Realizing the Principle of Participatory Democracy in the EU : The Role of Law-making Consultation

Sammanfattning: This thesis sheds light on an EU foundational principle, the principle of participatory democracy and assesses its implications for EU multi-level law-making, focusing on how the principle can be given expression through consultation. It is clear from the primary Treaty article giving shape to the principle of participatory democracy, that consultation is a key duty. This doctoral thesis offers a contribution to understanding how law-making consultation can advance the realization of the principle of participatory democracy. It focuses on consultation as a multi-level phenomenon occurring at the EU and national level, using Sweden as the reference case. The thesis first unpacks the principle of participatory democracy, tracing its origins and theoretical underpinnings and identifies key legal rights and obligations flowing from the principle. Drawing on case studies, current law-making consultation practices at the EU level and national Swedish level are assessed to determine to what degree they adhere to or conflict with the identified key legal obligations. Based on this analysis, suggestions are offered to improve the quality of consultations so that the realization of the principle of participatory democracy is significantly advanced. The thesis demonstrates that the Commission is legally obliged to consult widely and transparently prior to proposing legislation, as well as attend to equality of access to consultation opportunities and provide consultation feedback. The analysis shows that judicial review for certain EU law-making consultation requirements is possible, while procedural hurdles weaken this redress mechanism. The legal analysis also reveals that Member States are under an obligation to interpret national law in light of citizen’s right to participate in the democratic life of the Union. The thesis shows how this Treaty right refers to both representative and participatory democracy mechanisms and includes the right of citizens to know and attempt to influence EU legislative decision-making at the EU and national level. A legal interpretation of the Swedish constitutional duty to consult, in light of the principle of participatory democracy, extends the Swedish government’s obligation to consult in the formulation of its negotiation positions in the Council. In mapping out the legal imperatives of the principle, two main obligations for Commission consultation are identified; active transparency in the form of consultation feedback and procedural equality. In addition, the duty of the Swedish government to consult at the national level in preparing negotiation positions is noted. The case studies demonstrate that the procedural requirement of feedback can be applied effectively to the Commission’s consultations whereas the obligation of attending to equality is less straightforward. The case studies also suggest a gap between the legal imperatives of the principle of participatory and consultation practices for selected key obligations at the EU and national level. Five lines of action are suggested in order to elevate consultation to a participatory democracy practice, centered on: feedback, procedural equality, democratic innovation, multi-level coherence and consultation as an EU secondary law strategy.