEB is also responsible for requesting that the Commission initiate the procedure for and contribute to the establishment of product group criteria and the requirements for their assessment and verification. The EUEB should also be consulted by the Commission on the Community Eco-Label working plan and it must cooperate with the MSs and the Commission in promoting the use of the Community Eco-Label.17 At a third level, the role of the EUEB Consultation Forum ‘is to ensure a balanced participation of all the relevant interested parties concerned with the different product groups being dealt with by the EUEB’. Consultation Forum members are supposed to participate in all EUEB activities; particularly those outlined above (Article 2 of the CF’s rules of procedure contained in CD 2000/ 731/EC). In short, the goals of each level of the EUEB structure are multiple, complex and overlapping and it is plausible that a rationalisation of these would go some way towards strengthening the effectiveness of the whole process. A further system design feature affecting the effectiveness of ECAFs is the extent to which they ensure regular opportunities for interaction via frequent formal meetings. According to CONECCS, the EUEB meets approximately six times per year. Nevertheless, participants note that there are only three meetings of the actual EUEB per year in Brussels. These meetings of the Board itself take place over a period of one, two or three days depending on the format. It is noteworthy that the number of meetings has decreased from four meetings to three since 2005; the rationale being that ‘often there was nothing to decide upon. I mean we could have a debate but no new criteria could be approved because of problems in the[ir] development’ (CSO representative, personal communication, July 25, 2007). The logistics involved in organising two-day meetings are significant when you also take into consideration all of the subcommittees that occur around the main meeting. According to a Commission official ‘I’m in charge now and I thought it was excessive … I thought four was a bit of a waste of resources’. The only downside of the reduction is that now ‘meetings are maybe a bit longer’ (personal communication, November 12, 2007). In addition to the actual Board meetings, there are three meetings each of the EUEB Preparatory framework, the EUEB Competent Body, the Regulatory Committee, the Co-operation and Co-ordination Management Group and the Marketing Management Group. Two EUEB Presidential meetings occur in line with the rotation of the Council Presidency. The Ad-Hoc Product Working

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Figure 3.1 Number of meeting days per year 2001–08

Groups meet most regularly: at least 17 occurred in 2008, eight occurred in 2007 (according to Eco-Label website on Europa) and 14 in 2006. If the total number of meetings that take place within the Eco-Label framework are calculated in numbers of days, there has been a clear and significant reduction since 2001: For some CSO representatives, the average density or length of EUEB meetings is problematic because although they tend to occur over more than one day, sometimes the time allocated is insufficient (CSO representative, personal communication, July 25, 2007). Large participant numbers mean that a substantial amount of time may be taken just for the first criteria on the agenda and the ‘huge tour de table’ (CSO representative, personal communication, July 25, 2007) and subsequent debate this necessitates. A tour de table is never less than half an hour and can last up to three hours so that meetings have been described as ‘laborious’(CSO representative, personal communication, July 24, 2007). As the example agenda below demonstrates, the first day may necessitate four round-tables to discuss draft criteria. EUEB participants do not, however, appear to compensate for this tight scheduling by limiting their interventions to cover main points quickly and precisely and some complain of longwinded and detailed declarations. Draft Agenda Meeting of the European Union Eco-Labelling Board (EUEB) 12 and 13 December 2007 Centre Borschette, 36 rue Froissart, 1040 Brussels Room 1C 10H00

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1st Day (1) Welcome and Adoption of the Agenda (2) Introduction by Chair (3) Adoption of the Minutes of the September 2007 EUEB Meeting (4) Discussions on draft criteria for Bed Mattresses (5) Discussions on draft criteria for Wooden Furniture (6) Discussions on draft criteria for Textiles (7) Discussions on draft criteria for Televisions (8) Up-date on revision of Tourist Accommodation Services criteria —— 2nd Day 10H00 (9) Discussions on revision of Floor coverings (10) Discussions on draft criteria for Paints and Varnishes (11) All Purpose Cleaners criteria – issues about water content in trigger products (12) Update on the Revision of the European Eco-Label (13) Update on Product Group Planning (14) Update on new studies launched by DG Environment (a) Pilot project linking ongoing work on the Eco-Design of Energy Using Products with the development of Eco-Label criteria. (b) EU Eco-Label – the Carbon Footprint Measurement Toolkit (15) Any Other Business (a) Update on the GPP criteria development toolkit The programming of all EUEB meeting events to take place over the space of one working week; beginning with the CB meeting and ending with the RC or an AHWG meeting, compounds the drawn out nature of the process. Some participants may in fact be in Brussels attending one meeting or another for four or five consecutive days. When travelling time is also factored in, the time consumed by the EUEB is significant and it is difficult to foresee its extension any time soon. One week in April 2007 23 April Competent Body Meeting and Policy Management Group BU5 24 April Cooperation and Coordination Management Group & Marketing Management Group 25 April EUEB 26 April EUEB and Regulatory Committee 27 April Ad-Hoc Working Group – Paints and Varnishes One week in December 2007 10 December Co-operation and Co-ordination Management Group 11 December Marketing Management Group and Competent Body Forum

76 12 13 14

EU Eco-Labelling Board Consultation Forum December EUEB Meeting December EUEB December Ad-Hoc Working Group – Revision of Paints & Varnishes

Absenteeism rates can provide a good indication of the EUEB’s effectiveness. The low attendance level of CBs and CSOs reported at meetings certainly impedes the structure’s functioning. Of the CF members attending EUEB meetings for example, ETUC apparently never attends while BUSINESSEUROPE also chooses not to participate. This can generate gaps in the representation of interested constituencies and constrain progress on the development of product criteria. The AHWGs suffer a particular non-attendance problem, which generates at least two negative effects. First, low participation and differing representation at various stages in the process can lead to ‘a lot of duplication in the discussion’ (EC 2007b). It is important that both CB representatives and MS experts are present in AHWG to ensure that considered national positions and good-quality expertise are brought to the discussion, and then fed upwards into the EUEB. A low level of ambition may otherwise result. Attendance rates are higher at the EUEB Presidential rather than the Board meetings; the informality and location of the former (i.e. in the country holding the EU Presidency) are plausible explanations for better attendance. Indeed, these EUEB presidency meetings have been described as ‘more or less [a] sort of tourism with camouflage’ (CSO representative, personal communication, July 25, 2007). Some CSOs nevertheless rate their participation very highly. The EEB for example considers Environmental Non-Governmental Organization (ENGO) participation in the EUEB process ‘intensive in 80 percent of the product categories evaluated’. Indeed, it notes that a minimum of one and a maximum of three experts or EEB members usually follow the work done in AHWGs while there were almost always EEB coordinators attending EUEB meetings (EEB 2004: 24). CSOs sometimes take a utilitarian approach to attendance showing up for meetings based on the perceived appeal and interest generated by the agenda. Where it appears that the Presidency has organised a meeting out of obligation rather than because there is something meaningful to discuss, attendance is usually lower. The effectiveness of ECAFs is also contingent on a high level of administrative support from the Commission secretariat including the prior availability of materials. The EUEB secretariat is located within Unit D3 and it is responsible for preparing and circulating invitations, agendas, supporting papers, drafting and circulating minutes. Empirical findings highlight a problem regarding the timeliness with which the documentation is released by the DG Environment unit responsible for the EUEB, particularly ahead of the AHWG meetings. The CBs, assisted by external consultants, draft background papers for WG meetings, and these usually form the informational basis for the development of product criteria. Papers may, however, only

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arrive for examination by EUEB members very close to the actual meeting date; sometimes only two weeks, others say seven to 10 days prior. This tardiness is partially compensated for by the flexibility with which comments and reactions to pre-meeting documentation can be tabled either at the meeting or afterwards. They do not need to be systematically submitted in advance of the meeting. This late availability of documentation presents a problem to most of the Community-level CSOs participating in the EUEB, such as the EEB, BEUC, EuroCommerce and BUSINESSEUROPE. These groups seek reactions and comments to the EUEB agenda and associated documentation from their national affiliate members (associations and companies) and/or their individual experts located in these by email prior to meetings. The various comments are filtered and amalgamated by that CSO for presentation as a European level position at the meeting. Late reception of documentation limits the time available to affiliates to make their comments; especially when documentation also only arrives in English, which creates its own challenges and time constraints (CSO representative, personal communication, July 24, 2007). If their membership cannot be adequately consulted, it poses problems for the EUEB’s representativity of interested constituencies. This is not simply an issue for CF members; CB members also need time to circulate documentation to their national ministries so that they may attend meetings with finalised formal MS positions. For some CF members, documentation should arrive at least one month ahead to ensure adequate time. Even the informally established deadline of two-weeks prior to meetings for the circulation of background documentation is ‘not always respected’. Some are said to arrive just a week in advance of the AHWG or in some cases never (CSO representative, personal communication, July 24, 2007). At the other end of the scale, another CSO criticises the amount of background documentation that arrives in the electronic inbox in advance of meetings. Often there is one position paper per participant per product criteria on the agenda necessitating an examination of the ‘old’ product group criteria the proposed criteria, and all the positions on these. According to the perception-based approach, the effectiveness of the EUEB is contingent on DG Environment’s perceived level of commitment to the consultation process, participants’ perceptions that the Board is worthwhile and useful and the presence of a working climate and atmosphere that is positive and conducive to its smooth functioning. According to the EUEB website on Europa, ‘The Commission has a role as a steward of the scheme, in operating the EUEB secretariat.’ In providing these services, the Commission acts as a sponsor, facilitator, convenor and secretary to the EUEB. There are five Commission officials working for the European Eco-Label, all of which are involved in meeting preparation; the head of unit also attends. Although the MS holding the EU Presidency chairs the meeting, a Commission official sits alongside throughout meetings. This Commission official and the EUEB Chair discuss the agenda in advance; identify the major issues and how the meeting can be best run. On many

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agenda points, the Commission has some involvement; to answer questions, provide a legal opinion, an official position or information on the future direction of policy. The Commission’s role is particularly useful where an agenda point sparks controversy and disagreement. It may be that the Commission can solve the problem by saying, ‘well actually, according to the Regulation this course of action is not possible’, thus keeping a meeting on track. The empirical findings attest that DG Environment operates the EUEB with good faith and intentions rendering it a structure that people generally feel they can work with. One interviewee notes that ‘the collaboration’ is definitely ‘in place’ the problem is more that the discussions are too ‘political’ (personal communication, July 24, 2007). While DG Environment’s obvious own agenda is noted, it is perceived as reasonably transparent. CSOs tend to understand DG Environment’s natural interest in assuring the approval of as many product group criteria as possible. In short, the more criteria developed, the more market sectors covered, the more likely it is for consumer and producer awareness of the Eco-Label to increase, and the more likely it is for the Eco-Label to grow and be renowned. DG Environment is perceived to be ‘willing to sacrifice every now and then the coherency or consistency of the criteria, or the fact that criteria might not be really attractive or useful for manufacturers’ (CSO representative, personal communication, July 25, 2007) in order to meet its own aims. In sum, under pressure as they are to make the Eco-Label work, DG Environment may be willing to release criteria even when they know they might be criticised. In this way they can opt to deal with problems during the next revision. One Commission official’s overall view of the EUEB is that it has ‘been very successful’. This is despite the problematic absence of voting, which renders it a ‘group of interested parties with no actual power’, and the fact that the Eco-Label framework in which it sits has some weaknesses (personal communication, November 12, 2007). DG Environment has shown a willingness to adopt a ‘new approach’ to the EUEB by coming up with proposals to modify the framework of the whole EU Eco-Label to improve its effectiveness and efficiency. These include a proposal to establish an EU agency to manage the scheme as a means to give the process more autonomy, to inject speed and remove the cumbersome bureaucracy and complexity it suffers. It has also proposed a reform of the EUEB voting rights so that the stakeholders vote. This would mean the closure of the Regulation Committee and the creation of a technical stakeholder body to make decisions on criteria. In addition, an increase in the quantity of product groups to five or more per year as opposed to the one or two per year currently achieved is recommended. Furthermore, it has proposed the establishment of less stringent criteria to achieve wider application of the Flower label, concrete objectives and targets against which the performance of the scheme can be measured and improvements in marketing. DG Environment has often been considered one of the most open and available of the Commission services and in general believes that it is still

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improving. It is no longer however necessarily the ‘leader’ that it once was in the effective consultation and involvement of stakeholders in policy decisions. Instead, other DGs today look a lot less like the ‘laggards’ they were, and have caught up with DG Environment. Nevertheless, in terms of the level of opacity with which other services operate, this Commission service arguably continues to be a beacon. Some EUEB members are critical of DG Environment’s open attitude to consultation; particularly its increasing promotion of online consultations, which are supposedly open to all and yet are only in English or refer to documentation that is in English. In such circumstances, the returns you get are only representative of those who have sufficient time to read and react to the consultation. ‘Each citizen who has the time or the will could sit in front of the computer and reply … [but] who does it represent?’ Moreover, who receives the consultation returns in the Commission, are they all considered and which opinions are considered more than others? (CSO representative, personal communication, July 25, 2007). As regards the EUEB’s utility, CSOs advance a number of motivations for continuing to attend meetings. Continued participation often rests on an understanding that the scheme promotes excellence and best practice. Because an industry or commerce CSO’s affiliate members may aspire to attaining the Eco-Label for their brands, the European-level group has a responsibility to learn on their behalf the benchmarks which must be attained to meet these criteria. Moreover, the growing consumer interest in environmentally aware products is unmistakeable; CSOs thus have a responsibility to help inform and raise public and consumer awareness of the Eco-Label (particularly to help clarify any confusion between national and European-level labels). Attending the EUEB also helps CSOs to track changes in consumer demand. Participation is equally based on a desire to support voluntary schemes like the Eco-Label not least because such mechanisms usually become obligatory in the long run. The EUEB is thus an indicator of the future direction of European legislation. Being an insider to the EUEB process brings its own pragmatic benefits. It ensures that the Commission hears a balance of CSO voices; helping to counterbalance other views, which may otherwise dominate because of their economic weight for example (personal communication, July 24, 2007). It affords opportunities to shape the system and fix the priorities of the Eco-Label in line with those of the CSO and its affiliate members. Participation in the process could also help a CSO steer the process to their advantage via for example their proposal of product groups. Recognition and automatic access to other platforms are also significant motivating factors for CSO participation: ‘The strategic thing [about being a member of EUEB] could be that since you are a permanent part of the forum, they recognise you as a valuable stakeholder. And so you’re automatically involved in other debates [and] consultations, you’re automatically receiving invitations without fighting for th[em]’ (personal communication, July 25, 2007). Ultimately, the EUEB helps CSOs gain a better understanding of the major issues at play within the sector, DG Environment’s policy processes and the views and

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positions of other CSOs. The EUEB is also a means to exchange information with DG Environment; to demonstrate to this DG an organisation’s interest in the Eco-Label and to network. Whatever the primary motivations, the EUEB is hardly considered a platform to influence the Commission’s task of policy proposal and formulation. Instead, the CSOs pursue multiple lobbying strategies. The CF and EUEB are tools amongst many others utilised to influence DG Environment. The most valuable lobbying avenue remains for most CSOs the national level, either via the European-level umbrella organisation or the appropriate affiliate member situated in the MS. As to whether continued participation is worthwhile, the EEB has several times discussed withdrawal from the scheme (EEB 2004: 10). Their frustration stems not only from the level of ambition, which is not felt to be insufficiently stringent, the CSO also laments the absence of a global vision driving the EUEB forward in a particular direction. The EEB nevertheless continues to attend for several reasons. First, the Commission Decision establishing the EUEB made the EEB a formal part of the Eco-Label, if the CSO were to quit, the legality of the whole system would be undermined without the involvement of any environmental organisations; a formal requirement of the Eco-Label Decision (creating the Consultation Forum) (EEB 2004: 10). Second, the EEB suspects that its involvement in the scheme results in criteria with a higher level of ambition than if it was absent (EEB 2004: 30). In short the EEB feels its proactivity means that it can make a difference, however small to European environmental policy via the EUEB if only via the EcoLabel’s link to other elements of environmental policy such as sustainable development. In sum, so far it has ‘lacked the courage to take the responsibility of stepping out of the scheme (EEB 2004: 10). Other CSOs have not gone so far as to consider withdrawal accepting that even if the EUEB were to be abolished, some other structure would need to be created in its place to manage the Eco-Label. A further significant factor to note under perceptions of worth is the EUEB’s direct outputs, since these constitute one of the primary aims of the forum, it is useful to examine the number of product group criteria and licenses that have been approved and issued as well as the uptake of the product group in terms of the numbers applying for the European Eco-Label. As the table indicates, the EUEB has clearly progressed in achieving its goal of increasing product groups, flower licenses and augmenting the number of products on the market carrying the label. This forum’s output could however have been even greater had the original product group’s criteria not been so complicated; a cause of major delays in the early days of the scheme. The EUEB delivers other outputs, such as shifts towards greener production processes, product composition or design. The promotion of these environmental credentials can also help increase their market share. Other outputs are less tangible and difficult to calculate such as the general reduction in the environmental impact of products that occurs as a result of carrying the label or the impact of creating product benchmarks that exert pressure on

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Table 3.3 Number of product group criteria and licenses approved by the EUEB 1999

2003

2008

Product Groups

15

21 (+ 4 under development)

Number of Flower licenses

55 (Held by 40 manufacturers and 2 importers) 240

158

24 (of which 5 are under revision) + 3 under development 250+

Number of products carrying label

‘several hundred’

Source: EEB 2004: 10 and Europa Eco-Label website.

non-licensed manufacturers to evolve their products in a way which mimics some of the Eco-Label criteria. Even where there is no direct application for the label, the benchmark set by those that do can help the learning process. As the Commission itself notes ‘ … if we spend a year or two discussing a product group, the industry are very much involved and it makes them think about the environmental performance of their industry. So even if we never even agree the criteria, we still had some benefit at setting sort of benchmarks for good environmental performance’ (personal communication, September 20, 2007). The case of washing machines, is an example of a product where the Eco-Label has resulted in the creation of a benchmark; although it is difficult to establish how much of this is due to the Eco-Label and how much it is also thanks to the EU energy label’ (EEB 2004: 11). On a final point, a positive, mutually respectful and constructive working environment and a general will to seek compromise generally prevails within the EUEB structure. There is a shared approach to the value of bringing together opposing views in such a forum as a means to resolve conflict, even if the achievement of compromise is problematic (CSO representative, July 25, 2007). Indeed, the ‘confrontation of views’ is ‘obligatory’; without them there would be no need for such a forum (personal communication, July 24, 2007).

Industry overload, MS dominance and structural complexity? The EUEB between legitimacy and effectiveness The purpose of this concluding section is to assess how the findings from the first case study bear out the claim that ECAFs as supranational participatory structures provide a location where legitimacy and effectiveness can be simultaneously realised. Given the evidence presented, it would seem most appropriate to conclude that the capacity of the CF and the EUEB to guarantee both input and output legitimacy is compromised. With regard first to input legitimacy, the balance of the CF’s and EUEB’s composition, and the question of whether this is streamlined, the flexibility

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allowed for by the structure’s statutes makes an assessment difficult. The CF’s participant numbers can for example vary from three18 to 1819 thus limiting numbers (particularly in relation to the other cases). However, the CF meets within the broader EUEB and an assessment of whether this larger structure is streamlined in terms of participant numbers is problematic given that membership is not fixed and that the flexibility of the statutes allows numbers to fluctuate from 70 to over 130. If the estimated maximum number of participants were to attend any given EUEB meeting and this proceeded using the tour de table format, over two hours would be required for each to only speak for just one minute! All CF members clearly hold a stake in the EUEB’s role and activities. More significant is that various other stakeholders can be easily identified as affected by and interested in the EUEB’s content. Although the EUEB for example regularly discusses issues specifically related to them, no health-related CSOs participate as part of the CF. In fact, only four constituency families are truly accounted for within the CF; consumers, environmental organisations, industry and commerce; even these are not wholly represented when at least two CF members choose to never or hardly ever, attend meetings. The issue of whether the participating CSOs actually represent the interest constituencies that they are intended to is of course a further significant question, and one that is discussed in this volume’s final chapter. While the CF is only composed of CSOs with a European-wide constituency, the same cannot be said of the EUEB; some of its represented constituencies are in fact located beyond Europe via the inclusion of experts emanating from multinational companies. More significantly, the EUEB is characterised by the under-participation of the EU’s 2004 and 2007 entrants as well as of Luxembourg. Although there is no issue of a preponderance of interests in the CF, the EUEB does suffer from industry overload and a dominance of MS interests. The prevalence of the national interest arises again under the principle of putative quality whereby CSOs perceive that DG Environment directs more attention towards satisfying the demands of the CBs given their voting power over product criteria. Because DG Environment funds some NGO-type CSOs this also generates perceptions amongst industry and commerce groups that DG Environment is more responsive to those groups it allocates funding. Deliberation within the EUEB is constrained. First, the forum’s capacity for debate is hampered by the two usual meeting formats; Q&A sessions and tours de table. In both, high participant numbers also limit the time available for debate and the amount of repetition and duplication of previously elaborated points that occurs presents a further obstacle. Second, the EUEB comprises disparate levels of expertise; whereas full-time Brussels-based CSO representatives are often generalists, the CBs have a natural national focus. Specific knowledge tends to be provided by technical experts where they are invited. This expertise is more likely to be present at AHWG level rather than in the EUEB.

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DG Environment is generally reasonably open and transparent, particularly when compared against other DGs. Certain aspects of the EUEB process do however lack transparency such as ISCs, minutes and voting results. There is also a lack of public awareness of the structure. The major transparency issue is however, the widely perceived absence of feedback on how DG Environment takes on board CSO concerns and views that arise in EUEB meetings. Although there is a general level of equality in terms of opportunities to attend meetings, speak at them and influence their agendas, there is some evidence of discussion monopolisation by particular interests. The extent of the EUEB’s problem-solving capacity is also questionable and undermines its ability to generate output legitimacy. This problemsolving capability is hampered first by the complexity of the EUEB’s structure and goals and the lack of a shared vision of the latter amongst CSO members. The re-instigation of an overarching structure like the PMG would inject the process with strategic direction and help clarify these goals. The gradual reduction in meeting days and the reportedly insufficient duration of meetings when they do occur is also problematic largely because of high participant numbers and the regular use of the tour de table format, which is unsuitable for busy forums. Given that all the meetings which occur under the EUEB banner already, take place over the length of a working week, however, it is difficult to foresee any extension of meeting time as a contributory measure to enhancing the Board’s effectiveness. The EUEB suffers a low rate of attendance; some members never attend while others make rare appearances. Absenteeism is particularly prevalent in the AHWG and can consequently lead to duplication and repetition within the EUEB of questions and issues already resolved at the lower level unknown to those actors who failed to attend. The poor administrative support from DG Environment such as the late circulation of documentation prior to meetings is an obvious impediment to the Board’s smooth functioning. On the upside, the Board possesses a positive and constructive working atmosphere. There is also a good level of perceived commitment to the EUEB process on the part of DG Environment and the participating CSOs perceive the Board to be useful for various reasons, including its ability to promote environmental products and raise public awareness of the Flower label. Only one CSO has seriously considered withdrawal from the process, based on its uncertain worth, lack of ambition and strategic direction. This forum can certainly boast concrete outputs in terms of the increasing numbers of product groups and Flower licenses, as well as the number of products on the market, which carry the label.

4

The European Health Policy Forum

The second case study, the European Union Health Policy Forum (EUHPF), was established in conjunction with the European Community Health Strategy of May 2000 as an information and consultation mechanism to clarify the Strategy’s aims, their means of attainment and the way in which the EU responds to the public’s health needs. Using the same gauge as in the previous chapter to assess legitimacy on the input side and effectiveness on the output side, again the primary aim here is to ascertain the EUHPF’s capability in terms of simultaneously securing both elements. It begins by examining the Forum’s balanced composition and deliberative capacity with regard to inputs before scrutinising its effectiveness. In the same way that the CF and EUEB struggled, it is posited that several of the EUHPF’s composition, functioning and design features jeopardise its capacity to deliver on the input and output sides.

Balanced Composition Participation in DG SANCO’s EU Health Policy Forum is by invitation only and there is a fixed set of member organisations. Since 2006 the number of permanent members is 49.1 Membership of the Health Policy Forum (as of 21 December 2006): 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12)

Aids Action Europe Association of European Regions Association of the European Self-Medication Industry European Older People's Platform Association Internationale de la Mutualité Associations of Schools of Public Health in the EU Region Bureau Européen des Unions de Consommateurs Standing Committee of European Doctors European Genetic Alliances’ Network European Aids Treatment Group European Committee for Homeopathy The Association of European Cancer Leagues

AAE AER AESGP AGE AIM ASPHER BEUC CPME EGAN EATG ECH ECL

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13) European Cancer Patient Coalition ECPC 14) European Disability Forum EDF 15) European Federation of Allergy and Airways Diseases Patients' Associations EFA 16) European Federation of Nurses Associations EFN 17) European Federation of Pharmaceutical Industries and Associations EFPIA 18) European Generic Medicines Association EGA 19) European Health Management Association EHMA 20) European Heart Network EHN 21) European Health Telematics Association EHTEL 22) European Midwives Association EMA 23) European Network for Smoking Prevention ENSP 24) European Patients’ Forum EPF 25) European Public Health Alliance EPHA 26) European Region of the World Confederation for Physical Therapy ER-WCPT 27) European Federation of Public Service Unions EPSU 28) European Social Insurance Platform ESIP 29) European Society for Mental Health & Deafness ESMHD 30) EUCOMED EUCOMED 31) EU Dental Liaison Committee EUDLC 32) European Public Health Association EUPHA 33) Advocacy for the Prevention of Alcohol Related Harm in Europe EUROCARE 34) EuroHealthNet EUROHEALTHNET 35) The European Breast Cancer Coalition EUROPA DONNA 36) European Organization for Rare Diseases EURORDIS 37) Global Alliance of Mental Illness Advocacy Networks GAMIANEUROPE 38) Groupement International de la Répartition Pharmaceutique GIRP 39) Health Action International HAI 40) European Hospital and Healthcare Federation HOPE 41) International Alliance of Patients' Organizations IAPO 42) International Planned Parenthood Federation European Network IPPF EN 43) International Union for Health Promotion and Education IUHPE 44) Mental Health Europe MHE 45) Pharmaceutical Group of the European Union PGEU 46) Red Cross / EU Office RC/EU 47) Union Européenne de l'Hospitalisation Privée UEHP 48) European Union of Medical Specialists UEMS 49) Youth Forum Jeunesse

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In addition to these 49 permanent member organisations, approximately fifteen extra Forum seats are available for organisations possessing particular expertise in the agenda points up for discussion at any given meeting. In addition, a number of other MS, candidate country and international organisation representatives are invited to meetings. Approximately 12 Commission officials from various DGs and Services also attend. In total therefore, an average EUHPF meeting will accommodate approximately 60–65 individuals. As to whether this respects the principle of minimum threshold, for some Civil Society Organization (CSO) representatives this total is ‘too large’. For one, despite participating in several meetings, ‘finally we gave up’ because participant numbers left ‘very little time to talk’ (CSO representative, personal communication, September 19, 2007). On its creation in 2001, the EUHPF scheduled a review of its membership criteria, to take place every three years. The first revision, only took place in 2006, based on the outcome of a peer review with 70 stakeholders invited to reflect on methods of improvement. In 2007, DG SANCO organised another series of EUHPF meetings to discuss improvements to the consultation mechanism and the future of its stakeholder consultation processes. DG SANCO again recognised the need for ‘regular revision of membership’ in May 2008 promising that the next membership revision would be launched by the end of 2009. Members will have the opportunity to reapply, and all members will be approved by Commission decision. The fact that Youth Forum Jeunesse (YFJ) joined the EUHPF in 2005 is illustrative of DG SANCO’s openness to new members. The EUHPF is complimented by an Open Forum, which enjoys a wider membership and serves as a platform for general discussion with a broader range of CSOs within the European health community. The meeting takes the form of an annual conference and ‘exhibition event’. In principle, any interested body or organisation is able to participate. There is, however, a maximum ceiling of 400 participants. To ensure the participation of main stakeholders and states, each EUHPF member CSO is invited to the Open Forum. This ‘formal’ CSO representative may also be accompanied by a number of representatives from their affiliate members as long as they represent current MSs and a candidate state. With up to 400 people attending, these meetings tend to be ‘jam packed’ (CSO representative, personal communication, September 17, 2007). DG SANCO has developed membership guidelines to ensure that a reasonable cross-section of interests is represented. The EUHPF therefore seeks to ensure a balanced composition and even cover of four constituencies deemed by DG SANCO to be both interested in and affected by its role and activities: First, public health NGOs and patients’ organisations. The NGO members are all supposed to cover a broad range of issues and have members in all or most of the EU MSs. Second, organisations representing health professionals and trade unions. Third, health service and health insurance providers and fourth, industry with a particular health interest or ‘economic operators with a commitment to health improvement’; such as the pharmaceuticals industry. According to one CSO representative, the forum is ‘indeed … quite

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balanced in terms of nature of organisations’ and ‘also the points of view’ (CSO representative, personal communication, September 18, 2007). As to whether any groups of interest have been omitted, one CSO notes that ‘Of course there will always be associations saying, “Yeah but we are supposed to be there as well” ’ (CSO representative, personal communication, September 17, 2007). In fact, it was to deal with, and specifically serve as a basis on which to refuse some of the increasing requests for membership of the Health Policy Forum that a EUHPF working group developed a set of membership criteria. First, organisations should ensure broad and horizontal coverage of issues, which are of key relevance to developing the Community’s health agenda. Second, organisations should be recognised as representative and thus qualified to speak for their sector. Third, there should be a balance between different groups and within groups of stakeholders (Slob and Smakman 2007: 89). A fourth selection criterion was added later;2 this is transparency. The emphasis is, however, firmly on the transparency of participating CSOs rather than Commission services. As part of the transparency criterion, for example, CSOs are obliged to produce ‘an annual report on activities’ (CSO representative, personal communication, September 17, 2007). The development of such member selection criteria was not universally welcomed. One CSO expressed concern that the WG entered into too greater detail ‘more or less prescribing what the format of the organisation should look like’ (CSO representative, personal communication, September 17, 2007). Despite the development of participation rules, it is questionable whether the ‘consumers of health’ or the ‘medicine takers’ are amply represented on the EUHPF. Certainly, the fact that today patients are represented via appropriate umbrella organisations, rather than as previously by academics, constitutes progress. It is equally questionable whether doctors are amply represented, given that the CPME is the only umbrella organisation representing approximately 2 million individuals in this profession. The European Union of General Practitioners is, on the other hand, absent as a member in its own right; although it does have a de facto representation via its associated membership to CPME. Despite these questions many CSO representatives report a balanced membership and DG SANCO continues to confirm its commitment to fair membership, describing the Forum as both voluntary and open ‘to organisations prepared to commit to improving health’.3 Permanent members of the EUHPF must be European (umbrella) organizations representing stakeholders in the health sector, and most members are Brussels based (Slob and Smakman 2007: 89). Indeed, as the second EUHPF membership criteria establishes, CSOs should be recognized as representative and thus able to speak for their sector. To do this, their membership should also cover at least half or more than 14 MSs.4 There is general agreement amongst CSO representatives interviewed that most members have such a European-wide membership base. Although it was decided at the first EUHPF full session, in November 2001, that health and enlargement should be one of the Forum’s key

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priorities, it is significant that there has been no specific change to EUHPF membership since the 2004 and 2007 enlargements. The burden of ensuring the representation of interest constituencies located in these new MSs rests firmly on the CSOs with DG SANCO expecting that each group’s membership base will expand with every EU enlargement round. At the same time, each CSO’s requirements, in terms of time and resources to aggregate and filter the views of their affiliate membership base, also increases. It is in this way that DG SANCO ensures maximum interest representation on the Forum at minimum cost to itself. In the rare instances that participant lists are available for EUHPF meetings, these only include the names of CSO representatives; not their nationality. This makes an independent assessment of the participation of CSO representatives from new MSs difficult. Based on the comments of interviewees, it nonetheless seems clear that it is often mainly Brussels-based representatives that attend Forum meetings. In the same way that the EUEB’s membership included world-wide, rather than European-wide constituencies, some of the CSOs participating in the EUHPF, such as the International Alliance of Patients’ Organizations (IAPO) or the Red Cross/EU Office, also have an international presence. The latter has members in 185 countries for example. This global dimension to the Forum’s membership is not however considered an impediment, but rather an element of useful added value to the Forum’s work. The EUHPF clearly seeks to respect the adversarial principle and overcome the risk of any preponderance of interests via its third selection criterion, intended to ensure a balance between different groups and within groups of stakeholders. The table below indicates the Forum members according to the four groups of organisations that DG SANCO seeks to cover in an even and balanced way. At first sight, it would appear the EUHPF has a preponderance of member CSOs from the category of Non-Governmental Organizations in the public health field and patients’ organizations. In practice, the fourth category, particularly the pharmaceuticals industries, are actually the ones perceived to be ‘there in very large numbers’ and indeed overrepresented compared to patients’ groups for example (CSO representative, personal communication, September 19, 2007). DG SANCO established a working group to investigate stakeholder consultation and involvement in the EUHPF and to discuss how this could be improved. These discussions were specifically aimed at achieving increased NGO involvement and empowerment; to improve their representativity; to achieve a better balance between industry and NGOs as well as to reduce conflicts of interest between these; and to counter NGOs’ lack of financial resources. The group met a few times but one CSO that participated in some early meetings, ‘gave up’ in the end ‘because we had the feeling’ that again there was ‘an over-representation of the industry’ (CSO representative, personal communication, September 19, 2007). In addition, it was perceived that the discussion was essentially one ‘among experts’ and generated a strong ‘feeling’ that their ‘perspective was not going to be taken on board’ and that

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Table 4.1 Member organizations of the EUHPF according to grouping Non-governmental organizations in the public health field and patients’ organizations European Older People’s Platform

Organizations representing health professionals and trade unions

Health service providers and health insurance

Industry with a particular health interest

Standing Committee Association European of European Doctors Internationale de la Federation of Mutualité Pharmaceutical Industries & Associations Aids Action Europe European Committee European Health European Generic for Homeopathy Management Medicines Association Association Bureau Européen des European Federation European Social Groupement Unions de of Nurses Insurance Platform International de la Consommateurs Associations Répartition Pharmaceutique European Genetic European Health Council of European Pharmaceutical Alliances’ Network Telematics Dentists formerly Group of the Association the EU Dental European Union Liaison Committee (community pharmacists) European Aids European Midwives European Public Association of the Treatment Group Association Health Association European SelfMedication Industry The Association of European Region of EuroHealthNet EUCOMED European Cancer the World Leagues Confederation for Physical Therapy European Cancer European Federation European Hospital European Patient Coalition of Public Service and Healthcare Association of FullECPC Unions Federation Line Wholesalers European Disability Mental Health Europe International Forum EDF Planned Parenthood Federation European Network European Federation Union Européenne de International Union of Allergy and l'Hospitalisation for Health Airways Diseases Privée Promotion and Patients' Associations Education European Heart European Union of Association of Network Medical Specialists European Regions European Network European Hospital Associations of for Smoking and Healthcare Schools of Public Prevention ENSP Federation Health in the EU Region ***European Patients’ Forum EPF European Public Health Alliance

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Table 4.1 (continued) Non-governmental organizations in the public health field and patients’ organizations

Organizations representing health professionals and trade unions

Health service providers and health insurance

Industry with a particular health interest

European Society for Mental Health & Deafness Advocacy for the Prevention of Alcohol Related Harm in Europe The European Breast Cancer Coalition European Organization for Rare Diseases Global Alliance of Mental Illness Advocacy Networks Health Action International ***International Alliance of Patients’ Organizations Red Cross / EU Office Youth Forum Jeunesse

‘our voice didn’t weigh much’ (CSO representative, personal communication, September 19, 2007). One of the major reasons signalled for the perceived imbalance of interest representation on the EUHPF is a resource one; ‘users groups in particular may be under-resourced [in terms of personnel, time and financial means] compared with other stakeholders’ (CSO representative, personal communication, September 19, 2007). For AGE for example, health is an important part of its remit but not the only dossier it deals with; others include employment; non-discrimination; pensions; social exclusion and poverty; transport and accessibility; new technologies; life-long learning and citizenship. This perceived over-representation of industry is problematic for the Forum’s smooth function because industry actors are thought to have a ‘huge influence’ and a stronger voice vis-à-vis DG SANCO. The pharmaceuticals industry is also considered to have greater ‘opportunities to coordinate their responses and make sure that … they will block something if they don’t like it and promote their own vision of the debate’ (CSO representative, personal communication, September 19, 2007).

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Some CSOs are highly concerned and vociferous about the relationship between DG SANCO, some patient-orientated CSOs and the pharmaceutical industry. According to a Health Action International (HAI) Europe press release,5 ‘privileged access to European Union forums [such as the EUHPF] has been accorded to the European Patients’ Forum (EPF) despite its links to the pharmaceutical industry’ (Smith, 2005). This CSO’s circumstances are problematic because there is a perception that within DG SANCO, the EPF is seen as ‘the chief patients’ group that it consults. Indeed, the EPF is considered to have actually been ‘established with the backing of the Commission’ (HAI 2005: 2) in response to its calls for ‘one pan-European patient body to address and be consulted on issues concerning the interests of patients in the European healthcare debate’.6 The EPF ‘was immediately elevated into a position of presumed legitimacy as the representative of European patients’ (HAI 2005: 2), in spite of the ‘extremely limited and informal’ nature of the consultation that preceded the decision. Today, the EPF is heavily sponsored by the pharmaceuticals industry. For example, its operational programme for 2007 was funded by: AstraZeneca: Baxter Healthcare: GlaxoSmithKline: MSD: Novartis: Pfizer: PhRMA:

20,000 15,000 40,000 50,000 50,000 50,000 50,000

EUR; EUR; EUR; EUR; EUR; EUR; EUR.

Aside from funding, there is further evidence of conflicts of interest in relation to EPF. Amongst other examples, research conducted in 2005 by EPF staff about how the CSO could improve its profile and establish a more secure funding base, was funded by Baxter Healthcare – a large US-based pharmaceutical corporation – and by a grant from an EPF member, the European Coalition of Positive People (HAI 2005). Furthermore, some patients’ group conferences have been organised with funding from the European Federation of Pharmaceutical Industries and Associations (HAI 2005: 4). The IAPO is in a similar position vis-à-vis industry funding with 99 percent of its activities and running costs funded by the pharmaceuticals industry. Its website mentions so-called ‘Current Industry Partners’. Its 2008 Gold Industry Partners, funding the IAPO at $50,000 per year, are GE Healthcare; GlaxoSmithKline; The Medtronic Foundation; Novartis and The Pfizer Foundation. Its Silver Industry Partners give $25,000 per year and are AstraZeneca and Merck & Co., Inc. One CSO complains of the fundamental conflict of interest ‘inherent in receiving funds from companies seeking to sell products to the people that an organisation represents’ given that ‘The interests of patients and those of the industry are not the same’. It continues, ‘If the Commission … truly wish [es] to consult with patients … [it] must seek groups that are independent of pharmaceutical industry financing’ (HAI 2005: 7).

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Funding aside, the EPF as an organisation is described as ‘a model of secrecy and conflict of interest’ (HAI 2005: 2), which goes against the spirit of the European Transparency Initiative, which establishes transparency as ‘an essential prerequisite for the integrity and credibility of our political institutions’. It also goes against the recommendations of Siim Kallas, the Commissioner in charge of the Initiative, who described the aim of establishing transparency as being ‘to promote the long term success of sound, time-tested policies by acquiring general public support’.7 The sense of disillusionment and distance that the European public seems to feel towards EU institutions, has led to multiple efforts to rebuild public trust. Tackling the culture of secrecy that characterizes EU consultation and decision-making processes is one of these. According to HAI Europe, the example of the EPF demonstrates the need for DG SANCO to develop ‘clear and enforceable rules about disclosure’ of ‘who is really behind the activities’ and ‘who is funding non-governmental organisations and lobbyists’ (HAI 2005: 7). HAI questions the legitimacy of the EPF and advises DG SANCO that continuing to ‘automatically offer a place to the EPF at consultative forums sends out a message that there is no problem with secrecy and conflict of interest’. Instead, it would be ‘Far better … to consult with patients’ groups which are transparent and accountable to those that they represent and which are free of industry funding’ (HAI 2005). The EUHPF is not the only consultative forum established by DG SANCO to involve civil society. Another is the High Level European Pharmaceutical Forum8 yet no NGO-type CSOs are included within this body’s membership, which is actually dominated by industry. In an effort to offset this predominance, DG SANCO invited a patient group; the EPF. Given that it is a patient forum founded by the pharmaceutical companies, there are no independent users groups present within a structure of significance to DG SANCO and which discusses such key issues as information to the patient. A further point of interest is that the Pharmaceutical Forum’s membership is linked to the EUHPF; it comprises 10 members, of which nine9 are also members of the EUHPF.10 The obvious question that arises is why set up a new Pharmaceuticals Forum that only includes pharmaceuticals groups, all bar one of which already sit on the EUHPF? It risks creating a perception that DG SANCO has established a further consultation forum to legitimize its activities, but that excludes NGO-type CSOs and patients organizations. It is equally surprising that the Pharmaceuticals Forum is the one chosen by DG SANCO for the discussion of information to the patient; particularly since in 2005 the EUHPF produced its own Recommendation on Health Information. In a joint letter on Information to Patients: The Way Forward to an EU Health Information Strategy, AGE and 20 other NGOS reminded DG SANCO that ‘it is very important that a wider group of stakeholders can take a more active part in the debate on information to patients’ (AGE et al 2007: 2). Many CSOs nonetheless agree that DG SANCO is both open to discussions with all groups and treats these equally in terms of valuing participation and contributions. One CSO is, however, convinced that DG SANCO prefers

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to work with their organisation above others because of the organization’s ability to target a particular population that DG SANCO is especially keen to access (CSO representative, personal communication, July 24, 2007). The same CSO offers the fact that DG SANCO is aware of its work and reputation and wants to benefit from its track record and privileged position vis-à-vis the specific target population as further explanation (CSO representative, personal communication, July 24, 2007). Nevertheless, it may just be that the CSO possesses multiple resources in terms of lengthy experience dealing with issues, grass-roots knowledge or a wide membership base, which accords it a strong lobbying position that DG SANCO can exploit (CSO representative, personal communication, September 17, 2007). One criticism of DG SANCO, regarding uneven treatment of EUHPF members concerns its ‘particular relationship with EPHA’ and the regular contact between the latter organisation, the European Public Health Alliance, and DG SANCO officials in between Forum meetings (CSO representative, personal communication, September 19, 2007). One CSO goes as far as to note that EPHA’s former Secretary General regularly ‘walk[ed] the corridors of DG SANCO’ and enjoyed ‘very close links with officials’ and was ‘asked regularly by the officials to … contribute to confidential papers’ (CSO representative, personal communication, September 19, 2007). EPHA is also perceived as a ‘very active and very loud’ contributor to Forum discussions (CSO representative, personal communication, September 17, 2007). One CSO questions the close relationship between DG SANCO and EPHA given that the latter is ‘an alliance of all kinds of smaller organisations’ not strong enough to have ‘their own position here in Brussels’ (CSO representative, personal communication, September 17, 2007). This pragmatic approach to membership is unproblematic in itself. However, where disparate groups unite under one heading, the resulting internal diversity risks making it impossible for a CSO to have a cohesive and ‘democratic’ internal decision-making process leading to the adoption of common positions ‘so that they can speak with … [one] voice’ (CSO representative, personal communication, September 17, 2007). EPHA’s internal composition raises a further problem. Although it is a consortium or platform of affiliated members, some of these are also EUHPF members in their own right. At least 11 EPHF members are either full or associate members of EPHA.11 This means some CSOs achieve a kind of ‘double representation’ via EPHA and as individual members.

