aw, Legitimacy and European Governance: Functional Participation in Social Regulation

Vol. 16 No.2 (February 2006), pp.123-125

LAW, LEGITIMACY, AND EUROPEAN GOVERNANCE: FUNCTIONAL PARTICIPATION IN SOCIAL REGULATION, by Stijn Smismans. New York: Oxford University Press, 2004. 542pp. Hardback. $140.00/£60.00. ISBN: 0199270309.

Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu

Two criticisms, according to Stijn Smismans, are often directed against the European Union (EU): First, that there is a “democratic deficit,” second, that its basic institutions are not representative. The first criticism asserts that there is a lack of democracy and popular control in the EU, such as the relatively weak power of the European Parliament in comparison to the unelected Commission. This lodging of major decision making power in unelected bodies also makes the Union less than popularly accountable. The criticism that the EU is not representative is related to the democratic deficit complaint. Here some contend that EU institutions and leaders are not territorially or geographically representative of the people of Europe and that with recent enlargement and changes in voting procedures, it is even less able to give voice to the various interests and constituencies in it.

These criticisms of the EU make two assumptions. One, they rest upon what Smismans and others call a “transmission belt” conception of representation, and, two, upon a pluralist model of politics. A transmission belt theory asserts that the representation of interests in a state moves from the people electing their representatives to the latter articulating policy and issuing directives to public bureaucracies based upon these interests. A second assumption is that representation of interests takes place only within a pluralist conception of politics. Specifically, preferences are articulated by interest groups that compete for influence in the public arena. Successful groups achieve representation if their interests are legitimized and acted upon by policy makers. If one accepts these two assumptions, then perhaps the EU does fail both the democratic deficit and representation tests. However, perhaps there is an alternative way to represent interests in the EU which would allow it to escape these criticisms. Exploring this path is the aim of this book.

Smismans has undertaken a bold project in this book. The objective is to change the dialogue about democracy and representation in the EU away from government and pluralism to governance and neo-corporatism. Drawing heavily upon literatures in law, political science, and public administration, Smismans begins by noting how current discussions and criticisms of the EU are territorially based and assume that the only legitimate form of representation is premised upon a transmission belt of parliamentary government that rests upon a pluralist model of politics. However, this may not be the correct way to understand the EU. Instead, one needs to look beyond government to governance—looking at the informal [*124] network of institutions and actors that help inform policy and decisions—to see that the EU instead might be operating with a different model of decision making and representation. This new model the author describes as functional participation.

According to Smismans, functional participation looks beyond territorial representation of interests to determine how specific groups are necessary for specific purposes. These purposes can vary, but management and labor groups (along side government officials) have been granted functional participation within the EU across a host of institutions. In granting these groups functional participation, the goal is both to define and institutionalize them as primary players, but also to facilitate decision making that effectively privileges them at the expense of others. With labor and business represented as a whole, and not specific to the various states that make up the Union, what can be achieved is a polity that does acknowledge the most critical interests within Europe. Functional representation, thus, legitimizes specific groups and confers upon them legal rights and authority to speak for others.

To ascertain how functional representation operates in the EU, the author uses occupation health and safety (OH & S) policy as a case study. Smismans’ aim is to ascertain what groups are active within this policy area, what institutions address OH & S, and how successful the groups are in using institutions to articulate and promote their interests. In effect, how are private groups given official recognition by EU law, and how do they use this privileged position to effect governance?

After an introduction to OH & S policy, the author devotes several chapters to examining the ways that management and labor interests are represented. Chapter III addresses the European Economic and Social Committee (EESC), a body that is advisory to the other main decision making entitites. Article 257 of the EC treaty defines the composition of the EESC to be composed of various components of civil society, including the trades, producers, and members of the public. Smismans sees it acting as a quasi-parliament, seeking to bridge the gap between civil society and the major EU bodies. The EESC’s role is advisory and deliberative, serving as a forum that should be viewed with others that give contending interests an opportunity to be heard.

Other chapters in the book explore additional EU institutions, such as the Advisory Committee on Safety and Health at Work (Chapter IV), the European Agency for Safety and Health Protection at Work (Chapter V), and the European Social Dialogue (Chapter VI), the latter of which is composed of several consultative bodies in various policy areas. Each is given official recognition in EU law and provides a different forum or avenue for interests to meet and deliberate on policy, and to be available to advise the Commission and Parliament, for example. Smismans details how each body rests upon a neo-corporatist view of representation, granting recognition to different interests in civil society. [*125]

In seeking an overall assessment of functional representation, the author concludes that a primary objective is for the government to use its various advisory bodies to facilitate an overall sense of deliberative democracy within the EU. It is an effort to bring together representatives of management, labor, and government to make policy. The functional representation model rests upon an assumption of equal representation that the author notes is not always achieved in reality. Yet if functional representation is considered with territorial representation as part of a broader conception of EU governance, then perhaps the criticisms about democracy and representation might lessen. Legitimacy and representation in the EU, thus, must be understood and seen within a complex web of many deliberative and advisory bodies, operating together, which represent specifically designated interests.

LAW, LEGITIMACY, AND EUROPEAN GOVERNANCE is a challenging and rich book. It offers a sophisticated reconceptualization of politics that will be foreign to American scholars who are used to a pluralist model. Formal governmental institutions in the EU replace the primacy of interest groups as the representatives or voices of civil society. The law gives voice not to specific individuals, but to more broadly defined interests. At the close of the book the author offers some ideas on how functional representation might be strengthened, and one gets the sense that critics of the EU are seeking to borrow from American administrative law to provide more influence to groups.

LAW, LEGITIMACY, AND EUROPEAN GOVERNANCE is a book about law, but it is one that connects groups to it by way of political institutions and decision-making structures. It does a fine job in analyzing the informal networks that affect formal decisions, and it shows how the law operates as a mediating force to promote both.

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