Leveling the EU Participatory Playing Field: A Legal and Policy Analysis of the Commission’s Public Consultations in Light of the Principle of Political Equality

Abstract

The EU Commission has a long tradition of consulting interested parties when formulating its policies. While the rationale, format and legal basis relied upon by the Commission when holding public consultations have changed over time, its systemic inability to make those consultations equally accessible to all affected parties has remained constant.

This article, by engaging with theoretically informed empirical studies, discusses the extent to which such a consultation practice conflicts with the principle of political equality, as enshrined in Article 9 TEU. Given the Commission’s unrestrained discretion regarding who, how and when to consult and the absence of corresponding participatory rights, it argues that the EU can no longer presume that all stakeholders — especially citizens and civil society groups — enjoy equal access to EU institutions, as well as equal information, and voice. Rather, under a proposed substantive reading of the principle of political equality, it contends that EU institutions are procedurally required to ensure that everyone will effectively be given equal opportunities of access to the policy process. To attain this objective, it puts forward a set of recommendations aimed at re-designing the actual legal and policy framework for consultations, on the one hand, and building an enabling participatory environment surrounding them, on the other hand. Ultimately, only a series of structural, power-shifting reforms — some of which are proposed in this article — may enable participation to become an autonomous form of legitimation of the Union.

Keywords: Political Equality, Consultation, Participation, Democracy, Open Government, Transparency, Participation, Civic Empowerment, Legitimacy, Accountability, Civil Society, European Union, Good Governance

JEL Classification: K19, K33