378

European Economic and Social Committee

Civil dialogue and

participatory democracy

in the practice of the

European Union institutions

STUDY

Civil Dialogue and Participatory Democracy in the

Practice of the European Union Institutions

This study aims to design a mapping of the existing structures of civil dialogue(s) and to analyse the

situation in order to identify what exists, thereby underlining the patterns and recurring elements. It

intends to fill the present gap in knowledge in the very EU institutions which lack a coherent and

comprehensive view of what has so far been put in place.

This study was carried out by

Johannes W. Pichler

in cooperation with Stephan Hinghofer-Szalkay and Paul Pichler

following a call for tenders launched by the European Economic and Social Committee. The infor-

mation and views set out in this study are those of the author(s) and do not necessarily reflect the offi-

cial opinion of the European Economic and Social Committee. The European Economic and Social

Committee does not guarantee the accuracy of the data included in this study. Neither the European

Economic and Social Committee nor any person acting on the European Economic and Social Com-

mittee’s behalf may be held responsible for the use which may be made of the contents therein.

Abstract

The European Union is at its core a model of transnational governance based inter alia on democracy

and the rule of law. There are two key findings of our survey: On one hand, that civil dialogue is

based on the primary or constitutional law of this Union and addresses the specific challenges of

transnational democracy. On the other hand, that implementation remains a challenge.

Our survey and mapping of its results, legal basis and other relevant data clearly show that the status

quo can still stand considerable improvement, as was stated repeatedly by the EESC. Nonetheless, in

the area of “vertical dialogue” we were able to ascertain significant silver linings: most notably the

openness of DG Agri (ahead of other DGs) and its approach of careful be-legalization of the dia-

logue’s framework. Nonetheless, we find ourselves in agreement with the Ombudsman’s call for a

rigid conflict of interest policy, reviewing and monitoring scheme.

Based on our findings, we present a roadmap towards a single open online tool in order to save mon-

ey, gain broad compliance and ultimately address the ongoing challenge of implementing the re-

quirements of Art 11 paragraph 1 and 2 TEU.

Summary

DG Agri in particular has demonstrated that civil dialogue can be a reality. Their openness was re-

flected by their reaction to this survey, for which we are thankful. Fully aware that every DG faces

unique challenges, we still believe this DG can be seen as a role model to emulate. Based on our own

findings in our survey, that cover experiences of CSO´s and RA´s throughout most of the DG´s, we

can gladly report, that we face a fairly positive calculus of those who are actively involved in the ver-

tical civil dialogue under Article 11(2) TEU. This is our prime finding: Civil dialogue has a long way

to go, but considerable progress has been made in key areas. We continue immediately with conclu-

sion based recommendations on how to carry out this enrichment.

1. Our Concept - True Constitutionalism

According to the core criterion of our main task, mapping "what exists" (done quite literally in the

Annex), we have made a commitment on the premise to proceed along certain lines, primarily the Un-

ion Treaties. Only then did we utilize other sources - secondary law and opinions, f. ex. such ones of

the EESC, our own field-survey, qualified statements, literature and scholarship´s expertise, and final-

ly backstage-"rumour" and other findings - as relevant, but of significantly less importance than the

normative prerogatives. We proceeded with the awareness a legal positivist approach can provide,

with a strong sense for the special role of the Unions "holy shrines" and the Lisbon Treaty´s spirit to

constitutionalize Participatory Democracy in favour of "increasing ... the legitimacy of the Union".

This explains our parameters and centres of focus. Unfortunately, our contractual obligations did not

allow us to await the EU Commission’s official reaction to the EU Ombudsman´s ambitious own-

initiative suggestions for the Commission´s further positioning concerning a reform of the civil dia-

logue. We have little doubt though, that this has the potential to truly leverage new and supposedly

long-term foundations for dealing with the civil dialogue.

2. Our Chief Concern - A Gap between the Treaties’ Orders and the Factual Implementation

We respect that there may be good reasons for a certain delay in installing an institution-wide cover-

ing vertical civil dialogue throughout almost all of the institutions (except for the EU Court(s), the Eu-

ropean Council, the ECB ... ), as is ordered under Article 11 (2) Union Treaty and under Article 15 (1)

TFEU, because there is indeed wide leeway for best implementation, because the scholarly expertise

is hardly homogenous, not to say contradictory, and because there are organisational obstacles, hin-

drances and hurdles. But we recommend not be complacent with the state as it is now - and we sub-

stantiate this vague proposal by very concrete and very far reaching recommendations. We believe

this to be the logical consequence of bringing the European citizens closer to Europe (as was the in-

augural call of President Juncker) and of constitutional loyalty.

We cannot find any legitimate reason for ignoring the clear order articulated in Article 11(1) Union

Treaty, that the institutions shall, by appropriate means, give citizens (...) the opportunity to make

publicly known and exchange their views ... We did not accept the vindication that lots of general

communication efforts were done as a surrogate implementation of this order, because 11(1) refers

without any doubt to participatory democracy and this has its very own Lisbon concept that does not

match with a concept of blunt information and communication. So we recommend to urgently close

this gap, even aligning with the message on legitimacy contained in President Juncker´s call for

bringing the European citizens closer to Europe.

3. Our Empirical Findings on "What Exists" - Hopeful Voices, Some Mutual Annoyance

Unfortunately some of the institutions and in particular some of the DG´s refused to engage with this

study.. In this, we do not shy away from self-criticism. Scholarly curiosity may have driven us to be

too forward in light of initial silence, a rashness for which we have presented our excuses. Yet the

main reason for the obstacles faced when trying to establish a closer working relationship with the

DGs may have been a pending investigation of the EU Ombudsman going on simultaneously to our

survey. It appears that at least some of the DGs were not entitled to interfere with the pendening offi-

cial response. However, this reluctance has frustrated the offered chance to self-portrait the DG´s true

efforts and achievements. That makes our study somewhat vulnerable to criticism, though the empiri-

cal data gathered stands on its own. On the other hand, the CSOs and RAs demonstrated an encourag-

ing degree of collaboration so that we received a finely nuanced impression, which for that matter was

completed by significant and serious statements of DG officers as individuals, presumably coming

predominantly from the dialogue frontier DG´s Agri and Trade, which we cannot precisely know due

to the strict anonymity of our survey.

The length of our survey also apparently kept some potential contributors from participating. We

nonetheless felt this to be necessary as to escape an overly superficial account. We needed to include

subtle questions in order to get a chance of reading in-between the lines and to cross-relate and dou-

ble-check the validity of responses when putting them into cross-referring light. We have decided in

favour of quality instead of just quantity. Preliminarily imposed open questions have been an extra-

source of fully associatively given hopes and criticisms, which we brought into "speaking out" when

cross-referencing them with the closed questions.

Further, we balance that all sources, except for the legal ones, are rather opaque, pluripotent, multi-

evaluable and finally, that the responses of our survey can be biased by professional style and social

desirability. Our recommendations reflect this by reflecting on but not simply applying the survey´s

data. For a condensed picture of the survey’s findings, we invite the reader to browse through the

special part and the "cartography mapping" in the Annex. Thus we come immediately to our conclu-

sions and recommendations.

4. Give Participatory Democracy a Real Chance

This recommendations are addressed to all the institutions. On the background of our proclaimed

premises and the overall evaluation of our findings, we felt obliged to address a dense modus operan-

di, but we are convinced that without an overarching holistic concept any reform must further on re-

produce shortfalls and fail the legitimacy leverage purpose as is the desideration of the Lisbon Treaty.

i. Sensitise for the New Mind-setting by the Treaties

We sense that the practices are still based on an outmoded pre-Lisbon mind-set. We recommend rear-

ranging the dialogue(s) along the philosophy of Committee of Regions´s Multi Level Governance

(MLG) Charter, as are in short: togetherness, partnership, awareness of interdependence, multi-

actorship (...) transparency, sharing best practices (...), open and inclusive policy-making process,

promoting participation and partnership involving relevant public and private stakeholders (...), in-

cluding through appropriate digital tools (...). Employing collaborative democracy and thus Euro-

peanwide multiplication diversifies the dialogue away from Brussels. Civil dialogue issues are a civic

task and the citizens are in their 500 million "out there" and are rather Brussels averse, face it and take

it as a motive to keenly reach-out to them.

We balance the dialogue(s) "unfinished" character and great legitimising potential, which unfortunate-

ly has not yet been brought to its full potential.

ii. Accept the Constitutional Obligation and Take the Responsibility Pro-actively

Respect the spirit of the Treaties and the mission statement of the EU Commission´s President,

corroborate the dialogue culture and do it pro-actively. Copy the ambitious way of DG Agri and

use this as a role model.

Bring across the overdue horizontal civil dialogue. This one has even more legitimacy potential than

any other of the participatory instruments under Article 11. Welcome the EESC´s efforts to initiate

this process.

iii. Experiment, Endeavour in Order to Bring Participatory Democracy to its Full Legitimising Poten-

tial

This requires a redirection of the focus from practical considerations to legitimacy leverage desidera-

tion. DG Trade, the second best role model, should become encouraged to keep on going with its crit-

icized way and not to follow suggestions to become more earthed.

In case this "holy legitimacy goal" would not become consented, it could be rethought to put partici-

patory democracy on the delete list for a next convention.

iv. Complete the Fragmentary Composition by Wide Opening of the Eligibility - Even to Single Citi-

zens - And Let a Broader Partnership Principle Break Through

A shift of paradigms towards rigid openness and enhanced transparency, ideally self-controlled by the

dialogue stakeholders themselves, is the prerequisite of any improvement. Consider a two-chamber

model to get the diverse interests into a clearer competition, end-up any "closed shop" possibility and

prevent establishing a new "political" oligarchy. Make societal "seismographs" welcome dialogue

partners.

v. Resolve the Confusion on the Nature of Dialogue - Consultation, Expertise, Communication

Make the dialogue a real dialogue, interactive, of two-way nature, empower it to political bargaining

and protect it against out-watering by intermingling diverse categories, which downgrades the dia-

logue´s constitutional dignity.

vi. Design a Serious Conflict of Interest Policy

Any interest, in the dialogue is acceptable if it is honest and disclosed in full transparency. But rules

should be provided - as has the ombudsman rightly stressed - to detect any conflicts of interest. Oblige

to self-uncover interests and make them competing, also by the suggested two-chamber model; on a

competitive "market" the competitors themselves will be the best regulators.

vii. Clarify the Nature of a Core Dialogue Regime to be developed

The Commission´s Communication "Towards a reinforced culture of consultation" of 2002 denies

expressively an over-legalistic approach and favours "culture". We share the underlying assumption

that governance, as we have promoted afore, with its wider inclusion of political actors is a model that

can potentially leverage better and more consensual policy-making than the traditional government

model. Neither should courts substitute political processes. This position is widely backed by the re-

sponses of our survey. Nevertheless, it seems to be indicated under the rule of law principle to make

procedures predictable and resilient, which is apparently the background of the Ombudsman´s legiti-

mate suggestion. Despite the aforementioned leeway for designing the appropriate way of implemen-

tation - whether by hard law or soft law or ethic code or similar – we are in doubt whether a legal re-

gime could really be opted-out in the long run. Article 41 of the Charter of Fundamental Rights of the

European Union (FRC) indicates that remedial claims cannot be suppressed. We recommend to carry-

out a particular legal analyses on what the bandwidth of a possible legal framework could be. Howev-

er, whichever regime is opted for, it should contain binding standards on admissibility, eligibility and

a selection regime stating who and why is entitled to be dialogue partner, this even despite our rec-

ommendation to open the dialogue to the widest possible range of participants.

viii. Install a Reviewing and Monitoring Scheme

We recommend therefore that this task is best carriedout in cooperation with and as far as possible

along self-evaluation and this should be done on the publicly accessible eTool.

ix. Strengthen the Role of the Dialogue - Turn Partners into Supporters and Public Multipliers

Allow in turn for the admission to partnership your partners to become intermediaries. Use their quali-

fied knowledge for translating and interpreting the DG´s political necessities to the public. And make

them representatives of the public, but make sure that they are really mandated and - as intermediaries

are supposed to do by nature - assure that they are not acting on their own segmentary interest.

x. Install an Online "Eleven-Two-Tool" - Save Time and Money and Gain Broad Compliance

Firstly, without delving too deeply into technical and organisational details, we would like to recall

the benefits of such a tool: Enabling a European wide participation of dialogue partners on the MS

levels and sublevels horizontally as well as vertically. Literally every willing party could make up its

mind on any proposed dialogue issues.

Secondly, and in line with the Ombudsman desideration, such a tool could serve for a more perfect

openness. If and when any participant is obliged by rules and "motivated" by social stimulus and un-

der silent group wise internal "supervision" to make herself or himself vitreous, this would be a next

step towards a more perfect transparency.

Thirdly, such a tool could enable a more permanent process which surpasses even the criterion of reg-

ularity and makes any definition by law or courts obsolete, as to what "regular" could imply.

Fourthly, the DGs can require that any proposal should be addressed to the DG preliminarily filtered

by internal co-creation and co-decision making until rather clear positions crystallise. This would en-

able the DG to see which reasoning and majorities support a proposal – in other words, to whom it is

relevant and why.

Fifthly, such a collaborative or cooperative democracy tool discharges the DG´s to be at stake during

the elementary political will-building phase and the finalisation process can therefore be kept fairly

short. Once, when the dialogue partners are trained to deal with e-collaborative democracy, the face-

to-face meetings can be reduced to a short finalisation procedure. This would impact a significant cost

saving effect.

________

If and when the "unfinished" dialogue(s) are fully realized, we predict a great future and we forecast a

significant legitimacy leverage function. We ascertain that the assumptions of the Lisbon Treaty were

right.

Taken all our recommendations together we are convinced that these could comply with the President

of the EU Commission´s inaugural call: ... bringing the European citizens closer to Europe.

Abstract ................................................................................................................................................................................ 2

Summary .............................................................................................................................................................................. 3

I. Fundamentals and Considerations ..................................................................................................................... 12

I. 1 Objectives and Grounds for the Study ........................................................................................................... 12

1. Mandate Description and Scope .................................................................................................................... 31

i. The Mandate - Ascertaining the Status Quo .......................................................................................... 31

ii. The Limits in Law and Democratic Potential ....................................................................................... 32

iii. Introductory Explanations on "What Exists" ..................................................................................... 33

2. The PreLisbon Roots of the Current Legal Regime ................................................................................ 35

3. The Collateral Environment - the Wider Perspective on Participatory Democracy ................ 37

II. Essentials for the Study and for the Questionnaire ............................................................................... 38

1. Taking into Account the Implementer’s Chemistry and Climate ..................................................... 38

i. The Need for Imagination ............................................................................................................................. 39

ii. Where Best to Start with an Evaluation and a Disclosure? ............................................................ 40

2. The Horizontal Civil Dialogue at First and Final Glance ...................................................................... 40

i. Communication‘s a one-way nature ................................................................................................... 40

ii. The PD Orphan - Lack of Trust in Citizen´s Benevolence .......................................................... 41

iii. The EESC´s "My Europe ... Tomorrow!" Project .............................................................................. 42

3. The Vertical Civil Dialogue - The Constitutional Promise and its Perceived Reality ............... 43

i. The Coffey-Deloitte VCD Screening Model - A Solitaire Benchmark Despite Serious

Misconceptions ..................................................................................................................................................... 44

ii. Setting Democracy Values at Market Price ...................................................................................... 44

iii. Identifying the Wrong Rule Maker ...................................................................................................... 44

iv. Legitimacy - A Business Case? .............................................................................................................. 45

v. Working towards the Ultimate Goal: Democracy ......................................................................... 46

vi. The Dialogue is either Legitimacy leveraging – Or else Superfluous .................................... 47

III. The Questionnaire and the Design of the Questionnaire - Methodology ......................................... 48

1. The Overall Design - Primarily Referring to the Open Questions .................................................... 48

i. Methodological Alignment ..................................................................................................................... 48

ii. Highly Homogenious Desiderations and Considerations .......................................................... 48

iii. Hidden Agenda by Open Questioning - And the Worthwhile Outcomes ............................. 49

iv. Tracing Multiple Considerations ......................................................................................................... 50

v. Tracking a Legitimacy Providing Model ........................................................................................... 50

vi. Disentangling Mazy Commingle ........................................................................................................... 52

vii. Constitutional Awareness .................................................................................................................. 53

2. The Political Design and its Methodology - Closed Questions ........................................................... 54

i. Adopting a Green Paper Stylus ............................................................................................................. 54

ii. Overall Aspects ............................................................................................................................................ 55

iii. Presumed Benefit as Stimulus for the Use of Dialogue ............................................................... 57

iv. Methodological Implications ................................................................................................................. 58

v. Tracing Perception on Assumed Winners and Losers ................................................................ 58

vi. Dialogue Admittance a One-way Privilege or Source of Associated Duties? ..................... 59

3. The Legal Design of VCD and Methodological Implications - Closed Questions ........................ 59

i. Overall Aspects .................................................................................................................................................. 59

ii. Dialogue a Matter of Law or of Culture? ........................................................................................... 60

iii. Methodological Implications ................................................................................................................. 61

4. The VCD Parameters Concerning the Addressees "Civil Society" and "Representative

Associations" .............................................................................................................................................................. 62

i. Civil Society and Representative Association ................................................................................. 62

ii. Representative Associations AND Civil Society... Pleonasm or Distinction? ..................... 63

iii. Civil Society - Definitial Intricacy and Underlying Suppositions? .......................................... 64

iv. Are Political Parties Civil Society? ....................................................................................................... 65

v. One Body or Two? ...................................................................................................................................... 66

vi. Single Citizens Eligible? ........................................................................................................................... 66

vii. Representative ........................................................................................................................................ 68

viii. Representativity as an Admissibility Criterion ......................................................................... 68

5. The VCD Criteria "Open, Transparent and Regular" ............................................................................. 69

i. An Empty Canonical Trinity? ................................................................................................................. 70

6. Factual Challenges to the VCD - Procedural Aspects, Effectiveness and Relevance ................. 70

i. Procedural Aspects .................................................................................................................................... 70

ii. Dialogue - Intrinsic Value or merely a Tool? ................................................................................... 71

iii. Open to Whom and Why? ....................................................................................................................... 72

IV. Key Results of the Survey .................................................................................................................................... 73

V. Conclusions and Recommendations: The Unfinished Dialogues .......................................................... 93

1. Premises First - General Objectives .............................................................................................................. 93

i. Adapting to the New Mind-set by the Treaties and a Constitutional Responsibility............ 93

2. Horizontal Civil Dialogue .................................................................................................................................. 95

i. An Orphan in Need of Surrogate Activity? ............................................................................................. 95

ii. Support Surrogate Motherhood from Bottom-up or from the Side "by Appropriate

Means" ...................................................................................................................................................................... 96

3. On the Vertical Civil Dialogue ......................................................................................................................... 96

i. Consensus on the Dialogue’s Necessity - Dissensus on the Status Quo ..................................... 97

ii. Possible Role Models ..................................................................................................................................... 97

iii. Complete the Fragmentary Composition - Where are the Considerations of Average

Citizens? ................................................................................................................................................................... 98

iv. Let a Broader Partnership Principle Break Through ...................................................................... 99

v. Reflecting on the New Wide Opening of the Dialogue(s) ................................................................ 99

vi.Quality Rather than Quantity ................................................................................................................... 100

vii. A Two-chamber Model? ........................................................................................................................... 100

viii. Co-designing a Reform Model .............................................................................................................. 101

viii. Resolving the Confusion on the Nature of Dialogue - Consultation, Expertise,

Communication ................................................................................................................................................... 101

ix. Designing a Serious Conflict of Interest Policy - A Case of Transparency in Action ......... 102

x. The Eligibility of Religious and Philosophical and Party-political Organisations .............. 103

xi. Legal frameworks vs. Arbitrariness vs. Culture .............................................................................. 103

xii. A Particular Finding Process is to be Recommended as is a Commission-wide Basic

Regime Model ...................................................................................................................................................... 104

xiii. Standardise an Admissibility, Eligibility and Selection Regime ............................................. 104

xiv. Enhance the Positive Perception of the Performance ................................................................ 105

xv. Consider Reviewing and Monitoring .................................................................................................. 105

xvi. Enrich the Role of the entire Dialogue- Of the Partners, of the Contents, of the Potential

................................................................................................................................................................................... 106

xvii. Install an Online "Eleven-Two-Tool" - Save Time and Money and Gain Broad

Compliance ........................................................................................................................................................... 107

xviii. A Final Remark ......................................................................................................................................... 108

Annexes:

ANNEX I A Mapping

ANNEX II Bibliography

ANNEX III Raw Survey Data

ANNEX IV Legal Scholarship

"Last chance Commission", either

we succeed in bringing the European

citizens closer to Europe - or we will fail

Jean Claude Juncker

Any bridge needs firm pillars at both ends

and two directions in which to go

Anne-Marie Sigmund

Governments – together with socio-economic

and civil society actors – at all levels

have to seize opportunities together

Luc Van den Brande

I. Fundamentals and Considerations

I. 1 Objectives and Grounds for the Study

To make the concept of this study lucid requires an intense reflection of its objectives. The foremost

reason for this study is to clarify:

• Firstly, "existing structures" and "what exists". This refers to a mapping of the reality of the

civil dialogue (CD) under participatory democracy (PD) principles, whether and if so, to what extend

these are carried-out (or not carried-out) by the institutions and under which regime.

• Secondly, the task and mandate to analyse the "patterns" requires a very far reaching evalua-

tion of manifold factors as what the rationales are about and whether there is an awareness and a mu-

tual sense of responsibility for overarching aims.

• Thirdly, "recurring elements" can’t refer to anything else but to the normative equipment, and

how it is dealt with. This covers balancing the legal orders for installing and holding civil dialogues

and thus, conclusively and coercingly investigates on the facts behind the opaque perception of the

apparent gap that "exists" between participation law in the books and these laws in action.

• Fourthly, in order to "fill the present knowledge gap" intrinsically, knowledge must firstly be

generated which inevitably includes investigations on all things that in total help build knowledge and

Inaugural speech, European Parliament, November 2014

Living Europe, Foreword, 2006

Van den Brande Report, Consolidating a European Culture of Multilevel Governance and Partnership, 2014

• finally, for the mandate to come up with a "conclusion" and "recommendations" requires

making a proposal on how best to overcome this gap. In the light this task, one must inevitably focus

on "what exists" and on "patterns", which implies that there is also to be dealt with even rather silent

and psychological, political, economic interest factors as impacts and biases as well as restraints,

which is a crucial part of "what exist".

"What Exists”: What Is - What Ought to Be- What Appears to Be

To map and to analyse "what exists", is our contracted task. We could contend ourselves not ex-

clusively but primarily to report on the corpus of norms - laws, codes, regulations, recommen-

dations and case law. For lawyers this appears to be the dominant reality

, their reality. But this

is only superficial. The law itself tells us just what ought to be

. To close the gap between what

ought to be and what is , which is our solemn goal anyway, challenges to go far beyond the sur-

face, the backstage and the considerations, which altogether make "what is". Why are we going

so far into legal sociology and legal philosophy here? This is in order to explain why we won´t

come nearer to "what really is" if we contend ourselves with the normative level and why we

are going after the entire cosmos of the dialogues, because that is what makes "what exists".

As the Union needs not just another document in the style of "wash me but don’t get me wet", we´ll

speak-out very clearly and we will not hesitate to refer to "perceptions" even though this could be-

come discredited as a non-empirical approach. As we know from only one study with serious founda-

tion by in-depth interviews of high-ranking officers of the "apparatus", we will with all respect and

fairness refer to this intensely as we go on and only then additionally report on our own impressions

that could be received over many years. Of course, it is promptly to be confessed right here that such

notions could become rightly blamed as partial and being not more than the subjective observation of

a spectator being biased from his double role as analyst and also having acted in favour of PD.

Despite a large number of documents in favour of participatory democracy, there is an evident wide-

spread distrust in the function of participatory democracy and of the civil dialogue(s) and a certain re-

luctance to implement it proactively. Moreover, there is also some confusion about the definition, role

and function of participatory democracy and civil dialogue. This causes also lurking doubts around

implementation. There are, of course, good arguments for acting dilatorily. Even though we have li-

braries full of scientific interpretations, we are still missing any resilient doctrine on how to close the

aforementioned gap. And the fundamental reasons, why, basically, the gap should be closed are still

hovering in the Cloud of Unknown as the respondents to our survey further prove.

Gravers, den juristskapte virkkeligheten, 1982

Hume, A Treatise of Human Nature, 1739, II,1.1

Keeping up with "Constitutionalism": Committed to the Rule of Law

Two eagerly debated problems, one, whether participation can really contribute to make the Union

more democratic and, two, whether the use of participatory democracy and of the civil dialogues can

and will definitely provide legitimacy, neither can nor at all must be resolved by us, because the case

is in fact already closed, Roma locuta causa finita.

The Treaty of Lisbon

stands in its preamble determined, when stating one of its "holy" desideration

as: enhancing the democratic legitimacy of the Union. This is a proclamation. This is also an authentic

motive. It is immediately followed by a next Lisbon democracy manifesto on the political priority set-

ting: Title II. Principles of Democracy.

This second proclamation of "Principles", which logically covers also participatory democracy, again,

constitutes the entire underlying concept of participatory democracy of the Treaty on European Un-

ion

(TEU) as enshrined in Art 11, in our particular case Art 11(1) and Art 11 (2).

Here is the right moment to come ad fontes and to prominently recall the text of these two dialogues:

Art 11(1): The institutions shall, by appropriate means, give citizens and representative

associations the opportunity to make publicly known and exchange their views in all ar-

eas of Union action.

Art 11(2): The institutions shall maintain an open, transparent and regular dialogue with

representative associations and civil society.

Core texts, by nature, usually say much on the motives, but lesser on the extent or on the functioning

in reality. Yet the Treaty on the Functioning of the Union

(TFEU) does so. Art 15 (1) goes one sig-

nificant step further by conclusively ordering a positive and pro-active mind-setting in the entire Un-

ion´s apparatus: In order to promote good governance and ensure the participation of civil society,

the Union´s institutions, bodies, offices and agencies shall conduct their work as openly as possible.

OJ 2007/C 306/01

OJ 2012/C 326/01

Whatever "openly" means, one thing is for sure when taking this holy shrine of three Treaties into ac-

count: we have and we face a solemn, lucid, "para-constitutional"

commitment that both intentions,

ought to be realized by the foreseen instruments: democratizing the Union and consequently a lever-

age of legitimacy. That is reason enough to take the officium nobile to adopt this commitment as our

premises. Premise one: Participatory democracy is a legal term and is only and exclusively addressed

to the instruments and their meaning as exhaustively worded in Art 11 TEU. Premise two: Civil dia-

logue in the context of participatory democracy is another legal term and strictly reserved to the para-

graphs 1 and 2 of Art 11. Consultation as ordered under Art 11 (3) TEU or the citizens initiative under

Art 11(4) are clearly instruments of participatory democracy but not at all to be subsumed as civil dia-

logue(s). For reasons of clarity and not to thin away the Lisbon pledge: whatever other efforts are tak-

en to attract and to engage the European citizenry are welcome voluntary engagements but are neither

mandatory participatory democracy nor civil dialogue. Convincingly, the dialogue under Art 17 (3)

TFEU, is as well a dialogue by legal wording but not participatory democracy in its genuine popular

sense. when Archbishops and Archimandrites meet with the Presidents of the Commission and the EU

Parliament and in separate meetings the Grand Masters and Secretary Generals of secular(ist) organi-

zations. For the sake of completeness of the use of the term "dialogue": The same applies to the politi-

cal dialogue under Art 27 TEU and to the social dialogue under Arts 151ss TFEU. As a result: the

combination of participatory democracy and civil dialogue refers solely to Arts 11 (1) and (2).

