Philippe C. Schmitter European University Institute October 2000 [Revised Version]

Transcription

1 PARTICIPATORY GOVERNANCE IN THE CONTEXT OF ACHIEVING SUSTAINABLE AND INNOVATIVE POLICIES IN A MULTI-LEVEL CONTEXT (published with minor modifications in: Grote, Jürgen R. and Bernard Gbikpi Participatory Governance. Political and Societal Implications. Opladen: Leske and Budrich.) Philippe C. Schmitter European University Institute October 2000 [Revised Version] The aim of this project is to examine new forms of governance for promoting sustainability and innovation and to place this discussion in the context of a multi-level polity, i.e. the European Union. Its principal hypothesis is that one particular aspect of these arrangements namely, the participation of individuals and organizations in them can not only improve both sustainability and innovation, but also make them compatible with each other. However, because these three notions participatory governance, innovation and sustainability - are so ill-defined in the current fashionable discourse, it will be necessary first to transform them into analytical (and, perhaps, eventually measurable) categories, before we can evaluate whether their relationship is positive and in what policy contexts. Let us begin by identifying the common elements, as well as the different assumptions, embedded in the contemporary debate surrounding these concepts. To do this adequately, we shall also have to search for potentially relevant topics and questions that have not been addressed in this literature and, yet, may prove crucial to understanding how participatory governance, innovation, and sustainability fit together and relate to established notions of democracy. * * * Let me briefly introduce the three principal suspects. 1. Sustainability is not only an ill-defined notion, but it tends to be invoked normatively, i.e. to justify or denounce policies one would prefer to enjoy or not have to suffer. Whatever it means, it is socially constructed and, hence, 1

2 a moving target across time and across countries and regions. Generically, it connotes a desirable state of affairs that not only persists in time, but does so without undermining the resource base that it requires. One cannot sensibly refer to the sustainability of poverty or social exclusion without distorting its meaning in everyday discourse, but one can aspire to promote the sustainability of economic growth or greater social equality. It seems to linked to the idea that policies can generate positive sum benefits without harming any one affected by them (Pareto-optimal) and, at the same time, do so without passing on hidden or delayed costs to future generations. NB that it made be necessary to break down the notion of sustainability into component parts for the purpose of analyzing specific problem-solving sequences. Hence, sustained economic growth and sustained social equality are not only not the same thing as sustained ecological balance or sustained political feasibility, but they are also very likely to be in contradiction with each other. Given the compartmentalization that is especially characteristic of multilayered polities such as the EU, such conflicts are more likely to be ignored during the decision-making phase than in more unitary national polities and only emerge once the policies have been implemented and have generated negative externalities for those not initially present. On a more optimistic note, there may be positive externalities over the long run between economic, social, ecological and political sustainabilities such that a virtuous instead of a vicious cycle sets in at the supra-national level. 2. Innovation is certainly a more omnipresent condition, but not always so clearly tied to mutually desirable outcomes. Its broadest meaning is simply change that is deliberately induced by some agent in order to bring about a different state of affairs presumably, one that will benefit the innovator but not uncommonly at the expense of others. Moreover, innovation almost always contains an element of uncertainty in its implementation and that means it can produce unintended consequences even for those who promote it. Societies differ considerably in the extent to which they encourage and reward innovation especially when its source lies outside their boundaries. What may seem an 2

3 irresistible improvement to some may be regarded as an intolerable intrusion or an unjustifiable exploitation by others. The current era of globalization (not to mention, the more proximate process of Europeanization ) manifestly increases the probability that many innovations will be of foreign origin and, hence, perceived as intrinsically intrusive or exploitative. Historically, sustainability and innovation were usually treated as antithetic. Only by carefully controlling the introduction of new physical or social technologies not to mention, new configurations of authority or influence could one imagine sustaining the established order. In today s world, the two are regarded as potentially more compatible, but the suspicion persists that too much attention to sustainability dampens innovation and too much innovation threatens to the delicate balance of material and social resources that is necessary if a society is to reproduce itself. My core assumption is that the resolution of this tension depends on politics. More specifically, we believe that certain forms of decision-making that encourage higher levels of participation by individual and organizations in the collective allocation of resources will do a better job of making sustainability and innovation compatible with each other. This, therefore, justifies our concern with participatory governance, but it does not define what is meant by this notion. 3. Participatory Governance sounds like a good thing, but it has only recently made its appearance on the political scene and its definition is anything but agreed upon. Let us begin with the latter term: Governance is a method/mechanism for dealing with a broad range of problems/conflicts in which actors regularly arrive at mutually satisfactory and binding decisions by negotiating with each other and cooperating in the implementation of these decisions. Its core rests on horizontal forms of interaction between actors who have conflicting objectives, but who are sufficiently independent of each other so that neither can impose a solution on the other and yet sufficiently interdependent so 3

