The Rulemaking Procedure – Definition, Concepts and Public Participation (original) (raw)
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Jean-Bernard Auby (ed.) Droit comparé de la procédure administrative / Comparative Law of Administrative Procedure, Bruylant (2016), pp. 331-342] 1. A central feature of EU governance Participation of interest representatives in EU decision-making procedures is a central feature of EU governance. 2 At the outset of European integration, it was institutionalized via the advisory bodies that assisted the three original Communities (a Consultative Committee in the case of the European Coal and Steel Community; and the Economic and Social Committee, common to the European Economic Community and to the European Atomic Energy Community). The Court invoked the existence of the Economic and Social Committee as an argument to support the specificity of the then Community legal order in Van Gend en Loos. In its view, this was a means through which "nationals of the states brought together in the Community [were] called upon to cooperate in the functioning of [the] Community". 3 But participation developed mostly outside these bodies. In a neo-functionalist logic, 4 participation was seen as a means to spur integration further, but also as a way of compensating the limited regulatory capacities of the EU policy-making institutions. 5 Informal contacts with interest groups allowed an exchange of expertise but also anticipated consensus that could facilitate acceptance, implementation and, hence, effectiveness of the acts adopted. 6 The relations between the Commission and interest groups changed since the beginning of the 1990s, when transparency came to the fore both as an essential dimension of good administrative conduct and as a legal principle. Under the impetus of transparency, the 1 As indicated in the footnotes below, this text is based on, and updates, some of the arguments that are developed in J. Mendes (2011), Participation in EU Rule-Making. A Rights-based Approach, Oxford: Oxford University Press, Chapters 3 and 5. 2 Participation has manifold meanings, but it can generally be defined as "decisional processes where persons 'external' to the institutional setup, different from those entrusted with decision-making powers, are formally [or informally] associated therewith" (Mendes,
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