Written especially for the EUSA Review (14: 4), Fall 2001, pp. 1, 3-8.
Copyright 2001 European Community Studies Association. May be reproduced for classroom use.
Visit the EUSA Review Fora page for other essays on EU topics.
 

FIRST PROPOSED BY COMMISSION President Romano Prodi in February 2000, the Commission's White Paper on European Governance was designed to examine and make proposals about the concept of European governance, which was taken to encompass "rules, processes and behavior that affect the way in which powers are exercised at European level" (Commission 2000: 4). As Daniel Wincott recounts below, the White Paper itself was drafted by a "Governance Team" within the Commission, which in turn consulted widely among academics as well as government experts and civil society. For many observers, the White Paper promised a fundamental reconsideration of the aims of European governance; the respective roles of EU, national, and subnational institutions; the role of civil society in EU policymaking; and the possible development of new forms of governance including self-regulation, co-regulation, the open method of coordination, and independent regulatory agencies.

After extensive consultation outside the Commission, and debate within it, the White Paper was finally released on 27 July. As per its mandate, the 35-page document discusses five principles of good governance-openness, participation, accountability, effectiveness, and coherence-and offers broadly formulated "proposals for change" in four areas: better involvement; better policies, regulation, and delivery; the EU's contribution to global governance; and refocused policies and institutions (Commission 2001). As Les Metcalfe points out in his essay below, the White Paper is less specific in its proposals than previous White Papers (such as Lord Cockfield's famous 1985 White Paper, Completing the Internal Market), but rather presents a broad analysis and calls for a period of public consultations, to continue through the end of March 2002, on the principles and proposals of the White Paper. Unfortunately, the timing of the White Paper's release, just before the August holidays, has meant that the public debate on its contents has begun slowly, with little press coverage or public debate. The Forum section of this issue of EUSA Review is therefore devoted to a preliminary analysis of the White Paper, with essays by Daniel Wincott, Les Metcalfe, Michelle Everson and Kenneth A. Armstrong. The first two of these essays examine the drafting and content of the White Paper against the political background of the Commission and the EU in recent years, while the last two examine two of the most important substantive issues raised by the White Paper (executive agencies and civil society, respectively). It is hoped that these essays-together with the on-line symposium established by the Harvard Jean Monnet Program (Joerges, Mény and Weiler 2001; Scharpf 2001) and other scholarly contributions-will stimulate an active academic debate on the contents of the White Paper and the reform of European governance.
-- Mark A. Pollack, Forum Editor  

The White Paper, the Commission and the "Future of Europe"
Daniel Wincott

THE EU IS ON THE CUSP of major changes. Enlargement poses huge challenges. It must be considered alongside the bedding down of monetary union and the associated strong emergence of questions of (re)distribution on the EU's policy agenda (one cause of the development of new forms of policy co-operation) alongside traditionally central issues of market regulation. Equally the EU's profile in internal affairs and foreign and security policies has become clearer. In these areas decisions already taken and processes already underway mean that fundamental change cannot be avoided. Despite numerous statements about its destination from the likes of Gerhard Schröder, Jacques Chirac, Lionel Jospin and Tony Blair, however, the EU seems to be backing into its future. A sense of common purpose is lacking, even at the elite level. Indeed pronouncements on the future of Europe by major political leaders are usually interpreted as their last words on the issue, not as preliminary statements intended as part of a constructive debate. Rather than helping us out of the "trenches" of the last European debate, too often they lead these trenches being dug deeper. Such a situation begs questions about political leadership. No political leader or figurehead seems available of the stature of a Delors or Monnet, an Adenauer or Spaak to help to unify the Union around a resonant and persuasive project.

If difficulties exist in achieving agreement at the elite level, these problems are exacerbated by the traditionally somewhat detached relationship between the general public and the EU. The apparent decline of popular participation in and engagement with politics in "western" nations generally adds a further twist. Although it seems to be a common feature of these nations, in the member states the EU itself sometimes seems implicated as a symbol-and perhaps even a cause-of "distance" between governors and the people.