4 that both would lose if no solution were found.1 As we shall see, in both modern and modernizing societies the actors involved in governance are usually not individual persons, as such, but spokespersons for non-profit, semi-public and, at least, semi-voluntary organizations. It is the embeddedness of these organizations into something approximating a civil society that is crucial for the success of governance. Therefore, they share a common set of norms and experiences that antedate their participation in any specific governance arrangement. Under these conditions, they do not have to be equal in their size, wealth or capability, but they have to be able to hurt or help each other mutually. Also essential is the notion of regularity. The participating organizations interact not just once to solve a single common problem, but repeatedly and predictably over a period of time so that they learn more about each other=s preferences, exchange favors, experience successive compromises, widen the range of their mutual concerns and develop a commitment to the process of governance itself. Here, the code words tend to be trust and mutual accommodation specifically, trust and mutual accommodation between organizations that effectively represent more-or-less permanent social, cultural, economic or ideological divisions within the society. Note also that governance is not just about making decisions via negotiation, but also about implementing policies. Indeed, the longer and more extensively it is practiced, the more the participating organizations develop an on-going interest in this implementation 1 One frequently encounters in the literature that focuses on national or sub-national Αgovernance the concept of network being used to refer to these stable patterns of horizontal interaction between mutually respecting actors. As long as one keeps in mind that with modern means of communication the 4

5 process since they come to derive a good deal of their legitimacy (and material resources) from the administration of mutually rewarding programs. To summarize, governance arrangements are based on a common and distinctive set of features: 1. Horizontal interaction among presumptive equal participants without distinction between their public or private status. 2. Regular, iterative exchanges among a fixed set of independent but interdependent actors. 3. Guaranteed (but possibly selective) access, preferably as early as possible in the decision-making cycle. 4. Organized participants that represent categories of actors, not individuals. 5. Capacity to take and to implement decisions binding on all participants and, at least potentially, binding on non-participants as well. When these standard elements are in place and, as we shall see, when two crucial political choices have been made with regard to who has the right to participate and what their decision-making rules will be, arrangements for governance are supposed to contribute in three distinctive ways to improving the quality of decision-making: (1) they enhance the opportunities for mutual accomodation through exchanges of reasoned arguments; (2) they serve to generate higher levels of trust among those who participate and this, in turn, (3) allows them to introduce a longer time-horizon into their calculations since sacrifices and losses in the present can be more reliably recuperated in future decisions. All of these are, putatively, of major important in making innovation and sustainability compatible with each other. participants in a network may not even know each other -- and certainly never have met face-to-face -- then 5

6 This mode of problem-solving/conflict-resolving can be distinguished from three, more common, ways of accomplishing much the same purposes: (1) mobilizing the collective identity and normative consensus of a community; (2) calling upon the government, backed by the hierarchical authority of the state, to impose a solution; or (3) relying upon firms to allocate resources through market competition. In the first instance, the effectiveness of the mechanism depends on the existence of a particularly intensive set of interpersonal (or, better, interfamilial) interactions that are usually spatially concentrated and, hence, limited to a culturally homogenous locality. In the second instance, the potential scale is presumably larger since it is the legitimacy of public officials and the capacity of conflicting groups to gain fair access to them that ensures a successful allocation of scarce resources. In the third instance, there is virtually no spatial limit to the application of the mechanism once those involved accept the initial definition of property rights and continue to perceive that distribution of scarce goods by ability to pay is not discriminatory. If these three mechanisms worked well and worked well together there would be no need for governance. Governance only emerges as an attractive alternative when there have been manifest failures in community, state or market mechanisms. It is always a second-best solution and is never the initially most preferred way of dealing with problems or resolving conflicts. Moreover, it tends it seems appropriate to extend it to cover transnational and even global arrangements. 6

7 to emerge by experimentation not by design and is, therefore, virtually never accompanied by the same hegemonic ideological apparatus as the other three. Taking a Historical Excursus With the growth in the scale and variety of exchanges due to industrialization and urbanization, the failure of communitarian measures became increasingly manifest by the end of the 19 th Century, although they persisted in allocating resources and providing identity at the local and regional levels. In the aftermath of World War Two, thanks to the theoretical contribution of John Maynard Keynes, policy makers tended to respond to market failures with active state intervention at the macro-economic level. These public measures were intended to discourage the formation of monopolies and to correct for negative externalities. They also tried to compensate for incomplete information, deficient infrastructure and insufficient aggregate demand. The notion of state failure began to appear in the 1970s, when the consensus underpinning interventionist policies waned. The action of the state as employer, producer or subsidizer came to be perceived as part of if not as the cause of -- declining economic performance. State agencies were seen as manifestly unable to cope efficiently with the increasing load of complex and conflicting demands coming from society. Moreover, this demand overload was interpreted as one of the major factors producing persistent inflation which, in turn, undermined future opportunities of economic recovery. 7

