No. 13: January-June 2015


Firat Cengiz


EU Multi-Level Governance

Academic Foresights

How do you analyze the present situation of the EU multi-level governance?


Network governance is not unique to the European Union. Twenty-first century global economic governance has given body to a plethora of networks, since economic policies in one part of the world translate into unavoidable externalities in other parts, which requires constant coordination (Slaughter, 2005). Networks, as flexible and fluid organisations, prove to be more efficient platforms for such coordination than state bureaucracies. Needless to say, thanks to same flexibility networks also give plenty of room for policy implantation through coalition building and soft power. European Union, as a so-called ‘regulatory state’ (Majone, 1996) that aims to achieve market integration in currently 28 Member States, has provided a particularly hospitable platform for networks. Union’s governance is replete with networks in the form of comitology committees, the European competition network that brings together Union and national officials and similar networks in telecommunications and energy regulation. These networks are also surrounded with epistemic communities (Haas, 1992) civil society and lobbying organisations that might be given temporary access to networks depending on the expertise and other resources they can provide.


Law and political science struggle with democratic qualities of networks. From the perspective of liberal and republican democracy models, networks appear highly problematic: they are barely, if at all, affected by electoral and other choices of citizens as their members enjoy only a very loose principal-agent relationship with elected majoritarian institutions. Neither do networks have a demos: all they have is policy clienteles with at times opposing interests and unequal power and resources (e.g. consumers v. businesses, employers v. employees). This also opens doors for rent-seeking and agency capture. The democratic misgivings of network governance are even more severe in the Union: combined with the general democratic deficit of the Union (Hix 2008) – that is exacerbated by the 2008 financial crisis – extensive network governance results in policies too far stretched away from expressed citizen choices.


However, if designed correctly, networks could potentially function as excellent deliberative platforms, as they lack the paternalism and procedural straightjackets of bureaucratic institutions (Dryzek, 2010). Nevertheless, in order to achieve this potential they need to go through a fundamental makeover: most fundamentally, they need to loose their technocratic nature and extend membership to citizen groups.


In your opinion, how will the situation likely evolve over the next five years?


Expert inaccessible network discourses jeopardise the prospects for deliberative governance through networks. European Union’s multi-level networks increasingly rely on expert economics discourses to measure policy effectiveness particularly in the light of the Union’s Lisbon and Europe 2020 Agendas that determine competitiveness and efficiency as the key objectives for Union’s governance. As argued by Foucault, all expert discourses, particularly that of economics is exclusionary. This is because economics discourse deals with not only what is ‘sayable’ but also what is ‘seeable’: economy is not only thought or perceived but it can be seen in models, equations and statistics (Walter, 2008, p.542). Also, one’s understanding of the economy is very much determined by the assumptions of the dominant economics discourse of the time: one ‘sees’ economy in the light of what economics ‘says’. However, non-experts have limited capacity to be an active part of the debate, as one cannot question what economics ‘says’ without being fluent in its language and methodology. As a result, economics discourse tends to be dominant vis-à-vis other expert discourses. Similarly, when faced with a choice between ‘reason’ and ‘equality’ economics sides with reason: it dismisses ‘irrational’ discourses that cannot be quantified and represented in models, such as emotional and personal citizen experiences (Amariglio, 1988, p.604). With this, the expert economics discourse jeopardises the deliberative qualities of networks: those experiences are not available through another source; thus, they constitute the real added value of citizen participation.


Predicting the future (irrespective of how far and how near it is) is a dangerous task. Nevertheless, it is difficult to argue that any substantial change in the status quo will appear in the near future. To the surprise of students of European governance, the crisis and experiences involving its management resulted in stronger embeddedness of neoliberalism and expert economics discourses in Union’s institutional framework (Schmidt and Thatcher, 2014). Particularly, technical Union policies, such as consumer and competition policies as well as regulation of network industries remain almost entirely unaffected by the wave of questioning of neoliberalism in the public sphere that the crisis seem to have caused. This is primarily because expert multi-level networks govern these policy areas in isolation from the public sphere and political institutions, which makes the penetration of general public discourse into these areas extremely difficult.