Correctly identifying the significance of the current political moment-and seeking to re-establish the credibility of the Commission and its reputation for innovation-President Prodi made the development of new forms of governance a major strategic priority of his term of office. The main vehicle for the exploration of these new governance modes was to be a White Paper. Led by Jerome Vignon (former head of the Forward Studies Unit) a small "Governance Team" was charged with drafting it. The core team was supported by 12 "inter-service" working groups designed to cut across the established hierarchies of authority within the Commission. Initially, the mission of this "team" was to improve the effectiveness of the EU and develop strategies to improve its communication and engagement with the wider European public(s). The key concept of "governance" seemed to draw these two elements together. Rather than focusing on traditional authoritative "governmental" modes of operation, "governance" was used by the White Paper team to suggest that a wider range of policy instruments and modes should be deployed, including many which engaged those "regulated" in the determination and operation of modes of regulation.

Thus the White Paper proposes greater clarity about (1) the overall purposes of "governance" and (2) the role of each institution and each mode of governance in achieving these purposes. From co-regulation to the open method of co-ordination and from targeted tripartite contracts to regulatory agencies, the White Paper welcomes new developments while making a series of interesting and thoughtful proposals of its own. In turn these are to be based on better assessment of policy needs and evaluation of outcomes, together with much greater consultation (indeed perhaps too much) in these areas.

The flexible conceptual framework of "governance" appears to suggest modesty about the role of formal rulemaking. However, the White Paper concludes by making an enhanced (more "supranational") "Community Method," with an augmented executive role for the Commission itself, the cornerstone of its model for the future of the EU. The result seems somewhat unbalanced, with new modes of governance-the exploration of which was the apparent purpose of the exercise-defined so to limit their encroachment on the Community Method and relegated to a secondary role. Moreover, although numerous proposals for new action by the Commission are made, none is backed by clear criteria against which their results could be evaluated subsequently (except in the very limited sense of examining whether the Commission had actually produced documents or engaged in processes of consultation). Does the White Paper itself live up to the standards of policy-making that it suggests should be adopted by the EU?

Additionally, while the member states and "intergovernmental" institutions are subjected to searching analysis and sharp criticism (some of which is surely deserved) the Commission itself is largely exempt from such attention. For example, while the Council certainly contributes to the "sectoralization" of EU policy and thus undermines its overall coherence, so too does the Commission. Should the first institution be criticized more harshly than the second? This is hardly a strategy to persuade other institutions and actors to join with the Commission in a process of collaborative reform. Indeed, the Paper seems to have been written more to avoid upsetting the established institutional form and practices of the Commission than to engage the member states in a constructive debate.

In the midst of all the change that the Union confronts, at least one thing is sure. For the Union to make the most of its potential a self-confident but modest Commission has a vital role to play. Too often commentators and political actors pit intergovernmental against supranational methods. The Union works best when intergovernmental and supranational influences complement one another, not when they are seen to compete. This is as true in the newly emerging "Open Method of Co-ordination" (OMC) as it is in the established "Community Method" (although of course, the role of the Commission is different in the two areas). Whatever its flaws, the White Paper makes many constructive points. The period of consultation on the White Paper may provide an opportunity for a new balance can be struck between the various modes of governance it considers, and the somewhat defensive quality of its discussion of the Commission could be stripped away. If these modifications can be achieved then the broad understanding of "governance" that motivated the White Paper team can make a useful contribution to the developing debate on the "future of Europe."

Daniel Wincott is Senior Lecturer in Political Science and International Studies at the University of Birmingham.

More Green than Blue: Positioning the Governance White Paper
Les Metcalfe

THE PUBLICATION OF THE Governance White Paper has been eagerly awaited since reform of European governance was proclaimed to be the "big idea" of the Prodi Commission early last year. The EU has outgrown its established institutions. The impending eastward enlargement adds urgency to the task of replacing obsolescent governance structures with new ones appropriate to continent-wide integration. This transformation requires both a new vision of the future architecture of the EU and the means of putting it into effect. In considering whether the White Paper meets this need it is essential to recognize that bringing new frameworks of governance into being and making them work effectively requires sophisticated management capacities as well as political will. Reforms should address the EU's management deficit as well as its democratic deficit. This is partly recognized in the White Paper's statement of five principles of good governance: openness, participation, accountability, effectiveness and coherence. But it is far from providing a blueprint for reform.