8 The theme of governance emerged in this transitional context, not just in the performance of developed and developing economies, but also in their theoretical self-understanding. It seems to have been rooted in two insights: (1) A re-definition or, better, a re-dimensioning of the role of the state. Market forces should take over some functions and produce some goods and services previously seen as state prerogatives; therefore, the amount of government spending and activity should be reduced. The state should no longer be involved in the details of planning, subsidizing or redistributing resources to firms, families or individuals. Instead, it should concentrate on ensuring that market mechanisms function properly and efficiently. To that effect, it issues regulations, imposes standards, enforces legal norms, and enters into partnership arrangements with the firms in order to pool resources when private funds or strictly voluntary action would be insufficient. The state should also promote behaviors in the public and the private sectors that comply with market principles. As an important part of this redirecting of the use of public authority (and, thereby, strengthening its capacity and legitimacy), state agencies may choose to off-load some of their previous responsibilities upon not-for-profit organizations of civil society organizations. It is in this area, as well as that of publicprivate partnerships and co-managed enterprises that some of the most innovative experiments in governance have emerged. (2) A shared responsibility for resource allocation and conflict resolution. Contrary to the previous (liberal) paradigm, public and private forms of authority are not mutually exclusive. Governance is an attempt to produce flexible combinations of both. This is visible in the new forms of public-private partnerships emerging in the policy areas where market forces have recently been expanded or introduced, such as education and health. These arrangements cannot be reduced either to coercion or to interest-based economic rationality. They depend crucially on novel forms of social cooperation, voluntary contribution and collective effort that can only be found within a properly constituted civil society. This has also been referred to as the Third Sector (or, in Italian, as the mercato sociale). In it, voluntary exchanges not only satisfy the demand for goods and services but they also are designed to improve sociability, create trust, and generate new social capital that can be invested in other cooperative ventures. Even when the goods and services produced are market-allocated and privately appropriated, they also constitute semi-public goods that should benefit the community at large. 8

9 The efficacy of governance as a mechanism depends on its symbiotic relation to both state and market. It can never operate alone. Just as markets need the legitimate hierarchical commands of the state if only to police their contracts and just as state agencies need the resources generated by the market if only to provide their fiscal receipts, so governance arrangements have to be protected by a broader system of law and legitimate authority and financed by individuals and firms that derive their livelihood from efficient market transactions. Governance can supplement and, therefore, improve the performance of public agencies and private firms by lowering their decisional burdens and correcting for their unacceptable distributions, but it can never replace or even displace them. It does not seem exaggerated, therefore, to classify most governance arrangements as second-best solutions. Communities, states and markets are much more visible and much better justified ways of dealing with social conflicts and economic allocations. Preference for one or the other has changed over time and across issues following what Albert Hirschman has identified as a cycle of shifting involvements between public and private goods. i Actors, however, are familiar with both and will naturally gravitate toward one of them when they are in trouble. Governance arrangements tend to be much less obvious and much more specific in nature. To form one successfully requires a good deal of local knowledge about those affected and, not infrequently, the presence of an outside agent to pay for initial costs and to provide reassurance even coercive backing in order to overcome the rational tendency of individuals not to contribute to collective action. ii As we shall see, this almost always involves 9

10 some favorable treatment from public authorities as well as obligatory or semivoluntary contributions from private individuals or firms. What is novel about the present epoch is that, increasingly, this external support is coming from foreign and not strictly national sources, especially from transnational organizations of an intergovernmental or non-governmental nature. * * * Good governance is quite simply the outcome or net effect of these mechanisms when they produce results that individuals in a society believe are superior to those that they enjoyed or suffered in their absence. No more! Governance is not a good in itself no more than the community method of enforcing norms, the state method of organizing political space or the market method of structuring economic transactions. Resorting to its mechanisms may not always be a good idea. It depends on the preferences of a given country s producers-consumers-citizens-rulers-workers-employers-men-women-polluterspollution-sufferers, and so forth. What is more, these frequently conflicting categories may not always agree on whether the net effect is better. And, a specific governance arrangement that produces highly desirable effects in one society may fail completely or generate perverse effects in another. As we shall now see, a great deal depends on the political choices embedded in such arrangements. Inserting Participation into Governance By now, the notion of participation within this governance process should have become clear. It consists of what was referred to above as 10