Despite hesitant standpoints in EU law commentaries on whether there is a strict implementation ob-

ligation of the civil dialogue(s) - we´ll come back to that in more depth

- it appears as unacceptable

to implicitly treat the primary laws like a provisional wishful thinking at anyone’s interpretation dis-

posal - even when the Treaties´ wordings sometimes offer space for interpretation. In such cases the

interpretation of more or less or of so or otherwise is indeed up to the legitimate actors, but not the

decision of whether or not. Implementation omission is neither a legal nothing nor just a peccadillo:

So, finally it would be up to the Courts to render a binding interpretation. If an institution should be

blamed for misperception or infringement we have procedures at stake to take action against that un-

der Art 263 TFEU. There are competent guardians "claimants" for taking action. The order of partici-

patory democracy in the Treaties is not, as sometimes subliminally alleged, an erroneously added or

an injudiciable narrative from just some visionary. It does not stem from souled essayists of the Con-

vention era and of other Pied Pipers, it is the Member States who are giving the orders. Every single

one of the Member States is supposed to have read this document carefully and only then agree con-

clusively on every sentence of this text. Unanimously. Therefore we can talk about potentially twenty-

as the approach of right these lines here is a functional one it appears to be at least not counter indicative to refer to the

primary EU law in terms of a "constitution", especially when we summarise that 99% of the core text of the Constitution

Treaty - except for the above mentioned exclusions of deleting "principles" - were published without any significant chang-

es. Of course, a formalist or dogmatist, presumably also a citizen of the UK, would heartily protest against this sloppy prov-

ocation, but we are commited to going on with our functional approach

See chapter legal scholarship in Annex 4.

eight entitled controllers of the proclivities or disfavours of the institutions and rightly take the Trea-

ties as canon.

Showing loyalty, if not empathy, to one’s own "constitution" is nothing that needs be justified. There-

fore, we appreciate the new German approach of "Verfassungspatriotismus", constitution patriotism,

which means that the cohesion of the Union can be guaranteed by a strong belief in the integrative

power of its constitution. We do not appreciate that this is sometimes put somewhat patronisingly in a

slightly pejorative or smiling light. Indeed, the highflying Lisbon desideration are volitile, maybe ju-

ridifying meta-narratives would also be a heritage from the Constitutional Convention´s enthusiasm.

But what should be wrong with that in a declared "political Union"? There are (albeit long) times for

reasoning, philosophising and, well, also for pettifoggery, but then there are also times when political

and societal activity are necessary - and such times, we guess, are dawning.

The Ombudsman´s (OM) View

This gives leeway for a too subjective evaluation from now on becoming limited. Since January, 27th,

2015 we have a first in-depth analysis with follow-up recommendations which are outstanding and of

highest competence: it is the Ombudsman preliminarily who makes the case in intellectual honesty -

until the Commission either agrees or overrules. These recommendations must be recalled right here

in their entirety because of showing all "risk-zones" and offering solid grounds for the author as well

as for the lector benevole. Nothing could better prove the objectives and grounds of this study.

Just one comment must be added right here to clarify some commingling: it is highly problematic -

and we´ll come back to this in our reflections - to treat consultation and dialogue equally

and, then

logically, to analogise the rules. This collides with the concept of the Union Treaty. Unfortunately, the

Ombudsman follows in this respect the observance of the EU Commission, which has not adjusted the

Consultation rules to the Lisbon state. This again refers to our observation that the apparatus, presum-

ably rather unconsciously, still lives with usage of pre-Lisbon patterns. Note: Consultation under par-

agraph 3, Art 11 TEU is also participatory democracy, but is of another nature then the dialogues un-

der paragraphs 1 and 2 Art 11. Whereas the dialogues are clearly construed as an exchange, bargain-

ing and political process, near to the social dialogue, consultation is - despite the practices of hearings

and consulting meetings - by concept in principle a one way instrument. There lies strong proof on

this different concept by the fact, that the order of dialogues is addressed to all of the institutions

whereas the Consultation Procedure exclusively addresses the EU Commission. This makes sense as

the initiation of a law making process is exclusively the competence of the Commission and so far it

see Fn 1 of the Ombusman´s Letter to the President, citation next Fn: The Commission may, nevertheless, choose to apply

the measures it adopts in response to this own-initiative inquiry also to such groups.

has become its very own of form of collecting objective reasons whereas the political next step, the

political one, allows to respect political aspects, as is the "sovereign" not bound to objective reasons -

or in other words, democracy has its very own objectives and rationales. The sovereign "we, the peo-

ple..." is indeed sovereign. The EU Parliament and the Council have increasingly documented this

"truth" in recent times. The apparent similarity, that the EU Commission gives reasons in both cases,

cannot be understood as sameness. So, even this is not inevitable, the rules can turn out as quite dif-

ferent, respecting the diverse nature of these twofold instruments. If the Union Treaty would have

seen these two elements as the one and the same, it would have expressed this as such, but as it did

not, we can rightly assume that the idea was to open pluralistic channels for providing the institutions

an overview on the bandwidth of perceptions - on equal footing.

A Landmark: OM Inquiry

and Position

in Brief

After having received feedback from public consultation that the Ombudsman had carried out, she

presented her conclusions as follows:

The main problems identified by stakeholders are (i) the inconsistent categorisation of organisations

that are members of expert groups, (ii) the perceived continued dominance of corporate interests in a

high number of expert groups, (iii) a lack of data on the expert groups register, and (iv) the appoint-

ment of individuals who are closely affiliated with a specific stakeholder group as experts in their

personal capacity, linked to the absence of an effective conflict of interest policy.

This raises concerns on whether it is (i) currently not possible adequately and consistently to review

the composition of specific expert groups because of deficiencies in the framework governing such

groups, as well as in the expert groups register, (ii) that there is no consistent labelling/categorisation

of organisations appointed to expert groups and that the vague category 'association' appears to be

frequently used as a fall-back category. (iii) What is more, the Commission has so far not developed

any general criteria for delimiting different groups of stakeholders. In particular, there are no criteria

for the broader categorization of which groups of stakeholders are deemed to represent economic and

non-economic interests respectively.

The Ombudsman noted, furthermore, that the European Parliament adopted, on 22 October 2014, a

resolution on the general budget of the European Union for the financial year 2015, which envisaged

holding "some appropriations in reserve until the Commission modifies the rules on expert groups and

ensures their full implementation within all DGs". The draft amendment tabled by a group of MEPs,

OI/6/2014/NF

Letter of the European Ombudsman to the President of the European Commission Jean Claude Juncker, 27 Jan 2015;

http://www.ombudsman.europa.eu/de/cases/correspondence.faces/en/58861/html.bookmark; accessed 21 Feb 2015

on which the resolution was based, pointed to what was perceived as a continued failure to ensure a

balanced composition and transparency of expert groups. In light of the contributions received, the

concerns put forward by the European Parliament in the context of the budget procedure, as well as

my own preliminary views as outlined above, I have decided to focus my own-initiative inquiry exclu-

sively on systemic issues which negatively impact on the balanced composition of expert groups and

the transparency of the groups' work.

As positive developments underpinning the Ombudsman´s suggestions for improvements, she evalu-

ated that since December 2013, DG AGRI's civil dialogue groups, a specific type of Commission ex-

pert group, have been governed by a new framework. I consider that this legal framework, the imple-

mentation of which is subject to review in the context of own-initiative inquiry OI/7/2014/NF, presents

clear advantages over the horizontal rules governing Commission expert groups

Under restraint

of a supervening detailed evaluation, which we shall refer to the DG AGRI model as

the benchmark-setting role model. With these statements the Ombudsman came to its own conclu-

sions and recommendations which were to be reflected by the Commission and stated particular sug-

gestions.

A. The (legal) nature of the horizontal rules and achieving a balanced composition:

The Commission should adopt a decision laying down the framework for expert groups. This Com-

mission decision should require the following.

1. A balanced representation of all relevant interests in each expert group.

2. An individual definition of 'balance' to be set out for each individual expert group.

3. A provision containing general criteria for the delimitation of economic and non-economic inter-

ests.

B. Calls for applications:

1. Publish a call for applications for every expert group.

2. Create a single portal for calls for applications to expert groups.

3. Introduce a standard minimum deadline of 6 weeks for all calls for applications.

C. Link to the Transparency Register:

see FN 2, Letter of the Ombudsman to the President of the EU Commission; The horizontal rules governing Commission

expert groups are set out in the following Commission Communication: Framework for Commission Expert Groups: Hori-

zontal Rules and Public Register, 10.11.2010 (C(2010) 7649 final, SEC(2010) 1360).

see FN 5, Letter of the Ombudsman to the President of the EU Commission

1. Use the Transparency Register's categorisation to categorise members in Commission expert

groups.

2. Require registration in the Transparency Register for appointment to expert groups.

3. Systematically check whether registrants sign up to the right section of the Transparency Register.

4. Link each member of an expert group to his/her/its profile in the Transparency Register.

5. See heading D. below for individuals who are not self-employed and who are appointed to expert

groups as individual experts in their personal capacity.

D. Conflict of interest policy for individual experts appointed in their personal capacity:

The Commission should revise its conflict of interest policy and take the following measures.

1. Carefully assess individuals' backgrounds with a view to detecting any actual, potential or appar-

ent conflicts of interest.

2. Ensure that no individual with any actual, potential or apparent conflict of interest will be appoint-

ed to an expert group in his/her personal capacity.

3. Consider, in a situation of conflict of interest, the possibility to appoint an individual as a repre-

sentative of a common interest shared by stakeholders or to appoint his/her organisation of affiliation

to the expert group.

4. Publish a sufficiently detailed CV of each expert appointed in his/her personal capacity on the ex-

pert groups register.

5. Publish a declaration of interests of each expert appointed in his/her personal capacity on the ex-

pert groups register.

(…)

On the basis of the above, the Commission should consider (i) adopting a decision in 2015 laying

down the general framework for expert groups and (ii) reviewing the composition of expert groups

which are active or on hold, once this decision has been adopted.

The EU Commission’s reaction and response times were set out for April, 15th, 2015. Further debates

and a replica are obvious. Supposedly the Commission will not fully disavow its own not so badly

founded position: The EU Commission speaks in its already pre-Lisbon self-imposed Communication

on Rules and Standards

clearly about a Reinforced culture of consultation not deriving from any

kind of legislative implementation. Secondly, the EU Commission has ordered itself to be reluctant of

letting things go too far, in order to and based on the rational of efficiency. Setting the rules for Con-

sultation, what again raises valid doubts, such as whether these can be analogously used for the CD,

but in actual practice - the EU Commission has already in the General Rules and Minimum Stand-

COM (2002) 704 final

ards

explicitly stated: A situation must be avoided in which a Commission proposal could be chal-

lenged 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 expec-

tations of the citizens that the European institutions should deliver on substance rather than concen-

trating on procedures. Note: Efficiency is an "overwhelming" argument and to substitute law by cul-

ture, in the name of lesser regulations, is another highly "convincing" scenery.

However, we will see an impressive discourse, presumably lasting for a while. Although the Om-

budsman has carried out a profound consultation, we do hope to be able to contribute to the discourse

with our approach and with additional empirical enforcement.

Keeping the constitutional tracks anyway

By strongly basing ourselves on the overarching constitutional goals and promises, and severely

committing to not be consumed by open-ended debates nor by non-constitutional level demurs, be

they scientific ones or such based on Realpolitik, we are determined to think about realisation of im-

plementation steps. Still, we are always reconnecting to the normative basement.

This may appear as reference to a positivist method, but we are less pretentious and rather believe that

it is based on a "fundamentalist" pragmatism. Only this strict normative approach augurs realistic and

factual implementation of the "constitutional" desires and orders, in case the responsible politicians

should honestly still consider that, which, of course, can be doubted. The zeitgeist, spirit of the age of

efficiency appears to have surpassed the ranking of democracy. We keep on going on the democracy

primacy premise´s trails anyway. Should the Union not take action and wait until there is an overall,

scientific, administrative, executive and political consensus once on how PD and CD work best, it will

wait until calendas Graecas.

Deeply respecting scholarship, but committed not surrendering to ....

The scientists of very diverse disciplines cultivate a debate on a very sophisticated intellectual level,

regarding our subject. They are going so far to challenge the existence of a civil society or diagnosing

a couple of civil societies and scrutinising, whether there is just one Europe or maybe several Europes

and which of these Europes can be matched with which type of participatory democracy adequate civ-

il society

. This approach is problematic. Is there need to rethink Europe from scratch? Intellectual-

ly, this is an amazing, formidable, impressive, awe-inspiring and highly complex and ambitious de-

ibid, 6, 10

see Kohler-Koch, The Three Worlds of Civil Society - What role for civil society for what kind of Europe?, in: Policy and

Society 28 (2009), 48

bate. While reaching out for ever more certainty or even training for uncertainty there is less eager-

ness to intermingle in down-to-earth questions like whether and how a DG should reach-out for a sec-

toral citizen-driven domino-like multilevel-multiactor-multiplier legitimacy leveraging participation

scheme. Of course, this down-to-earth challenge challenges us even more to respect the diverse doc-

trines. For example, it is true, civil society is an ever changing, and, well, sometimes lobbyists in dis-

guise, oscillating, vibrating, ambiguous and finally not strict definable something. But it would be

overdone to negate its presence. If there are multiple faces and functions and weights, then they are to

be put to adequate multiple use, but not to not be used at all. Beate Kohler-Koch

has proposed a "ta-

ble" of options, functions and perspectives, that is more than appropriate to serve as a preliminary

guideline for designing a multiple architecture. Dealing with where, how and how far civil society can

be placed in multiple functionalities and responsibilities, it can support the effects as envisaged by the

Treaties. Gautier Busschaert

, meanwhile, takes one fairly radical step further and adopts as a prem-

ise that the EU has turned to participatory democracy because representative democracy may be

reaching its limits. So, what now? Can PD and CD be seen as bridge-builder or is this merely a magi-

cal

oxymoron? Law is flexible and by modern nature always under construction, so there is no ob-

stacle to optimising this architecture permanently once a more lucid and consented doctrine should

arise. Politology and sociology provide the scholarly ammunition to morally justify the Commission’s

resistance; we´ll come back to that overtone.

... but rather disentangling the complexity

Assuming it will take time until a serious call for "disentangling the debate" becomes a reality our

plead to the institutions is not to merely await this reality. Instead, we advise trust in the assumptions

of the Treaties and to enhance PD and CD. No doubt, a proactive progress could be seen as the Trea-

ties´ desideration payment in advance which maybe pay off. But the engagement and inouts of an ever

more one-sided invited citizenry is no less a payment in advance, which in case of becoming irrele-

vant - this is the "valuta" - would also be seen as a loss. But is there any other option? Bluntly spoken

the Treaties order the Union to exercise on the fields of trial and error. Consequently, legal-political

backers serving as "investment advisers", who inevitably can only free-draw themselves from any

guarantee for success and being exonerated from liability, could be blamed for mere mercenaries.

We could easily, by intellectually fiddling-around, move over to all those scepticisms and pessimisms

and other -isms around the profoundly imposed question, whether the EU could become democratised

ibid, 53

Participatory Democracy in the European Union : a Civil Perspective, PhD Thesis University of Leicester - School af

Law, 2013

Busschaert, 125: The Civil Dialogue : a Magic Cure for the Democratic Ailments of the Community Method?

from below

, meaning from the man-on-the-street and from civil society. With our own background

it is tempting to scholarly combine all these methodologies for finding a methodology to get things

analysed correctly and to join all those various adept assumptions on democratising democracy. But

we withstand this temptation. As we mentioned before, we made a commitment to share assumptions

though preferably those stated in the Treaties. Because in our norm related approach their dignity is of

the highest obtainable ranking.

So, let us frankly and boldly begin by balancing the widest panorama of the political, philosophical,

scientific and normative order and then come to fact findings and to behavioural imprint challenges

and finally to results and recommendations.

Referring to the Key Actors: EU Commission and the European Economic and Social Committee

As early as 2001, the European Commission, based on its own pre-evaluations explicitly referred to

the European Economic and Social Committee´s (EESC) "Sigmund-Report (I) : The role and contri-

bution of civil society organisations in the building of Europe"

and to the EESC´s "Sigmund Report

(II) : The Commission discussion paper "The Commission and non-governmental organisations -

Building a stronger partnership"

. Those documents made civil society and participatory democra-

cy a pillar of the Unions´ architecture of democracy. From these days on, the EESC additionally

adopted to its genuine functions

a leading role and a factual function as guardian of the issue of par-

ticipatory democracy

It was then titled the "European Governance - A White Paper"

, and announced a fundamental in-

volvement of civil society in the political will building process. Only one year later, this outline was

already surpassed by a new policy approach and another high-ranking mission statement. This was the

Communication of the Commission "Towards a reinforced culture of consultation and dialogue -

General principles and minimum standards for consultation of interested parties by the Commis-

sion"

. This next milestone of open governance reinforced the Union´s ambition to obtain European

intermediaries on board of the EU Commission, all in favour of an enhanced democratisation of the

Union´s executive entity, which was previously scolded for being undemocratic for quite some time.

Some years later and as publicly confessed in reaction to the fatal "non" and "nee" in France and

Netherlands to the Constitution Treaty, came a Communication to the Commission, an "Action Plan

so recently again Liebert et al (Eds), Democratising the EU from Below?, 2013

Rapporteur Sigmund; adopted September, 22, 1999; CES 851/1999 D/GW

Rapporteur Sigmund; adopted July, 11, 2000; CES 811/2000 FR/ET

OJ 287/ 2001; COM(2001) 421 fin

see Brombo, Le Formazioni economico-sociali e l´Unione Europea, in: Theory of Law and State 1/2 (2003), 293ff; Confe-

rence University of Venice Ca’ Foscari, 25 September 2013, Venice...

COM (2001) 428 final

COM (2002) 704 final

to Improve Communicating Europe by the Commission

". The document stated in all openness that

the aforementioned rejections had led to the conviction, that the dialogue with the European citizen

has become a Commission priority.

The new communication approach was based on three main

principles, namely, (i) listening, (ii) communicating and (iii) connecting with citizens by "going lo-

cal": good communication must meet the local needs of citizens"

. A Green Paper on Transparency

then spoke of the issue on how to safeguard and to keep "clean" the civil society from disdainful hid-

den lobbyism, and how to disclose particular interests and a follow-up Communication from the

Commission "European Transparency Initiative

" what was appointed. Finally, the new Treaty on

European Union

in the amended version of the Treaty of Lisbon

built the capstone and signalised

that the Union appreciates the participation of the European citizenry and of civil society as a core

strategy to "citizenise" the Union and to "Europeanise" the citizenry. As the Union Treaty remained

fairly imprecise as to what its "constitutional" orders in particular meant concerning the factual im-

plementation, it was again the EESC who pushed for rules that made the invitation to the citizens and

the civil society organisations viable, this time by the "Sigmund Report (III) - The implementation of

the Lisbon Treaty : participatory democracy and the European citizens’ initiative (Art 11) "

. So it

was again and again the EESC urging for a more proactive participatory policy of the EU institutions,

as finally documented by the complex "Jahier Report"

Even when we come back to this issue in more depth, it is worthwhile to acknowledge here that this

invaluable tradition is still in continuity. It was the EESC’s Liaison Group that recently drafted a new

Road Map for the implementation of Arts 11 (1) and 11(2) of the Treaty on European Union. To-

wards better civil dialogue and involvement of citizens for better policy making, then adopted by a

NGO Forum, hosted by the Latvian presidency

. The EESC appears to be the "Brussels" motor of

PD and CD. A next generation represented by EESC Member Andris Gobins has taken not only re-

sponsibility but obviously also stakeholder activity to push CSO´s towards organised action.

Participatory Democracy Becoming a Self-runner

SEC (2005) 985 final

ibid, introductory remarks

ibid, summary of the motives

COM (2006) 194 final

SEC (2007) 360

Fn 2

Fn 1

Rapporteur Anne-Marie Sigmund; CESE 465/2010

see CESE 766/2012; 3 October 2012 : Principles, procedures and action for the implementation of Arts 11(1) and 11(2) of

the Lisbon Treaty

Riga, 2/3 March 2015.

The path from Amsterdam over Nice to Laeken reflected the urgent need for political success with its

solemn confirmation

to make the Union more democratic, resulting in a strong debate between pro-

tagonists and antagonists of the direct democracy community on the nature of PD

. Even then there

was talk of a European Referendum, which appears to be welcome, just look at proponents like Tony

Blair, Angela Merkel, Wolfgang Schäuble - and Jean-Claude Juncker - but has nothing to do with PD.

One preliminary note right here. Participatory democracy is neither direct democracy nor a revival of

the co-decision concept in any way. Let us part with illusions: the primary goal of representative de-

mocracy is pompously stated in Art 10 (1) TEU. PD is a just accessory and complementary element of

dignity and may be a stepping stone towards direct democracy, which is clearly underrepresented in

the Treaties, but is of another nature and should not be subsumed under "direct". Even when the ECI

comes close, it is just and only agenda setting for further reactions. PD, in particular in form of CD or

CP is not one of the binary instruments which usually end with a yes or no. PD and CD are typical

prerequisites for good governance, as it is a process to find cooperatively and collaboratively solu-

tions, horizontally first, vertically afterwards. Right this is the concept follow up of Art 11, first comes

the internal dialogue amongst the citizens, para 1, then evolve their findings to political bargaining,

para 2, afterwards the results of that process step become aired back to the public for backing or en-

richment or even denial, para 3. PD is based on the inclusion principle and has taken the step from

pure deliberation towards an outcome-related co-design. See instead of all others the doyenne of this

new branche, Beth Noveck

. We will also come back to this important bifurcation.

The Committee of the Regions- A New Player Boarding, Decentralising Participatory Democracy

If the institutions would really understand the joint chances and options of a collaborative spirit, it

would definitely induce a change of the mindset. By the way, even when not (over)burdened by the

same far reaching responsibility as indeed is the Commission, the Committee of the Regions has a

better understanding of the challenges for an urgent change of political culture, in order to reach the

citizens, when adopting and solemnly promoting its Multilevel Governance Charter in 2014.

In addition, initially there was no need of prevenient collective shift of mindset. It is, like so often in

see Laeken Declaration, 15 th December 2001

Also we have for political and communication and simplifications reasons used the categorisation direct democracy, see

Auer / Flauss, Le Référendum Européen (Bruylant 1997); Feld / Kirchgassner, The Role of Direct Democracy in the Euro-

pean Union, in: Blankart / Mueller (Eds), A Constitution for the European Union, 2004); Pernice, Réferendum sur la Consti-

tution pour l'Europe: Conditions, Risques et Implications’ in: Kaddous / Auer (Eds), Les Principes Fondamentaux de la Con-

stitution Européenne, 2006) and: Direct Democracy and the European Union… Is that a Threat or a Promise? (2008) 45

CML Rev 929.

35 See Kohler-Koch, Does Participatory Governance Hold its Promises? in: Kohler-Koch / Larat (Eds), Efficient and Demo-

cratic Governance in the European Union, 2008; Smismans, European Civil Society: Shaped by Discourses and Institutional

Interests, 9 ELJ (2003) 482, 493;

Wikigovernment, 2009; Smarter Citizens, Smarter States, 2015

history, enough that one key actor acts committedly - which is a statement clearly addressed to the

President of the EU Commission. This MLG concept and recent Charter concept was exclusively de-

veloped and improved by Luc van den Brande, who was President of the COR at the time of the PD

hype. As was, which is reflected in all of the relevant literature, one of the driving forces of PD since

the days of her mandate in the Constitution Convention and then several times as Rapporteur Anne-

Marie Sigmund, who at that time was President of the EESC. All of the afore named put their pro-

posals and documents on right that spirit, as is expressed in the MLG Charter:

togetherness, partnership, awareness of interdependence, multi-actorship, efficiency, subsidiarity,

transparency, sharing best practices (...) developing a transparent, open and inclusive policy-making

process, promoting participation and partnership involving relevant public and private stakeholders

(...), including through appropriate digital tools (...) respecting subsidiarity and proportionality in

policy making and ensuring maximum fundamental rights protection at all levels of governance.

Strengthen institutional capacity building and invest in policy learning amongst all levels of govern-

ance or to create networks between our political bodies and administration.

This is the empathy, that Jeremy Rifkin

urges and proclaims a characteristic of advanced and mature

societies.

Critical Scholarly Voices and Rumours

An unprecedented breakthrough of a European Civil Society participation invitation

came next, al-

most tuning into an hype in the 2000s. Beate Kohler-Koch

may be right when being suspicious that

we are now the heirs of post-hype times. But can we, on the other hand, really pronounce participa-

tory democracy in the EU as such as finally de-mystificated, as recently done so by Beate Kohler-

Koch / Christine Quitkat in their book title

? We agree that there are obviously disadvantages on both

sides of the "table". But haven´t we seen only half-hearted implementations and camouflages? Isn´t it

a bit daring to air such an apodictic verdict regarding such a complex issue with no past but maybe a

great future? And, above all: is it really legitimate to disavow the “masters of the Treaties”, who have

signed on to this constitutional concept this early and this fully?

Empathic Civilisation, 2009

cf. Smismans, European Civil Society. Shaped by Discourses and Institutional Interests, in: European law Journal, 9 (4),

2003, 482 ff

Fn 18

45 Die Entzauberung partizipativer Demokratie. Zur Rolle der Zivilgesellschaft bei der Demokratisierung von EU-

Governance (2011).

At the backs of our minds, we do share those warnings

addressed to the Union’s decision makers not

to neglect either the citizens’ political desires or the implied constitutional call, because, otherwise,

the final political costs would be out of proportion. The main desire of the authors of the (draft) Con-

stitution Treaty was to Europeanize the Europeans

and, as already stated above, the subsequent

Treaty also aimed at enhancing the Union’s democratic legitimacy.

There is no doubt at all that,

originally, the principle of participatory democracy – as resoundingly trumpeted by the EU Constitu-

tion Treaty

– was seen as the most appropriate means for enhancing this legitimacy, introducing a

mechanism in favour of the citizens along the idea of consociationalism

and encouraging societal

peace building.

Still, there is broad agreement that the citizens must be attracted

and affected

Unions’ issues. But is there still a consensus that Art 11 (2) TEU is the appropriate vehicle to include

the people structurally?

However, key scholarship shows that there is no consensus on whether participation is a boon or

bane

and whether it generates legitimacy

. However, the breakthrough was achieved and there was

a participatory turn.

At least as law in the books would have it. But there is another narrative on air

on the reality of open governance, open participation and open dialogues, which appears to be not so

unlikely. Since the economic crisis the democratisation and in this context the participation desire be-

came overruled by the executive primacy. The Brussels backstage rumour became richer with another

murmur as salvation for dawdling: In times of monetary transfers to Greece and potential imminent

threats to pay for several other risk candidates as symbolised by acronyms such as SSCT and SFT the

people themselves could not care less for democracy. Right or wrong?

Cf Craig, The Lisbon Treaty. Law, Politics and Treaty Reform,2011, 77ff; Piris, The Lisbon Treaty. A Legal and Political

Analysis, 2010, in particular 135ff; see also Tiemann/ Treib / Wimmel, Die EU und ihre Bürger, 2011

See only Chryssochoou, Civic Competence and Identity in the European Polity, in: Bellamy et al (Eds.), Making European

Citizens. Civic Inclusion in a Transnational Context, 2006, 219ff.

See also Lenaerts/ Cambien, The Democratic Legitimacy of the EU after the Treaty of Lisbon, in: Wouters et al (Eds.),

European Constitutionalisation beyond Lisbon, 2009

Heading of its Art I-47

Cf, still for the post-Lisbon era, Warntjen, Designing Democratic Institutions: Legitimacy and the Reform of Council of

the European Union in the Lisbon Treaty, in: Dosenrode (Ed.), The European Union after Lisbon. Polity, Politics, Poli-

cy,2012, 111ff.

See van Leeuwen, Partners in Peace. Discourses and Practices of Civil-Society Peacebuilding, 2009

Cf Castiglione, We the Citizens? Representation and Participation in EU Constitutional Politics, in: Bellamy et al (eds.),

Making European Citizens, 75ff.

Cf Hilson, EU Citizenship and the Principle of Affectedness, in: Bellamy et al (Eds.), Making European Citizens, 56ff.

Pateman, Participation and Democratic Theory,1970; CB Macpherson, The Life and Times of Liberal Democracy (OUP

1977; Barber, Strong Democracy: Participatory Politics for a New Age, 1984); JD Wolfe, ‘A Defense of Participatory De-

mocracy’ (1985) 47 The Review of Politics 370; Craig, Public Law and Democracy in the United Kingdom and the United

States of America,1990) chaps 10-11; Sintomer, La Démocratie Participative, 2009, 5

Kohler-Koch / Rittberger (Eds), Debating the Democratic Legitimacy of the European Union, 2007, 255.