In making an assessment of the White Paper it is useful to consider not just how far it is an adequate blueprint for reform but also whether it should be. This can be done by positioning it on a green-blue spectrum of consultative (Green Paper) to prescriptive (blueprint) reform options, each requiring a different management of change strategy for successful implementation. A standard definition of a White Paper is a public statement of governmental intent whereas a Green Paper is designed to elicit opinions, stimulate debate and generate new information and ideas prior to formulating political conclusions. A blueprint prescribes a detailed programme for action based on well-defined general principles and seeks to anticipate all significant contingencies. The strategy for managing such programmed changes can be characterized as "Tell and Sell" and assumes that reformers have the credibility and the power to make things happen. The White Paper does not meet these substantive and process "blueprint" tests. Granting the importance of the five "principles" of good governance, they have not been crafted into a new model of EU governance and specified in a detailed programme of reform. Individually, they are not precisely formulated. The first two, openness and participation, are not just proposals for change they are also invitations to a wide range of stakeholders to participate in defining the direction of change. The principle of accountability is equated with clearer definition of individual institutional responsibilities and does not really address the difficult problems of designing frameworks of accountability where there are shared responsibilities in multilevel systems of governance. Presenting effectiveness as a principle avoids dealing with the thorny conceptual and practical problems of determining what effectiveness criteria are applicable to governance networks. Moreover, relying on a limited management-by-objectives model carries the risk of ignoring important dimensions of effectiveness and creating rigidities that make adaptation to change costly and slow. Finally, the principle of coherence is a watered-down version of the earlier commitment to "radical decentralization." Its vagueness is symptomatic of the lack of a model that explains how new forms of governance based on partnerships and horizontal coordination can manage interdependence in multilevel organizational networks.

Does it matter that the White Paper fails to measure up to blueprint criteria? Perhaps not if it gave a clear direction for reform by stating guiding principles and setting in motion the processes for implementing them. It is instructive here to compare the governance White Paper with two landmarks in the integration process; the White Papers on the completion of the Internal Market (1986) and reforming the Commission (2000). The former was based on the "four freedoms" and included nearly 300 specific measures to be implemented by the 1992 deadline. The latter aims to make the Commission better equipped to play the roles that it was originally set up to perform by implementing a comprehensive reform package for modernizing the internal organization of the Commission and its personnel and financial management systems. It sets out a tightly defined "route map" and "time table" for reform. In these cases the management of reform used a "Tell and Listen" change strategy, combining firm political leadership with willingness to revise the means of achieving objectives. While this is closer to the blue part of the spectrum it is based on a clear recognition that successful reform involves building support from the bottom up.

By contrast the governance White Paper is positioned in the green part of the reform spectrum because it does not provide a guiding concept or plan of action. Instead it invites participation in the process of developing them. Although in accord with its democratizing intent, this has difficult implications for the management of reform. It leaves open questions about the ends as well as the means of reform. The White Paper does not give a good foundation for handling such a process. It is ambivalent about the connections between the principles of good governance and the positive examples of innovation in EU governance it draws from recent experience such as co-regulation, open coordination and executive agencies. Indeed the lack of a new vision, a big idea, is evident in a reluctance even to see them as innovations. Instead they are presented defensively in a back-to-the-future perspective as means of "reinvigorating the Community Method." This is unnecessary. The published papers of the Commission working groups that contributed to the White Paper shows forward thinking and a recognition that innovation is essential to meet new challenges. Possibly because publication was rushed to meet the summer deadline the results of these investigations could not be assimilated intellectually and politically within the Commission. Any organization needs time to adjust to change. The publication of the "Next Steps" White Paper (1988) which led to agency-based reforms of British central government was delayed for a year because of political infighting among ministries as they came to terms with the implications of structural change. The potential impact on the Commission of reforms of European governance is so far-reaching that it is inconceivable that it will not trigger similar bureaucratic politics.

