Democracy, Legitimacy and Soft Modes of Governance in the EU: The Empirical Turn

Abstract

During the past few years, the European Union (EU) has made increasing use of the so‐called soft modes of governance (SMG), modes based on voluntary and non‐sanctioning forms of public action, where state and non‐state actors interact in extensive networks to solve complex social problems. This article deals with the issue of the democratic credentials of soft modes of governance at the EU level. Starting by recognizing that they entail an authoritative allocation of values that have a wide societal reach, the article argues that a careful examination of the democratic legitimacy of these soft modes of governance needs to take into account their diverse nature. By pointing out different theoretical concepts of democracy, the article elaborates an analytical framework based on a series of yardsticks for the assessment of the democratic legitimacy of SMGs in the EU, thus providing a much‐needed conceptual clarification for a research agenda that is ultimately an empirical one.

Key Words:

• European governance
• soft modes
• soft instruments
• input legitimacy
• output legitimacy
• OMC

Acknowledgement

The authors are grateful to participants in a workshop on ‘Democracy, rule of law, and soft modes of governance in the EU’ at the University of Roskilde, November 2006. Financial support for this workshop by the Network of Excellence Connex, funded under the 6th EU Framework Programme, is gratefully acknowledged. Funding from the Danish Social Sciences Research Council under the project ‘The New Governance Instruments of the European Union’ is also gratefully acknowledged by Susana Borrás. In addition, the authors would like to thank the following people for their detailed and very helpful comments to previous versions of this article: Morten Kelstrup, Regina Kreide, Ian Manners, Peter Nedegaard, Peter Niesen, Myrto Tsakatika and Ulrika Mörth. The usual disclaimer applies.

Notes

1. As explained in the White Paper,

 co‐regulation combines binding legislative and regulatory action with actions taken by the actors most concerned, drawing on their practical expertise. The result is wider ownership of the policies in question by involving those most affected by implementing rules in their preparation and enforcement. This often achieves better compliance, even where the detailed rules are non‐binding (European Commission 2001, p. 21).

2. We do not focus on the effectiveness and efficiency of SMGs here, a topic that is dealt with relatively well in the literature (Héritier 2003). Likewise, the aspect of judicial control is not treated in extenso here. For a thorough discussion of this latter aspect, see de Burca and Scott (2006). For a general discussion of the intricate link between democracy and the rule of law, see Habermas (1996a).

3. Formally speaking the EU has no regulatory agency, because the role of the EU agencies is to provide qualified and independent scientific advice to member states and to the Commission, who in turn make the final decision about authorization in comitology committees. None the less, we argue here that most EU agencies enjoy de facto a quasi‐regulatory power due to the high impact of their scientific recommendations. We argue as well that these recommendations entail an authoritative allocation of values, because in the process of implementing regulations for market authorization, the agencies provide specific scientific reasoning and specific interpretations of the very general regulatory principles for market authorization.

4. We are aware of the methodological difficulties in distinguishing arguing from bargaining in real world negotiation systems (cf. Risse 2000, Deitelhoff and Müller 2005). Still, the distinction remains valid from the theoretical viewpoint and might therefore be included in the assessment of the democratic legitimacy of SMGs.