Busschaert, 19

Accordingly to this paradigm shift of the "Brussels" insider-rumour - we shall explain quite soon what

its dignity means – in sum and by possibly exaggerating simple words, that participatory democracy

in the EU is not much more than a nice ornament, a cover-up. It is a fig leave for pseudo-collaboration

between the institutions and a greater handful of professional civil servants and kind of another portal

for legally officialised lobbyism, alimonied by Brussels, being far away from any kind of dialogue

with the (not-) represented real European citizenry: The Brussels civil society corps what Busschaert

calls the Brussels bubble

is a rather professional elitist body, proposed segmental experts not far

away from lobbyists

to be embedded in the Brussels apparatus.

Far away from being "civil" in

terms of being "cives"-connected to local or regional CSO roots

, they are hardly delegates in the

sense of a democratically entitled EU constituency. This means that whatever these partners bargain

is not born by and in the name of a structured EU citizenry and therefore fails the ratio legis why the

Lisbon Treaty has introduced a "constitutionalised" participatory democracy. Again, right or wrong?

Right, when carefully reading the doyenne of participatory democracy doctrine, Beate Kohler-Koch

and also when reading between the lines. We are inclined to start our study from this critical point of

view and to better assume the work hypothesis for strategic reasons. However, this would be better

answered when having finished the study, because sum-up-perceptions are not a trustworthy source.

Wrong, if we listen to the rumour mill. It is indeed important to refer to those opaque sources in the

beginning, because there are some severe indicators that also "rumour" is rather a kind of a balance

than a pure chimaera or wool-gathering, f. ex. when the EU Commission´s President Jean-Claude

Juncker states a concern like that one in our header on top. This comes not from nothing, when com-

ing from the most "Brussels" stamped mandarine since the days of Walter Hallstein or maybe Jacques

Delors. To call upon his own commission to go with all its energy for the citizens is not a subordinate

clause but a lump-sum-expression of insight that the citizens are not at all embedded in the Union

which includes conclusive awareness that also the Civil Dialogue can and could not attract the Euro-

peans yet. Emily O´Reilly, the EU Ombudsman, opened right within her very first months of surveil-

131

Justin Greenwood, Interest Representation in the European Union, 2007, 215; Quittkat / Kotzian, Lobbying via Consulta-

tion - Territorial and Functional Interests in the Commission´s Consultation Regime, in Journal of European Integration

(2011) 33, 401ff

see Kohler-Koch / Finke, The Institutional Shaping of EU Society Relations : A Contribution to Democracy via Participa-

tion, in: Journal of Civil Society (2007) 3, 401ff; see also Boussaget / Dehousse, L´Europe des Profanes : L´Experience des

Conférences Citoyenees, in: Costa / Magnette (Eds.), Une Europe des Élites? Réflexions sur la Fracture Démocractique de

l´Union Europenne, 2007;

cf. Lundberg / Sedelius, National Linkages and Ambiguous EU approaches among European civil society organisations,

in: Journal of Contemporary Research, 10 / 3 (2014), 321 ff

Kohler-Koch / Quitkat (Eds), Demystification of Participation, 2013; see also Hüller / Kohler Koch, Assessing the Demo-

cratic Value of Civil Society and EU Democracy Engagement in the European Union, in: Kohler-Koch / De Bièvre / Malo-

ney (Hrsg.): Opening EU-Governance to Civil Society, 2008, 167 and Kohler Koch, Civil Society and Democracy : "Astro-

turf" Representation? in: JEPP (2010), 17, 100 and Kohler-Koch, How to Put Matters Right? Assessing the Role of Civil So-

ciety in EU Accountability, in: West European Politics (2010) 33, 1117

lance a "strategic own-initiative" to investigate on the participatory democracy´s practice on the fail-

ing of the overarching goals of the European Citizens Initiative (ECI)

and on the admittance-

procedures for the admissibility of representatives

to the Civil Dialogue (CD)

. So, rumour per se

must not be wrong, if the murmur is that one amongst insiders, then suddenly rumour becomes an in-

valuable source and part of evidence. Talking in terms of overarching goals such as citizens’ trust and

confidence even hearsay, in particular that of the tabloids could well become a serious factor of im-

pacting legitimacy positively as well as pejoratively, and we must therefore keep an eye on it.

Why this sidestep right at the beginning? Reason number one: Because scholarship often does little

more than compiling all available bits of information into a new kaleidoscopic picture or kaleidoscop-

ic pictures. And after years of masses of analyses on CD and PD, we still face a favoured resume like

"ambiguity still surrounds the concept"

. So, these pictures of course always have the same handful

of basic elements but with the slightest turn of the kaleidoscope shows different patterns and these can

mostly not be harmonised because the sampling belongs to diverse premises; those – sometimes more

and sometimes less self-reflected – rules is debated worldwide by the civil society debate

, often in a

very open style

but rarely with such empirical proof as recently found in a study of a group of labour

unions, The Fire Power

, although in the context of expert groups, which are rarely part of civil soci-

ety. Though vividly denied, even scholars have their own premises and that also does not allow scien-

tific sources not be exempt from critical reviewing in regard to these premises; premises, whereas,

appertain to either aporia or rhetoric - as, by the way, does rumour. Reason number two for not strict-

ly rejecting report as a source: A "good" rumour has a rational background and the scientific commu-

nity ammunitions the apparatus with a variegated arsenal of arguments

, one will always fit - if and

when one is needed at all. Because the very recent doctrines on political communication and political

psychology

teach us unisono that politics is all about people´s perception and not assertions, neither

those from official documents and releases nor those from political and legal scholarship. The chal-

http://www.ombudsman.europa.eu/de/cases/correspondence.faces/en/53106/html.bookmark

I consider that the Ombudsman's proactive intervention through launching the present own-initiative inquiry at this stage

appears to be in the interest of all the parties involved and will in all likelihood strengthen citizens' trust in the outcome of

the selection....

http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/54297/html.bookmark; addressed to DG AGRI

Laine, Debating Civil Society : Contested Conceptualizations and Development Trajectories, in: International Journal of

Not-for-Profit Law, 16, Sept 2014/59,

Cohen / Arato, Civil Society and Political Theory, 1994, 425ff , Ehrenberg, Civil Society, 1999, 235; Salamon /

Sokolowski / List, Global Civil Society, 2003; Evers / Laville (Eds), The Third Sector, 2004; Heinrich, Assessing and

Strengthening Civil Society Worldwide, 2003; Barber, How to make Civil Society and Democracy Strong, in: Giddens

(Ed.), The Global Third Way Debate, 2001 and foremost Habermas, Between Facts and Norms: Contribution to a Discourse

of Law and Democracy, 1996, 366ff ,

So f. ex. van Schendelen, Machiavelli in Brussels : The Art of Lobbying the EU, 2007; Persson, Participatory Governance

in the EU : Enhancing or Endangering Democracy and Efficiency, 2011

Haar / Hoedamann, Corporate Europe Observatory, 2014

see De Schutter, Europe in Search of its Civil Society, European Law Journal (2002) b, 198, 202ff or Smismans, The Con-

stitutional Labelling of "the Democratic Life of the EU" , in: Dobson / Follesdal (Eds), Political Theory and the European

Constitution, 2004, 19ff

Brader, Campaigning for the Hearts and the Minds, 2006; Westen, Politcal Brain, 2007; Lakoff, The Political Mind, 2008

lenge posed by a slightly but ever decreasing standing and acceptance of the EU

has to do with the

perception of "Brussels" very own rational, let us say attitudes. For that matter - and this is also a cru-

cial back-stage hard fact for this study – it is their right to feel and sense. In our Western democracies

citizens are not obliged to give reasons for their opinions and senses. Citizens are also not obliged to

reasoning as judges are, they simply vote by yes or no. In other words: citizens are entitled to address

an emotional yes or no to the Union. So, what we have stated, when reflecting on the desire of the

Preamble of the Lisbon Treaty, which concerns itself with enhancing legitimacy and to this end has

introduced participation rights: we must not forget for a single moment that this Lisbon consideration

is the core parameter for this study and its intrinsic objective. Everything revolves around one key

question: is participatory democracy and are the dialogues in particular of such outreach, notoriety,

essence, quality and nature that would allow Europeans to be more trusting and thus accept the Union

as being their Union? Or in other words, do the dialogues impact the European citizenry to leverage

the Union more legitimacy, be it input-legitimacy or output-legitimacy, yes or no? For this reason we

have introduced with Jean-Claude Juncker’s highly wise and deeply concerned famous quote: bring-

ing the citizens closer to Europe - or we will fail! This challenge must also be addressed in regard to

the CD. Actually, this is the core function of the CD - bringing the citizens closer to Europe (Junck-

er). All other functions, as delivering expertise, safeguarding communication or enhancing efficiency,

are highly welcome and optimising them is indicated but even these synergising optimisations have

to, in the long run, support the core function of enhancing EU legitimacy.

Legitimacy from "Below"?

Scepticism is a common feature of scholarly literature

. Therefore our permanent crucial levelling for

the probability and functionality of the PD and CD is: if and under which circumstances could they be

a serious legitimacy leverage? What to do in order for European citizenry to take positive notice of

the CD with the end goal of legitimacy

increase?

Here we are: we have a proactive proUnion premise and we intend to refute the rumours' destructive

message. For this reason we have primarily invited the real actors and also urged them to not just in-

dignantly refuse and launch a counter-narrative, but to show up honestly and openly with all facts that

EU Commission : Eurobarometer from 2010 up to 2014

See recently Liebert, U et al. (Eds), Democratising the EU from Below? Citizenship, Civil Society and Public Sphere,

2013

Sudbery, Bridging the Legitimacy Gap in the EU : Can Civil Society Help to Bring the Union Closer to its Citizens? in

Collegium 26, 75, 93ff; Saurugger, The Professionalisation of Interest Reprsentation : a Legitimacy Problem for Civil Soci-

ety in the EU?, in: Smismans (Ed.), Civil Society and Legitimate European Governance (2006); Warleigh, Making Citizens

from he Market= NGO´s and the Representation of Interest, in: Eallamy / Castiglione / Shaw (Eds.), Making European Citi-

zens : Civil Inclusion in a Transnational Context, 2006, 128ff; Jordan / Maloney, Democracy and Interest Groups : Enhanc-

ing Participation? 2007, 191 fff; van Deth, The "Good European Citizen" : Congruence and Consequences of Different Point

of View, in: European Political Science, 175, 183ff ;

could be adequate and appropriate to rebut the rumours’ core content and to find a way for attracting

the Europeans by participatory democracy. We understood this authentic sourcing as most appropriate

way of creating accuracy and certainty.

Solid Grounds for Making the Case in Sight?

More trustworthy external indicators than simply hearsay and rumour are available, indeed, but even

they are laying low. To intensify the lectors’ attention to the "fundamentals", a short preview on an

example that we shall later focus on more intensely: The most recent survey on CD/PD, the "Evalua-

tion of DG TRADE´s Civil Society Dialogue"

, delivers an unprecedented amount of notes on how to

make the dialogue more "efficient" - particularly for the DG Trade. In respect to our intrinsic funda-

mental requests it contends itself with call backs and re-questions further follow-up investigations. So,

even when making a short reference to Art 11 and an even shorter one to the Lisbon Treaty, the case-

making and real constitutional core desideration has not been on the "radar". Unfortunately, there is

no reference to the constitutional "dignity" of the participatory democracy and civil dialogue. Even

though an outstanding study per se, it is perfectly done for operational reasons but not for strategic

reasons. Its overall "evaluation" is done in a business-consultant feasibility study style. Note: CD is

not a "business"; hopefully not. The EU institutions / Commission are not an enterprise; hopefully

not. And Civil Society is neither a customer nor a client; hopefully not. Concerning the corporate cul-

ture and corporate goals, it is recommended that DG Trade finds a self-commitment, to which end

"its" dialogue should become dedicated, whether it should be rather a knowledge tank or an appease-

ment trust or something else. Coffey-Deloitte, is the "constitution" making the desideration and not

DG Trade. It is the Lisbon Treaty setting the overarching goal for the dialogues under Art 11 TEU,

and not some efficiency, efficacy and effectivity doctrines; this would be the wrong premise. CD is

literally (!) about "principles of democracy"(sic)

and about the fundamental purpose, namely, to en-

hance legitimacy, which then again intrinsically means to bring the Europeans closer to their union

(Juncker). It is the Coffey criticism that DG Trade should replace its vague political considerations by

strong (business) "objectives" that must be criticised. Rightly so, DG Trade is on the right political

way.

As long as we have no in-depth studies based on in-depth interviews and real honest, true and authen-

tic self-evaluations that must also be mutually and unanimously consented by the real actors and the

citizens and as long as we have no such consensuses (which therefore rightly so can be the only

source of and for further interpretations) we are no nearer to the "truth". Actually, there is, as is usual

in democracies, only one "final" proof: the sovereigns, meaning electorates vote. In our case, when

Coffey International Development together with Deloitte, Final Report of July, 2bth 2014, Luxembourg 2014

Lisbon Treaty, Headline of Art 8

Brussel’s efforts of citizens inclusion would have led to a significant increase of legitimacy, which is

measured in the valuta of enhanced acceptance. We must continue with puzzle-like method until we

can come asymptotically to a likely objective consented solid common (or dissented) conviction; that

is why we use - despite deeply respecting the existing sources of knowledge and awareness - an em-

pirical design and let the involved speak out clearly, without guiding them except for contesting the

constitutional dimension and awareness of the "fundamentals". Because one fact is clear and that is

also one of our core objectives: due to the crucial importance of a successful CD there is a serious

need to identify the real actors and the factors for success - or mishaps, strictly evaluating in the light

of legitimacy leverage and not in the light of secondary issues like efficiency or costs.

In order to start with a reference to authentic fact finding, we must mention an attempt to sit almost all

considered CD "relatives" around one table. The Austrian Institute for European Law and Policy

or-

ganised and carried out a series of initial joint workshops in Brussels throughout 2012, which was lat-

er published in the conference report "Open Dialogue"

. Invited were representatives from nearly

every sector that generally some form of a connection with CD, foremost the CD driving force EESC

and of course, all CD relevant "institutions", but also including authorities like the European Om-

budsman or the Committee of the Regions, COR. Even dialogue-averse entities were invited, as the

Commission des Épiscopats de la Communauté Européenne, COMECE, the European Bishops Con-

ference and many others that are not genuine CD-actors but stakeholders nevertheless.

1. Mandate Description and Scope

i. The Mandate - Ascertaining the Status Quo

The contracted mandate of this study is quite extensive and capacious: This study shall make a clear

picture of the CD situation in order to identify what exists, by underlining the patterns and recurring

elements. It shall thus fill the present gap in knowledge in the EU Commission/ DG´s which lack a

coherent and comprehensive view of what has so far been put in place. The study is supposed to pro-

vide a more complete overall assessment of the results achieved, the tangible impact on the legislative

process, the intervening unexpected developments, the problems encountered, the shortcomings and

incongruities noted, while lastly identifying the elements required to ensure a more appropriate and

wider participation. The study should also assess the actual effectiveness and scope of the current sys-

tem of structured cooperation with civil society, and consider ways of making it more effective. It

should also consider good practices that could be put forward and how to develop them further. As

far as possible, the study will further assess how and to what extent this considerable body of work is

www.legalpolicy.eu. This research institute is born by an association built by the Austrian Federal Chancellery, the Aus-

trian Federal Ministry for Science, Research and Economy, the University of Graz, the University of Salzburg, the State of

Styria. It is tri-located in Salzburg, Edmundsburg, Vienna, Hofburg and Graz, Resowi-Center.

published in Pichler / Balthasar (Eds), Open Dialogue, 2012

known and perceived outside the circles concerned, and how it contributes to broadening democratic

participation and increasing support for the European project and thus to the shaping of a European

public space.

The core means of the empirical fundament of this study is a standardized questionnaire which is to

be completed with required information and complimentary comments by the interrogated DGs and,

as far as possible and accessible, CSO´s and RA´s in cooperation with DG´s. The study will be car-

ried-out in a spirit of intellectual honesty and primarily with the end to enrich the institutions with re-

flective awareness and knowledge, all in order to support the Lisbon Treaty´s

consideration of in-

creasing EU´s legitimacy.

ii. The Limits in Law and Democratic Potential

First, there was an imminent intrinsic limit for the outcomes of this study and this is a subjective one,

i.e. the appearance of the actors. As a prominent book title "De-Mystification of Participatory Democ-

racy"

signals, there exists a factual reality that calls for caution. Potential factual hurdles and hin-

drances can be caused by the professional strategic habits of the "players" by showing up with diplo-

matic answers, which can be biased by subjective impressions. Mutually diverse perceptions of the

reality of the CD can raise challenges and uncertainties for an appropriate interpretation. These

"risks" are highly substantial, as authentically documented in our aforementioned "Open Dialogue";

diverse positions can sometimes not be brought to a common lowest denominator without conclusive-

ly deforming the reality. The crucial precondition is that the only entities that could assure solid and

valid empirical evidence are prominently the EU Commission respectively, as well as the Directorate

Generals and the CSO´s & RA´s that are participating in the CD. Also CSO´s that were not admitted

due to illegibility, could also be a valuable information source of the "truth", but how to come to a

representative selection? All depends on the intellectual honesty and open-mindedness and coopera-

tion of all of the actors. This study could therefore never be better than the input information it is ini-

tially given.

Another limit of this study is an objective one, namely the selection of the dialoguing institutions. By

concepts of the Union Treaty PD, in general and CDs in special belong to any of the institutions, ex-

cept for the ECI under Art 11 (4) TEU and the CP under Art 11 (3) TEU, which are solely addressed

to the EU Commission. Despite this wide responsibility, it is the EU Commission that runs the CD

despite whatever kind of dialogue the other institutions carry-out, we cannot honestly talk of a "civil

dialogue" as is designed under Art 11 (1) and (2) TEU. Nevertheless, we did contact some institutions

Preamble: "desiring (...) to enhancing the .. democratic legitimacy..."

Kohler-Koch / Quitkat (Eds) , subtitle: EU Governance and Civil Society, 2013; see Fn ...

in addition to the key player, the EU Commission. Committedly we did not invite to the recently re-

ferred workshops the European Court of Justice, the European Council nor the Court of Auditors -

and this approach will be continued in this study. Independently from the hard fact that in none of

these parts of the institutions is there CD, we do not raise the question as to why this is so or how to

change it. We refrain from doing so for good reasons: Honestly, who would see citizens or civil socie-

ty´s participation as of any use for the highly professional objectivising task of the Court of Auditors

and Central Bank

as there is no space for democratic or participatory co-ordination. Furthermore,

who would think in all seriousness of favouring the Prime Ministers of the MS in the European Coun-

cil with assistance of civil society organisations? The consensus finding process in the European

Council is nearly a mission impossible as it is set-up now; participatory democracy could not ease that

mission. Finally, who would seriously favour a civil society "consultancy" for making the European

Highest Court more just by way of lay assistance?

One could of course find arguments for applica-

tion of lay advice and participation structures even in these cases and circumstances. However, the

smallest sense of proportion should allow for the realization that this is not much more than an intel-

lectual game of fiddling-around. Since gamification is not currently on our agenda, we skipped over

this segment of the institutions, without giving further long winding explanations.

Sources for analyses in general and in particular for the design of the questionnaire and for better un-

derstanding the analysis of the legal and procedural regimes are manifold, but one premise appears to

be evident - It´s all about Politics.

iii. Introductory Explanations on "What Exists"

Our core instrument to track the perceived reality of PD and CD in action will be an in-depth Ques-

tionnaire. To match the right issues and topics requires an all-round access. There are manifold

sources and factors that make the overall-reality, "what exists" consist of many "what exists". There

are

• law related foundations and implementations in front of all other bases. But law per se does not

create reality, there are several impacts and biases that make "the reality" in the end, as to

• very different points of view, which indeed exist

• very different and highly volitive expectations, which also truly rule and are in so far "what ex-

ists"

see Mendes, CMLR 2011, 1869, questioning whether a “restrictive or corrective interpretation” should apply even to “are-

as such as the common foreign and security policy or the budgetary policy of the Union.”

so already Lopez, The Lisbon Treaty’s provisions on democratic principles: a legal framework for participatory democra-

cy, European Public Law 2010, 123ff, 132, wondered “how the Court of Justice, that exercises its jurisdiction in accordance

to the principles of independence and impartiality, should consider the arguments provided by civil society”.

• perceptions as they influence the implementation of the constitutional orders more than one would

suppose, because, as mentioned, there is much constitutional leeway for interpretation of how to

implement

• systemic barriers and hindrances as limits by administrative "circumstances", which also exist

• subjective attitudes and habits which rule PD and CD as a matter of fact

• this means that it is necessary to focus on

• legal documents primarily, but as well on

• genesis - which we´ll do then - as some imprints can be found, which stem from the pre-Lisbon

era and which unconsciously impact the habits. One should keep in mind that key players in the

apparatus, primarily civil servants but some politicians as well - originate from pre-Lisbon times

and do their jobs following inherent routines. Routines, or red tape, are mostly deeply internalised

and somehow resistant against political turns. In German there is a saying that best illustrates this

point: I have seen so many ministers come and go ...

• environment - HCD and VCD are not lone standing instruments, as there is an overall constitu-

tional architecture. This indicates an overview on the other instruments of PD and how they

should be handled, because it is highly unlikely that mainstream attitudes should change from one

particular instrument to another.

• authentic overall evaluations - as the announced Brussels’ workshops, Open Dialogue, results de-

livered by the CD stakeholders

• studies - as aforementioned, analysing the CD in DG Trade, which we present and evaluate in

chapter of its own, because of its benchmark setting for several questions in our questionnaire

• overall report on a "Joint Seminar on Civil Dialogue under Art 11(2) TEU" - as held amongst

high-ranking representatives of DG´s, which offers an overview on the - consented - reality of

VCD and therefore justifies a particular chapter

• literature in general - which mirrors all the heterogeneity and uncertainties around the PD and

CD, its function, its promises, deriving in particular from

• political sciences and sociology - which courageously incline to open Pandora’s box but can not

rule as a genie when out of the bottle, and therefore we use this source as integral seismograph but

do not dedicate to it a separate chapter, as well as from

• legal scholarship – which is usually solid ground for explaining the factual limits, also tending to

believe in their own "lawyers´ self-created reality", den juristskapte verkeligheten

, which in our

case is not so, as this body is somewhat divided. Because of the lack of concrete judicature they

tend to make presumptions. But these are worth to be presented in a particular chapter, because

they analyse and focus on the normative essentials for future potential regulation or judicature.

so the legal-sociological - bit sardonic - valuation of Gravers

All these points taken altogether build the fundament of the investigation as well of the final evalua-

tion. In addition to specific references, key legal sources are incorporated in our Mapping (Annex).

2. The PreLisbon Roots of the Current Legal Regime

The CD had a praeter legem embryonic life for decades before the Union Treaty and this was then

called the structured civil dialogue (SCD)

. It was born by usance and was installed by political acu-

men than by a formal obligation. The Union Treaties since Amsterdam recommended

that the insti-

tutions may make use of this communication and pacification strategy. So, this invitation by a vague

"may" was followed by some entities of the institutions but the major part of them did not much care

for that. In other words: when seen as opportunity to deal or at all to bargain with civil interest groups

they did, but never sensing this instrument as obligatory. It was an ornament, and rightly so. In socie-

ties based on the Rechsstaatlichkeitsprinzip and legality principle, somewhat synonymously but not

truly identical to the aka rule of law, a "may" is no more than a may and lack of clear commanding

implementation regulation caused a perception of a voluntary something.

Then came the "Convention on the Future of the EU". And then, too, came the project of the "Consti-

tution Treaty"

, with its strong political commitment

to attract the Europeans for the Union by giv-

ing them participation rights and deliberative (semi-) direct democratic instruments. It served as a

landmark in terms of political history, a benchmark for the protagonists of collaborative democracy

and an unseen challenge for the apparatus. As a result, the (then defeated) "Treaty Establishing a

Constitution for Europe" trumpeted a "Principle of Participatory Democracy" (Art I 47). After the

Constitution Treaty, the (semi-) direct democracy hype turned out to be a bit less “hot“. The Brussels’

and Union´s former communis opinio on favouring (semi-) direct democracy, in other words partici-

patory democracy appears to have dissipated along with the disappearance of the high-flying idea of a

Constitution.

See instead of lots of secondary literature the Sigmund-Report, adopted September, 22, 1999; CES 851/1999 D/GW. This

is the authentic source, since Sigmund, EESC president 2005 - 2007, was "on deck" long time before and then member of the

"Convention of the Future of the EU" and, as another contemporary witness, Malosse, the incumbent president of the EESC,

recently stated, "Sigmund is the "mother of Art 11 TEU" (online statement Dec 11th, 2014; see

www.eesc.europa.eu/myeurope ) As is true, that every victory has many fathers, it is indicated to add, that also Lamassoure /

Mayer / Häfner et al, most of them coming from the IRI - Initiative&Referendum Institut - have been pushy and savvy "lob-

byists" of the constitutionalisation of participatory democracy.

see sabove

This "Treaty establishing a Constitution for Europe" (TCE); Official Journal EU: 16st December 2004, Vo. 47 C 310, was

the product of a joint assembly, so called Constitutional Convention. This Treaty was already ratified by a majority of EU

Members States when a French and a Dutch referendum brought this process to a halt in 2006

see for the short history of this Art I 47, in particular I 47 (4) Pichler, Revolt of the Stars, 3ss and Pichler, The European

Citizens´ Initiative, 12ss in: Pichler (Ed.), We Change Europe. The European Citizen Initiative - Art 11 (4) TEUnv, 2008

Nevertheless, the participation arts in the Lisbon-architecture and in Union Treaty´s Art 11 are sub-

stantially the same provisions with perfectly identical wording as those former ornate formal "Princi-

ples“. Thus, from a legal-sociological perspective, we suggest to suppose that there is still the "silent"

concept of a principle of participatory democracy in the actual version of the Union Treaty as well,

though not expressively called by this name. The Lisbon architecture has wisely organised the Civil

Dialogue under Art 11 TEU into two dialogues: One which is supposed to be carried out, so to say, on

equal footing between citizens and citizens and their own representative associations. Let us assume,

this is the pre-dialogue for any further dialogue, the issues and mission finding assembly, could may-

be become the future recruiting arena for the future delegates to the next to present dialogue: The oth-

er form of dialogue is the one between representative associations and civil society and the institu-

tions. The former is called Horizontal Civil Dialogue and the latter Vertical Civil Dialogue. How

come? More research was necessary to find out the origin and the originator of this fateful semantic

dichotomy only to establish that it was solely Anne-Marie Sigmund who authoritatively invented this

terminology in her report. As a tutor of the citizens one owes the effort to make an objection. To call

the Art 11(1) TEU dialogue, citizens to citizens, "horizontal" makes sense. However, calling (or fram-

ing as) the dialogue between civil society and the institutions "vertical" cannot be accepted, as this is a

contradictio in adjecto: Either we speak of a dialogue, meaning intrinsically a communication in mu-

tual respect and without any bias of a hierarchy. Or we talk of an asymmetric relation. In that case

could the qualification as "vertical" be truly adequate? Better not to talk of dialogue and for that mat-

ter, there is neither the categorisation of the Union Treaty nor is there any indication that the Union

Treaty could have understood this in such a way.

Beyond terminological philosophies we need to look for the reality of implementation. One might ex-

pect that a sense of personal responsibility for the constitutional

fate

of this Union is a driving factor in

favour of the constitution´s ideal. Let us conclude with our refrain: However, the Lisbon Treaty or-

dered the amending Union Treaty in very clear words to enshrine "Title II: Provisions on Democratic

Principles"

. Let us try to find out later what principles are worth and first focus on the environment

of these two orders of having an apparently obligatory dialogue; we´ll also come back to the nature

and legal status of the dialogues.

covering Art 8, which is now Art 9 TEU; Art 8 A, which is now Art 10 TEU and Art 8 B, which is now our main focus,

Art 11 TEU

3. The Collateral Environment - the Wider Perspective on Participatory Democracy

An overview - for a more detailed evaluation see the annexed Mapping

Art 10.3 TEU / Art 15TFEU

“Citizen-Centered Democra-

cy“

Every citizen shall have the

right to participate in the dem-

ocratic life of the Union. Deci-

sions shall be taken as openly

and as closely as possible to

the citizens

Art 11.1 TEU

“Horizontal Civil Dialogue“

The institutions shall, by appro-

priate means, give citizens and

representative associations the

opportunity to make known and

publicly exchange their views in

all areas of Union action

Art 11.2 TEU / Art 16 TFEU

“Vertical Civil Dialogue“

The institutions shall maintain

an open, transparent and regu-

lar dialogue with representative

associations and civil society

Art 11.3 TEU

“Consultation Procedure“

The European Commission

shall carry out broad consulta-

tions with parties concerned in

order to ensure that the Unions

actions are coherent and trans-

parent

Art 11.4 TEU

“European Citizens’ Initia-

tive“

(...) one million (...) of (7)

Member States may take the ini-

tiative of inviting the EC, within

the framework of its powers, to

submit (...) where citizens con-

sider ...to implement Treaties

Art 17.3 TFEU

“Dialogue of Values“

Recognising their identity and

... contribution, the Union shall

maintain an open, transparent

and regular dialogue with these

churches and organisations

Art 24 TFEU / Art 44 CFR

“Petition Right“

Every citizen shall have the

right to petition the European

Parliament ...