11 horizontal interaction, i.e. the regular and guaranteed presence when making binding decisions of representatives of those collectivities that will be affected by the policy adopted. Most of these are to be found in what has been termed civil society, although that should not be interpreted as excluding the participation of local government authorities or of other officialities. Incidentally, the literature on this subject has a difficult time evaluating (and advocating) an apposite role for party politicians. In the strong form of participation, these representatives of citizens and stakeholders will also be accorded a role in the implementation, as well as the taking of decisions. Another crucial matter of controversy concerns how affected actors are to be defined. In the broadest sense, they can all be called holders of some relevant quality or resource that makes their participation desirable or even indispensable. At this point, it makes sense for us also to break down the notion of participatory governance into a manageable number of modes or types and, then, to explore which mode/type is most appropriate to producing sustainability and innovation in a specific policy arena. In a recent book on The Transformation of Governance in the European Union, Beate Kohler-Koch and Rainer Eisling suggest four such modes: Statist, Pluralist, Corporatist and Network. Their working hypothesis is that the EU is evolving toward the fourth and more novel mode and this is more-or-less substantiated in case studies of environmental policy (Andrea Lenschow), genetic engineering (Herbert Gottweis), social policy (Gerda Falkner), transport policy (Mark Aspinall) and professional services (Jill Lovecy). Participants in the project should be familiar 11

12 with this work, especially its introductory and concluding chapters, and we should discuss the potential relevance of their four ideal-typical modes. In my judgement, these modes are not sufficiently differentiated, well-defined and, in any case, are only descriptive. One of them, statism, is not a mode of governance at all according in my understanding, but just good old-fashioned government. I suggest another way of breaking up the subject matter and of introducing two more explicitly political elements into the design of governance arrangements. First comes the issue of who is entitled (and, therefore, empowered) to participate and, then, comes the status of the participants in the subsequent decision-making process. Put more simply, if one is trying to design an arrangement for participatory governance, one has to provide convincing answers to two questions: (1) Who should participate? And, (2) How should they participate? Neither, as we shall see, is that simple especially since the rules that are most likely to facilitate the mechanics of governance may not be the ones that are the most likely to conform to democratic principles. Let us first look at the issue of selecting the apposite criterion for allowing/inviting participation. In conformity with the current jargon, these persons/organizations can be labeled as holders i. e. they possess some quality or resource that entitles them to participate. But what is that quality or resource? 1. Rights that are attached to membership in a national political community and that presumably entitle all those having them to participate equally in all decisions made by that community? In this case, the holders are usually called citizens. 12

13 2. Spatial location that involves all those living on a regular basis within a demarcated territory and presumably affected in some common fashion by policies made by whatever authority? In this case, the holders are residents (and this means both citizens and denizens with an indefinite status for illegal immigrants). 3. Knowledge that is uniquely possessed by persons or organizations with certain forms of information or skills in resolving problems and that is presumably needed if the policies taken are going to be technically effective? In this case, the holders are usually called experts or, when lodged in independent and authoritative regulatory agencies, guardians. 4. Share that certifies that the bearer has a property right to some part of the assets that are going to be affected by any change in the allocation of resources or imposition of regulations? In this case, the holders are owners. 5. Stake that involves all those regardless of where they live, what their nationality is or what their level of information/skills may be that could be materially or even spiritually affected by a given measure (and not just now, but in the indefinite future)? In this case, we lack a common label, but let us call these holders: beneficiaries/victims. 6. Interest that means any person or organization that demonstrates sufficient awareness about the issue being decided and makes known the desire to participate in the name of some constituency? These holders could be called: (voluntary) spokespersons. 7. Status that would include all persons (but usually organizations) that have been recognized by the authorities ultimately responsible for decision and formally accorded the right to represent a designated social, economic or political category? These holders are usually called (corporate) representatives. By my calculation, all of these holders have some legitimate claim to participating in governance arrangements. Since no arrangement could possibly include all of these rights-holders, space-holders, knowledge-holders, shareholders, stake-holders, interest-holders and status-holders, some are going to have to be privileged over others. The question of political design involves 13

14 choosing the apposite criterion according to the substance of the problem that has to be solved or the conflict that has to be resolved. Democratic theory privileges the criterion of citizenship ( rights-holders ) and, therefore, any deviation from it will generally require some explicit justification. Fortunately for the designers of governance arrangements, the variety of potential statuses for participants is more limited: 1. Consultation: participants have the right to express their opinions and try to convince others of their bien-fondées, but decisions are imposed by some group of (pre-)designated notables or even by a single authoritative leader. 2. Vote: same as above except that participants also vote (with equal shares) on the eventual decision, which is taken by simple majority. 3. Negotiation: participants are consulted, can vote and decisions are taken according to some qualified procedure either based on weighed intensities of preference or some formula involving concurrent majorities. 4. Consensus: participants are consulted, negotiate and continue to do so until some decision is taken that all agree at least not to veto, i.e. voting rarely actually occurs (and is never decisive). Opt-outs or abstentions are permitted, and may even be encouraged. 5. Unanimity: participants are consulted, negotiate and no decision is taken without the active support of all members, i.e. any member can veto or terminate the process of governance. Orthodox liberal democratic theory tends to privilege method #2, but realexisting and apparently legitimate national democracies make extensive use of all of them so that none should be a priori excluded. Method number #1, consultation, is characteristic of so-called guardian institutions that are necessary for the functioning of democracies, but cannot be themselves constituted democratically or they would be incapable of performing their (allegedly) indispensable tasks. Hence, they would normally be excluded from the design of 14