Deliberation The EUHPF’s capacity to generate input legitimacy rests, in part, on its ability to exhibit the attributes of a deliberation which both addresses and seeks to resolve conflict through debate by involving opposing viewpoints and building coordination. The typical format of a EUHPF meeting is Commission presentation of issues followed by an open floor plenary-type meeting. Working Groups or

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more informal break-out groups follow this plenary of which there are usually at least two covering different sub-topics. Member CSOs such as EPHA sometimes chair these WGs and they operate according to a more informal workshop style, where some CSO representatives contribute a lot, others nothing. Each WG nominates a rapporteur (often from the NGOs), who reports back to the plenary which reconvenes following the WGs. In specific cases, and where a select number of people (again usually from NGOs) express a particular interest in a topic, they may be mandated to take a document away, do some further investigation in relation to it and then report back at the next EUHPF. The annual Open Forum takes the form of a plenary session in the morning followed by three parallel sessions in the afternoon, which are led and organised by NGOs. Via such a plenary/break-out group format, the EUHPF fails to involve a great ‘exchange of views’ or argument or act as a real locus of debate (CSO representative, personal communication, September 19, 2007). The EUHPF also acts as a venue for Commission briefing on its current activities, and these informational presentations dominate the meeting time to the extent that ‘it’s like swimming in your own soup’ (CSO representative, personal communication, September 19, 2007). This renders meeting content predictable as groups often take the floor with prepared and repetitive views (CSO representative, personal communication, July 24 and October 19, 2007). Within the format, certain issues constantly arise with groups having ‘a couple of sentences they want to place at any cost’ (CSO representative, personal communication, September 19, 2007). Often there is little development of positions from the previous occasion they were raised – if you read the minutes of the previous meetings you would see the same things being said (CSO representative, personal communication, September 19, 2007). Were it able to adopt a different format, the EUHPF could be more useful as, for example, a location for upstream consultation at the pre-drafting stage i.e. prior to a decision being taken by the Commission to act on a particular issue. More proactivitity on the part of the CSOs and their accompanying experts would also ensure that information does not simply flow in one direction (CSO representative, personal communication, October 19, 2007). Rather than being another standard advocacy site, where the primary aim is lobbying to push forward own positions, the Forum could stimulate a real and meaningful open debate before Commission decision-takers. It is hoped that this may allow a greater influence for the EUHPF (CSO representative, personal communication, October 19, 2007). General agreement on the importance of expertise in enhancing the quality of EUHPF discussions exists between EUHPF participants (CSO representatives, personal communications, September 19 and October 19, 2007). Problems do occur, however, where participants are ‘so expert in their little domain’ that they have difficulty seeing and applying this knowledge to the ‘bigger picture’ (CSO representative, personal communication, September 19, 2007). Such an awareness of the general EU decision-making system and

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process, as well as an understanding of the function of the specific institutions within this overall framework, is essential. The acquisition of this ‘breadth of view’ can especially help CSO representatives calculate the optimal time for intervention in order to achieve the highest impact on decision-making (CSO representative, personal communication, September 19, 2007). The majority of EUHPF participants are ‘well-briefed’ (CSO representative, personal communication, July 30, 2007) although this is contingent on the level of each individual representative’s preparation and research for the meeting. There are isolated complaints against some participants who ‘sometimes contribute in an unproductive way’ perhaps because ‘they feel they have an opinion about the topic that is on the agenda, but not necessarily the relevant experience’ (CSO representative, personal communication, July 25, 2007). Also of concern in relation to expertise, is the limitation posed by the ‘Brussels world of NGOs’. One CSO representative criticises always seeing ‘the same people’ at ‘every one’ of the meetings of these different Commission consultative forums: ‘It’s a small group of people who tend to meet each other the whole time … It’s too much Brussels talking to Brussels’ (personal communication, October 19, 2007). The risks are two-fold: First, NGOs possess a ‘tendency to have their own agenda’ which is often too distant and out of touch from the MSs ‘and what’s going on at that level’. In addition, ‘The NGO world is a bit one way’ causing them ‘to look at everybody [sometimes the Commission, sometimes industry] as … the big enemy’. This NGO shortsightedness means that they ‘don’t really see how the Commission sometimes can be actually a very good … ally’ (CSO representative, personal communication, October 19, 2007). The Commission is also occasionally found wanting in terms of expertise and knowledge. Officials are often called to present a specific aspect of their service’s activities in relation to the EUHPF mandate. Perhaps because they are ‘not informed enough about their role or what we expect from them’ it is sometimes the case that the presentations given, although of good quality, are not very relevant or ‘consistent with the expectations’. Furthermore, officials may not be able to effectively field questions from the floor (CSO representative, personal communication, September 18, 2007). Accessing the expertise and knowledge it lacks is of course one of the major motivations for the Commission to consult CSOs in such an advisory structure. Moreover, Commission officials often move between posts every two or three years and may thus sometimes have insufficient time to acquire the necessary expertise (CSO representative, personal communication, September 19, 2007). One of the major advantages associated with the EUHPF is the range of levels of knowledge and expertise that its participants offer. Some provide an international perspective (such as the IAPO and the RC/EU Office), some a medical background and others a political or legal background; some groups act on multiple issues (such as YFJ), some are single issue or have some specialism in health issues (such as MHE); some are new to health policy and others old hands. Possessing one or other of these characteristics can have its

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own costs. Being a multiple-issue group, for example, can mean a more limited contribution to the quality of some EUHPF discussions where specific expertise is required. With regard to the Forum’s openness, some EUHPF participants are adamant that the public have little clue of its existence or function, or indeed of the EU as a whole (CSO representatives, personal communications, July 25, July 24, September 19 and July 30, 2007). Another notes that citizens in any case probably have little interest in its function (CSO representatives, personal communication, October 19 and September 18, 2007) or indeed do not even need to know about it (CSO representative, personal communication, September 19, 2007). One CSO argues that it is difficult to communicate to the public on the Forum; lacking as it does in appeal (CSO representative, personal communication, July 24, 2007) and another that one priority should be to raise awareness first of all amongst the CSO community, before focusing on informing the public (CSO representative, personal communication, September 17, 2007). In relation to access to documents, DG SANCO has responded to requests for more transparency that total access to documentation is not feasible given that it produces thousands of documents on a daily basis. DG SANCO has insisted that it will make a greater future commitment in the areas of access and communication.12 On this issue, one CSO argues that transparency is in the eye of the beholder. If your guarantee for transparency is that all documentation is rendered public then the EUHPF certainly fails to comply. A more realistic expectation is to hope that documents will become publicly available at certain intervals, ‘in good time for a meaningful reaction to them … This should be transparency enough’ (CSO representative, personal communication, September 17, 2007). Apart from DG SANCO’s relations with industry lobbies, which remain closed, on the whole, DG SANCO is considered generally open to different actors and transparent, particularly when compared to other DGs (CSO representatives, personal communications, July 30 and July 24, 2007). DG SANCO generally realises the importance of good consultation and seeking broad support for moving the health agenda forward. DG SANCO’s EUHPF website is particularly noted as a good repository of information and effective communication tool. There remains however ‘a long way to go because unfortunately a lot of information arrives very late’ (CSO representative, personal communication, September 18, 2007). EUHPF participants question what actually happens to their responses to consultations (CSO representatives, personal communications, July 24 and 30, 2007) given that this is not properly documented (CSO representative, personal communication, September 19, 2007). Where minutes are drawn up, often the first draft may arrive up to two months after a meeting takes place and the final draft just prior to the next meeting. Such a lapse of time makes it difficult to recall events. To address this, one of DG SANCO’s priority tasks is to appreciate the importance of producing synthesis reports after each stakeholder consultation or involvement process.13 DG SANCO has actually

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placed increased emphasis on transparency in recent years and it forms the subject of an internal consultation. February 2007, for example witnessed the release of a report entitled Health Democracy: Conclusions and Actions Following the DG SANCO 2006 Peer Review Group on Stakeholder Involvement. This noted that ‘Connecting with citizens and stakeholders is intrinsic to DG SANCO’s mission’ (DG SANCO, 2007: 3). It adds that the Healthy Democracy process, established in early 2006, has ‘built upon DG SANCO’s extensive track record of stakeholder engagement’ and has sought ‘to improve stakeholder involvement and participation’ so as ‘to establish a solid network of stakeholders and research bodies to improve its substantive performance’ (3). It has also made attempts to ‘identify best practices and improvements to the existing consultation system’ (3). Although CSOs take heart that transparency is at least recognized as an area where action is required, the focus of DG SANCO’s latest efforts rests firmly on the transparency of participants rather than that of the EUHPF structure. In June 2007 for example, DG SANCO published EUHPF Guiding Principles with Regard to Transparency in which it defined ‘a set of minimum criteria for transparency that will be applied by current and future members of the EU Health Policy Forum’ (2). These were listed as including the disclosure of details on how conflicts of interest are handled internally; publication of a full and regularly updated membership list; clearly defined mission and objectives; accountability and consultation; and financial information such as the disclosure of sources of funding and an annual report of internal activities. These recent efforts have the merit of partially responding to one CSO representative’s concerns who notes that transparency deficits are not only an issue for DG SANCO but also for participating CSOs which do not communicate or cascade information received from the Commission downwards to their broader membership. In addition, CSOs must play a role in translating and reformulating information received from the Commission into non-technical vocabulary which lay-people can understand (CSO representative, personal communication, September 18, 2007). The largest issue raised in relation to equal opportunities to participate within the EUHPF is that of uneven resources. Whereas industry possesses sufficient funds to employ full-time lobby staff to travel to Brussels and attend such forums, smaller CSOs, particularly citizens’ groups, cannot. To compensate, and in recognition of their specificity and added-value to facilitating a genuine debate between interested and affected societal actors, such CSOs believe DG SANCO should help fund their participation in the EUHPF by contributing to salary and travel costs. Such CSOs argue that an invitation from DG SANCO to participate in the EUHPF is insufficient given that the members are not starting from an equal playing field (CSO representative, personal communication, September 18, 2007). The possession of appropriate expertise and knowledge is a further element affecting equal participation. While some that attend EUHPF meetings are well informed and assured of their positions, others attend without any formal position, simply as a means

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to obtain information rather than to usefully contribute to the discussion. In terms of there being equal agenda-setting opportunities, most CSOs interviewed raised no issues here. Most felt they would be able to contribute agenda points if they desired; either by letter or email and that DG SANCO would welcome and indeed often expressly invites such submissions. The only constraint highlighted is the Commission’s own agenda, which means that any suggestions for agenda items have to fall within the remit of the institution’s priorities. The AOB slot is frequently used to cover additional and lastminute points raised by participants; although some argue that issues raised here in the past have sometimes been ‘quite meaningless’ (CSO representative, personal communication, July 24, 2007). The availability of equal speaking time at EUHPF meetings is affected by a perception that some interests dominate the discussion; indeed some are apparently often particularly eager to lead discussions. For some it is the pharmaceuticals industry that is most guilty of this charge, for others it is groups like EPHA. While there is broad agreement that a general level of equality and fair treatment exists within the Forum itself, some assert that it is outside these meetings that DG SANCO’s ear is unfairly hogged by particular interests. Additional issues thought to impact upon perceived equality of speaking time are the level of linguistic ability in English (important given that there is no interpretation available in meetings), the level of participants’ confidence in public speaking, the number of organisations, the number of points on the agenda and the length of the meeting.

Effectiveness Based on the goal-attainment approach, the effectiveness of the EUHPF is firstly contingent on the presence of an ultimate end goal and secondly, that this goal is clear and unambiguous. In accordance with the system-resource approach, the Forum’s effectiveness is contingent on the presence of certain design features. The first of these is also that the structure should have clarity as to its formal goals and purpose. It should equally be clear as to the nature and scope of its task or mandate, expected output and the procedure mechanisms (such as rules, policies, and guidelines). DG SANCO’s EU Health Policy Forum emerged as part of the Commission’s May 2000 Communication on the European Community Health Strategy, which set out a new Community approach to health with openness and transparency as its central themes. The Commission also used this strategy document to announce its intention to establish a European Health Forum to serve as a significant component of this new process. The EUHPF was initially intended as an information and consultation mechanism. It would ensure that the aims of the Community’s health strategy and the mechanisms by which they were to be pursued were made clear to the public and equally guarantee that the public’s needs could be responded to. The EUHPF was also intended to provide DG SANCO with ‘a consistent set of member

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organisations, for the discussion of key policy areas’14. Prior to the Forum’s creation, consultation had taken place with a select group of stakeholders, with which DG SANCO already had regular informal contact. DG SANCO used these consultations as a means to better understand the major issues for civil society and seek views on which CSOs should be included in the new process (Slob and Smakman 2007: 107). The EUHPF now represents one of numerous stakeholder platforms within DG SANCO; with others including the Food Safety Forum and the Consumer Protection Forum. This DG does not rely solely on the EUHPF. It also apparently consults generally on all policies for specific purposes via its multiple contacts with specific CSOs in different areas, such as the Obesity Platform (Slob and Smakman 2007: 89). The EUHPF was originally composed of three elements: A Health Policy Forum; an Open Forum and a Virtual Forum. On an ad hoc basis, Working Groups are also created as part of the EUHPF. These are intended to facilitate discussion, deeper consideration of certain issues, improved stakeholder participation and involvement and document production (Slob and Smakman 2007: 88). The Virtual Forum was to serve as a vehicle for ensuring the accessibility of all relevant documents for the forum. According to Slob and Smakman, it ‘was never further developed due to lack of resources’ (2007: 89). The Open Forum was intended to construct a wider consultation, to ensure that the public health community as a whole has the opportunity to put forward its ideas and respond to policy proposals. It was established as an annual conference and exhibition event to serve as a platform for networking and exchange of ideas and views via wide and general discussion with a broad range of CSOs and stakeholders active in the European Health Community, and to ensure that such actors could advance ideas and respond to policy proposals. The EUHPF’s mandate was published as a Commission Communication in 2001. It is primarily intended to serve as an information relay, a venue for exchange of views and experience on wide ranging topics and a consultation mechanism. In so doing, it provides an opportunity for representative umbrella organisations of stakeholders in the health sector to make contributions to health policy development including the setting of priorities for action. Indeed, the topics for discussion in the EUHPF are selected by the Forum and identified in a work plan.15 The Forum also provides follow-up to specific initiatives and objectives16 by reviewing the EU’s work in various areas of public health and adopting position papers and recommendations on them. The EUHPF can therefore also assist in EU health policy implementation.17 In DG SANCO’s discussions of the Forum’s future role and renewed mandate, the Forum’s goals and objectives were multiple: to improve stakeholder involvement in EU Health Strategy implementation; to help develop and implement actions to protect and improve EU citizens’ health; to provide two-way communication channels between policy makers and stakeholders, including a commitment to dissemination; to enable stakeholders to contribute to EU health policies (issues, proposals, feedback) and health

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advocacy to support the delivery of the EU Health Strategy at national regional and local levels. Like the other Forums explored in this volume, the EUHPF’s status is an informal advisory body whose advice is not binding. By fulfilling these objectives the Forum nonetheless helps to ensure that the EU health strategy is open, transparent and responds to the public concerns, to ensure that the aims of the Community’s health strategy are made clear to the public and that public concerns are responded to.18 A further system design feature that can impact upon the effectiveness of ECAFs is the extent to which they ensure regular opportunities for interaction via frequent and sufficiently dense formal meetings. According to its formal guidelines, the EUHPF usually meets twice a year over a one day period. At the time of writing, the EUHPF website records a total of seven meetings19 between 2005 and 2008. Some of these constitute workshops20 organized by the member CSOs. This at best twice-yearly frequency is perceived of as insufficient or indeed ‘useless’ by some, particularly for building up working relationships and for making an impact on policy where the main action is likely to happen between meetings (CSO representative, personal communication, September 19, 2007). Open Forum meetings are scheduled to occur once per year in Brussels. The first two meetings met with the intention to reach the health community and to introduce each other (Slob and Smakman 2007: 89). More recently however, (in 2007 for example) meetings have been ‘skipped’ (CSO representative, personal communication, September 17, 2007) resulting in lengthy periods between them. In terms of their density, although Forum meetings are often short of time (CSO representative, personal communication, September 19, 2007), for most participants interviewed, one full working day is the maximum length that should be set aside for the Forum to meet. This should ensure that meetings are ‘concise and relevant’ (CSO representative, personal communication September 19, 2007). Additionally, a longer duration would have significant staff cost implications for both DG SANCO and participating CSOs. The level of contact between participants outside of formal EUHPF meetings, strongly encouraged by DG SANCO, can also help facilitate the smooth functioning of the EUHPF. It can also be seen as an indicator of proactivity and commitment to the process. Evidence of such meetings is limited however. Health professionals do meet outside of EUHPF and sometimes prepare joint positions, which is a natural aspect of lobbying activities. There is also interaction between the EPF and IAPO to discuss issues in advance of a forum and reach some consensus. Finally, effectiveness is likely to be improved where there is a high level of contact external to formal meetings between DG SANCO, as sponsor of the EUHPF, and the CSOs who are members. Some CSOs pursue direct contacts (email, telephone, face to face) with DG SANCO as these are seen as more effective on a variety of grounds. For example, they allow a freer discussion; result in more detailed information from Commission desk officers specifically

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involved; permit the contribution of concrete suggestions from CSOs; provide an opportunity for them to explain a particular point of view and can also mean that some CSOs can avoid appearing pushy in actual Forum meetings. As one CSO representative concludes, there are certain kinds of ‘output’ that the CSO expects its representative deliver that can only be achieved with that type of [direct] contact (CSO representative, personal communication, September 17, 2007). Based on the system-resource approach, EUHPF effectiveness is enhanced where the rate of absenteeism is low. However, whereas, meetings were initially ‘jam-packed’, today ‘you see that there is empty seats’ (CSO representative, personal communication, September 17, 2007). Indeed, if the rules allow two participants per 50 or so member organisations there should be in excess of 100 CSO representatives attending but in fact only 40–50 individuals are usually present (CSO representatives, personal communications, July 24 and September 17, 2007. A further design feature of ECAFs like the EUHPF that should enhance their effectiveness is a high level of administrative support from DG SANCO including timely availability of materials necessary to prepare meetings. The EUHPF comprises a secretariat, originally established within Unit C5 of DG SANCO, responsible for all organisational and logistical aspects of the Forum, for encouraging participation and ensuring at least that CSOs are informed of meetings (Slob and Smakman 2007: 89). One of its significant difficulties relates to the timing of consultations organized under the EUHPF heading. In the past, Forum members have received requests from DG SANCO to consult with their member networks as little as two weeks before the closing deadline for that consultation. Although the collection of some on-line feedback is feasible in this short time-frame, there is little time for its analysis and formulation into a good quality joint response. One CSO representative wonders whether DG SANCO allowed such short time-frames on purpose (personal Communication, September 18, 2007). The delay between receiving the meeting agenda and the meeting date is also often ‘too tight’: it usually arrives two weeks in advance of meetings (CSO representative, personal communication, September 19, 2007). Depending on CSOs’ internal processes, within this period all members may have to be contacted for comments. These are returned and then have to be amalgamated and formulated into a joint position, which then has to be re-circulated. Where short timeframes prevent this process, documentation is often only circulated to expert groups, which impacts upon processes ensuring a CSO’s internal accountability. Meeting documentation is also circulated at the last minute either the day before, on the morning of or at the meeting itself (CSO representative, personal communication, September 18, 2007). This allows insufficient time to read this prior to the start of meetings (CSO representative, personal communication, July 24, 2007); especially where documentation is bulky and often in excess of 10 pages. Moreover, it is not only the Commission that is guilty of this charge: at times, other participants also start sending papers the

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day prior to meetings expecting them to be read. For some CSOs, the problems associated with late circulation are compounded by the fact that the documentation is usually circulated in English thus requiring an additional effort on the part of CSOs to translate it. In addition, and given the nature of the Forum and its membership, some participating CSOs are run by lay people, the aged or patients with long-term health problems. Such societal groups may have particular concerns with translation and deciphering jargon and require greater time to prepare for meetings. The delays outlined here indicate the importance of CSOs being represented at the highest level at EUHPF meetings. This means that where there has been insufficient time to circulate the agenda and associated documentation to internal membership networks in advance, if they are senior personnel, the individual(s) participating have a sufficient mandate to take decisions on issues where it is necessary to do so (CSO representative, personal communication, September 17, 2007). A further criticism of the secretariat relates to the minutes of EUHPF meetings, which it is responsible for preparing. Although said to be of good quality, these are apparently occasionally circulated to participants for comment some time (at least one month and as much as two months) after the meeting has taken place (CSO representatives, personal communications, July 25 and September 18 and 19, 2007).21 When they do arrive, minutes tend to represent a limited summary of discussions rather than specifically detailing every point made. Many interviewees prefer this brief and summarized format; others would like the debate to be more substantially reported (CSO representative, personal communication, September 18, 2007). Some in any case prepare their own summary, which is circulated to internal networks (CSO representative, personal communication, July 24, 2007). Only rarely have CSOs had to amend the draft minutes which are then circulated as a final version at the next scheduled Forum meeting. Reception of the date for the next meeting is highlighted as a further late arrival. This cannot always be decided at the close of Forum meetings as dates depend on room availability. In such cases a provisional date is circulated three months ahead but this is subject to change (CSO representative, personal communication, September 17, 2007). It is noteworthy that many of the problems highlighted above are attributed to the fact that the secretariat was previously over-burdened and under-staffed. In early 2007, the secretariat was transferred to Unit C4 within DG SANCO and it is hoped that this will lead to improvements in some of the areas highlighted (CSO representative, personal communication, September 17, 2007). Finally and at a more general level, DG SANCO may certainly aim to ensure that the Health Policy Forum is fully involved at an early stage of the policy process (Slob and Smakman 2007: 89) and throughout the whole process of developing policy. The involvement is, however, hampered by several factors. First, the Policy Forum is not formally part of the policy process’ (Slob and Smakman 2007: 89). Second, given that the Forum meets only on a twice-yearly basis, it is almost inevitable that many important issues that fall

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within its mandate cannot be discussed (CSO representative, personal communication, September 17, 2007). As a result, some CSOs interviewed complain that topics are often raised on the Forum’s agenda well after or too close to a decision being taken. Third, there may be sensitivity within DG SANCO to the early discussion of certain issues (CSO representative, personal communication, July 24, 2007). This may result in Forum agendas being filled with non-contentious, mundane issues. EUHPF effectiveness will also be affected by the level of seniority of Commission officials and CSO representatives attending meetings. The forum’s force and external impact are conditional on the highest level of seniority possible. Attendance by lower levels ‘diminishes the impact the forum has to the outside world’ (CSO representative, personal communication, September 17, 2007). At its establishment, all CSOs sent their president or general secretary but more recently this trend ‘has been sliding’ raising concern among some CSOs. One suggestion is to draw up a rule that either the president or secretary general of a CSO should attend the EUHPF in order to endow the Forum’s discussions and decisions greater external credibility (CSO representative, personal communication, September 17, 2007). From DG SANCO, the EUHPF is often chaired by Michael Hübel, Head of unit C/4. The Director General of DG SANCO, also occasionally chairs and often attends. Other contributors from the Commission side tend to be senior officials from other DGs such as Agriculture, Environment, and Trade etc. However, the Commission does not always chair Forum meetings, there is frequent rotation so that participating CSOs also take a turn particularly EPHA and EPF. Under the system-resource approach, the presence of particular participant behavioral features will affect effectiveness, the most noteworthy being the level of proactivity. Some CSOs believe the EUHPF is a ‘useful entrance’ (Slob and Smakman 2007: 89) forum where all participants should be as proactive and willing to input into the process as possible (CSO representative, personal communication, September 17, 2007). However, there are concerns that Forum members are too passive (CSO representative, personal communication, October 19, 2007). For example, some CSOs are said to participate and speak very little (CSO representative, personal communication, September 19, 2007); simply attending to keep the CSOs’ allocated seat warm and observe (CSO representatives, personal communications, September 19, 2007). This non-participation may be due at least in part to a lack of preparation, which is required to generate informed discussion. Indeed, some EUHPF members may not appreciate the considerable amount of work necessary simply to keep abreast of what is going on in Europe (CSO representative, personal communication, July 30, 2007). It is also noteworthy that levels of proactivity amongst the Forum members are bound to be divergent given the diverse nature of the CSOs involved. For example, large groups like the Red Cross/EU Office may show less commitment to the EUHPF simply because it is an organisation which is bigger than the Commission itself and recognizes that the Forum is not where the music plays. In addition, smaller,

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NGO-type CSOs encounter particular limitations, which hamper participation such as a focus on pursuing an internal agenda, and limitations in time, budget and linguistic ability. These elements and others render them more likely to be reactive than proactive towards the Forum (CSO representative, personal communication, October 19, 2007). Turning now to perception-based assessments of EUHPF effectiveness, a high level of commitment from DG SANCO, a perception that the EUHPF is worthwhile and useful on the part of participants and a general climate and atmosphere that is positive and collegial are necessary for the smooth functioning of the forum. The Policy Forum is today ‘perceived by DG SANCO as really functional’ (Slob and Smakman 2007: 89). The aforementioned level of seniority of officials in attendance is seen by participants as one indicator of the importance DG SANCO invests it with. There is equally a recognition that the Commission generally, and DG SANCO particularly, have changed and evolved as part of a wider process of modernization. There is also acceptance of the constraints within which the Commission must effect this modernization (CSO representative, personal communication, July 30, 2007). DG SANCO is specifically seen to be trying to be more open, find better ways of communicating with civil society and promote an active dialogue. In addition, it is acknowledged today as placing more emphasis on consultation, demonstrating a better understanding and greater interest in the need for increased citizen involvement. This view is not universally shared however. One CSO is particularly vocal in its criticism of DG SANCO for not sufficiently grasping best practice in consultation and the added-value that the involvement and participation of civil society stakeholder groups can bring (CSO representative, personal communication, September 19, 2007). In addition, DG SANCO sometimes demonstrates a level of arrogance in the quality and fullness of its information and knowledge when in fact it is reliant on CSOs for information (CSO representatives, personal communications, September 17 and October 19, 2007). Further criticisms of DG SANCO’s approach to the EUHPF relate to its ethnocentrism. Brussels-based participation initiatives and media involvement are not necessarily perceived as the most beneficial means to improve stakeholder participation. Rather, DG SANCO should, it is thought, recognize that the EU is far more than Brussels, and therefore find avenues to better access grass root citizen opinion in MSs so that they feel closer to what is happening (CSO representative, personal communication, September 19, 2007). This may include providing core funding to certain CSOs with a strong foothold in the Community (CSO representative, personal communication, September 18, 2007). In sum, CSOs tend to be split as to whether EUHPF is part of a genuine change (CSO representatives, personal communications, July 30 and October 19, 2007) or whether, it is simply showcase tokenism; a pretence of saying ‘we are doing something’ or ‘we’ve consulted with citizens’ as part fulfilment of the Commission’s Treaty obligations (CSO representative, personal communication, September 19, 2007). A certain level of such scepticism is thought to be

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healthy when working with any European institution. Given that in part the task of CSOs is to investigate and assess, many CSOs’ membership networks would expect their consultative forums representatives to question motives. Realism, not naivety is necessary; certainly where expectations of what EUHPF can achieve are concerned. The latter should not be too high because the Forum is not a locus of real power and influence … many CSOs recognize this and lobby elsewhere’ (CSO representative, personal communication, September 19, 2007). Effectiveness ought to be enhanced where participants perceive the EUHPF to be useful. Despite its shortcomings, CSO representatives highlight various uses and motivations for attending forum meetings. The EUHPF is first considered a location for participants to listen and learn. It establishes communication between DG SANCO and CSOs, provides a forum for discussion and facilitates information exchange (CSO representatives, personal communications, July 24 and 30 and September 18 2007). The Commission provides briefings on specific issues and its current and future priorities as well as providing an indication of what will be included and excluded from the EU’s future agenda in the health policy field. CSOs outline their concerns and interests, react to Commission proposals and take appropriate follow-up action. It is also deemed a relative success in securing information exchange (CSO representative, personal communication, September 19, 2007) but providing the information is not enough, mechanisms need to be in place to ensure that the information trickles down and is disseminated through CSOs own membership networks (CSO representative, personal communication, July 30, 2007). This learning mechanism is considered helpful and valuable; especially where it provides a one-stop-shop for fresh information (CSO representative, personal communication, September 19, 2007) and exposes CSOs to views that counter their own. It also removes pressure from some participants who feel unable to constantly participate due to a lack of expertise in some areas. As a result, a balance can be achieved between learning, by listening to others and reflecting on their positions, and contributing in a meaningful way according to own areas of expertise (CSO representative, personal communication, September 17, 2007). DG SANCO benefits via its ability to demonstrate that it has had discussions with a variety of organizations and can therefore rationalize its activities (CSO representative, personal communication, September 19, 2007) or more cynically, it may simply fulfil DG SANCO’s obligation to consult by demonstrating that some process of public discussion has occurred (CSO representative, personal communication, September 18, 2007). For some participants, the EUHPF goes further than two-way provision and reception of information. Rather, it acts as a real mechanism to influence DG SANCO whose officials purposefully utilize the Forum for that. With regard to influence, CSOs have greatest opportunities and impact if they are raising an issue well in advance of the Commission’s programme and the Commission is more likely to take note where a good level of consensus exists

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within the forum on the way forward (CSO representative, personal communication, July 30, 2007). In contrast, where the Forum puts forward views that the Commission is unable to pursue due to internal/external constraints or where views are irrelevant/vague (CSO representative, personal communication, July 30, 2007), influence is obviously lessened. The perception that the EUHPF acts as a means to influence fits with the view that as a policy forum it should focus on the development of specific advice for the European Commission in future priority areas. Accordingly, advice should be recorded and specific feedback reports provided on why the different elements of advice were either accepted and factored into policy documentation or rejected (CSO representative, personal communication, July 25, 2007). Proponents of this function argue that a major difference cannot be made in the short term but over a longer period. Others are steadfast in their view that advocacy work and real influence is only possible if you represent a large CSO or one that has strong alliances with others (CSO representative, personal communication, September 19, 2007) or via direct bilateral contacts with DG SANCO between Forum meetings rather than from the structure itself. A third function of EUHPF is perceived as its capacity to foster a common approach to a European health programme thereby strengthening the integrative logic by promoting a health policy agenda (CSO representative, personal communication, July 24, 2007). Additionally it helps to build common aims and objectives (CSO representative, personal communication, September 17, 2007), consensus around problems and solutions and coalitions of like-minded actors. A fourth and commonly expressed function of the EUHPF is to serve as a forum for networking and interaction. It serves as a space to meet up with previous contacts, see who the new players are and meet new Commission staff. Common projects and joint funding ventures can also be pursued. This aspect is an element of real success for the Forum While most interviewees were able to indicate the EUHPF’s use under one of these four headings, one thought DG SANCO should remind participants of the real use and provide training on the Forum’s mandate (CSO representative, personal communication, July 30, 2007). Another felt that clarity of the Forum’s use was clouded by the absence of a clear future direction for it. While the original idea was promising, next steps are sought because first objectives are said to have been met (CSO representative, personal communication, September 18, 2007). Based on these elements of added-value, there is common agreement that the EUHPF is worthwhile continuing because: it provides a context for conflicting and opposing views to be heard and it constitutes a visible and institutionalised forum. Continuation should, however, be contingent on whether it really helps the debate. For this to occur, the Commission needs to play its role in ensuring that the weakest voices are heard and taken on board. It must also ensure that there is high take up of opinions and ideas expressed so that the feedback received from stakeholders informs Commission decisions and

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helps orientate their approach (CSO representative, personal communication, September 19, 2007). EUHPF sits alongside other DG SANCO forums on HIV and AIDS and also NGO platforms on nutrition, obesity, alcohol and tobacco. Because these take on very particular health topics, perhaps the added-value of the EUHPF should be in its ability to provide strategic oversight of all other forums and operate at the abstract level. For one CSO the EUHPF should ‘take on topics where other fora might get stuck’. For example, the Forum could assess the relationship between general health problems and poverty to see to what extent easing poverty could contribute to the general health in Europe. Another question the EUHPF could consider is to what extent is it useful to force people via legislation to adopt healthy behavior (CSO representative, personal communication, July 25, 2007). The final aspect of perception-based effectiveness relates to the atmosphere and climate of the EUHPF. Lack of trust and the need for better feedback mechanisms regularly arose as issues during DG SANCO’s review of stakeholder involvement within DG SANCO. Notwithstanding this, the contributors to this study perceive that DG SANCO overall operates EUHPF in good faith (CSO representatives, personal communications, July 25 and September 19, 2007) resulting in a good level of trust being established between the Forum convenor and participants (CSO representatives, personal communications, September 17 and October 19, 2007). In short, the Commission does its best in difficult circumstances and with limited resources (CSO representative, personal communication, October 19, 2007). The Brussels-based Forum members often meet up in other contexts. This possibly contributes to the friendliness and conviviality of the Forum’s atmosphere, which is considered important (CSO representatives, personal communications, September 17 and 19, 2007). A good working relationship and climate (CSO representatives, personal communications, July 24 and 25, 2007) is said to exist between the Commission and participants (CSO representative, personal communication, September 17, 2007), which facilitates relaxed, informal, open-minded, frank and off-the-record discussion (CSO representatives, personal communications, July 24 and 30 and September 19, 2007). As with similar forums, it is the coffee and lunch breaks which are perhaps most conducive to encouraging opportunities to talk with the Commission and other groups. Proceedings tend to be non-confrontational (CSO representative, personal communication, September 18, 2007) so that even where discussions are heated there is fun and laughter (CSO representative, personal communication, July 24, 2007). This is attributed to the fact that after all there is a shared common interest among all Forum members: to do more in health policy and advance this policy area’s agenda (CSO representative, personal communication, July 24, 2007). Despite the constructiveness of the overall climate, some tensions between CSOs are signalled (CSO representative, personal communication, October 19, 2007) and are attributed to a variety of causes. One is that twice yearly

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meetings are not considered sufficient to get to know each other (CSO representative, personal communication, September 19, 2007). Second, certain groups are perceived to be solely motivated by a spirit of self-preservation, which can inject aggressiveness into meetings where this is unwelcome (CSO representative, personal communication, September 17, 2007). Another is that some groups perceive that DG SANCO ignores those who may lack the expertise or familiarity with technical vocabulary to express themselves in a satisfactory manner. Finally, stakeholder opinions may diverge from what DG SANCO would like to hear: in short, stakeholders complicate issues (CSO representative, personal communication, September 19, 2007).

Showcase tokenism? The EUHPF between legitimacy and effectiveness The purpose of this concluding section is to assess how the findings from the second case bear out the claim that ECAFs as supranational participatory structures provide a location where legitimacy and effectiveness can be realised simultaneously. The evidence presented here suggests that the EUHPF’s capacity to guarantee both input and output legitimacy is uncertain. With regard first to input legitimacy, we must look at the balance of the EUHPF’s composition, and the question of whether this is streamlined based on the criteria outlined in the Forum’s statutes. According to the latter, it has 49 permanent member organisations, and participant numbers estimated at between 60 and 65 individuals. Flexibility for adjusting the current membership total is, however, built in. Guidelines have also been developed to ensure that a reasonable cross-section of groups affected by and interested in the Forum’s remit is represented on the EUHPF. It is in fact intended to cover evenly the four constituencies of public health NGOs and patients’ organizations; health professional and trade union organizations; health service and health insurance providers and industry with a particular health interest. Participating CSOs have raised doubts as to whether patients groups as consumers of medicines are amply represented on the Forum. Criteria also exist to ensure that member CSOs comprise affiliates from at least half, or more than 14, EU MSs. The non-disclosure of nationality on the rare participant lists that are made public makes it difficult to objectively judge the level of participation by the 2004 and 2007 MSs. There is a perception though amongst CSO representatives that participants tend to be Brussels-based. Although at first sight it appears that CSOs in the first category of interests: public health NGOs and patients’ organizations are the most numerous, in reality, some CSO representatives suggest that the preponderance of interests within the Forum comes from the pharmaceuticals industry. The fact that the economic weight of these actors is already perceived to stand them in a privileged position vis-à-vis DG SANCO makes this all the more problematic. The industry funding of the EPF and the IAPO is a further perceived manifestation of industry’s prevalence within the Forum. As to whether DG

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SANCO is perceived as treating all interests equally, the aforementioned position of industry in the EUHPF and other DG SANCO forums established for the discussion of health information to patients, is an indication of seeming unevenness. The apparently close relationship between EPHA and DG SANCO is also highlighted as an indication of the latter’s preference for particular actors. With regard to deliberation, the EUHPF does not involve a great exchange of views or context for argument between CSOs. The majority of the interaction occurs between the CSOs and DG SANCO in plenary type sessions whereby the Commission and other Forum members make presentations which are thereafter commented on by the ‘floor’. Expertise and knowledge are considered essential to participation in the EUHPF. Although the majority of participants are said to possess this, and the breadth of CSOs covered guarantees several types and layers of expertise are included, a small number are prone to repeating known positions or reading pre-written statements. Although, public awareness of the forum is thought to be low or non-existent, this is not especially considered a problem by many participants who feel that the public has no especial need to know of it. It is the issue of lack of feedback on what DG SANCO does with the comments and views it collects via the EUHPF which most generates concern amongst participants. Although this Commission service is highlighting transparency as a possible reform area, the onus rests firmly on opening up the activities of CSOs rather than its own processes and procedures. Equal opportunities to attend and contribute to meeting agendas and discussions are also ensured. Overall equality of participation is, however, jeopardized according to health-related NGOs and patients’ groups by the unequal nature of the resources all participating actors possess. For these specific groups, it is not enough for DG SANCO to offer them an opportunity to participate; the Commission should also contribute to their salary and travel costs. Whereas the industry participants wield enormous resources naturally generated from their status as for profit organisations, the wherewithal of other CSOs is constrained by their not-for-profit nature. In short, the Forum does not represent an equal consultation playing field. The extent of the EUHPF’s problem-solving capacity is also questionable and undermines its ability to generate output legitimacy. This problemsolving capability is hampered first by the fact that it only meets twice a year, which limits participating CSOs’ ability to build relationships of trust which could facilitate the Forum’s function. The greatest impediment to effectiveness however, are issues associated with the EUHPF secretariat situated within DG SANCO. In the past, requests for CSOs to participate in consultations are sometimes made close to their deadline, there are delays in receiving Forum agendas and documentation prior to meetings as well as the circulation of minutes afterwards, and dates for subsequent meetings are often advised at short notice. In terms of participant behavior features, the level of proactivity is generally considered high and many manifestations of its usefulness are highlighted. As to the level of perceived commitment by DG

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SANCO, CSOs tend to be split as to whether the EUHPF is part of a genuine effort on DG SANCO’s part to consult more widely or whether it is simply showcase tokenism so that this DG can demonstrate that it is fulfilling its consultation obligations. Finally, if we analyse the Forum’s effectiveness in terms of outputs, the EUHPF website lists only five sets of recommendations that it has adopted so far;22 a rather limited workload for a Forum established in 2001.

5

The Trade Contact Group and Civil Society Dialogue

DG Trade’s Civil Society Dialogue (CSD) and Trade Contact Group (TCG) were formalized as stakeholder forums in the European trade sector following the collapse of the World Trade Organization (WTO) meeting at Seattle at which time the Commission became starkly aware of the need to include representatives of civil society in the development of Community trade policy. In this third case study chapter, the analysis of the CSD and TCG replicates the same gauge in order to evaluate these structures’ legitimacy on the input side and effectiveness on the output side. As previously, the principal aim is to explore their ability to achieve both elements in unison. The chapter starts by probing the CSD and TCG’s capacity to ensure balanced composition and deliberative capacity with regard to inputs before it goes on to explore both structures’ effectiveness. Again it appears that like the previous cases, several composition, functioning and design features call into question the CSD and TCG’s aptitude for delivering on the input and output sides.