Art 24 TFEU /Art 43CFR

"Right to apply to Ombuds-

man"

Every citizen shall have the

right to apply/refer to the Om-

budsman ...

see here and in general in the next parts Pichler, Legal Political-Sociological Reflections on the Participatory Democracy

“Principle” in the European Union Treaty, in: Ketscher et al., Velferd og rettferd. FS Kjönstad, 2013, 463

II. Essentials for the Study and for the Questionnaire

In the case of both horizontal and vertical civil dialogue, a re-appraisal of the first years of implemen-

tation will reveal not only the different perceptions of these two instruments but also whether they

passed from the realm of legal and political theory into legal reality.

It has already been suggested to not overdo conclusions on reality for the time being, especially on

new or renewed chapters. The "professional Brussels“ backstage rumour argues that most of what ap-

pears to be new is not, and that which is really new, like the European Citizens´ Initiative under Art

11(4) TEU is nothing which will call in a new era. We agree. Brussels’ rumour continues that deliber-

ation is oxymoron and refers rightly so to the disunity on the nature of deliberation in action in litera-

ture.

with the average citizens´ body

no being truly and honestly eager to develop a lively partici-

pation for the sake of democratising the EU except when having an interest.

From this perspective,

this democratisation is a welcome argument for another sort of lobbyism that does not prove its own

democratic legitimation. If there is deliberation, then it is far away from Habermas credo of being co-

ercion-free. Thus the common perception of stakeholders and professionals is that the Constitution

and its Art 11 do not make any significant difference compared to the present reality. Again: Right or

wrong?

1. Taking into Account the Implementer’s Chemistry and Climate

A politologist, policy adviser and one of the most outstanding "nation brand" experts, Simon Anholt

stated as keynote speaker invited by and in the European Parliament in 2011: " The problem with the

politicians and the civil servants as a breed is this: They deal every day with incredibly serious mat-

ters (...) but they make the fatal error of believing, that because their job is so serious they also have

to be boring (...) because it´s the boring policies that fail to grasp imagination, fail to communicate

themselves and consequently fail to do any good (...) You then have to use hard power rather than soft

power to make them work. So, imagination in policy making is critical. For the European Union to

See f. ex. Curtin, ‘Civil Society’ and the European Union, 1999, 202ff or Cohen and Sabel, Directly-Deliberative Poly-

archy, in: ELJ (193,97) 313; Nieuwenburg, Democratic Life in Europolis, in Kinneging (Ed), Rethinking Europe's Constitu-

tion,2007, 165; Saurugger, Interest Groups and Democracy in the European Union, 173ff

see only contributions in Smismans (Ed), Civil Society and Legitimate European Governance, 2006 or Kohler-Koch, The

Three Worlds of European Civil Society, 50ff

see Saurugger, Interest Groups and Democracy in the European Union’ in: Beyers et al (eds), Interest Group Politics in

Europe: Lessons from EU Studies and Comparative Politics, 2010; Justin Greenwood, Interest Representation in the Euro-

pean Union, 2011; Hendriks, Integrated Deliberation: Reconciling Civil Society´s Dual Role in Deliberative Democracy, in:

Political Studies, 54, 486ff, Eder, The Making of a European Civil Society: “Imagined”, “Practised” and “Staged”’ (2009) in

Policy and Society, 28, 23ff ;

link https://www.youtube.com/watch?v=baxr9Ie0zqg

becoming imaginative in its policy making would require structural change, but (...) governments de-

liberately exclude imagination. They encourage their employees that they should leave their hearts

and their heads, the only organs that make us a special species in the refrigerators at home when they

coming to work."

This professional evaluation should be kept in mind when reflecting on the climate that rules as well

as the reality of conceptualisation of the dialogue.

i. The Need for Imagination

The Union faces a body of executives who are top professionals. Occasional emotional derailings like

Lady Ashton’s "I love Europe", and the new President of the EU Commission Jean-Claude Juncker’s

initially cited statement none withstanding. Maybe they are supposed to be on the opposite end of the

type of spectrum which Jeremy Rifkin challenges in his Empathic Civilisation

. On the one hand it is

a very distinguished body of highly educated and highly experienced civil servants, but on the other

hand, it is a corps that feels content in showing a certain distance (including each of the double-

meanings) to its own object. Although "professionals" are generally used to being in that mood name-

ly being professionally "biased", this attitude appears to be problematic in any context of political is-

sues. But, of course, we could as easily defend this professional habit. The tremendous success of the

EU appears as the result of a rather silent, sometimes stormy, although most of the times rather boring

but highly persistent and tenacious administrative, step-by-step, straight-on, labouring along and

muddling through procedure. Enthusiasm - in "their" professional view - is not the coherent principle

of the EU which explains why the apparatus thinks people better keep out of "their" business. Once

again: Right or wrong?

Wrong. This should be the spontaneous answer of everybody who sides with the intrinsic "Rifkin

mood" of empathic science

or of an empathic civilisation

or with Anholts’ analyses from a rather

result-related perspective. Not only that, but also for a legal historian who knows that times are al-

ways changing it appears as indicated to come to a "wrong": sometimes for bad reasons and with a

bitter end, yes, but only sometimes. Thus we also try to view these participative hopes as being in

transition at the time from the direct democracy approach to the Noveck approach, i.e. collaborative,

cooperative democracy approach

, mostly, and in accordance with the laws of evolution, in transition

toward improvement. But such an "empathic" view on evaluation could also be blamed as just another

result of another professional deviance, in our case here, that of a legal historian who predicts that

nearly every idea that was in line with evolution had to break through sooner or later. Furthermore,

ibid 29: 39 - 30:52

2009

Rifkin, Empathic Civilisation: An Address before the British Royal Society of Arts, March 15th 2010 , Chapter III

www.coe.int/t/dg4/.../cwe/EmpathcCIV_EN.pdf

Rifkin, The Empathic Civilisation, 2009

see recently Noveck, Smarter Citizens, Smarter States, 2015; also Beth Noveck, Wikigoverment 2009 and more often

self-determination, which in terms of politics is what participation means in its overarching nature - is

an evolutionary and humana conditio self-runner. However, we have to confess here that Wittgenstein

would not agree on predicting the future solely on historical experience.

ii. Where Best to Start with an Evaluation and a Disclosure?

As announced, it is best to skip over an in-depth reflection on the Consultation Procedure under Art

11(3) TEU, which is a typical one-way instrument without any nature of a dialogue. Let us begin with

the European Citizens´ Initiative, which can be viewed as having the nature of a dialogue, and then to

come to our core task, the Civil Dialogues. Since the first instrument is momentarily under intense

public debate as the role model of participatory democracy, it seems to pay-off to refer intensively to

the fairly well-known, well-documented and long-winding public "battles", for they best show the

patterns on how to deal with Participatory Democracy when being urged from bottom-up.

Having come into force and into action on April 1

of this year 2012, the public’s focus is, therefore,

on this first transnational "tangible" tool. Often seen as direct democratic tool, it in actual fact is not.

The latter ones are still under silent but serious construction at the moment and hopefully this study

can contribute to enhance and enrich the new philosophy and follow-up architecture of, at least, the

VCD.

Referring to a broad emanation

we conclude: This instrument did not really work out in increasing

legitimacy, because of - to put it short and sweetly - lack of passion on the EU Commission’s side and

slightly averse habits due to neglecting the potential win-win option and not realising the potential of

a new communication channel.

2. The Horizontal Civil Dialogue at First and Final Glance

i. Communication‘s a one-way nature

By reasons of vague feelings that the Union should carry-out dialogues in general, we can see numer-

ous endeavours to invite citizens and civil society organisations to make up their minds - here and

there: Open Days, as annually carried-out by the Committee of the Regions; Citizens Day (Civil Soci-

ety Days; ECI Days) as organised by the Economic and Social Committee, the Citizens Agora, and

other great efforts as offered by the European Parliament, are all highly welcome means of inclining

the European citizenry to improve positive empathy for their Union. Already the title and the question

Pichler, Legal Political-Sociological Reflections on the Participatory Democracy “Principle” in the European Union Trea-

ty, in: Ketscher et al., Velferd og rettferd. FS Kjönstad, 2013, 463ff

mark behind the highly sceptic book "Europäische Öffentlichkeit durch Öffentlichkeitsarbeit"

? (A

European Public Sphere by Public Marketing?) summarises and signalises the entire result: com-

municating, marketing or even branding attempts - see again the harsh EU related evaluation of the

foremost prominent European branding expert, Simon Anholt

100

- are standard, self-evident, neces-

sary and welcome activities, of course, but not an appropriate means to empower EU citizens.

Despite the temptation to analyse these citizen related events in more depth, we commit ourselves to

refrain from such an act: The Union Treaty has implemented a very specific connotation as to what a

dialogue in the constitutional interpretation is about - and all that does not fit into this legally denoted

pattern, even dialogue in a very unspecific meaning. Yet it is not a dialogue under the constitution’s

authentic interpretation. Therefore we refuse to entrap ourselves with subsidiary measurements and

skip over those activities in order to not dilute the serious content of the dialogues as are ordered by

Art 11(1) and (2) Union Treaty.

ii. The PD Orphan - Lack of Trust in Citizen´s Benevolence

The HCD under Art 11 (1) TEU, is just another orphan, if not alien. Let us explain these harsh com-

parisons. We have no indication yet that there has been any attempt to install or to motivate or to sup-

port this instrument - except for the newly started project of the EESC, "My Europe....Tomorrow",

which could rightly be seen as a surrogate fulfilment of the Art 11 (1) TEU promises, but introduced

by the not-ordered entity, since the EESC is not qualified as an "institution". Therefore we incline to

see the EESC in the function of surrogate motherhood. We´ll come back to this idea shortly.

Why is there so absolutely no engagement from the constitutional addressees?

Honestly spoken, in respect to the intellectual "game", the argumentation was quite surprisingly crea-

tive and challenging, as it was not that easy to leverage the bastion of hard core professionalism: First,

we imposed the argument that an order by the TEU is intrinsically to be followed by whoever could

be competent. Rejection: constitutions sometimes ornate themselves with programmes and solemn

proclamations, suggesting objectives rather than binding law. Replica: This could have been an appli-

cable exception when earlier in the Treaties there was talk about a "may". Now that we face a clear

command by a rigid "shall" there is no longer space for sophisticated interpretation. Triplica: Well

then, but without any implementation clause even the "shall" indication is just part of a classic lex im-

perfecta. Proof was offered in the ECI Art 11(4) TEU, where just eight (8!) lines above the Art 11(1)

TEU, the legislator imposed an enforcement clause for the Commission. But he omitted an analogy

just a couple of lines before in 11 (2) TEU. Should this be explained as an act of oblivion? This would

so the book-title of Brüggemann, 2008

100

https://www.youtube.com/watch?v=baxr9Ie0zqg

be a dishonourable misreading of the constitution. The only appropriate reading could be, that this

lack is without any doubt an indicator that there was simply no political consensus for either an en-

hanced enforcement or an implementation at all. Quadruplica: An order like Art 11(1) TEU’s "by ap-

propriate means" clause indicates a parameter for implementation which even with use of pettifoggery

can never be interpreted as "by no means", finally led to surrender regarding the existence of a fun-

damental obligation. But there was no end of claim and action: The argumentation now changed to

the case of the insoluble opaque competence situation as to who´d be primarily in charge of the con-

stitutional command. The amendatory argument was that if one would ever be able to construe any

"privilege" for any one of the institutions, then the Commission would be last one in line. This even

more so with regard to the particular cases behind the motives of and for the HCD: Because imple-

menting a new policy is a very political issue and the Commission instead, is a non-political, execu-

tive body. So either the Parliament or the Council would have charge or indeed, the European Coun-

cil, if the dialogue scheme were to be subject to a shift of paradigm.

iii. The EESC´s "My Europe ... Tomorrow!" Project

Henri Malosse, the attendant President of the EESC, has announced a next "curtain up" and intro-

duced his favourite project "My Europe ... Tomorrow!" that tries to get along with a youth centred

HCD, primarily online-based and therefore put on a citizens-participation software

101

Things turned out very promisingly even though there is a significant investment to be done on the

entire structure, and in particular to the overdue "launching" and "marketing". A serious doubt was

addressed to the topic of "ownership" and whether such a portal should be run by an official EU entity

or whether outsourcing would be more favourable.

We do know nothing on whether the EU institutions are pleased with this pioneer landmark in CD´s

yet stillborn history, but we have at least seen no objections so far.

Allow me to adding that it was once again the Austrian Institute for European Law and Policy, to-

gether with the University of Graz

102

, which took a leading role in the contesting, improvement and

further development of this portal. Numerous suggestions were addressed in regards to the following

adaptation "needs":

101

http://eesc.europe.eu/myeurope

102

Joint Seminar, EESC-AIELP-UNI Graz, Prof. Johannes W. Pichler, Youth and Working Life. The "My Europe ... tomor-

row!", University of Graz, 10/11 Dec 2014

i. a mission statement and a statement on the "customer use" that indicates whether and if, how far the

ideas, suggestions, concerns, recommendations coming from bottom up are of any relevance for

"Brussels’" policies

ii. a forecast what the investment will be on

iii. strategic proclamation on operational cooperation between citizens and EESC: "participants, the

EESC is your embassy"; members - either of the EESC or of the EU Parliament - should "adopt" an

issue from bottom up and act as a "communicator" between a tool group and "Brussels’" operational

inputs for bringing alive a civil dialogue and on generating critical mass; regular report on the

achievements of the myeuropetomorrow-tool

iv. incentives to be set out, because one way or the other it must pay off: moral incentives f. ex.

group-wise delegated heads of "senators"; awarding the best idea and/ or best issue based consultancy

to the EESC; one head per issue internally delegated to be invited to the EESC "Citizens Day" - enti-

tled to give a statement; maybe installing an internal EESC contact point "Citizens Desk"; qualitative

open innovation - crowd sourcing

v. the EESC win situation was carefully analysed: in addition to the inner-legitimate dignity by dele-

gation to the EESC its members can generate a citizens driven direct "legitimacy" which is a very rare

case; new "issues" and crowd sourcing coming from bottom up could enrich the EESC expertise

and reports; the EESC could argue to be the only one entity in Brussels that generates a knowledge

base and awareness base sourced by the "wisdom of the crowd".

vi. Balance: There is a certain readiness and willingness of young citizens to cooperate with the offi-

cial "Brussels". But, it seems to become a long way still from "earning" trust and confidence. People

want to see what "Brussels" comes up with in return for their participatory efforts.

For further in-depth innovative ambitions of the and within the EESC towards a significant overall

improvement of a "Citizens Participation Tool" for carrying-out a pan-Europeanwide HCD there are

to be noted some strict and severe recommendations, but this we´ll do when coming to our own sug-

gestions of a "Vertical-Dialogue-Online-Tool" in the Conclusion and Recommendation Part in the

very end.

3. The Vertical Civil Dialogue - The Constitutional Promise and its Perceived Reality

In order to attract attention to the complex figure-based empirical part there should first be a rather

sensitising chapter, kind of an interim preliminary result. Four overall pictures may offer a coherent

outlook on the wider panorama right at the beginning. Note, the "inter-relational" aspect is much more

crucial than widely recognized. Rationales are rationales, but psychology is a hard factor. This state-

ment is well documented in politological literature as well.

Only one of these "snapshots" do we offer here, because it is necessary to pre-talk about possible mis-

understandings of what the dialogue should be about. Three others are to be presented as a bundle in

the Annex, as they could be perceived as too predefining the focus and the lectors’ benevolence. Hyp-

ocritical views of serious insiders, of high-ranking EU civil servants, of politicians and of DG´s top

executives, dedicated in semi-public conferences and in closed seminars, are very detailed and far

reaching. The third separate complex, coming from legal scholarship appears to be too segmentary to

enrich the general ductus, but we refer to some positions in the appropriate passages.

i. The Coffey-Deloitte VCD Screening Model

103

- A Solitaire Benchmark Despite Serious

Misconceptions

As stressed in the introduction, the Coffey survey is one of the most recent and most prominent land-

mark studies on the VCD. Therefore we shall welcome and use it, as it allows us to have a benchmark

instrument in order to continue on solid empirical data grounds. However, as also noted, there are

some severe reluctances to restrict ourselves to this questionnaire design, due to a too limited and ap-

parently (by contracting) self-imposed Coffey scope. This is acceptable in regard to the microscopic

investigation, but to come to systemic recommendations without having a macroscopic and teleologi-

cal ambition must be criticized. This in particular even more so, as the study refers to the fundamental

legal documents on the sense and aims of the CD but not making those to the central parameter, and

instead going along its own research and questioning design that is rather influenced by the typical

canon of business consultancies´ market surveys and feasibility studies.

ii. Setting Democracy Values at Market Price

To measure the "quality" of the civil dialogue nearly exclusively along criteria of the "effectiveness of

the current implementation procedures", of the "efficiency of its organisations, use of resources, and

monitoring mechanisms", to "make recommendations with a view to improving and renewing the ap-

proach and process" and to "present (...) conclusions regarding the CSD´s performance... "

104

seems

to cause a too narrow minded approach.

iii. Identifying the Wrong Rule Maker

Consequently to the limited scope, the study must have come so prominently to fundamentally wrong

recommendations, when it recommends that: "DG Trade needs to define what it wants to achieve with

103

Coffey International Development together with Deloitte, Final Report of July, 2bth 2014, Luxembourg 2014

104

ibid 6s

the Civil Society Dialogue."

105

This crucial definition and causa prima is, as shown, already given by

the Lisbon Treaty, namely: "Desiring"(!) enhancing "... democratic legitimacy of the Union". The

question should have been: Did DG Trade succeed in using its CD to make Europeans aware of its ef-

forts in favour of the European citizenry? Have the people noticed that DG Trade has invited them to

become a welcome partner to it? If DG Trade had not followed this regime before, it could well have,

as attested, the most improved VCD in terms of comparison with the practices of other DG´s, but

could still have failed the solemn overarching goal anyway.

It makes less sense, when the study so soundly states, that the CSD (meaning in our case VCD) "ful-

fils its mandate as described in the Lisbon Treaty

106

, but current aspirations/goals do not match the

reality", when not explaining how the study reads the Lisbon Treaty´s mandate. Nor is there an in-

depth interpretation what the "current aspirations" as seen in the Lisbon light are about or why these

"do not match the reality". The path to the recommendation remains cryptic, nr 2, that "DG Trade

needs to reset aspirations for CSD in-line with its (!) strategic intent".

107

This is venire contra factum

proprium, when first ignoring the fact that the Treaties push a state philosophical core value, namely

"principles of democracy" but then ordering the contractor to reset the given objective along "its own

intent". Except for the recommendations to use the CSD as a means to create visibility of EU trade

and to see the civil dialogue as a means to generate inputs to policy

108

the study misses the greater po-

litical overview.

The teleological purposes and motives of the civil dialogue cannot in fact be found in either Arts 11

(1) and (2) TEU or in the cited Art 8b (1) and (2) Lisbon Treaty. They merely tell us what the final

order is. Only the Preamble of the Treaty of Lisbon speaks out, desiringly, about the motives and in-

tentions and that is where we prominently find the democratic legitimacy motive.

iv. Legitimacy - A Business Case?

Nevertheless, let us summarise the efforts and balance the achievements, as is the study a very good

parameter for secondary level issues - in particular for clarifying what the factual and pragmatic rul-

ing "objectives" on a lower level are for now. These obviously aren´t clear either. Nor does is become

clear whether one should actually talk about "objectives", or what they basically are about, when

Coffey recommends

109

, that "DG Trade needs to set clear and specific objectives from the CSD pro-

cess and CSD meetings" and continues that these "objectives"(?) should be in-line with being "specif-

105

ibid 8

106

annotation off records: when referring to "Art 11(1&2)" it is also wrong to refer to the Lisbon Treaty. Art 11 refers to the

Union Treaty, n.v., as amended by the Lisbon Treaty; the Lisbon Treaty itself ends with Art 7. The cit content finds in Art 8b

para 1 and para 2 of the amending to the Treaty on Union (...)

107

ibid 7

108

ibid 9

109

Recommendation nr.3, 8

ic, measurable, accurate, realistic and time-bound (SMART)"

110

. This cannot be deducted from the

EU primary law level. There is nothing in the Lisbon Treaty, except the reference to efficiency but

apparently in a higher-ranking context use, and nothing in Art 11(2) Union Treaty referring to f. ex.

accuracy or measurability; the only objectivising requirements are being open, transparent and regu-

lar - none of these three criteria matches either directly or indirectly with the SMART "objective". Of

course, the Coffey recommendations are indeed recommendable, when focusing on pragmatic solu-

tions of how to carry-out the daily CD activities. Such pragmatic operational state-of-the-Art man-

agement maxims simply have no roots in the overarching goal. Democracy in general, and so also PD

in particular, are about goals and can be costly - otherwise we could even make parliaments subject to

business consultants´ cost-benefit-analyses which could take time and can (maybe should) be non-

specific but rather a philosophising generalist method. In short, democracy must not be SMART.

More to the crucial point of how the CD could become relevant for the perception of the Unions citi-

zen-near behaviour, comes the study in its conclusions

111

, when it reflects, whether DG Trade´s CSD

matches with the good governance principle. Then Coffey arrives at the paradox evaluation that DG

Trade tries with its CSD to realise goals but having no objectives. And now it comes to Coffeys "oath

of premises manifestation" as a genuine business consultancy with rare feeling about politics, political

communication and also having no clue as to what the Constitutional Convention and the Lisbon spir-

it was about: "Goals are broad general intentions that cannot be validated. Objectives are narrow

and precise"

112

. Of course goals and intentions can be validated, but not with the chosen levelling

methods and one must also courageously raise the bar. What else are voters doing if not validating?

This is the ultimate validation of the realisation of political intentions and no one else would be more

competent for this kind of validation than the final "owner", in our case the silent but real European

sovereign. It is too early to congratulate DG Trade to this "mistake" for affording "luxury" goals, but

if it eventually turns out that this is true then we´d rather recommend not to follow the pure economic

Coffey SMART recommendations but to keep on with its criticised political, "objectives-free" goal-

related way.

v. Working towards the Ultimate Goal: Democracy

However, the Union´s CD is predominantly about goals, values and ways to be gone and not primarily

about managerial and operational aspects. The Union can be regarded since the days of Amsterdam as

a political Union and no longer as just the European Economic Community (EEC), merely a single

market. Remember the well-known statement of Jacques Delors, "you cannot fall in love with the sin-

gle market". Sometimes Coffey-Deloitte scrapes past this pars pro toto, when reasoning, whether "the

110

ibid 9

111

ibid 11ff

112

ibid

CSD in DG Trade plays a role in raising public awareness on trade issues and policies"

113

. This

should have been the core topic of the investigation! Could the CD of the competent DG Trade com-

municate pan-European wide that the Union´s trade is based on a stipulated fundamental premise

114

under Art 206 TFEU to contribute, in the common interest, to the harmonious development of world

trade? Has this message reached the Europeans in their masses, yes or no? That is the parameter of a

functioning CD. Then comes, rather half-heartedly, the real important reflections, unfortunately com-

ing to the detrimental end that "DG does not take proactive steps to increase participation"

115

, and

that the CSD is "not a very effective process to allow CSO´s to present their ideas"

116

, thereby indi-

cating that this Lisbon core mandate, which Coffey had first explicitly attested as fulfilled and which

was now revoked and in turn explicitly ascertained that it has not been fulfilled. If truly so - which

one of the both actually? - then the recommendations should have come to the consequence to advise

DG Trade to rearrange its CD from scratch. One could have expected from such a massive study to

find bold out-of-the-box solutions, instead of suggesting internal organisational ameliorations and ru-

minations on the "state-of-play"

117

(sic!). Curiously, the right appropriate approach to one of the Lis-

bon Treaty´s likely considerations though sometimes shines through, when somewhat rhetorically

asking sub point 1.2.12, whether the communication of DG Trade is "disseminated by the CSO´s to

their constituencies?

118

" and if the CD attendees are the representatives or delegates of " a wider

group of interest / organisations, a type of multiplier"

119

vi. The Dialogue is either Legitimacy leveraging – Or else Superfluous

That is the crucial as well as detrimental point, whether the CD is competing for leverage of legitima-

cy - or not. The constituencies out there between Finisterre and Przemysl, between Catania and Hapa-

randa are the very ones who can only provide the Union with legitimacy, but not at all the "Brussels"

corps, even when politologists eagerly debate on input and output legitimacy. This solemn goal to run

for the citizens’ inclusion is better expressed in Art 11(1) TEU, when speaking of the "citizen" as the

true bearer of the citizen: citizen CD and lesser in Art 11(2) TEU, which refers rather to intermediar-

ies. But what are intermediaries good for, if not being the brokers to the "customers", as they were the

stakeholders of the CD organisations/associations: citizens?

What we could gratefully learn from Coffey-Deloitte and promptly reuse in the following sections is

the following: There is a DG with a benchmark setting VCD, but things just happen, apparently. Ob-

113

ibid 3

114

Coffey-Deloitte refer to the old EC Treaty, Art 131; this is now Art 206 in the TFEU, Functioning Treaty. This notion is

in so far of importance as it shows that Coffey-Deloitte appear to be influenced by the economic categories.

115

ibid, 13

116

ibid,14

117

ibid, 13

118

ibid, 15

119

ibid

viously they happen much better than the study attests. This is due to the fact, that the premises for the

screening design do not align with the overarching desires and the evaluator, making it impossible to

see the forest for the trees. There was no hierarchy for questioning according to Lisbon goals, but

there was orientation on self-imposed feasibility criteria. So, maybe the DG Trade is the right role

model for a renewal of the CD in general, we shall see. We compared apparent role models, including

DG Agri.

III. The Questionnaire and the Design of the Questionnaire - Methodology

1. The Overall Design - Primarily Referring to the Open Questions

i. Methodological Alignment

We have committedly not taken a design that only focuses on headlines. By our previous

knowledge

120

, particularly on substantive surveys on the subtle relation of people and the law, obedi-

ence to law and other intrinsic and psychological clues, Rechtsakzeptanz

121

, we repeatedly camou-

flaged some questions into indirect indicators which when combined with others, give a rather true

picture when compared with direct confrontation questions.

But predominantly we must answer with a No to the self-imposed provocation, whether we went after

secondary issues. We decided to let the audience find out whether this questionnaire could impact

their own task or be seen as irrelevant. This could also prove to be a valuable outcome of this study

for either of the participating sides. Another "No" refers to another underlying approach of the Ques-

tionnaire, namely, to attribute respect to the possible highly diverse perceptions, which is within the

intrinsic nature of democracy, as we have stated above.

It could be supposed that a DG might see things differently as the "other side of the table" could, but

even within "the other sides" different perceptions are likely. It is most likely that there could be very

diverse or at all controversial desideration on the hidden "values" which however were not revealed:

ii. Highly Homogenious Desiderations and Considerations

Hardly coincidentally all respondents came to a similar opinion, when invited to express vague con-

siderations:

120

Pichler in: Pichler / Balthasar (Eds.), Open Dialogue, 2012 and Pichler / Balthasar, Open Dialogue with Citizens, in:

BEPA Monthly, 64, 2013, 6

121

Pichler / Giese, Rechtsakzeptanz, 1994 and Pichler (Ed), Rechtsakzeptanz und Handlungsorientierung, 1998

79. Do you consider any other "underlying principles" like:

O: dialogue to be ruled by welfare deliberation

O: dialogue to be kept free from lobbying

O: civil society and representative associations to be representative into any respect

O: civil society and representative associations to be democratically legitimised by a "con-

stituency"

O: civil society and representative associations to match eligibility criteria

Other (please specify)

iii. Hidden Agenda by Open Questioning - And the Worthwhile Outcomes

We felt obliged to open a wide array of options, which indeed can annoy and exhaust the respondent

Only by combining very diverse and at a first glance not coherent set of answers are we able to paint a

picture that is not just black-and-white but lively and - as is usual in all politics - mirroring the rain-

bow of pluralistic worlds. We went so far that, if a respondent should have a particular vision in mind,

s/he could express it by observing carefully the offered options. Not that we would claim to open the

entire treasure chest. But providing this data set the scientific community and the stakeholders open

an unseen chance to enforce the public debate with a bunch of interpretations transcending and maybe

also falsifying our own.