15 participatory governance vide Central Banks or General Staffs of the military. Number #5 is characteristic of situations of multiple sovereignty, i.e. of many intergovernmental arrangements, and would also presumably be excluded on the grounds that participants do not have that status and unanimity would give excessive power to the most reluctant or least engaged actor. The most effective choice for governance arrangements, therefore, seems to be negotiation that aims at reaching a consensus based on exchanges of differences in the intensity of preferences among participants, efforts at convincing each other to change those preferences and some process of arriving at a compromise via mutual concessions. Inserting Some Generic Design Principles In the course of our discussions during the September meeting in Florence, a number of ideas surfaced in the different presentations concerning possible generic principles that might be used to guide the design of European Governance Arrangements (EGAs). As I argued above, no such arrangement can avoid the issues of who should participate and how should they reach decisions if it wishes to obtain legitimacy for those decisions and, hence, to ensure the efficacy and efficiency of its operations. To these choices about composition and rules, I would add a third design dimension namely, how an EGA gets established to deal with a particular task. This question of why are these actors making decisions on this issue? can be resolved through an explicit delegation of authority from a legitimate pre-existing institution, i.e. a charter. 15

16 This notion of a charter rests on the prior assumption that a particular issue or policy arena is somehow appropriate for a governance arrangement, ergo it is not better handled by good, old-fashioned market competition or state coercion. Some particular composition of actors, each acting autonomously, is thought to be capable of making decisions according to rules, voluntarily accepted or consensually chosen, that will resolve the conflicts and provide the resources necessary for dealing with the issue or policy arena designated by its charter. Moreover, these decisions once implemented will be accepted as legitimate by those who did not participate and who have suffered or enjoyed their consequences. And, if this were not enough, a successful EGA would also have to demonstrate that its capacity to resolve conflicts and provide resources is superior to anything that a national, sub-national or global arrangement could have done. Looked at from this perspective, there may not be that many arenas that should acquire their EGA! Someone who has given considerable thought to this question is Eleanor Ostrom.2 Through her empirical research on self-organized, common-pool resource regimes, she has come up with a list of attributes that increase the likelihood that such governance arrangements will be formed and will perform better than either markets or states.3 Let us look at this list and comment on the validity of its assumptions for the pre-design of EGAs:4 2 Governing the Commons. The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990). An abbreviated version is Reformulating the Commons, Swiss Political Science Review, Vol. 6, No. 1 (2000), pp It is from this latter source that I have derived my comments. 3 Not all EGAs, existing or eventual, fit her generic specifications. Only some of them deal with resources that are subtractable, i.e. whose consumption precludes its use/enjoyment by others. Many, but not all, involve goods from which it is difficult to exclude non-contributors. And virtually none of them 16

17 I. Attributes of the Resource (i.e. of the issue or policy arena): 1. Feasible Improvement: Resource conditions are not at a point of deterioration such that it is useless to organize or so underutilized that little advantage results from organizing. It would not be appropriate to create an EGA to accomplish something no one cared about or that had degenerated so much under national or sub-national management that a Europe-wide approach would be doomed from the start. 2. Indicators: Reliable and valid indicators of the condition of the resource system are frequently available at relatively low cost. Here, the issue involves Europeanizing the flow of quantitative and qualitative information by eliminating national peculiarities and thereby encouraging the emergence of Europe-wide standards of best practice. 3. Predictability: The flow of resource units is relatively predictable. For EGAs the major problem with this is the likelihood that predictability may differ from one member state to another or that, even where the indicators have been Europeanized, they may be subjected to local interpretation. 4. Spatial Event: The resource system is sufficiently small, given the transport and communication technology in use, that appropriators can develop accurate knowledge of external are, strictly speaking, self-organizing since all of them involve some mandate from EU institutions that defines the scope of their activity and imposes political and legal limits on their decisions. 17