This leads to a strategic question. Can reforms of European governance be implemented without redefining the role of the Commission as well as changing its internal organization? The lack of a blueprint for reform and the clear commitment to extensive consultation in designing new forms of governance as well as operating them appears to place new responsibilities on the Commission for ensuring the development of capacities to make them work. This is not a role the Commission was originally established to perform. But it now works in a drastically different environment where fixed patterns of responsibilities and sharply demarcated jurisdictions are giving way to needs for greater organizational flexibility and ability to manage interdependence. A blueprint would be out of date before it was implemented. In this environment, rather than a once-for-all reform there is a recurring need for organizational capacities to design and develop adaptive European governance networks. Governance reform will always be a combined effort, but the Commission should develop the core competences to manage-not direct-the processes of change. Perhaps the appropriate motto would be "Look and Learn."

Les Metcalfe is Professor of Public Management at the European Institute of Public Administration in Maastricht, The Netherlands.

European Agencies: From Institutional Efficiency to "Good" Governance
Michelle Everson

WITH ITS WHITE PAPER ON European Governance, the European Commission would seem at long last to have accepted the importance of independent agencies within the regulatory and policy-making framework of the European Union. Once seen simply as ad hoc institutions-given a legal basis by that catch-all competence-competence of European legal expansion, Article 308 [ex 235] EC, and subjected to Commission direction-that were deployed to tackle diffuse tasks (such as the gathering of environmental information (EEA) or the regulation of the admissibility of pharmaceutical products (EMEA)) if and when the need arose, agencies would appear now to have been given a planned role within a comprehensive vision of overall EU policy-making and implementation.

The EU and, more particularly, its polity, demands "confidence in expert advice" (p.19), clamors for "better and faster regulation" (p.20), requires a simplified legal system (p.22) and needs "better application of its rules" by means of "regulatory agencies" (p.24). Similarly, the Commission must use scarce resources wisely and agencies, "with their ability to draw on highly technical, sectoral know-how" and the "cost-savings that they offer to business" prove to be its preferred means of "focusing resources on core tasks" (p.24). Seen in this light, the proposed increased recourse to 'regulatory agencies' at European level represents a masterpiece of institutional rationality. With their ability to network continuously with national and commercial expertise and to instigate agencies, research will surely prove to be more efficient and consistent providers of the increased scientific expertise demanded by the EU's commitment to risk assessment and management (p.19) than obscure, often improvised committees. Likewise, with a permanent staff, agencies will supply speedy decision-making. Equally, agencies present the public with a visible regulatory interface and increase the capacity of the EU to oversee national implementation of Community policies. Nonetheless, institutional rationality is perhaps not the sole guiding principle of European governance and it may thus be doubted whether the Commission has given a comparable degree of thought to the normative place of European agencies within the European order: alternatively, although the Commission's existing and envisaged agencies may have found their niche within the Commission's preferred institutional organigram, they may still be found wanting when measured against yardsticks of democratic control and accountability. "Good" governance, least we forget, is not merely about finding and speedily implementing efficacious solutions to regulatory problems. Instead, it also encompasses conflict resolution and requires that the institutions of governance possess sufficient normative authority (legitimacy) to induce a habit of compliance amongst member states, their citizens and (perhaps most importantly) economic corporations.

In this regard, the Commission's vision of a brave new world peopled by European regulatory agencies would appear to be fatally flawed: (i) by the Commission's foolish assumption that a clear distinction may be made between policy-making and the application of rules; and (ii) by its (related) reluctance to cede any part of its overall treaty-based competences to such new European institutions.

Famously, the debate on the place of independent regulatory agencies within government has long been characterized by vigorous conflict between two distinct groups. On the one hand, the "regulatory" theorists (powerfully represented in Europe by Giandomenico Majone) who argue that once a firm (legislative) commitment has been made to dispense with corporatist economics and to regulate economic processes in line with 'rationalizing"-rather than redistributive-principles of regulation, democratic governance is best served by isolating regulators from (transient) political interests. And, on the other, the "skeptical realists" (led by Martin Shapiro) who maintain that agencies have historically proven themselves (mainly in the US) to be, at the worst, inherently politically motivated, and at the best, vulnerable to political manipulation.

