Joana Mendes Amsterdam Centre for European Law and Governance, University of Amsterdam Jean Monnet Seminar, University of Macau 27 October 2011 Participation and the role of law after Lisbon: a legal view on Article 11 TEU

1.Why has law had a limited role regarding participation in EU decision-making procedures? 1.What are the potentialities and limitations of Article 11 TEU and what is its normative innovation? 1.Which factors may trigger the different EU institutions to reconsider the role of law in participation procedures?

“(…) a situation must be avoided in which a Commission proposal could be challenged in the Court on the grounds of alleged lack of consultation of interested parties.” “Such an over-legalistic approach would be incompatible with the need for timely delivery of policy, and with the expectations of the citizens that the European Institutions should deliver on substance rather than concentrating on procedures.” Communication, “Towards a reinforced culture of consultation and dialogue”, COM(2002) 704 final, Brussels, , p Reasons

“in the context of a procedure for the adoption of a Community act based on a Treaty article, the only obligations of consultation incumbent on the Community legislature are those laid down in the article in question”. “the obligation to consult the Parliament, as laid down in various places in the Treaty, reflects at the Community level the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly”. Case T-521/93, Atlanta [1996] ECR II-1707, paragraph 71 Case C-104/97 P, Atlanta [1999] ECR I-6983, paragraphs 37, 38

Article 11 TEU 1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. 3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent. 2. Article 11

“The Commission has always been an institution open to outside input. The Commission believes this process to be fundamental to the development of its policies. This dialogue has proved valuable to both the Commission and to interested outside parties. Commission officials acknowledge the need for such outside input and welcome it.” Commission Communication ‘An open and structured dialogue between the Commission and special interest groups’ (93/C63/02, , SEC/92/2272 final) 2. Article 11

Principle of participation “The quality, relevance and effectiveness of EU policies depend on ensuring wide participation throughout the policy chain – from conception to implementation. Improved participation is likely [to] create more confidence in the end result and in the Institutions which deliver policies.” Commission, “European Governance. A White Paper”, COM (2001) 428 final, Brussels, , p Article 11

“[There are] weak areas in the application of the consultation standards. (…) weaknesses in providing general feedback explaining how and to what extent the comments have taken into account by the Commission (…) also in observing the minimum time limit of 8 weeks for open public consultations (…). It was felt that targeted consultations were not always sufficiently balanced between the relevant sectors.” Commission, “Follow-up to the Green Paper ‘European Transparency Initiative’”, COM (2007), 127 final, Brussels, , p Article 11

“in the context of a procedure for the adoption of a Community act based on a Treaty article, the only obligations of consultation incumbent on the Community legislature are those laid down in the article in question”. Atlanta [vs Article 11 TEU] “the obligation to consult the Parliament, as laid down in various places in the Treaty, reflects at the Community level the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly”. Atlanta [vs Article 11 TEU] 3. Change

Article 298 TFEU 1. In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration. 2. (…) the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish provisions to that end. 3. Change

“… the Commission will lengthen the period for its consultations, and carry out a review of its consultation processes to see how to strengthen the voice of citizens and stakeholders further. This will help to put into practice the provisions of the Lisbon Treaty on participatory democracy” Communication, “Smart Regulation in the European Union”, COM (2010) 543 final, Brussels, , p Change

Article 11 TEU: the institutions need to engage in public exchange of views open and transparent dialogue [Commission] broad consultations