Balanced composition DG Trade’s CSD is open to large numbers of participants and is, according to one Trade official, a ‘voluntary process … All those organizations that wish to participate … can register with us and they can take part … we don’t choose, it’s them that choose to be part or not of a process’ (personal communication, October 19, 2007). To be eligible to participate then, organizations simply need to register themselves via the DG Trade Civil Society Database. Registration of organizations is managed by the European Commission and is carried out against a specified set of criteria: Civil Society Organizations (CSOs) have to be not-for-profit, for example. As of September 2008, there were 782 registered organizations. This sizeable total is an indication of the low-level entrance requirements. Only single firms are actually precluded from registering; instead they are encouraged to participate via their national business association or one established at a European or international level

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(Jarman 2008: 28). DG Trade does, however, note that CSD participation is limited to situations ‘where participation can enhance dialogue’.1 DG Trade does not define what it interprets as CSOs but adopts the Commission’s broad definition of civil society.2 Nevertheless, even in spite of the definition’s obvious breadth, not all registered can be classified as CSOs given that some embassies, the OECD, World Bank and several law firms were included. Furthermore, the accuracy of figures is questionable given that a number of organizations have registered several times.3 Moreover, the number of organizations regularly attending the CSD meetings or even attending at all was much smaller. Indeed, according to an analysis of attendance lists from 2002 – 2006, approximately only 350 organizations had attended meetings during this period’ (Slob and Smakman 2007: 40). CSD attendance numbers are further boosted by the fact that DG Trade may also invite speakers or participants from other units within its own service, the Commissioner for Trade, officials from other Commission services (particularly Agriculture, Development and RELEX), MS representatives, EP members or other relevant bodies. The head of Unit C1 attends most meetings and at least two other DG Trade officials attend all (Slob and Smakman 2007: 33). Although overall CSD attendance levels are influenced by the agenda topics or the proposed format, numbers can range from 60 to 200, with the greatest numbers present at Commissioner briefing and Q&A sessions and DOHA Development Round discussions (CSO representative, personal communication, June 7, 2007). Where scheduled meeting rooms have insufficient capacity to accommodate, high attendance levels have occasionally posed a serious problem, with the overflow at some meetings having to sit in an adjacent room, with access only to verbal commentary of the meeting and no opportunity to pose questions (CSO representative, personal communication, June 8, 2007). Infrastructure and time issues dictate that having even more civil society members involved would render CSD unworkable (CSO representative, personal communication, June 6, 2007). The TCG possesses a more limited membership with 14 member organizations which, are intended to represent ‘families’ of interest. Before establishing the CSD, DG Trade consulted regularly with a small number of CSOs, which it considered represented the main constituencies (Slob and Smakman 2007: 11). Although the TCG’s composition more or less evolved from that original group of regular contacts and DG Trade’s delegation to the WTO meeting in Seattle (Slob and Smakman 2007: 41), membership has expanded over the years to 14. There is also scope for further expansion. The CSD’s ongoing representativity is self-governing to the extent that the 14 incumbent members govern its membership deciding whether a new organization which has made an application to them, has a constituency that is already sufficiently represented or not. Where this is found not to be the case, the existing TCG members may grant membership. DG Trade does not

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Table 5.1 Constituency groups represented in DG Trade’s Civil Society Dialogue Constituency 1 2 3

4 5 6 7 8 9

10 11 12

13 14

Organization

National federations of Chambers of Association of European Chambers of Commerce Commerce and Industry (EUROCHAMBRES) Independent national consumer Bureau Européen des Unions de organizations Consommateurs (BEUC) National agricultural sector Comité des Organizations organizations (including cooperatives) Professionnelles Agricoles de l’Union Européenne & Comité Général de la Coopération Agricole de l’Union Européenne (COPA-COGECA) Alliance of Catholic development Association of World Council of organizations Churches Related Development Organizations in Europe (APRODEV) National commerce federations Eurocommerce (retail, wholesale & international trade sectors) Animal protection organizations Eurogroup for Animal Welfare (EUROGROUP) National economic and social interest European Economic and Social groups Committee (EESC) National trade union federations and European Trade Union Confederation European industrial federations (ETUC) National trade organizations and Foreign Trade Association (FTA) individual companies in favour of free global trade & a multilateral trading system Development and gender specialists Network Women in Development and human rights activists Europe (WIDE)1 International alliance of NGOs based SOLIDAR in tradition of democratic & free labour movement European services sector including 40 The European Services Forum (ESF) major European services companies (all services excluding essential social services) National employers organizations Business Europe – previously UNICE Union of Industrial and Employers’ Confederations of Europe Protection of nature and environment Friends of the Earth Europe (FoEE) or World Wide Fund for Nature (WWF) (alternate)

Note: 1 A member since late 2005 when it replaced EPHA (the European Public Health Alliance), to represent women’s groups, which were up till then not represented in the Contact Group

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directly intervene in this process; purposefully leaving the selection of members to the stakeholders. However, it does monitor the process, thus trying to assure that there is a good representation of all sectors of civil society. In addition, if DG Trade notices certain members are hardly active, they will point this out to the group (Slob and Smakman 2007: 41). Many of the participating CSOs feel positive that the TCG is inclusive of all those working on trade, interested in and affected by the issues discussed within them. Where this has been found to not be the case, requests from new applicants have been considered and in some cases accepted, WIDE being an example of this. When that CSO raised concerns that their interests were not represented in the contact group, the Commission found an ad hoc solution to allow its involvement and no one in the contact group objected to them being included (CSO representative, personal communication, June 7, 2007). Given that if you amalgamated the membership bases of the 14 TCG members, this would total in the region of 10 million individuals, representativity appears relatively well secured. Indeed, regular participants in other similar forums note that this Commission service has a much greater consultation scope than others. While some TCG members feel strongly about its representativity arguing that they are representatives of particular constituencies and as such responsible for consulting these and bringing their concerns and issues to both TCG and CSD meetings, others feel less strongly. Such members argue that because the TCG is not a deciding body there is no need to guarantee its representativity. Where its function is simply to channel information from the Commission to the CSD, the issue of representation is unimportant as long as all CSD member organizations possess a constituency representative in the TCG. Some interests are reported as absent. The European Trade Union Confederation (ETUC), for example, although a member of the TCG, does not attend either TCG or for that matter CSD meetings. Anti-globalization movements are also absent from the TCG despite being active NGOs in the trade policy area; indeed, only the Spanish, Hungarian and Danish national affiliate groups of this CSO are even registered on the CSD database. Another interviewee notes an absence of education related interests (CSO representative, personal communication, September 17, 2007). Despite consumers being arguably the largest affected constituency of EU trade policy, BEUC is also the only consumer organisation on TCG and regular attendee at CSD. Whatever the view of participants on representativity, it is reported as one of the most often discussed topics. Although some participating CSOs say they would like to see a complete restructuring of the TCG and CSD, evaluations that have been carried out in the past have not led to any major new proposals on how this should be done. One CSO representative interprets this ‘as a sign that there is a tolerance for how the group functions’ (CSO representative, personal communication, June 7, 2007). The Commission rules are that organizations participating in the TCG and CSD have to be based in the EU or in a candidate country, or with an office

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in the EU. More recently, participants from developing countries have also been welcomed but then must either be invited by the Commission or by one of the participating European based organizations (DG Trade official, personal communication, October 19, 2007). While for some TCG/CSD participants, the issue of European-wide representation does not present an issue, for others, the relative absence of EU MSs that entered in the May 2004 and January 2007 enlargement rounds does. As the table below indicates, most of the CSD registered organizations4 are Belgian (Brussels) based. Indeed, the ‘Brussels talking to Brussels’ nature of the CSD is evident with 47% of the 782 organisations registered for CSD being located in Brussels.5 Overall there is a tendency for Northern European organisations to be better represented. In fact, the top nine countries are preMay 2004 Member States (MSs); with a particularly strong representation of Germany, UK, France and Netherlands. Nine of the ten countries situated in the bottom ten are new EU MSs; only Poland has double figures of registered organizations. This is most likely a reflection of the generally higher level of development of civil society in these countries. Table 5.2 Location of organizations registered for Civil Society Dialogue Belgium United Kingdom France Germany The Netherlands Spain Italy Austria Denmark Czech Republic Ireland Poland Finland Portugal Malta Greece Sweden Bulgaria Hungary Estonia Luxembourg Romania Cyprus Latvia Lithuania Slovakia Slovenia TOTAL

367 73 65 51 44 32 31 14 13 10 10 8 8 8 7 7 7 6 4 4 4 3 2 1 1 1 1 782

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If attendance at CSD is mainly limited to the relatively small world of Brussels-based groups, this arguably creates a missing link between the national and supranational levels of representation and the result may be that DG Trade is not consulting sufficiently widely. Part of the ‘democratic deficit’ argument has always been the perceived alienation of European citizens from the EU rendering the Commission’s connections to them of highest importance. In its own evaluations of the CSD, DG Trade has recognized that this poses a problem and mechanisms have been sought to generally sensitize new MSs to CSD, encourage more new MS participants in CSD by inter alia setting meeting agendas, which contain issues specifically aimed at new members, and to actually take CSD into the MSs. In 2007 for example, at least two CSD-related meetings were held in Bulgaria. There are, of course, cost implications in the latter mechanism and overall most agree that a great deal more progress needs to be made by DG Trade and the CSOs to increase participation in these MSs. From the Commission side, there is an implicit understanding that it is the responsibility of the CSOs themselves to ensure the representation of the 2004 and 2007 EU entrants. Certainly, the TCG members have all enlarged their internal membership to include all 27 EU members and in some cases beyond. However, these affiliations do not translate into the participation of individual representatives from new MSs in CSD/TCG meetings. Whatever the reasons behind the relative under-participation of new MS CSOs,6 their absence is a missed opportunity; given that many of the eastern European MSs continue to lack a culture of dialogue with their domestic CSOs, CSD could have provided a valuable opportunity for them to at least be heard at the European level. In response, DG Trade argues that ‘we can only tackle the easiest one – that is to make them aware that we exist … to explain why they should be part in this and to help them fund their participation … That’s what we are doing’. Certainly, there can be no obligation to attend because, as one CSO representative states meetings ‘would be unproductive and people would just sit there, not understand what’s going on, not be interested, have some touristy tour in Brussels, and then return home’ (CSO representative, personal communication, August 2, 2007). Business interests are said to overwhelmingly dominate external trade discussions at the EU-level, and Commissioner Mandelson’s views were, for example, said to be closely allied to one particular business group (CSO representatives, personal communications, June and September, 2007). The data certainly confirms the previous finding that certain CSOs question DG Trade’s definition of the different constituencies included in the TCG given what, in their view, is the too large inclusion of business and labour constituencies compared to the comparatively lower representation of the full range of NGO interests (Fazi and Smith 2006: 68). The position of ‘cross-sectoral European industry associations’ apparently ‘carries the greatest weight’ and of these BUSINESSEUROPE ‘is the clear leader’ representing, as of September 2008, 41 national industry associations

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from 34 countries. EUROCHAMBRES, an association of 46 national chambers of commerce, takes an equally active role in European trade policy and represents approximately 5.5 million companies (Gerlach 2006: 177–80). In the CSD, the high representation of business is reported to be particularly noteworthy at Doha meetings where the Commissioner is usually present. Notwithstanding this view of a preponderance of business interests, and in part facilitated by the expansion of the trade agenda, a ‘new form of trade politics’ has emerged, which places greater emphasis on ‘increased involvement of non-traditional actors’ such as not-for-profit interest organisations via ‘new channels of access’ to European trade policy (Jarman 2008: 26). Consequently, the type and number of groups claiming to hold a stake in the trade policy process has augmented. Such new forms of engagement and formal consultation opportunities are a widespread pattern; seen not just within the EU but also at WTO level. Certainly the CSD database of registered organizations confirms this increased involvement of not-for-profit interest organizations. It is also fair to say that the proportion of each constituency present at CSD meetings is highly dependent on the agenda topics up for discussion. Whereas on issues such as rules of origin, business possesses a greater competence and interest, on trade and climate change the same may be true of the NGO community (CSO representative, personal communication, June 5, 2007). DG Trade reports that where panels are constituted for CSD meetings, strong efforts are always made to ensure that all the main constituencies are present (personal communication, October 19, 2007). Most CSO representatives interviewed express a general level of satisfaction that the Commission is accommodating of all interests, treats all TCG members equally and that the group operates according to reasonable democratic standards (CSO representatives, personal communications, June 6 and June 7, 2007). It is thought that if impartiality were present in the TCG, CSD attendance would lower as a result and meetings would become dominated by the expression of CSO frustrations on this issue and lead to their ultimate failure. There is also a general recognition that not all demands pertaining to agenda items can realistically be met and that the Commission demonstrates pragmatism in most cases. DG Trade is however perceived of as demonstrating an obvious preference for those individuals/CSOs that are most proactive in terms of regular attendance and verbal contributions to meetings. Moreover, it is charged with having an obvious own and pre-set agenda: the promotion of the competitiveness of European industry, which ‘creates an inextricable bias towards business interests (Bizzarri and Iossa 2007: 27). Indeed, generally access to the European Commission is perceived of as ‘relatively easy for industry associations’ (Gerlach 2006: 178); mainly because they are thought to play a crucial role for the Commission as mediators of information required for the trade policymaking process. For one major business organization it is evident that DG Trade is more ‘pro-business’ and it adds that ‘ … it’s not a secret that we are quite happy … with the trade and competitiveness agenda of the Commission’ (CSO representative, personal communication,

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June 6, 2007). The Commission also played a major role in setting up an industry-related CSO; the ESF, when in 1998 Commissioner Sir Leon Brittan called upon the services industry to organize itself in order to provide business input to the WTO discussions. Perhaps the biggest equality-related issue is the link between TCG participation and inclusion in the Commission delegation at the WTO ‘ministerials’ whereby TCG member organizations are automatically included. Whether this constitutes privileged access or is simply a ‘big advantage’ to the extent that included CSOs get the opportunity to advise the Commission and to do some advocacy at the crucial time of the negotiation, is unclear. This issue has been raised during previous evaluations of the TCG/CSD process to counter criticisms that mainly emanated from CSOs representing developing countries. The conclusion reached was that if ‘NGOs dealing with developing countries’ wanted in the future to send their own representative as part of the WTO ministerial delegation then they could (CSO representative, personal communication, June 7, 2007).

Deliberation The format and content of CSD meetings do not lend themselves to deliberation. Given that CSD attendance can reach 200 and is regularly in the region of at least 60–80 people, such numbers do not lend themselves to debate. Formal CSD meetings are organised thematically. DG Trade usually provides an introductory presentation followed by presentations from officials in other Commission services. Alternatively, there may be a panel constituted with the help of TCG members who sometimes have the opportunity to organize speakers. Panels would also proceed according to a series of presentations and either between or at the end of these; the meeting is thrown open to contributions from the floor. CSD meetings suffer various problems which hinder their deliberative capacity. First, they are said to resemble press conferences by serving predominantly as a briefing mechanism accompanied by a question and answer session. This is principally the Commission delivering information to the assembled CSOs. Rather than a dialogue then, CSD has been likened to a series of monologues and a parade of contradictory statements (Bizzarri and Iossa 2007: 26). Moreover, it is reported that even where discussion does occur it is only on a purely technical level of engagement so that the discussion is never political, allowing DG Trade’s underlying assumptions, policy lines and overall objectives to be questioned (Bizzarri and Iossa 2007: 27). In their defence, DG Trade insists that although some meetings do entail information sharing, it is principally engaging in a dialogue via the CSD and the panels organised as part of the meeting programme are illustrative of this. Second, some particularly junior CSO representatives are said to simply turn up at CSD meetings in order to advance their lobbying careers by being noticed by the Commission or their peers and to ask a ‘smart’ question. Third, because it is believed by some CSO representatives to

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be the best means of influencing policy, there is a frequent repetition of similar questions or statements by some groups. In some cases, this may continue until a particular answer is given (CSO representative, personal communication, September 19, 2007). Such an approach is criticised by one CSO representative who asserts that such duplication is futile as the desired answer is probably not the one you will get from the Commission. Indeed, some insufficient answers ‘are still answers’ and can be instructive in themselves. Rather than ‘just engaging in never-ending discussion about getting a … proper precise answer to questions which in my opinion could not have an answer’, it is better ‘to write to the commissioner [and] ask for a private meeting’ (CSO representative, personal communication, August 2, 2007). For another CSO representative, the expression of well-known positions is unproblematic and considered to be part of the Brussels game; it is after all what lobbyists are paid for (personal communication, June 8, 2007). Nonetheless, the Commission’s uniform standard replies in response to substantive points raised are criticised for their lack of detail and for acting as a catalyst to participant disengagement (CSO representative, personal communication, June 7, 2007). In any case, the over dominance of some speakers and the sheer number of people taking the floor at CSD meetings is said to dilute any message that DG Trade could take away from the meetings. The high attendance also means that communication between participants, which is after all essential to real dialogue, is problematic. There is no liveliness or dynamism to the proceedings because ‘you will have to ask for the floor’ to make an initial comment, then perhaps ‘there will be a second tour of answer by the Commission, and so there will be maybe half an hour between the two interventions’. In short, rather than debate, the content is described as more an ‘information sharing’ or ‘Commission briefing’ (CSO representative, personal communication, June 6, 2007). A great deal of arguing for its own sake also occurs in CSD meetings; typical, one CSO representative states, of the Brussels NGO culture (personal communication, September 17, 2007). This fits with a view that certain CSOs are over critical of DG Trade and European level trade; happy to play their traditional watchdog role but less ready to advance constructive alternative solutions to the problems they highlight. CSOs with such a conflictual organizational culture or an aggressive lobbying style are criticised for taking this into CSD meetings and directing it at either the Commission or other CSOs; after all, this is not viewed as a lobbying location. According to one CSO representative, if some form of feedback is the desired outcome of CSD participation, ‘political controversy’, which is ‘fine in the media’, is ‘a waste of time for everybody’ concerned in the CSD and must be avoided (personal communication, June 5, 2007). The summary of an NGO evaluation of CSD is illustrative of the forum’s conflictual nature: As the participants entered the room one by one, the factions slowly became clearly displayed, for as usual NGO and trade union

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Indeed, it is reported that one of the first elements of consideration when participating in this ‘funny game’ of attending CSD meetings is to become aware when you enter the room of the best position in which to sit (CSO representative, personal communication, September 17, 2007). The positioning of CSOs according to ‘sides’ as these comments indicate simply means that the Commission receives criticism first from the NGO ‘side’ and then from the business ‘side’ and the ‘two constituencies … don’t really talk to each other’ (CSO representative, personal communication, June 5, 2007). The resulting risk is that the Commission gets ‘the message’ from one side that it does not do enough and from the other that it is doing ‘too much’; ‘the obvious conclusion is that you’re doing exactly the right compromise’ (CSO representative, personal communication, June 5, 2007). Further frustration occurs in relation to CSD participants who simply read out position papers, which is apparently most common in meetings with the Trade Commissioner. Reading preprepared statements means ‘they just defend’ so that the sole purpose of these CSO representatives attending is to deliver ‘the brief ’ that they have been given by their boss’, resulting in a loss of interaction and dialogue (CSO representative, personal communication, June 5, 2007). Reading position papers may be an issue linked to the level of seniority of the representative within their CSO; more junior members feel that they cannot speak ‘off their own bat’. However, because the most senior CSO personnel usually attend Commissioner meetings, seniority would not explain such behavior there. Overall, many of the aforementioned hindrances simply generate an overall lack of conciliation necessary for deliberation and a significant number of CSO representatives seem to feel that the CSD is part of a Commission-led public relations ploy to justify DG Trade activity. This service is criticised for simply using CSD to screen public opinion and CSO activities as a means to get to know who is working on which issues in the CSOs. Having identified these, it can refine its own arguments, which it can then promote in future CSDs. This is seen as a crafty attempt to both co-opt and educate CSOs about DG Trade’s own internal thinking. In this way, they can be seen to be listening without actually paying too much real attention to what CSOs are saying (view of one CSO interviewed by Bizzarri and Iossa 2007: 21). It seems obvious that the upbeat prognostic of CSOs regarding the value of CSD on its creation has gradually been replaced by a ‘sense of consultation fatigue and concerns that the CSD may not be a genuine dialogue space’ (Bizzarri and Iossa 2007: 2). Nevertheless, even where they do not add any substance,

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many CSO representatives continue to attend and participate because they feel obliged to be there to ensure that the issues and interests their organization covers are represented. In short, they have become tied to a formal institutionalized process, which is not always terribly effective (CSO representative, personal communication, June 6, 2007). The format and content of TCG meetings is both more simplistic and informal; an atmosphere fostered by the limited number of participants. Usually the agenda comprises just three items: feedback on previous CSD meetings, planning of future CSD meetings and any other business. To contribute, participants simply signal to the Chair; usually the DG Trade Head of Unit dealing with civil society dialogue. Only very rarely are formal tours de table used when the Commission wishes to ensure that it has heard all TCG member views on an issue. There is certainly greater evidence of dialogue in the TCG than the CSD, yet the content of the discussions is technical, limited to brief evaluations of previous meetings and suggestions for future CSD meeting topics; there is no substantive discussion of issues. This point is lamented by some TCG participants who think it is a ‘pity’ that such substantive discussion cannot occur in TCG where the format is smaller and would lend itself better to discussion and debate. Other TCG members are adamant that there should be no engagement in substance in this forum: ‘ … that’s not the place … there are a couple of people who just haven’t grasped what the group is there for and that waste everybody else’s time’ (CSO representative, personal communication, June 5, 2007). Overall there appears to be more evidence for deliberation in TCG than in CSD where it is said that the former ‘functions on the basis of consensus’ where individuals debate the merits of including a particular theme/issue on the CSD meeting programme or agenda (CSO representative, personal communication, June 7, 2007). Amongst other details,7 when registering in the CSD process, organizations must provide details of their organization’s expertise; indicating its relevance to the Commission’s work. The latter’s rationale for engaging in consultation processes is to add scarce knowledge resources to the policy process. The CSD is no exception; established in part to counter a knowledge deficit. Over recent decades, governments have faced increasing resource constraints, which have inevitably resulted in a diminished government knowledge capacity. At the same time, demands on government have grown. The business community, for example, provides valuable advice and information essential in framing trade policy, as well as links to business interests in other jurisdictions. CSOs have also recognised and made efforts to exploit this window of opportunity to plug the gap with their expertise, information and skills. CSO expertise is significant because it invests the forum with technical legitimacy. According to one CSO, the organizations meeting as part of the CSD do not need to demonstrate democratic legitimacy in the classic sense because they are not part of a forum that functions according to representative democracy. In short, ‘ … it shouldn’t matter whether I represent 5 million members or 5 members’ because ‘I’m not elected’. Instead ‘it’s my argument, the force of my

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arguments that should matter’ and the CSD provides an ideal location ‘for good arguments to come forward … (CSO representative, personal communication, June 5, 2007). Trade subject specific expertise is considered vital for the CSD and indeed is the ‘key’ to making it work (CSO representative, personal communication, June 7, 2007) and to it having the greatest impact. Trade is a highly complex policy area at the European level. Participation in its formulation requires a reasonable level of familiarity with and competence in approximately 368 bilateral trade agreements. It is certainly a minimum requirement to be working regularly on trade issues and to understand the general process of EU decision-making in this area i.e. role of EP and Council. An understanding of the Commission’s omnipresent jargon is also a prerequisite to participate in trade policy. One CSO representative accordingly underlines the Commission’s responsibility to ensure meetings proceed in a comprehensible manner and that acronyms are used sparingly (personal communication, June 8, 2007). Essentially, however, the acquisition of subject specific expertise and knowledge ultimately lies with the CSO representatives themselves. For the experienced lobbyists that are extremely well connected and talented this is unproblematic but others who are amateurs may find this more difficult. Whatever the level, their responsibility is to ensure they have a minimum, upto-date understanding of themes prior to CSD meetings. If not, the risk is that each meeting requires a re-familiarization with the basics, which is time costly. Moreover, CSOs must have the capacity to ensure that any information they glean from CSD is properly understood so that it can be reported back to their constituency. The level of turnover of CSO representatives attending CSD is obviously influential in deciding the level of commonly acquired knowledge and thus the departure point for each meeting. From the Commission’s point of view, most of its participating trade service officials are experts working full time on the issues. Accordingly, they expect to engage in a good-quality discussion with participants making it even more important that CSO participants have a minimum understanding on the trade policy and Commission agenda (CSO representative, personal communication, June 6, 2007). Some CSD meetings are more technical in nature than others. Sustainable Impact Assessment meetings, for example are designed to help evaluate the impact of trade agreements on different policy areas and comprise presentations of sustainability studies carried out by experts and academics. Other meetings are more political, leading some CSOs to report difficulties in ascertaining which type of expertise is required for each meeting: i.e. should they send lobbyist or technician/expert. Where a distinction is possible, the larger and well-staffed CSOs would always send an expert where necessary. Other necessary expertise reported is the development of skills enabling CSO representatives to function effectively in a supranational consultative environment such as social skills, empathy, speaking inclusively and on focus. Notwithstanding the fact that expertise has been found to be essential to the CSD process, most interviewees argue that sufficient levels are actually

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present; particularly among the most frequent participants and this despite the complexity of the policy area. One business organization asserts that over the years the CSD has reached a high level of technical engagement with civil society. The evidence for this is that groups engage with DG Trade on specific technical details which is proof of the expertise groups have developed on topics and their willingness to help DG Trade fine-tune its position (Bizzarri and Iossa 2007: 22). Some CSO representatives do complain that it is often possible to have the impression in CSD meetings that certain individuals have no idea what they are talking about, ‘especially if the dialogue is used … not as a forum for an exchange of views but purely to try and send political messages’ (CSO representative, personal communication, June 6, 2007). National organizations appear particularly guilty of presenting political opinions. On particular issues, the problem arises when some CSD participants feel obliged to make a verbal contribution to a meeting even where they have no particular personal expertise on the specific dossier or aspect of trade negotiations or have no expert with them. What they tend to have instead is a strong personal view which more often than not is misplaced or irrelevant and in expressing this, the risk is that more general discussions will ensue which will lead to lower interest in CSD thereafter; ‘after all, … there has to be a good quality to motivate you going next time’ (CSO representative, personal communication, June 7, 2007). Sometimes in the CSD it is the Commission which is said to most lack expertise on specific dossiers or aspects of trade negotiations. Within CSD, the Commission tends to have a very political discourse, which is void of expertise or analysis (CSO representative, personal communication, June 7, 2007). The TCG is reported as ‘the place where expertise is the least important’ given that it is merely an exercise in logistics (CSO representative, personal communication, June 7, 2007). What the TCG does require is a greater level of procedural knowledge regarding how the Commission functions and its future programme of priorities. This is so that themes can be proposed for discussion in CSD at an appropriate time in their policy development. TCG also requires a more general knowledge of CSO networks’ priorities so that relevant themes for CSD meetings can be proposed on its behalf. Finally, one of the major elements of expertise necessary for both the TCG and the CSD, according to the Commission, is knowledge of mutual constraints. The nature of trade policy at EU level means the Commission is limited in what it can do while CSOs have their own limitations, which the institution should recognize and try to understand (personal communication, October 19, 2007). With regard to openness, because it traditionally relies on delegation, executive authority, and technicality, the trade policy area is always at risk of arousing suspicions of illegitimacy (Meunier 2003: 7). The European level is no exception to this rule and indeed trade policy generally, and at the European level particularly, ‘has traditionally been opaque’ and ‘has long been outside the realm of public awareness and scrutiny’ (Gerlach 2006: 176). Part of the problem is that EU trade processes are dominated by a ‘relatively small

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expert policy community’ (Woolcock 2005: 394). Moreover, trade policymaking at the EU level offers the European Parliament (EP) and national legislatures only a very limited role while other institutions enjoy a very close working relationship. This is particularly true of DG Trade and the Article 133 committee; the closed forum in which the MSs instruct the Commission on its negotiating mandate, thus determining EU trade policy. Despite its opacity, it is significant that such elements of EU trade policy-making as the Article 133 committee fundamentally contribute to outcome legitimacy by improving efficiency. This is not to say that European trade policy lacks process legitimacy; like much EU policy-making, it is after all multilayered and provides multiple access points to civil society interests. The EU level may also be more receptive to some interests such as environment and consumer related than at national levels. In spite of EU trade policy’s aforementioned contributions to legitimacy on the input and output side, it has nonetheless been accused of representing ‘a model of efficiency and a travesty of legitimacy’ (Clegg 2003). The traditional opacity of EU trade policy has certainly come under attack with the globalization debate of the late 1990s serving as a catalyst for DG Trade to render its policy area more transparent. Mainly because of the events surrounding the Seattle WTO ministerial in December 1999 and the failure of the Multilateral Agreement on Investment (MAI) negotiations, this decade clearly witnessed a reconfiguration of trade politics and a crumbling of the consensus underpinning pro-trade liberalization arguments. Legitimacy concerns have started to focus on trade policy due to the changing nature of trade. First, there has been an extension of the trade agenda. Trade liberalization used to be largely about tariffs and quotas on certain types of goods and trade policy revolved essentially around economic arguments about jobs and prices. New trade-related issues have since emerged and new types of non-tariff barriers are tackled: financial services, telecoms, intellectual property, food safety, environmental protection, labour laws. These represent sensitive regulatory issues that used to be under domestic control. Their transference to the supranational level indicates a continuation of the gradual loss of national sovereignty witnessed in recent years. The overall result of this trend is a more complex, politicized trade environment, and increased requirements for legitimacy at the supranational level. The expansion of the trade agenda has necessarily been accompanied by a broadening of affected constituencies and some of these, perhaps most notably, the anti-trade liberalization one, have become increasingly vociferous and disaffected and have sought to open up the traditionally closed processes of trade policy. This tactic has been largely successful so that DG Trade, in response to the challenges represented by the growing impact of pressures from disaffected domestic constituencies and NGOs, has expanded its own trade policy consultation from a closed ‘club’ model to a more open ‘multi-stakeholder’ approach to embrace the expanding range of constituencies interested in the trade agenda. Certainly, a lack of transparency constituted a key element in trade negotiation processes and outcomes under the former closed model,

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whereby the negotiation of solutions to trade policy was essentially achieved via technocracy and élite diplomacy, insulated from domestic politics and other issues on the political agenda such as environment. These methods were identified as illegitimate by both CSOs and increasingly broad swathes of the general public, thus leading to demands for a more inclusive and transparent approach. As Hocking notes, there has been a realization that trade politics cannot be treated ‘as a brand of technocratic politics, insulated from the mainstream of political dialogue, a game for an elite operating behind closed doors, removed from prying eyes and the glare of publicity’ (Hocking 2004: 3). Concrete signs of the changes noted occurred in November 1998 when Sir Leon Brittan, the serving EU Trade Commissioner in the period following the collapse of the MAI negotiations and in the run up to the Seattle WTO Ministerial, announced the establishment of a civil society consultative meeting. In addition, for the first time a handful of CSOs were included in the Commission delegation to Seattle. In order to institutionalize the informal consultation processes, which were already in place, and as a result of the Seattle events and the need to help contain the anti-globalisation backlash, Pascal Lamy, the next EU Trade Commissioner, introduced the CSD in April 2000. Following the Doha Ministerial in December 2001, the composition of the TCG was adjusted to reflect the changing trade environment so that the CSD sessions were opened to all groups providing that they pre-register and the TCG’s specific aim became to establish a core of interested CSOs, which attend consistently to establish ‘genuine’ dialogue between CSOs and the Trade Commissioner. This was to be achieved via both direct meetings between the Commissioner and CSOs as well as direct dialogues via the Internet. Despite the stated changes to the overall EU trade agenda, there remains a belief amongst a group of non-business CSOs that Charlemagne building, the Brussels location on Rue de la Loi of DG Trade, possesses an ‘ivory tower culture’. Consequently, this service, it is said, continues to remain unused to wide consultation and subject to internal variation as to degrees of openness of individual officials and their attitude towards consultation, which may range from ‘ignorance to strong support’. As one CSO representative notes, many of the DG Trade officials that responded to a questionnaire linked to a CSD evaluation were unaware of this forum’s existence (personal communication, June 5, 2007), which is in itself very telling. There appears to be wide agreement, however, amongst business and producer interests that DG Trade operates a reasonably open system. DG Trade certainly retains control over the TCG/CSD framework and process which, ‘translates into power regarding process and outcome’ (Bizzarri and Iossa 2007: 3). Although there is some space within the CSD for CSOs to propose ad hoc meetings and timetable actions, it is DG Trade that actually defines agenda and chairs most, if not all, events. The CSD is not, therefore, necessarily seen as a ‘space for engagement as equals, but as one which DG Trade considers it has benevolently granted to civil society’ (Bizzarri and Iossa 2007: 3).

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A significant aspect of openness concerns the degree to which European citizens are aware of the TCG/CSD and its role. Some CSO representatives argue that it is necessary for the public to know that these structures exist and what their aims and function are. A case can be made that the public is already adequately informed about the CSD. Some CSOs affirm that the DG Trade unit in charge of CSD is doing everything possible to achieve better outreach (CSO representative, personal communication, June 5, 2007). Indeed, the process has a public webpage on the Europa server, which includes access to procedural documentation such as meeting dates, contact details of Contact Group members, agendas, minutes and participant lists in most cases for previous CSD meetings. According to one CSO representative, ‘ … I don’t know what more we can do … I mean nowadays if you have an interest in something you just Google … [it] and you find out … So if [the public] are not aware it means that they are not interested’ (personal communication, June 8, 2007). Another representative notes the CSD is essentially devoid of interest to the public, ‘ … it’s just part of what we do in the European arena in terms of lobbying and exchange of information or gathering information’ (personal communication, August 2, 2007). Even where such interest exists, ‘ … the tricky thing is to make it palatable to the general public … it’s difficult to vulgarize, popularize issues on rules of origin … ’ (CSO representative, personal communication, June 5, 2007). In addition and as a result of the instrumentalisation of the EU by national political constituencies for their own domestic reasons, some parts of the European citizenry are thought to have a prejudiced, biased view about Europe. They may also perceive it as a highly complex system, which equally lacks appeal and relevance to their lives (CSO representative, personal communication, June 7, 2007). The public nature of the CSD with the inclusion of such a wide range of stakeholders, may actually affect the quality of the information provided by the Commission. Given that meetings are public and DG Trade’s primary interest in such circumstances is to be seen to be accommodating towards all interest groups and avoid any public confrontation, it is inevitable that its position will be diplomatic (Bizzarri and Iossa 2007: 24). Other CSOs would disagree that the public know enough and assert that the Commission needs to better communicate on this (CSO representatives, personal communications, June 6 and June 8, 2007). CSD is certainly not open to the public as individuals unless they are grouped together as a CSO based in the EU or a candidate country. One organization argues that the Economic and Social Committee must take some responsibility for this. After all it sees itself as a ‘bridge between Europe and organised civil society’ and holds a seat on the TCG but yet delivers nothing in raising public awareness of what goes on in this forum, which raises the question ‘ … what are we paying for with the economic and social committee?’ (CSO representative, personal communication, June 8, 2007). The link between the EESC and the CSD does indeed lack clarity. In terms of the overall transparency of the TCG, one CSO calls for greater clarity from DG Trade on this structure’s mandate and function (personal

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communication, September 19, 2007). There has been particular confusion about the composition of DG Trade’s delegation to the WTO ministerials in relation to the membership of the TCG. Suspicions focus on the fact that the organizations (although not necessarily the individual representatives) that make up the TCG, also form the basis of the Commission delegation, which links back to concerns raised under the principle of putative quality. A further concern highlighted in relation to the TCG is that the Commission does not disclose sufficient information to ensure the CSOs can operate effectively within it. One reason for attending TCG meetings is to be involved in the planning of future CSD meetings, but to do this necessitates en amont knowledge of the Commission’s future anticipated policy plans. ‘If the Commission does not tell you what its next big policy-making project will be; if it does not give you that information, then you can’t plan the future CSD programme effectively’ (CSO representative, personal communication, June 7, 2007). It is feedback-related transparency that is the key to perceived success of this DG Trade consultation process (Bizzarri and Iossa 2007: 35). Feedback was a key issue in a DG Trade commissioned study on CSD. This document was given the sub-title ‘A voice not a vote’. The authors note however that ‘While civil society does not expect to be granted a vote, there are concerns about the way its “voice” is taken on board, due to the lack of clear mechanisms outlining how such a voice is acted upon’ (Bizzarri and Iossa 2007: 3). Indeed, the Commission does not systematically provide reports on the documents or positions they are working on, and there is no formal mechanism via which the Commission reports on how it has utilized CSO contributions and whether these were considered during the policy-making process. Certainly, more concerns were voiced on this area of transparency than any other. The first inadequacy is the absence of any general explanation of how and why DG Trade takes certain decisions or general policy lines. The second is a perceived failure to acknowledge sufficiently receipt of specific CSO advice and positions and clear explanation of which contributions influenced the final policy decisions. Whereas when the CSD was first established, DG Trade used to post stakeholder position papers on their website together with their own (Bizzarri and Iossa 2007: 25), today there is no public record of the position papers submitted to it. Although TCG meetings always have the evaluation of recent CSD meetings on their agenda, no particular analysis of individual CSD meetings and the discussions that occurred as part of them is undertaken (CSO representative, personal communication, June 6, 2007). Follow-up to meetings is limited, in a best-case scenario, to the exchange of business cards with Commission officials at the end of meetings or an invitation from the Commission to a CSO representative to respond to questions via email (personal communication, June 6, 2007). DG Trade could better close the feedback loop via regular communication with CSOs between meetings and the production of regular reports on how advice and comments were taken on board and why certain views raised in the framework of TCG/ CSD were not taken up (CSO representatives, personal communications, June

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7 and September 19, 2007). The absence of feedback has been frequently raised at both TCG and CSD meetings and DG Trade has promised to do more in this area, but with little evidence of concrete action reported to date by CSOs (personal communication, June 8, 2007). Only one CSO representative suggested that the level of feedback was adequate and this was based on the view that within the European institutional framework, the Commission is only obliged to provide feedback to the EP (CSO representative, personal communication, June 8, 2007). In terms of equality in setting the CSD agenda, all CSOs are able to suggest topics for meetings either directly to the Commission unit responsible for organizing meetings or via their ‘constituency representative’ on the TCG. Individual CSOs may propose to DG Trade and the CSD team at any time topics they would like to see discussed in the CSD as well as suggestions for improving the process. Where this occurs, DG Trade subsequently refers these topics to the Contact Group, which will decide whether a meeting should be organized and dedicated to this topic (Slob and Smakman 2007: 35). This means that three mechanisms are in place to define the topics for discussion: Commission wishes; wishes of the Contact Group; and wishes of the larger civil society spectrum. Interviews indicate that agenda requests are likely to be listened to. Moreover, numerous opportunities exist to contribute to the agenda, which is circulated a few days prior to the meeting by email (CSO representative, personal communication, June 5, 2007). Additions to the agenda are also permitted under Matters Arising and AOB (CSO representative, personal communication, June 8, 2007). DG Trade nevertheless retains a significant degree of power to set the CSD agenda to the extent that it timetables, chairs and arranges Commission staff attendance at meetings. In one evaluation of CSD, a CSO representative reported that the ‘way the meetings are structured puts DG Trade at an advantage’. This is because ‘DG Trade engages in a discussion with us, but its position is stronger as it sets the framework. If you set the agenda and chair a meeting, you can guide the events’ (Bizzarri and Iossa 2007: 20). The risk run by this overriding Commission control is an agenda focused on achieving practical policy solutions, rather than allowing a systematic critique of European trade policy in general, which many NGOs would favour. One CSO comments that although it is possible to propose meetings, whether they get accepted is dependent on Commission capacity in terms of staff and venue and its willingness to facilitate a meeting in the proposed area. While no themes are particularly contentious, the Commission would not apparently accept some for discussion (CSO representative, personal communication, June 7, 2007). Nevertheless, DG Trade asserts that most meetings are organized based on the suggestions of CSOs (personal communication, October 19, 2007). On a further equality-related issue, it is claimed that the Commission shows disregard for rules on equal allocation of time and space for CSOs to express themselves during formal meetings. In a typical CSD meeting chaired by DG Trade questions are taken from the floor in groups ‘so that those they don’t

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like can be squeezed out’. In addition, DG Trade is said to ‘interrupt if you are making a strong point, with the excuse that there are a lot of people waiting to ask questions’. When replies are forthcoming, ‘you don’t have the chance to challenge them because they have already moved on to the next round of questions’ (Bizzarri and Iossa 2007: 20). It is also noteworthy that where a Commission response to a question is not deemed satisfactory, the attendance numbers and time limitations mean that ‘ … it’s not so easy to … take the floor again’ (CSO representative, personal communication, June 7, 2007). Many of the CSOs interviewed commented positively on the ease with which they were able to take the floor when requested. Problems surface where there are very large attendance numbers and many resulting requests to speak. The meeting length is often insufficient to accommodate comments from all CSOs. Other interviewees complained of a small group of CSOs – particularly large business organizations and major NGOs – dominating the discussion time. This is perhaps ‘because they have more capacity, they have more confidence, they know the processes better, and they know the people in the Commission as well’ (CSO representative, personal communication, June 7, 2007). One response is that the most vocal group is contingent on the themes under discussion: where a group is very familiar with the issue, they may dominate the discussion. The risk is that ‘if you look at one single meeting maybe … the level of participation … might be unbalanced, but it does not necessarily have to do with the fact that there are interests that are not allowed to speak up’ (CSO representative, personal communication, June 7, 2007). The fact that in some CSD meetings if you wish to speak ‘You have to stand up and you have to walk to a microphone’ may also pose problems to some inexperienced individuals lacking in confidence (CSO representative, personal communication, September 19, 2007). One business organization comments that as CSD meetings attract a large audience, and although DG Trade are not showing ‘preference’ to particular groups … sometimes it may be easier for them to give the floor more rapidly to those CSOs that are more familiar to them (personal communication, June 6, 2007). Rather than the meeting being ‘pre-cooked or arranged’, it is perhaps more that DG Trade prefer to listen first to a CSO whose position is familiar and who can ‘set … the tone of the discussion … ’ (CSO representative, June 6, 2007).

Effectiveness Based on the goal-attainment approach, the effectiveness of the TCG and CSD is firstly contingent on the presence of an ultimate end goal and secondly, that this goal is clear and unambiguous. In accordance with the system-resource approach, their effectiveness is contingent on the presence of certain design features. The first of these is also that the structure should have clarity as to its formal goals and purpose. It should equally be clear as to the nature and scope of its task or mandate, expected output and the procedure mechanisms (such as rules, policies, and guidelines).

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DG Trade’s general mission statement states that it seeks ‘to provide the public, both sides of industry, civil society and professional circles with clear, comprehensive and up-to-date information while seeking their opinions’.8 The TCG/CSD forms part of this mission, intended as it is as a mechanism for DG Trade to gain knowledge of civil society opinions. The CSD’s general aim is to ‘develop a confident working relationship between all stakeholders interested in trade policy, to ensure that all contributions to EU trade policy can be heard, and to put into practice the European Commission’s philosophy of open governance as expressed in the 2001 White Paper’.9 General CSD meetings are also organized to discuss trade policy overall and ‘the state of play at strategic points in the process’.10 They are intended to ‘serve as an open forum for topics on the trade agenda and for issues related to the organisation of the dialogue’.11 Elsewhere the objectives of DG Trade’s dialogue with civil society are further specified as: 1) To consult widely; the Commission wants to take into account the views of all interested parties when drafting policies and proposing action; 2) To address civil society concerns on trade policy; as globalization obviously raised concerns for many in society, the Commission wanted to find out more about these concerns, debate specific issues, answer questions if possible and take up suggestions for action made by CSOs; 3) To improve EU trade policy-making through structured dialogue; debating the questions that are shaping public opinion as a way of updating and strengthening the Commission’s expertise, which is important as these issues also have an impact on public acceptance of trade policy; 4) To improve transparency; by engaging in a dialogue with civil society and making documents available on its website, DG Trade is looking to achieve greater transparency (of the policy-making process) (EC, 2005b). The CSD meetings’ objectives have been described as ‘quite obscure’ to the extent that ‘nobody really knows’ what they are for (CSO representative, personal communication, June 7, 2007). The diverse definitions of the aforesaid objectives of consulting widely, addressing civil society concerns, improving trade policy via structured dialogue and improving transparency that are presented in assorted DG Trade documents, constitute perhaps the greatest hindrance to the intelligibility of goals (Bizzarri and Iossa 2007: 5). Inadequate clarity is also one of the conclusions reached by a DG Trade commissioned CSD evaluation and improved lucidity was a resulting recommendation (CSO representative, personal communication, June 5, 2007). This lack of clarity is especially significant given that CSD meetings are in part intended to increase the overall transparency of and communication of information to citizens on EU trade policy-making. Notwithstanding these issues, the formal CSD mandate is generally seen to be largely about information update and exchange as well as exchange of views between the Commission and CSOs. In short, it constitutes a sort of Commission briefing on the one

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hand where DG Trade seeks to explain its future policy plans. On the other hand, it constitutes an expression of views and comments by the CSOs to DG Trade whereby the former raise awareness regarding their major points of concern. Having taken note of this formal role, the question arises as to whether it should ‘be more ambitious’ (CSO representative, personal communication, June 5, 2007). In addition to issues of opacity and in part the result of a mismatch between participants’ goals and ambitions, the CSD represents a ‘crisis of expectations’ as to the objectives of consultations, the means by which they are to be achieved and likely outcomes (Hocking 2004: 22–23). The TCG’s main function is to act ‘as a facilitator and sounding board for DG Trade’ and to assist in the general development of CSD. Its stated tasks are ‘to contribute to transparency in both directions, and to help with the circulation of information to the wider group of the participating organizations’ constituencies. It also reviews the CSD process and sets priority topics as necessary by proposing matters for discussion in the CSD, and advising on organization matters. In fulfilling these tasks, the TCG should serve ‘to steer’ the broader CSD process on behalf of the various sectors and therefore act as a mechanism to help structure and organize it (Mandelson 2005 in Slob and Smakman 2007: 11). Rather than approaching each individual participant to set the theme and agenda for CSD meetings, DG Trade considers the TCG a more efficient means to organize the dialogue process. As well as helping to set the CSD meeting agendas and programme running-order, the TCG members are also responsible for reporting back and consulting with their respective constituencies as well as keeping other participants informed12 (Slob and Smakman 2007: 42). In fulfilling this reporting-back function; the TCG should serve as the ‘interface between the European Commission and the different civil society families’ (Bizzarri and Iossa 2007: 3). As with the CSD, there is some confusion and ambiguity surrounding the TCG’s ‘role, appointment and accountability’ which ‘make the group vulnerable to influence’ (Bizzarri and Iossa 2007: 3). Indeed, it is unclear amongst CSOs whether the TCG is supposed to be a representation space or simply a channel between families of European interest groups and DG trade. In short, nobody actually knows for sure what the TCG’s exact nature, function or purpose is (Bizzarri and Iossa 2007: 36). Perhaps the largest area of misunderstanding and consequent source of much strong emotion, relates to whether the TCG should concern itself with substantive debates on trade policy and its future direction. For the Commission, it is clear that today ‘there is no content on trade issues in the contact group’ (personal communication, October 19, 2007). Some CSO representatives support this decision because discussions of substance would be exclusionary and result in organizations outside the TCG structure wondering why they cannot also be present at policy-related discussions in order to put forward what they perceive as their own valid views on topics. Furthermore, if the membership of TCG expanded so that all CSOs that desired could attend to discuss substance, there would be overlap between the two structures (CSO representative,

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personal communication, June 6, 2007). Moreover, if the TCG were to become ‘a mini CSD’, suddenly the issue of representativity is highly significant. TCG members like WIDE or WWF/FoEE represent other CSOs in the same constituency family and as such advance ideas and proposals they have received for future CSD meetings on their behalf. If the TCG became a venue for policy development then its members would have no mandate via which it could speak on behalf of the numerous other CSOs participating in the CSD. Increased communication represents the best antidote to much of the confusion surrounding the TCG. As one CSO representative argues, as long as CSD participants remain convinced that the TCG members make policyoriented decisions, there will be a lot of unnecessary frustration. Some means of awareness-raising as to the distinction between the two structures or perhaps if the TCG met in public or in the presence of CSD participants, ‘They would see that it’s not as dramatic as they maybe think … ’ (personal communication, June 7, 2007). For some, the ‘more policy oriented’ meetings that were previously organized under the banner of the TCG were ‘better’ and more ‘interesting’ because several CSOs were present and this ‘petit comité’ setting provided an opportunity to put forward and listen to different but specific points of view. To envisage doing the same in the broader CSD meetings comprising in excess of one hundred participants, is more difficult (CSO representatives, personal communications, June 5 and 8, 2007). The conclusion is that DG Trade are not taking full advantage of the opportunity these smaller and more select TCG meetings provide and if they are to be no more than about logistics ‘we can do it by email’ (CSO representatives, personal communications, June 5 and 8, 2007). Other CSO representatives share the view that TCG ought to be a more influential body vis-à-vis DG Trade than the CSD, with specific follow-up assured on its policy-oriented proposals and for it to be recognized as a consultative body (personal communications, June 7 and September 17, 2007). Although it recognises that TCG’s role has ‘evolved throughout time’, the Commission notes that today, following different evaluations and the recommendations that have emerged from these and other lengthy discussions with CSOs, it only has an ‘administrative role’. In short, the TCG helps plan the CSD by advising the Commission on the types and structure of meetings that should be held. At the same time it acts as a ‘sounding board for the wider position of the constituencies’ involved and contributes also to the collection of feedback from participants on past meetings (personal communication, October 19, 2007). Most interviewees understand that the TCG fulfils this logistical, organizational, facilitating and coordinating role and that it serves an administrative, procedural and technical function. To reflect this, the TCG agenda invariably consists of three points: evaluation of past events, structuring the dialogue, and future events. Accordingly, TCG makes an input to the future CSD meeting programme by tabling proposals for meeting themes and dates. It regulates the overall functioning of CSD by for example drafting CSD meeting agendas and making changes to procedures such as the travel