That is the real reason why we made a follow up of open and closed questions. Respondent should not

be able switch back when recognising that the answers to the more philosophical open files could

have been perhaps been better given in the light of the detailed, structured and guiding closed part.

We intended to stimulate very open expression of views, not limited to any mind-set and not restricted

to the solution that is provided by the Treaties. So we put the open questions without giving any hid-

den incentive:

11. What do you think is the aim of the civil dialogue (as provided for by Art 11 TEU)? ...

12. What do you think is the nature of the so-called horizontal civil dialogue?...

13. What do you think is the nature of the so-called vertical civil dialogue? ...

14. What is the advantage of participatory democracy? What is added value?...

15. Where do you think this idea of a civil dialogue comes from?...

16. Could the civil dialogue produce negative effects? If so, please elaborate.

iv. Tracing Multiple Considerations

As for the content, we should be aware that several considerations need to be made in order to deter-

mine what the right threshold should be. The Lisbon Treaty´s preamble solemnly states that its inten-

tion is to "enhance the democratic legitimacy of the Union"

122

and further refers in chapter II to "Prin-

ciples of Democracy" which again have led to the provisions of Art 11 TEU, in our particular case to

Art 11(2), which orders the VCD, which is at least accepted by the DG´s. But it isn´t just the DG´s

addressees, that is why we have asked other institutions as well whether they have an engagement un-

der Art 11 (2). This again raises another question: is the apparent affiliation with "Brussels" the only

and appropriate one. Could it be that there is a consideration that the VCD is to be offered and imple-

mented throughout the Union, what is so often stressed in literature? Or at all, is the localisation still

necessary? Couldn´t the dialogue become "virtualised", at least in addition to the face to face dia-

logues? What is the opinion about that? This led to the following investigation:

48. What is currently the most important venue for civil dialogue(s)?

O: Brussels O: Cyberspace

O: Conferences throughout Europe O: Areas especially concerned by policies

v. Tracking a Legitimacy Providing Model

The fact that this VCD part foresees no specific method and means of implementation opens the

chance for the institutions to develop their very own ways of instrumentalisation. But, which model is

to be seen as appropriate to a best practice of transforming the overarching goal of "enhancing the

democratic legitimacy of the Union", which is seriously doubted by literature as we repeatedly have

documented? And how is the climate of "transforming" perceived? These are crucial questions for any

implementation and we therefore continued our "open" approach, only for the purpose of comparabil-

ity did we put limited options, nevertheless, the bandwidth is open between the two binary ends:

Open Questions - Reality, Chemistry, Effectiveness

17. How do you perceive the reality of the civil dialogue in action in your own area of expertise?

O: Satisfactory O: disappointing?

18. How is the "chemistry and climate" of your particular civil dialogue?

O: good O: sufficient O: bad

19. Do you think civil dialogue is effective? If so, why?

20. How effective do you perceive your particular civil dialogue to be?

122

Preamble Treaty of Lisbon

O: very O: somewhat O: not at all

21. What issues could be improved to achieve greater effectiveness?

Just to show how we turned the apparently duplicating question into a kind of pre-formulated "corset"

we shall document this methodology right here by inserting the corresponding closed question:

47. General Performance - Particular Performance (closed question)

Your evaluation / perception of the overall performance of the civil dialogue

O: 1 very good O: 2 O: 3 O: 4 O: 5 poor

Your evaluation of the performance of “your" particular civil dialogues

O: 1 very good O: 2 O: 3 O: 4 O: 5 poor

A candid surveyor must openly confess that these answers could easily become misused by pushing-

through personal discretion and personal arbitrariness. As already outlined in the "overall" chapters,

we face a very disparate scientific landscape and a rather reluctant public "Brussels" sector on im-

proving an own driving implementation doctrine. So, there is ample space for suggestions as well as

for further debates, or even for a green-paper-consultation, but some rather obvious "landmarks" are

to be stated anyway, which refer to the aims and the nature of PD and VCD. Whether the respondents

sense a binding or a voluntary nature was investigated by the following questions:

Open Questions – Obligations

22. Are you aware of any legal obligation why the civil dialogue must be conducted? ....

23. If so, where does the obligation stem from? ...

24. Do you believe that an obligation other than legal exists in light of the EU’s democratic legit-

imacy?

Open Questions - Regulatory Regime

25. What kind of regulatory regime currently regulates civil dialogue in your area of work / ex-

pertise

26. Please describe the exact legal basis for the regime currently in place in your area of

work/expertise

27. Please describe legal recourses currently available to actual as well as aspiring participants of

civil dialogues in your area of work/expertise

vi. Disentangling Mazy Commingle

Exemplifying the challenging complexity we refer to some contents. It is evident that the term "dia-

logue" is used in manifold contexts and often rather vaguely

123

. There is also confusion in the use of

terms such as "experts" or "consultative groups" as is the case within the chapter of dialogue. Note

that dialogue is not consultation even though dialogue partners may sometimes also give advice, but

DGs themselves cause confusion when referring to CSOs as consultants

124

. Whereas the institutions

could use several channels to incur expertise, the CD is a unique instrument in obtaining more than

just expertise. It can also inform on political headwind (or tailwind), add direct legitimacy by inclu-

sion, give a bargaining chance in order to figure out the mainstream and clarify the political stand-

point of minor partners and so on. But are dialogue partners "consultants"? Often there is confusion

between what consultation is meant as under Art 11(3) TEU and dialogue under Art 11(2). That is

why we have designed one question on how the parties involved see this and whether - in turn – they

also see consultation as another form of dialogue:

88. Would you consider consultations as provided by Art 11.3 TEU as:

O: a strong form of dialogue O: a weak form of dialogue

O: no dialogue at all

When talking about civil dialogue there is usually an unrequested pre-understanding that this is just

about VCD. In order to reassure or to falsify, rather unlikely, this presumption we have integrated a

slight reminder to the HCD in the open questions segment and among the closed questions placed a

specifying set:

53. Do you see the horizontal civil dialogue in action?

O: yes O: no

If yes, where and in which form?

54. It is up to whom to enable dialogue?

O: the institutions (legally obliged to initiate this horizontal civil dialogue)

O: citizens (invited to voluntarily constitute a dialogue on equal footing)

O: the institutions, but not in a driving role

O: the institutions (legally obliged to support this dialogue if proposed from bottom-up)

O: ...

55. What could be the intended benefits / results of the horizontal civil dialogue?

123

see Pichler / Balthasar, Open Dialogue, 296

124

see Busschaert, 134

O: making citizens feel respected by the EU

O: provoking an interEuropean EU-related platform for bottom-up proposals

O: making civil organisations feel like a potential "player"

O: stimulating a European wide onset of a "citizenship", "demos" or similar

O: constituting a real civil society "power"

56. Do you think the dialogue should be:

O: kept free of any regulatory regime

O: ruled by an ethic code, code of conduct or of any "recommendation" of a similar nature

O: subject to a regulation

O: offering just a pre-organised dialogue model for further self-improvement

O: ...

vii. Constitutional Awareness

Not that we would expect a very different picture from what we have described above in the more

general reflections, but in respect to the EESC´s long lasting and newly again documented

125

engage-

ment on the HCD, it seems to indicate to recheck empirically the awareness around Art 11(1) dia-

logue. And we are curious on the reaction of the respondents when having confronted them with the

text of the Union Treaty:

57. After reflecting upon the wording of original text on the horizontal civil dialogue, Art 11(1):

The institutions shall, by appropriate means, give citizens and representative associations the op-

portunity to make publicly known and exchange their views in all areas of Union action... would

you maintain your above-stated evaluation?

O: yes O: no

If no: what do you see differently now ...

Since, as described before, opposite to foreseen provisions for the Consultation Procedure (Art 11(3)

TEU) and the European Citizens Initiative (Art 11(4) TEU) the Union Treaty provides no specific

criteria and addresses no responsibility hierarchy for the introduction and the run of CD. We can only

take into account all the various official documents on PD and CD, as described in the beginning, and

summarise as given. Does this converge with the perceptions? This was the last set of open questions:

Open Questions - Particular Perceptions

125

NGO Forum 2015, Riga 2./3. March 2015

28. What do you spontaneously associate with the nature of civil society organisations in relation

to civil dialogue? ...

29. Moving on to the requirements of the civil dialogue as being open, regular and transparent,

how would you define “dialogue”?...

30. Which criteria differentiate “dialogue” from “consultations”? ...

31. What do you connote with the requirement "open"? ...

32. What do you connote with the requirement "transparent"? ...

33. What do you connote with the requirement "regular"? ...

Final Open Questions

34. What do you think about specific qualifying criteria for admissibility? ...

35. Which criteria would you favour? ...

36. Which criteria would you reject? ...

37. What are your perceptions of regulatory regimes, are they legal or otherwise binding? ...

38. Is there anything else that you would like to address concerning civil dialogue and participa-

tory democracy? ...

Any of the institutions would supposedly welcome any narrowing-down suggestion on capable op-

tions for a best practice model of a VCD that claims to be oriented along the inviting and appellative

Lisbon desideration.

2. The Political Design and its Methodology - Closed Questions

At a first glance, the VCD models which are in use show quite similar patterns and differences appear

not to make a real difference. At as second glance it is becoming obvious, that the differences are

more than just about aesthetics. DG AGRI seems to be in "pole-position" with its Regulation

126

mod-

el, but as already annotated, this again has raised observation by the EU ombudsman. DG Trade ap-

pears to have the second most advanced model.

i. Adopting a Green Paper Stylus

To build one´s own rationales it seems to be recommendable to self-impose a screening-raster with

questions along a mode and style that a green paper would impose, instead of making an immediate

snap judgement. This narrowing-down challenge is reflected in the repetition of questions which at

first had been addressed as open question and are now, in this second part, reissued as closed ques-

126

see mapping

tions. We started again with overarching issues, this time by submitting a certain catalogue of options,

of which every single one corresponds with observations found in literature

127

. Even those have in-

deed a very wide spectrum, yet done on a scale that is still comparable and measurable:

41. Do you perceive a dialogue as (drop-down)

O: an ad hoc way of explaining policies O: an ad hoc way of communicating policies

O: an institutionalised way of explaining policies

O: an institutionalised way of communicating policies

O: a process not directed at reaching specific decisions

O: a process to improve specific decisions - decision shaping

O: a process that creates the perception of participation by civil society

42. Which are the objectives of civil dialogue and participatory democracy? Why should they be

taken into consideration? (drop-down)

O: enhancing EU legitimacy O: democratising the EU

O: creating a European public sphere as a precondition for a European demos

O: installing a kind of a co-decision-making procedure including civil society

O: opening of a valve for channelling concerns

O: communicating the EU´s politics regarding the public

O: communicating public concerns regarding EU authorities

O: a source of illusions and imaginations

43. If you have opted for channelling concerns, does this

O: make the citizens more satisfied with the EU

O: become a source of even more worries

O: cause even more worries if the EU does not react properly

O: …

ii. Overall Aspects

Even when there are evident, though not expressively addressed, notions to PD that this could become

a silent "co-decision" side door for people´s legislation, this approach must be rigorously rejected.

Outstanding EU players, like Chancellor Angela Merkel and Minister Wolfgang Schäuble, at that time

in true alliance with, meanwhile, President Jean-Claude Juncker, have publicly reasoned on the pub-

127

see Craig, Democracy and Rule-Making within the EC. An Empirical and Normative Assessment, in: European Journal

of Law (1997), 105, 124ff

lic direct election of a President of the Union.

128

They also sided with a European referendum instru-

ment, foreshadowing some hot issues of the agenda of a next convention. This is partly aligned with

the recommendations of the Future of Europe Group of the eleven ministers for foreign affairs of

2012

129

. However, as for the Treaties, there is not a shadow of an idea to interpret participation as of

being of any binding follow-up. Revising once again the reaction of the Commission to the two "suc-

cessful" ECI´s, the first statements and the reorganisation and transferring of the ECI unit, f. ex., of

Comm Frans Timmermanns, we can predict that the attendant Commission is paying rather little at-

tention to PD instruments. As said, this "last call commission" is seemingly interpreting to appropriate

the citizens "closer to the Union" by showing up with crisis-management and therefore going after the

economy, which, of course, per se is highly indicated and maybe pays-off more at the moment. But

this should not justify neglecting the democracy issue, which remains as a silent but underlying long-

term consideration of the citizens anyway. So we also investigated issue of how the respondents per-

ceive the very nature of the VCD and how it is seen in the light of advantages and disadvantages and,

furthermore within this frame-setting, whether it is assumed as generating real benefits:

58. What do you think is the nature of the vertical civil dialogue?

O: a co-decision procedure of civil society

O: a channel for segmentary issues from bottom-up

O: a one-way communication tool from Directorates Generals to civil society organisations

and representative associations

O: a mutual communication tool

O: a one-way communication tool from civil society organisations and representative associ

ations to Directorates Generals

O: ...

59. What are the benefits of the vertical civil dialogue?

O: utilise expertise of civil society and representative associations

O: providing a platform for mutual understanding and co-counselling

O: providing a platform for co-designing solution

O: providing a platform for appeasement and pacifying

O: providing a platform for political bargaining and political back-up

O: providing a legitimate lobbying channel

O: constitutionalising a pre-existent practice of lobbying

O: using civil society and representative associations as sounding post to their constituencies

128

without making specifically clear whether it was talk about the EU Council president under Art 15 (5) TEU or the Com-

mission´s president under Art 16 (7) TEU or, most likely, at all a new overall president as being under debate for a next

Treaty amendment

129

Final Report, 17. September 2012; see in Pichler / Balthasar (Eds.), The Future of Europe, 2013

60. Does such vertical dialogue also encompass:

O: national fora of civil dialogue O: regional fora of civil dialogue

O: national and regional fora of civil dialogue O: neither national nor regional

61. Should such vertical dialogue also encompass:

O: national fora of civil dialogue O: regional fora of civil dialogue

O: national and regional fora of civil dialogue O: neither national nor regional

iii. Presumed Benefit as Stimulus for the Use of Dialogue

The use of democracy and democratic instrument always stands in provocative context to the out-

comes and how those are perceived. Whoever will potentially suffer from the results seemingly

blocks democracy´s actuation and activation. We can turn this conclusion around and propose that the

side that feels better would rather incline to favour the instrument, which the loser would self-

evidently counteract, block or suspend its use. No doubt that either side could feel the most benefitted

yet either side could also feel the exact opposite. However, it pays-off to track the perceptions and so

we did:

44. If you sense benefits, what are more specific benefits of civil dialogue?

O: to utilise the European-wide citizens "collective wisdom"

O: to utilise the expertise of civil society and representative associations

O: to have a platform for appeasement and pacifying

O: to open a legitimate lobbying channel

O: to constitutionalise the pre-existent practice of lobbying

O: to use civil society and representative associations as sounding post to their constituen-

cies

45. Who do you consider to benefit most from civil dialogue?

O: the EU and the institutions O: the European citizens directly

O: the European citizens through intermediaries

O: civil society and representative associations in their own interest

O: none of them O: my suggestion

46. If you sense negative effects, who stands to lose?

O: the EU and the institutions O: the European citizens

O: national parliaments and/or governments

O: civil society and representative associations

O: none of them O: other...

iv. Methodological Implications

Although, as for a political nature we can at least reflect upon how "indicative" the contributions of

civil society could be taken. We can therefore assess in which cases, under which circumstances and

under which sorts of legal provisions could or even should there be an impact on proposals of a DG.

Is in such situations of qualified "recommendations" a regulatory self-obligation of DG´s thinkable?

Could the VCD work as a formal bargaining policy instrument maybe be seen analogously to the So-

cial Dialogue or analogous to the Right of collective bargaining and action as addressed to the labour

markets under Art 28 FRC? If so, what does that imply for particular requirements in regard to exper-

tise or representativity for a significant constituency or standing for a promising future idea?

v. Tracing Perception on Assumed Winners and Losers

Should the VCD rather be seen as market place for exchanging views and ideas, in other words, can it

serve as a pure political communication channel? Not that this would not also be a highly valuable

source for the Lisbon considerations, but it raises questions to whether and how a working environ-

ment could be designed that would satisfy oldies and attract newbies as well. In other words, which

kind of civil society would apply for a membership in this reading of participation, when communica-

tion per se means back and forth interaction, which again imposes serious hard work to act as an in-

termediator and interpreter from inside Brussels to out there even into the most distant corners of the

Union, right there where the icy headwinds blow fast. It is much easier to interfere from within Brus-

sels, but this approach has not shown any evidence of any increasing of legitimacy. So we are inclined

to put a series of questions on how the perception is about the origin and the originator of the VCD,

including suggestions on the source of implementation:

49. In your opinion, where can the concept of the civil dialogue as such be traced back to?

O: bottom-up, EU citizens O: civil society and representative associations

O: top down, EU institutions O: Union Treaties

O: social sciences O: political science in particular

O: legal scholarship

50. The Lisbon Treaty commits to enhancing the democratic legitimacy of the EU.

Do you think that participatory democracy is a means for reaching that overarching goal?

O: Yes O: No O: Don’t know

51. Do you think civil dialogue is a means for reaching that overarching goal?

O: Yes O: No O: Don’t know

52. Which of these sources primarily shapes your understanding of civil dialogue

O: EU primary law O: EU secondary law

O: Internal manuals/traditions which exist in my entity

O: Traditions in my state of origin O: Scholarly literature

O: Mass media O: Understanding the general need for good/better public relations

vi. Dialogue Admittance a One-way Privilege or Source of Associated Duties?

Is there a political design that allows all of the three approaches to be tied together?

Apparently yes: what about a model that sets new standards and imposes an obligation on CS and RA

in return for having the sectorial or segmental "ear" of Brussels by serving as communicator of this

specific sector or segment throughout the entire Union? This would humble the achievements of

Brussels as a communicator, which for that matter is perceived as marketing tool and thus make the

Union "tangible". As long the CSO´s participation was connoted with, and addressed to, an economic

community, things had been rather linear. With the turn of the EC toward a political union and with

the turn from government to governance, the scope of the CD turned out to be much more complex

130

This turn appears as the moment of a subtle change of the apparatus´ mind-set.

Without further longwinded explanations, let us describe the compelling primary criteria for the de-

sign of our Questionnaire in regard to specific issues. In order to figure out the perceptions of either a

supposed political predominance or of a fair balance, one has to clarify how the CD´s partners mutu-

ally see their own standing, role and functions. Furthermore, one has to investigate which agent is

seen as benefitting from whom and, lastly, and who is - mutually - supposed to be the "winner" given

that the Union / DG´s could be seen as a regulatory political system or rather a system of participatory

governance or even a polity with a social constituency in the making

131

. This issue is not easily put in-

to question in such a way that does not unnecessarily alert mistrust nor implant wishful thinking ei-

ther. Therefore we imposed a broad series of open questions that through subtle cross reference can

give an evidence based answer.

3. The Legal Design of VCD and Methodological Implications - Closed Questions

i. Overall Aspects

130

see Majone, Regulatory Legitimacy, in: Majone and Baake (eds), Regulating Europe ,1996ff ; Craig, Democracy and

Rule-Making, 120ff; Bignami, The Democratic Deficit in European Community Rulemaking: A Call for Notice and Com-

ment in Comitology, in: Harvard International Law Review (1990), 40, 451; C Joerges, ‘"ood Governance” through

Comitology? in: Joerges and Vos (Eds), EU Committees: Social Regulation, Law and Politics ,1999, 337; critical Harlow,

Codification of EC Administrative Procedures? Fitting the Foot to the Shoe or the Shoe to the Foot, European Law Journal

(1997) 11; Bignami, Three Generations of Participation Rights before the European Commission, in: (2004) Law and Con-

temporary Problems (2004) 68, 82ff

Evidently, it makes a detrimental difference if the VCD is construed as a voluntary or an obligatory

scheme. Adopting tight legal frameworks and their design is an indicator for any substrate as to how

far it can go, how permanently it is supposed to work and lastly how the roles are defined is essential

for the empowering and entitlement to act humbly or persistently. Without any ability to offer prophe-

cies we can make a hypothesis that the VCD´s sustainability is crucially bound to be put on a horizon-

tal legal basis with maybe asymmetric exercise options for the special conditions in different use in

diverse need of DG´s, but on a legal or quasi-legal core fundament anyway.

ii. Dialogue a Matter of Law or of Culture?

Nevertheless, we have to keep two things in mind. Firstly, the EU Commission speaks in its self-

imposed Communication on Rules and Standards

132

clearly from a Reinforced culture of consultation

and not from any kind of legislative implementation. Secondly, the EU Commission has ordered itself

reluctance to let things go too far, based on the rational of efficiency. Setting the rules for Consulta-

tion, which rightly so raises doubts as to whether these can be analogously used for the CD, or is ac-

tual practice - the EU Commission has already in the General Rules and Minimum Standards

133

ex-

plicitly stated: 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 expectations of

the citizens that the European institutions should deliver on substance rather than concentrating on

procedures. Felicitously argued, but what about this understandable dogma - because Courts are not

surrogate legislators

134

and otherwise politics could be haphazardly put to a halt, when seen in the

light of Art 41 FRC, The Right to Good Administration, in particular Paragraph 2 (3) and synchronic

Art 296 TFEU, which both stress the obligation to give reasons for any administrative and Art 15 (1)

TFEU remains an open question

135

. However, the Court is reluctant to canonise the participation

rights anyway

136

. Yet, however, there are several other barriers to face under Art 263 FTEU as to

which actions against which acts private claimants are entitled. Some conclusions on the Courts

"chemistry" towards - non-admitted - participatory ambition can perhaps be drawn quite soon from

132

COM (2002) 704 final

133

ibid, 6, 10

134

Alemanno, The Better Regulation Initiative at the Judicial Gate, European Law Journal, Vol. 15, Issue 3, 382 (392ff),

Busschaerts, 142, enforces: the consultation standards and principles may produce legal effects arising from the duty for the

Commission to abide by the rules it has set for itself, disregard of which could amount to breach of an essential procedural

requirement likely to entail annulment of the act finally adopted in cases where no consultation or no IA has been conducted

and refers to W Voermans and Y Schuurmans, Better Regulation by Appeal, in: EPL (2011) 17, 507

136

Craig / De Búrca, EU Law: Text, Cases, and Materials, 2011, 5th, 521. See Case T‐521/93 Atlanta AG and others v

Council and Commission [1996] ECR II‐1707, para 71; Case C-104/97 P Atlanta AG and Others v Commission and Council

[1999] ECR I-6983, para 38; Case C-258/02 P Bactria Industriehygiene-Service Verwaltungs GmbH v Commission [2003]

ECR I-15105, para 43. For a critical appraisal of that position, see J Mendes, Participation in EU Rule-Making: a Rights-

Based Approach, 2011, chap 5.

analogy from the still pending cases in regard to claims of initiators of Citizens Initiatives under Art

11(4) TEU. It is true that Courts must definitely not leer at public opinion, but should still not ignore a

democratic majority´s convictions and value preferences in the long run. This notion is shared by

prominent judges as well

137

. Art 263 TFEU is dozing in respect to participation, but is still there. Le-

gal practice and prevailing opinion are transient. This is apparently the background of the afore-cited

own-initiative of the European Ombudsman

138

to investigate on DG Agri´s regime and admissibility

rules. We´ll see the final report. This could change the climate.

However, we felt obliged to put this question on the agenda in order to trace for perception. To let opt

and to opt for either one can be seen as an expression of a mind-setting and preference, and openly

confessed, we are rather curious of the DG´s response.

62. Do you sense any legal obligation that vertical civil dialogue must be conducted?

O: yes O: no

In either case, please elaborate on the why

63. What do you consider that a "regime" of the vertical civil dialogue should be?

O: kept free of any regulatory regime O: a mission statement

O: ruled by an code of ethics, code of conduct or by another "recommendation" of similar

nature

O: designed by an internal regulation of concerned DG´s, institutions

O: a one-fits-all overall framework regulation binding any of the concerned vertical civil

dialogue entities

O: Other (please specify)

64. Is your vertical civil dialogue "belegalised" by a regulatory regime?

O: yes O: no

65. If yes, are you satisfied with this regulatory regime?

O: yes O: no

if no, why not

iii. Methodological Implications

We openly search for the perceptions of existing as well as considered variations of policy responses,

whether and how far the expectations are directed to a non-binding dialogue scheme or to a "belegal-

ized" scheme. In both cases, the bandwidth of perceptions could be very wide. Therefore we have al-

137

see almost all contributions, in Pichler (Ed.), Rechtsakzeptanz und Handlungsorientierung, 1998

138

http://www.ombudsman.europa.eu/de/cases/correspondence.faces/en/53106/html.bookmark

ready, part by including open questions, opened the doors to allow back-in-mind thoughts to be aired,

which maybe could lead to the result, that the answer could be: policy makers, free us from this dia-

logue.

66. What do you consider necessary "hard core contents" of a "regulatory regime" to be?

O: setting an election period O: defining procedures

O: regulating admissibility O: imposing efficiency control

O: setting budgetary limits Other (please specify)

Again, in the part of the open questions we invite the respondent to come up with very own and crea-

tive connotations, desires, considerations, leaving him or her committedly alone and thereby strictly

not guiding her or him into any Social-Desirability-Response-Set. Whereas the part of closed ques-

tions confronts the respondents with a rather pre-formulated catalogue of possible answering options

which are derived from the diverse positions in literature. Thus we suggested only such well-known

positions.

4. The VCD Parameters Concerning the Addressees "Civil Society" and "Representative Asso-

ciations"

i. Civil Society and Representative Association

As stressed before, Civil Society is ascribed and sometimes rightly so criticized in scholarly literature

as being an unspecific, oxymoron term covering whatever one wishes. In actual fact it is not a term

that is appropriate to base legal consequences, follow-ups and concrete entitlements on, but that is

what has happened. It is worth adding that the NGO´s only appear as a part of the CS. NGO as code is

usually seen as having an underlying assertion of a "moral" orientation. This is just a myth, please see

the literature we have often referred to for further validation. A first glance on Group III of the Trans-

parency Register shows a heterogeneous panorama that allows no such "moral" qualification at all. It

would be fairly exciting to trace after the genesis of the enculturation of those terms and how the CS´s

nature and role is seen in relation to the CD. However, we traced the actor´s connotations anyway:

72. What do you think is the role of civil society and representative associations in relation to ver-

tical civil dialogue?

O: only decorative O: including contributions from bottom-up

O: as an "audience" for top down announcement

O: serving as a multiplier capable of reaching citizens

O: as supportive experts

O: as a political partner to institutions leveraging EU proposals

O: playing a leading role / driving force / agenda setting

O: as the "silent" masters of the dialogue who rule the Directorate Generals and institutions

Other (please specify)

73. What is your opinion concerning the scope of the vertical civil dialogue? Should civil society

partners of the institutions be entitled:

O: to set an own-initiative political agenda regardless to the proposed content

O: to render an opinion to all of the proposals within an institution

O: to render an opinion only to submitted proposals

O: to chair the meeting Other (please specify)

74. What do you consider the limits of the vertical civil dialogue to be? Should an institution:

O: be entitled to fully ignore proposals / opinions coming from the partners

O: be obliged to respond to proposals / opinions coming from the partners

O: be entitled to reject but to give reasons for the rejection

Other (please specify)

ii. Representative Associations AND Civil Society... Pleonasm or Distinction?