18 boundaries, and internal micro-environments. Taken at face value, this attribute would literally preclude a European level of governance. Needless to say, until the enlargement process is terminated, no one can know what the external boundaries of any EGA will be. The integration process (and technological developments) may have considerably decreased transaction costs (and will do so even more in the future), but they will always be higher than inside each member state. What this suggests is that the implementation of EGA decisions should be administered and articulated in such a fashion as to encourage adaptation to national and sub-national contexts while running the risk of systematic cheating if monitoring mechanisms are inadequate. This also suggests the wisdom of tolerating, even encouraging, flexibility in the establishment of EGAs such that they may be composed of different member-states. II. Attributes of the Appropriators: (i.e.of the composition of participants) 1. Salience: Appropriators are dependent on the resource system for a major portion of their livelihood. Participants should be stake-holders and knowledge-holders with both a significant interest in the issue and the capacity to deliver the compliance 4 My comments are in italics. 18

19 of their followers-employees-clients to decisions made by the EGA. 2. Common Understanding: Appropriators have a shared image of how the resource system operates and how their actions affect each other and the resource system. Obviously, given differences in language and historical practice, Europeans are more likely to be deficient in this attribute than nationals even though convergence across member-states in both performance and intellectual understanding has been impressive and growing. Also, one could question whether this should be taken as a pre-requisite for, or as a product of EGA activity. 3. Low Discount Rate: Appropriators use a sufficiently low discount rate in relation to future benefits to be achieved from the resource. Again, the obvious problem is that given the diversity in national political systems and levels of economic competitiveness, the time horizon for reaping the benefits (and paying the costs) of EGAs will vary systematically and not just randomly. 4. Trust and Reciprocity: Appropriators trust one another to keep promises and relate to one another with reciprocity. In this attribute, what is peculiar is not the obvious historically rooted suspicions between member-states and their substantial 19

20 disparities in size and power, but the way in which the European integration process has functioned to provide reassurance against unkept promises, to monitor the performance of participants, and to distribute compensations through packagedealing over time even between members with initially very different capabilities and levels of development. What on the surface would seem an unsurmountable barrier can only be overcome by embedding EGAs within the broader context of ongoing EU institutions. 5. Autonomy: Appropriators are able to determine access and harvesting rules without external authorities countermanding them. This is precisely what will not and should not be the case for EGAs. They will only function legitimately if chartered in their tasks and composition by the EU and if their harvesting rules are subject to its oversight. One must never forget that their foundation is treaty-based between consenting memberstates. One cannot presume implicit consent, either by these states or individual citizens as may be the case in wellestablished national polities. 6. Prior organizational experience and local leadership: Appropriators have learned at least minimal skills of organization and leadership through participation in other local associations or learning about ways that neighboring groups 20

21 have organized. There should be no generic problem here. Even recent entrants in the integration process seem to have very quickly acquired the requisite skills and I see no reason why this will not be the case for prospective Eastern and Southern candidates. Again, however, one can question whether this should be treated as a desirable pre-requisite for the founding of an EGA or a likely product of its subsequent functioning. Seen from the perspective of this lengthy list of allegedly favorable attributes, there does still seem to be some promising policy spaces that EGAs could occupy and in which there is reason to expect that they will perform better than their national equivalents, but they may be much more restricted than their enthusiasts might believe. Now, let us presume that it has been decided to create an EGA. What design principles should be applied to draft its charter, choose the composition of its participants and set its decision-making rules?5 I. GENERIC PRINCIPLES CONCERNING THE CHARTERING OF EGAs: 1. THE PRINCIPLE OF MANDATED AUTHORITY : No EGA should be established that does not have a clear and circumscribed mandate that is delegated to it by an appropriate EU institution. Any EU institution should be entitled to recommend the initial formation and design of an EGA, i.e. 21

22 its charter, its composition and its rules, but (following the provisions of the Treaty of Rome) only those approved by the Commission should be actually established, whether or not they are subsequently staffed, funded, housed and/or supervised by the Commission. 2. THE SUNSET PRINCIPLE: No EGA should be chartered for an indefinite period, irrespective of its performance. While it is important that participants in all EGAs should expect to interact with each other on a regular and iterative basis (and it is important that the number and identity of participants be kept as constant as possible), each EGA should have a pre-established date at which it should expire. Of course, if the EU institution that delegated its existence explicitly agrees, its charter can be renewed and extended, but again only for a definite period. 3. THE PRINCIPLE OF FUNCTIONAL SEPARABILITY : No EGA should be chartered to accomplish a task that is not sufficiently differentiated from tasks already being accomplished by other EGAs and that cannot be feasibly accomplished through its own deliberation and decision. 4. THE PRINCIPLE OF SUPPLEMENTARITY : No EGA should be chartered (or allowed to shift its tasks) in such a way as to duplicate, displace or even threaten the compétences of existing EU institutions. 5 Ostrom defines the notion of design principles in the following manner: an element or condition that helps to account for the success of these institutions in sustaining the [common pool] resource and 22