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reimbursement scheme. The TCG also serves a feedback function by evaluating past events in terms, for example, of the level of attendance and participation. More generally the TCG ‘guid[es] the Commission and civil society in achieving the purpose of having a dialogue’ (Commission official, personal communication, October 19, 2007). Although TCG meetings do not allow for substantive policy discussion, and despite their promotion as an administrative and logistical forum, they nevertheless clearly possess a political dimension too; judgements as to what meetings are organized as part of the CSD programme and what issues appear on CSD agendas constitute political decisions. For DG Trade, the TCG serves to ensure that if it spends the time and money necessary to organize a CSD meeting, there is enough interest among CSOs to ensure their attendance. In addition, the TCG restricts the overall constituency that defines the agenda: instead of DG Trade having to deal with large interest constituencies and a multitude of requests for meetings to run as part of the CSD programme, it can limit this to 14–15 requests via the TCG (CSO representative, personal communication, June 7, 2007). It is also noteworthy that TCG in part serves a legitimising function for the broader CSD in that the former enables the Commission to argue that the latter is being largely organized and run by civil society stakeholders. After clarity of goals, a second design feature affecting TCG/CSD effectiveness is absenteeism and participant turnover. Where these are high, effectiveness is likely to be lower. The first noteworthy point with regard to attendance is that levels at CSD meetings tend to be conditional on the agenda issues: Rules of Origin may attract an audience with a higher proportion of business groups than NGOs while sustainable impact assessments may see the reverse. CSD meetings that take place in the run up to WTO Ministerials, or with the Trade Commissioner or on Doha General Updates and Free Trade Agreements (FTAs) are automatically well attended. CSOs will also be selective about which meetings to attend based on their professional priorities or ability to fit meetings around other relevant events taking place. Some groups such as the World Wildlife Fund (WWF) and Friends of the Earth Europe (FoEE), have struck an agreement to attend in rotation. For some CSOs attendance is a must because absence at meetings equates, to a certain extent, with having ‘given up’, giving others the floor so that ‘their views might be heard more often than mine’ thus unbalancing the debate (CSO representative, personal communication, June 8, 2007). There has been a general decline in attendance since the CSD’s establishment to the extent that it has become mainly limited to a small group of Brussels-based civil society representatives (Bizzarri and Iossa 2007: 5). Some groups, although registered on the CSD database never attend. CSOs ‘who are quite seasoned in the ways of the European Commission simply do not see the point of attending’ (CSO representative, personal communication, June 7, 2007). Indeed, ‘Only about half the people who register for the meeting actually show up’, and if you look carefully you can see that out of all the organizations registered ‘only 31 show up regularly whilst 200 of them have never

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attended a single meeting, and over 400 of them have not attended a meeting in the past 12 months (Bizzarri and Iossa 2007: 18). When only a small number of stakeholders participate regularly in CSD meetings, this suggests a general lack of interest in CSD (Bizzarri and Iossa 2007: 45). Some CSOs are simply uninterested and/or unable to afford the financial and temporal resources necessary; especially to participate in a process that is not seen to help the organization achieve its objectives, or is perceived as being of little use in terms of accessing information or influencing DG Trade’s policy line. An example of such a group is European Farmers Coordination (CPE) who states also that it could not justify asking a French farmer to abandon his farm for a day or two to attend CSD given its policy relevance (view expressed in Bizzarri and Iossa 2007: 33). Personnel turnover within CSOs can also affect participation and proactivity and thus overall effectiveness. Because even the largest CSOs do not have a staff exceeding 30 to 40 individuals, and some possess even less, the availability of senior positions is limited. As a result, junior personnel will frequently change organization in order to progress in their careers. Where CSOs have only one person working on trade policy issues, such personnel changes can mean a complete loss of knowledge and networks to the extent that staff turnover in industry associations might adversely affect the accumulation of expertise (Gerlach 2006: 179). This can result in the raising of issues that have already been resolved and thus cause recurrent friction. Of the TCG members interviewed, only two had been in place for more than 24 months. DG Trade contends that whatever the cause of deficiencies in these areas, CSO attendance and participation at CSD meetings are out of its control and partially lays the responsibility for them with TCG members. Despite suggesting that it lacks any control over this element, it is significant that DG Trade base their evaluations of CSD meetings during TCG discussions on the number of people that attended and the liveliness of the discussion. Other CSD participants also regard ‘Big turnout and lively discussions’ as a valid benchmark to assess CSD effectiveness (CSO representatives, personal communications, June 6 and 8, 2007). The next design features affecting effectiveness are meeting frequency and density. Where both these indicators are high, effectiveness should be best assured. First with regard to meeting frequency, DG Trade’s website does not provide information on the number of TCG meetings that have taken place since they were added to the overall CSD agenda in 2000. The CSD on the other hand is the most active consultative forum of all those examined as part of this study. General CSD meetings involving the Commissioner for Trade and top officials were the first to be established in November 1998 on an ad hoc basis. They have since become more regular. During 1999, a series of other meetings on specific subjects began to take place between CSOs, DG Trade, other Commission services and the Commissioner for Trade. The CSD actually comprises a series of different meetings; indeed, the structure envisages four types:

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1 General meetings with the Commissioner which take place approximately 2–3 times per annum whose aim is ‘to update civil society on emerging trends in trade policy-making … or on the state of play of trade negotiations’ (Bizzarri and Iossa 2007: 5). 2 Regular meetings which take place every two months with senior officials for discussions on specific areas of trade negotiations 3 Ad-hoc meetings – organized mainly at CSO request: illegal logging, fair trade, SIAs. 4 Meetings at WTO Ministerials (Slob and Smakman 2007: 34). Over recent years, the general meetings with the Commissioner and the regular meetings have been merged. In addition, ad hoc meetings have become broader in terms of the issues they cover. Regular CSD meetings in which the TCG is involved take place in clusters about once every six to eight weeks. Ad hoc meetings may punctuate these where DG Trade considers it ‘timely and appropriate’ (n.d.). The Trade Commissioner continues to call and host general meetings on at least a twice yearly basis. As the table below demonstrates, since their inception, the number of CSD/TCG meetings per year has reached in excess of 30. As regards density, TCG and CSD meetings last on average between 45 minutes and one hour and one to two hours respectively. Over 2008, most CSD meetings lasted 1.5 hours thus totalling approximately 42 meeting hours over the 28 meetings. The level and quality of administrative support provided by DG Trade is a further design feature influencing effectiveness. For the CSD, DG Trade’s Unit C1 provides the secretariat. Two full-time members of staff, a coordinator, an assistant, and a part-time member of support staff all work on the CSD and related issues. Officials from DG Trade and other DGs and services also participate on different topics. The Commission official that acts as CSD/ TCG moderator, has been involved in the process since 2006. However, the Head of Unit has changed between times. The CSD/TCG secretariat aims to confirm the dates of meetings and the topics set as early as possible in advance, with an aim to doing so at least a month before. Nonetheless, CSOs complain that some ‘meetings are called with variable notice by the Commission’ (Bizzarri and Iossa 2007: 3) and some date changes are extremely last-minute. This is obviously problematic given that it affects attendance. The

Table 5.3 Number of Civil Society Dialogue meetings per year Jan. 2002–Oct. 2008 2002

2003

2004

2005

2006

2007

2008

42

37

31

38

30

32

28

Source: http://trade.ec.europa.eu/civilsoc/index.cfm & Slob & Smakman 2007: 35. setting out the number of CSD meetings per year Jan. 2002 – Oct. 2008

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website indicates that over the course of 2008, two meetings were changed and one was cancelled. No comparison with previous years is possible because this information is unavailable on the site. Given that CSD meetings are decided in the context of TCG, dates are often set in advance in accordance with diaries of TCG members. The secretariat also aims to make agendas available as soon as possible when dates are confirmed. In fact, TCG agendas hardly ever vary from one meeting to the next and agendas for meetings held under the remit of CSD are posted on the Website. At the time of writing, agendas are available for meetings scheduled one month in advance. When CSOs complain of late-circulation it is because the Web-posted agenda has not been directly circulated by email until only a few days in advance to the CSOs that are registered to attend. However, they have usually been available for longer on the Web, at least in draft form, with the only information likely to change at short-notice being the names of assigned speakers. A regular criticism concerns the apparent lack of prior availability of preparatory materials, background documentation, notes and working documents in order to allow participants to read and research issues in advance of meetings. Some documents do arrive beforehand, but this can be as late as the day previous and include lengthy texts that cannot always be read in time. One CSO representative rejects this as an issue stating that the prior availability of materials would actually formalize the process so that the purpose of the meeting: as a platform for hearing the informal comments of Commission representatives, would be lost (CSO representative, June 5, 2007). This only goes to illustrate the absence of consensus on the CSD’s primary purpose. The secretariat is also responsible for ensuring that short reports are posted as soon as possible after meetings with at least a description of the issues dealt with. Ambiguity surrounds the question of whether minutes exist or not: while some CSOs believe there are none, others acknowledge the existence of at least brief summaries. The CSD Website indicates that minutes or a meeting report for most of the ad hoc meetings that take place exist, although meetings with the Trade Commissioner are usually un-reported. It would therefore appear that minutes are usually drawn up in some format and are posted to the website but not circulated directly to participants; this is perhaps the source of much of the confusion. Two further issues were raised by CSOs regarding CSD logistics. One was the procedure for travel reimbursement for non-Brussels-based CSOs. This has been simplified recently and will perhaps allay the concerns raised about its complexity. The other was the allocation of sufficiently large rooms for the Commissioner CSD meetings where up to 200 people may attend. On at least one previous occasion, the audience was split between those in the same room as the Commissioner and an overflow in an adjacent room who only received aural transmission of the meeting. In respect of timing, one DG Trade official remarks that the Commission seeks to consult civil society before a policy initiative is even drafted; that is,

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at the proposal and even pre-proposal stage. However, CSOs comment that usually issues arise for discussion on the CSD agenda too late because they have already moved within the Commission from being an idea to a policy (CSO representative, personal communication, June 7, 2007). Indeed, it is considered that if an issue gets to the CSD, it has already been the subject of substantial reflection and that written documentation relating to it will already exist (CSO representative, personal communication, June 6, 2007). The same official also notes that DG Trade is ‘totally open’ as to what topics can be discussed in the framework of CSD. There are, however, a few apparent constraints. While some meetings can be planned a long time in advance because they concern a topic that will not evolve, on other issues it may be difficult to set dates for discussion because flexibility is required. For example, discussions on the Doha Development Agenda evolve erratically. It would make little sense to schedule a CSD meeting where documents have not been released. After all the Commission wants to ensure both a high participation of CSOs as well as a good turnout of officials. Scheduling a meeting with no real content would send the wrong signal, perhaps deterring future attendance and interest. In addition, CSD meetings with the trade Commissioner are always subject to change, given that a high-level individual diary has to be taken into consideration. The limited number of TCG/CSD meetings that take place annually means that some issues will naturally fall between events and cannot be discussed in a timely fashion. In practice, the Commission is probably better off not being constrained by specified meeting dates; awaiting the next opportunity to consult civil society before it can move forward on a dossier. DG Trade remarks that it is also in large part the CSOs’ responsibility to suggest discussion topics, set the agenda and even suggest speakers to attend CSD meetings. This is especially true given that the nature of TCG is to help establish the future CSD program. This is a view accepted by one CSO representative, who notes that even though there is a tendency for the Commission to organize meetings late, more out of habit than any other sinister motive, it is the responsibility of the CSOs to ensure that these proposals come sooner. After all, DG Trade, along with many other Brussels-based official bodies are heavily prone to ‘leaks’, and any lobbyist should always be ahead of the official agenda and know what’s in the pipeline; accordingly it is the responsibility of CSOs, via the TCG, to propose meetings early (personal communication, June 5, 2007). Under the system-resource approach, the level of seniority of Commission officials and CSO representatives attending meetings is a design feature that influences effectiveness. The level of seniority of the officials attending CSD is noted as a cause for concern and indicative of low sponsor commitment. ‘Basically you get the overall feeling that this process … is not at all taken seriously, and this is visible by … who attends these meetings on behalf of the Commission’ (CSO representative, personal communication, June 7, 2007). One case was noted whereby the DG official present at an update meeting on the Doha negotiations was so junior that he began by explaining

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the ABC of services negotiations ‘to the disbelief and frustration’ of those present (Bizzarri and Iossa 2007: 24). Several oral and written requests have been made to DG Trade asking them to send more senior officials to improve the quality and transparency of meetings. This request is based on a common belief amongst CSOs that officials higher up DG Trade hierarchy are more likely to divulge sensitive information as opposed to their junior counterparts. More recently the Deputy Director General of DG Trade has attended CSD meetings (Bizzarri and Iossa 2007: 24). Under the system-resource approach, the presence of particular participant behavioral features will affect effectiveness, the most noteworthy being the level of proactivity. The CSD was initially ‘welcomed by CSOs as a space for policy engagement’ (Bizzarri and Iossa 2007: 2) and there is a general belief, especially amongst NGO-type CSOs that ‘civil society has been increasingly active’ (CSO representative, personal communication, August 2, 2007) in forums like the TCG/CSD. It is, however, accepted that ‘ … there are different levels of engagement, different levels of interest’ (CSO representative, personal communication, August 2, 2007). Despite claims to the contrary, a lack of proactivity on the part of some CSOs has nevertheless been highlighted as a problem. They are charged with being ‘too passive in their engagement, expecting DG Trade to take responsibility when, as co-owners of the CSD, they should realise that the burden also lies with them (Commission official in Bizzarri and Iossa 2007: 16). One participant wonders if some CSOs are simply there ‘because they have to show they are there to their constituents’ (CSO representative, personal communication, August 2, 2007). The interviews carried out as part of this study also demonstrate that some CSO representatives are completely unaware of the materials available on the CSD Website, especially importantly the minutes which are posted there. This may be an indicator of low interest levels. Overall, the level of frustration amongst CSOs is high, perhaps because the CSD represents the only formal forum for them to engage with DG Trade. Given the CSD’s failings, the CSOs see a need for a formal process of policy consultation (Bizzarri and Iossa 2007: 45). If the CSOs expect more out of CSD it is thought that ‘they should be prepared to table reform proposals themselves and take a proactive approach to change’ (Commission official, Bizzarri and Iossa 2007: 16). Indeed, DG Trade would like to see ‘more effort from civil society’ to enter into a ‘content-based discussion’ within CSD rather than just using it for information exchange or publicising own positions on different issues (Commission official, personal communication, October 19, 2007). Perhaps one element preventing certain CSOs from ‘embrac[ing] a more proactive role in trade decision-making’ is that they ‘are still struggling to move away from their established role as trade watchdogs, in which they critique policies but do not offer solutions, (Bizzarri and Iossa 2007: 3). Based on the perception-based approach, an assessment of effectiveness can be made based on three elements. First, the extent to which participating CSOs perceive DG Trade’s commitment to the TCG/CSD to be high; second,

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a perception that the TCG/CSD is worthwhile and useful on the part of participants and third a general climate and atmosphere that is positive and collegial are necessary for their smooth functioning. The perceived level of DG Trade’s investment in the TCG/CSD process impacts upon the degree of its perceived effectiveness by the participants interviewed. The personality of the EU trade Commissioner also alters this perceived level of commitment. The French national, Pascal Lamy instigated the CSD and was considered, ‘more open to civil society dialogue’ (CSO representative, personal communication, September 19, 2007), ‘eager … to include the views of civil society’ (CSO representative, personal communication, June 7, 2007), genuinely in favour and even ‘philosophically committed’ to the process (CSO representative, personal communication, June 8, 2007). The British national, Mandelson, Lamy’s successor, was on the other hand considered ‘really closed’ (CSO representative, personal communication, September 19, 2007), less committed to civil dialogue and his tenure-ship as trade Commissioner was seen as a return to ‘formal consultation activity’ (CSO representative, personal communication, June 7, 2007). The fact that he cancelled his first CSD meeting three times consecutively when he took office as Trade Commissioner in 2004 is noted as an indication of his lack of commitment to the process. Personalities are also considered important at lower hierarchical levels. Mr Garcia Bercero, heads Directorate C within DG Trade on Sustainable Development, Bilateral Trade Relations. The CSD/TCG process sits within this directorate under Unit C on Sustainable Development and SPS issues. He is described as coming across as ‘a good guy’, not someone who wants ‘to change the world’ but nonetheless ‘positive’ and ‘pragmatic’ about the TCG/ CSD meetings. Additionally, he is described as seeing and understanding the process’ shortcomings better than his predecessors, thus leading some CSOs to hope that ‘he will be a reformer of that process’ (CSO representative, personal communication, June 7, 2007). It is specifically hoped that Bercero will help deal with the ‘ivory tower culture in Charlemagne, whereby the DG is not really used to consulting widely’ (CSO representative, personal communication, June 5, 2007) and also help raise its profile by communicating its importance internally. As a result, attendance may become a higher priority and the stakes involved better understood (CSO representative, personal communication, June 7, 2007). Indeed, it is noteworthy that in a questionnaire carried out as part of a CSD evaluation process, many trade officials said they were unaware of CSD’s existence. Broadly, attitudes within DG Trade are said to range from ‘ignorance to strong support’ in regard to CSD. A significant minority of participants note that DG Trade personnel only appear committed to the CSD to the extent that today within the Commission, civil society consultation and general mechanisms to improve transparency can no longer be escaped or ignored. By others, CSD is seen at best as something that is in the ‘current fashion’ and a trend that is being followed by most DGs (CSO representative, personal communication, June 8, 2007) and at worst as ‘window dressing’ a ‘PR ploy’ or a ‘façade’.

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Despite the issues raised in relation to the level of DG Trade’s commitment to CSD, there is a broad feeling shared by many participants that the Commission is trying to turn the CSD process around. It has shown a willingness to change by initiating a process of review, which has culminated in externally and internally produced evaluations. Further improvements are said to require time. Despite the criticisms addressed at both the CSD and TCG, there is general support for both forums’ worth and continued existence. They are deemed to have their use (CSO representative, personal communication, September 19, 2007) and it is also perhaps better to have a flawed dialogue than no dialogue at all via which to hear each other’s views. Even where it could be replaced, it is difficult for participating CSOs to imagine a suitable alternative and in the abstract it is regarded as having ‘great scope for improvement’ (CSO representative, personal communication, June 5, 2007). So even if they may not be considered a ‘priority’ and no participating CSO might be ‘devastated if it ended tomorrow’ (CSO representative, personal communication, June 8, 2007), they are not ‘senseless’ (CSO representative, personal communication, September 17, 2007) and thus remain ‘worthwhile’ (CSO representative, personal communication, June 6, 2007). It is noteworthy that some participating CSOs regard the CSD as a failure, not because they see any ambiguity in CSD objectives but simply because they perceive DG Trade as having set objectives for itself that it has constantly failed to meet (Bizzarri and Iossa 2007: 45). Furthermore, because the participating CSOs are few and largely Brussels-based, the CSD has equally failed to reach out to European citizens and organized civil society at a general level (Bizzarri and Iossa 2007: 21). In effect, its primary function has been to facilitate DG Trade in the development and promotion of its own policies by helping it to ‘understand where civil society groups place themselves regarding trade policy’. Moreover, DG Trade has been able to use the CSD as a façade of civil society participation to evade transparency-related criticism while also camouflaging its strong ties with business (Bizzarri and Iossa 2007: 21). In sum, CSD is widely regarded amongst CSOs as ‘part of the “democracy game”’ (Bizzarri and Iossa 2007: 14) and many attend not because meetings are particularly useful but simply because ‘in a democracy the spaces provided for interaction, even if they were only staged, should always be used. It is perhaps that DG Trade is dependent on the CSOs appearing at the CSD, ‘like a theatre needs an audience, to publicly display their exercise of democracy’ (Bizzarri and Iossa 2007: 14–15). Although formal objectives are unclear and there is no shared understanding between participants of the TCG or CSD goal, many uses are attributed to this consultation process. For some, attendance at CSD meetings may be implicitly motivated by its use as a travel ‘piggyback to Brussels’. In this way, CSO representatives organize meetings on the periphery of CSD. For example, the European Trade Network organizes internal meetings around CSD and uses travel re-imbursement to get non-Brussels based members to attend (Bizzarri and Iossa, 2007). There are however many other and less cynical uses.

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Some participants expect the CSD to serve as a two-way information exchange. In one direction, they see it as the provision of expert advice by CSOs to DG Trade, thus contributing to Commission policy formulation by making specific policy requests. In the other direction, they see it as a briefing mechanism (CSO representatives, personal communications, June 6 and 8, 2007): a process of gathering of evidence, updates and information, particularly on the state of play of negotiations from the Commission as well as information on the position of other groups, which can then be filtered down through their membership and associated networks (Bizzarri and Iossa 2007: 3). The fact that there is often a relatively senior Commission official in attendance, who may possess greater knowledge, be willing to impart it to the CSOs and be more open to a real exchange of views, makes this second aspect of information exchange potentially more attractive. For some it is a useful means to gather information, which could have been obtained from a web search if time constraints were not an issue. Although representatives of business organizations acknowledge that the stated objectives of CSD are ambiguous in that they may suggest a greater policy engagement than is the case or would be desirable, they regard the CSD as information sharing and in carrying out this task, share the opinion of DG Trade that it has fulfilled its objectives (Bizzarri and Iossa 2007: 44). Other CSOs confirm that in acting as a ‘dialogue, exchanging information and points of view … It achieves its goal’ and would score ‘quite a high rating’ (CSO representatives, personal communications, June 7 and 8, 2007). Many participants do not expect to gain new intelligence from attending CSD. First, when CSO representatives are working full-time on trade, you already know what ‘your opponents think and say, officially and informally … on stage and behind the curtain’ (CSO representative, personal communication, August 2, 2007). Second, the information provided by the Commission is often regarded as ‘stale’ and generally lacking in quality (CSO representative, personal communication, August 2, 2007). As a result many CSO representatives would rather gather this via direct emails or telephone calls. These views of the quality of information help confirm the findings of a study of EU trade policy lobbying, which notes the disappointment of several participants in the CSD process because the Commission officials speaking at meetings do not deviate from the official, public positions (Gerlach 2006: 178). As a result, CSD meetings are mostly an opportunity for networking Others argue that CSD is neither an appropriate location for information exchange or consultation: The limited meeting time makes it impossible for the Commission to get any detailed impression of a constituency’s view on an issue. DG Trade is also said to systematically refuse to divulge quality information on for example the Commission’s WTO negotiating strategy, which serves as a further dimension to its perceived lack of transparency. Businessrelated CSOs, on the other hand, understand that DG Trade’s negotiating strategy is never revealed at CSD meetings on the basis that negotiations and bargaining processes require tactical engagement. They find CSO expectations

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of meetings generally rather improbable and find it specifically puzzling that CSOs should insist that DG Trade reveal its negotiating stance in an open and public meeting, an exercise that would be contrary to any other instance of international diplomacy. Other CSOs attend less to gather information but to communicate (CSO representatives, personal communications, June 8, 2007). One representative comments that if he were to go to the CSD and learn something, this would demonstrate that he had not done the research dimension of his lobbying job correctly. Instead, CSD serves a greater purpose to listen to others’ points of view and communicate CSOs’ own positions where necessary. Another core motivation for attending CSD is to utilize the opportunity it affords for the enrichment of dialogue. First, it helps generate new contacts, which can be followed up outside of the formal meeting. Second, it facilitates engagement and interaction with known contacts amongst Commission officials and other CSOs. Third, it permits the confrontation of opposing points of view and agendas; it is particularly useful to hear from those CSOs who are known to frequently put their views bilaterally to the Commission (CSO representative, personal communication, June 8, 2007) and in order to place own positions in a wider context. Finally, as a means to build and maintain networks by strengthening personal and professional relationships (CSO representatives, personal communications, June 5 and 6, 2007). Only one interviewee noted that CSD is not used for networking since many other opportunities for this are available in Brussels given that CSOs working on Trade frequently attend the same social and professional events. It is also noteworthy that CSD attendance by those who rate it as a networking venue, is not thought to replace direct dialogue with either the Commission or other CSOs or replace campaigning; it simply constitutes another tool which permits a broader and deeper dialogue among interested actors (CSO representative, personal communication, August 2, 2007). Nevertheless, if the primary purpose is as a place for all views to be heard, at least one CSO interviewed believes ‘it fulfils its role’ (CSO representative, personal communication, June 6, 2007). It is interesting that both DG trade officials and representatives of business organizations particularly share the view of the CSD as a means of informing and educating, enabling CSOs to better understand negotiating processes and clarifying any doubts surrounding particular areas. Indeed, it is thought that the forum can specifically prove very useful for newcomers to European trade policy by enabling them to get a general overview of trade negotiations. CSD also offers a broad perspective on the key issues, the players, the rules of the game and allows direct access to decision-makers. It is useful to get a snapshot of where the debate is and assess other stakeholders’ positions, particularly those of businesses, which would otherwise require much desk and internet research (view expressed in Bizzarri and Iossa 2007: 30–32). A group of CSOs, including both business and development organizations, argue that the primary interest for all organizations attending the CSD is ‘to try to influence the Commission policy somehow’ and as ‘another way of making

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sure the Commission is well aware of what we are saying’ (CSO representative, personal communication, June 6, 2007). According to another, the primary rationale behind attendance at a civil society dialogue is a hope that a contribution can be made. Thereafter views must be ‘actually acknowledged, considered and either rejected or taken into account for valid rational reasons … ’ (CSO representative, personal communication, June 7, 2007). Where they are seeking to influence, such organizations would argue that it is a lobbying venue or at least part of a broader lobbying process (which includes contact with the EP, national capitals and public campaigns), or an awareness-raising venue to demonstrate to other CSOs and DG Trade that your organization wishes to press for a particular issue (CSO representatives, personal communications, June 6, 7, and 8, 2007). In many cases, a CSO’s membership will be expecting the representative to be their voice in that forum. One attends in part as a means to try and ‘influence the specific meetings which will take place in the next few months’ (personal communication, June 6, 2007). Another agrees that it certainly uses the CSD to try and change the Commission but surmises that in practice it does not have a great deal of impact (personal communication, June 8, 2007). For the most part, there is an obligation to attend to ensure that discussions where increasingly influential interest groups (environmentalists and consumers) are present do not take place without your organization’s point of view and sector-specific problems being voiced. Three of the CSO representatives interviewed make an assessment of effectiveness based on this perceived purpose of influencing trade policy-making, the concrete impact achieved i.e. real translation of comments into trade policy documentation and feedback received on these aspects from DG Trade (personal communications, June 7, September 17 and 19, 2007). Based on these criteria the CSD is perceived to be either ‘really bad’ or ‘could do better’ (CSO representatives, personal communications, June 7 and September 19, 2007) especially given that at times the eventual policy documents are said to be widely removed from some of the comments expressed in related CSD meetings (CSO representative, personal communication, September 19, 2007). Indeed, one CSO asks the broader question of ‘at what degree a forum, a dialogue … can change something in the policy of the Commission (CSO representative, personal communication, September 17, 2007). One business organization asserts that such participants who perceive CSD as a means to influence, ‘lobby’ or ‘a tool to shape the EU trade policy’ (CSO representatives, personal communications, June 6 and 8, 2007) have a ‘poor understanding’ of their ‘potential’ and are likely to be disappointed (CSO representative, personal communication, June 6, 2007). For this representative, CSD meetings are considered in themselves ‘useless’. Any idea that attending these meetings will contribute to problem-solving is ‘obviously an illusion … nobody cares … the real lobbying, the real influence of the European Commission position is done behind the curtain … (CSO representative, personal communication, August 2, 2007).

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As for according the CSD any further influence, one CSO representative argues that it would be absurd to expect or demand that the CSD, or indeed any other process DG Trade may initiate, be given any formal role in decision-making (CSO representative, personal communication, August 2, 2007). Another business organization notes that CSD has never been ‘for us a place where we would be able to lobby’ and if it were ‘a tool to shape the EU trade policy’ this would pose its own problems. First, the Commission is the executive body of the EU and its accountability is towards the EP and the MSs, not civil society. Second, it would mean for example attributing CSD more power than the European Parliament, whose elected members are merely consulted on EU trade policy. Third, it is the MSs who really decide trade policy in the Council. What ‘really matters to the Commission is to find a qualified majority’ that will go through the Council … ’ (CSO representative, personal communication, June 5, 2007). In short, to exert influence on EU trade policy, we need to work more in the country capitals to influence the MSs (Bizzarri and Iossa 2007: 34). CSD can therefore only ever be ‘consulted’ or used as a space ‘to be heard’, no more than that’ (CSO representatives, personal communications, June 5 and 8, 2007). In sum, ‘ … you have to face the fact that there are certain limitations to the exercise’ (CSO representative, personal communication, June 6, 2007). DG Trade officials arguably never intended the CSD to be a process of policy consultation but rather set it up in order to render trade policy more transparent, clarify their own position and at times, demystify it. This was done largely because officials in DG Trade often felt that CSOs misunderstood the ins and outs of trade policy (Bizzarri and Iossa 2007: 44). One business organization finds it puzzling that CSOs should insist that DG Trade reveal its negotiating stance in an open and public meeting such as the CSD, which would be contrary to any other kind of international diplomacy. Indeed, it notes that CSOs expressed dissatisfaction with CSD since its inception and finds their expectations of meetings generally rather improbable: it is obviously a transparency exercise designed to inform stakeholders about the process of multi-lateral trade negotiations rather than a forum for policy consultation. The purpose of CSD is not therefore to create a participatory process in decision-making and policy influence should be limited to private meetings and written correspondence (views expressed in Bizzarri and Iossa 2007: 23). A degree of cynicism and scepticism runs through the comments of other CSOs who note that the CSD is a useful opportunity for DG Trade to say that it has engaged with and ‘consulted civil society’. However, given the numbers present and the format of the meetings, there is no ‘view’ of civil society since these are dispersed and fragmented and the Commission can therefore effectively proceed as it sees fit. CSD nonetheless contributes to transparency by allowing smaller CSOs to increase their visibility in the Brussels trade scene and is part of the Commission story of progress in opening itself up to external interests over the last decade or so.

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The final aspect of perception-based effectiveness relates to the atmosphere and climate within the TCG/CSD. Except when verbal interventions go on beyond 10 minutes, the working atmosphere is described as ‘good’, ‘easygoing’, ‘informal’, ‘friendly’, ‘co-operative’ and ‘constructive’ by CSOs with a ‘good level of trust’ reported between participants and the Commission. This last is based for some on the proviso that expectations remain low as to the outcome of the dialogue and that there is no illusion regarding the importance DG Trade assigns to this process (CSO representatives, personal communications, June 5 and 6, 2007). The difficulty of the Commission’s task in bringing together in excess of 800 different special interest groups on various topics is acknowledged (CSO representative, personal communication, June 7, 2007). It is accepted that it will always be difficult to keep all CSOs happy and ‘on side’ and that some tensions between groups are natural. For example, a tension is highlighted between ‘traditional representatives of industry and trade and agriculture … and the NGOs’ while the tension of different CSOs ‘wanting to have more influence on the decisions’ is also an underlying one. In addition to problems of opacity, given that part of the purpose of CSD was to engender a confident working relationship between all stakeholders ‘necessary for a more effective and engaged decision-making process’, the lack of trust between stakeholders revealed by this and other studies (Bizzarri and Iossa 2007: 3) suggests that this confident working relationship objective has failed.

Part of the ‘democracy game’? The TCG and CSD between effectiveness and legitimacy The purpose of this concluding section is to assess how the findings from the third case bear out the claim that ECAFs as supranational participatory structures provide a location where legitimacy and effectiveness can be realised simultaneously. A response along the lines that the TCG/CSD’s capacity to guarantee both input and output legitimacy is compromised would seem most appropriate given the evidence presented. As regards minimum thresholds, the TCG is the most streamlined of all the ECAFs examined with just 14 member CSOs. However, this forum sees no discussion of policy content or substantive issues. Instead it is a logistical body, which organizes the broader CSD. The latter advisory forum can attract between 60 to 200 meetings at each meeting depending on agenda items and ranks as one of the most wieldy ECAFs in terms of participant numbers. In relation to the stake-holding principle, membership of the TCG and CSD is self-governing; it is current CSO members, in conjunction with DG Trade, that make decisions over newcomers. The anti-globalization movement constitutes a significant absent constituency, yet the extent to which the latter would wish to hold a seat within a formal advisory context is doubtful. This movement’s action is more likely to be direct, media-driven and ‘on the street’. Indeed, only the Spanish, Hungarian and Danish national ATTAC

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affiliates are even registered on the CSD database. It is also doubtful whether citizens are sufficiently visible on the CSD given that BEUC is the only consumer group with a seat on the TCG, and yet consumers are one of the most affected and interested trade constituencies. When examining the European-wide principle, as with each of the other three cases, the 2004 and 2007 MSs are under-represented and participate only at a very low level in the TCG/CSD process. This advisory forum is yet another example of the Brussels ‘village’ talking to itself and further signals the missing link between the Belgian capital and the rest of the EU. The adversarial principle is undermined within the TCG/CSD due to a perception amongst other CSOs that business overwhelmingly dominates EUlevel external trade discussion and that there is a too large an inclusion of business and labour constituencies compared to the comparatively low representation of the full-range of NGO interests. This is not to deny the emergence of a new, more inclusive form, of trade politics. It is also significant that the constituencies represented are highly dependent on CSO attendance, which is itself contingent on the perceived relevance of agenda points. With regard to the principle of putative quality, DG Trade is perceived to be overall more inclined towards the most proactive CSOs, whichever constituency they represent. Nonetheless, because DG Trade’s agenda matches most closely the agenda of industry CSOs, it is highly likely that their proactivity can be assured. The other major issue of perceived unequal treatment by DG Trade is that of the inclusion of the TCG’s member CSOs in the Commission’s delegation to the WTO Ministerials. Turning now to deliberation, overall the format and content of the TCG and CSD meetings do not lend themselves to achieving a high deliberative capacity. CSDs usually kick-off with presentations by Commission officials, followed by panels or press conference style Commission briefings or question and answer sessions, which are regarded by some CSO representatives as a simple PR ploy on the part of DG Trade. In short, CSD meetings are regularly just ‘a series of monologues and a parade of contradictory statements’ (Bizzarri and Iossa 2007: 26). Moreover, the behavior of participating CSO representatives does little to enhance deliberation given the frequent practices of reading pre-prepared position papers, repetition, duplication and grandstanding. Any CSO’s message is regularly diluted by that group’s multiple interventions. The TCG shows many signs of being a more conducive venue for deliberation, yet there is no discussion of substance or policy content. Expertise is an important requirement on registration to the CSD process and is indeed necessary given the complexity of the technicalities of EU-level trade policy. Most Commission officials and CSO representatives are perceived to possess the required knowledge-levels although there is some evidence that some representatives show little sign of knowing their dossiers and are instead content to send purely political messages via the forum rather than contribute expertise. There is not such a high requirement for expertise in the TCG given the nature of its content.

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Although European trade policy has long been perceived as opaque, it is undergoing a period of rapid change as a result of the various challenges to it by the anti-globalization movement in particular. Nevertheless, an ‘ivory tower culture’ remains a strong characteristic of DG Trade’s work. Public awareness of the TCG/CSD is low, yet there is no consensus amongst participating CSO representatives that citizens should know more than they do. Like the other ECAFs in the volume, the major issue under openness is the lack of feedback from DG Trade on how it has taken account of the views and comments expressed in CSD. Equality is generally perceived as assured within the TCG/CSD at the agenda-setting stage. Nonetheless, DG Trade retains overall control of it and constructs agendas according to its own priorities for action. Problems have been highlighted mainly with regard to a lack of equal treatment in the allocation of speaking time, with DG Trade cutting short interventions and there are some complaints that powerful interest groups dominate some meetings. Turning to effectiveness, the objectives of TCG/CSD are deemed to be in themselves quite obscure but the main issue of opacity concerns the delimitation between the two bodies. Indeed, CSO representatives disagree as to whether the TCG should be used for substantive discussion or restricted to a logistical body. Moreover, there is an issue of the two structures generating expectations that are too high, given that their stated objectives arguably suggest that they possess a greater level of policy engagement than is actually the case or would be desirable. The level of CSD attendance is conditional on the agenda topics; meetings linked to the WTO or Doha or which have the Commissioner in attendance have the highest turnout. In general, since its establishment there has been a decline in attendance. The TCG/CSD process enjoys the greatest meeting frequency of all the ECAF’s studied and they are also amongst the shortest. The level of administrative support provided by DG Trade is the best of the four cases. Issues have only been raised with regard to some short-notice notification of meeting dates and postponements. Meeting agendas are posted to the Web well in advance of meetings even if they are circulated directly to representatives’ emails much later. Ambiguity surrounds the question of whether minutes exist; while some ad hoc meetings do receive a brief summary report, Commissioner meetings appear to go un-minuted. The level of seniority of both Commission and CSO officials attending TCG/CSD is raised as a concern, particularly as it is perceived to indicate a low level of commitment on the part of DG Trade to the consultation exercise. However, the level of proactivity amongst the CSO representatives that do attend is reported as high, although DG Trade singles out some CSOs as being too passive. On the issue of DG Trade’s commitment, this is highly contingent on the personality of the Commissioner in office. Lamy created the process and was heavily committed to it. Mandelson’s support of it was lesser. It seems clear to some CSO representatives that the level of DG Trade’s commitment is entirely linked to the ‘fashion’ and discourse for civil society participation to serve a legitimising role.

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Notwithstanding the various criticisms levelled against the TCG/CSD process, most CSO representatives see it as worthwhile and useful to the extent that a flawed dialogue is better than no dialogue at all. The forums are seen to serve roles of information exchange, policy briefing, communication and networking, learning and demystification as well as a tool, however weak and amongst many others, of influencing trade policy. Their informal and constructive working atmospheres make the structures all the more conducive to fulfilling these roles, however limited.

6

The Agricultural Advisory Groups

The most mature of the European Commission Advisory Forums (ECAFs) explored here, the first agricultural advisory committees were established in 1987. In 1998 and 2004, the Agricultural Advisory Groups (AAGs) were the subject of reform to reflect Commission priorities in the agricultural sector more clearly and to improve the dialogue between DG Agriculture (DG AGRI) and Civil Society Organizations (CSOs). In this fourth case study, the same gauge for evaluating legitimacy on the input side and effectiveness on the output side is duplicated. The chief aim remains the investigation of the AAGs’ capacity to simultaneously realize both elements. Consequently, the structure of the case study also duplicates the three previous enquiries and therefore embarks first on an assessment of the AAGs’ ability to guarantee balanced composition and deliberative capacity with regard to inputs before thereafter exploring the Groups’ effectiveness. Yet again, the evidence collated suggests that, various composition, functioning and design features compromise the AAGs’ aptitude for delivering on the input and output sides.

Balanced composition A total of 30 AAGs are established under the auspices of DG AGRI.1 Commission Decision (CD) 2004/391/EC,2 which includes detailed provisions on who may participate in meetings, regulates them. Depending on the AAG in question, between 40 to 60 seats are allocated to individual representatives of socio-economic organizations. For the four AAGs of particular interest to this case study, the CSO seats are attributed as depicted in Tables 6.1–6.4. In addition to these organizations and their respective number of representatives, each AAG also has a Chairperson and two Vice-Chairpersons. At the request of any of the socio-economic organizations who hold a seat on the AAG, the Chairperson may, in agreement with the Commission, invite the general secretary of that organization (or another person designated by him/ her) to attend meetings as an observer. Again at the request of an organization to which one or more seats are allocated, and when the matters on the agenda are of a highly technical nature, the Chairperson of a group may, in

Table 6.1: Committee/Advisory Group on Common Agricultural Policy (CAP) Interests represented

Seats 2004

Farmers & Agricultural cooperatives Traders Industry Workers Consumers Environmentalists Others Total

30 8 8 5 5 3 2 61

Table 6.2: Committee/Advisory Group on Forestry & Cork (F&C) Interests represented

Seats 2004

Producers Traders Industry Workers Consumers Environmentalists Total

28 2 11 3 1 4 49

Table 6.3: Committee/Advisory Group on Rural Development (RD) Interests represented

Seats 2004

Farmers & Agricultural cooperatives Traders Industry Workers Consumers Environmentalists Others Total

27 5 5 4 3 6 10 60

Table 6.4: Committee/Advisory Group on Agriculture and the Environment (A&E) Interests represented

Seats 2004

Farmers & Agricultural cooperatives Traders Industry Workers Consumers Environmentalists Total

21 4 4 2 2 8 41

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agreement with the Commission, also invite experts to take part in its deliberations. Finally, the Commission may, on its own initiative, invite any person suitably qualified in one of the subjects on the agenda to take part in the deliberations of the group on that subject as an expert. Based on these guidelines, the number of individuals participating in any AAG can range from 60 to 100 at any given time. There is no consensus amongst those participating in this study as to whether this constitutes a too large or too restricted membership for the AAGs to function smoothly. One group simply notes that in order to ‘cut down the size of these drastically’ and secure more efficient functioning it would be better for DG AGRI to identify affected interests and allocate each one or two seats. As well as streamlining groups, it would also, it is noted, help ensure that the individuals representing constituencies of interest are actually mandated by their particular organizations, rather than attending to speak on a personal basis or in the national interest, which is common practice (CSO representative, personal communication, November 12, 2007). The AAGs are intended to bring together representatives of various social and economic interests so that they may make the Commission aware of the range of views these organizations hold on individual agricultural production sectors and rural development. The social and economic interest categories represented are: agricultural producers and producer cooperatives, agricultural and food-manufacturing industries, traders in agricultural products and foodstuffs, workers in agriculture and food-manufacturing, consumers, environmentalists, and animal welfare organizations. The Commission Decision (CD) provides that,3 ‘the socio-economic organisations must be those that are most representative of the’ abovementioned interests, plus ‘the social partners’. In addition, these interests’ ‘activities must be connected with the common agricultural policy and rural development’. In sum, CSOs participating in the AAGs must be affected by and interested in Common Agricultural Policy (CAP) and Rural Development (RD) related issues. If any interest can be said to be excluded, consumers are at least underrepresented given that they represent the largest CAP-affected interest constituency along with EU taxpayers in general (CSO representative, personal communication, October 22, 2007). Community church groups are also noted as absent from the RD AAG, despite their strong role in rural areas (CSO representative, personal communication, October 29, 2007). Another CSO notes the ‘glaring gap’ posed by the absence of the development community from the AAGs, which is considered surprising ‘given the huge impacts that the CAP has on developing countries and livelihood of people outside the EU’ (CSO representative, personal communication, September 21, 2007). Furthermore, environmental groups such as Greenpeace and Friends of the Earth Europe do not participate although, as one interviewee notes, ‘To be honest I would not know whether this is because they have never expressed interest or because they have been shut out. Most of those groups don’t really work on agriculture in the EU … in that sense it is fair to only bring to the

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table the people that are working on the issue’ (CSO representative, personal communication, September 21, 2007). As with the other ECAFs examined in this volume, the AAGs have a formal statutory requirement to only accept CSOs which are established at Community level to participate (CD 2004/391, Article 3). Equally similarly, the AAGs appear to be dominated by the EU15 MSs and experience problems with the participation of CSO representatives from the new 2004 and 2007 member states (MSs). Aside from the relative absence of 12 of the 27 EU MSs at AAG meetings, these structures have a further attendance issue that compounds their overemphasis of the national, rather than the Community interest. In the four AAGs of particular interest here, the Comité des Organisations Professionelles Agricoles de l’Union Européenne (COPA) and its sister organization, the Comité Général de la Coopération Agricole de l’Union Européenne (COGECA), possess in excess of 20 seats on each. Although this does not permit one individual representative from each MS, a large proportion of the nation states can in fact be represented by these allied CSOs. This does nothing to promote the pursuit of the Community interest in meetings, but rather compounds the defence of personal and national interests. One CSO representative complains that the seemingly minor issue of AAG meeting place cards compounds the tendency towards national interests. Place cards are inscribed with the individual participant name and country of nationality whereas the name of the socio-economic organization, which effectively holds the AAG seat, is absent. Not only does this obscure the total number of individuals representing each CSO, it also prevents participants from being instantly aware of which individuals are speaking on behalf of which CSOs. Moreover, it means you have several COPA people in attendance with place names inscribed with their name and country, which in effect encourages ‘the Italians from COPA organisations’ to speak on behalf of Italy, while the next speaks ‘about the situation in Greece’. In short, there is no ‘European voice’ (personal communication, September 20, 2007). With regard to the existence of a preponderance of interests on the AAGs who are known to share a similar position, or who have already formed an alliance for a common purpose, there are several issues to consider. COPACOGECA are charged by many CSO representativeswith being over-represented and occupying an ‘exaggerated’ number of AAG seats which effectively unbalances the representation of all affected interests (CSO representatives, personal communications, September 9 and 21; November 6, 2007). Comparatively, the number of seats occupied by consumer, environmental and animal welfare groups is ‘tiny’ or ‘marginal’ as a proportion of the total (CSO representatives, personal communications, September 9 and October 22, 2007). It may in some respects be considered entirely logical that agricultural interests dominate AAG seat numbers, since it is farmers and the broader agricultural sector that are most directly affected by the CAP. Indeed, if COPA, as it reports, represents in excess of 17 million people (CSO representative,

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personal communication, October 29, 2007) it is clear that it should have a dominant position. However, if the EU counts in excess of 490 million affected consumers, and only a small proportion of these are directly represented by the Bureau of European Union Consumers (BEUC) (the only consumer CSO on the AAGs), this constituency certainly suffers an under-representation in comparison to COPA-COGECA. There are other cases where constituency representation numbers do not translate into AAG seat numbers. The European Federation of Food, Agriculture and Tourism Trade Unions (EFFAT), for example, claims to represent 6.5 million people working in agriculture (personal communication, October 29, 2007) but states they have at best 7.5 percent of the seats available on the AAGs. COPA, however, which is representing approximately 17 million people, does not hold simply three times more seats than EFFAT i.e. 22 percent or 25 percent of the total, but instead holds over 50 percent of the seats on most AAGs (personal communication, October 29, 2007). As a response, DG AGRI asserts that ‘from our side, as we want to mainly have the views of the producers’ then AAG composition ‘is quite fairly balanced’. The only risk highlighted is that ‘ … sometimes it can happen that … the discussion is predominantly focussed on the producers’ (Commission official, personal communication, October 22, 2007). A further risk associated with the AAGs’ composition of largely producer interests is that these fail to often even agree among themselves on particular issues. Nonetheless, they can usually muster a ‘commonality of viewpoints’ that differs from that of other participating CSOs (CSO representative, personal communication, October 22, 2007). This facilitates the predominance of a particular perspective within AAGs. As an example, although the Confederation of European Young Farmers (CEJA) and the European Farmers’ Coordination (CPE) are agricultural organizations whose seats count under the category of agricultural/producer groups, many of their policy positions and viewpoints are at odds with COPA-COGECA’s (CSO representative, personal communications, September 20 and October 31, 2007). The predominance of seats allocated to COPA-COGECA is also the source of some scepticism regarding DG AGRI’s real motives for convening AAGs. One representative believes that these structures only exist to allow for DG AGRI’s ‘informal co-financing for COPA’. With its ability to bring representatives from several EU MSs, ‘only COPA has the chance to create a balance between the different national interests’. None of the other groups can ‘because they don’t have a membership which represents all the different national structures’. In short, for this individual, seat allocation ‘is very clearly a sign that it’s not balanced’, which is problematic because as a result, the Commission is always ‘listening to the interests of the producers and not to the other groups who are sitting in the advisory groups’ (CSO representative, personal communication, October 29, 2007). Another CSO representative agrees that the AAGs simply constitute an ‘opportunity for the Commission to pay for farmers representatives to come to Brussels’ so that they can ‘do other business while they’re here … have their own meetings of

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COPA-COGECA groups and meet DG AGRI officials … on a one-to-one basis’. As one CSO representative puts it, ‘everybody knows it’s happening’ (CSO representative, personal communication, October 22, 2007). Given that DG AGRI reimburses travel expenses to representatives travelling from outside of Brussels to attend AAG meetings ‘ … it’s obviously something that a COPA-COGECA farmer finds useful. I mean we would find it useful if half our members were invited to a meeting in Brussels’ (CSO representative, personal communication, October 22, 2007). Other CSO representatives also question the legitimacy of spending large sums of European tax payers’ money to organize what is effectively an opportunity for the agricultural producers to lobby the Commission (CSO representative, personal communication, September 20, 2007). COPA responds that since the Commission only reimburses basic travel expenses and not other incidental costs such as accommodation and subsistence ‘there is nothing that they are paying for that is in any way increased by the fact that we have a working group meeting. And I would have thought that it makes absolute sense [from the perspective of attempts to reduce greenhouse gas emissions] for us to organize our working group meetings … the day before these advisory group meetings’ (CSO representative, personal communication, November 12, 2007). In any case, the internal Copa working group is said to comprise ‘ … just a run through of the advisory group agenda for the next day … We don’t frogmarch everybody into the advisory group saying ‘This is what you must say on behalf COPA-COGECA. Even if we wanted to you wouldn’t get people to do it’ (CSO representative, personal communication, November 12, 2007). An environmental CSO representative supports COPA’s pragmatic approach, stating that ‘we have too few [AAG seats] to exploit it, but otherwise we would’ and ‘certainly when our people come over for an advisory committee they will use the fact they are in Brussels to have other meetings, which I think makes sense and is not incorrect in any way’ (personal communication, September 21, 2007). Nonetheless, because, given their small seat numbers, the NGO-type CSOs are particularly unable to derive the same advantage as COPA from the use of the travel reimbursement scheme, there would be little benefit in arranging their own internal meetings the day prior to an AAG. COPA is therefore deriving advantage from its seat allocation. The higher proportion of AAG seats allocated to COPA-COGECA has further implications for Chair-voting procedures.4 Notably, the AAG Chair vote favours COPA endorsed candidates. According to Article 5, AAGs elect a Chairperson among its experts as follows: in the case of the first ballot, this is done by a two-thirds majority of the experts present. In the case of subsequent ballots, by a simple majority of the experts present and in the event of a tie, the Commission shall provide a Chairperson on a temporary basis. On many of the AAGs, COPA-COGECA seats total a two-thirds majority, on others as much as 50 percent. Even on AAGs where it fails to realise a majority of seats, COPA-COGECA’s collaboration with trade and industry interests (with whom these sister organizations share much common ground) ensures that it

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comfortably achieves a two-thirds majority in most cases. Alone, this factor is potentially insignificant. However, because CD 2004/391/EC gives the Chair relatively important agenda-setting power, it constitutes a strategic role: postholders may block the inclusion of agenda-points according to whether issues are deemed appropriate or priority areas for discussion. Since the 2004 reform of the AAGs, the Chairperson and two Vice-Chairpersons together may serve a term of two years. This is renewable but the Chairperson shall not serve more than two consecutive terms. According to DG AGRI, any dominance of the Chair function by COPA-COGECA is, in any case, temporary and will change next time round to another sector. Despite these mechanisms to prevent a lengthy monopoly of the Chair function, some CSOs call for the role to be fulfilled by DG AGRI, as is the case in other ECAFs (CSO representative, personal communication, September 20, 2007). It is noteworthy, however, that seat dominance may not necessarily equate to a dominance of the meetings themselves, given that environmentalists are charged with being most vocal in these (CSO representative, personal communication, September 21 and November 12, 2007). This is perhaps a compensatory mechanism for a lack of formal seats. For many of the reasons already outlined, various participating CSO representatives consider that there is little equal treatment of AAG participants by DG AGRI and indeed COPA-COGECA are perceived of as this service’s privileged interlocutors. For DG AGRI, on the other hand, it is natural that it deals mostly with agricultural producers, in the same way that DG Environment will deal mainly with environmental issues and NGOs, while DG SANCO will focus its attention on consumer protection groups. Because of the perceived weaknesses already outlined, non-producer CSOs tend to focus less lobbying attention on the AAGs and more on the Council via their national affiliations, the EP and the Economic and Social Committee (CSO representative, personal communication, October 29, 2007).

