Towards More Public Participation in European Policy-Making?
January 6, 2012 12:00 AM
The European Commission extends public consultations to 12 weeks and creates new 'alert service’ for upcoming initiatives. For those who have tried to interact with the EU Commission in recent times, these changes will be welcome. For the average citizen trying to follow what is going in Europe, they will be irrelevant. Extension of time limit in open consultations
After having resisted this call for some years, the European Commission has announced that starting from January 1, 2012 it provides citizens, businesses and non-governmental organizations at least 12 weeks to comment on plans for new policies and legislation, compared to 8 weeks previously. The declared goal of the initiative is to facilitate citizens’ involvement in EU policy-making at an early stage.
The actual consultation procedures are based on the 2002 communication establishing ‘General principles and minimum standards for consultation of interested parties by the Commission’. This Communication – now presumably modified by the recently-announced procedural change – sets out both principles (participation, openness, accountability, effectiveness and coherence) and minimum standards for consultation that should govern the Commission when it consults external parties. The latter, in particular, establish that:
(1) the content of consultation is clear; (2) relevant parties have an opportunity to express their opinions; (3) the Commission publishes consultations widely in order to meet all target audiences, in particular via the web portal "Your Voice in Europe", which is the Commission's single access point for consultation; (4) participants are given sufficient time for responses ( (5) acknowledgement and adequate feedback is provided. These consultation standards apply, at the policy-shaping phase, to major proposals before decisions are taken. The consultation standards ensure that consultations are carried out in a transparent and coherent way in the Commission.
The Harsh Truth about the Timeline of Open Consultation
As everybody who participated to an open consultation knows, despite this common framework for consultation, the Commission works in a decentralized manner and its different services are responsible for their own mechanisms of dialogue and consultation. While this decentralized structure allows the specific nature and conditions of different policy areas to be taken into account, it also gives rise to uncertainty as great procedural variations existing among and within the different DGs. Interested parties are consulted through different tools, such as Green and White Papers, communications, consultation documents, advisory committees, expert groups and ad-hoc consultations. Consultation via the Internet is common practice. Often, consultation is a combination of different tools and takes place in several phases during the preparation of the proposal.
Alert System
To promote public participation, the Commission has also introduced an alert service notifying - through your mailbox - upcoming initiatives. In particular, this service promises to provide early information on the roadmaps for new initiatives in their fields of interest about one year before there adoption. For the time being, all roadmaps are made available on the EU Commission Impact Assessment page at the time of their adoption and open consultation are available at Your Voice in Europe page as soon as they are launched.
The apparent downside of this latest development is that only organizations that sign up for the Transparency Register can subscribe to this alert service. This seems to provide an incentive to all interested parties – including myself (an academic) - to subscribe to this recently created register.
But :
(a) Who is eligible to sign up to the Transparency Register ?
(b) Which are the consequences stemming from inclusion into the Register ?
Ironically – as it is often the case when dealing with transparency – the registration policy surrounding this initiative is not as transparent as it should be.
The Intransparency of the Transparency Register
(a) The Eligibility to the Transparency Register
The Commission reserves the Transparency Register to "organizations and self-employed individuals engaged in EU policy-making and policy implementation".. As it stems clearly from section 8 of the text of the European Parliament and European Commission joint agreement on a Transparency register, it is not the nature of the organization which is the determining factor for registration, but the nature of the activities in which the organization or the self-employed individual is engaged. These activities include: contacting members or officials of the EU institutions, preparing, circulating and communicating letters, information material or argumentation and position papers, organizing events, meetings or promotional activities (in the offices or in other venues).
I actually happen to regularly engage into all these activities but I do that as an academic, not by acting on behalf of any client interest. Am I expected to register ?
Below you will find the email that I just dropped to the Head of Unit for Transparency and relations with interest groups in the Secretariat general of the European Commission:
Dear Mr Legris,
As a Professor of EU Law at HEC Paris, I take the liberty to inquire about my eligibility to sign up to the Transparency Register.
Since I regularly contribute in my personal capacity to the Commission Open Consultation and often meet officials from the EU institutions, I wonder whether I am expected to register. A quick look at the actual form for registration seems to recognize only academic institutions (and think tanks) the possibility to sign up, not to individual academics or researchers. Should I infer that my own university should register? This might however affect my ability to contribute to the Commission consultation process with my own inputs as these might differ from those of my University. At the same time, my own activities seem to fall within the scope of the Register as this expressly covers « voluntary contributions and participation in formal consultations on envisaged EU legislative or other legal acts and other open consultation are included » (section 8 of the IIA).
How to solve the conundrum?
Many thanks in advance. I look forward to hearing from you,
Alberto Alemanno
PS For your information, the Joint Transparency Register Secretariat does not check and validate entries upon registration (sic). As all factual information in the Register is provided under the sole responsibility of the registrant bound by the obligations established by the code of conduct, the Secretariat reserves itself to make regular random or targeted checks to detect possible mistakes, errors, intended or unintended omissions.
(b) The consequences stemming from inclusion into the register
There are no privileges attached to registration. Unlike the system applied by certain international organizations, such as the Council of Europe, it does not give associations an official endorsement by granting them a consultative or accreditation and does not lead to access to any privileged information. This seems in line with the Commission’s declared objective to consult interested parties on the widest possible basis and to ensure that every interested party, irrespective of size or financial backing, is given the opportunity of being heard.
By signing up to the Register, organizations and individuals commit to a Common Code of Conduct pledging, for example, always to identify themselves by name and the entity they work for, and not to obtain information dishonestly. Moreover, a complaint mechanism and measures to be applied have also been established for those who break the Code of Conduct.
The measures in the event of non-compliance with the Code of Conduct envisaged by the legal framework governing the Transparency Register are the suspension or removal from the register. Being the registration voluntary, one may wonder how much deterrence these sanctions may produce on the EU stakeholders (!).
What appears more promising instead is a reputational mechanism that the Commission attaches to the registration. While the Commission does not subject the right of an organization to table contributions to public consultations to the registration, it foresees to lists the contributions from unregistered contributors as individual contributions, separately from those from registered contributors who agree to comply with these transparency requirements.
Conclusions
While the Commission hopes that the extended consultation period and the new alert service will increase the participation in its consultations, it remains to be seen whether this procedural change on the one hand and the technical innovation on the other will be enough to achieve the goal.
What is sure is that those stakeholders who are already well represented in Europe and are accustomed to « have their say » during the open consultations will greatly benefit from the time extension. Too often stakeholders complain about facing severe difficulties in abiding by the tight deadlines (sometimes shorter than 8 weeks) established by the Commission. Instead, for the average citizen trying to follow what is going in Europe, this change will be irrelevant.
As previously discussed here, there exist inherent flaws in the actual consultation system that should urgently be addressed. A couple of quick fixes are likely to fall short of the declared objective to better engage citizens in the EU policymaking.
In the meantime, on the other side of the Atlantic, Obama’s Regulatory Tsar Cass Sunstein addresses the challenge of improving public participation by calling on agencies to systematically accompany their proposals with executive summaries. This is part of a broader call for the use of plain language in government communication a core part of open government.
My experience suggests that the EU institutions are progressively abandoning confusing, technical, and acronym-filled language and favor the use of plain language in most of their policy documents. A multi-linguistic Europe might sometimes carry with it some advantages.
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