Interestingly, however, diverse as these two groups may be, there has been one point upon which they have, to date at least, agreed (though recent wavering-presumably prompted by a political desire to see the preliminary development of "some" form of European agency-has been visible in the regulatory camp): policy-making cannot be distinguished from the application of rules. In a complex modern economy, the regulation of ostensibly technical issues, such as market entry and exit, may not be conceived of in terms of a clear framework of regulatory rules stipulating the exact circumstances of entry and exit, and must instead be understood as a on-going partnership between regulator, market and society to determine the policy governing entry and exit in the light of prevailing economic and conditions. Equally, modern concerns such as risk regulation inevitably entail redistributive and thus political concerns: will markets, consumers or governments (through the costs of regulation) bear the costs of risk?

To the skeptical realist, such a finding is a reason to dispense with the services of independent, non-political, regulators altogether. For the regulatory theorist, it first restricts the operation of regulatory agencies to areas where no redistributive concerns are present, and secondly demands that agencies operate under very distinct normative conditions. Remaining with the regulatory theorists, however, the primary such condition is (as noted) the "complete" independence of the regulator from political control. Granted, the democratic accountability and control of the independent agency is generally secured by a whole host of institutional mechanisms (parliamentary budgetary control, judicial review, the political appointment of the head of the agency, public visibility of the agency etc.). Nonetheless, the primary instrument of democratic control has always been, and forever remains, a higher legal guarantee of institutional independence: a guarantee which ensures that, whilst technocrats will necessarily be engaged in policy-making, such policy will always be made with a eye to the terms of the agency's democratically legitimated mandate and will not be diverted to other ends by the presence within the agency of overt and transient political interest.

The Commission's stubborn determination that its agencies will engage only in the implementation of rules and will be shielded from regulatory areas that may involve "conflicts of interests" (p.24) is reflected in the absence of a proposal in the White Paper for a treaty revision that will at last give agencies their own basis in European law and free them from the control of an increasingly politicized Commission. It is also presumably motivated by the Commission's reluctance to cede any part of its treaty-based competences. At this stage in the evolution EU governance, however, one is nevertheless drawn gently to remind the Commission that its responsibility to supply Europe with "good" governance extends far beyond the simple task of securing institutional efficiency: it is to be hoped that its 2002 guidelines on the nature of the independence of agencies will effectively, if not normatively, free them from Commission control.

Michelle Everson is Jean Monnet Lecturer in European Law at Birkbeck College, University of London.

The White Paper and the Rediscovery of Civil Society
Kenneth A. Armstrong

THE WHITE PAPER ON EUROPEAN Governance is, perhaps, at its most revealing in its conclusion that "The Community method has served the Union well for almost half a century" (p. 34). It is hardly the clarion call for radical change. However at numerous points the White Paper talks of the "reinvigoration" of the Community method, stating that, "The Union must renew the Community method by following a less top-down approach and complementing the EU's policy tools more effectively with non-legislative instruments." But in focusing upon reforming "the Community method" (i.e. policy-initiation by the Commission with legislative decision by the EP and Council, together with the Commission's role in the adoption of implementation measures), the White Paper struggles to cast its gaze beyond the EU institutional context. Indeed, there is much in all its talk of "better policies, regulation and delivery" which would not look out of place in any one of the annual "Better Lawmaking" reports. To this extent, the White Paper seems like yet another strategy by which the Commission aims to do better but without really contemplating fundamental change - its like déjà vu all over again.

Nonetheless, the corrective to this top-down tendency is the White Paper's call for the greater involvement of two constituencies of actors - (1) regional and local actors and (2) civil society. As regards the former the White Paper identifies the need for a greater policy dialogue with sub-national actors as well as proposing more flexible implementation of EU policies through tripartite contractual relationships between the Commission, national and local government. What is not clear is whether this responsiveness to the sub-national tier of government is also intended to include broader participation of non-governmental actors in the policy-influencing or policy-implementing process at these levels. The lack of this sort of discussion points both to the inadequacies of a working methodology which placed "civil society" and "decentralization" in different conceptual compartments of the work programme, but also a more problematic difficulty of extending the normative gaze of a "European" debate on governance into the national and sub-national spheres (as I have argued elsewhere, this is the problem of conducting a debate about multi-level constitutionalism from the sole perspective of one level; Armstrong 2000).