Deliberation The format of the AAG meetings considered here is usually driven by an agenda, which comprises 5–10 points which are treated consecutively. The Commission official with particular expertise in the area or the appropriate Head of Unit introduces each agenda point and then invites the floor to comment (CSO representatives, personal communications, November 6 and November 23, 2007). On the basis of this format, one criticism levelled against the Commission concerns the nature of the presentations that it gives. These are described by one CSO representative as usually being ‘totally useless’ because they repeat the known or the obvious (personal communication, September 21, 2007). Whilst some presentations are said to be ‘clever and sophisticated’, others are often ‘very blunt and off the point’ or full of ‘rhetoric’, rendering meetings ‘pretty much a role show’ (CSO representative, personal communication, September 21, 2007). The Commission’s presentations are also criticised for being ‘very very lengthy’ and taking up ‘a huge

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amount of time’ so that for one CSO representative ‘if you were a cynic you would say it’s a way of just talking the thing out so that in fact it doesn’t really lead to any meaningful debate’ (CSO representative, personal communication, November 12, 2007). Given the length of meetings and their frequency, the content of meetings is only ever a ‘quick run over some of the main issues’ (CSO representative, personal communication, October 22, 2007). ‘There’s no question of depth’ or real content; meetings simply constitute for the most part question and answer sessions (CSO representative, personal communication, October 22, 2007). Indeed, for one group it’s ‘a quick overview of the main complaints of the client group’ and ‘main beneficiaries of the Common Agricultural Policy’ (CSO representative, personal communication, October 22, 2007). One CSO representative describes AAG meetings as press briefings or conferences (CSO representative, personal communication, November 12, 2007); this is particularly true where in the past the AAGs for RD and CAP have been amalgamated (CSO representative, personal communication, September 20, 2007). For another representative, the major issue is that all participants feel they absolutely have to say something during meetings, which means they can go on ‘interminably’ and become very ‘boring’. The most dreaded circumstance is when a participant stands up saying ‘I’m going to be brief ’ at which time it quickly becomes obvious that ‘we’re going be getting a 15 minute lecture from somebody about something (CSO representative, personal communication, September 20, 2007). Much of AAG meeting content is furthermore described as irrelevant talking for its own sake (DG AGRI). In addition, there is a great deal of discussion about ‘stupid practical details’ of process, ‘which is extremely boring’ whereby ‘people tend to spend time regretting having received the agenda too late’ or not having received their ‘Polish translation’ or ‘Having not received any documents, that the meeting has been set at that date and not at the other’ (CSO representative, personal communication, November 6, 2007). Moreover the AAG meetings are characterized by a great deal of repetition of points already raised and known group positions which have not undergone any further development (Commission official and CSO representative, personal communications, October 22 and October 31, 2007). According to one CSO representative, the typical situation in an RD AAG is that the Commission will begin by outlining the funding available for RD. This invariably leads to farmers arguing that they need more of the RD money, rather than it being channelled into environmental programs. Representatives of the environmental interest will usually respond that CAP is public money and that it is supposed to deliver something for tax payers (CSO representative, personal communication, September 21, 2007). In addition to this rehearsal of old and polarized positions, replication and duplication are prevalent. This is of course compounded by COPA-COGECA’s circumstances; although several representatives attend each AAG meeting on one or other organization’s behalf, ‘most of them feel they’ve got to speak’ (CSO representative, personal communication, November 12, 2007).

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After approximately 90 minutes of Commission presentations and each representative that has requested the floor asking their question or delivering their ‘mini speech’, ‘this poor so and so from the Commission has to spend another half hour answering as many of these questions in turn’ (CSO representative, personal communication, November 12, 2007). Usually, however, the Commission does not respond to all questions. The direct cost of this practice is that CSOs, who are already sceptical about the productivity of this consultation process, wonder whether the collection of a long series of questions which cannot all be answered, is a deliberate tactic to ensure that the most awkward questions are drowned out and forgotten (CSO representative, personal communication, November 12, 2007). In some cases, it is the AAG Chairperson who is perceived to be most at fault for failing to properly moderate the question and answer session (CSO representative, personal communication, September 21, 2007). Other major costs associated with the AAG format is that meetings become nothing more than a forum for ‘comment and complaint’ (CSO representative, personal communication, October 22, 2007) with no real depth of discussion or debate. In fact, ‘by the time everybody has stood up and made a speech there really isn’t very much time to have a meaningful debate about anything … ’ (CSO representative, personal communication, November 12, 2007). The risk is that it becomes ‘very simple for the Commission not to take into consideration the AAGs’ discussion because if 80 people participate and they all present different positions then it is difficult for the Commission to use the meeting content to develop its policies (CSO representative, personal communication, October 31, 2007). Already the fact that there is no end objective to the AAG meetings is said to be problematic in that there is no vote or formation of joint conclusions formally advising Commission to do X rather than Y (CSO representative, personal communication, October 22, 2007). Replication of content is also a risk. However, some CSO representatives believe that repetition of own positions is the only effective tactic in the AAGs because in politics you have to repeat your arguments at least 30 times before you can even hope that you may have been heard (CSO representative, personal communication, October 29, 2007). Another representative comments that repetition is not a problem because that is after all the job of a lobbyist (CSO representative, personal communication, November 6, 2007). It is noteworthy that many of the problems highlighted here can be attributed to a lack of ‘discipline’. The Chair is at fault here for failing to sufficiently intervene and prevent people from taking the floor to more or less say the same things as previously (CSO representative, personal communication, November 12, 2007). Given the Chair’s incapacity to take action, one CSO representative argues that the Commission should take it upon itself to limit interventions to a maximum of two to three minutes in order to make ‘the whole thing so much more effective’ (CSO representative, personal communication, November 12, 2007). The lack of deliberation within the AAG meetings is arguably ultimately associated with their overall ambition. Based on its annual Work Programme,

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there could be greater forward planning on the Commission’s part to put requests to the AAGs for collective CSO solutions to policy problems or collective CSO views on specific issues that will be dealt with approximately 12 months in advance. In such circumstances, the AAGs would help inform the Commission’s internal decision-making process, contribute to problem solving and deliver advice. The process of outlining positions and encouraging CSOs to ask questions on the state of affairs is not a proactive process of seeking views which will effectively influence policy decisions (CSO representative, personal communication, November 12, 2007). For such collective positions to be attained there would of course need to be greater networking between and activity by CSOs outside the AAGs to facilitate the construction of common positions that could then be expressed at meetings (CSO representative, personal communication, October 31, 2007). With regard to expertise, via CD 2004/391/EC the Commission requests that those socio-economic organizations established at Community level who are granted one or more seats on the AAGs designate ‘experts’ (Article 3). The use of this word is further significant since prior to the 2004 reform of these structures, participants were referred to as ‘members’ or ‘representatives’. This modification both professionalizes the AAG participants and signals the importance that the Commission now associates with ensuring that those who represent CSOs should possess a relevant degree of knowledge. Indeed, the word ‘expert’ is thereafter used 14 times within the short text of the 2004 Commission Decision. Many interviewees, including DG AGRI, equally underline the importance of expertise to the quality of the AAG discussions (CSO representatives, personal communications, October 31, October 29 and November 12, 2007). Where expertise is lacking, the risk is that participants will ask simplistic or irrelevant questions, signalling a lack of knowledge of basic processes, which equates to a loss of time (CSO representative, personal communication, September 21, 2007). Expertise is considered most essential in the various Working Groups set up within the AAG framework; mainly because these forums deal with technicalities. Although some CSO representatives appear satisfied with the level of expertise demonstrated by their peers (Commission official and CSO representative, personal communications, October 22 and November 23, 2007), others are not. One CSO representative reports that discussions are poor quality (CSO representative, personal communication, October 22, 2007), while another asserts that while ‘some of the people are very good and very knowledgeable … others, often farmers, are often of abysmal quality and others still ‘are there almost by chance’ (CSO representative, personal communication, September 21, 2007). One CSO representative goes as far as to question the quality of the individuals his own organisation sends to the AAGs (personal communication, October 29, 2007). Given the lack of deliberative capacity signalled above, it is arguable that the discussion’s lack of depth does nothing to encourage attendance by high quality experts. Moreover, it is questionable whether or not the expertise that is present is actually properly harnessed and

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utilized by the Commission (CSO representative, personal communication, November 12, 2007). Given that many AAG participants focus on national-level interests, it is actually personal experience or grass-roots knowledge that is often considered of best use on the AAGs (CSO representative, personal communication, October 22, 2007). Those individuals most lacking in this area are new MS representatives. Although they rarely attend, when they do, they are often comparatively young and lack the ‘sort of gravitas that comes with a lot of experience’ (CSO representative, personal communication, November 12, 2007). An additional issue linked to the participation of nationally-based CSO representatives is that they may lack a broader knowledge of EU debates and/or Commission process and procedure which is also essential to properly contribute to the AAGs. There are several significant issues to consider in relation to the AAGs’ openness. First, DG AGRI’s website simply provides a list of the 30 AAGs and includes CD 2004/391/EC as a link. At the time of writing there is little other information available via this channel; there are, for example, only five meeting summaries available for AAGs and no other public access to meeting minutes. DG AGRI admits that this ‘is not very transparent’ but places the onus on the participants to correct this transparency gap; ‘as the participants come from EU NGOs, we always tell them that they should disseminate their information further’ (personal communication, October 22, 2007). A Commission official states that ‘we are considering that this eventually could change and that we could put the report of the minutes drafted by the president on our website directly’, but the official emphasizes, ‘this is for the moment’ only ‘under consideration’ (personal communication, October 22, 2007). It is noteworthy that of the four advisory settings examined, the AAGs are the only ones not to regularly publish any minutes or meeting summaries on its website. There is also no evidence on the Commission’s principal agriculture webpage of any internal server via which AAG participants can access further documentation. For one CSO representative there is no need for greater transparency in relation to the AAGs; all relevant and appropriate stakeholders are already invited to meetings so there is no justification for publicizing any further documentation via the Internet (personal communication, November 23, 2007). CAP related decision-making at the European-level has often been tarnished with a reputation for a lack of transparency and for operating in a closed setting limited to the participation of DG AGRI, national agriculture ministers, and the producer interests. This ‘self contained system’ is perceived as a location for ‘client group’ discussions (CSO representative, personal communication, October 22, 2007). Given that co-decision does not apply to this policy area, the EP certainly has little impact on the CAP; unable as it is to affect this policy area’s budget and how it is spent, in the way that it does the rest of the Community budget. The EP’s Agricultural Committee equally has little influence, given the role and status of the Special Committee on

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Agriculture, which operates under the auspices of the Council. The openness of DG AGRI is, and always has been, largely contingent on the attitude of the Commissioner. The post-holder at the time of writing; Mariann Fischer Boël, is deemed more open and ‘sympathetic’ to many different points of view than previous commissioners have been (CSO representative, personal communication, October 22, 2007). Indeed, most CSOs interviewed agree that DG AGRI has in recent years undergone a great deal of changes in terms of improved openness and communication, thus ‘breaking out’ of the traditional ‘self-contained’ or ‘quite closed world’ of agriculture policy. The addition of rural development policy to the second pillar obviously helped here by engendering the inclusion of a greater variety of stakeholders. This opening is said to have begun with Commissioner Fischer who as a result of the threats posed by globalization, was certainly ‘more conscious of the need for change in agriculture than he thought it wise to admit in public’ (CSO representative, personal communication, October 22, 2007). A further significant change has been that DG AGRI is less self contained within the Commission than before, so that other DGs, via for example inter-service consultations are taking a rather greater interest in what’s going on. This is particularly true of the DG for Economic and Financial Affairs and DG Competition (CSO representative, personal communication, October 22, 2007). Despite the steady transformation observed and the formalization of stakeholder dialogue within DG AGRI, for some CSOs CAP decision-making remains an ‘élite oriented process’ and everyone who is external to this elite, such as the general public, are external to the transparency loop’ (CSO representative, personal communication, October 29, 2007). On the subject of public awareness of AAGs, one CSO representative believes that citizens ‘probably know that there are advisory groups’ but is less sure that citizens would know when they meet or what their mandate and function is (CSO representative, personal communication, October 22, 2007). It is questionable ‘how much they would actually wish to know’ and the risk is ‘they’d be bored out of their minds’ if more information were made available (CSO representative, personal communication, October 22, 2007). Nevertheless, this cannot be assumed and ‘it should be possible for anyone … with a flicker of interest in it, to find out more about them’ (CSO representative, personal communication, October 22, 2007). Other CSO representatives claim that the general public have absolutely no knowledge of these groups’ existence (CSO representative, personal communication, September 21) and may not even need to. It is perhaps sufficient for the public to be aware that a consultative process involving advisory groups exists, if only to counter the view that the Commission is a very remote organization dishing out regulation directives without any reference to anybody’ (CSO representative, personal communication, November 23, 2007). As with the other cases, the most significant openness issue within the AAGs relates to feedback. Although DG AGRI assures that ‘the views of the experts are taken on board’ and ‘used later on in the production of

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documents, or in changing decisions, or in the reforms of the market sectors’ (personal communication, October 22, 2007), there is little to substantiate that this is actually the case. One CSO representative does confirm that ‘a number of our suggestions … have been taken up’ and that ‘constant followup’ exists on certain issues such as simplification (personal communication, November 6, 2007). What this CSO representative calls ‘follow-up’ however, would be more appropriately described as updates on Commission progress in the formulation of its white paper on simplification, rather than feedback on how stakeholder views have been taken into account in this context. CD 2004/ 391/EC makes little formal provision to assure acknowledgement of information received and feedback on how it has been taken into account by the Commission. The Decision actually refers to only three potential feedback mechanisms: the production of minutes or draft summaries, the formulation of joint conclusions which can be attached to an AAG’s summary report (if a group reaches unanimous agreement on the opinion to be given) and the communication of the outcome of a group’s discussion to the Council if proposed by the group (Article 9). These are used too infrequently to constitute real feedback channels and it is therefore unclear what store the Commission actually sets by the AAGs or how it concretely informs members of how it has taken account of their views. In any case, like the other ECAFs explored here, the Commission is not bound by AAG opinions. Where DG AGRI appears most open, however, is in taking up invitations to attend events such as panels, workshops and conferences organised by CSOs and in reading position papers sent directly to particular Commission desk officers (CSO representative, personal communication, September 21, 2007). Equality of treatment between CSOs apparently exists during the AAG meetings themselves (CSO representative, personal communication, September 21, 2007). Although there may be ‘competition’ between CSO representatives to take the floor, particularly prior to the departure of the Commissioner if present (CSO representative, October 22, 2007), the Chairperson is described as being usually good at ensuring all CSO representatives get an equal say (CSO representatives, personal communications, November 12 and October 22, 2007). This would appear to attest that even though farmers occupy the lion’s share of AAG seats, this does not equate to them dominating meeting time (CSO representative, personal communication, October 22, 2007). Of course, because the AAG Chair rotates between participating CSOs, the Commission itself plays no role in the allocation of speaking time. Indeed, DG AGRI’s contributions to meetings are limited to providing the secretariat and presentations (CSO representative, personal communication, November 23, 2007). To physically comment in AAG meetings, participants simply raise their hand; the individual that attracts the Chairperson’s attention first, speaks first (CSO representative, personal communication, November 12, 2007). Farmers are nonetheless often given the floor first (CSO representative, personal communication, November 6, 2007). There are nonetheless limitations to speaking in AAGs. For example, only

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one person per CSO can take the floor (CSO representative, personal communication, October 22, 2007). In addition, not all those participants who are eligible to, will actually speak during an AAG meeting, especially when these are big or where there are time constraints (Commission official, personal communication, October 22, 2007). Equality in AAG agenda-setting is determined to a certain extent by Article 8 of CD 2004/391/EC, which outlines the responsibilities of different actors in relation to agendas. This article notes that it is the Chairperson, in cooperation with the Commission and in consultation with the other interests represented on the group, who determines the items to be included on the AAG agendas. In fact, it is the Chairperson of each group who may propose, on his own initiative or at the request of any of the interest groups represented, that the Commission consult his/her group on any matter within its competence. In addition, Article 8 establishes that the Commission will send out agendas to the socio-economic organizations. In sum, the primary responsibility for agenda setting appears to lie with the Chairperson, and this interpretation is shared by some CSO representatives (personal communication, October 29, 2007). It is not however universally shared, since other interviewees indicate that it is actually the Commission that ‘disappointing [ly]’ controls the agenda (CSO representative, personal communication, November 12, 2007). This view is reinforced by another representative who notes that asking the Commission to insert points on the agenda is ‘ineffective’ because it will ‘systematically avoid’ discussing issues they do not wish to at meetings and AAG participants are often fobbed off with different explanations for this: insufficient staff available to attend the meeting, inappropriate level of sensitivity, insufficiently advanced stage of the decision-making process (personal communication, September 21, 2007). A further CSO representative agrees that it is difficult to contribute to the agenda because this is controlled by the Commission, and is linked to their internal priorities which was previously CAP simplification and is the so-called ‘CAP health check’ (personal communication, October 31, 2007). Ambiguity regarding AAG agenda-setting control is important because it has two wider implications. First, it aggravates a perception that the Commission and dominant producer groups like COPA, ‘cook up’ the agenda. Second, it generates a confusion of roles. For example, rather than proposing agenda points on their own initiative or in response to interest group requests, one AAG Chairperson is criticised for being ‘totally reactive’ to Commission officials’ agenda demands: not seeming to ‘understand … the wish of the officials to have a committee which would itself be proactive setting the agenda.’ Consequently, this ‘was very frustrating for officials’ servicing that group who do not regard it as their ‘job to set the … agenda’ (personal communication, October 22, 2007). DG AGRI asserts that stakeholders are able to send agenda points to the Chairperson and directly to the Commission official in charge of maintaining the AAG secretariat. On occasion, approximately 6 weeks in advance of a meeting DG AGRI has also apparently asked different CSOs to submit

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proposals for agenda items (CSO representative, personal communication, November 23, 2007). Some CSOs are disinterested in contributing agenda points, but where there is a desire to do so it is assumed there would be no difficulty (CSO representative, personal communication, October 22, 2007). The actual timeframes designated in CD 2004/391/EC for the circulation of agendas is 25 working days prior to a meeting for the Chairperson to designate the agenda and 20 working days prior to a meeting for the Commission to circulate this agenda to the participating socio-economic groups (Article 8). Where this timeframe is respected, it is considered adequate to prepare for AAG meetings. It also constitutes a significant improvement to the previous 12 working days allowed for by the Commission Decision regulating the functioning on the AAGs prior to their reform in 2004. A final equality issue relates to the AAG minutes, which are often circulated in English, presenting an obstacle for some CSOs who have limited linguistic capacity (CSO representative, personal communication, September 20, 2007).

Effectiveness Based on the goal-attainment approach, the effectiveness of the AAGs is firstly contingent on the presence of an ultimate end goal and secondly, that this goal is clear and unambiguous. In accordance with the system-resource approach, their effectiveness is contingent on the presence of certain design features. The first of these is also that the structure should have clarity as to its formal goals and purpose. It should equally be clear as to the nature and scope of its task or mandate, expected output and the procedure mechanisms (such as rules, policies, and guidelines). One CSO representative suspects that ‘the Commission sometimes wonders’ itself what the AAGs are for (personal communication, October 22, 2007). Certainly, there does appear to be a divergence between Commission and AAG participants’ perceptions as to their main role and function. Some CSO representatives perceive that for the Commission their primary function is to inform stakeholders about different topics and ideas on the future policy agenda (CSO representatives, personal communications, September 21 and November 23, 2007). If this is the case, argues one CSO representative, their title should be modified from advisory groups to ‘Stakeholder Briefing’ or something similar, in order to indicate that they are solely an information group (personal communication, September 21, 2007). The primary aim of AAGs, as far as most CSO representatives interviewed are concerned, is for them to serve as a coordinated stakeholder consultation mechanism, which averts the need for separate consultations with the various interest constituencies (personal communication, September 21, 2007). It is also an opportunity for the Commission to learn the different positions of involved interests (CEJA), ‘to gather their views’, opinions and comments (CSO representatives, personal communications, September 21 and November 6, 2007); to ‘get advice on specific points’ (CSO representative, personal

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communication, September 20, 2007) and to ‘get a response’ in terms of a stakeholder opinion (personal communication, September 21, 2007). In this way, it is considered a ‘kind of hearing … of NGOs and stakeholders’ (CSO representatives, personal communications, November 23, 2007). In sum, it is regarded by various CSO participants as a tool for the Commission to get information (CSO representatives, personal communications, November 23, 2007), not to give information. The results of a previous study (Heard-Lauréote, 2005) also reveal disagreement amongst AAG (then Agricultural Advisory Committees) delegates regarding their role. That data suggested that participants attribute four differing roles to these structures. First, they are regarded as an information relay; second, as a discussion forum where participants can air their views; third, a mechanism through which the Commission simply fulfils its obligation to consult; finally, and more cynically, they are regarded as a means for the Commission to convene COPA meetings in Brussels. In that earlier investigation, and in contrast to the actual role perceived by participants, empirical data also suggested that the latter considered that the AAGs should ideally occupy one of three different roles. These three hypothetical roles are first, that they should constitute a consultation forum. Here CSOs should actively participate in decision-making by giving their opinions and the Commission should gain advice and CSO feedback on CAP and RD policy. Second, it was thought that the AAGs should constitute a discussion, dialogue and/or debate forum: here inter-CSO dialogue and CSO/Commission dialogue should generate forward thinking on strategic issues. Finally, AAGs should constitute an information relay. This role is sub-divisible into two groups: either, the Commission provides information or explanations to CSOs regarding legislation/policy proposals or CSOs provide information regarding implementation problems or issues experienced on the ground to the Commission. This divergence on actual and hypothetical roles among AAG participants is an indicator that they share no common objective as to what participation can achieve and have differing motivations for participating in them. In sum, the absence of a common aim or goal results in the dispersal of energies, multiple objectives being pursued and contributes to overall AAG ineffectiveness. The AAGs’ actual and formal role is established via CD 2004/391/EC and is threefold. First, the AAGs are a tool enabling the Commission to ‘seek the views of socio-economic sectors and consumers on matters arising in connection with the operation of the various common organizations of the market and other areas covered’ by the CAP and RD policy. Second, the AAGs are a means to ensure that the ‘Relevant socio-economic federations and consumer groups in the Member States’ which ‘have set up organizations at Community level’, have a forum where they can exploit the fact that they are in ‘a position to represent those concerned in all the Member States’. In so doing they ensure that all the economic sectors directly involved in and affected by agricultural policy decisions, as well as consumers, should have an

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opportunity to participate in drafting the opinions requested by the Commission. Third, and according to Article 1.2 of CD 2004/391/EC, the AAGs ‘may be consulted by the Commission on all matters relating to’ the CAP and RD policy ‘and its implementation, and in particular the common organizations of the market and the measures which the Commission is called on to take in that context’. In sum, the AAGs are intended as a forum allowing the Commission to seek the views of stakeholder interests on CAP and RD related issues; to provide a forum where community level stakeholder groups may represent the interests of those concerned; to provide a participatory forum for directly affected interests and to provide a consultation forum where the Commission can consult on CAP and RD related issues. The ambiguity of the AAGs’ English title ‘advisory group’ and its French translation, comité consultative, constitutes a further source of confusion regarding their role, which reinforces the limited clarity of the assigned mandate in CD 2004/391/EC. The English term advisory comes from the verb to advise, which means to give advice to, recommend, inform or notify. When comité consultatif is translated to English it gives, consultative committee. Consultative, from the verb to consult, means to seek information or advice from, refer to a person for advice, an opinion; seek permission or approval from or take into account and consider (feelings, interests etc.). Titles are significant since they determine participants’ roles. The confusion between consultative and advisory raises the question of who is advising who?: Are the CSOs advising DG AGRI of their opinions and views? This would imply that the CSOs are proactive actors while DG AGRI is passive. Alternatively, if the Commission is advising the CSOs of future legislative proposals, this would imply that DG AGRI is proactive while CSOs are passive. Conversely, if these structures are intended to be consultative committees, who is seeking advice from whom? Is the Commission consulting the CSOs on their views and opinions on proposed policy? Or are the CSOs seeking advice from the Commission regarding their future legislative plans? A further system design feature that can impact upon the effectiveness of ECAFs is the extent to which they ensure regular opportunities for interaction via frequent and sufficiently dense formal meetings. With regard first of all to meeting frequency, the CAP AAG has met very seldom over the 2006–8 period; indeed, for one CSO, the CAP AAG ‘does not exist’ (CSO representative, personal communication, September 20, 2007). Today, more than nine years after its creation, there have been less than five sittings of the CAP AAG. On at least two of these occasions however, the RD and CAP AAGs met together (CSO representative, personal communication, September 20, 2007). The recent absence of CAP AAG meetings may in part be because that group was initially created to obtain an overview of CAP. Now, however, DG AGRI is more focused on the different sectors. In this way, the policy is not to organize CAP meetings for general discussion, but more to focus on specific issues (Commission official, personal communication, October 22, 2007). CD 98/235/EC gives no indication of optimum annual AAG meeting frequency,

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simply stipulating that the Commission shall convene each committee meeting. Further information is provided by the database for consultation, the European Commission and civil society (CONECCS) which states that the CAP AAG meets ‘approximately’ once a year, while the RD, Agriculture and Environment (A&E) and Forestry and Cork (F&C) AAGs meet ‘approximately two times per year’. According to DG AGRI, in total there are approximately 85 meetings of the 30 AAGs per year. With regard to meeting density, increasingly AAG meetings are scheduled over a half day and the Commission explains that this is a result of having inadequate meeting rooms available (CSO representative, personal communication, September 21, 2007), insufficient interpreters or limited budget available to do more. Today, therefore, AAG meetings tend to occur over a three-hour period. The fact that as many as 30 or more individuals may be travelling from all over Europe, at the Commission’s expense, for such a short period does raise further questions about their efficiency (CSO representative, personal communication, September 20, 2007). The level of contact between participants outside of formal AAG meetings can help facilitate the AAGs’ smooth functioning and thus increase their effectiveness. The importance of regular interaction outside of the AAGs is also recognised by some participants (CSO representatives, personal communications, October 31 and November 6, 2007) and such coordination work does occur (CSO representative, personal communication, November 6, 2007). Work to build coalitions is recognized as being particularly important for NGO-type groups (CSO representative, personal communication, October 29, 2007). This is not considered to be as successful as it could be for ‘logistical’ reasons, such as difficulty assembling experts in a face-to-face context. It is also often unclear which individual will be attending each AAG. One participant concludes: ‘… To be honest … nobody is taking those committees seriously enough to really invest serious time in them’ (CSO representative, personal communication, September 21, 2007). Where coordination and bridge building work is occurring, it tends to happen in non-AAG related contexts and it is not the AAG which will ‘trigger us to reconcile our positions’ (CSO representative, personal communication, September 21, 2007). If the AAGs were considered ‘an important political place’, doubtless more such inter-CSO coordination would take place (CSO representative, personal communication, September 20, 2007). Finally, effectiveness is likely to be improved where there is a high level of contact external to formal meetings between DG AGRI, as the AAGs’ sponsor, and the CSOs, who are members. Many CSOs are indeed highly active in approaching DG AGRI in between meetings. Those which fall into this category are more likely to be what some representatives call the ‘CAP client groups’ such as COPA-COGECA (CSO representative, personal communication, October 22, 2007). Direct contact may not always take the form of face to face meetings; many CSOs send written papers directly to units in charge of particular issues (CSO representative, personal communication, September 21 and October 22, 2007). These

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bilateral contacts are considered highly effective (DG AGRI); perhaps because ‘those are the ones where you are actually able to convince people to get them to understand what you are talking about, understand from them what are their concerns and what are their doubts about what you are saying, which enables you to … either improve your position or improve the way you communicate it’ (CSO representative, personal communication, September 21, 2007). Based on the system-resource approach, AAG effectiveness is also enhanced where the rate of absenteeism is low. According to DG AGRI, however, absenteeism constitutes a problem in some AAGs where trade, industry and consumer groups ‘sometimes just do not come to the meetings’. A particular problem is perceived with regard to consumers who, it is reported, are ‘badly organized’ or suffer ‘some internal problems’ so that often they ‘do not come or they often do not send any expert’ (personal communication, October 22, 2007). Although DG AGRI insists that they ‘would like them to come’ it underlines that ‘We from our side cannot force’ them to do so (personal communication, October 22, 2007). Lack of attendance by some CSOs raises the question of seat distribution again: although some NGO-type stakeholders may complain that groups like COPA-COGECA hold the majority of AAG seats, sometimes groups that do hold seats do not even take advantage of these and attend (CSO representative, personal communication, September 21, 2007). Attendance is certainly contingent on group resources. Rather than attending ‘systematically’, some well-staffed organizations have ‘the luxury to pick and choose’ those AAGs it wishes to attend depending on the priority issues of the day and which other staff can attend instead of the main representative (CSO representative, personal communication, November 11, 2007). Some CSOs have had to battle hard to even get a seat on the AAGs. Indeed, CSOs access the AAGs at the invitation of the Commission, who asks socio-economic organizations established at Community level and listed in the Commission’s register of interest groups to designate experts. One group describes a ‘6 year battle’ to get a seat (CSO representative, personal communication, September 20, 2007). Each request was met with the Commission’s negative reply, so that it was only with the arrival of a new Commissioner for agriculture that the AAGs were opened up to some CSOs in circa 1998. Article 3.2 now provides that the Commission ‘may refuse the expert designated by the socio-economic organization when this designation does not seem appropriate, notably in the case of a conflict of interest. In such a case, the Commission promptly informs the socio-economic organization, which as a result designates another expert’. DG AGRI does not, however, disclose any details of the criteria on which it makes decisions of appropriateness. Article 6 of CD 2004/391/EC establishes that participation in AAGs ‘shall be limited to experts designated by the socio-economic organizations’ and according to ‘the limit of seats allocated to each organization’. It also provides that ‘the socio-economic organizations shall inform the Commission about their designation of experts at least three working days before the meeting’. This procedure means that for each AAG there is no named

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individual representative for each CSO; instead, a CSO may choose its participant from a list of approved individuals up to three days prior to a meeting. This raises two issues. First, where a last minute problem prevents the nominated representative from attending, no replacement can be sent in their place, thus leaving that seat vacant (CSO representative, personal communication, September 20, 2007) and second, there may be a lack of continuity with regard to which experts attend from one meeting to the next. Despite the latter risk, many of the individual representatives of CSOs interviewed that participate in the AAGs have nevertheless been attending the advisory groups for in excess of 10 years, indicating a lower level of participant turnover than in some Commission consultative forums examined in this study. A further design feature of ECAFs like the AAGs that should enhance their effectiveness, is a high level of administrative support from DG AGRI, including timely availability of materials necessary to prepare for meetings. Articles 7.1 and 7.2 of CD 2004/391/EC, establish that ‘Meetings of groups shall be convened by the Commission and shall generally take place at the Commission’s main offices’ and ‘The Commission provides secretarial services for the groups’. Although it does not chair meetings, DG AGRI is therefore the AAGs’ convenor, coordinator and facilitator via the provision of logistical support to the Chairperson and other participants during meetings. Meetings are however sometimes postponed by the Commission (CSO representative, personal communication, November 6, 2007). Although an annual meeting plan is drafted, ‘most of the dates then change’ (CSO representative, personal communication, September 21, 2007). Meetings may also be reduced from a full day to a half day during the meeting, which is described as ‘frustrating’ (CSO representative, personal communication, September 21, 2007) or meetings may be extended into the afternoon when previously scheduled to finish at 1pm (CSO representative, personal communication, September 21 and November 12, 2007). The result of the latter, on the occasions that it has occurred, is that non-Brussels based representatives with flights to meet were absent from afternoon proceedings. Because Article 6.6 allows that ‘Travelling expenses incurred by experts in the context of group meetings are refunded by the Commission in accordance with the regulations in force’ it is also the AAGs’ sponsor. On this matter, DG AGRI have been criticised for late reimbursement of travel costs (CSO representative, personal communication, September 20, 2007). DG AGRI officials and personnel from other directorates also provide the main content of AAG meetings through their presentations. The provision of appropriate staff from other DGs has in the past been problematic where an AAG agenda item has required the attendance of, for example, a DG Environment official but none has materialized preventing that item from being discussed (CSO representative, personal communication, November 23, 2007). Finally, DG AGRI plays a role in finalising the meeting minutes: Article 5.5 establishes that ‘The Chairperson is responsible for the compilation in a report of an accurate summary record of the meetings’, yet ‘The Commission

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may amend the Chairperson’s draft report prior to its distribution and subsequent approval by the group’. In this way the Chairperson writes the minutes and sends them to the appropriate AAG secretary, who then circulates them to the units who provided presentations to the meeting in question. The AAG secretary then circulates the minutes to the participant list and they are then amended (where necessary) and approved at the next AAG meeting. The actual drafting of the AAG meeting minutes is therefore the responsibility of the Chairperson, and for some CSO representatives they are considered satisfactory. However, DG AGRI also drafts internal minutes ‘for our own purposes, which are then disseminated in the whole of DG AGRI’. These differ in that they are usually ‘shorter’ than the ‘fully complete’ report provided by the Chairperson. Other CSO representatives comment that because the Chairperson meeting report is either late, non-existent, incomplete or inaccurate (personal communications, September 20 and 21, November 23, 2007), own minutes of meetings are always taken (personal communication, November 12, 2007). Notwithstanding the above, the AAG Chairs, most of which derive from COPA-COGECA, are described as ‘good’, ‘impartial’, and proactive at giving the floor (personal communication, November 12, 2007). The reports drawn up by the Chairs are however described as ‘vague’ and lacking precision. This has an impact on the AAGs’ ability to influence the decision-making process. This is because Article 9 of CD 2004/391/EC provides that no vote occurs at the end of AAG discussions and only if an AAG reaches unanimous agreement on the opinion to be given, shall it formulate joint conclusions and attach them to the summary report. Furthermore, the Commission only needs to communicate the outcome of a group’s discussions to the Council if it is proposed by the AAG. In short, unanimous agreement of all AAG participants is required for joint conclusions to be drawn up and attached to the summary report so that without a statement indicating a clear message from the AAGs to the Commission, little impact can be had. The risk is that ‘The Commission can say “okay we heard the stakeholders, we heard the NGOs, and now we can do what we want to do, because they have different opinions”’ (CSO representative, personal communication, November 23, 2007). Article 8 of CD 2004/391 provides that the AAG agenda items shall be determined by the Chairperson, in cooperation with the Commission, and in consultation with participating CSOs, at least 25 days before the group meets and that this agenda should be sent out by the Commission to participating CSOs, ‘as a general rule 20 working-days before the meeting, preferably by electronic means’. This timeframe for the reception of the agenda is mostly described as ‘adequate’ and satisfactory’ (CSO representatives, personal communications October 29 and 31, November 6 and 12, 2007) and provisional agendas may often be available as much as one month ahead of meetings (CSO representative, personal communication, November 12, 2007). For one AAG however, the agenda arrives ‘very late before the meetings, only a few days before. And that can influence on the preparation beforehand of the

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meeting’ (CSO representative, personal communication, November 23, 2007). At the time of interview, an AAG was set to take place in the Thursday of the following week and the agenda had arrived only one week ahead (CSO representative, personal communication, November 23, 2007). In terms of supporting materials, late circulation is also a problem: at times, ‘ … if there’s a PowerPoint presentation, quite often they will give you that with the papers when you arrive or it’ll be handed out when the presentation is being done’ (CSO representative, personal communication, November 12, 2007). This is said to impinge upon the preparatory work of CSOs (CSO representative, personal communication, November 23, 2007). Arguably however, such an impact upon meeting preparation is contingent upon the level of a CSO’s internal accountability. If this is low, there is likely to be very little coordination required for the agenda with affiliated national member organizations and thus late arrival will not cause a great hindrance. Even when the agenda does arrive, its quality may be low; for example, some items are listed in a ‘very general’ way, such as, ‘state of play of the pesticides framework directive’. A final issue relates to the timeliness with which the AAGs discuss issues in relation to the European policy-making agenda. One CSO representative asserts that the agenda is ‘always either too early or too late’. In practice this means that DG AGRI either ‘bring in a very kind of fadsy idea of “yeah we might do something in the future, but at the moment we don’t know” and “we can’t tell you anything” ’ which leads to a ‘completely blah blah discussion’, or otherwise officials simply report back on decisions that have already been taken, which although interesting, it is ‘too late to do anything about it’. In any case, the CSO representative adds, ‘in most cases we already know’ about the issues and what has been decided in relation to them and the various motivations behind these decisions ‘so you don’t even learn anything particularly interesting’ from attending AAG meetings (CSO representative, personal communication, September 21, 2007). In sum meeting content is described as ‘pretty pathetic’ (CSO representative, personal communication, September 21, 2007). In response, the Commission explains that it is often unable to schedule agenda issues differently because ‘often there is little or no development, or the Commission, DG Trade or the unit which is responsible for the international issues can’t give any information’. This may be because ‘they are in the process of negotiating, and negotiations take time’ (personal communication, October 22, 2007). Furthermore, although often issues arise early enough to be able to prepare a discussion (Commission official and CSO representative, personal communications, October 22, 2007), sometimes there are some late … or last minute points that arise as a result of a particular situation, or simply because ‘somebody thought at the last minute to raise another point’. Again, in response, although the Commission does admit that timeliness ‘varies’, it insists that ‘We try to limit the last minute issues’; mainly because they are aware that participants dislike such practices and are aware that their ability to prepare for meetings is reduced as a result. Moreover, the Commission has its own constraints in terms of limited resources to mobilize