Presumably artificial creations are riding the wave of post-modernism, and thereby are semantically

and philosophically in line with the style to define by lowest common denominator what something is

definitely not. Any organisation which is not directly involved by any governmental task could be

called for an NGO - even my own institute, the Austrian Institute for European Law and Policy,

which is run by a non- profit association under private law, but being created/funded by ministries of

the Republic of Austria, the State of Styria and allegedly autonomous universities, which again are

factually one hundred percent financed by the Republic. All what needs to be done is to find a legal

form and entity that works as kind of legal fire-wall between any kind of governmental nature and the

NGOs. Other examples show the fragility of dubiousness of such strict differentiations. There are in

Group III Transparency Register lots of umbrella organisations under civil law and with a not-for-

profit profile of the European industries, be they agricultural, from the banking sector and so on. Is

that what is meant by the daily semantically use when talking of an NGO? But it is out of our scope to

track down the historical-political semantics. It has only been indicated in order to clarify the rele-

vance of their use in action.

Therefore we submitted closed questions that set limited options, however the panorama is still open

from one to the opposite end of the scale.

39. Do you perceive representative associations as civil society?

O: a different name for O: part of

O: different from O: …

40. Do you perceive lobbying groups as representative associations?

O: a different name for O: a form of

O: different from O: …

This methodology of finding out how the involved categorise themselves, says of course nothing on

how they define civil society. This was the idea not to let them run into a definitory minefield. The

only positioning we allow is after the respondents having given the preliminary answers when con-

fronting them with the original text of Art 11(2) TEU then to rethink their choice in the light of the

text:

84. Having read the original text on the vertical civil dialogue, Art 11(2) TEU: The institutions

shall maintain an open, transparent and regular dialogue with representative associations and

civil society; would you maintain your above stated answers?

O: yes O: no

If no: what do you see differently now ...

85. Art 11(2) TEU enumerates dialogue partners as representative associations and civil society.

Do you sense this as

O: committedly creating two bodies vis-a-vis the institutions

O: if yes, does this imply procedural organisational consequences, i.e.: should they "vote"

per curia

O: just pleonastic, descriptive use of terms

87. Should you sense any significant difference between representative associations and civil so-

ciety as cause for further reactions, please describe that difference and the appropriate follow-up.

iii. Civil Society - Definitial Intricacy and Underlying Suppositions?

However, the afore mentioned core document for eligibility to CD, "Towards a reinforced culture of

communication and dialogue - Communication of the Commission"

139

, addressing general principles

and minimum standards for consultation of interested parties by the Commission, openly faces the

same perplexity. Curious, the Commission, which is part of legislation and ought to show-up with leg-

islative powers, just balances and confesses openly that there is no commonly accepted -let alone le-

gal - definition

140

. It further describes that CS is a shorthand to refer to a range of organisations. Re-

markably it begins to enumerate examples with labour-market players, trade unions, employers or-

ganisations. Having put the so called social partners in front of all CSO´s the enumeration continues:

... organisations representing social and economic players, which are not social partners ( consumer

organisations), then NGO´s, which bring people together in a common cause, such as environmental

139

COM (2002) 704 final

140

ibid 6

organisations or human rights organisations, charitable organisations, educational and training or-

ganisations; CBO´s (community-based organisations) (...) youth organisations, family organisations

and all organisations which citizens participate in local and municipal life; religious communities.

Keeping in mind this exemplifying catalogue, and knowing that there is a different view from the "re-

ligious communities" side

141

, which apparently fits the Treaties’ structure in separating the dialogue

on values under Art 17(3) TFEU ostensibly from Art 11 TEU. Thus we have raised the question on

the perception of whether religious organisation are and if, to which extent, seen as civil society and

so far entitled also to participate in the VCD or not:

86. Reflecting upon Art 17 TFEU 3. Recognising their identity and their specific contribution,

the Union shall maintain an open, transparent and regular dialogue with these churches and

organisations.

Would you think that religious or philosophical (non-religious) organisations should be:

O: eligible O: not eligible

So, actually, whenever people organise themselves around an apparently not illegal purpose and goal,

we can rightly call such an organisation for CSO or "association". How come? The Commission

simply and without any comment or any regulatory ambition refers to the EESC Sigmund Report II?

142

. Only when referring to the White Paper for Governance can we find a kind of behavioural "moral"

connotation: “Civil society plays an important role in giving voice to the concerns of the citizens and

delivering services that meet people's needs. […] Civil society increasingly sees Europe as offering a

good platform to change policy orientations and society. […] It is a real chance to get citizens more

actively involved in achieving the Union’s objectives and to offer them a structured channel for feed-

back, criticism and protest.”

iv. Are Political Parties Civil Society?

Wondering why there is not a single reference to the possibility of participation of political parties or

sub-entities of those, we put this case on the respondents agenda. Of course one could argue that the

function of political parties are exhaustively defined under Art 10 (4) TEU. But aren´t double func-

tions in respect to the respective task quite usual in the Union? Do we have strict incompatibility

rules? As there are proposals that political parties see themselves as bodies of civil society we decided

to impose this rather rarely aired question to the respondents:

141

COMECE represented by Secretary General Michael Kuhn, see in: Pichler / Balthasar, Open Dialogue, 167

142

OJ C 329, 17 (1999), 30

83. Do you think that entities that are close to / subunits of political parties / movements should

be:

O: eligible O: not eligible

The Commission evidently makes no approach to categorise the participation in specific kinds of dia-

logues into any respect. When revising these clusters we can see the same picture at the end: the TR

creates six groups but keeps on going with a just descriptive method without making any "moralising"

difference. To sum up, there is seemingly no political will to confine the CD to any content-wise

specification which in turn signalises that the CD is open into any respect and without any preference

for any priority of certain values. The description of the category NGO discloses that this group is

supposed to be rather bound to the welfare principle, whereas most of the others can represent which-

ever interest. Moreover, there is no indication that interest groups ought to switch to welfare perspec-

tives when entering a civil dialogue.

v. One Body or Two?

Next observation is that the Union Treaty does no longer speak of civil society "organisations". It

speaks in Paragraph 2, Art 11, only of civil society and representative associations. Is it now one cat-

egory or two? The "and" indicates logically that there should be two. But what makes the difference?

Whereas Art 11 (1) foresees that citizens are entitled to participate in the horizontal dialogue, which

semantically even includes single citizens, the following paragraph does not refer to the criteria of be-

ing organised when participating in the VCD, it only talks of civil society being an admissibility re-

quirement. Or does "association" instead of the former "organisation" equally refer to civil society and

representative? That is why we have designed a series of questions addressing this issue, in order to

find out whether we can garner an explanation of the practical use.

vi. Single Citizens Eligible?

Art 11 (2) clearly sets a shift of paradigm. For the first time, the notion of “civil society” was add-

ed to the (then) Art 257 (2) TEC by the Treaty of Nice, stating that the Economic and Social Com-

mittee

143

“shall consist of representatives of the various economic and social components of organ-

ised civil society, and in particular representatives of producers, farmers, carriers, workers, dealers,

craftsmen, professional occupations, consumers and the general interest.” When we compare, how-

ever, this version with the current Art 300 (2) TFEU (“The Economic and Social Committee shall

consist of representatives of organisations of employers, of the employed, and of other parties rep-

143 Of course, this Committee dating back to the original version of the Treaties, in a way, the dialogue with civil society

is as old as that (as pointed out Luca Jahier, in: Pichler / Balthasar, 132).

resentative of civil society, notably in socio-economic, civic, professional and cultural areas”), we

again find remarkable developments:

• the attribute “organized” was dropped, which allows to conclude that the notion “civil socie-

ty” now also comprises non- organised people

144

• “civil society” is no longer restricted to “various economic and social components”, as speci-

fied in (the non-exhaustive list of) Art 257 (2) TEC, but open to “civic” and “cultural are-

as”.

145

These developments already indicate a large material and personal scope of “civil society” within

the meaning of Art 11 (2) TEU. The latter assumption is further backed by Art 15 TFEU which

now not only confers, in its third paragraph (as it did already, though only with regard to the Euro-

pean Parliament, the Council and the Commission, Art 255 TEC; cf. now also Art 42 EUCFR), “a

right of access to documents of the Union’s institutions, bodies, offices and agencies” to “any citi-

zen of the Union” (and, moreover, to every person established in a Member State), but explicitly

intends, according to its first paragraph, “to promote”, by granting (inter alia) this right, “good

governance and ensure the participation of civil society”.

Confusingly, the apparently helpful and formerly stereotypically used narrowing down qualifications

of "structured" and "organisations" as prefix and suffix around civil society have disappeared on their

way into the Union Treaty. Consulting the documents of the Constitutional Convention does not gar-

ner a satisfying explanation; neither does the search for a concrete significance of the newcomer term

"representative associations". It could be that this is just an un-reflected alliterative use, but this ap-

pears to be unlikely when reaching such a prominent place in a constitution. It could well also be that

the idea in the back minds of the authors was to get off with a system of "structured", which could

imply that this could be seen as a cryptographic camouflage for a closed community of "haves" that

keeps out the "have-not´s", which per se again could throw a correspondent light on the criterion of

"open". However, we decided to let the respondents make the case, who are really involved and could

therefore deliver a more authentic reading from their daily business and give insight to how they in-

terpret the omission of imposing a connotation of "structured":

78. Whereas there was talk during the pre-Lisbon era about a "structured dialogue", the actual

Union Treaty has deleted / omitted this criterion. Do you consider this:

144 This interpretation (cf. already Mendes, CMLR 2011, 1852) avoids, furthermore, any discrepancy between Art 11 (1)

TEU favouring “citizens and representative associations” and the second paragraph, speaking of “representative asso-

ciations and civil society”, and, perhaps, also the notion “concerned” used in the third paragraph; cf. that Daniela Fraiß

as well as Pierre-Arnaud Perrouty/Julie Pernet (all in this volume) focussed not so much on numbers of members of

civil society organisations, but on people concerned with a specific issue.

145 This enlargement is, of course, due to the enlargement of competences of the Union

which is no longer only focussed on the single market (a point stressed in particular by Kathrin Hatzinger, but also by Daniela

Fraiß, both in Pichler / Balthasar, Open Dialogue, 129; 87

O: an incidental slip

O: as an elimination of any measure that could potentially constrain the dialogue

O: to mean nothing in particular O : …

Nevertheless, when designing the Questionnaire we felt bound to propose possible "structures" in the

offered options´ categorisations, such as NGO, because these correspond with the typology of the

Transparency Register, which intrinsically is law-reality-making. It would make no sense at all to in-

troduce new synthetic categorisations, which would only confuse the respondents. To be honest, we

have no others at hand either, so we are also muddling-through with the old and fairly senseless ones.

vii. Representative

Apparently much more consistent, even though also extendible in any respect

146

and being also a gen-

eral term as repeatedly shown afore, and also a great issue in literature, is the admissibility or eligibil-

ity criteria "representative". But it at least makes us think about resilient criteria as representative ei-

ther in a quantitative numeric sense or as representative in a qualitative sense. Finally, representativity

raises the question on how to represent grassroots movements and the question on the role of self-

proclaimed single intermediaries to represent the unrepresented, silent citizens, which may fit for

some social CSOs. The answer to what makes a CSO a CSO often lies in volitive categorisations by

law and politics

147

viii. Representativity as an Admissibility Criterion

The EESC "participation" reports have dealt with this qualifying criteria ever since. From these re-

ports as well as from literature in general, we can draw no overall conclusions and no iterable con-

cepts, only one certain result : that representative in the context of PD has a different underlying drive

than the use in the concept of representative democracy under Art 10 (1) and (4) TEU. PD is by no

means a full-fledged alternative to representative democracy, which is also clearly addressed by the

146

See H Johansson, Whom Do They Represent? Mixed Modes of Representation in EU-Based CSOs’ in S Kröger and D

Friedrich (eds.), The Challenge of Democratic Representation in the European Union, 2012, 90; M Rodekamp, Representing

their Members? Civil Society Organizations and the EU’s External Dimension, in: S Kröger and D Friedrich, see also A

Fung, Associations and Democracy: Between Theories, Hopes, and Realities Annual Review of Sociology (2003) 29, 515ff

and in general Jürgen Habermas, The Theory of Communicative Action /Vol.2, Lifeworld and System: A Critique of Func-

tionalist Reason, 1987, chap 8.

147

see Busschaert, 60: With variations as to the family to which they belong,81 welfare states confer CSOs legal recognition

through appropriate statutes, fund, through tax-exemption and grants, their activities, shield their conduct from the rigour of

competitive markets and commission social services from them. These measures share a common purpose: nurturing a civic

space between state and market where citizens may become masters of their own destiny.

Union Treaty, when stressing in Art 11 (1) "The functioning of the Union shall be founded on repre-

sentative democracy". Therefore the term representative in context of PD can be alleviated from the

burden of counting every vote as equal and quality, density, significance or evidence can outweigh

quantity. This reading is not a just voluntary one, it can also be derived from the authentic and specif-

ically addressed for the use in CD interpretation of the European Parliament, what civil society´s is-

sues could be about which in turn makes the issue to the core element and, further, makes any issuing

a civil society representative. Speaking in the name of an issue conclusively means to speak for a

greater group of concerned people as no problem regarding an idea is a singular problem, not amongst

a citizenry of half a billion people : "...presence in public life, expressing the interests, ideologies (...)

based on ethical, cultural, political, scientific, religious or philanthropic considerations."

148

Thus -

only by the definition of having a consideration - can any citizen in general participate under the title

civil society and this without having to organise themselves within an association

149

. Of course, in

particular this would cause numerous procedural worries, so the Commission is forced to bundle and

channelize in order to handle the implicit challenges. But first comes the challenge and only then the

appropriate and, foremost, doable solution.

82. In regards to "qualifying elements", do you think that it should be one of the following?

O: representative for a significant constituency

O: representative in the sense of a Union-wide network

O: representative in respect to expertise

O: representative in regards to an idea that is seen of potential for the future

O: qualified by the "quality/significance" of the represented issue or value

Other (please specify)

Up until now it has been up to the respondents to come up with empirical affirmation or disconfirma-

tion. The questions we have designed do not stringently drive into any direction, but are open and

stimulating for instigating creative models.

5. The VCD Criteria "Open, Transparent and Regular"

The Union Treaty addresses three requirements to CD. These have raised a lot of reflections in litera-

ture. Open to whom? Carried-out openly to the public? Adverse to admissibility or eligibility re-

straints? Furthermore, does the apparently conscious omission - we cannot insinuate that a Treaty

wasn´t revised carefully enough - of setting any constraints when speaking solely of civil society, no

148

OJ 2010, C 46 E/23, recital F

149

see the concerns by Britta Breser, Ein Stimmrecht aber keine Stimme. Zur Beteiligung des unorganisierten Bürgers an

EU Governanceprozessen, Master Thesis, University of Krems, 2015

"structured" and "no organisation" any longer, that even single citizens with a typical "civil" concern -

and maybe a significant grassroots movement behind her or him - is to be seen as (part of) CS? One

could propose that, and some have done so already. Notwithstanding the organisational worries, what

about a citizen’s democratic legitimation? But if we take this as the crucial bifurcation, then all other

applicants must be screened on their democratic background. This again would indicate further proce-

dures over procedures.

i. An Empty Canonical Trinity?

Nevertheless, we are not entitled to make such a case and therefore have decided to ask for the opin-

ion of the parties involved.

What do the particular requirements of the civil dialogue in being open, transparent and regular

mean to you?

75. Open

O: to be kept free of any barriers, like detailed structures, organisational biases and similar

O: open to any potential applicant

O: open in regard to the procedure itself, i.e. to be carried-out in open sessions

O: open in regard to the outcomes, that therefore must be strictly communicated to the public

O: just another catchy word Other (please specify)

76. Transparent

O: transparent in regard to the admissibility criteria

O: transparent in regard to the power / influence of the "players"

O: transparent in regard to the processes, rather a synonym to "open"

O: just another catchy word Other (please specify)

77. Regular

O: to be held along a regulatory regime O: to be held at certain terms

O: to be held permanently O: just another catchy word O: …

6. Factual Challenges to the VCD - Procedural Aspects, Effectiveness and Relevance

i. Procedural Aspects

As mentioned in the introductory part – as opposed to Art 11 (4), Art 11 (1) and 11 (2) are both not

determined for a particular model of implementation. So there is obviously ample space for the insti-

tutions on deciding how best to implement, to carry-out, to inner-organise and even where to allocate.

This makes the experiences, opinions and perceptions of the parties involved even more valuable for

further design.

67. Considering the potential need for selecting dialogue partners, is participation in the civil di-

alogue held or joined by your entity:

O: completely open to anyone O: open upon registration

O: regulated on an ad hoc basis without reasons given

O: regulated on an ad hoc basis with reasons given

O: regulated following a standardised procedure without legal recourse

O: regulated following a standardised procedure with legal recourse

Other (please specify)

68. Based on your experiences, should participation in the civil dialogue held or joined by your

entity be:

O: completely open O: open upon registration

O: regulated on an ad hoc basis without reasons given

O: regulated on an ad hoc basis with reasons given

O: regulated following a standardised procedure without legal recourse

O: regulated following a standardised procedure with legal recourse

Other (please specify)

69. What do you consider as necessary accompanying measures?

O: monitoring mechanism O: evaluation scheme

O: permanent feed-back instrument

70. If you are part of vertical civil dialogue, are any of the above mentioned schemes in action?

O: monitoring mechanism O: evaluation scheme

O: permanent feed-back instrument

ii. Dialogue - Intrinsic Value or merely a Tool?

We contested this consideration through a question on the assumptions on effectiveness and relevance

of VCD:

71. Effectiveness and relevance

How effective is your particular vertical civil dialogue?

O: very O: O: somewhat O: O: not at all

How relevant do you sense your particular vertical civil dialogue to be?

O: very O: O: somewhat O: O: not at all

iii. Open to Whom and Why?

We addressed this investigation in the eligibility criteria.

Eligibility Requirements

80. In regards to deciding on eligibility / admissibility, do you think that:

O: this decision should be fully up to the institutions

O: this decision should be up to the institutions but due reasons have to be given

O: this decision should be up to the institutions but remedial actions are to be foreseen

O: this decision should be up to the institutions but is to be done according to narrow legal criteria

O: this decision should be subject to co-decision-making by a joint body comprised of the institutions

and the dialogue partners

Other (please specify)

81. In regards to general eligibility / admissibility, do you think that:

O: participation in the transparency register should be required

O: with the number of admitted parties limited, there should be a rotation prior to the period end

O: every applicant should show up with a specifically qualifying element, like being "representative"

O: stakeholders of any kind corresponding to the "drive" of a specific dialogue are eligible anyway

Other (please specify)

IV. Key Results of the Survey

The differentiation of the respondents is based on the options for self-identification provided

for in the survey. For a comprehensive mapping, including key legal materials, see Annex I.

CATE-

GORY

Open Q

estion

Closed

Questions

"Re-

gime"

I. General

Objec-

tives

Q 14 Where do you think this idea

of a civil dialogue comes from?

DGs: treaty provisions / Art. 11 TUE /

The EU civil dialogue was inspired by

national practices. The white paper on

governance developed a comprehen-

sive approach /

Need for accountability and better

ownership of policy / collecting feed-

back

CSOs: Ancient Greece / Athens? /

culture and history and democracy /

The democratic charters of the EU /

democracy / It comes from the peo-

ple's interest to be involved in the wel-

fare of their communities and on their

need/expectation for social harmony

/In order to make policy which caters

to the needs of the population, one

needs to know what the population

thinks / Need to enhance citizen's par-

ticipation in EU decision making pro-

cess / from different organizations /

pushed forward by CSOs and EESC /

NGOs involvement / from the practices

of local development methods /

RAs: Ancient Athens democracy /

CD is a tool to implement the princi-

ples of a democratic society: open-

ness, participation responsibility effi-

ciency and consistency / collecting

feedback

1. Civil

Dialogue

in Gen-

eral

What is the advantage of participatory

democracy? What is added value?

(15)

DG: Better governance / larger range

of ensuring broader support and im-

proving quality of policy / transparency

/more expertise/ stronger engagement

/ enhanced legitimacy / Legitimises ac-

tion / empowerment/ Participatory de-

mocracy helps overcoming the short-

comings of representative democracy

by combining it with elements of direct

democracy / democracy is valuable by

itself

CSOs: Reducing the costs of some in-

vestments / share views, knowledge

and best practice, resulting in better

policies / Broader knowledge base,

broader acceptance by the public / pol-

icy examined from many perspectives,

kinds of expertise, including experen-

tial. early warning of negative effects /

Potentially, all stakeholders get a

chance to express their opinion, en-

riching the debate / expertise by

stakeholders can feed in to the policy

process / It serves as a reality check

for EC institutions -who are far away

from the daily reality / bringing deeper

knowledge and balanced decision /

good policies are achieved when all

the stakeholders contribute/ Citizens

are satisfied with the choices made by

the governance / understanding what

Brussels is up to / getting real life

feedback / empowerment, understand-

ing, dignity, greater transparency and

accountability of policies / better ade-

quacy with the interest of the popula-

tion/ enhance the legitimacy of EU pol-

icies / civic engagement / Any deci-

sion, initiative, law, action is backed up

by the community, the communities

evolve based on citizen direct in-

volvement / It is a basic condition of

democracy to involve the participation

of civil society groups. Without it there

is no effective democracy / It serves as

a reality check for EC institutions -who

are far away from the daily reality

RA: Added value is only present if the

dialogue involves submitted com-

ments, ideas and a follow up as to how

these can/are taken forward / Mostly

better preparation and understanding

of legislation / more support for legisla-

tion / Allows everyone to share their

views, get involved in policy making in

some way / Citizens are satisfied with

the choices made by the governance /

Participatory democracy is part of the

ES model of society. Participation is a

civic right and subsidiarity - a pillar of

democracy / democracy is valuable by

itself / that citizens can make their

voice heard not only as voters but also

outside of elections on topics that mat-

ter to them

Could the civil dialogue produce nega-

tive effects?

DGs: (mostly no)/ expectations might

be high / Lack of openness of different

actors to different views creates nega-

tive dynamic

CSOs: No. Citizens are perfectly able

to understand and comprehend what

is at stake only good for vested inter-

ests who have time to participate / if it

is hijacked in some way/ If profession-

al lobbyist actors are getting too much

space, it harms the true nature of the

democratic process / If unbalanced in

representation, it could provide bi-

ased inputs / power imbalances can

be increased , if not active in engaging

the most disadvantage , excluded &

least organised citizens /not the dia-

logue itself, but there is always a risk

that a minority dominates the (passive)

majority / someone can complain that

it takes time, or spoils the final effect.

But this is a judgement of one side on-

ly. / Waste of organisational capaci-

ties, contribution to unnecessarily

complex and overly bureaucratic pro-

cedures / Lengthy and protracted de-

cision making / /being a waste of time

and taxpayers money / dissatisfaction /

by some it might be perceived (as) un-

democratic

RAs: Citizens are perfectly able to un-

derstand and comprehend what is at

stake. / not everyone has equal

chances to participate as actively in

any aspect of the dialogue / could slow

things down if too cumbersome / if a

party/lobby wants to rule the dialogue

yes / If participants are selected by a

lack of transparency, have no jurisdic-

tion if only listen and not take a direct

part/ by some it might be perceived

undemocratic/ Time consuming and

lack of action

2. Art 11

para 1

DGs: Dialogue between the civil soci-

ety organisations themselves

CSOs: citizens having dialogue with

each other on their views of policies/

dialogue between several civilians/

between associative structures on

the same level/consultation Exchange

and alignment of CSO positions and

input/ going beyond the sectoral and

institutional approaches/ cross sector

collaboration / Sectoral or specific tar-

geted/ take attention to the problems

for the officials / democracy (plus 3

variations of don’t know)

ROs: Dialogue between European civil

society organizations for the devel-

opment of future European policies /

organizations involved in the process

discuss among themselves / Mainly

exchange amongst stakeholders / citi-

zens having dialogue with each other

on their views of policies/ between the

EU and citizens

3. Art 11

para 2

DGs: Dialogue between executive

and legislative authorities on one hand

and representative associations and

civil society on the other hand / consul-

tation / between the institutions and

representative associations and civil

society organisations

CSOs: Citizens having dialogue with

the institutions on their views of poli-

cies / dialogue from and to policy

makers / between civil society organi-

sations and EU authorities / Bottom-up

dialogue crossing all levels of the so-

ciety from citizen, grassroot org, to civil

society, umbrella structures and public

bodies / improving links between local,

regional, national and European level /

Ancient Greece/ consultation / To

know what's going on at the population

RAs: Citizens having dialogue with

the institutions on their views of poli-

cies / Structured and regular dialogue

between the organizations and the EU

/ Exchange between stakeholders and

the EC / between citizens

II. Objectives Met (C & R VII)

1. Civil

Dialogue

in Gene-

ral

C & R XI

(15, RA) We do not consider the EU

dialogues - at least the ones we have

followed closely- as transparent or as

democratic as they should be (16,

DGs) not everyone has equal chance

of participating as actively in any as-

pect of the dialogue/ Lack of openness

of different actors to different views

creates negative dynamic (16. CSOs).

Only a very small community can real-

ly contribute, since you need time and

knowledge to take part / Too strong

temptation for policy makers to manip-

ulate and abuse the participation of

stakeholders to serve their own inter-

ests (24, CSO) The EU has a long way

to go in establishing democratic legiti-

macy.

2. Art 11

para 1

(compare answers in I.2.)

3. Art 11

para 2

(compare answers in I.3.)

4. Per-

formance

in Meet-

ing the

Objec-

tives

C & R XII

How do you perceive the reality of the

civil dialogue in action in your own ar-

ea of expertise? Do you think civil dia-

logue is effective? If so, why? (17, 19)

DGs: (17) Range from “good and use-

ful” to disappointing

(19) Yes. On partners' side: it enhanc-

es ownership. On the side of the au-

thorities: increased coherence, more

targeted action / yes, it brings COM

closer to citizens and stakeholders /

forum would be better than survey and

live meeting even better / Effective,

stimulates debate, has helped deliver

greater transparency in both direc-

tions, informs us of wider politics of

trade DG AGRI changed its system to

make the dialogue more effective. The

initial feedback is good

CSOs: (17) We have been calling for

structured dialogue within Education &

Training without success / satisfactory

in the process of local development,

disappointing in higher level of territory

/ satisfactory- it is exciting to partici-

pate in building a new type of democ-

racy (otherwise range as above)

(19) No. The agenda of the dialogue is

very limited and set by only one side of

the dialogue / A civil dialogue is not ef-

fective. There is a lack in practice, es-

pecially resources to adequately per-

form a dialogue in a short time. / Not at

our European level / it is good in get-

ting some information, we do not really

dialogue a lot though/ No, there are to

less people who knows about it. We

need better information. / I think it is

not substantive enough / yes, but not

enough of it; civil dialogue means

bunch of work, and COM tries to avoid

/ partly effective due to conflicts of in-

terests/ It is effective. Helps to better

manage the communities and puts

pressure on decedents. / at Brussels

level yes ( It does provide an oppor-

tunity for civil society groups to make

their voices heard with the Commis-

sion and Parliament./ yes, promotes

more informed & democratic decision

making / No, there are too few people

who know about it. We need better in-

formation /

The questions aren't right: dialogue

works with the people we work with di-

rectly but not with the hierarchy.

RAs: (17) wide range, mostly satisfac-

tory

(19) No. The agenda of the dialogue is

very limited and set by only one side of

the dialogue / Not effective, as there is

a lack of transparency and non-equal

treatment among the DG and organi-

sations / Depends on type of people

involved, needs to be broad and in-

volve new people. / Yes, if just seen as

an exchange platform / Yes, because

efficiency is one of the principles of

management of civil dialogue. / yes, it

can influence decision making /

It does highlight The Commissions im-

portant work areas

III. Specific

asks

1. Civil

Dialogue

in Gen-

eral

19b, 20b

Dialogue:

DGs: A structured and meaningful mu-

tual exchange/two way flow; engage-

ment to listen/engagement in dis-

course (conversation) intended to en-

hance understanding and reach ami-

cable agreement/ interactive/ need two

way exchange

CSOs:

Two sides hearing each other

and replying to each other’s argu-

ments / a two way street /listening and

talking on both sides / dialogue is lim-

ited by the economic interests and has

a non-visible part / procedure to get-

ting constructive solutions/ exchanging

views and knowledge / A fruitful ex-

change of information, experiences,

opinions / mutual, intensive, efficient /

democratic listening to each other and

make action plans Civil dialogue is the

way to get information and reflect

RAs: a two-way process / conversa-

tion / Two sides hearing each other

and replying to each other’s argu-

ments/ Despite the original meaning of

the greek word diaologos, it can be a

discussion to find a consensus among

more than two parties / interactive/ in-

teraction with stakeholders and deci-

sion makers to influence a decision /

The dialogue is more based on the

Commission lecture instead of a real

discussion

2. Art 11

para 1

(compare answers in I.2.)