23 European governance arrangements are not substitutes for European government, but should be designed to supplement and, hence, to improve the performance of the Commission, the Council and the Parliament 5. THE PRINCIPLE OF REQUISITE VARIETY : Each EGA should be free within the limits set by its charter to establish the internal procedures that its participants deem appropriate for accomplishing the task assigned to it. Given the diversity inherent in these functionally differentiated tasks, it is to be expected that EGAs will adopt a wide variety of distinctive formats for defining their work program, their criteria for participation and their rules of decision-making while (hopefully) conforming to similar principles of general design. 6. THE HIGH RIM OR ANTI-SPILL-OVER PRINCIPLE: No EGA should be allowed by its mandating institution to exceed the tasks originally delegated to it. If, as often happens in the course of deliberations, an EGA concludes that it cannot fulfill its original mandate without taking on new tasks, it should be required to obtain a specific change in its mandate in order to do so.6 gaining the compliance of generation after generation of appropriators to the rules they use. (p. 40) 6 NB that this does not mean that log-rolling and package-dealing should not be an integral part of the integration process, just that EGAs are not the appropriate sites for such activity. Decisions involving the negotiation of tradeoffs across circumscribed issue areas should be the purview of other EU 23

24 II. GENERIC PRINCIPLES CONCERNING THE COMPOSITION OF EGAs: 7. THE MINIMUM THRESHOLD PRINCIPLE: No EGA should have more active participants than is necessary for the purpose of fulfilling its mandated task. It has the autonomous right to seek information and invite consultation from any sources that it chooses; however, for the actual process of drafting prospective policies and deciding upon them, only those persons or organizations judged capable of contributing to the governance of the designated task should participate.7 8. THE STAKE-HOLDING PRINCIPLE: No EGA should have, as active participants, persons or organizations who do not have a significant stake in the issues surrounding the task assigned to it. Knowledge-holders (experts) specializing in dealing with the task should be considered as having a stake, even if they profess not to represent the interests of any particular stakeholder.8 institutions, i.e. the Commission, the Council of Ministers, the European Council and, hopefully in the future, the European Parliament. 7 Another way of stating this point is to stress that all participants must possess some type or degree of asset specificity -- i.e. they must demonstrably have material, intellectual or political resources that are apposite to the tasks to be accomplished. 3. Needless to say, defining the stakes and those who hold them is bound to be politically contested, since the number of representatives and experts who can make that claim ( interest-holders in the language used above) is potentially unlimited thanks to the growing interdependence of policy domains. As an approximation, I propose that a relevant stake-holder be defined as a person or organization whose participation is necessary for the making of a (potentially) binding decision by consensus, and/or whose collaboration is necessary for the successful implementation of that decision. In practice, this is likely to be determined only by an iterative process in which those initially excluded make sufficiently known their claims to stake- and knowledge-holding so that they are subsequently included. Presumably, those initially invited to participate who turn out not to be indispensible for policy-making and 24

25 9. THE PRINCIPLE OF EUROPEAN PRIVILEGE : All things being equal, the participants in an EGA should represent Europe-wide constituencies.9 Granted that, in practice, these representatives may have to rely heavily on national and even sub-national personnel and funding and may even be dominated by national and sub-national calculations of interest, and granted that the larger the constituency in numbers, territorial scale and cultural diversity, the more difficult it may be to acquire the asset specificity that provides the basis for stake-holding, nevertheless, the distinctive characteristic of a European governance arrangement is contingent on privileging this level of aggregation in the selection of participants. 10. THE ADVERSARIAL PRINCIPLE: Participants in an EGA should be selected to represent constituencies that are known to have diverse and, especially, opposing interests. No EGA should be composed of a preponderance of representatives who are known to have a similar position or who have already formed an alliance for common purpose.10 In the case of knowledge-holders who are presumed not to have implementation will leave of their own accord although a persistent problem in EGAs is likely to be the absence of an effective mechanism for removing non-essential participants. 9 This should not be interpreted to mean EU-wide constituencies since there may be significant stake-holders and knowledge-holders in prospective member-states and even in those that have explicitly chosen not to join the EU. 10 To fulfill this principle, it may be necessary for the designers of EGAs to play a pro-active role in helping less well-endowed or more dispersed interests to get organized and sufficiently motivated to participate against their adversaries. Needless to say, this element of sponsorship intended to encourage a greater balance in adversarial relations can conflict with the subsequent principle of equality of treatment and status. It can also generate serious questions concerning the autonomy of such sponsored organizations from EU authorities. 25