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a Commission official capable of answering questions on that issue (personal communication, October 22, 2007). DG AGRI’s refusal to include certain issues on the AAG’s agenda is perceived cynically by one CSO representative who reports that often ‘we wanted to talk about changes to the less favoured areas’. On one occasion however, the Commission ‘just blanked it and were not prepared to have the discussion at that time’ (CSO representative, personal communication, November 12, 2007). Although the CSO claims that they ‘wanted to find out which way the Commission were thinking, how the policy was developing, so that we could have a meaningful discussion about it’ the Commission ‘didn’t want to even have that discussion’ justifying its decision with claims that the timing was not right and that there were more important agenda items to be discussed (CSO representative, personal communication, November 12, 2007). As usual however, what DG AGRI most wants is to provide updates on its activities and invite questions on these (CSO representative, personal communication, November 12, 2007). In any case, given that for most AAGs, only two meetings per year are scheduled, often policy proposals that could have been discussed by these forums have already left the Commission for the Council and EP. AAG meetings are not set up in such a way as to allow them to impact directly upon the decision-making process (CSO representatives, personal communications, November 6 and 23, 2007). Instead of having a discussion early on in the process, the AAGs are often presented with a ‘fait accompli’ (CSO representative, personal communication, November 12, 2007). In spite of proposals being at a later stage of the institutional process, the Commission will often table them on AAG agendas, yet this is regarded as ‘almost a waste of time’. Although it is accepted that the Commission is active throughout the whole process, CSOs recognise that real influence occurs at the earliest stages ‘when the desk officer is sitting and thinking and working with the first drafting of the proposal’. Instead, it is proposed that the Commission indicates its intention to bring forward legislation on a particular policy issue in six month’s time and that it should request an AAG opinion on a series of related questions. The CSOs’ responses could then be considered at the drafting stage (CSO representative, personal communication, November 23, 2007). AAG effectiveness will also be affected by the level of seniority of Commission officials and CSO representatives attending meetings. Commissioner attendance at AAGs is rare and limited to meetings of the CAP AAG. Very rarely the Director General of DG AGRI will attend, but division directors are the more likely participants. The Head of Unit in charge of AAGs also sometimes attends particularly where an agenda issue is of particular personal interest or in policy area subject to imminent reform ‘but as he is the head of unit, he has many things on the agenda so he often does not have time’ (DG AGRI). Most often, mid-ranking Commission officials from DG AGRI and other DGs will attend. Under the system-resource approach, the presence of particular participant behavioral features will affect effectiveness, the most noteworthy being the

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level of proactivity. The lack of preparation by some groups prior to AAG meetings including reading previous minutes where they are available, is an indicator that participant proactivity can be low (CSO representative, personal communication, September 21, 2007). While agriculture and environment groups are generally considered to be the most active, consumers, traders, trade organizations and labour organizations are considered the least (CSO representative, personal communication, November 23, 2007). On the whole however, the level of proactivity within AAGs ultimately depends on the agenda (CSO representative, personal communication, November 23, 2007). Turning now to perception-based assessments of AAG effectiveness, a high level of commitment from DG AGRI, a perception that the AAGs are worthwhile and useful on the part of participants and a general climate and atmosphere that is positive and collegial are necessary for the AAGs’ smooth functioning. With regard first to DG AGRI’s commitment, one perception is that it is not in the least bit interested in listening to different interests or opinions (CSO representative, personal communication, October 29, 2007) either via the AAGs or any other consultation. Instead, it is perceived that this Commission service regards AAG meetings as a ‘hassle’ (CSO representative, personal communication, September 21, 2007). Consequently, DG AGRI simply presents their activities as part of the Commission’s mandatory consultative process (CSO representative, personal communication, September 21, 2007) in the knowledge that the same groups will criticise them as they always do (CSO representative, personal communication, October 29, 2007). This apparently allows, DG AGRI to ‘maintain the farce of consultation’ (CSO representative, personal communication, September 21, 2007) without really taking the exercise seriously (CSO representative, personal communication, September 21 and November 6, 2007). DG AGRI is said to compare particularly badly in terms of consultation commitment to DG Environment, DG Enterprise and DG Trade, who are all considered more ‘open’ and accessible to experts and to have an ‘open ear’ (CSO representative, personal communication, November 6, 2007). Moreover, because these DGs, particularly Environment, have their own agriculture related working groups, which examine some overlapping issues, officials from the Environment service and some stakeholder groups may question the utility of attending the AAGs when the WGs are deemed more effective (CSO representative, personal communication, November 23, 2007). Despite the problems highlighted, a more positive outlook sees DG AGRI as at least operating the AAGs in ‘good faith’ (CSO representatives, personal communications, September 21 and November 12, 2007) so that there is no ‘deliberate intention to not engage’. Rather there is simply a tendency to ‘talk things out without actually getting involved in a real debate’ (CSO representative, personal communication, November 12, 2007). Nevertheless, even this limited forum is ‘a starting point’ towards ‘a closer relation with DG AGRI’ (CSO representative, personal communication, September 21, 2007). As part of the Commission’s broader process of reform of civil society

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consultation mechanisms, there is also a possibility that the AAGs will undergo some further modifications and DG AGRI has responded positively to some stakeholder groups’ requests for change (CSO representative, personal communication, November 23, 2007). One particular idea under consideration is the improvement of dissemination of information such as AAG meeting reports on the website. At the time of writing there are no concrete plans afoot and reform remains firmly at the discussion stage (Commission official, personal communication, October 22, 2007). Effectiveness ought to be enhanced where participants perceive the AAGs to be useful. Despite their shortcomings, CSO representatives highlight various uses and motivations for attending forum meetings. For many CSO representatives, the primary motivation for attending AAGs is to inform other groups as to own positions, to listen to other groups and learn from them as to what are the main issues of concern for all participants and then cascade this information through internal membership (CSO representatives, personal communications, October 22 and 29, November 6, 2007). In this way, AAGs serve as a sounding board for the Commission, offering ‘one of the few occasions in which the people in DG AGRI get a range of views together in one room’ (CSO representative, personal communication, October 22, 2007) and where ‘we all go along and sing our tune’ (CSO representative, personal communication, October 22, 2007). A particular ‘good thing’ is the fact of listening to other CSOs publicly declaring their different views and opinions on CAP related problems (Commission official and CSO representatives, personal communications, September 20 and October 22 and 31, 2007); this is particularly important to avoid the risk of having a ‘closed … privileged system of consultation’ between DG AGRI and its main ‘client group’ (CSO representative, personal communication, October 22, 2007) and to have an opportunity to challenge these views where necessary (CSO representative, personal communication, October 22, 2007). A second motivation for attending AAG meetings is their utility as a forum for information gathering and exchange (CSO representative, personal communication, September 21, 2007). This function is, however, perceived as highly dependent on the quality of the Chairperson and which Commission officials attend. Views on the quality and utility of the information provided by the Commission differ. For one CSO representative, for information ‘it’s a wonderful instrument, and it’s really a European highlight’ (CSO representative, personal communication, October 29, 2007). For others, the information received is a simple ‘snapshot’ (CSO representative, personal communication, October 22, 2007) or is indeed ‘stale’ to the extent that it could be retrieved from an Internet or other desk search (CSO representatives, September 20, 21 and October 29, 2007). For others still, although they may also mainly comprise ‘things you already know’, Commission presentations ‘are not devoid of interest and may sometimes contain statistics, timeframes for action or other data not seen elsewhere (CSO representatives, personal communications, September 21, 2007). According to some CSO representatives, fresh

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information can sometimes be gleaned from the Commission, and where this happens the breaks and informal discussions after meetings offer opportunities to take such information up with peers and with the Commission, perhaps even leading to a bilateral meeting with the latter (CSO representative, personal communication, November 23, 2007). Notwithstanding these positive comments, for one CSO, the AAGs are a wasted opportunity where the expertise of individual representatives could feed into the Commission (CSO representative, personal communication, September 21, 2007) but in reality does not. In addition, the information supply by the Commission during AAG meetings is said to suffocate any opportunity for debate by encouraging CSOs to simply react to Commission presentations rather than interacting with each other to reach collective solutions to problems (CSO representative, personal communication, September 20, 2007). A third motivation for attending AAG meetings is to influence the policy and decision-making processes. This can be done in several ways from participating to show presence and force, build pressure, give advice, ensure that a particular point of view or message is articulated and explained, publicly confirm known positions and further reinforce these vis-à-vis other organizations and demonstrate the importance of a CSO’s position to the Commission (CSO representatives, personal communications, September 21, October 22 and 31 and November 6, 2007). For one CSO representative it is an opportunity to attempt to influence DG AGRI that cannot be overlooked given that the AAG ‘might be the only time that the Commissioner hears us directly’ (CSO representative, personal communication, October 22, 2007). Several CSO representatives do recognize that the AAGs are part of a wider lobbying exercise within the broad political and decision-making process (CSO representative, personal communication, October 22, 2007). Although ‘It is by no means the most important part’, it ‘is still a part of this process’ (CSO representative, personal communication, October 22, 2007). Being a small piece in a larger jigsaw does however make it difficult to know whether any influence CSOs have on DG AGRI comes as a result of the AAGs or ‘in private meetings or in meetings in the countries or from the press’ (CSO representative, personal communication, September 21, 2007). Some CSOs are clearly adamant that the AAGs do constitute a mechanism to influence the Commission (CSO representatives, personal communications, October 31 and November 12, 2007), and ‘that’s what I would hope to be able to do because that’s what any external advisory group should be doing’ (CSO representative, personal communication, November 12, 2007). Not all participants share this view, however, asserting that participating in AAGs makes very little difference. DG AGRI is ‘very rarely going to be influenced’ via these forums (CSO representative, personal communication, October 22, 2007), or any influence exerted will be at best ‘marginal’ (CSO representative, personal communication, November 12, 2007). This is because they are not the place where policy is determined or shaped in any real sense (CSO representatives, personal communications, September 21, October 22 and

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November 12, 2007). For one representative, ‘if you really want to change something or influence the Commission in a specific item, it’s perhaps not at the advisory groups where you can do it’ (CSO representative, personal communication, November 23, 2007). Another CSO agrees that ‘I think we are much more efficient by giving our papers, having meetings, phoning etc. … than through the advisory group’ (CSO representative, personal communication, September 21, 2007). In reality, the AAGs are accepted as forming one small part of a lobbying process engaged in by CSOs and for most it is the end that is important, rather than the means by which this is achieved. In this way, different lobbying instruments are used and the success of these is measured at the end, when it can be seen whether a CSO’s lobbying has impacted upon the legislation. It may not, however, be possible to identify whether this was as a result of the AAGs or some other mechanism. For one CSO, no matter how it is measured, the AAGs’ success at influencing legislation is ‘next to zero’ (CSO representative, personal communication, September 21, 2007). A fourth motivation identified by AAG participants for attending this forum is that it provides a useful venue for interaction and networking with the Commission and other CSOs (CSO representatives, personal communications, September 20, October 29 and 31, November 12, 2007). They are also said to contribute to the creation of a strong network society (CSO representatives, personal communications, October 29 and November 23, 2007), promoting ‘interrelations’ and alliances between stakeholder groups, which improves mutual awareness (CSO representative, personal communication, September 21, 2007). The more cynical note that it is at best an occasion ‘to see and be seen’ (CSO representative, personal communication, October 22, 2007), for the more positive it is an occasion to establish new contacts and reconfirm others (CSO representative, personal communication, November 23, 2007) in order to build good working relationships. A final motivation expressed for attending these forums is as a damage limitation exercise. For some CSOs it is a case of trying ‘to make sure that we keep what seats we have’ on the AAGs (CSO representatives, personal communications, September 21 and October 22, 2007). Although their overall value may be questioned, it is argued that given their existence, interests ‘must be represented’ on AAGs (CSO representative, personal communication, October 22, 2007). Basically, another CSO representative adds, ‘you have to show that you are there, you have to give the Commission the impression that someone is watching … and that they cannot get away with chumming up to the farmers’ (CSO representative, personal communication, September 21, 2007). The AAGs are after all ‘one of the few occasions in which the producer interests are exposed to our points of view’ (CSO representative, personal communication, October 22, 2007). It is also an opportunity to hear what other groups are saying and where necessary ‘contradict’ what other people are saying and make it clear that there is another point of view. In the same vein another CSO representative asserts that ‘it’s always good to know what opponents you will have to your position when you are actively trying to

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influence’ (CSO representative, personal communication, September 21, 2007). Indeed, as a second confirms, ‘The only reason why I insist in participating in it is that it’s the kind of thing where you have to be there in order to fend off attacks … clearly if you disappear from the debate your opinions will not be taken into consideration’ (CSO representative, personal communication, September 21, 2007). Another finds it impossible to imagine not attending, given that this is a venue where most stakeholders in agriculture policy are present, meaning that ‘I have no choice’ but to attend and contribute ‘my viewpoints’ (CSO representative, personal communication, November 6, 2007). Based on these different motivations for attending, the majority of CSO representatives interviewed agreed that the AAGs are worthwhile continuing; some reform of processes may, however, be necessary (CSO representative, personal communication, September 21, 2007). For one DG AGRI official, although ‘There are some things which could be changed … for what they are, for the scope of the work, I would say that they are quite effective’ (personal communication, October 22, 2007). Similarly, for some participating CSO representatives, the AAGs are described as ‘useful’ and ‘positive’ (CSO representatives, November 6 and October 31, 2007). For one CSO, AAGs can only be at best said to have a strong ‘potential value’ (CSO representative, personal communication, November 12, 2007) in that although they are ‘not a waste of time’ they ‘could be so much more useful’ and ‘more effective’ than they currently are (CSO representative, personal communication, November 12, 2007). As one representative adds, however, ‘the problem is that the usefulness of these kinds of processes is really dependent on … political will to make use of them (CSO representative, personal communication, September 21, 2007). The current state of the AAGs is at least generally considered better than the alternative of not having such a forum for stakeholder consultation (CSO representatives, personal communications, September 20, October 22, November 12 and 23), which ‘would be worse than where we are just now’ (CSO representative, personal communication, November 12, 2007). For one representative however, a debate needs to be launched by DG AGRI on the utility of AAGs and ‘if the result of this debate is to cancel the committees … and to replace or to have another forum, okay … ’ (CSO representative, personal communication, September 20, 2007). A small number of CSO representatives take the contrary view that the AAGs represent ‘lost’ or ‘time wasted’ (CSO representative, personal communication, September 21, 2007) and are limited in their utility (CSO representatives, personal communications, September 21, October 22 and November 12, 2007). For one ‘it’s totally depressing … I don’t expect anything whatsoever to come out of it’ (CSO representative, personal communication, September 21, 2007). Another reports that ‘If you look at the goal of the advisory group, then they don’t do their work at all’ given that they fail to ‘really ask for the advice’ (CSO representative, personal communication, November 23, 2007). One goes as far as to report that ‘the Commission has castrated the role of these groups’ rendering them next to useless. This results from ‘the isolation of DG AGRI’,

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which ‘means they are worried about listening to people who have a different opinion’ (CSO representative, personal communication, October 29, 2007). Accordingly, some foresee few problems in winding up the AAGs given that they are as ‘useful’ as ‘any other opportunity’ so that if you ‘abolished it and substituted it with twice a year big conferences organized by the European Voice’ these would be as effective (CSO representative, personal communication, September 21, 2007). A final CSO is more ambivalent with regard to the AAGs’ worth, reporting that if low expectations are maintained vis-à-vis these forums, their existence is not so problematic (CSO representative, personal communication, October 22, 2007). The representative accepts that ‘it’s always difficult to know how best to organize consultations’ but the key is not to ‘attach a great deal of importance to them’ and simply accept that they ‘have a certain utility’ in providing a ‘kind of a snapshot’ and ‘an overview’ which can serve a limited function (CSO representative, personal communication, October 22, 2007). The final aspect of perception-based effectiveness relates to the AAGs’ atmosphere and climate. The working relationship and overall tone of meetings is described as very ‘good’, ‘positive’ or at least ‘reasonably positive’, and ‘friendly’ (CSO representatives, personal communications, September 21, October 22 and 31, 2007). Meetings are also characterised as ‘perfectly civilised’ where participants make every effort to be ‘pretty polite’ and ‘not to be antagonistic’ (CSO representatives, personal communications, October 22 and November 12, 2007). Although ‘some antagonism’ is admitted by some CSOs, this is not said to go beyond ‘a lively exchange of opinions’ (CSO representative, personal communication, November 6, 2007) so that there is no ‘open warfare’ (CSO representative, personal communication, November 12, 2007) or ‘conscious machination’ (CSO representative, personal communication, September 21, 2007). The reasons advanced for this generally positive climate and ‘good level of trust’ (CSO representative, personal communication, October 29, 2007) are first that the AAGs constitute a multicultural and transnational environment (CSO representative, personal communication, September 21, 2007); second, because many of the individual CSO representatives have been attending the AAGs for several years (Commission official, personal communication, October 22, 2007) and third because the relationship between DG AGRI and some CSOs has been constructed over several years built on understanding that ‘what they tell us in a private meeting stays there and we will not go out and blow it in the press. We never name officials; we would never go out to the press saying “Mr X is saying that”’ (CSO representative, personal communication, September 21, 2007).

An exercise in damage limitation? The AAGs between effectiveness and legitimacy The purpose of this concluding section is to assess how the findings from the final case bear out the claim that ECAFs as supranational participatory

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structures provide a location where legitimacy and effectiveness can be realised simultaneously. A response along the lines that the AAGs’ capacity to guarantee both input and output legitimacy is compromised would seem most appropriate given the evidence presented. As regards minimum thresholds, the AAGs that form the focus of this case comprise between 40 to 61 seats and there are a total of 60 to 100 participants in attendance at any given meeting. As with the other ECAFs, the issue of whether such large numbers affect their smooth functioning is mostly linked to the meeting format. There is for example no prevalent view that the attendance levels are too large to prevent streamlined consultation; the major hindrances to these are more linked to the AAGs’ deliberative capacity. The AAGs are intended to bring together actors interested in and affected by CAP and RD issues. Many such actors fall under the banner of those socioeconomic organizations with seats, including consumers. The latter may however be deemed to be under-represented given that they clearly constitute the largest affected interest constituency along with EU taxpayers and yet have minimal seats. Development CSOs are also rare participants. As with the other ECAFs, the AAGs suffer difficulties incorporating the 2004 and 2007 MSs, while the previous EU15 MSs clearly dominate attendance. It is not only this element that is responsible for a failure to secure a European-wide constituency; the defence of national and even personal interests are also a barrier to the development of a Community-level approach to AAG discussions. Criticisms that the AAGs are affected by a preponderance of interests who are known to share a similar position, or who have already formed an alliance for a common purpose, are widespread. COPA and its sister organization COGECA clearly dominate seat numbers on most AAGs in comparison to consumer, animal welfare and environmental interests for example. This generates other problems; most notably scepticism amongst participants as to DG AGRI’s primary motivations for convening AAGs which appear to offer an informal mechanism to finance COPA-COGECA’s internal working group meetings. Additionally, as far as the formal statues allow this to happen, its ability to dominate many AAGs’ seats equates to COPACOGECA controlling the majority of Chair functions. As a result of the findings linked to predominance of interests, there is a common perception that DG AGRI considers farmer/producer interests over and above others to the extent that the former group are considered privileged interlocutors. As with the other ECAFs explored here, the AAGs’ format is not conducive to promoting deliberation. Most often it is presentations by Commission officials, more or less knowledgeable of the issues at hand, followed by invitations for comment from the assembled CSO representatives. The frequent recourse to repetition, duplication, grandstanding, rhetoric and statements of the obvious are said to render the meetings practically worthless. At best, the meeting constitutes a very brief overview of questions rather than any real in depth content towards common problem solving. That the participants possess expertise is a formal requirement of the regulating

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Commission Decision. The perceptions of whether this exists in adequate amounts are mixed; some CSO representatives report satisfactory levels of expertise while others particularly pinpoint farming groups as frequently guilty of sending individuals of abysmal quality. With regard to openness, DG AGRI provides little web-based information of the AAGs, posting no agendas, minutes or participant lists. Many CSO representatives view this as an illustration of this DG’s traditionally self-contained and closed aspect. The same issues as those raised in relation to public awareness of the EUEB, EUHPF and TCG/CSD also apply to the AAGs. Opinion is split as to exactly how much the public should and would even wish to know about these structures. As in each of the other cases however, the largest openness issue relates to the absence of proper feedback from the Commission as to how it has taken on board or followed-up on the views expressed by CSOs at meetings. In terms of equality of treatment, the consensus view is that in each of the AAGs explored, the Chairperson is reasonably adept at allocating equal speaking opportunities. Equality of agenda-setting is, however, a different affair, and one challenged by the ambiguity of the Commission Decision’s formal rules, which creates confusion over whether it is DG AGRI, the Chairperson or the CSO participants who have primary responsibility for this task. Turning now to effectiveness, the first issue of note is the apparent divergence between DG AGRI’s and CSO participants’ perceptions as to the AAGs’ primary role and function; while the former utilizes these structures to inform stakeholders of its activities in specific policy areas, the latter are seeking a coordinated consultation of their views and opinions. The CSOs’ expectations seem to concur with the AAGs’ formally established role as set out in CD 2004/391/EC. The AAGs’ effectiveness is certainly hindered by their infrequency; meeting at best twice per year over just a three-hour period on average. Such contact-levels are not conducive to establishing a climate of trust and confidence amongst participants. Absenteeism also constitutes a problem in relation to the AAGs; this is compounded by a formal requirement that the names of CSOs’ representatives due to attend meetings should be notified three working days in advance and where that individual is unable to attend at short-notice, no replacement may be sent. AAG effectiveness is partially contingent on the quality of the administrative support they receive. Meeting postponements and cancellations have been highlighted as one secretariat-related problem as well as the reduction and extension of meeting time at very short-notice. Other issues relate to the late reimbursement of travelling expenses and the provision of inadequate or poor quality Commission personnel from other services to provide presentations at AAG meetings. DG AGRI’s role in the production and circulation of meeting minutes is ambiguous but to the extent that it is involved, it is charged by many CSO representatives as producing short or poor quality summaries, which are circulated late. Furthermore, the timeliness with which issues arise for discussion on AAG agendas in relation to the broader European policy-making agenda is poor; it being either issues that are at a too immature stage of development

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or on which firm decisions have already been made. DG AGRI’s response is that it is unable to schedule agenda items differently because either the appropriate staff are unavailable, issues are too sensitive or are subject to internal negotiation. The seniority of the Commission staff attending AAGs rarely goes above Head of Unit and the Commissioner only very rarely attends them. The level of DG AGRI’s overall commitment to the AAGs is perceived as low by many participants; indeed some CSO representatives wonder whether the structures present a hassle to this Commission service and whether it actually takes them seriously at all. Nevertheless, other individuals are certain that DG AGRI at least tries to operate these forums in good faith and rather than it deliberately refusing to engage, it is seen to more likely possess a tendency to operate a ‘talking shop’ rather than a consultation mechanism. Despite its various functioning weaknesses, multiple uses are made of the AAGs by participants, either as a learning forum to understand the main issues of concern to other CSOs, an information gathering and exchange mechanism, a venue to influence policy or engage in interaction and networking or as a simple damage limitation exercise. Based on these motivations to attend, many CSOs agree that the AAGs are worthwhile continuing and are at least better than the alternative of having no opportunity for stakeholder involvement.

Conclusion Trapped between legitimacy claims – managing expectations for ECAFs

Following the four preceding empirical case studies, this concluding chapter first offers an overall comparative assessment of the four ECAFs’ representativity and deliberative capacity. Thereafter and in addition to input legitimacy, their effectiveness with regard to outputs will be assessed according to the multi-dimensional approach adopted throughout the volume. It is posited that despite the ECAFs’ supposed structural predisposition to help the Commission improve system effectiveness and sustain adequate democratic credentials like legitimacy, in reality their contribution to both the quality of inputs and outputs is in doubt.

Evaluating representativity via balanced composition in ECAFs According to some Civil Society Organization (CSO) representatives, their organization can contribute to the policy-making process and provide significant benefits via participation in European Commission Advisory Forums (ECAFs) by being representative of a broad membership base and possessing a large and geographically spread presence across the EU member countries (CSO representatives, personal communications, September 18 and 19, 2007). However, the issue of CSO representativity in relation to the ECAFs studied in this volume is a complex one. All the CSOs involved in the ECAFs studied here represent different interests and constituencies. Indeed, it is the question of constituencies that renders it very difficult to determine the specific representativity and general legitimacy of civil society as a whole (view expressed in Bizzarri and Iossa 2007: 34). Trade Unions (TUs), for example, exercise direct representation of their constituency of workers and they have negotiated policy space in decision-making on that basis (Bizzarri and Iossa 2007: 35). Direct representation confers TUs a higher degree of legitimacy (Bizzarri and Iossa 2007: 34), which is different to that of NGOs. Some NGOs may not, for example, be backed by a specific constituency. In fact, often because international NGOs lack material resources, their only means to exert influence is via moral authority. This is ‘directly linked to claims that they are able to represent the common good in global affairs’ (Risse, 2004: 13) as well as empower and

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create space for the ‘weak and powerless’ to voice their concerns and claim their rights (Bizzarri and Iossa 2007: 35; Risse 2004: 13). International NGOs may, however, also derive legitimacy and exert influence via general expert knowledge or from a specific area of expertise which they have developed (BI for example). This expertise can qualify them to input into a policy process (Bizzarri and Iossa 2007: 34). NGOs established at European or international levels have received criticism as suffering a particular legitimacy deficit (see for example, Brühl et al. 2001); that although they operate transnationally, they are internally accountable to a rather small group of members. They are also accountable to those who fund them, yet donators are mostly middle class publics in Western societies, private foundations and sometimes public agencies (Smith 1997). The legitimacy of interest representation by European NGOs is specifically uncertain because some NGOs rely, at least in part, on financial support from the EU budget. CSOs then do not represent all civil society (Goehring 2002: 122–35). Instead, they are élitist to the extent that they are not open to all comers and have a modus operandi ‘which privileges members and excludes non-members from their work, and thus have their own élite basis’ (Greenwood 2007: 36). Based on these initial questions, the validity of CSOs’ oft proclaimed credentials as spokespersons for society are uncertain. ECAFs are, for the most part, comprised of individuals who attend meetings as direct representatives of CSOs. These organisations, in turn, claim to represent directly civil society. The individuals who occupy ECAF seats and participate in their meetings can thus only ever claim to indirectly represent the population. Not every citizen is a member of a CSO such as an environmental, animal rights or consumer protection group however, so even this claim to indirect representation is problematic. In that case, although often advanced as indirect representatives of the public, CSOs can only really claim to be representative of their direct membership. Nevertheless, most citizens (whether members of CSOs or not) can claim to be affected or concerned by the issues represented by such organisations. It is unclear whether CSOs can represent such citizens by default. Even the so-called direct representation of a CSO’s membership is problematic since the extent to which CSOs really do this is questionable. Unless CSOs participating in ECAFs provide exact detailed lists of their membership, including all affiliate members and the geographical location of these, it is difficult to ascertain on whose behalf individual CSO representatives are speaking in advisory forums; themselves, their CSO or all of their CSO’s affiliated members. Even where there is a clear constituency, it is questionable whether CSOs generally represent this: the Comité des Organisations Professionnelles Agricoles de l’Union Européenne (COPA) for example, considers itself to represent circa 15 million farmers via its membership and affiliate members (personal communication, June 8, 2007). Some CSOs (the World Wildlife Fund (WWF), Birdlife International (BI) for example are financed in part by public donations, but to what extent donators are aware of the organization’s policy positions and its internal

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procedures for formulating these is also questionable. The other issue is whether individual participants really represent the CSOs to which they belong, as opposed to being beholden to the official who appointed them (Crosby, Kelly and Schaefer 1986: 171). Once they have become ECAF members, individual representatives of CSOs may also operate on a personal basis or be acting for personal gain, such as recognition by senior personnel or for promotion. Indeed, going back a step, it is questionable whether it is really the actual ‘constituency’ that chooses individual participants selected as this is actually done by a CSO’s top echelons, rather than by the broader membership. The issue of real representativity is of particular salience within the Trade Contact Group/Civil Society Dialogue (TCG/CSD) process. The CSD functions on the basis of self-selecting representation in that it is those groups which are already members of the TCG that decide who can enter the TCG/ CSD in the future. The TCG’s membership is limited. Those CSOs with seats are required to represent a particular constituency or ‘family’ of interests represented in the broader CSD. TCG members do this by putting forward the suggestions and recommendations of their constituencies for future CSD meetings. Eurogroup for Animals (Eurogroup) for example claims to speak ‘on behalf of animal welfare’ and to ‘represent animal welfare organizations as a whole’ (personal communication, August 2, 2007); the European feminist network of women’s organizations (WIDE) claims to represent gender in TCG, which necessitates contact with gender-related organizations beyond its own network while WWF performs this role (in rotation with Friends of the Earth Europe (FoEE)) for environmental organizations. One CSO representative wonders, however, whether TCG members ‘always realize that they are sitting [there] for a larger platform than only for their own organization’ (personal communication, September 17, 2007). The ability to close the informational feedback loop is also an essential requirement for real representativity of ECAF’s. As well as an upward informational stream whereby affiliated members can contribute ideas for consultations and agenda points, there is also a downward informational stream whereby the CSO established at Community-level must ensure the proper transfer of explanations, information and feedback from any consultation process back to the affiliated member network. It is via this downwards stream that CSOs are intended to serve as a mechanism helping to ensure a better public understanding of how the EU works. Some groups act as a clear contact point between their membership and the European Commission, with robust mechanisms in place to ensure accountability throughout their networks and outreach to their membership. One TCG/CSD CSO for example claims to have ‘a whole system of democratic representation … with elected leaders’ and a ‘whole democratic system of getting policy’ (personal communication, June 8, 2007). Another explains that it reports both to its board and to relevant expert groups. All relevant paperwork drawn up on particular issues is circulated internally. Feedback is sought so that a whole CSO response can be prepared and approved by the

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board before being released as a formal position of the affiliated network (personal communication, September 19, 2007). A third CSO representative claims that his/her organization reports to its member organizations in the EU27 and in its 40-odd trade sectors, ‘it’s up to me to contact them so that they tell me what behavior I should have’ (personal communication, June 8, 2007). In addition, the same CSO has three or four annual meetings to which its members are invited. ‘I do report to them, when I’m feeling that there are information worth enough to be circulated … I have what I call news flashes sent to my members that I send on a regular basis once or twice a week’ (personal communication, June 8, 2007). A fourth CSO representative asserts that internal communication and reporting back to constituency is assured by the fact that TCG/CSD is a permanent agenda item at its CSO’s board meetings (personal communication, September 17, 2007). A final representative claims to base his/her TCG/CSD interventions on agreed position papers or statements (personal communication, June 6, 2007). Some EU Health Policy Forum (EUHPF) CSOs reveal, however, that they do not, nor indeed do they ‘need’ to consult all of their members in advance of meetings and on associated agenda points. Indeed, the same CSO that claims it reports to its board adds that where time disallows this process, the CSO secretariat has the authority to adopt a position based on those released formally as well as the CSO’s guiding principles (personal communication, September 19, 2007). Another business-related CSO representative from the TCG argues that his/her organization does not need to consult all of its affiliated members in advance of meetings because ‘We’re just following the same policy for years now’ (personal communication, June 8, 2007). Instead, only one or two senior policy advisors may have input. They may, for example, be considered the only ones to possess a sufficiently specialized level of knowledge and expertise, or perhaps the Brussels-based staff of a CSO may be given the chance to provide input. Other CSOs do not consistently feed information back to their membership and may only prepare a short report for a central steering committee, executive committee, board or similar where there is time to do so. One EUHPF interviewee rationalizes this by stating that at least some discussion has taken place at the highest internal level, which arguably gives weight and a mandate to the position defended by the individual representative attending any meeting (personal communication, September 17, 2007). Although another TCG/CSD CSO representative circulates a monthly report so that staff and members can see what issues are being dealt with, the position taken at meetings is usually personally defined; if more detailed information is required, the representative happily provides this but on an ad hoc basis (personal communication, August 2, 2007). The challenge for certain CSOs is to work within the constraints posed by their internal decision-making structures, which are often cumbersome. Such groups are faced with the task of arriving, via consensus-building between member organizations/companies, at a common position among their vast, diverse, cross-national and cross-sectoral membership. Although sectoral

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European industry associations may represent a lesser breadth of interests, they face similar challenges in finding common positions among nationally diverse memberships. Whatever the constraints, where mechanisms of communication and feedback break down between the individual representative and the CSO’s membership and/or the CSO’s central bureaucracy and the nationally affiliated membership, it is again difficult to determine on whose behalf an individual is speaking in meetings. It begs the wider question, where NGO-type CSOs are concerned of whether they are simply accountable to and acting in the name of their paid-up members or the whole of society. If it is the latter, the absence of feedback mechanisms to wider civil society is problematic. Furthermore, given the pressure of issue competition, which means all CSOs prioritize the issues of greatest importance to them, where the final CSO position emerges from inside a small epistemic community of Brussels-based policy advisers, with little or no input from the wider membership, internal accountability is also jeopardized (Gerlach 2006: 181). This leads one interviewee to comment … we’re not sure how they get their policy … one finds it very surprising … vis-a-vis their objectives … Which makes you wonder even more what is driving their policy’ (personal communication, June 8, 2007). Where the informational and feedback loops are ignored, such practices go against the belief expressed by one CSO representative that all participating CSOs have ‘a duty to share what goes on there’. This requires all participants to regularly examine their structures to ensure they allow information to be properly cascaded outwards and downwards and actually facilitate transparency and the easy receipt of feedback from member organizations (personal communication, July 30, 2007). It also goes against the Commission’s attempts to compel participating CSOs to address issues of internal accountability. As part of its 2002 general principles and minimum standards for consultation, the Commission underlined the importance of openness and accountability for the conduct of organizations when they are seeking to contribute to EU policy development. It set out that CSOs should make it clear which interests they represented and how inclusive their representation is. Interested parties that wish to submit comments on a policy proposal by the Commission should, it added, be ready to provide the Commission and the public at large with the information described above. This information should be made available either through the database for Consultation, the European Commission and Civil Society (CONECCS) (where organizations are eligible for this database and wish to be included on a voluntary basis) or through other measures, e.g. special information sheets. If this information is not provided, submissions, it noted would be considered as individual contributions. Specific DGs have also made efforts to compel greater transparency on representativity. DG AGRI has signalled the importance of CSOs participating in the AAGs’ addressing issues of internal accountability. One official emphasizes that ‘we always tell’ participants as umbrella Euro-groups ‘that they should disseminate their information [such as meeting summaries]

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further… so that then at the end everybody can receive the information’. For DG AGRI then, transparency with regard to AAG documentation is clearly ‘the responsibility of the groups participating’ (personal communication, October 22, 2007). For its part, DG SANCO has informed CSOs involved in the EUHPF that ‘Statements and opinions of the organization’ should ‘reflect the views and opinions’ of a CSO’s members. Moreover, ‘Democratic, clear, regular and transparent consultation procedures with members should be in place and defined by internal rules endorsed democratically by the General Assembly or the members themselves’ (DG SANCO 2007: 41). The added value of such participatory mechanisms rests on the understanding that the greater involvement of civil society groups is essential in order for decision-makers to access fresh thinking, more diverse informational sources and a wide range of viewpoints. Without proper internal feedback mechanisms, CSOs cannot deliver these benefits. (Esty 2002: 17). After all, if, via ECAFs, CSOs are to help improve the Commission’s capacity to generate well-reasoned outcomes that reflect the popular will and play a crucial role in filling the gap left by the alienation of the general public from party politics by providing spaces for individuals to voice views and concerns in an organised fashion; these views must be properly represented to the EU institutions.

Respect of minimum threshold principle and stake-holding principle Although it does not prevent ECAFs from seeking information and inviting consultation from any sources that it chooses, according to the minimum threshold principle, for the actual process of drafting prospective policies and deciding upon them, ECAFs should not comprise any more active participants than is necessary for the purpose of fulfilling mandated tasks and comprise only those persons or organizations judged capable of contributing to the designated task. In short, only actors that can contribute to problem-solving should be invited. The EU Eco-Labelling Board’s (EUEB’s) Consultation Forum (CF) is highly streamlined on paper, with only six CSOs as formal members. Due to regular non-attendance of two or three of these, however, actual numbers are normally reduced to three CSOs. The CF does not meet in isolation but rather as part of the wider EUEB which, according to the various allowances included in the rules of procedure, can include between 70 and 130 individuals. This is not, however, the most cumbersome of the ECAFs. Although the TCG has only 14 formal member organisations, when the CSD meets its formal mandate allows it to comprise between 60 and 200 individuals. The EUHPF and the AAGs have less bulky member lists, with 49 formal participant groups in the case of the former and from 40 to 61 seats on the latter. Yet again though, the flexibility of the formal rules allows actual participation numbers of 60–65 individuals on the EUHPF and 60–100 individuals on the AAGs. In the abstract, participant numbers are not in themselves a problem, yet when considered in relation to the average meeting time of each of the ECAFs

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explored here; approximately four hours; this is simply an insufficient timeframe for real consultation and deliberation to occur between the numbers of individuals involved. This issue would itself be lessened if the ECAFs were a briefing session. This is not, however, their intended format, although they all possess a strong tendency to slip into such a configuration. Each of the cases explored here would arguably benefit from further streamlining. Indeed, the quality of both inputs and outputs would arguably be drastically improved if CSOs with formal participation rights lost their right to have multiple attendees and instead mandated one senior and expert representative as members of the forums. According to the stakeholding principle, ECAFs should not have, as active participants, persons or organizations that do not have a significant stake in the issues surrounding the task assigned to it. As a result, only those actors interested in and affected by issues discussed as part of the mandate should participate. Experts who are specialized in dealing with the task can also be considered to have a stake even if they do not represent the interests of any particular stakeholder. This principle aligns itself with the spirit of the Commission’s 2002 Communication setting out its minimum consultation standards, which developed a number of associated requirements. First, to ensure the equitability of the consultation, the Commission signalled its need to ensure adequate coverage in a consultation process of those affected by the policy, those who will be involved in its implementation and those that have stated objectives which give them a direct interest in the policy. In determining the relevant parties for consultation, the Commission also stated the necessity of taking into account the wider impact of the policy on other policy areas, such as environmental interests or consumer policy. Additionally, it set out its intention to consider the need for specific experience, expertise or technical knowledge, where applicable, the need to involve non-organized interests, where appropriate and the track record of participants in previous consultations. Finally, the Commission recognized the necessity of taking account of the need for a proper balance, where relevant, between the representatives of social and economic bodies; large and small organizations or companies; wider constituencies (such as churches and religious communities) and specific targets (such as women, the elderly, the unemployed, or ethnic minorities); organizations in both EU and non-EU countries (for example, in candidate or developing countries or in countries that are major EU trade partners). All the ECAFs explored here can be broadly described as being open to civil society actors and the definition of civil society used throughout corresponds to the European Commission’s designation whereby civil society is ‘shorthand to refer to a range of organisations’, including: 1 Labour-market players (i.e. trade unions and employers federations – the ‘social partners’); 2 Organizations representing social and economic players, i.e. consumer organizations;

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3 NGOs/ environmental, human rights, charitable organizations, educational and training associations … ; 4 CBOs (community-based organizations), set up within society at grassroots level which pursue member-orientated objectives, e.g. youth organizations, family associations and all organizations through which citizens participate in local and municipal life; 5 Religious communities (EC 2001: 14). The fact that the term civil society includes both social and economic actors means that the Commission’s broad and wide-ranging definition of CSOs, shared by other European institutions, is contested. The question of whether business organizations should be part of any civil society dialogue is a particularly thorny one in some sectors of the NGO community, for whom civil society should be related to neither state nor market. According to this view, if business organizations are conceived of as interest groups for capitalist organizations who already benefit from extensive access to the Commission, it is doubtful whether they are in need of further dialogue opportunities. There is nonetheless broad agreement between the CSO representatives interviewed as part of the four case studies within this volume that CSOs include ‘everyone’ or ‘anyone not elected or not appointed directly by elected politicians’ or ‘every non-public organization and all non-governmental actors’ or ‘entities representing public or collective interests’. Others specify that it constitutes ‘groups of citizens and economic operators’ interested in or affected or concerned by the measures being discussed by any given entity. A small group of NGO-type CSOs do however point to the aforementioned central conflict in the definition of civil society; whether it is limited to NGOs or also includes social partners such as trades unions and interest groups of consumers and farmers and, more significantly, whether it should include economic operators, particularly commercial and business organizations. Perhaps the most noteworthy element here is that the Commission ultimately decides who holds a stake in all of the advisory forums examined in the volume. In each case, the Commission largely chooses which groups to include and which to exclude. This also affects questions of representativity since the institution, who is also the main sponsor of the forums, discloses few details as to the criteria on which it bases its selection of CSOs and choice of individual appointments to ECAFs. In the case of the AAGs and the TCG/CSD for example, the Commission appoints members based at least in part on CSO nominations and individual CVs. Such a system is arguably open to manipulation by both the CSOs and the Commission. It also raises questions as to the extent to which the Commission attempts to ensure that the significant groups in the community are represented. The Commission’s prerogative to ‘establish the representativity’ of groups selected for consultation purposes has been formalized by the European Court of First Instance2 which has indicated that this is ‘up to the Commission (Pollack 2007: 98).

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Respect of principle of European privilege All of the ECAFs examined here have some kind of formal requirement that participating CSOs should be European umbrella groups established at Community-level with members in all or most EU MSs (and beyond), representing a European-wide constituency. Participant lists from meetings held are rarely made publicly available on the forums’ respective websites and where they do exist, the participants’ nationality is rarely mentioned. It is nevertheless evident from interviews that in all four cases there is uneven participation across the 27 EU MSs, with a strong domination of the previous EU15, particularly the Northern European ones. Moreover, participation of the 10 new 2004 members and the new 2007 members is low in all cases. In fact, the majority of participants in each of the ECAFs examined appear to be Brussels-based. This at least partially works against the spirit of the Commission’s 2005 Communication launching its Plan-D for Democracy, Dialogue and Debate, in which it promised that it would more effectively promote its existing consultation procedures in order to achieve increased involvement of national and regional stakeholders. Active and meaningful participation is a major challenge for the newer members for a variety of reasons. The first issue is the multiple and varied resource constraints they face, most significantly financial. Although in most cases there is a Commission sponsored travel reimbursement scheme in place for non-Brussels based participants, the cost of travel has to be initially advanced by CSOs and is then reimbursed against the completion of relevant documentation after meetings have occurred. New MS national affiliates of the European-level CSOs tend to be smaller with limited resources, lower budgets and restricted cash-flow, so that advancing funds for foreign travel is problematic. New MSs can also struggle to even pay the high annual affiliation/ membership fees to the European-level group (Commission official, personal communication, October 22, 2007). The insufficient financial resources of new MS CSOs may also mean that it is difficult, for example where the EUEB is concerned, for them to make environmental issues a priority and to follow the process. In addition to the cost, the time necessary for new MS CSO representatives’ travel to Brussels is also comparatively higher where transport links with the Belgian capital may be less established and involve several connections. To make such efforts for a meeting that may last just two hours and which is mainly a briefing session circulating information that could be found on the internet may not be considered worthwhile. Informational resources are also problematic. In the EUEB for example, environmental groups from the Central and Eastern European MSs possess comparatively limited information regarding the nature of EU regulations and the harmonization process in the environmental policy area, which results in a weaker involvement (Andonova 2004: 25). CSOs in the new MSs may suffer from the general lack of a domestic infrastructure to oversee European level activities, this in part results from the

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fact that many national affiliations suffer personnel shortages and only a handful of staff may be responsible for the nationally-based CSO’s entire functional operation. A ‘brain-drain’ of appropriate personnel to higher paid employment, domestically or by an export of talents to the European employment market may, compound the problem. The limited workforce may also lack the necessary expertise, qualifications or talent to operate in European advisory forums. Similarly, personnel may be deficient in the necessary English language skills to be fully operational within a Commission advisory context. A high proportion of EU legislation ‘remains to be translated into CEE languages’ while the ‘networking’ and discussions ‘that take place in the corridors, breaks and lunches’, and are so vital to the smooth functioning of structures like the ECAFs usually occur in English (Sissenich 2005: 174). Where ‘foreign language skills are in short supply’ (Sissenich 2005: 174), effective participation is problematic. Where representatives from new MSs do attend, they tend to be young, perhaps because that generation is the one which has sufficient language skills, particularly in English, to be able to come and participate fully (CSO representative, personal communication, November 12, 2007). This leads to a trade-off: although these individuals may lack nothing in confidence ‘it does mean that probably the new MSs are having to send people who’ve probably got less experience because they’re the only ones who’ve got the language skills’ (CSO representative, personal communication, November 12, 2007). On the plus side, their youth means ‘they don’t actually have any kind of inhibition about saying things … they’re not shy and they don’t stand back. So I don’t think it stops them contributing’ (CSO representative, personal communication, November 12, 2007). DG Interpretation recognizes that, ‘Giving everyone at the table a voice in their own language is a fundamental requirement of the democratic legitimacy of the European Union’ and ‘There should be no obstacle to understanding and putting views in meetings’. However, the interpretation regimes utilised since the 2004 and 2007 enlargements in many of the ECAFs are more limited, which is arguably not conducive to encouraging participants from Central and Eastern European countries. In many of these countries, there is no tradition of domestic consultation culture or civil society engagement. Indeed, new MSs typically lack real, effective and formal consultation structures at the domestic level. Many new MS CSOs are relatively inexperienced at participating in democratic processes. Countries like Romania generally possess undeveloped state/civil society relations, for example (Pridham 2005: 211). This low level of participatory decision-making is bound to result in limited civil society opportunities for input. Participatory capacity must therefore be built up via training so that these CSOs can effectively function in such European level consultation forums. Because it is largely the responsibility of the CSOs themselves, coupled with the lack of domestic level funding for better civil society engagement, this takes time. As one CSO representative notes, when deciding who will represent ‘us in the next meeting’, ultimately I will fall back on a French

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or Spanish representative because ‘there is the knowledge, there is a tradition … and it’s very hard to bring in a new person from Romania or Estonia or Cyprus’ (CSO representative, personal communication, October 29, 2007). Where national authorities are not yet used to this contact with civil society, it may be the result of their historical legacy and the high adjustment costs associated with EU accession. In effect, a combination of different factors have resulted in a ‘laboured’ and ‘problematic’ civil society development (Pridham 2005: 204) in the new Central and Eastern European MSs especially. Primarily, the heavy repression associated with the Communist period has deeply ingrained effects that are difficult to shrug off, i.e. low levels of political participation, widespread political cynicism and mistrust of political elites. A lack of civil society involvement and vitality is a natural result of this oppressive period and ‘despite promising beginnings in the revolutions of 1989’, an active civil society has so far ‘failed to emerge’ (Schimmelfennig, Engert and Knobel 2005: 31). Other factors impeding the under-participation of new MSs are various and include the levels of corruption amongst new democratic elites, which can compound the aforementioned cynicism. These MSs’ new institutional design since 1989 has also not necessarily been accompanied by a firm embedment of new democratic values. Furthermore, the neo-liberal notions associated with the development of a strong civil society, such as self-reliance and selfmotivation, are inconsistent with the values inculcated in the population under Communism. In the emerging political culture, elites may sometimes dismiss citizen groups as unserious, unworthy of a fair hearing and a hindrance to the development of formal democracy and a nuisance to the parliamentary process. A further set of problems faced by new MSs, and impeding their full participation, relates to a form of relative disinterest in EU-level issues and such European-level forums. More accurately perhaps, the priority is the national level and the prioritization of domestic economic transformation and reform as the ‘superior task’ (Pridham 2005: 212). Their emphasis may thus lie in specific issues related to their past as well as capacity and network building to respond to national problems. These concerns may overshadow others handled by such forums as the EUEB, which may be considered policies of luxury. Compared to their interest in the Single Market, international trade, for example, may not be perceived as such a major issue and their interest in WTO may be at best patchy. On the other hand, in the environmental policy sector, it may be that external actors such as international donors and conservation organisations largely determine the priorities of post-communist environmental groups (Andonova 2004: 25). Their priorities consequently tend to match those of the aid-givers: biodiversity, access to information and multilateral agency accountability, rather than focusing on other areas regulated by EU law such as water and air contamination or industrial pollution. Many of these problems can only be overcome via capacity building and the empowerment of civil society in the ‘new’ MSs. Nonetheless, if ECAF

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attendance is mainly limited to the relatively small world of Brussels-based groups, this arguably creates a missing link between the Brussels and national levels and the result may be that the DGs in question are not consulting sufficiently widely. Part of the ‘democratic deficit’ argument has always been the perceived alienation of European citizens from the EU, rendering the Commission’s connections to MS citizenries of high importance. It is also worth noting that from the Commission side there is an implicit understanding that it is the responsibility of the CSOs themselves to ensure the representation of the 2004 and 2007 EU entrants. Certainly, the majority of advisory forum members have all enlarged their internal membership to include all 27 EU members and in some cases beyond. However, these national affiliations do not translate into the participation of individual representatives from new MSs in meetings. The Commission’s approach raises the question whether, in the absence of a Community-wide approach from the MSs to including all interested and affected actors, it is reasonable to turn to the ECAFs’ member CSOs to deliver this representativity.