3. Art 11

para 2

(compare answers in I.3.)

IV. Aims

DGs: Give citizens and representative

associations the opportunity to make

known and publicly exchange their

views (cf. art. 11 TUE) / to make

known their views in all areas related

to CAP/ engagement, transparency

CSOs: To let citizens be heard / in-

volve stakeholders / give stakehold-

ers opportunity to express views; con-

tribute to open and transparent policy

making process / Provide a platform

for qualified participation to CSOs into

EU policies / to show transparency

and participation / Enable the demo-

cratic participation in policy making of

those concerned / Enhance democrat-

ic participation of civil society / Ex-

change of information and expert ad-

vice to the DG / To establish demo-

cratic influence, transparency/ To

make sure the voice and interest of EU

Citizens are taken into account/ un-

derstand our diversity, increase public

engagement in Europe, and take ac-

count of different voices in decision

making

(output oriented): more understanding,

better regulations / Improving govern-

ance and leading policy in better ade-

quacy/ the quality of legislation / the

individuals' quality of life and make the

communities sustainable/ find a better

solution / Good governance for the

people / Make use of experts and

grassroots knowledge/ balanced policy

making / structured support by NGOs

RAs: let citizens be heard/ to make

the voice of citizens through organized

civil society heard / Give citizens/orgs

the opportunity to share their opinions

on EU related issues/work / To ex-

press our opinion. Active participation

for better state of agriculture in Europe

/ opportunity to make known and pub-

licly exchange their views in all areas

of Union action

(output oriented): improvement of the

quality of legislation / Sustaining the

EC in the elaboration of an adequate

legislation, improving its understanding

amongst stakeholders and its imple-

mentation.

V. The Criteria of 11 para 2 (C & R XV)

1. Open

C & R XII

DGs: not restricted to certain catego-

ries or lobbies / Based on clearly de-

fined rules, without unjustified barriers

/ fully transparent / An open dialogue

is one which is open to all interested

parties to hear and participate in /

Open to not-for-profit organisations in

EU Transparency Register

CSOs: for all to be part of it/ open to

every contribution / A wide range of

stakeholders have access to the dia-

logue. / access to everybody on the

documents, allowing all NGOs to par-

ticipate, but not having many people

per one interest group / open to non-

economic interests / both 'sides' can

put items on the agenda... / democrat-

ic listening to each other / The wide

public can see it freely and media can

easily dig deeper / administrative "im-

possibility" / Prior disclosure of rele-

vant information about what is at stake

ROs: no restriction / accessible / open

to all interested organizations / Broad

access / The wide public can see it

freely and media can easily dig deep-

er.

2. Trans-

parent

(32) DGs: Publicly available infor-

mation, unambiguous rules/ openness

/ public /Open meetings, records pub-

lished, potentially web streamed

CSOs: Information about agendas,

meetings, decision making milestones

/ the fact that each partner of the dia-

logue is clearly displayed. Dissemina-

tion of the results and the arguments

of the decision. / Accessibility of agen-

das, minutes and list of participants /

clear goals, actions and procedure and

dissemination of information / all doc-

uments are available. It is clear in ad-

vance and afterwards, how the dia-

logue affects the decision making and

how other factors influence it /

minutes should be available to the

public / On the record so that those

with contrary views can have an op-

portunity to challenge information ex-

changed / clear reporting / no hidden

agenda, willingness to be open about

the issues and interests / this concerns

especially the invitation policy / com-

pletely open to everybody / lack of re-

sponsiveness /

RAs: It is clear in advance and after-

wards, how the dialogue affects the

decision making and how other factors

influence it / open to public scrutiny /

truth / Equal access to participation

and documents / Open, non-

prejudiced, neutral, objective, respect-

ful to all parties / that it is visible for all

those interested / public

3. Regu-

lar

(33) DGs: Recurring at fixed, uniform,

or normal intervals / at sufficient close

intervals as to be beneficial for all par-

ties involved periodic, as necessary –

2-3 times per year and more if neces-

sary by modern IT tools /several times

each year / We try to ensure monthly

contacts

CSOs: As regular as decisions are

made and agendas are set. / Before,

during and after the process / regular

meetings are held / a fact/ organised,

planned / action/procedure that is

common, repeatable, based on a peri-

odicity / more often than once / every

X weeks/months / continuous / mean-

ing not only a one off occasion but

several times when new input is need-

ed / Recurrent, constant over time /

defined by rules / regular depends on

context , should involve dialogue at all

points of assessment or policy change

Can be anything from monthly to bian-

nual / at least twice a year and before

changes in key policies

no big regulatory work should be done

without liaising with the civil society /

lack of vision and good will

RAs:

As regular as decisions are made and

agendas are set / frequent / normal,

standard, permanent, stable / that it

happens regularly

At least twice a year / several times

each year

VI. Con-

sidera-

tions

(Wish

List“ -

General)

What issues could be improved to

achieve greater effectiveness? (21

in part)

DGs: Extension of the culture and

practice of civil dialogue in all EU

Member States./ more periodic dia-

logue; not only CDG per se; openness

and frank approach/ forum would be

better than survey and live meeting

even better

CSOs: agenda sent well in advance;

input on agenda possible; targeted

discussion on specific issues; follow-

up / agenda set by us. / Structured dia-

logue instead of one huge meeting per

year / a more institutionalized involve-

ment of CSOs / More media work,

more forums / less meetings, less

people in meetings, more technical

discussions, more concrete questions

of commission what they want from us

/ Careful selection of the leaders. More

information for the electorate. / The

assistance of independent scientific

experts / More effort and money on

our side / no way to learn political skills

since unions collapsed / more in-

volvement of the parliament members

RAs: Dialogue should be way more

extensive, inclusive and the agenda

set by us./ Proper dialogue with feed-

back - instead of university style lectur-

ing on the part of the Commission /

Wishes expressed in response to

other questions:

16: RA: Should not be used by EC to

refrain organising proper consultation

processes, impact studies and evalua-

tions of (possible) EU legislation

VII. "Legal Nature"

1. Hard

Law

Are you aware of any legal oblig

tion why the civil dialogue must be

conducted? If so, where does the

obligation stem from? (22 and 23)

DGs: EU Treaty / Art 11(2) of the TEU

/ Art. 11 TUE as well as obligations

stemming from sector-specific sec-

ondary legislation / it stems from par-

ticipatory democracy as a fundamental

democratic principle of the EU

CSOs: Treaty of Lisbon stresses the

need for dialogue with various groups /

Art. 11 / in the treaty of Lisbon / not

specifically / Art 11(1) and 11(2) of the

Treaty on European Union / Art 11

TEU, Art 41-44 EU Charter, Regula-

tion on Access to Documents / From

the constitution(s) / From the constitu-

tion(s) / Constitutional Treaty

ROs: Treaty of Lisbon / Yes, art. 11

TEU / Art 11 / Art 11(1) and 11(2) of

the Treaty on European Union / Lis-

bon Treaty, human rights treaties /

Treaty agreements signed by the EU

2. Soft

Law

Nature

(24, CSOs )Best practices in EU states

are the additional incentives to effec-

tive civil dialogue / EP Report on the

perspectives for developing civil dia-

logue under the Treaty of Lisbon

3. Non-

legal Ob-

ligation /

Do you believe that an obligation

other than legal exists in light of the

EU’s democratic legitimacy? (24)

Code of

Ethics

DGs:

(several times yes)/

EU dem

cratic process and tradition / the CDGs

are an asset in ensuring that people

are active in shaping their society

CSOs: (several times yes, less fre-

quently no)/ for sure, Europe lost the

link to its citizens / A moral obligation

exists indeed /yes, a moral and popu-

lar obligation / yes, ethical and duty to

citizens / yes a democratic one to-

wards the citizens and who represents

them / Yes, democracy is based on lis-

tening to the population - it is the most

basic principle / a moral obligation for

transparency and legitimacy / All the

big words about democracy, transpar-

ency and rights must have just a shred

of reality in order not to be completely

ridiculous / I don't think so

RAs: (“yes” twice) / A moral obligation

exists indeed. As EU has competence

in many topics / I hope so!

4. Regu-

latory Re-

gime (Be-

yond Art

11 TEU)

What kind of regulatory regime cur-

rently regulates civil dialogue in

your area of work/expertise? Please

describe the exact legal basis for

the regime currently in place in your

area of work/expertise (25 and 26)

DGs: EU secondary legislation /

Commission decision of 16 December

2013 / Art. 5 of Regulation 1304/2013 ;

Commission Decision setting up the

ESI Funds structured dialogue group

of experts C(2014) 4175 / setting up a

framework for civil dialogue in matters

covered by the common agricultural

policy and repealing Decision

2004/391/EC / COM decision (AGRI) /

The rules of procedure complement

the operation rules of the civil dialogue

group as set up in the Decision

2013/767/EC / CONSTITUTION AND

INTERNATIONAL LAW

CSOs: decision of commission / DG

decisions / 23 April 2004 Decision of

the Commission / Rules of procedures

defined by the DG and agreed on by

participants to the dialogue / values

and communication system (methodi-

cally and democratically) / as part of

various EU programmes. out of habit /

The Law of Associations and Founda-

tions no. 26/2000 /The Law of Associ-

ations and Foundations, the Civil Code

and the Fiscal Code / (variations of

none)

RAs:

DG decisions / National legisl

tion, which is mostly not implemented /

lack of dialogue regime /(variations of

no/none)

5. Reme-

Please describe legal recourses

currently available to actual as well

as aspiring participants of civil dia-

logues in your area of

work/expertise (27)

DGs: the standard ones for the advi-

sory groups of the Commission / don`t

know /NA

CSOs: only the TEU is a resource,

apart from that we stand very weak /

outsourced externally / Mediator / fo-

cus groups, public hearings, referen-

dum, promotion of citizen initiatives,

consultation process on law drafts /

(variations of don’t know)

RAs: only the TEU is a resource, apart

from that we stand very weak / (varia-

tions of don’t know)

VIII. Per-

formance

of the

Regulato-

ry Regime

2. Con-

sidera-

tions on

the Legal

Natu-

tu-

re/Regula

tor Re-

gime

(„wish-

list“)

IX. Selection (C & R IX.)

Notifica-

tion and

Criteria

for Partic-

ipation

C & R XIII

Q 34 What do you think about spe-

cific qualifying criteria for admissi-

bility?

DGs: They allow better structuring of

the dialogue, ensure representation

and avoid discrimination / necessary to

have in order to have a well-

functioning dialogue / ok but it is a bit

artificial that religious org cannot regis-

ter as such but only through a repre-

sentative / spelt out in decision

CSOs: Needed, to prevent fragmenta-

tion and wild growth / necessary / Im-

portant / qualifying criteria enhance the

applicants to achieve a minimum level

of expectations. They are useful / In

principle good / in principle this is fine

as long as the threshold is not too high

/ the formal criteria are not as im-

portant as the actual conditions under

which civil society has to operate -

usually lack of resources / not re-

spected

RAs: Needed, to prevent fragmenta-

tion and wild growth / Cannot properly

be assessed for representatives / It

would be good to call qualified experts

to dialogues, if a professional issue is

concerned

Q 35 Which criteria would you re-

ject?

DGs: Any criteria that impinge on a

fundamental right / any that aims to

exclude a category of EU citizens / in-

consistent treatment/categorisation of

organizations appointed /

CSOs: financial, age, focus on nation-

al organisations / NGOs including pub-

lic authorities in their membership /

registered association, focus of the

NGO relevant to the dialogue

RAs: Small budget / financial, age, fo-

cus on national organisations / Non

relevant to our profession or to an is-

sue parties, authorities / any that aims

to exclude a category of EU citizens

Q 36 Which criteria would you fa-

vour?

DGs: Criteria related to representa-

tiveness and relevant expertise, pro-

vided they are objectively verifiable /

representativeness / the ones pub-

lished in the call for applications by DG

AGRI

CSOs: Democratic structure of organi-

sation, a certain representativeness

and public interest / representative-

ness, internal democracy and meta-

dialogue / democratic listening to each

other / proof of working on European

level / balance between economic and

non-economic interests

RAs: representativitiy / Close contact

with people in the area / Evidence of

the subject's good knowledge, author-

ised participation to executive commit-

tees

2. Re-

sponsibil-

ity and

Criteria

for Select-

ing Mem-

bers

4. Con-

sidera-

tions on

the Selec-

tion

(Partial overlap with 1.)

Taken from: What issues could be

improved to achieve greater effec-

tiveness? (21)

DGs: ensuring a balanced representa-

tion of interests CSOs: / Better bal-

ancing the interests between econom-

ic and non-economic interests / Bal-

anced representation of all interests. /

Dialogue should be way more exten-

sive, inclusive / / reaching & involving

disadvantaged & uneducated. RA:

Neutral and objective approach by the

DGs towards all representative organi-

sations / Must involve practitioners and

real farmers. / that not only employers

and employees organizations are in-

volved in employment issues but also

other NGOs, like family/women organ-

izations / increasing the input through

online options

Taken from 16: DGs: the CDGs

should have balanced composition so

to avoid the overrepresentation of cer-

tain interests for example economic in

the dialogue

XI. (X.) Dialogue Procedure

1. Struc-

turing of

Partici-

pants -

General

XII. Ven-

ues for

Civil Dia-

logue

XIII. Conflict of Interest Policy

1. Check-

ing on

Possible

Conflicts,

Conse-

quences

Answer on Q 34 What do you think

about specific qualifying criteria for

admissibility? (CSO): regulations of in-

dustrial lobbying (RAs): Journalists

should be allowed to attend

Answer on Q 35 Which criteria would

you reject? (CSOs) criteria based on

personal CVs and not on organisations

2. Impact

of Vertical

Dialogue

XIV. Re-

view

1. Review

in Place

2. Con-

sidera-

tions on

Possible

Review

Mecha-

nisms

V. Conclusions and Recommendations: The Unfinished Dialogues

1. Premises First - General Objectives

i. Adapting to the New Mind-set by the Treaties and a Constitutional Responsibility

From the Lisbon Treaty’s Preamble to the Union Treaty and the Functioning Treaty, the Treaties gave

clear orders: They made clear mission statements on the desideration of increasing legitimacy, thus in

a way officially ordering the "spirit" of implementation. The leeway for the handling does not trans-

late into an option for not-implementing or a half-hearted manner of implementation. Despite the rem-

iniscence of the ruling principle of representative democracy under Art 10 (1) TEU, the Treaties since

Lisbon have not parted with the pre-Lisbon era mind-set and clearly signal new approaches of open-

mindedness, whereby respecting the European citizens´ political will. As empathically expressed in

the multilevel governance Charter of the Committee of the Regions: "Togetherness, partnership,

awareness of interdependence, multi-actorship (...) transparency, sharing best practices (...) trans-

parent, open and inclusive policy-making process, promoting participation and partnership involving

relevant public and private stakeholders (...), including through appropriate digital tools (...) to cre-

ate networks between our political bodies and administration. Worth noting is the fact that all these

tendencies and considerations are in line with Luc Van den Brande's MLG philosophy concept and as

well with Beth Novecks´ Wikigovernment doctrine, which we have referred to and which we favour.

Throughout the entire study we keep this intrinsic beacon of interactive aims and legitimacy

goals in mind, because we cannot find a single reason otherwise for the appointed task of giving

recommended mapping when we disagree on the core premise. CD aims intrinsically for mutual

understanding by exchanging good arguments or, best case, in finding a broad mental consensus

on pendent EU legislation. In other words, Art 11 does not at all introduce a further kind of si-

lent co-determination track through the backdoor and actually does not really side with the idea

of direct democracy, even if the European Citizens Initiative under Paragraph 4 of Art 11 is in-

terpreted quite often as such. Art 11 intends to empower and enable partners in an enriched

and enhanced mutual political communication. It surpasses the deliberation idea in the Haber-

masian sense and takes one step further to set up the most modern philosophy of outcome-

related cooperative and collaborative democracy.

With a decisively positivist premise we have - without any restraint - respected the premises and un-

derlying assumptions of the Treaties and made them the core parameter of our evaluation methodolo-

gy. It is the right of a "Constitution" to claim ontological priority. Neither would it have been up to

authors of a study on "what exists" nor is it up to the bodies operating under the rule of law to ignore

the legislators’ desideration and conclusively to insinuate that the Treaties were just driven by the

chimera of the Constitutional Conventions enthusiasm. A significant part of scholarship seems to be-

lieve so, thereby reinforcing the implementers’ reluctant attitudes and behaviours.

What about the desideration of the Lisbon Treaty, what about the clear commandments of Arts 11(1)

and (2) of the Union Treaty? An equal majority throughout our diverse respondents categories - some

referring to the Treaties explicitly as the superstructure - do not sense a legal obligation for imple-

mentation in general and obviously keep the fact that the VCD exists for a voluntary gesture of the

EU Commission, as was appropriate for pre-Lisbon times. But years after Lisbon? Well, this lack of

awareness and rule of (mis-)perception is maybe tolerable for all those who are not directly bound by

the solemn orders, but is the same acceptable for EU authorities? Hardly. Are they entitled to interpret

simple texts into sophisticated complexity and from there conclusively sophisticate it to factual insig-

nificance, as is at least the result in case of the HCD? President and Commission, here is a matter to

be rethought.

Neither the relevant scholarship nor our survey data reflect any clear consensus when referring to the

dialogue as it is designed now. However, the survey data on considerations demonstrates a near unan-

imous consensus that participatory democracy can provide legitimacy in general. So far, Civil Dia-

logues are considered to be a means for creating a European public and bringing the Union and/or the

EU Commission closer to the concerns of the people it serves. Assuming an inviting policy and

changed attitudes to more pro-active and real collaborative use of PD, legitimacy leverage could be

assumed and in that case it would be indicated to go further with inclusion, especially when a consti-

tutional call upon the institutions conclusively orders to put on an open-minded spirit. It is the law.

ii. Internalise the EU Commission´s President´s Mission Statement - Corroborating in a Proactive

Manner in the Dialogue Culture

The President of the EU Commission seems to be in his right, when calling his team for a "last call

Commission." The - to us disrespectfully so called - EU project is not invincible and we see signals of

it being at risk to be re-surpassed by a nation state revival.

A possible solution for this concern was nearly unanimously expressed by respondents by attesting

legitimacy leverage power of the dialogue(s) in general, whereas criticisms predominantly arose when

tracking the daily practice. But this underlines that something must be done to close the gap between

sensed theory and experienced practice. Facing the empirical fact of an ongoing downturn of ac-

ceptance of the EU, the constantly stressed "communication" as an overall medicine must have clearly

failed in semine - so it makes no sense to just be more and "better communicators". Doing Union is

key. Doing means engaging, cooperating, sharing, being into, associating with and partaking. Align-

ing with the President´s statement stressing "citizens" and the principle of openness and the admissi-

bility of CS, without any restraint as to "organisation", indicates allowing to see single citizens as eli-

gible, which causes no greater problems when participating online, which again makes leverage of le-

gitimacy more likely, therefore single citizens should be considered as valuable dialogue partners.

Could the actual dialogue principle achieve that? Our findings attest a clear "No". So, has participa-

tion failed in general? Another clear "No". Our findings evidence that this "what exists" is not seen as

real participation. We can draw the following result: Participation has not been contested to its full

potential yet. Only then, when after many attempts and significant efforts, a broad, European wide

and, on any of the Union´s levels installed PD scheme had shown a legitimacy increase, could one

propose to delete it from a next Treaty. Amongst others, Art 11 (1) offers one of the means which was

not contested. Its strength is to be a constitutional track which should allow the average citizens to

openly join the dialogue.

The often legitimately stressed argument to incur "expertise" via 11 (2) for the EU Commission is

more than fragile: first of all, the dialogue partners are rather "political" representatives and not ex-

perts per se, secondly, to obtain expertise the Commission could use rather less complex and more ob-

jective ways; thirdly, it is not the case that the EU Commission couldn´t generate its own expertise in-

ternally, either by its own body of officers or by buying expertise or through Art 11 (3), the consulta-

tion procedure.

2. Horizontal Civil Dialogue

i. An Orphan in Need of Surrogate Activity?

We state that the horizontal civil dialogue in the underlying reading of Art 11 paragraph 1 TEU does

not exist. Alternative "offers" - which came in form of a friendly and cooperative contribution and for

which we are grateful - even in best conviction unfortunately do not match and thin away the Lisbon

pledge: "dialogue" is a precise used legal term and strictly reserved to the paragraphs 1 and 2 of Art

11. Communication or Consultation (Art 11 (3) TEU) or the ECI (Art 11(4) TEU) are clearly instru-

ments of participatory democracy but not to be subsumed as civil dialogue(s). As a result : the combi-

nation of participatory democracy and civil dialogue refers to Arts 11 (1) and (2) TEU solely, inter-

mingling them with other proEuropean activities or communication is not in alignment with the con-

stitutional profile.

Nevertheless some argue not to act too scholarly and purist. , and that summing up all the Union´s

communication with the citizens and all the diverse and also disparate discourses on Union and sub-

Union levels, makes in total the Art 11(1) dialogue. Whether this is motivated by benevolence or

compliance we don’t know We strongly disagree to this truly dangerous excuse, which could turn out

as a perpetual absolution for further omission. Not only is paragraph 1 - not coincidentally the ante-

cedent of, but written in the same logic, as paragraph 2 - and nobody is in doubt that paragraph 2 re-

fers to a very particular institute or instrument. Furthermore, para 1 says that the institutions "shall ...

give...opportunity", which semantically means a one-sided and rather altruistic action, as does the ad-

ditional order, namely to do that by "appropriate means". To let the citizens debate - what could the

Union do that would finally become interpreted as a favour that is "given"? So, we keep stating that

this horizontal civil dialogue is overdue. This again - as an order of the Treaties which is not followed

- can be seen as an infringement of the Treaties. At least the EU Commission´s position is within rea-

sonable rationales to be a rather executive body, whereas to install a pan-Europeanwide citizens dia-

logue scheme is of typical political nature and therefore either the Parliament or the Council or the

European Council, could be, if anyone, the ones primarily obliged.

Is this an appropriate way of arriving at a new culture of dialogue, as the EU Commission has prom-

ised in its Communication of 2002? We incline to abnegate. Starting a fairly new relation with a claim

has never turned out as being particularly benefitting. How to resolve such a deadlock? Such an an-

swer is not ours to give. We can only remind the reader that we have acknowledged that there is a

"constitutional" commandment to be followed.

ii. Support Surrogate Motherhood from Bottom-up or from the Side "by Appropriate Means"

Self-development from bottom up, coming from the citizenry, could be one option. This could by the

way, well urge support by appropriate means. It would thus be possible to equip and enable people all

over the Union to join in this dialogue, if there were an incubator that - what could be deemed as less

than "appropriate means" - provides the necessary basic tool. The modern IC technology opens unlim-

ited options for participation, as f. ex. Facebook demonstrates. Unfortunately, it is just not the offered

technology that ensures participation. But apparently neither is the civil society advanced and on a

framing-level organised enough to serve as a crystallising power to motivate citizens to join in EU

politics in their masses. Bringing them in and keeping them on board is the real challenge and this

again requires a participation "pay-off", noticeably, tangibly, and one way or another, far away from

monetary benefits. This, again, would urge the institutions to be present "on the other end of the line",

but opposite to the vertical style, this time in a rather horizontal manner, being on equal footing, pro-

posing their own position, not coercingly unanimous and not buckling up, but corresponding to the

brought-up issues anyway, say dialoguing.

Therefore we appreciate the efforts of the EESC to promote citizens´ participation by installing its

very own portal-project "My Europe...tomorrow". Although the EESC is not formally an institution of

the EU and furthermore is not addressed by the Union Treaty, it has set a clear signal and acted by

substitution. Will the institutions appreciate this brave-hearted "surrogate motherhood" the same way

we do?

3. On the Vertical Civil Dialogue

A certain reluctance of DG´s to engage our survey can be understood. It could be that we have joined

the arena at the most unfavourable moment, namely when the EU Commission was faced with a chal-

lenge by the Ombudsman´s highly investigative addressed invitation from end of January 2015 to

show up with a fundamental response to sensed grievances in the attendant dialogue regime. It is true,

the statement of the EU Commission, scheduled by end of April 2015, will truly be of a case making

nature for a long time. The kaleidoscope will take a next turn - as we have substantively reflected on.

i. Consensus on the Dialogue’s Necessity - Dissensus on the Status Quo

Pre-note: As already mentioned, throughout all of the diverse groups there was an overwhelming ma-

jority opting for being convinced that CD could provide legitimacy to the EU. A significant and high-

ly surprising collective statement! Despite the possible interpretation that was involved, their role

could be seen with an overdone optimism, this (nearby) unanimity of the actors should make the

scholars rethink whether their doubtful theories are still valid. This conclusive "promise" should allow

the Commissioners to put on an enhanced and enlarged use as well as an innovated use of CD and in-

viting the asserting CS and RA´s to communicate this to the public, because it is not this selected

"handful" of dialoguers that could leverage the legitimacy, this consilium nobile is clearly up to the

public. But they could well act as witnesses and multipliers.

Our internal suppositions, based on the apparently too intensively analysed literature, that we will face

a highly heterogeneous picture on the necessity of the dialogue, did in actual fact not turn out as such.

The DG’s, CS’s and RA´s respondents showed great homogeneity in favour of the dialogue in gen-

eral. Prominent allegations from CS, less stressed by the body of RAs, were an imbalance of the re-

spective powers among their own "curia", opaque admission practices, top-down agenda setting only,

and information without the willingness to deal with the issues. So, then the consensus was over and

out. This, of course, might have to do with the fact that some respondents represented organisations

which were not eligible. One potential respondent called us to voice his concerns: he suspected this

study to adulate the EU Commission or the EESC. What makes one also wonder is the fact that the

questionnaire respondents from DG´s documented fairly great compliance, whereas DG representa-

tives in the described BEPA seminar in contrary complained and aired scepticism. Group dynamics

under protection of Chatham House Rules?

ii. Possible Role Models

With our findings and in full accordance to the Ombudsman´s evaluation, we can report that there is a

preliminary best practice, namely the one established by DG AGRI. DG AGRI has voluntarily im-

proved a regulation in 2014, which puts most of the crucial questions in a clear legal framework and

respects the underlying requirements of the Rule of Law principle. Maybe this regulatory willingness

of DG AGRI was the reaction to the annoying experience incurred by the famous so called olive-oil-

dispenser-case, which was right on its orbital way to surpass the dubious fame of the European-wide

"Cucumber Regulation" which was finally stopped by the AGRI Commissioner in the last second.

Nevertheless, the foreseen admissibility procedure is still not truly satisfying, as a severe observation

of the Ombudsman and a formal intervention is likely to be started within the next weeks from now

(stated on 27 March 2015). We can’t predict in a scientifically vindicable approach that the existing

possibility of quasi-monopolist hegemony erases, but it seems likely. Two of the core actors, which in

actual fact are just one according to the Ombudsman´s pre-screening, held by 70% of the obtainable

"seats", and the significantly greater and pluralist rest of all the others agriculturally connoted interests

- let alone new ones, like the new movement of permaculture or seed saving which claim to revolu-

tionise the entire sector - have to contend themselves with the remaining 30%. This example mani-

fests another ultimate fundamental as well as detrimental flaw of the entire dialogue scheme, which

was peripherally detected within our open questions but, stunningly, not explicitly qualified the im-

portance which we attributed it to.

In a rather amply evaluation we incline to state that the next to best practice is that of DG Trade. Not

that we have any further information on DG Trade, but on the basis of the intensely analysed Coffey-

Deloitte study on the Civil Dialogue in DG Trade, we can draw our indirect conclusions that there are

self-binding procedures of openness and transparency at stake that make the outcomes slightly pre-

dictable and traceable for the parties involved. We´d rather recommend DG Trade to see just the

weaknesses as ascertained by the Coffey study rather than its strengths.

iii. Complete the Fragmentary Composition - Where are the Considerations of Average Citizens?