If anything, neoliberal economic ideals and neo-classical economics expertise have become more predominant in these fields: for instance, the Union competition policy has gone through a substantial reform process that transformed all Union competition rules including those against anticompetitive agreements (Art.101 Treaty on the Functioning of the European Union (TFEU)), abuse of dominance (Art.102 TFEU) and anticompetitive mergers (EU Merger Regulation No.139/2004). The reforms have steered Union competition rules towards a neo-liberal paradigm with the sole policy goal of protecting ‘consumer welfare’. As a final step of reforms, a Directive on consumer damages actions (to be published in the Official Journal) has recently been signed by the Council and the European Parliament. Partially inspired by the American antitrust regime, the Directive gives more responsibility to consumers in the enforcement of competition rules. Nevertheless, the Directive does not harmonise national procedural standards with regard to damages actions nor does it designate a public or private institution responsible for organising damages claims for citizens who are unlikely to engage in costly litigation due to their diffused interests and low financial means. In the shadow of these limitations, rather than citizens, the Directive is more likely to benefit competitors that bring damages claims against each other and transnational legal firms that will organise mass class actions. Nevertheless, this key ‘access to justice’ aspect of the Directive has barely been addressed in the reform discourse.


What are the structural long-term perspectives?


Union’s problematic relationship with citizens is long known. Also it is not surprising that the crisis has exacerbated the problems in this relationship: citizens increasingly see Europe as the reason for problems they are facing. Also the way the crisis has been managed by the European elites created tensions between the peoples of debtor and creditor states that further complicated the already questionable European identity (Habermas, 2011). Arguably, the implications of the crisis on the relationship with citizens is more severe in the Union than other polities, since the Union has built its legitimacy relationship with citizens on the promise of wealth and policy success rather than citizen participation and loyalty. Thus, the relationship becomes particularly vulnerable to a legitimacy crisis when the promised outcomes cannot be delivered.


A legitimacy deficit such as that of Union’s is perceived as particularly problematic if there is a risk for its transforming into ‘deligitimation’ (i.e. withdrawal of society’s consent) in the long run (Beetham, 1991). Ironically, however, citizens are very much unlikely to be able to withdraw their consent from the European Union for the reasons that render the Union-citizen relationship problematic: there is no political platform or mechanism through which citizens can voice their withdrawal of consent. It is very much doubtful whether such consent was obtained in the first place. This is particularly so when it comes to network governance: even though networks play key roles in the making and enforcement of policies substantially impacting on citizens’ lives, they do not have legal identity or physical presence which would give them a face. Citizens are unlikely to question the legitimacy of networks and the policies they produce, as they are not informed that they exist in the first place.


As stated above, the Union’s multi-level network governance needs to go through an extensive makeover in order to ameliorate its legitimacy problems: first and foremost, technical exclusionary discourses need to be replaced with accessible, citizen friendly ones. Multi-level policy networks need to be matched with multi-level deliberative networks organised in the form of ‘ladders of participation’ (Arnstein, 1969) starting from bottom (the local level) and ending at the top (Union level). These networks should feed citizen experiences and preferences to the making of policies. This would not only improve the democratic qualities of Union governance by ‘anchoring’ citizens to Union governance but this would also increase the effectiveness and responsiveness of policy outcomes: abstract economics models can only second guess citizen experiences and preferences, as these cannot always be foreseen and quantified. Thus, they are not available through another source and they constitute the real contribution of citizen participation to effectiveness in addition to democratic qualities of policymaking.


References:


Amariglio, J.L. (1988), ‘The body, economics discourse, and power: an economist’s introduction to Foucault’, History of Political Economy, 20(4): 583-613.

Arnstein, S.R. (1996), ‘A Ladder of Citizen Participation’, 35 Journal of the American Planning Association 35(4): 216-224.

Beetham, D. (1991), The Legitimation of Power, (Palgrave).

Dryzek, J.S. (2010), Foundations and Frontiers of Deliberative Governance, (OUP).

Haas, P.M. (1992), ‘Introduction: epistemic communities and international policy coordination’, International Organization, 46(1): 1-35.

Habermas, J. (2011), The Crisis of the European Union, (Polity).

Majone, G. (1996), Regulating Europe, (Routledge).

Schmidt, V. and Thatcher, M. (2014), ‘Why are Neoliberal Ideas so Resilient in Europe’s Political Economy?’, Critical Policy Studies, 8(3): 340-47.

Slaughter, A.M. (2005), A New World Order, (PUP).

Walter, R. (2008), ‘Foucault and Radical Deliberative Democracy’, Australian Journal of Political Science, 43(3): 531-546.                              

  1. -    -     -     -


Firat Cengiz is senior lecturer in law and Marie Curie Fellow at the University of Liverpool, School of Law and Social Justice. Firat’s research interests include multi-level network governance, competition policy, European Union conditionality and gender equality. She is the principal investigator of the project ‘Anchoring the Consumer: Legitimacy and Accountability in Competition Law’ (funded by the European Union FP7 – 334322), author of Antitrust Federalism in the EU and the US (Routledge, 2013) and the co-editor of Turkey and the European Union – Facing New Challenges and Opportunities (Routledge, 2014 with Lars Hoffmann).


© Copyright: click here                                        Join our discussion group on LinkedIn