Respect of adversarial principle Based on this principle, ECAF participants should be selected to represent diverse and opposing interests so that there is no preponderance of those who are known to have a similar position or who have already formed an alliance for a common purpose. However, the findings indicate a preponderance of interests in each of the four cases: the EUEB suffers a preponderance of both industry interests and national interests via the dominance of the MS Competent Bodies. This latter may hinder the pursuance of the European-level and Community interest which the formal documentation establishing the Board requests. In the case of the EUHPF, a preponderance of interests emanating from the pharmaceuticals industry is highlighted, as well as a linked under-representation of patient groups and medicine end-users. A preformed alliance is signalled between DG SANCO, the pharmaceuticals industry and industry-funded interest organizations such as the European Patients Forum and the International Alliance of Patients’ Organizations (IAPO). A preponderance of business interests is noted with regard to the TCG/CSD framework as well as an under-representation of NGO-type CSOs. Finally, on the AAGs, consumer, environmental and animal welfare organizations note their comparative marginalisation and tiny proportion of seats compared to those of COPA-COGECA; a large European-level umbrella producer group organization. Despite the Commission’s warnings to itself of the risks of ‘the policymakers just listening to one side of the argument or of particular groups getting privileged access’ (EC 2001), in each advisory forum, a clear core of insiders has been established. In reality, these advisory forums are merely part of an elite pluralist system where ‘access is generally restricted to a few policy players for whom membership is competitive and strategically advisable’

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(Coen 1997: 98). Such players tend to be privileged economic groups and business interests.

Respect for principle of putative equality The principle holds that participants are considered equal even when they represent constituencies of differing size, resources, public or private status, and ‘political clout’ at national level, so that none feel they are second or third class participants. In the EUEB, the MS Competent Bodies are perceived by most participating CSOs as first class participants in the eyes of DG Environment given their status as the only actors with real voting power on product criteria. In addition, there is some evidence that the European Environment Bureau and the Bureau of European Union Consumers (EEB/BEUC) are considered more highly by DG Environment than other CSOs, given that the Commission funds these organizations’ attendance and participation in the EUEB process, which perhaps leads it to feel more implicated in their activities. In the EUHPF, DG SANCO’s links to organizations like the European Public Health Alliance (EPHA) and the pharmaceuticals industry mean that it is regarded as perceiving such actors above all other participants. Putative quality is arguably best assured within the TCG/CSD process where there is a general shared perception of equality amongst participants except for a minor penchant on DG Trade’s part for the most proactive participants and industry members. The general air of equality is especially felt in the TCG. However, within the broader CSD, issues of inequality derive from the informal arrangement that the 14 or so TCG member organizations are included in DG Trade’s delegation to the WTO ministerials. In the AAGs, the significant issue of inequality relates to the perceived privileged position of COPA-COGECA vis-à-vis DG AGRI. Non-respect of the principle of putative quality poses obstacles to the balanced composition of ECAFs. According to capture theory, problems occur where ‘narrow, compact groups’ (i.e. special interests) dominate, or are seen to dominate, ‘broad-based, diffuse groups’ (i.e. the public) in seeking political influence (Karty 2002: 221). This is because the former do not necessarily coincide with the interests of the general populace. The findings of this study concur with others that have found that, ‘it is not at all uncommon for business interests to dominate’ advisory-type forums (Karty 2005: 417). Where the composition of these forums is biased, an associated risk is that this offers a reasonably good indicator of biased influence. Within capture theory and in its narrowest sense, ‘bias’ really means bias toward privileged economic interests’ (Karty 2002: 216). Several factors go some way toward accounting for instances of ‘biased’ membership discovered in this study. Most notably, business and government actors often construct relationships based on the exchange of resources. For example, big business can offer significant financial resources, expert knowledge, and political resources by

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acting as veto actors and well networked agents. These resources can be touted in exchange for active participation in the policy-making process. A balanced composition can help counter the risk of bias because the maintenance of the former will contribute towards preventing the dominance of economic interests, and thus preventing oligopolistic or corporate collusion and agency capture (Aberbach and Rockman 1981; Selznick 1949). Such practices may occur where ‘special interests co-opt agencies when agencies are dependent on cooperation by interest groups’ (Karty 2002: 213). Ensuring that ECAFs have a balanced composition has various other benefits. First and in order to fulfil one of their paramount functions of offering quality advice to decision-makers, advisory forums must offer quality information. Balanced advisory forums enjoy an enhanced information-gathering capability and are more effective at signalling critical information to sponsors (Balla and Wright 2000; Crawford and Sobel 1982). In addition, advisory forums composed of diverse viewpoints, experiences, and backgrounds are far more capable of marshalling data, anticipating arguments, and responding to these arguments than one-sided ones. Friendly contact between otherwise hostile groups can also allow members of opposing groups to build social networks that facilitate an exchange of ideas and a clearer understanding of problems, and occasionally even yield some innovative solutions’ (Karty 2005: 428). Second, it is likely that increasing the number of alternative perspectives within advisory contexts improves their capacity to understand problems. The more perspectives involved, the more likely that errors and biases will be identified and corrected and, as a result, the rationality of an advisory forum’s work may be improved. A varied, if not balanced composition may thirdly increase public acceptance of such advisory structures, in so far as this increases the likelihood that their outputs will be responsive to the concerns of every relevant social group. It may also generate stronger perceptions of being represented which can help foster a sense of membership and thus help decrease the alienation of excluded groups from political life (Brown, Lentsch and Weingart 2005: 85). Finally, in other contexts, participants’ belief in the balanced composition of their advisory-type forums has been found to boost their perceived effectiveness of the structure (Karty 2005: 425). Balanced composition is therefore beneficial for input as well as output legitimacy. This in turn strengthens this volume’s overall claim that ECAFs present a potential venue for the reconciliation of input and output legitimacy. Amid the many accolades for balanced membership’ explored heretofore, there are at least three sobering critiques of such an approach. The first of these relates to the question of whether the cost of balance outweighs its benefits (Karty 2005: 428). Although representativity is an important criterion, its actual implementation may be limited by practical constraints. If for example all the stakeholders in the general public are to be fairly represented, a large sample of these is required. Heterogeneous groups can however experience greater difficulty in reaching decisions than homogeneous groups (Riker 1980). Indeed, consultative groups cannot function efficiently with too

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large a number of members. Accordingly, the diversity of individuals or groups participating in an ECAF whose composition is balanced might incur a steep cost while the creation of less balanced advisory forums can easily be justified ‘as a rational sacrifice of citizen influence in exchange for more efficient institutions (Buchanan and Tullock 1962). The second critique is technocratic. Greater balance within an advisory forum may imply inferior expertise. This is because when advisory forums have a composition that is explicitly balanced members tend to act as professional advocates by representing and advancing their own CSO position and interests rather than providing the best expertise possible (Karty 2005: 418). The third critique of balanced composition relates to the representation by business interests. Capture theory suggests that those forums with higher levels of business membership are more likely to be captured by such interests. However, business groups, like other groups, are legitimate stakeholders and participants in the democratic process … ’ (Karty 2002: 216). In the descriptive sense they can also claim to be highly representative and a significant social sector given the high levels of employees they embody. As a result, at face value ‘mere membership of business groups cannot alone signal capture by those groups’ (Karty 2002: 216). In short, some bias towards particular interests seems likely, even unavoidable. At the end of the day, it is perhaps simply a question of how much. (Rowe and Frewer 2000: 13). For example, if ECAF participants are selected to represent different civil society interests, according to what criteria does one conclude that an interest or a group is properly represented and if one group is twice the size of another in terms of membership, should they receive twice the number of seats?

Deliberation Process addresses or seeks to resolve conflict In each of the cases examined in this volume, the Commission presents the advisory forums as processes of dialogue and debate with the intention, either explicit or implicit, of making responsive policy as a result of consulting them. This expectation suggests therefore that the structures possess some degree of scope and prospect for inter-CSO deliberation towards the realization of some sort of accommodation. However, the evidence suggests that many participants are highly sceptical about the prospects for a rapprochement of views within ECAFs. One of their primary uses as indicated by CSO representatives is their ability to serve as a vehicle for the transfer of valuable information regarding the policy positions of other CSOs. There is little evidence however that individual-level or CSO-level positions alter as a result of advisory forum meetings. Indeed, some ideological differences remain irreconcilable. The meeting formats adopted by the four ECAFs explored here: briefings, panel presentations, Q&A and tours de table, all constrain deliberation. Essentially, they do not foster exchange between CSOs to allow for a

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modification of viewpoint, but rather the major interaction occurs between the CSO representatives and the Commission. Furthermore, each of the cases suffers issues of repetition, duplication, grandstanding and monologues and the reading out of pre-prepared and known position papers that are freely available via desk research. A further problem suffered by some CSO representatives, as perceived by the Commission, is that they do not know ‘how to act’ in formal meetings with officials; they are not socialized into the expected behavioral format. New MS representatives are scarce, but when they do appear at meetings, they may particularly suffer from this. The inadequate socialization levels of CSO representatives can be a contributing factor to dull meetings; responsible as it is, at least in part, for the reading aloud of preprepared statements, grandstanding and ‘set piece’ meetings. In sum, these ECAFs constitute a formal dialogue space and deliberation process that lacks any real dialogue and fails to generate deliberation. This only provides further confirmation that ‘deliberation is an ambition that no consultation process to date has achieved satisfactorily’ (Jordan 2007). Indeed, although the idea of participation and deliberation may be widely appreciated, the reality of it is quite different (Lowndes et al. 2001a: 2001b: 450). Rather than achieving consensus through discussions of preferences and bridge-building towards conflict reduction, the encouragement of participation and deliberation via structures like the ECAFs can actually emphasize existing differences, promote new ones, generate greater parochialism and exacerbate cleavages (Wilson 2001: 301; Shapiro 1999: 31). Indeed, deliberation can equate to ‘consciousness raising’, revealing to participants the nature of what separates them (Jordan 2007: 59) and polarizing attitudes towards more extreme alternatives’ (Hibbing and Theiss-Morse 2002: 195). Process is informed by expertise and knowledge The Commission bureaucracy comprises approximately 34, 000 personnel at the time of writing, of which there are 24, 500 officials and temporary agents plus 9, 500 external staff.3 These personnel figures are comparatively low when contrasted to the number of individuals employed by a medium-sized UK County Council, for example, and when considered in relation to the Commission’s assigned responsibilities within the EU institutional framework. The Commission’s leanness in terms of full-time personnel means that it relies to a large extent on private actors for information supply and to assist in legislative drafting. It is this access that it ‘trades’ against CSO expertise in resource-exchange network-type relationships that become established within such advisory forums. In short, aside from its Treaty obligations and the ‘participation for legitimisation’ discourse, the acquisition of expertise is one of the Commission’s main motivations for entering into a dialogue. The technicalities of trade policy-making with its countless bilateral trade agreements and of the common organisations of the market under CAP are particular areas of need. In situations where, for whatever reason, CSO

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representatives lack the necessary expertise, the Commission is likely to have a lower commitment to the process. Despite the Commission’s expertise requirements and this resource’s consideration by CSO representatives as essential to effective participation in ECAFs (with the possible exception of the TCG, given its logistical function), disparate levels of expertise and knowledge between participants are reported as present within the structures. Expertise is in fact a formal requirement within the AAG statutes and on registration to the CSD. The disparity noted derives from the fact that while some participants possess a thorough knowledge of their dossiers, the questions posed by others are an indicator of low levels and others still prefer to send political messages rather than share expertise. Process is based on principles of openness and equality The deficiencies in openness and equality signalled by CSO representatives in relation to the ECAFs are all the more significant when examined against the European Commission’s recent discourse on transparency and communication. Transparency and openness were, for example, key components of the Commission’s 2002 Communication on minimum standards of consultation,4 in which it set out to create a transparent and coherent general framework for consultation. This went into effect in January 2003. First, this document established that communication on the consultation should be clear and concise and include all necessary information to facilitate responses. Second, it noted that the Commission should ensure adequate awareness-raising publicity and adapt its communication channels to meet the needs of interested and affected parties. Third, it stated that consultation processes within Commission services should be undertaken in a coherent and transparent manner. Finally, the minimum standards required that participants’ contributions to public consultations be published on the internet. How these standards have been met and how consultation processes and civil dialogue have evolved in practice has been left mostly to the different DGs and other units, making for, what has been dubbed ‘a patchy picture of civil dialogue’5 (Fazi and Smith 2006). It is nonetheless clear that short-notice notification of meeting dates, postponements and cancellations and the late circulation of preparatory materials, which have been highlighted as issues in one or more of the ECAFs examined, runs contrary to the first advice. In addition, public awareness of the four ECAFs is not only perceived by CSO representatives to be low, but further still, there is a lack of agreement between them that any measures should be taken to address this problem. Finally, although the Web publication criterion in the 2002 Communication applies to public consultations rather those that occur in relation to ECAFs, it is telling that the four DGs studied in this volume make use of the web for the publication of ECAF related documentation with varying degrees of success. Transparency has obviously been of even greater concern for the Commission since 2005 and the launch of its European Transparency Initiative and

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the drafting of its 2006 Green Paper. The message of this paper is that greater transparency in EU affairs will strengthen legitimacy. The public’s right to know is also prominent on the basis that maintaining the legitimacy of European decision-making rests in part on achieving greater transparency and stronger accountability towards the public. The Green Paper launched a debate on transparency and interest representation, external feedback on progress made in the implementation of the Commission’s minimum standards for consultation, and the publication of data on beneficiaries of EU funds. Although lobbying is according to VicePresident Kallas, a ‘perfectly legitimate’ part of the democratic system, concerns have been voiced about practices which are considered to go beyond legitimate representation of interests. The Paper also notes the perceived ‘excessive influence from corporate lobby groups on European Union decision-making’. The Green Paper suggests that as the phenomenon grows, certain standards should apply when lobby groups seek to contribute to EU policy development. In particular, it must be clear to the general public which input they provide to the European institutions, which lobbyists represent them, what their mission is and how they are funded. This latter relates to the potential for conflicts of interest where lobbying takes place by those relying on financial support from the EU budget. The paper proposes four specific measures. First, it advances a voluntary web-based registration system, run by the Commission, for all lobbyists who wish to be consulted on EU initiatives and second, a common code of conduct for all lobbyists, or at least common minimum requirements, which should be developed by the lobbying profession itself. Third, it proposes a system of monitoring and sanctions in case of incorrect registration and/or breach of the code of conduct and fourth, the creation of a new, inclusive external watchdog to monitor compliance. Within the Green paper, the Commission notes how ‘openness has always been the Commission’s guiding principle for contacts with interest representatives’. This is not however necessarily evident in the four advisory forum cases explored in this volume. It is first interesting to note that based on the perceptions of CSO representatives, some degree of hierarchical ranking can be discerned with regard to the approach of different Commission DGs to openness and transparency. DG Environment and DG SANCO are, for example, generally considered the most inclined toward visibility and scrutiny by the public and CSOs, while DG AGRI and DG Trade are less so and respectively characterised as operating a ‘closed’ and ‘ivory tower culture’. Nonetheless, even in the latter DGs, rapid movements towards greater clarity of processes and procedures are evident. In all cases however, the ISC phase whereby other interested DGs get an opportunity to view specific Commission proposals, is noted as a particularly opaque process given the absence of information on which DGs request amendments and why and to what extent these requests are honored by the lead DG. Openness regarding ECAF meeting documentation is a recurring issue whereby minutes and participant

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lists for example are described by CSO representatives in all cases as either non-existent or, incomplete. As for openness in the selection of participants in the advisory forums, the choice, in the majority of cases studied in this volume, is completely influenced by their sponsor: the European Commission, who mainly appoints members. For none of the ECAFs examined in this volume, does the Commission disclose details of the criteria according to which appointments are made i.e. are demographic criteria employed when selecting committee members? Moreover, the sponsor actually makes appointments based on nominations forwarded to it by the CSOs possessing seats on the ECAFs. ECAF members can thus be self-selecting. A particular type of individual may be advanced by the CSOs each time they are called to nominate: who has experience of participating in other similar forums, who has expertise and particular language skills for example. This sponsor influence and self-selecting mechanism can lead to an imbalance (Lynn and Busenberg 1995; Rowe and Frewer 2000: 23). The importance of feedback constitutes a further significant issue promoted within the Commission’s transparency discourse. In its ‘guidelines for best practice in consultation’ set out in its 2000 Discussion Paper on NGOs, the Commission notes that efforts should be made ‘to ensure, where possible, that NGOs receive appropriate feedback on how their contributions and opinions have affected the eventual policy decision’ (EC 2000a: 10). In its Governance White Paper, the Commission promised to ‘publish guidelines on collection and use of expert advice, so that it is clear what advice is given, where it is coming from, how it is used and what alternative views are available’ (EC 2001: 5). In the same document it confirms that ‘the EU institutions must explain and take responsibility for what they do’ (EC 2001: 17). In its ‘Minimum Standards’ for consultation and dialogue set out in its 2002 communication, the Commission re-emphasises that ‘it should wherever appropriate, publish consultation documents’ as a tool to enhance ‘the Commission’s accountability’ (EC 2002b: 3) and by making available documents summarising the outcome of the consultation process, provide greater scope for scrutiny of its activities. The Commission actually devotes a section to the issue of acknowledgement and feedback, which notes: the ‘Receipt of contributions should be acknowledged’, that these ‘Contributions will be analysed carefully to see whether, and to what extent, the views expressed can be accommodated in the policy proposals’ and the ‘Commission will provide adequate feedback to responding parties and to the public at large’. This document also suggests the use of explanatory memoranda to accompany Commission legislative proposals that include the results of consultations and ‘an explanation as to how these were conducted and how the results were taken into account in the proposal’ (EC 2002b: 21). Again, these criteria are specified as applying mainly to public consultations; yet if feedback mechanisms are important in these types of consultations, they are surely just as important in formalized and institutionalized

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consultations with organized civil society such as those that occur in the context of ECAFs. Within the Communication launching its Plan-D for Democracy, Dialogue and Debate, the Commission states that as part of the listening process, it intends to use and improve existing tools for collecting feedback directly from citizens, consumers and business. In its July 2002 Action Plan to Improve Communicating Europe, the Commission recognizes that Europe’s citizens want to make their voices in Europe heard and that their democratic participation should have a direct bearing on EU policy formulation and output (EC 2002b: 3). For this to happen, the Commission proposed that the results and feedback derived from its public consultations are widely publicized. The document also restates that the Commission is aiming to ‘draw more systematically on feedback from citizens beyond the regular consultation process’. It adds that this research into feedback ‘will be the fundamental element of the listening process’ particularly via the collection of ‘feedback from consultation processes’ (EC 2002b: 8). In its 2006 Green Paper on the European Transparency Initiative (ETI), the Commission notes that ‘Providing more extensive information on who has contributed to the development of a policy’ is an option under serious consideration ‘for reinforcing the external scrutiny of lobbying’ (EC 2002b: 8). Also in this document, during an evaluation of the application of the minimum standards for consultation developed in 2002, the Commission notes ‘There were cases of insufficient feedback on how comments received via consultations were or were not taken into account in the final policy proposal from the Commission’ (EC, 2006a: 12). In short, feedback is recognized as essential and previous lacunas in this area are acknowledged. Nonetheless, this was the one area of greatest concern for CSO participants in all of the ECAFs explored. Notwithstanding the centrality of feedback in the Commission’s transparency discourse, its scarcity in relation to the ECAFs is the most readily advanced criticism of these structures by their participants. None have clear and standardized mechanisms in place to ensure that CSO representatives are aware of how the comments they have expressed via ECAF meetings have been taken into consideration, rejected or incorporated into policy proposals by the Commission. It is also noteworthy that, particularly within the framework of the EUHPF, the Commission firmly places the onus for improved transparency on the CSOs themselves preferring to highlight the importance of these groups’ ability to secure their own internal accountability rather than focusing on its own transparency deficits. This is not to overlook the importance of intermediary bodies operating in a transparent manner as a means to demonstrate their own legitimacy by showing their worth as valuable interlocutors for the Commission. This in itself helps foster citizens’ beliefs that the participation of organized civil society makes their voice better heard, thus encouraging citizens to participate fully and directly. It is only then that inclusion can really translate into more input-based legitimacy, which can after all rely either on the involvement of organised civil society or on the direct involvement of citizens.

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With regard to equality, the Commission clearly stated in 2002 that when defining the target group(s) in a consultation process, it should ensure, that relevant parties have an opportunity to express their opinions. In addition, it recognized that it should ensure that all relevant parties receive the opportunity to express their opinions. CSO representatives signal broad equality of opportunities to contribute to discussions and actual speaking time in the four ECAFs examined. Equality in ability to contribute to the agenda is not so well assured in all cases however, this is particularly true in the AAGs, where ambiguity surrounding the agenda-setting task is at best a hindrance to equality in that Forum. Equality to attend and participate in ECAFs is perceived by some CSOs to be impeded by an overall inequality of resources (human and financial) between NGO-type CSOs and producer or industry type CSOs. This has generated calls from some NGOs for the Commission to provide systematic funding for their activities so that their capacity may be built up to that of the more powerful and well-resourced groups. The issue underlying this discussion of the significance of measures to ensure both transparency and openness is that these notions are not universally acknowledged as being beneficial to the decision-making process. This is because they have several drawbacks. The most noteworthy is that any increase in measures to enhance transparency can lead to a consequent reduction in efficiency (Karty 2005: 424). Sparing participants from public scrutiny can, for example, give them more freedom to modify their positions, and thus facilitate the search for consensus (Altenhof 2002: 209). In fact, participants in committee-type settings who report their meetings as completely closed often rate their committee as considerably more effective (Karty 2005: 424). Conclusions like these, drawn from similar venues to the ECAFs, are strong signals that openness is perceived by participants to interfere with effective policy analysis and decision-making (Karty 2005: 424). It is thus interesting to explore the severity of the impact of such measures as open meetings and balanced membership on the notion of effectiveness. Ultimately, it can depend whom meetings are opened to. If it is to the media or press, this may ‘stifle’ any chance of open dialogue, free discussion or exchange of ideas for fear of being quoted (Faure 1996), while direct public participation can prolong meetings and allow disaffected individuals or those with strong concerns to bog down deliberations and dominate discussions (Karty 2005: 416). Members of the public may equally show up merely to ‘rehash old issues’ that have already been discussed or addressed (Karty 2005: 427). Open meetings may also suppress creativity and encourage even more grandstanding among formal participants than that which already exists in the ECAFs. Indeed, many participants may be more hesitant to engage in true dialogue but rather resort to statements of (known) positions and views (Slob and Smakman 2007: 55). In fact, positions, arguments, concessions, contradictions of others’ (politically correct) positions and changes of mind may all be more difficult in open meetings and may generate discussions of a very general nature. More broadly, open meetings can threaten the sense of collegiality among members

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and, more costly still, a lack of transparency can jeopardize a structure’s credibility and invite charges of misconduct even when there is really nothing to hide (Karty 2005: 427). In short, openness has both benefits and costs, rendering it difficult to judge how much is beneficial and how much is too much.

Evaluating effectiveness via the multidimensional approach ECAFs were created with a clear problem-solving function in mind; to improve the quality of policy outputs and to improve the efficiency and effectiveness of decision-making. Their added value in contributing these elements is clearly contingent on their results and performance, such as their capacity to help generate solutions to common problems. Clear, unambiguous formal goals and a sense of shared purpose amongst their participants are inescapable requirements to deliver in these areas. There is however no agreement on EUEB goals amongst the participating CSO representatives. Perceptions vary from it being conceived of as a confrontation space, a discussion forum to a management mechanism or a public awareness and marketing tool. This ambiguity of the Board’s purpose is also the dominant thread of most Eco-Label reform discussions; particularly the question of whether the EUEB should constitute an elite instrument or a popular tool with widespread market penetration. The many-layered complexity of the EUEB structure obscures formal goals further; each layer serving a specific function in the overall framework but in part overlapping with layers above and below. The EUHPF forms part of a less complex framework, comprising only one further element; the open forum. The Policy Forum was initially intended as an information and consultation mechanism to ensure greater public awareness of the Community health strategy’s aims and primary delivery mechanisms as well as secure a better response to public needs. The EUHPF was also intended to provide a structured dialogue with a consistent set of member organizations. Today, the Forum’s primary intention is to serve as an information relay and venue for exchange of ideas. Again it is interesting that the formal goal is at odds with many of the participants’ chief shared purpose, which is to exert an influence on policy formulation. Obscurity of mission is a critique also made of DG Trade’s CSD because of the service’s differing definitions of consulting widely, addressing civil society concerns and improving trade policy via structured dialogue. Inadequate clarity has consequently been a recurring theme in the various Commission and NGO-led evaluations of the CSD. Some participants envisage a more ambitious purpose for the CSD where it should adopt a forward agenda on upcoming trade policy proposals so that CSO comments and perspectives can actually influence the development of Commission initiatives. Misunderstandings of formal goals are even more prevalent within the TCG, where participants are split between those who wish to see this structure remain a logistical and administrative body which prepares the CSD, and those who envisage that the TCG could become a streamlined CSO panel that DG Trade can consult on

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specific policy matters. There is widespread disagreement between AAG participants as to their formal goal, with options ranging from information relay to networking venue. Such disagreement is certainly a hindrance to collegiality as participants strive towards differing aims. The AAGs also suffer the same sort of mismatch between formal goals and participant expectations as those highlighted for the EUEB. While DG AGRI clearly only envisages these structures as a briefing platform on its policy developments, CSOs are expecting a real opportunity to influence formulation. Turning to the conditions under which ECAFs are more or less effective, our prime claim is that the possession of certain attributes will lead to greater effectiveness. In this way, the structure of organizations makes a difference to outcomes. Based on the assumption that where regular interaction is assured by high meeting frequency, effectiveness is higher, none of the four ECAFs explored here rate particularly well. The EUEB meets approximately three times per year, the EUHPF twice per year and the AAGs twice per group per year. It is the TCG/CSD meetings that occur most frequently, with in excess of 30 per year. Meeting density is also low in each of the four cases, with none usually continuing beyond 4–5 hours. The common resolution of problems is a challenge within ECAFs, given the typical meeting formats: presstype briefings, question and answer sessions and tours de table, as well as the numbers of individuals involved in meetings. With low levels of informal meetings between CSOs outside of the formal ECAF framework, opportunities for representatives to interact with peers are limited. This does nothing to help foster a sense of collegiality or promote the socialization processes so important in such transnational governance venues. The most regular interaction external to ECAF meetings is the traditional direct lobbying that continues to mainly occur between industry and producer groups and the Commission services. Despite the fact that ECAFs are amongst other tools promoted to limit the recourse to such practices, these direct lobbying strategies continue to be pursued. If the effectiveness of governance structures like the ECAFs is enhanced where absenteeism and personnel turnover are low, then this presents a further obstacle. Permanent absenteeism of some CSOs is an issue on the EUEB, while EUHPF meetings are less well attended than their rules suggest that they should be. Indeed, like the CSD, the EUHPF’s attendance has steadily waned since their establishment. Nonetheless, in the case of DG Trade’s CSD, meetings attended by the Commissioner, as well as those on the subject of Doha and WTO, are always popular. The TCG does not suffer particular attendance problems; explained in part by the fact that participants are fulltime Brussels-based CSO staff. The AAGs’ rules on notifying the names of attendees are attributed as the main cause of absenteeism in those forums; especially where conflicting priorities arise at the last minute. Compared to their original levels, participation in the four ECAFs has progressively dropped in recent years. This is due at least in part to the considerable human and financial resources they necessitate and the time required for travelling to

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meetings and participating in them. Typically, it is only groups with substantial resources and capacity that are able to regularly participate and make significant contributions. Moreover, the lack of meaningful results emanating from the ECAFs has reinforced this trend toward lesser participation. Each of the four ECAFs explored receive administrative support from their sponsoring Commission DG. These secretariats possess varying levels of staff, but on average four or five Commission personnel work regularly to provide logistical support to each. This support includes setting meeting dates, circulation of background documentation and other materials such as agendas and minutes. All of the participants in the ECAF cases explored here signal various problems related to the administrative support they receive. CSOs participating in the EUHPF have previously received short notice requests from DG SANCO that they consult their internal networks on particular policy issues within a tight timeframe. In addition, EUHPF participants indicate short timeframes between receipt of the meeting agenda and the meeting date itself. The EUHPF, CSD and AAGs all suffer late notification or short notice modification of dates for subsequent meetings. The Commission often attributes this to the centralized room and interpreter booking service. All four ECAFs experience problems as to the timeliness with which background documentation is released for circulation by each secretariat prior to meetings. The EUEB and EUHPF participants also complain of overload regarding last-minute materials circulated by participating CSOs, and the accompanying expectation that papers will be read prior to meetings. Within the AAGs, there is ambiguity regarding who is responsible for agenda setting. This is also true of the production of AAG minutes. Where they are produced, the latter are criticised for their partiality or absence of detail as well as for their late circulation to participants following meetings. Late minute circulation and insufficient detail, also pose issues for the EUHPF. Finally, some AAG participants signal the late reimbursement of travel costs as problematic. The implications of some of these secretariat-related problems are the limitations they impose on the time available to CSOs to guarantee internal accountability. If CSOs are to fully represent their membership base, time is necessary for agendas and documentation to be circulated internally to all affiliated members, be commented upon by these, filtered back to the organizations’ highest Brussels-based echelons and amalgamated into a common CSO position. Were the ECAFs’ designed to allow for the participation of senior officials, both from the European Commission and the participating CSOs, this would offer a further indicator of their effectiveness. Although a significant number of Commission officials regularly service the ECAFs in the form of answering questions, sitting on panels and providing presentations, CSO participants complain that they are often mid-to-low rank administrators, or even assistants. This is especially true of the CSD and the EUHPF where CSO participants consider this an indicator of the Commission’s overall commitment to the consultation process. In the case of the EUHPF, the level of seniority of

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CSO participants is most problematic. Whereas on its creation CSO secretary generals or presidents would attend meetings, the trend is increasingly towards sending personnel of a lower grade. Whether it be the seniority of Commission or CSO officials that is most problematic, the implication is that it is believed to diminish the external impact of the forum. This is because an absence of senior Commission and CSO staff equates to a lack of political authority to respond to the often highly politicized CSO demands in the case of the former and a lack of authority to adjust policy positions and speak on behalf of the interest constituency in the case of the latter. For the ECAFs to have greatest impact, their design should be such as to allow for issues to arise on meeting agendas early enough within the policy process so that comments and views expressed by CSOs can be fed into policy formulation. Indeed, the third of the four principles outlined in the Commission’s 2002 communication on reinforcing the culture of consultation and dialogue notes that the most effective consultations are those that involve interested parties early on in the policy development phase. As such, they are still able to influence the drafting of the main objectives, realization methods, performance indicators and, where appropriate, initial policy plans. It also again emphasizes that it should consult widely before proposing legislation. This document also emphasizes the Commission’s need to allocate sufficient time for planning and responses to invitations and written contributions. In this way, it should strive to allow at least eight weeks for reception of responses to written public consultations and 20 working days’ notice for meetings. Despite the Commission’s own recognition of the importance of timely discussion of issues, participants in all four ECAFs explored here signal this as problematic. Issues are often inserted on the agenda for discussion even when it is obvious that ideas have become proposals and these formal proposals have left the Commission and are proceeding through the Council and the EP. The infrequency with which the ECAFs meet is an obvious factor that prevents early consideration of policy issues. Moreover, the DGs involved are often reluctant to involve CSOs too early because of perceived sensitivity of issues and the associated risk of media leakage. ECAF agendas tend to react to problems as they arise so that what CSOs perceive as lacking is a Commission-led forward-looking agenda. The behavioral characteristics of ECAF participants can also affect their effectiveness. Commission officials in all four cases raised concerns of a lack of proactivity on the part of some CSOs and their attending representatives are criticised as being often too passive. This indicates that despite complaints along the lines that meeting formats resemble press briefings rather than providing a context for deliberation, this may be encouraged by the approach of participating CSOs. The DGs involved are all keen to at least place partial responsibility for the smooth functioning of ECAFs on the CSOs themselves, firmly placing itself in the role of sponsor, convenor and facilitator of consultation, rather than taking responsibility for the quality of the discussions that occur.

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Under the final, perception-based, approach to effectiveness explored here and applied to the four ECAF cases, these structures’ smooth functioning will be enhanced where CSO participants perceive the Commission’s commitment to them as high. CSOs involved in the EUEB generally accept that DG Environment is pursuing its own agenda via the EUEB: seeking the approval of as many product group criteria as possible to ensure its growth and popularity. DG Environment officials’ major criticism of EUEB is the absence of a vote by the Board, which instead occurs in a Regulatory Committee comprised solely of MS representatives. Despite this, DG Environment has demonstrated its long-term commitment to the structure in its various and frequent evaluations and reform proposals. Overall, this DG retains its longheld reputation as one of the more open Commission services to stakeholder consultation and participation. Its commitment to the process is therefore perceived relatively highly. Similarly, many CSOs involved in the EUHPF perceive that the structures also attract a high level of commitment from DG SANCO. This service is, moreover, specifically praised for making various efforts to modernize its processes and procedures and open itself up to greater public scrutiny. This is not however a universally shared view. More sceptical CSO representatives question DG SANCO’s Brussels-based focus to stakeholder consultation and its use of consultation mechanisms as showcase tokenism; part of a strategy to demonstrate that consultation has occurred, no matter how meaningful this actually is. For the TCG and CSD processes, the personality of the Commissioner is perceived as a major factor in determining DG Trade’s general level of commitment. At the time of writing this post is held by Catherine Ashton, although relatively new in post. The personalities of Mandelson and Lamy, Ashton’s predecessors, is more telling. Commitment was considered higher under the latter, the instigator of CSD, and generally acknowledged backer of civil society involvement in trade than the former, who was more strongly inclined towards traditional trade client groups i.e. industry and business groups. A broader belief that DG Trade is committed to TCG/CSD only to the extent that it is obliged by both the Treaty requirements and the Commission’s general participation discourse is equally apparent amongst the CSO representatives canvassed. Commission commitment is perhaps considered lowest in relation to the AAGs, which are charged with simply maintaining the farce of consultation without showing any real interest in it. The AAGs have been variously likened to a ‘Muppet show’, nothing more than a ‘predictable piece of theatre’, a ‘gathering of opinions on diffuse issues’, an amalgamation of ‘fragmented realities’, ‘sterile discussions’ and a ‘Ping-Pong game’ (CSO representatives cited by HeardLauréote 2005: 131). DG AGRI has nonetheless been described as at least engaging in a process of modernization, including opening itself up to greater public scrutiny. Perhaps a major concern, in light of all of these critiques regarding Commission commitment, is that those responsible for maintaining and developing these consultative processes may have a vested interest in its expansion, which has more to do with furthering careers than a desire to

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enhance the democratic qualities of the policy environment in which the consultation is actually framed. The second element relating to the perception-based approach to effectiveness explored here and applied to the four ECAF cases, is that these structures’ smooth functioning will be enhanced where CSO participants perceive them as worthwhile and useful. This effectiveness requirement relates to constituency satisfaction and whether participants feel they have accomplished something, their efforts matter and that they make a difference by attending ECAF meetings. EUEB participants point to a number of elements of usefulness. The structure is perceived as a means to promote excellence and best practice, to raise and maintain aspiration levels amongst affiliate members, to generate increased applications for the Flower label for one of their brands and to keep abreast of environmental benchmarks. It is also seen as a tool to raise consumer awareness. For many, it is considered better to be an insider to the process than external to it. Moreover, although it was established as a voluntary mechanism, it is expected that the label will be obligatory in the long-term. The EUEB also affords participants opportunities to shape the environmental labelling process from within and align its future development with their own priorities and to ensure that the Commission hears a balance of voices. Lastly, the recognition that CSOs receive from the Commission as insiders to the process assures a formal stakeholder status and provides access to other consultation platforms. EUHPF participants assert that the structure’s usefulness lies in its capacity to provide a venue for networking and interaction, mutual listening and learning, and for establishing communication and discussion between the Commission and CSOs. It is also perceived as a mechanism to influence or at least foster a common approach to EU health policy for some. In the case of the latter, the Forum is noted for its broader ability to strengthen European integration. Like the EUHPF, many TCG/CSD participants attend for the purposes of information exchange between CSOs and DG Trade and vice versa. Other usages noted are for communication, dialogue enrichment, networking and mutual learning. Whether or not the process serves a purpose of influencing trade policy is highly contested by participants, who are split between those who believe that the sensitive nature of trade policy renders it immune to such influence and those who argue that this is exactly the role such a structured civil society dialogue should play. Participants aware of its shortcomings nonetheless admit that it is better to have a flawed dialogue than none at all, even when the dominant viewpoint is that DG Trade engages in the TCG/CSD process simply as a means to fulfil its obligation to consult. Listening and learning and information gathering and exchange are the two primary usages attributed by participating CSO representatives to the AAGs. These structures’ potential to serve as venues for influencing policy and decision-making is the third, although, as in the other cases, this is highly contested. Most agree nonetheless that, despite their weaknesses, AAGs are a venue for interaction and networking. The final and

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most noteworthy use are the structures’ ability to perform an exercise of damage limitation. In this way, CSOs maintain their seats so that DG AGRI is aware of more than just the most economically dominant and vocal interests. In all four cases however, and despite mixed views on their usefulness, the majority of CSO participants agree that the ECAFs in which they are involved are worth continuing. The final perception-based element of effectiveness is that where these structures enjoy a positive and collegial working climate and atmosphere, their smooth functioning will be enhanced. In each of the four cases, these elements are described positively as being constructive, cooperative, friendly and respectful. The absence of antagonism on the AAGs is particularly attributed to the level of trust that has built up between longstanding participants and DG AGRI over a number of years. The few signs of tension that are said to occur occasionally within the EUHPF framework are thought to be at least partially compounded by the infrequency of formal meetings, and underlying self-preservation spirit amongst participants, a lack of expertise on the part of some and an innate belief that for DG SANCO stakeholder consultation is an added complication, rather than something to be embraced and applauded. The presence, in most cases, of a productive working atmosphere is generated by the presence of mutual respect for other individuals and groups even if they are traditionally perceived opponents. This is not only significant for ensuring the quality of outputs and outcomes but also in strengthening the ECAFs’ deliberative capacity. This is because positive relationships among participants foster a willingness to put forth arguments, particularly those that constitute dissent (Fishkin 1991), without fear that such contrary positions, counter arguments, needs and rights will not be respected by others. This respect is derived from the principle of egalitarian reciprocity whereby each participant recognises the equal and symmetrical rights of all other participants to be part of the conversation, to shape the discussion and determine the outcome regardless of their characteristics. Where this respect can be upheld, even if the positions of others seem wrong or contradict one’s own conclusion, deliberation is more likely to occur (Gutmann and Thompson 1996). Because it is a prerequisite for serious listening, mutual respect equally infers a willingness to listen to others and the reasons they advance. Although, as the existence of positive working atmospheres suggests, some of the conditions necessary for deliberation to occur are signalled as present within each of the four ECAFs, real deliberation is hampered by many of the structures’ functioning features. Although in the abstract the ECAFs’ propensity to simultaneously help the Commission improve system effectiveness and sustain adequate democratic credentials like legitimacy appeared favourable, the findings of this study signal that in reality, these structures’ contribution to both the quality of inputs and outputs is compromised. As with all so-called consultative processes, the danger inherent to the ECAFs is that their various functionality snags reduce them to mere demonstrations of a ‘tick-box’ legitimacy whereby

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the DGs in question are simply able to indicate the number of meetings held with however many stakeholders and that they have paid for travel from outside Brussels for those who requested it (Slob and Smakman 2007: 30). At a broader level, the predicament in which the ECAFs find themselves is highly illustrative of wider dilemmas faced by the Commission. This institution is clearly trapped between two sets of claims to legitimacy. One originated in the Monnet tradition, where original legitimacy derived from its ability to produce results. These would emanate from the Commission’s capacity to offer a technocratic elite to guide and give impetus to the process of integration, to propose via its exclusive right of initiative, policy that addresses and solves salient collective problems and to ensure adherence to the regulations. The second is based in the post-Maastricht democratic deficit critique of the Union, where its legitimacy derives increasingly from its ability to enhance citizen involvement and participation in the policy process. The Commission’s pursuit of these dual legitimacy claims is problematic and certainly the ECAFs are not a resounding success as potential venues for the mutual pursuit of effectiveness and legitimacy. There is no denying that in an attempt to enhance its own legitimacy and as part of the EU’s broader, Treaty-based strategy to ‘bring the Union closer to its citizens’, the European Commission has, particularly since the 1990s, adapted its attitude towards CSOs (particularly the NGO community). This adaptation has perhaps not gone as far as agreeing with their policy stances, but at least acknowledge their status as stakeholders and their right to contribute to policy-making processes. The Commission has therefore gone from a situation in which it largely did not consult with civil society as a whole, to one in which there is a high degree of access to its policy-making processes by a wider range of CSOs and institutionalization in the dialogue with civil society. Today, openness to and participation of civil society stakeholders is a dominant discourse. The process of reform involving European governance, particularly the coming into effect of new consultation regulations, has contributed even further to institutionalizing the consultations between the European Commission and civil society; multiple instruments have been developed and extensively utilized such as Green and White Papers, Communications, consultation documents, expert groups, ad hoc and internet consultations. ECAFs therefore represent just one aspect of the increasingly structured dialogue. None of these efforts do anything, however, to assuage the conviction amongst many participating CSOs that the ECAFs are merely window dressings whereby the Commission attempts to legitimize its stance toward society without any real intention of changing its position to accommodate the demands expressed by civil society via such structures. Clearly, the formalization of the consultation processes is by no means a cure; if it is not accompanied by flexibility and political will, it simply leads to a bureaucratization of the consultations (Insausti 2003: 16). As a result of the many problems these structures face, some groups question the ECAFs’ strategic value as well as the advisability of participating in

