The Open Method of Coordination: Effective and Legitimate?

The Open Method of Coordination: Effective and Legitimate? Jonathan ZeitlinUniversity of Wisconsin-MadisonPresentation to CONNEX Mid-Term Review Conference

Plan of the talk • I. What is the OMC? • II. OMC’s theoretical promise • III. Is OMC legitimate? Three critical questions • IV. Is OMC effective? Ambiguities and empirical assessment

I. What is the OMC? • An experimentalist approach to EU governance based on iterative benchmarking of national progress towards common European objectives and organized mutual learning

Recipe, cookbook, or architecture? • Variations in modalities/procedures depending on: • Specific characteristics of the policy field • Treaty basis of EU competence • Willingness of Member States to undertake joint action • ‘OMC not a fixed recipe, but a cookbook with various recipes, some lighter and others heavier’ (Vandenbroucke) • Considered as a new governance architecture, some ‘OMCs’ include only fragmentary elements, limiting their expected effectiveness

Defining features of a variable method • Joint definition by EU member states of initial objectives, indicators, priorities or guidelines, and sometimes targets • National action plans or strategy reports • assess performance against objectives and metrics • propose reforms accordingly • Peer review of national plans through mutual criticism and exchange of good practices • backed up in some cases by recommendations • Periodic re-elaboration of plans, and less frequently, of broader objectives and metrics in light of experience gained in their implementation

II. OMC’s theoretical promise • OMC as a promising mechanism for identifying and pursuing common European concerns while respecting national diversity • Encourages convergence of objectives, performance, and policy approaches, but not of specific programs, rules, or institutions

OMC as a mechanism for experimental learning • Apromising mechanism for promoting experimental learning and deliberative problem-solving across the EU • Systematically and continuously obliges Member States to pool information, compare themselves to one another, and reassess current policies against their relative performance • Diversity as an asset for learning rather than an obstacle to integration • Increasingly critical in the face of enlargement

OMC as a template for EU policy making • After 2000 Lisbon Summit, OMC rapidly became the governance instrument of choice for EU policy making in complex, domestically sensitive areas • where the Treaty base for Community action is weak • where inaction is politically unacceptable • where diversity among Member States precludes harmonization • where widespread strategic uncertainty recommends mutual learning at the national as well as EU level

II. Is OMC Legitimate? Three critical questions • OMC and subsidiarity • OMC and the Community Method • OMC and democracy

Infringing or extending subsidiarity? • One key concern about OMC is that it violates the principle of subsidiarity by bringing EU policy making into areas of exclusive national or subnational competence • e.g. German Laender • Properly understood, however, OMC does not involve the subordination of one level of government to another, but is rather a collaborative mode of governance in which each level contributes its distinctive knowledge and resources to tackling common cross-cutting problems • Hence OMC should be seen as extending rather than infringing subsidiarity

Is OMC a threat to the ‘Community Method’? • Another widely voiced objection to the OMC is that its ‘soft-law’ procedures represent a threat to the so-called ‘Community Method’ of EU policymaking • based on binding legislation initiated by the Commission, enacted by the Council and the Parliament, and enforced by the European Court of Justice • Has led to demands that OMC should not be used when legislative action under the Community Method is possible • E.g. White Paper on Governance, debate on constitutionalization of OMC at Convention on the Future of Europe

Conflicting or complementary approaches? • OMC most often used where: • EU Treaty powers are limited • There is insufficient consensus among Member States to enact binding directives • Policy fields are too complex/diverse to be credibly harmonized at European level

‘Hard’ vs. ‘soft’ law: an eroding distinction • ‘Hard-law’ directives increasingly incorporate provisions for completion and periodic revision of standards through ‘soft-law’ OMC-like procedures • Water Framework Directive/Common Implementation Strategy • Often an integral continuity between legally binding norms embodied in EU directives and OMC guidelines • Part-time work, gender equality, disability rights

OMC and experimentalist governance • OMC as one element in a larger system of networked, experimentalist governance in the EU based on framework rulemaking and revision in light of practical experience of implementation in diverse contexts • Diffusion across multiple policy areas • Public health/safety, environmental protection, regulation of privatized infrastructure, even competition policy/state aid