Our concern here lies principally with the role constructed for civil society actors within EU governance. The White Paper struggles to identify a conceptualization beyond the ambiguous statement that, "Civil society plays an important role in giving voice to the concerns of citizens and delivering services that meet people's needs" (p. 14). We shift from a construction of civil society as a sphere of communication and of discourse to one in which civil society provides for the material welfare of its citizens through its role as service provider. To be sure, both constructions can be identified in relevant literatures. But it is one thing to see civil society as reinforcing the democratic process and, therefore, giving strength and vitality to public institutions and quite another to conceptualize civil society as a service-provider if that means the absence or withdrawal of public institutions from the task of providing for the material welfare of citizens.

The ambiguity continues with the difficulty in reconciling the statements that civil society's engagement with the EU provides "a chance to get citizens involved in achieving the Union's objectives and to offer them a structured channel for feedback, criticism and protest," while also suggesting that "Participation is not about institutionalizing protest. It is about more effective policy shaping based on early consultation and past experience." The point is quite important given that the rush to embrace civil society (whether by the EU or the WTO) arises in part because of the wide-scale protests which have attended meetings of the European Council, the WTO, the World Bank etc. One might also take the Irish "no" vote as its own form of protest. The dilemma of whether to embrace dissent and to use it to reflect upon the nature of EU governance, or whether to shun "uncivil" society in favor of harnessing "civil" society towards the (unchallengeable) objectives of the Union becomes apparent. The resolution of the dilemma largely seem to lie in the assumption that if only citizens can be made to understand the EU better, they will grow to accept rather than protest against it. The possibility that this might have precisely the opposite effect does not seem to have been contemplated.

But exactly how is European civil society constructed in the discourses surrounding the White Paper? The clear emphasis within the White Paper and in the report of Working Group IIa ("Consultation and Participation of Civil Society") is upon organized civil society operating at the EU-level (i.e. organizations which are transnational rather than only operating in one or a few Member States). It is the relationship between the EU institutions (more particularly the Commission) and these transnational organizations that the Commission is seeking to better structure. Thus, what we have is a conceptualization of participatory democracy rooted strongly in structured processes of consultation. What is not envisaged in the White Paper is that the Community method will itself be displaced by a transfer or sharing of governance activities with civil society actors (although this might be the result of the open method of coordination or the possibilities of co-regulation discussed elsewhere in the White Paper). Instead what is offered is structured "civil dialogue."

Following up on the ideas presented in the Working Group report, the White Paper proposes the compilation of an on-line database of European civil society organizations; the adoption of a (non-legally binding) Code of Conduct setting out minimum standards for consultation processes; and, where processes are well established, the possible use of "partnership arrangements." However, the central message that emerges from the discussion of structuring consultation and dialogue processes is that "[W]ith better involvement comes greater responsibility" (p. 15). This responsibility takes on different forms. For example, in indicating that the Commission will establish an on-line database of civil society organizations, the White Paper considers that, for listed organizations, this "should act as a catalyst to improve their internal organization" (p. 15). The introduction of a Code of Conduct is considered as providing standards which "should improve the representativity of civil society organizations and structure their debate with the Institutions" (p. 17). Moreover, the White Paper is even more blatant in the idea that there is a quid pro quo for enhanced consultation rights when it comes to proposed partnership arrangements: "[I]n return, the arrangements will prompt civil society organization to tighten up their internal structures, furnish guarantees of openness and representativity, and prove their capacity to relay information or lead debates in the Member States" (p. 17). And as the Working Group IIa report also suggested, partnership arrangements, "obviously constitute an incentive for the NGO community to organize themselves in pan-European structures." These themes of the need to structure the civil society relationship through the imposition of responsibilities upon civil society actors as regards their internal organization and representativeness, while also pushing towards the Europeanization and federalization of organized civil society have developed as key frames through which the role of civil society is being constructed within the White Paper discourse.

That civil society organizations have responsibilities finds more general expression in the White Paper's view that civil society actors must also be subject to the principles of good governance set out in the White Paper viz. openness, participation, accountability, effectiveness and coherence. Thus, the concerns with internal organization, openness and representativity are the surface forms of this deeper desire to ground civil society in these norms of governance. While we expect that the exercise of public power will be conducted in light of values and principles associated with a normativized public sphere of decision-making, why and when should such principles attach to civil society?