Sectoral representation may not always represent the European´s real and daily expectations and con-

cerns. Curiously, this chapter was rarely matched, but it was garnered through the open questions,

which entailed free space for out-of-the-box suggestions. Due to the inner-organisational department

structure of the EU Commission with regards to the dialogues, its participants from outside are simply

redubbing and mirroring the DG´s genuine functional sectoral competence. The vast majority of the

European citizenry, despite having expectations along their manifold daily boundary, points to the

Union’s planning and measurements, are clearly not represented. It has always been the internal the-

matic coherence that makes organisations and associations eligible. The average citizen is in theory

represented by the DG which also defends her or his interest against any other DG. We are not enti-

tled to make this case, but we can here refer back to the olive-oil-dispenser case. When did the citi-

zens come into the closed game? The oil-disperser story was brought to the attention of the public via

mass media. This ensued a thunderstorm - in the professional language titled “shitstorm” - across the

Union. Where were the end-users, the consumers of agricultural products in this preparatory dialogue

process? Actually, why are they not entitled to join the dialogue? It is they, the Europeans, that repre-

sent the most appropriate obtainable "expertise". Why is the Union patiently waiting until the "eaters

and drinkers" finally protest? Why not openly invite those "eaters and drinkers" as they are the final

controllers anyway? This time the protest was against a waste of resources - and of their money in the

direct run, because who else, if not the "eaters and drinkers" in restaurant would pay the party, gener-

ously sponsored by an unfortunate alliance of Brussels and the olive oil industries? Next time it may

be protests against the bandwidth of EU tolerance of chemicals in groceries, runs against the fishing-

quotas which are bargained amongst the producers exclusively, maybe even assisted by their minis-

tries in the Council and maybe by some EP´s of the involved states - and so on and so on. What do all

these and endless other cases have in common? Upsetting and creating/reinforcing resentments of cit-

izens only and exclusively harm the Union.

iv. Let a Broader Partnership Principle Break Through

Why not finally draw the conclusion and, according to the wide orders of the Lisbon concept, invite

the citizens to enrich the dialogues? One could, for once, show that the Union is siding with the citi-

zens, which could save them from the widespread rumour of being an exclusive bastion and hench-

men of industries and additionally strongly support the DGs when being confronted with too "harmo-

nized" interest policy from the side of the economic sector. This must have been the hidden agenda of

the Lisbon concept, to widely open the participation doors for enhanced, enriched and enlarged partic-

ipation of non-organised citizens as well, which found its expression in the omission of the former

qualifying and narrowing-down criteria of "structured" and "organisations".

Moreover, by way of its criteria of open, transparent and regular the dialogue aims to offer a channel

for fair bargaining, disclosing interest (as far as it is an honest interest), addressing considerations,

generating rationality and receiving feedback from bottom up so that we can rightly talk of a conclud-

ing partnership principle. This per se on the other hand promises a consensus democracy principle.

Not so bad an augmentation channel, we guess.

v. Reflecting on the New Wide Opening of the Dialogue(s)

Beyond the aforementioned concrete lack, our respondents have rather un-specifically worried about

an opaque admittance praxis, as did the Ombudsman, but she located the reasons and mechanisms dis-

tinctly: first come first serve; who is already in can hardly be replaced and some quasi-monopolists

are non-callable. New values or issues are excluded by the simple static argument of having no "seats"

left. We´ll see how the Ombudsman´s interrogation will turn out.

This consideration of a radical opening appears to be clearly addressed in detail when Arts 11(1) and

(2) have omitted to continue with categorising and qualifying attributions, like former "structured"

and "organised" as intrinsic characteristics for the admissibility to the dialogue. We don’t overlook the

consequences of leaving the traditional well-rehearsed mechanisms: the complexity of the DG´s han-

dling of civil dialogue will no doubt become far more complex and require additional resources. Nev-

ertheless, there is a strong prospective improvement also in favour of the DG´s, which can base their

further concepts on the pre-arrangements of countervailing powers, which first must find to a demo-

cratic consensus internally. Civil Society therefore should be seen in this new light as a generic term,

for this deliberative, vigilant part of society that gathers around an issue of "civil" concern, be it an-

other interest, possibly in contrast with established interests, be it a value, a proposal of future per-

spective or similar affection of union wide connotation and relevance - which can be represented by

outstanding or seismographic single citizens as well. Therefore we do not share the underlying and

sometimes explicit assumption in the new Road Map on Art 11 (1) and (2), that single citizens are just

rather exceptionally admissible to the HCD, nor on Art 11 (2) that single citizens are strictly in-

eligible to VCD. This conviction is, however, not in line with the clear text of 11 (1) and maybe nei-

ther with that of 11 (2).

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vi.Quality Rather than Quantity

This just mentioned premise opens the dialogue to a new and wider range of participants, open even

to single citizens representing one of these denoted directions. The number of the constituencies could

be replaced by the quality of the substrate as a key criterion. This could for that matter equalise pre-

dominant oldies and provide a fresh competitive wind thereby energizing the dialogues. The evident

mass problem implicated can be resolved by reorganising the dialogue mode and by putting the dia-

loguing primarily on an online preparation model, which we´ll come back to more in-depth at the end

of our conclusions.

vii. A Two-chamber Model?

One certainty is obvious: CS and RA´s must doubtlessly have different backgrounds, perceptions and

substrates. Throughout the entire survey there is significant and clear homogeneous difference in the

responses between those of CS and of RA´s. On the sole basis of our empirics we cannot offer a valid

answer, we can only express an impression, based on the style of responding: RA´s appear more

committed, more to the stark point, in short: more professional and efficacy driven. This and the fol-

lowing extrapolation can rightly become queried, but we must take this risk: RA´s appear to be rather

economic related - which for that matter are, of course, also clearly invited by the Treaties to be part

of the VCD.

So, whereas legitimate economic interests appear to be rather covered by the concept of RA´s, which

refer to segmentary and limited objectives, Civil Society is undefined and unlimited. By the way, the

implicit and conclusive popular assumption according to which CS is rather representing the welfare

principle is not supported by the results of our investigation. Even CSO do not strictly opt for the

choice that VCD could be of a rather altruistic or welfare nature. Insiders know better... This again

could correspond with our respondents own opinions: conclusively in contradiction to their own

shown inhomogeneity by curia, they ascertained this distinction in RA´s and CS overwhelmingly as a

stylistic matter, not indicating a substantive content matter.

Therefore, despite the fact that our supposed option, whether the differentiation between RA´s and CS

could be about creating two bodies of different interest and concept, was not strongly opted, we raise

the question anyway: whether there aren´t two dialogue bodies meant under Art 11(2) in analogy to

Art 17 (3) TFEU which organises the dialogue between one body of religious and one of philosophi-

cal organisations. Also the Social Dialogue under Art 152 TFEU showing some similarities to 11 (2)

but some disparities as well, leverages an indication in such a direction. This reading could be used

by the DG´s to establish an internal pre-competition and pre-harmonisation amongst the diverse posi-

tions in order to figure out, in a democratic internal process, where and on which topics majorities ag-

glomerate. This reading could, of course also be misused by the DG´s along the motto of divide et im-

pera. Yet we resist the temptation to overprotect the "players" as they cannot be reduced by nature to

blue-eyed freshmen.

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viii. Co-designing a Reform Model

However, the dialogue in action is perceived as suboptimal and improvable. It´s to be recommended

therefore that the EU Commission carries-out an open consultation, publicly as usual, under Art 11

(3) TEU, primarily addressed to admissible organisations plus starting a particular all to non-

organised citizens, and inviting them to a hearing, using open method to trace after constructive sug-

gestions and solutions on how to best optimise the dialogue. We are convinced that this will result in a

highly collaborative co-design of a new and enriched "culture" of dialogue.

If, by some reason, inter alia by the reading that the impulse action is not up to the institutions, which

we do not share, the EU Commission should not take up this recommendation, it could be the EESC

taking the responsibility as could everybody else along this interpretation of the EU Commission. If

the institutions factually or implicitly deny their competence to set action, then also the justification

by qualification as implementation by substitution is actually not necessary. In that case it would be

logic that whomever - also the EESC - sets an activity, could require to get support "by appropriate

means" from which ever institutions. At least this order of Art 11 (1) TEU should be beyond any

doubt. Given that any application must be either accepted or rejected by an answer under Art 41 (4)

FRC and that reasons must be given under para 2 lit c of same Art, making it an "act", Art 263 TFEU

comes into play. Only a vanishing minority regarded these criteria as empty words. This, in turn does

not indicate a homogeneous majority of the compliants. Whereas this time nearly none of the usual

divides between DG´s respondents and the others were seen, the diverse groups fall apart internally

and linearly within their groups concerning the differentiation of the functions of the criteria.

viii. Resolving the Confusion on the Nature of Dialogue - Consultation, Expertise, Communication

Remarkably, even the involved parties have no distinct position when confronted with this open ques-

tion (Q13), as to that they themselves are doing. This fundamentally changes only when directly fac-

ing the two options (Q31), what "dialogue could be about and what about ‘consultation’". Then, near-

ly homogenously, came the appropriate connotation that dialogue means an interactive political ex-

change whereas consultation is unilateral and neither requires an answer nor any reaction on how it

impacts the DG´s final commitments. It is little wonder that this uncertainty in identifying the nature

of the dialogue is mirrored in the adequate perception in key scholarship, which again leads to severe

doubts as to what this dialogue is about and what it could accomplish. If any kind of communication

to the DG is seen as dialogue, then the dialogue itself cannot ever fulfil its considered function of co-

operative and collaborative democracy, which in its intrinsic sense is meant by participatory democra-

cy. |Many internal educational efforts are ahead, if the institutions would bring the dialogue to its full

intended potential. Moreover, that DG´s are challenged to take the risk - which indeed could result in

backlash of over-emancipation and undue self-esteem that could boost the complexity of policy mak-

ing ever more. To keep the participants small in number and manageable makes them neither partners

nor allies. Empowering civil society to act as real partners, in turn obliges a responsibility for the CS

and RA´s to present themselves as shared policy makers to their own constituencies, audiences and to

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the general public. This could reinforce the perception of the Union as being open to the citizenry and

thereby stimulate the legitimacy leverage.

ix. Designing a Serious Conflict of Interest Policy - A Case of Transparency in Action

The ombudsman has rightly stressed an overdue policy concerning evident conflicts of interest. We

incline to share the OM´s perception of an insufficiently identified overrepresentation of economic in-

terests. The complexity of delineation what interest could be about - basically every consideration -

and which one of these refers to partial economic interests and which to general economic interests

does not negate this. Even typical altruistically welfare related concerns have more or less economic

impacts. And, for that matter, the legal construction of an RA or CSO as non-profit organisations says

only something about the front-entity itself. This is shown (Annex) by the fact that the RA of the Eu-

ropean banks is in itself a Not-for-Profit. So, this categorisation says absolutely nothing about the in-

terests that could be represented. This - inter alia - seems to be the background of a relative neutrality

of CSO´s when being asked on their perception of the fact of dealing with economic substrates in CD.

As said, the RA´s are supposed to be nearer to particular economic interest than the CSO´s but they

do not feel conflicted by representing economic interests, nor do the respondents of DG´s, which they

are obviously trained to face.

Our finding show surprisingly little ambition to distinguish too rigidly between economic and non-

economic interest reflecting some of the views documented in scholarly literature. Nonetheless, it ap-

pears as an officium nobile to at least reconsider introducing a clarifying categorisation as afore rec-

ommended. The predominant literature conclusively agrees - as do we - with the OM´s proposal to

oblige the participancy to self-disclose their entanglements and involvements with factual "powers" to

the widest extent. Those who have nothing to conceal must not stand against an "inviting" disclosure

clause. But we do not see the EU Commission, as it is the other "partner" of the dialogue, in the role

of the chief detective and controller, which could cause a rumour to act capriciously and to be a judge

in its own case. Taking the way of "self-evaluation" the control scheme could become internalized in-

to the participancy, which in the medium run will truly detect any one-sided partisanship and thus fac-

tually take over the self-purification responsibility. This is a typical requirement of transparency of

access and admissibility that could be in care and cure of self-governance, though we hesitate to go

too far in tracking possible hard "legal" structures (which of course we would quickly have at hand).

As we have stated introductorily and within our premises, we are aligned with the philosophy of the

Multilevel-Governance Charter of contesting new approaches of co-designing new policies and since

Art 11 (2) TEU keeps away from any detailed regulatory orders we also feel aligned with the over-

arching spirit of freedom of choice of the implementory means. The VCD is in our reading clearly a

"level"; we should not read the MLG levels exclusively as territorial ones.

We therefore share also the OM´s direction to make every single participant’s self-evaluation accessi-

ble and transparent to the public, which is the best form of control in democracies. We are going even

further, as we do not suggest having a particular transparency register and website only within every

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DG. We suggest - see our last recommendation at the very end - a single and highly advanced VCD

portal which displays all dialogues and all other influencing channels to the EU Commission, which

also makes transversal linkages transparent.

x. The Eligibility of Religious and Philosophical and Party-political Organisations

Astonishingly, our respondents - nearby unanimously - have no objections against a double represen-

tation of political parties’ organisations, which are already represented in the EU Parliament, and reli-

gious and non-religious organisations, which have their very own dialogue under Art 17 (3) TFEU,

also within the dialogue scheme. They obviously regard them not as competitors but rather as sup-

porters. In that case, there is nothing to be recommended from our side, because we plea in general for

the widest interpretation of "open". The only question is, whether the recommended call scheme

should address a particular invitation to these sectors or let them find out for themselves their best in-

terest. Churches so far, with some exemptions, have shown no interest to be covered by the qualifica-

tion of being also a Civil Society. Well, they have their exclusive channel under Art 17 (3) TFEU.

What about political parties? We shall see.

xi. Legal frameworks vs. Arbitrariness vs. Culture

Without any doubt a constitutional obligation to implement the dialogue orders exists, see above. Op-

posite to the ECI order under Art 11 (4) TEU, which refers to a regulation under Art 24 (1) TFEU,

paragraphs (1) and (2) do not prescribe a particular legal instrument of implementation, which can

hardly be interpreted as an act of oblivion. Nevertheless, we intentionally share the underlying "mes-

sage" of the OM that it would be in line with the rule of law principle, to take the approach of adopt-

ing tight legal frameworks and make the procedural impacts more predictable. But we must face that

we cannot find any strict indication for this model. This is especially crucial when keeping in mind

that the EU Commission in the 2002 Communication "Towards a reinforced culture of consultation

and dialogue", firstly, loudly and soundly envisages the category of "culture" and not that of "law" or

of a similar strict self-binding quality. Secondly, there is an explicit remonstration, which proves that

the Commission had already envisioned the "hard law" model back in 2002 yet committedly taken

this from the agenda: Second, 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.

The EU Commission was welcoming participation long before it got constitutionalised and committed

not to risk an over-juridification of the dialogue. This in particular, again, would also be averse to the

idea of governance, which was the context of the "Communication" of 2002 as a logical follow up

step to the White Paper on Governance of 2001. Furthermore, to embed PD in the legal, juridical and,

rather sooner than later, in the courts arena, could quickly pervert the dialogue into an instrument that

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would be more subdued to the rule of law principle in the preserved hegemony of the judiciary body

than to the democracy principle, which again must inevitably lead to the worries that courts substitute

and supersede democratically expressed self-determination of the sovereign. This would benefit the

"culture" of dialogue. We are conflicted on this point. This "culture" issue existed prior to Lisbon and

the Lisbon Treaty has clearly set higher standards of PD and constitutionalised it under Art 11. How-

ever, it is exactly this Art 11 (2), which even under a progressive reading does not order any "legal"

prescription. However the EU Commission reacts to the OM´s suggestions of "legally binding"

means, maybe copying the DG AGRI model as a general role model for all of the DG´s, if it accepts

the suggestions voluntarily. Then are measurements of prevention of derailing to be recommended.

Which other legal means of making the procedures clear and resilient are at hands? Again, Art 263

TFEU comes to mind. If so, it would make no significant difference whether the hard law or soft law

model is chosen. Ethic codes, as the one used in DG Trade, could be the scapegoat. But are they of

that nature of making the procedures as clear, resilient, predictable and sustainable as we have newly

challenged?

xii. A Particular Finding Process is to be Recommended as is a Commission-wide Basic Regime

Model

Facing a serious matter of legal analysis of political follow-up reflection, a broad consultation process

should take place, including instrumentalising all channels of incurring advice would be recommend-

able. This process could cover at once the further general follow-up effects on the secondary proce-

dural consequences. One nucleus core role model for maybe further adaption along the diverse pro-

files, functions and responsibilities of DG´s must be found in order to match the principles of propor-

tionality, objectivity, coherence and in that rare case that one of effectivity.

xiii. Standardise an Admissibility, Eligibility and Selection Regime

Perpetualising the present "powers" with just slight optical and not bothering pluralisation, full self-

recruiting along a blanket form, total opening to any applicant, restricted accessibility along the ca-

pacity of the largest available meeting room in a DG (which is not a completely fallacious and tenu-

ous example, not at all), "licensing" by typecast qualification criteria - all these disparate patterns can

be found in different sources.

As this model undoubtedly refers to the criteria of being open and transparent, there is - again aligning

with the OM´s reminder, a highly overdue a viable and just access model. The DG AGRI is also in

regard to this consideration a benchmark-setting, with one restriction: As also the OM has identified it

as a matter of another own-initiative, there is low attention paid to an inner-balanced equilibrium.

This example also shows that with simple front-office diversification the scheme can be tricked (if it

keeps its eyes "wide-shut"). Therefore we plead for a remodelling from scratch into this respect and

along an out-of-the box prototype of admissibility procedure that again should be designed as a core

model for the use of all of the DG´s. We therefore follow recommendations from our respondents,

while also taking into account the Coffey-Deloitte study, enrich it with suggestions of the OM and

round it up with ideas coming from literature:

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First, an open call system must be installed, as prescribed by the OM. We have disclosed our premise

to favour the collaborative democracy approach of the Luc Van den Brande MLG philosophy concept

and of the doctrine of Beth Noveck´s wikigovernment. It is to be co-designed by the potential appli-

cants but under supervision of and at the final promulgation by the EU Commission, allowing partici-

patory democracy to work in favour of training co-design before the concrete diverse interest come

into scenery - self-evidently being open for amendments in case of turbulences. Based on these self-

co-committed grounds the DG´s calls have to be open to any applicant who must only proof on con-

cern, involvement or self-proposed mission or any other realistic clue which matches with any of the

tasks of a particular DG. All pf those applicants are to be invited to a concourse - whose results are to

be pre-evaluated amongst the applicants themselves but are subject matter of a final decision of the

DG, which in that case must give reasons. Under the above mentioned cauteles of which kind of de-

nomination of a principal and general EU Commission regime model is opted for, this reasoning

could eventually end up in an action under Art 263 TFEU, which, as said, the EU Commission has

declared as undesirable. So, watch out for a model that is lest endangered to open the watergates to

the judiciary surrogate democratic political decision-making.

xiv. Enhance the Positive Perception of the Performance

In another surprising unanimity, the respondents came to the conclusion that the dialogue is perceived

as highly satisfying and leveraging its intended result - but only when questioning in open questions

and addressed to the overall performance. Wishful thinking, it would appear. This homogeneity

throughout the different sides falls apart immediately when rechecking by closed questions with sub-

mitted options and when asking for the particular experience with the concrete dialogue in one’s own

segment. Whereas the "chemistry barometer" also fell slightly within the group of DG´s representa-

tives, it fell significantly amongst the group of RA´s but ran down into the dumps among the CSO

group. We have no solid explanation why it is split up in such a manner, but this statistic suggests that

the CSO segment appears to be often overruled and feels as the lesser benefitted group and the fore-

most loser. If this presumption holds true, this would again clearly refer to the OM´s assumption of

the "healing" effect of a better balanced representation scheme and, for that matter, seems to support

our "two-chamber" model. Despite some harmonies and accordance between the RA´s and CSO, there

is a significant gap when inner-relational competition is touched. This is the common red thread

throughout our findings. It seems better not to put them into a Procrustes king-size-bed but to make

their diverse pursuit transparent - which indeed also refers to the transparency criterion - and to let

them find out their preconsensus and only then letting them confront the DG´s with their political

compromise. Only then can we come to a clearer picture of the perception of the performance and to

the legitimacy question.

xv. Consider Reviewing and Monitoring

Therefore, and also to objectivise the performance indicator, we have consecutively invited our re-

spondents to speak-out on a back-up scheme and in such case the response was overwhelmingly af-

firmative. There is an obvious lack of such a scheme and in that particular case we can only recom-

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mend to adopt and adapt the recommendations to DG Trade by the Coffey-Deloitte study. Given that

the data warehouse is commonly but distinctly filled in terms of groups, the lacks and gaps would ap-

pear as self-reporting and the adjustment tasks could be carried-out gradually and smoothly. Monitor-

ing and reviewing systems are easily available in prefabricated versions. It is rather the maintenance

and the regular run that causes costly inputs - and worries. We recommend therefore to carry-out this

task in cooperation with and as far as possible along self-evaluation and this again on the publicly ac-

cessible eTool as will be explained in the next but one paragraph.

xvi. Enrich the Role of the entire Dialogue- Of the Partners, of the Contents, of the Potential

Finally a recommendation that goes beyond our own explicit empirical findings, and is based on

a synopsis of the responses: We have apparently rather stubbornly and obstinately stressed the

VCD as a two-way model. Empowering the RA´s and CS as real partners on a true two-way-

scheme utilises the dialogue partners to act as the Union´s postilions and makes them reliable in

carrying out the communication dissemination process to their clientele. That is what Art 11(2)

means to us, as well: building a bridge between the isolated executive bodies and the European

citizenry, a channel for communicating interactively with citizen considerations from Haparan-

da all the way to Gozo, mediated by new informal but benefitting intermediaries as are wel-

comed by the Multilevel Governance Charter.

The next enrichment chance that vertical dialogue offers for an executive entity like the Com-

mission, is to build up a standing argumentative cordon sanitaire that enforces the position vis-a-

vis the Parliament. If the dialogue were broadly and correctly carried out, once and for all, the

Commission could save itself from seriousallegations: living in a citizen-free space in profes-

sional seclusion and not having a clue as to what the people out there truly think and require.

For example, if, as is one of our findings, a silent or even unaware consensus prevails with, f. ex.,

DG Agri or DG Trade or DG Industry that the real, genuine and core stakeholders are the repre-

sentatives of the producers side, be it farmers, retailers or the industries, then we have lost the

nature of a "civil" dialogue. The genuine and final partner for DG on agricultural affairs are the

500 million Europeans, as well as the 500 millions of buyers and consumers involved. Position

the Commission therefore as clearly siding with the citizens. Contact the 500 million Europeans

and don’t be not satisfied with just a comfortable handful of association representatives.

Side with quality and side with new horizons. However the Commission designing the applicants´

approbation model, should not take the comfy way of merely re-installing the existing family of

old-established members. Furthermore, the Commission should not primarily focus on the nu-

meric dimension. Better to put it on the quality, even if it is hard to define quality in a concrete

interpretation. Political acumen indicates going after a representation of the political spectrums

in the widest scope. DG´s should be political, and should act politically, not closing any door, in-

viting anyone, whomever, as long as he or she represents a serious political movement. This is

not a recommendation to entertain block-up representatives, but looks for those aspirants who

have creative intelligent ideas, providing they have a pro-European touch. The Commission

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should look for diversity of the represented interests. Only in this way can it counter-direct and

disqualify power concentrations and lobbying.

Final enrichment: design a European wide win-win model, diversified and installed throughout

the entire Union. Make sure to get the dialogue away from the in-house Brussels model to reach

to the farthest peripheries of the Union, making it a real multilevel and thus a networked gov-

ernance instrument that step-wise is winding up, level by level, until ultimately landing on the

"green table" of Brussels.

xvii. Install an Online "Eleven-Two-Tool" - Save Time and Money and Gain Broad Compliance

Finally, we substantiate the often stressed recommendation to put the entire dialogue on a time-

adequate "eDialogue" tool, which we shall call Eleven-Two-Tool. We save the lector from technical

and organisational details, which are challenging but adoptable. Core tools are available, even within

the Unions bodies: There is the aforementioned EESC tool "My Europe...Tomorrow" that could be

adopted, there is also the genuine co-creation Futurium tool, A Foresight Platform for Evidence-

Based and Participatory Policy Making available in the EU Commission, and which is now hosted by

DG Digit, which with some adaptations could quite quickly and easily be found on the "runway".

Imagine the benefits:

Firstly, this tool could enable a European wide participation of dialogue partners on the MS levels and

sublevels, as was considered of our respondents, horizontally as well as vertically. Literally every

willing party could make up its mind on any proposed dialogue issues. The language problem could

become resolved by installing integrated and transversally interlinked sub-platforms along the dia-

logue design as suggested by the DGs for every particular dialogue. So, this would match with the in-

clusion principle and match with Juncker’s call for getting the European citizens to participate.

Secondly, and in-line with the Ombudsman desideration, such a tool could serve for a more perfect

openness. If and when any participant is obliged by rules and "motivated" by social stimulus and un-

der silent group-wise internal "supervision" to make herself or himself vitreous, this would be a next

step towards a more perfect transparency.

Thirdly, such a tool could enable a more permanent process which surpasses even the criterion of reg-

ularity and makes any definition by law or courts obsolete, as to what "regular" could imply.

Four, the DGs can require that any proposal, even their own, coming from bottom-up, should be ad-

dressed to the DG: Filter by internal co-creation and co-decision until rather clear positions crystallise

and enable the DG to see with which reasoning and in which majorities a proposal is supported. This

again is in line with the Commission’s ever since stated consideration of the function of the dialogue

to be a means for better decision-making and for that matter, supports the non-constitutionalised but

often stressed factual demand of efficiency. Even the also often stressed topic of rotation is nearly ob-

solete when anyone and any organisation is part of the process of dialoguing. Then the rotation chal-

lenge can be reduced to the final face-to-face phase, when decision is to be made who is lastly admis-

sible to sit on the "green table". What is more, this model complies with the idea of a far reaching

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subsidiarity in form of self-administration, self-governance and governance, as is considered by the

White Paper on European Governance.

Five, such a collaborative or cooperative democracy tool discharges the DGs to be at stake during the

elementary political will-building phase and the finalisation process can be kept fairly short. When the

dialogue partners have been trained to deal with e-collaborative democracy, the face-to-face meetings

can be reduced to a short conclusion procedure, which enables to invite just the speakers of diverse

groups who could not come to an internal consensus and this would impact a significant cost saving

effect as well.

This Eleven-Two-Tool, created and organised along the just mentioned intrinsic principles, is to be

addressed exclusively to the VCD. It not become out-watered by overburdening with more than the

genuine 11(2) function. It should be a single Commission-wide instrument, comprehensive and feasi-

ble, and, as said, open to all who are willing and able to participate in VCD, be it single citizens, rep-

resentative associations or civil society / organisations. This platform must be designed and structured

synchronically to the inner-organisation of the Commission. By reasons of "marketing" and in order

to visually refer to the democratic nature, we recommend to visualise the surface as a kind of a par-

liament. For that matter, the overall surface allows the EU Commission as well as the public to have

an overview on what is going on in total. On the other hand, it allows all participants in the dialogue

to quickly perceive what is happening in particular, who is in charge of what, which facilitates are

there to find the right stakeholders and it would also enhance collaboration and co-design.

A clone of the Eleven-Two tool - but strictly not interlinked nor entangled - could easily offer an "ex-

tra open area" that is dedicated to the general horizontal use of all European vigilant citizens who

want to participate horizontally. This could become the long overdue Eleven-One tool. This general

tool is also dedicated to empower and enable every European, single persons as well as associations,

whether formally eligible for the VCD or not, to suggest issues that are not (yet) on the agenda of the

Commission / DG. In turn, this non-specific area can be used by the institutions for crowd sourcing

and making use of crowd wisdom.

xviii. A Final Remark

As we were by contract obliged to submit our study at an appointed date (10 May 2015), we could -

unfortunately - not evaluate or refer to the EU Commission´s truly benchmark-setting response to the

Ombudsman´s considerations. We suppose that this will be the ultimate clarification of the EU Com-

missions perception what the VCD should be about.

However, we suppose that propositions, which potentially could ameliorate and enrich the dialogue

scheme, could become a matter of further mutual benefitting use. It has the potential to realise the

Lisbon desideration of increasing legitimacy. Thus it can finally comply with the Commission´s Pres-

ident’s mission statement: ... bringing the European citizens closer to Europe.

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European Economic and Social Committee