Three Generations of Participation Rights Before the European Commission

I INTRODUCTION Representation, delegation, and specialization pose enduring problems for democratic theory because they fly in the face of the simple and central ideal of self-government: the citizen who at one and the same time governs and is governed. The rise of the administrative state and the science of policymaking have both increased our complacency in the face of government by elites and heightened the threat to the republican ideal of the virtuous citizen engaged in the affairs of the polis. The right to participate in government administration is one way in which citizenship has been vindicated--and reinvented--in modern times. Participation rights are perhaps even more important in the European Union, which was founded on the logic and ideology of neo-functionalism. In the view of Jean Monnet, the French official generally credited with launching European integration, political unity would not be achieved through grand endeavors such as military pacts or human rights declarations, but rather would be accomplished through collaboration among nations on small, discrete tasks. (1) What Monnet termed "psychological integration," that is, the habit of seeing the common interest above the parochial, national one, could occur only gradually, through cooperation among civil servants on pressing economic matters of obvious mutual concern, and, once success had been achieved there, through cooperation on other, related policy issues. (2) In other words, European integration was to be achieved through administration. Since the early 1990s, the technocratic understanding of Europe has come under attack--hence the attempts to render the political structure more democratic and to improve debate and awareness of Europe at the grassroots level through the Charter of Fundamental Rights, the Convention on the Future of Europe, and the Constitutional Treaty. But regardless of the outcome of Europe's constitutional debates, administration and the rights available to individuals before administration will remain central to the definition of European government and citizenship. This article offers a conceptual framework for analyzing the development of participation rights before the European Commission ("Commission") from the early 1970s to the present day. (3) Process rights before the Commission can be divided into three categories, each of which is associated with a distinct phase in European Community ("Community") history and a particular set of institutional actors. (4) The first set of rights, the fight to a hearing when the Commission inflicts sanctions or other forms of hardship on individuals, initially emerged in the 1970s in competition (antitrust) proceedings and was later extended to anti-dumping and customs proceedings. This phase was driven by the Court of Justice and, to some extent, the Commission, influenced by the English understanding of the importance to good administration of a hearing and a court-like process. The rise of transparency in the 1990s marks the second stage in the development of procedural rights. The transparency principle applies to all Community institutions in all their activities but has particular relevance for the Commission because it enables individuals and their associations to follow more closely, and hence influence, the course of decisionmaking. The drive for transparency was led by certain member countries with long-standing traditions of open government--the Netherlands, Denmark, Sweden, and Finland--and by the European Parliament. The third and most recent phase in the development of process rights is the debate over whether and under what conditions individuals, firms, and their associations, billed as "civil society," should take part in Community lawmaking and rulemaking. The Commission and the Convention on the Future of Europe, which produced the Constitutional Treaty, have been the keenest proponents of giving citizens and their associations a fight to participate in rulemaking and legislative proceedings. …