If we think of civil society as largely a discursive, communicative or deliberative sphere then any attempt to normativize civil society must primarily attend to the preconditions for discourse, e.g. freedom of speech and voluntary association; openness to plural voices and participation of actors within discourse; removal of barriers to inclusion or marginalization. While to some extent obligations are placed on civil society actors the thrust of this normativization lies with extending rights to individuals and groups, normally to be enshrined in law while the state takes on certain responsibilities both negatively (non-interference with the autonomy and self-organization of civil society) and positively (ensuring that the legal order upholds the rights of civil society while also attending to the barriers to the full enjoyment of the rights of citizenship). Curiously enough, the White Paper says little about the civil and political rights of civil society, nor the preconditions for the effective enjoyment of such rights. And in any event the rights which are seen as incurring responsibilities are merely consultation rights which the White Paper itself is keen to ensure take the form of a non-legally binding Code of Conduct. The thrust of the approach, therefore, is less about the conferral of rights and more about the imposition of responsibilities that are suggestive of a governmentalization of civil society in the sense of the use of rationalities and techniques through which civil society actors alter their behavior and expectations to facilitate the exercise of governmental power.

To be sure, once we begin to talk of civil society actors being involved more directly in the delivery of governance either alone or together with political institutions then such new modes of governance pose real challenges to how we have traditionally normativized government based on classical divisions between public and private law. But the response of the Community legal order thus far to such new approaches to governance like the Article 139 EC "social dialogue" mechanism has been to place the obligations on the political institutions to check the collective representivity of the social partners rather than to insist that such social partners make themselves representative (see Case T-135/96, UEAPME v. Council of the EU [1998} ECR II-2335). Indeed, the values associated with social dialogue-the free will of the partners to negotiate, the mutual recognition of the parties and the autonomy of the negotiation process from the legislative process-have been respected. If this is true of a process which we might describe as involving civil society actors directly in the governance process, it is hard to see any justification for imposing the principles of good governance in what is simply a structured consultation process. Rather, and rightly, it is the duty of the EU institutions to ensure the openness of the consultation process; to facilitate the participation of relevant actors through appropriate mechanisms; to make the Institutions accountable for the structuring of consultation processes; to ensure the effectiveness of the consultation process measured not simply in terms of its policy-effectiveness but also in terms of its democratic effectiveness; and, to provide coherent consultation mechanisms across the fragmented structure of the Commission.

Kenneth A. Armstrong is Senior Lecturer in Law in the Department of Law at Queen Mary, University of London.

Forum References

Armstrong, Kenneth A. (forthcoming). "The White Paper and the Rediscovery of Civil Society," Law and New Approaches to Governance Proceedings. Madison, WI: University of Wisconsin.

Armstrong, Kenneth A., 2000. Regulation, Deregulation and Re-Regulation: Problems and Paradoxes of EU Governance. (London: Kogan Page).

European Commission, 2001. "European Governance: A White Paper," COM(2001) 428; available on the Europa Web site at: http://europa.eu.int/comm/governance/white_paper/index_en.htm

European Commission, 2000. "White Paper on European Governance: "Enhancing Democracy in the European Union" Work Programme, SEC(2000)1547/7; available on the Europa Web site at: http://europa.eu.int/comm/governance/work/en.pdf

Ibbs, Sir Robin, 1998. Improving Management in Government: The Next Steps. (HMSO London).

Joerges, Christian, Yves Mény, and J.H.H. Weiler, eds., 2001. "Responses to the European Commission's White Paper on Governance," on-line symposium on the Commission White Paper on Governance, available on the Web site of the Harvard Jean Monnet Programme at: http://www.jeanmonnetprogram.org/papers/01/010601.html

Metcalfe, Les, 2000. "Reforming the Commission: Will Organizational Efficiency Produce Effective Governance?" Journal of Common Market Studies, Vol. 38, No. 5: 817-841.

Scharpf, Fritz W., 2001. "European Governance: Common Concerns vs. The Challenge of Diversity," available on the Web site of the Harvard Jean Monnet Program at: http://www.jeanmonnetprogram.org/papers/01/010701.html

Wincott, Daniel (Forthcoming, December 2001). "Looking Forward or Harking Back? The Commission and the Reform of Governance in the European Union."Journal of Common Market Studies.