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them as a strategy for influencing policy. Indeed, some specific dissenting groups have lost faith in the whole Commission consultation process of which the ECAFs form part, based on a feeling that this institution fails to take their views and the methods they use to promote them seriously. Although some CSOs have gone so far as to question whether they should maintain their ECAF seats, most decide that it is better to be an insider to a flawed process rather than external to it. In this way, ECAFs are divisive, particularly for the NGO Community who are torn between getting nothing out of the process and a need to retain their seat. Other CSOs, particularly of the NGO type, choose to focus their resources elsewhere, preferring to opt out of formalized participation to maintain more media, street and grass-roots action in the form of manifestations and petitions for example. For the outputs they produce, the ECAFs are arguably ineffective tools. They are, for example, time consuming when the policy updates or briefings that the Commission is prone to delivering via these structures, could in fact be assured in a far more cost effective fashion. The Commission could for instance issue a monthly written or video update on its activities in specific policy areas. Such an approach may even mean that information could be disseminated more widely. In addition, the Q&A sessions could be posted on the web section of the specific briefings and officials could undertake to respond within a specified number of working days. There is little agreement on the form these dialogues, as encapsulated by the advisory forums, should take in the future. In effect, the creation of consultation spaces where participants feel comfortable is always going to be difficult because of the frustrations and misunderstandings that tend to arise as a result of differing expectations and a mismatch of objectives. Expectations tend to veer between those CSOs that have adopted a cynical approach and view dialogue as a sham intended to legitimize official policy and others who regard dialogue positively, despite its defects, as a useful means of airing and even resolving problems. The ECAFs explored here certainly reflect elements of both these positions. The Commission could arguably learn valuable lessons from some research into stakeholders’ expectations as a first step to resolving any mismatch. Regarding objectives, ECAFs also illuminate the inherent inclination of NGO-type CSOs in particular to pursue dialogue and consultation at a deeper level than the business or producer community. Such a clash of expectations as to what can be realistically achieved via essentially bureaucratic processes is especially problematic when some ECAF participants are clearly seeking to redefine the political agenda, be it in trade or agriculture, for example, in a way that their bureaucratic interlocutors in the Commission DGs concerned are unable to respond to (Hocking 2004: 26). The success of ECAFs is also affected by the ambivalent attitudes of their participants. Although there is broad recognition that ECAFs help inform and democratize policy-making, perhaps the most frequent criticism levelled against them is that Commission officials keep actual positions close to their chest. The widespread failure to close the feedback loop by providing

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adequate responses following meetings is indicative of this. Moreover, consultations are perceived to be treated more by Commission officials as briefing sessions than genuine attempts to seek broader input into the policy formulation process. Given the disparities between stakeholders over access to resources, which means they can engage more easily with the consultation processes, and the consequent asymmetries in the access and production of information and evidence, a case can also be made for the Commission to supply additional funding to NGO-type CSOs. This would ensure more balanced participation and more active engagement of under-resourced groups. Fundamentally, and despite these recommendations, the problems highlighted by the ECAFs raise questions as to whether the word ‘dialogue’ or ‘consultation’ is actually the most appropriate for such processes. Essentially, access does not equate to influence and allowing stakeholders to be heard does not equate to listening to stakeholders. Arguably, there is a real need for humbleness as to the scope and limitations of these structures and the reality that opening up EU policy processes, no matter how beneficial in the abstract, raises real problems regarding confidentiality; especially in policy areas like trade and agriculture. It may thus make greatest sense to rename the process for what it actually is – a modest briefing (Bizzarri and Iossa 2007: 34). Perhaps an acceptance that the EU suffers less a democratic deficit than a ‘credibility crisis’ would also be helpful when considering the future of formal, structured and institutionalized stakeholder participation mechanisms such as ECAFs. Under such a conceptualisation, the solution lies more in procedural change to render EU decision and policy-making processes more transparent (Majone 2000). Improving transparency includes better scrutiny by private actors, so if the EU could increase the credibility of its policymaking by introducing more procedural mechanisms to ensure such clarity then this would help in reaching a point where the public might better accept the EU as legitimate and concerns about the democratic deficit would disappear (Føllesdal and Hix 2006: 538). Given the clear link that exists between the transparency of decision-making and its credibility and legitimacy, stakeholders will not participate in the long run if there is a perception that contributions are not valued or taken into account. Restitution, whereby the Commission has a duty following a consultation to produce high-quality feedback, is thus highly significant to ensure future policy engagement. Measures to improve participant perceptions of the ECAFs’ worth can also help address the risk of consultation fatigue, which is likely to set in faster where there is a feeling that stakeholder participation does not matter or has little real influence. Specific transparency measures that the ECAFs should adopt are the production and circulation of synthesis reports to have a clear and agreed record of the consultation process. Such reports should clearly state meeting outcomes, including details of action points and next steps and reasons why certain stakeholder views were or were not taken into account. Attendance lists should also be published systematically to be transparent

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about who was involved. The Commission should also adopt measures to ensure early ‘upstream’ stakeholder involvement in the policy process where policy options are more open as well as opportunities for involvement later ‘downstream’ when issues are more tangible and require a higher level of expertise that CSOs can provide. As for internal CSO transparency, all groups should publish a list of memberships and affiliations and information on how they have consulted their respective affiliates/members. European networks should also systematically ensure their members are kept informed. This will allow the Commission to have a better map of what countries/stakeholders are already covered in existing networks and where the gaps are. Whether the ECAFs are a suitable venue for this to occur or not, the Commission is obliged to make further progress in reconciling effectiveness and legitimacy. As the EU rapidly moves forward in its acquisition of the major features of a polity, its governance arrangements are increasingly expected to be publicly accepted, credible and democratically legitimate. If ever it could rely on the efficiency and quality of its results, performance and outputs as a bureaucracy, today the Commission certainly cannot. The ECAFs are clearly, however, the wrong place to introduce the concept of input legitimacy. They suffer significant flaws in design and function, which at least jeopardises these political institutions’ ability to simultaneously guarantee both the legitimacy of inputs and outputs. Even if some of the recommendations for their reform were undertaken, question marks would still remain as to, for example, the internal legitimacy of the participating CSOs, given that their own contribution to legitimate governance is in various ways compromised. Moreover, via their resources, for example in expertise, ECAFs and the CSOs that populate them arguably lend themselves more to the provision of effectiveness and efficiency gains on the output side rather than reinforcing legitimacy on the input side. It is therefore questionable whether the European Commission should even be considering ECAFs as structures to enhance civil society participation. Certainly, they provide an access point for civil society participation but the provision of a forum for CSOs to be heard is not the same as listening to them. There must therefore be some modesty as regards expectations of what ECAFs can achieve and some acceptance of the primacy of output legitimacy in the legitimisation of ECAF structures.

Notes

Introduction 1 See for example, Peterson 1995; Kohler-Koch 1996; Börzel 1998; Eising and Kohler-Koch 1999; Héritier 1999 cited by Skogstad 2003: 326; Saurugger 2004: 4; Andersen and Burns 1996: 234. 2 See for example, Bellamy and Warleigh 1998; Warleigh 2003; Skogstad 2003: 326; Eriksen and Fossum 2000: 262; Héritier 1999; Joerges and Neyer 1997; KohlerKoch 1996; Lord and Beetham 2001; Lord 2001: 649. 3 Created by Regulation 1980/2000, constitutes the lead competent body and the central structure underpinning the EU’s voluntary Eco-Labelling scheme and ‘the Flower’ label. 4 Created after May 2000 following DG SANCO’s publication of a Commission Communication on the European Community Health Strategy. 5 Created by DG Trade between 1998 and 2000 in relation to the Seattle WTO Ministerial meeting. 6 The oldest of the advisory forums, created in their original format in 1987. 7 The principle of input legitimacy claims that a democratic system of rule achieves its legitimacy by the way decisions are made (and not by the results these decisions produce) (Schimmelfennig 1996). 8 The output legitimacy of a political system depends on its capacity to achieve the citizen’s goals and solve their problems effectively and efficiently. The higher this capacity, the more legitimate the system (Schimmelfennig 1996). 9 Whereas effectiveness means the capacity of the political system to achieve the goals and to solve the problems of the citizens, efficiency refers to the political system being able to do so at a reasonable cost (Schimmelfennig 1996: 13). 10 The Commission uses the term ‘European governance’ to refer to the rules, processes and behavior that affect the way in which powers are exercised at European level, particularly as regards the five principles of openness, participation, accountability, effectiveness and coherence. This was the first official definition of the concept at the Union level. 11 Consultations are defined as ‘those processes through which the Commission wishes to trigger input from interested parties for the shaping of policy prior to a decision by the Commission’ (EC 2006: 11). 12 The term interested parties is defined as ‘all who wish to participate in consultations run by the Commission, whether they are organisations or private citizens’ (EC 2006: 11). 13 Article 12 of the European Charter of Fundamental Rights: ‘Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters … ’. See http://www.europarl. eu.int/charter/pdf/text_en.pdf

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14 ‘All activities carried out with the objective of influencing the policy formulation and decision-making processes of the European institutions’ (EC 2006: 5). 15 ‘Persons carrying out such activities, working in a variety of organizations such as public affairs consultancies, law firms, NGOs, think-tanks, corporate lobby units (“in house representatives”) or trade associations’ (EC 2006: 5). 16 For the purposes of simplification, the EU policy process can be broadly conceptualized as consisting of three distinct phases: policy development, decisionmaking and implementation. 17 The White Paper definition is drawn from a definition set out in a 1999 ESC opinion: Opinion of the Economic and Social Committee on ‘The role and contribution of CSOs in the building of Europe’, OJ C329, 17.11.99 p. 30 cited in EC 2001: 14. 1 Legitimacy and effectiveness – two principal standards of good governance 1 For example, the 1997 New Labour Government in the United Kingdom emphasized democratic renewal, while the 2001 Government prioritised efficiency gains. 2 This has been widely done elsewhere by scholars, who have attempted to synthesize this vast literature, for example Telo 1995; Schmitt and Thomassen 1999 and Newman and Hoskyns 2000 – see Magnette 2003. 2 Assessing (input/output) legitimacy 1 For the purposes of this discussion, the principle of ‘putative equality’ is related to the balanced composition of institutions. However, Schmitter (2001) explores this principle with relation to another of the other political design features of political institutions that he considers important, notably rules, i.e. how institutions should reach decisions. Schmitter advances eight generic principles for the decisionmaking rules of political institutions, one of which is this principle. 2 See for example, Dryzek 2000 cited by Trénel 2004: 2; Jordan 2007. 3 See for example, Gerhards 1997; Muhlberger 2000, 2006; Spörndli 2003, 2004; Steenbergen et al. 2003; Trénel 2004. 4 See for example, Barber 1984; Cohen 1997; Fishkin 1995; Habermas 1984; Mathews 1994. 5 Article 11 of the European Charter of Fundamental Rights of the European Union states: 1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers 2 The freedom and the pluralism of the media shall be respected 6 This element is discussed at length under the heading of the stake-holding principle in the section on balanced composition. 7 See for example, Barnard 1938; Cameron 1982; Connolly, Conlon and Deutsch 1980; Zammuto 1982 cited by Forbes 1998: 186; Drucker 1954. See also Robbins 1983; Ridley and Mendoza 1993 cited by Rojas 2000: 98, Campbell et al 1974; Steers 1977 cited by Angle and Perry 1981: 2; Steers 1975; Georgopoulos and Tannenbaum 1957 8 See Perrow 1961; Georgopoulos and Tannenbaum 1957; Georgopoulos and Mann 1962; Mott 1972 cited by Molnar and Rogers 1976: 401. 9 I.e. CAF members. 10 A number of authors have explored the characteristics and procedures within structures that make for an effective process as well as the impact of and implications of such characteristics for effectiveness. See for example, Crosby, Kelly and Schaefer 1986; Fiorino 1990; Lynn and Busenberg 1995; Webler 1995; Smith, Nell and Prystupa, 1997; Middendorf and Busch 1997.

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3 The EU Eco-Labelling Board Consultation Forum 1 Outlined as an annex to CD 2000/731/EC. 2 UEAPME first requested membership status in the late 1990s but received a negative response from the Commission who decided at that time that UNICE (today BUSINESSEUROPE) was the only valid representative of employers and business organizations. Not only has DG Environment’s attitude changed however since the EUEB’s creation but also UEAPME made regular requests for the decision’s reversal. Additionally, UNICE’s inactivity made it necessary for the Commission to secure the participation of another organization carrying the voice of business. 3 Iceland, Norway and Liechtenstein. 4 The CB is run by the MS Government. Sometimes the national Government has outsourced the task of the CB to a private company/non-profit organization. Sometimes the CB and the MS representative (sitting in the Regulatory Committee) are the same person. But importantly, it is the CB that sits in the EUEB and the MS that sits in the RC. 5 Turkey and Croatia and the former Yugoslav republic of Macedonia. 6 See http://ec.europa.eu/environment/ecolabel/tools/consultantforum_en.htm 7 Article 3 of CD 2000/730/EC. 8 See http://ec.europa.eu/environment/ecolabel/tools/consultantforum_en.htm 9 In many MSs, the CB is established and managed by an appropriate state ministry such as environment. In the UK, for example, the Green Labelling Unit is established as part of the Department for Environment, Food and Rural Affairs (DEFRA). This is not the case in the Nordic countries, where the CBs are set up as private organizations with private funding: Eco-labelling Norway, Finnish Standards Association SFS – Environmental Labelling and SIS Ecolabelling in Sweden. The Danish Environmental Protection Agency also has autonomy from the national Ministry of the Environment. 10 Here we are interested in equal consideration under the formal rules of procedure whereas when we discuss deliberation we will address issues of equality in contributing to the discussion. 11 For example, knowledge of the pen industry and the different types of ink, plastic and metal used in their fabrication or the paint and varnishes industry where knowledge is required on specific chemical compounds. 12 Seats are allocated for MSs but not for CF members, who take their seats on a first-come-first-served basis. 13 The EUEB presidential and EUEB preparatory meeting have merged on specific occasions in the past. 14 Prior to 2004, there was a further layer, the Policy Management Group. 15 Launched in 1992 via Council Regulation (EEC) No 880/92 of 23/03/1992. 16 Article 1 of Regulation (EC) No 1980/2000 of the European Parliament and of the Council of 17 July 2000 on a Revised Community Eco-label Award Scheme. 17 As established by the EUEB’s rules of procedure CD 2000/730 OJ L 293 of 22/11/ 00 and by Point 1 under the annex of Commission Decision of 10 November 2000, establishing the European Union Eco-labelling Board and its rules of procedure. 18 Where the EEB and BEUC share a representative, and ETUC and BUSINESSEUROPE do not regularly attend. 19 Where all participating CSOs field their maximum allowance of three representatives per meeting. 4 The European Health Policy Forum 1 Previously 50 until 2006 revision. See online text on The Health Policy Forum at http://ec.europa.eu/health/ph_overview/health_forum/policy_forum

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2 Ibid. 3 Ibid 4 See DG SANCO Presentation of 30/05/08 The Health Forum’s Role: A Renewed Mandate. 5 14 July 2005 6 This CSO was developed as a result of a meeting which took place on 18 July 18 between DG SANCO, a number of patients’ groups, BEUC and the European Public Health Alliance. At that stage there was simply a declaration of intent signed by nine groups indicating their wish to set up a Europe-wide patients’ organization. The EPF was then formally established in January 2003. 7 The need for a European transparency initiative, Siim Kallas, Vice-President of the European Commission and Commissioner for Administrative Affairs, Audit and Anti-Fraud, speaking at The European Foundation for Management, Nottingham Business School, 3 March 2005. 8 Created in September 2006, this forum meets annually. 9 European Federation of Pharmaceutical Industries and Associations; European Generic Medicines Association; European Self-Medication Industry; European Association for Bioindustries (EuropaBio); European Association of Full-Line Wholesalers; European Patients’ Forum; Standing Committee of European Doctors; Pharmaceutical Group of the European Union (community pharmacists); Association Internationale de la Mutualité; European Social Insurance Platform. 10 EuropaBio is the only one absent 11 European Aids Treatment Group; The Association of European Cancer Leagues; European Heart Network; European Network for Smoking Prevention; Health Action International; Mental Health Europe; European Federation of Nurses Associations; Council of European Dentists; EuroHealthNet; International Planned Parenthood Federation – European Network; Pharmaceutical Group of the European Union. 12 Comments made at a meeting of DG SANCO’s stakeholder involvement Peer Review Group, held on 1 June 2007 in Brussels. 13 See DG SANCO’s 2007 document EUHPF Guiding Principles with Regard to Transparency: http://ec.europa.eu/health/ph_overview/health_forum/docs/EUHPF_ principles_en.pdf 14 http://ec.europa.eu/health/ph_overview/health_forum/health_forum. 15 DG SANCO, Presentation of 30/05/08 The Health Forum’s Role: A Renewed Mandate. 16 Introduction to the EU Health Policy Forum, January 2004 www.ec.europa.eu/dgs/ health_consumer (http://ec.Europa.eu/health/ph_overview/health_forum/policy_forum). 17 The Commission’s 2007 White Paper entitled Together for Health: A Strategic Approach for the EU 2008–2013 mentions the EUHPF as one of the implementation mechanisms for the new EU Health Strategy, which sets objectives and principles to drive EU health action up to 2013: ‘Value can be added to Member States’ action through fostering cooperation with stakeholders at Community level. The Commission will continue to develop partnerships with them building on the experience of bodies such as the Health Forum’ (p. 10). 18 Introduction to the EU Health Policy Forum, January 2004 located at www.ec. europe.eu/dgs/health_consumer 19 11/03/05; 05/04/06; 22/11/06; 01/06/07; 28/11/07; 30/05/08; 10/12/08. 20 See EUHPF Workshop on Transparency which met in April 2006. 21 Meeting on 01/06/07 and minutes sent 27/06/07. 22 Recommendations on Health Services and Internal Market (May 2005); Recommendations on Health Information (May 2005); Recommendations on Mobility of Health Professionals (December 2003); Recommendation on Health and EU

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Social Policy (December 2003); Recommendations on Health and Enlargement (November 2002). 5 The Trade Contact Group and Civil Society Dialogue 1 See DG Trade’s CSD website at http://trade.ec.europa.eu/civilsoc/index.cfm 2 Which it says can ‘be used as shorthand to refer to a range of organizations’, including: ‘the labour-market players (i.e. trade unions and employers federations – the “social partners”); organizations representing social and economic players, which are not social partners in the strict sense of the term (for instance, consumer organizations); NGOs, which bring people together in a common cause, such as environmental organizations, human rights organizations, charitable organizations, educational and training organizations, etc.; CBOs (community-based organizations), i.e. organizations set up within society at grassroots level which pursue member-oriented objectives, e.g. youth organizations, family associations and all organizations through which citizens participate in local and municipal life; and religious communities’. 3 For example, different offices of the same organization or even different persons working for the same organisation. 4 As of September 2008. 5 Information taken from the DG Trade CSD Database of Registered Organization as of September 2008. 6 Discussed at length in this volume’s concluding chapter. 7 Their Chief executive (or equivalent), a contact person, the country of incorporation or establishment, the type of organization (national NGO; pan-European NGO; international NGO; business or professional association; research institute; trade union; faith-based organization; foundation or other), the organization’s objectives, main activities (as described in own words and also indicated by ticking one of the following categories: agriculture; development; education; food & drink; health; manufacturing; research; services; textiles; trade; trade unions) and expertise, membership (numbers and regional distribution), finance (sources and type of funding), networking (interaction with other platform/federation/umbrella/organization at EU or global level) and relations with other Commission Services. 8 http://ec.europa.eu/trade/whatwedo/work/index_en.htm 9 DG Trade: http://trade-info.cec.eu.int/civil_soc/intro1.php and repeated at http:// trade.ec.europa.eu/civilsoc/index.cfm and http://www.europa.eu.int/comm/trade/ issues/global/csd/dcs_proc.htm 10 Ibid. 11 Ibid. 6 The Agricultural Advisory Groups 1 The composition of the advisers group that accompanies the Commission at the WTO Ministerials is also based on the Contact Group. Thus, in Hong Kong all but one of the Contact Group members (Greenpeace attended instead of the WWF) were part of the EU delegation. These advisers were all nominated by their constituencies and were required to cover their own expenses’ (Slob and Smakman 2007: 42–4). 2 Advisory Group on Common Agricultural Policy; Advisory Group on Cereals, Oilseeds and Proteins; Advisory Group on Dried Fodder; Advisory Group on Starch; Advisory Group on Seeds; Advisory Group on Sugar; Advisory Group on Rice; Advisory Group on Energy and Non-Food Crops; Advisory Group on Cotton; Advisory Group on Flax and Hemp; Advisory Group on Milk; Advisory Group on Beefmeat; Advisory Group on Sheepmeat and Goatmeat; Advisory

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Group on Pigmeat; Advisory Group on Poultrymeat and Eggs; Advisory Group on Beekeeping; Advisory Group on Fruit and Vegetables; Advisory Group on Flowers and Ornamental Plants; Advisory Group on Wine-Growing; Advisory Group on Spirit Drinks; Advisory Group on Olives and Derived Products; Advisory Group on Tobacco; Advisory Group on Hops; Advisory Group on Forestry and Cork; Advisory Group on the Quality of Agricultural Production; Advisory Group on Organic Farming; Advisory Group on Promotion of Agricultural Products; Advisory Group on Rural Development; Advisory Group on Women in Rural Areas; Advisory Group on Agriculture and Environment. 3 Of 23 April 2004. 4 Article 3 of CD 2004/391/EC. 5 As set out in CD 2004/391/EC. Conclusion: Trapped between legitimacy claims – managing expectations for ECAFs 1 See DG SANCO’s 2007 document EUHPF Guiding Principles with Regard to Transparency; http://ec.europa.eu/health/ph_overview/health_forum/docs/EUHPF_ principles_en.pdf 2 Via a ruling of the European Court of First Instance (T-135/96), EuroCommerce and the European Association of Craft, Small and Medium-sized Enterprises were excluded from dialogue with the Commission in the area of social policy. 3 http://ec.europa.eu/civil_service/about/figures/index_en.htm accessed 23/09/08. 4 It is important to note that the minimum standards apply to consultations on the Commission’s major policy proposals for which an impact assessment is required; these proposals are listed in the Commission’s Annual Work Programme. The minimum standards also apply to consultations on Green Papers. However, they remain important to this research because ‘Commission departments are encouraged to apply these standards to other consultation exercises as well’ (EC 2006 (ETI): 11). Moreover, EECAFs are not specifically referred to as a consultation tool exempt from application of the minimum standards. 5 The monitoring of the implementation of these standards is done in the context of the annual Better Lawmaking reports. These reports analyze, among other things, the progress in implementing the Commission action plan on better regulation, of which the minimum standards are part.

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Index

Aberbach, J.D. 21, 194 accountability 1, 3, 5, 6, 18, 19, 20, 28, 43, 182, 183, 185 adversarial principle 40, 56, 88, 146, 192 Agricultural Advisory Groups (AAGs) 2, 149, 151, 159, 161, 172–73, 204, 206, 207–8; absenteeism 167, 179, 203; agenda 162–63, 169–71, 179, 204; balanced composition 149–55, 178, 186, 192; deliberation 151, 155–58, 178; effectiveness 158–59, 165–66, 168, 171, 173, 178, 179–80, 203, 206; goal-attainment 163–67; perception-based 172–76; system-resource 163, 167–72; efficiency 166; equality 155, 161, 162, 163, 179, 193, 201; expertise 158, 178–79, 197; functions 151, 163–65, 179; goals 203; history 10, 34, 149; legitimacy 178; meetings 155–57, 161–62, 163, 165–67, 168, 170–71, 177, 203; membership 150, 167, 188; minutes 159, 163, 168–69, 179, 204; openness 159, 160–61, 167, 179; problems with 157, 178, 179–80, 204; public awareness 160; transparency 159, 186 Andonova, L.B. 189, 191 Angle, Harold L. 49, 50 anti-globalization 114, 125, 145, 147 Ashton, Catherine 206 authoritarianism 22

Bechev, Dimitar 17, 29 Beetham, D. 17, 38 Belgium 56 Bercero, Garcia 139 Birdlife International (BI) 182 Bizzarri, K. 12, 40, 117, 118, 120, 123, 125, 126, 127, 128, 129, 130, 131, 133, 134, 135, 138, 140, 141, 142, 144, 145, 181, 182, 211 Blondel, Jean 17, 18 Blühdorn, Ingolfur 21, 22 Born, Hans 17, 24 Börzel, T.A. 17, 23, 33 Brittan, Leon Sir 118, 125 Brown, Mark B. 17, 39, 40, 42, 43, 194 Brühl, Tanja 23, 182 Bulgaria 116 Bureau of European Union Consumers (BEUC) 52, 56, 57, 59, 60, 71, 77, 114, 146, 153, 193 BUSINESSEUROPE 52, 55, 76, 77, 116 Cameron, Kim S. 44, 45, 47 Campbell, John P. 44, 45 capture theory 193, 195 citizenship 4, 36 civil society 1, 2, 5–6, 9, 16, 20, 33, 35, 58, 59, 67, 111, 125, 144, 182, 188, 190–91, 209; definition 15, 187–88; discourse see Commission discourse; participation 1, 2, 5, 6, 7, 8, 13, 16, 23, 25, 26, 31, 33, 35, 140, 186, 209, 212 Civil Society Dialogue (CSD) 2, 11, 12, 111, 115, 116, 117, 134, 140, 142, 143, 144, 183, 184, 186, 193, 202, 207; agenda 128, 133, 137;

238

Index

attendance 133–34, 142, 143, 147, 203; balanced composition 111–12, 114–17, 118, 121, 125; deliberation 118–20, 146; effectiveness 129, 133, 134, 135, 147, 203; goal-attainment 129–31; perception-based 138–45; system-resource 129, 133–38; equality 128–29, 147, 193; expertise 121, 122–23, 146, 197; goals 130, 140–41, 202; history 10, 12, 125; legitimacy 121, 145; meetings 112, 116, 117, 118–20, 122–23, 128–29, 130, 133–35, 136, 137, 141, 145, 146; membership 113, 115, 145, 188; minutes 136, 147; openness 126, 147; problems with 118–19, 120, 204; secretariat 135–36, 147, 204; transparency 144, 147 Civil Society Organizations (CSOs) 1, 4, 6, 7, 8, 9, 11, 12, 14, 15, 23, 34, 35, 36, 37, 39–40, 41, 51, 55, 58, 59, 62, 67, 69, 80, 82, 86, 87, 88, 91, 93, 97, 100–102, 103, 104–5, 111, 114, 116, 118–19, 120, 121, 122, 125, 128, 133, 134, 137, 138, 140, 142, 144, 149, 151, 164, 165, 166, 167, 173, 177, 181, 182–89, 190, 195–96, 210; accountability 23, 185, 204; definition 15, 188; expertise 121, 122, 196–97; legitimacy 181, 212; openness 182; Non-Governmental Organizations (NGOs) 1, 4–5, 11, 13, 36, 53, 57, 69, 86, 88, 94, 95, 114, 116, 181–82, 185, 188; accountability 182, 185; expertise 182; legitimacy 181, 182; role 8, 13, 35–36, 37, 79; transparency 212; participation 4, 79, 103; transparency 97, 185, 212 Comité des Organisations Professionelles Agricoles de l’Union Européenne (COPA) 152, 153, 154, 155, 166, 167, 178, 182, 192

Comité Général de la Coopération Agricole de l’Union Européenne (COGECA) 152, 153, 154, 155, 166, 167, 178, 192 Comitology committees 10 Commission 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 26, 32–33, 34, 36, 37, 40, 42–43, 49, 55, 52, 56, 58, 59, 61, 64, 67, 71, 77–78, 95, 98, 103, 105, 106, 111, 114–15, 117–18, 120, 123, 127, 128, 130, 136–37, 140, 144, 151, 155, 157, 158, 161, 162, 164, 165, 168, 169, 170, 171, 174, 185, 187, 188, 192, 196–97, 199, 205, 206, 209; accountability 1, 5, 7, 33, 144, 199; consultation 1, 2, 6, 7, 26, 31, 49, 55, 67, 185, 187, 197; discourse 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 23, 33, 98, 144, 187, 189, 196, 197, 198, 199, 200, 205, 209; equality 117, 201; inclusiveness 2, 7, 9; legitimacy 1, 2, 4, 5, 32, 33, 209; openness 2, 12, 43; transparency 5, 12, 98, 127, 197–98, 200 Common Agricultural Policy (CAP) 10, 13, 151, 156, 159, 160, 165 Community Method 29 Competent Bodies (CBs) 11, 51, 52, 56, 57, 58, 59, 64, 68, 76, 77, 82, 192, 193 Confederation of European Young Farmers (CEJA) 153 Constitutional Treaty 3, 8, 9, 31 consultation 1, 2, 6, 14, 23, 34, 125, 197, 209, 210, 211 Council 10, 11, 12, 13, 29, 34, 59, 122, 171, 205 Council of Europe 27 Council of Ministers see Council Crosby, Ned 43, 50, 183 Dahl, Robert 23, 24, 26 democracy: 4, 5–6, 7, 18, 20, 21, 22, 23, 24, 26, 27, 28, 33; deliberative democracy 40, 41; participatory democracy 4, 6, 9, 37, 38; representative democracy 4, 9, 13 democratic accountability 1, 21, 26 democratic deficit 1, 7, 11, 30, 31, 33, 116, 192, 209, 211

Index democratic equality 9 Denmark 30, 64 deliberation 3, 4, 20, 35, 38, 40–44, 60, 93, 187, 195, 196 developing countries 11, 115, 118, 151 DG Agriculture (DG AGRI) 34, 53, 149, 151, 153, 154, 155, 159, 160, 161, 162, 165, 166, 168, 171, 172, 177, 178, 180, 185; openness 160, 161, 167, 172, 198, 206; DG Enterprise 53, 58, 65, 172 DG Environment 51, 52, 53, 54, 58, 59, 60, 62, 65, 78–79, 80, 82–83, 172, 193, 206; openness 64, 78–79, 83, 198, 206; transparency 78, 83, 198 DG SANCO 12, 84, 86, 87, 88, 92, 93, 96, 98–99, 101, 102, 103, 104, 105, 109, 186, 192, 193, 206; criticism 93, 104; legitimacy 92; openness 86, 92, 96, 104, 198; transparency 96, 97, 198 DG Trade 11, 12, 53, 111, 112, 114, 116, 117, 118, 123, 125, 128, 129, 130, 132, 135, 137, 139, 140, 146, 147, 172, 193, 198, 203, 206, 207; openness 124, 125, 137, 198; transparency 124, 127, 130, 140, 141, 198 Easton, David 18, 48 Eco-Label see Eco-Labelling scheme Eco-Labelling Board (EUEB) 2, 11, 39, 51, 56, 57, 58, 59, 61, 62, 65, 68, 69, 70, 72, 77, 78, 79–80, 81, 82, 83, 189, 192, 193, 204, 207; absenteeism 69, 76, 83, 203; agenda 70, 76, 77–78; balanced composition 11, 51–57, 82, 186; deliberation 60–62, 82; effectiveness 55, 76, 78, 83, 203; goal-attainment 70–71; perception-based 77–81; system-resource 71–77; equality 69–70, 83, 193; expertise 62, 63, 68, 82; functions 1; funding 60; goals 54, 70–71, 72, 73, 80, 83, 202; history 10; legitimacy 55, 60, 81–83;

239

meetings 52–53, 60, 62, 63, 64, 66, 67, 68, 69, 70, 73–76, 77, 82, 83; membership 51, 52–53, 55, 59; minutes 66, 68, 70, 83; openness 65, 67, 69; outputs 80–81; problems with 62–63, 65, 68, 76, 77, 82, 83; secretariat 76; structure 71–72, 83; transparency 65, 66–67, 68–69, 83; voting 68, 78, 83 Eco-Labelling scheme 10–11, 51, 53, 55, 57, 58, 59, 63, 64, 66–67, 71, 73, 78, 81; criteria 58, 59, 62, 68, 72–73, 78, 79, 80; goals 10, 51, 54, 59, 71, 72–73; revision process 67 effectiveness 3, 6, 13, 16–19, 20, 21, 22, 23, 24, 25, 26, 33, 34, 35, 37, 44–46, 49, 50, 201; goal-attainment 45, 46–47; perception-based 46, 48; system-resource 46, 47–48, 138 efficiency 3, 14, 18, 19, 21, 22, 23, 24, 25, 28, 32, 35, 124, 201 élite-led approach 27, 28, 125 equality 44 esprit de corps 4 Esty, Daniel 40, 43, 186 Etzioni, A. 45, 47 EUROCHAMBRES 117 EuroCommerce 52, 77 European Association of Craft, Small and Medium-sized Enterprises (UEAPME) 51, 52 European Coal and Steel Community (ECSC) 28, 32 European Commission see Commission European Commission Advisory Forums (ECAFs) 2, 3, 4, 9–10, 12, 16, 33–36, 37, 39–40, 43, 44, 81, 145, 147, 149, 181, 182, 183, 186, 187, 189, 191–92, 194, 202, 204, 210–12; absenteeism 49, 203; accountability 4, 43; balanced composition 2, 9, 39–40, 193–95; deliberation 4, 41–44, 187, 195–96, 208;

240

Index

effectiveness 13, 46, 49, 50, 73,76, 100, 101, 165, 194, 203, 204, 205, 208, 210; goal-attainment 48; perception-based 50, 206–8; system-resource 48–50; equality 197, 201, 208; expertise 42, 195, 196, 197, 212; functions 2, 3; history 2, 3, 10, 12–13; legitimacy 37, 39, 41, 194, 208–9, 212; meetings 41, 43, 49; openness 42, 43, 187, 198–99, 201; transparency 43, 211–12 European Council 8, 31 European Court of Justice (ECJ) 29 European Economic Area (EEA) 52, 55, 69 European Environmental Bureau (EEB) 52, 56, 57–58, 59, 60, 76, 77, 80, 193 European Farmers’ Coordination (CPE) 133, 153 European Federation of Food, Agriculture and Tourism Trade Unions (EFFAT) 153 European Health Forum (EUHPF) 2, 12, 84, 86, 92, 94, 99, 100, 192, 193, 202, 204, 207, 208; absenteeism 88, 101, 203; balanced composition 84–90, 93, 186; deliberation 93–95, 109; effectiveness 98, 100, 101–2, 103, 105, 109–10, 203; goal-attainment 98–99; perception-based 104–8; system-resource 98, 100–104, 137; equality 97, 98, 109, 193; expertise 94–95, 97–98, 109; functions 94, 99, 105–7; funding 92; goals 87–88, 99–100, 202; history 10, 12, 84, 98–99; meetings 86, 88, 93–94, 98, 100, 101, 203; membership 84–86, 87–88, 89–90; minutes 96, 102, 204; legitimacy 93, 108, 109; openness 87, 96; problems with 101–2, 103, 109, 204; secretariat 101–2, 109, 204; transparency 86, 87, 92, 96, 97 European integration 5, 26–29, 30, 32, 34, 207

European feminist network of women’s organizations (WIDE) 114, 132, 183 European Older People’s Platform (AGE) 90, 92 European Parliament (EP) 31, 34, 59, 112, 122, 124, 128, 143, 144, 159, 171, 205 European Patients’ Forum (EPF) 91, 92, 100, 103, 108, 192; funding 91–92; legitimacy 92 European Public Health Alliance (EPHA) 93, 94, 98, 103, 109, 193 European Trade Union Confederation (ETUC) 52, 76, 114 European Transparency Initiative 92, 200 European-wide constituency (EWC) principle 55, 146, 178, 189 European Union (EU) 1, 2, 3, 4, 5, 6, 7, 14, 16, 19–20, 24, 26, 28, 29, 30, 31, 124, 153, 211, 212; accountability 5, 26, 29, 198; effectiveness 5, 14, 20, 23, 24, 26; efficiency 14, 26, 28, 30, 32, 124; governance 3, 5, 6, 14, 20, 27, 29, 30, 32, 209, 212; legitimacy 1, 2, 3, 4, 5, 14, 23, 26, 28, 29, 30, 31, 32, 124, 190, 198, 209, 212; policy 5, 6, 7, 8, 14; trade policy 11–12, 111, 114, 117, 122, 123–25, 130, 142, 144, 146, 147, 148, 207; transparency 8, 9, 198, 211 EU citizenship see citizenship expertise 1, 2, 13, 14, 34, 37, 42, 43, 62, 63, 64, 134, 182 fairness 26, 44; distributive fairness 18; procedural fairness 18 Fazi, E. 12, 15, 32, 116, 197 Fiorino, Daniel 44, 49 Fischer Boël, Mariann 160 Flower label see Eco-Labelling scheme Føllesdal, A. 30, 31, 211 Forbes, D.P. 45, 46 France 32, 115 Friends of the Earth Europe (FoEE) 132, 133, 183

Index

241

Gerlach, Carina 12, 117, 123, 134, 141, 184 Germany 115 globalization 12, 124, 130, 160 Goodman, Paul S. 44, 45 governance 3, 5, 14, 16–18, 20, 21, 22, 23, 24, 25, 26, 27, 30, 33, 35; bottom-up approach 14; European governance see European Union (EU) governance; participatory governance 3, 37; principles of good 6, 9, 16, 17; technocratic governance 14; top-down approach 5, 21 Greenwood, J. 2, 182

input legitimacy 2, 3, 19, 20, 22, 23, 24, 25, 26, 30, 33, 34, 35, 36, 37, 38, 41, 42, 60, 81–82, 108, 145, 178, 194, 212; output legitimacy 2, 3, 10, 19, 20, 22, 23, 24, 25, 26, 30, 31, 34, 35, 36, 37, 38, 45, 81, 83, 109, 145, 178, 194 Lewin, A.Y. 45, 48 Lisbon Treaty 3, 9 lobbying 8, 23, 65, 80, 100, 119, 122, 141, 143, 174, 175, 198, 203 Lord, C. 3, 5, 9, 17, 28, 29, 30, 31 Lowndes, V. 46, 196 Luxembourg 56, 82

Haas, P. 28, 35 Habermas, J. 42, 44 Health Action International (HAI) 91, 92 Herman, Robert D. 45, 46, 47, 48 High Authority (HA) 28, 32 Hocking, Brian 125, 131, 210 Holzhacker, R. 18, 31, 40 Hrebiniak, L.G. 44, 45 Hübel, Michael 103,

Maastricht Treaty 30, 33 Madelin, Robert 12 Magnette, P. 13, 14, 26, 27, 30, 32 Majone, G. 26, 29, 211 Mandelson, Peter 116, 131, 139, 147, 206 Member States (MS) 11, 13, 29, 30, 31, 52, 57, 58, 59, 67, 71, 87, 115, 144 Meunier, Sophie 11, 123 Minimum Threshold Principle (MTP) 39, 51, 86, 145, 178, 186 Monnet, Jean 27, 29, 32 Monnet Method 26, 27, 28, 209 Molnar, Joseph J. 45, 46, 47 Moravcsik, A. 29, 31 Muhlberger, Peter 41, 44 Multilateral Agreement on Investments (MAI) 11, 124, 125

inclusiveness 2, 3, 7, 9, 25, 31, 44 International Alliance of Patients’ Organizations (IAPO) 88, 91, 95, 100, 108, 192, Inter-Service Consultation (ISC) 58, 65, 83, 198 Jarman, Holly 12, 111, 117 Joerges, C. 4, 13 Kallas, Siim 92, 198 Kanter, R.M. 44, 45 Karty, Kevin D. 23, 43, 48, 49, 50, 193, 194, 195, 201, 202 Kohler-Koch, B. 14, 33 laggards 57, 79 Lamy, Pascal 12, 125, 139, 147, 206 legitimacy 1, 2, 3, 6, 8, 16–19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 33, 35, 37, 38, 39, 42, 124, 154, 182, 211, 212; authority 17, 27, 38, 43, 181, 205; deficit 1, 7, 182; democratic legitimacy 5, 6, 7, 16, 19, 20, 24, 41, 42;

neo-functionalism 28, 32 Netherlands 64, 115 new Member States (MS) 56, 82, 108, 115–16, 146, 152, 159, 178, 189–91, 192, 196 Non-Governmental Organizations (NGOs) see Civil Society Organizations (CSOs) non-tariff barriers 124 Nordic Member States (MS) 57 Offe, C. 21, 22 openness 6, 9, 12, 13, 21, 22, 43, 185, 197, 201–2, 209 organization theory 44–45, 46 organized civil society 1, 2, 6, 13, 35, 126, 140, 200

242

Index

Paris Summit (1972) 10, 34 participation 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 14, 18, 20, 22, 23, 24, 25–26, 31, 33, 34, 35, 38, 40, 43, 44, 189, 190, 191, 196, 200, 203–4, 209, 211; as a legitimizing tool 2, 3, 4, 6, 12, 13, 33; discourse see Commission discourse participatory governance structures see ECAFs Perrow, Charles 46, 47, 49 pharmaceutical industry 86, 88, 90, 91, 98, 108, 192, 193 Poland 115 Pollitt, Christopher 46, 47 Price, James L. 46, 49 Pridham, G. 190, 191 principle of European privilege 39, 189–91 principle of minimum threshold see Minimum Threshold Principle (MTP) principle of putative equality 18, 40, 59, 82, 127, 146, 193 Prodi, Romano 14 Qualified Majority Voting (QMV) 10 Radaelli, Claudio M. 26, 29 raison d’être 1 representativeness 4, 38–39, 182, 183, 188, 192 Risse, T. 17, 19, 20 Romania 190 Rowe, Gene 26, 39, 40, 43, 44, 46, 49, 50, 195, 199 Rousseau, Jean-Jacques 38 Santer, Jacques 33 Scharpf, Fritz W. 18, 19, 20, 29, 35, 38, 45 Schmitt, H. 18, 31 Schmitter, P.C. 17, 37, 39, 40 Schuman Plan 28 Single European Act (1986) (SEA) 30 Shapiro, Ian 43, 196 Skogstad, G. 23, 26, 29, 33 Slob, A. 7, 11, 12, 31, 33, 87, 99, 100, 101, 102, 103, 104, 112, 113, 128, 131, 135, 201, 209 Slovenia 56 Small and Medium-sized Enterprise(s) (SMEs) 51, 53, 54, 57 Smismans, S. 15, 38

Smythe, E. 19, 20 sovereignty 27, 124 Spinelli, Altiero 27 Spörndli, Markus 42, 50 Standing Committee of European Doctors (CPME) 87 Stake-holding principle (SHP) 39, 53, 145, 187 Steenbergen, Marco R. 41, 44 Steers, Richard M. 45, 46 Stern, P.C. 25, 36 supranationalism 4, 26, 27, 29, 33, 35, 124; supranational institutions 30, 31–32, 59 technocracy 22, 26, 28, 29, 32, 33, 125, 209 tour de table 60–61, 69, 74, 82, 83, 121, 195 Trade Contact Group (TCG) 2, 111, 112, 114, 118, 123, 183, 184, 186, 193, 207; agenda 121, 127, 132, 136; attendance 203; balanced composition 112, 114, 116; deliberation 121, 146; effectiveness 114, 121, 133, 134, 147, 203; goal-attainment 129, 131–32; perception-based 138–45; system-resource 129, 133, 135–36; equality 147, 193; expertise 123, 146; functions 114, 131–33; goals 140, 202; history 10, 12, 125; inclusiveness 114; legitimacy 133, 145; meetings 116, 121, 127–28, 133, 134, 135, 146, 203; membership 145, 183, 188; minutes 136, 147; openness 126; secretariat 135–36, 147; transparency 126–28, 147 trade liberalisation 124 trade policy see European Union trade policy transparency 8, 9, 12, 20, 22, 23, 26, 43, 92, 124, 125, 139, 197–98, 130, 201–2, 211;

Index public awareness 66, 79, 83, 95, 109, 123, 126, 147, 160, 179, 197, 202 transparency discourse see Commission discourse Treaty Establishing a Constitution for Europe see Constitutional Treaty Treaty of Paris 32 Treaty of Rome (1957) 28 Trénel, Matthias 40, 41, 42 Tsakatika, Myrto 6, 13, 14, 30, 32, 33 United Kingdom (UK) 115 Voluntary Organizations (VOs) 4, 13 Vos, E. 10, 12, 34

243

Wallace, W. 26, 27, 28, 32 Weatherford, Stephen 18, 20 Weber, Max 17, 21 Wessels, Wolfgang 3, 29, 34 World Trade Organization (WTO) 11, 12, 111, 112, 117, 118, 124, 125, 127, 191 World Wildlife Fund (WWF) 132, 133, 182, 183 Youth Forum Jeunesse (YFJ) 86, 95 Yuchtman, Ephraim 45, 46, 47 zero-sum relationship 22