26 constituencies but ideas, they should be chosen to represent whatever differing theories or paradigms may exist with regard to a particular task. III. GENERIC PRINCIPLES CONCERNING DECISION-RULES FOR EGAs: 11. THE PRINCIPLE OF PUTATIVE EQUALITY: All participants in an EGA should be considered and treated as equals, even when they represent constituencies of greatly differing size, resources, public or private status, and political clout at the national level. No EGA should have second and third class participants, even though it is necessary (see Item #7) to distinguish unambiguously between those who participate and those who are just consulted. 12. THE PRINCIPLE OF HORIZONTAL INTERACTION: Because of the presumption and practice of equality among participants, the internal deliberation and decision making processes of an EGA should avoid as much as possible such internal hierarchical devices as stable delegation of tasks, distinctions between neutral experts and committed representatives, formalized leadership structures, informal arrangements of deference, etc. and should encourage flexibility in fulfilling collective tasks, rotating arrangements for leadership and rapporteurship, extensive verbal deliberation, -- and a general atmosphere of informality and mutual respect. 26

27 13. THE CONSENSUS PRINCIPLE: Decisions in an EGA will be taken by consensus rather than by vote or by imposition.11 This implies that no decision can be taken against the expressed opposition of any participant, although internal mechanisms usually allow for actors to abstain on a given issue or to express publicly dissenting opinions without their exercising a veto. Needless to say, the primary devices for arriving at consensus are deliberation (i.e. trying to convince one s adversaries of the bien-fondee of one s position), compromise (i.e. by accepting a solution in between the expressed preferences of actors) and accommodation (i.e. by weighing the intensity of actor preferences). Regular and iterative interaction among a stable set of representatives is also important, although (see Item #2) this should be temporally bounded. 14. THE OPEN DOOR PRINCIPLE: Any participant should be able to exit from an EGA at relatively modest cost and without suffering retaliation in other domains either by other participants or EU authorities. Moreover, the ex-participant has the right to publicize this exit before a wider public (and, the threat to do so should be considered a normal aspect of procedure), but not the assurance that, by exiting, he or she can unilaterally halt the process of governance. 11 NB this principle serves to distinguish EGAs from other institutions operating at the European level. For example, parliaments, courts, central banks and independent regulatory agencies ultimately take their decisions by vote, even if they engage in extensive deliberation and seek to form a consensus 27

28 15. THE PROPORTIONALITY PRINCIPLE: Although it would be counterproductive for influences to be formally weighed (see Item #11) or counted (see Item #13), it is desirable that across the range of decisions taken by an EGA there be an informal sense that the outcomes reached are roughly proportional to the specific assets that each participant contributes (differentially) to the process of resolving the inevitable disputes and accomplishing the delegated tasks THE PRINCIPLE OF SHIFTING ALLIANCES: Over time within a given EGA, it should be expected that the process of consensus formation will be led by different sets of participants and that no single participant or minority of participants will be persistently required to make greater sacrifices in order to reach that consensus. Thanks to Item #14, this situation should be avoided, if only because it will be so easy and costly for marginalized actors to exit. 17. THE PRINCIPLE OF CHECKS AND BALANCES: No EGA should take a decision binding on persons or organizations not part of its deliberations unless that decision is explicitly approved by another EU institution that is based on different practices of representation and/or of constituency. Normally, that EU institution will be the one that chartered the EGA beforehand. Some expert commissions and many executive bodies may decide by imposition when the actor designated as superior exercises his or her sovereign authority. 12 A more orthodox way of grasping this principle would be to refer to reciprocity although this seems to convey the meaning of equal shares or benefits across some set of iterations. Proportionality is 28

29 initially, but one can imagine that the European Parliament through its internal committee structure could be accorded an increased role as coapprover of EGA decisions. 18. THE REVERSIBILITY PRINCIPLE: No EGA should be empowered to take decisions (even when co-approved as per Item #17) that cannot be potentially annulled and reversed by rights-holders, i.e. by European citizens acting either directly through eventual referenda or indirectly through their representatives in the European Parliament. IV. OTHER GENERIC PRINCIPLES OF EGA DESIGN: 19. THE PRECAUTIONARY PRINCIPLE: An EGA should in the substance of its decisions take into account the full range of knowledge and, where that knowledge is uncertain or incomplete, it should err on the side of assuming the worst possible consequence ergo, it should avoid risks rather than maximize benefits when calculations about the latter are inconclusive. 20. THE FORWARD-REGARDING PRINCIPLE: An EGA should in the substance of its decisions take into account the furthest future projection of the consequences of its decisions. This obviously poses a serious difficulty in terms of the composition of its participants, (e.g. who can similar, but allows for the likelihood that stable inequalities in benefit will emerge and be accepted on the grounds of differential contribution/assets. 29