Renewing the Community Method • Community Method itself can be interpreted as a deliberative agenda-setting mechanism through which the EU, despite its diversity, provides for public-regarding decisions, thereby inducing Member States to relax their sovereign veto powers (Magnette) • Seen in this way, the EU’s emergent system of experimentalist governance (including the OMC) represents a renewal rather than a displacement of the Community Method

OMC: a democratic deficit? • Is the OMC part of the solution to the EU’s democratic deficit or part of the problem? • OMC processes, objectives, guidelines, and recommendations authorized by elected Member State governments (European Council, Council of Ministers) • But most of the work done by unelected committees of national civil servants and Commission officials • Limited role for representative democratic institutions at both EU and national levels (EP, national parliaments)

New forms of public accountability • Hence democratic legitimacy of OMC must rest on its contribution to new forms of public accountability beyond conventional principal-agent models, based on criteria such as: • Transparency • Reason-giving • Broad participation • civil society organizations and other stakeholders • Peer review • Ideals and reality • Benchmarking actually existing OMC processes

III. Is OMC effective? Ambiguities and assessment criteria • Most widespread critique of OMC • Not weak democratic legitimacy or pernicious effects • But rather alleged lack of impact on Member States • OMC as European emperor’s newest clothes • An exercise in symbolic politics where national governments repackage existing policies to demonstrate their apparent compliance with EU objectives

The OMC in question:an empirical deficit • Debate over effectiveness of OMC has suffered from a serious empirical deficit • Reliance on a narrow range of often outdated evidence • Based mainly on official published sources • No systematic evaluation of OMC processes in Mid-Term Review of the Lisbon Strategy • Methodological problems of assessing the causal impact of an iterative policymaking process based on collaboration between EU institutions and MS without legally binding sanctions

The OMC in action: employment and social inclusion • Nowa large body of empirical research on OMC • Synthetic overview in Zeitlin & Pochet (eds.), The OMC in Action (PIE-Peter Lang, 2005) • Product of an international research network • Focused on operation and impact of European Employment and Social Inclusion Strategies, most developed OMC processes, at national and subnational levels

Empirical findings • Substantive policy change • Procedural shifts in governance and policymaking arrangements • Participation and transparency • Mutual learning

Substantive policy change • Increased political salience and ambition of national employment and social inclusion policies • Broad shifts in national policy thinking • Widespread adoption of EU concepts and categories • But subject to local inflection and interpretation • Some influence on specific reforms/programs • Two-way interaction between OMCs and national policies rather than one-way impact

Procedural shifts in governance and policymaking arrangements • Better horizontal integration of interdependent policy fields • Improved statistical and steering capacity • Reinforced arrangements for vertical coordination between levels of governance • New participatory/consultative arrangements for involving non-state actors in public policymaking • OMC as a stimulus to reform, but not the only cause

Participation and transparency • OMC (esp. EES) widely regarded as narrow, opaque, technocratic processes dominated by high civil servants and EU officials rather than as broad, transparent processes of public deliberation, open to all stakeholders • Low public awareness and media coverage in most MS • Weak integration into domestic policy processes • NAPs as government activity reports to EU rather than strategic action plans or policy steering documents

Non-state and subnational actors • Consultation and participation arrangements stronger in Social Inclusion than in Employment • Social NGOs and local/regional authorities more active than social partners (unions, employers) • Both groups have fought for right to participate more fully in EES at EU and MS level, with some success • NGO networks operate as two-way pumps for info & pressure between EU and national levels • Both groups supported by Commission funding for horizontal networking and innovative local projects

Mutual learning: prevalence of higher-order effects • Heuristic • Identification of common challenges and promising policy approaches at European level • Capacity building • New data sources and statistical harmonization • Maieutic • MS stimulated to rethink own approaches/practices, as a result of comparisons with other countries and ongoing obligation to re-evaluate national performance against European objectives

Limits of first-order learning • Few examples at national level of specific policy learning about what works and what doesn’t • Little bottom-up/horizontal policy learning from innovative local practice • Reflects procedural limitations of EU mutual learning programs • Also reflects limited participation of local actors and lack of opportunities for horizontal exchange of experience

Realizing the OMC’s theoretical promise • Genuine impact and achievements of EES and Social Inclusion process, at both EU and national levels • But neither have fully realized the OMC’s promise • Reconciling common European action with national diversity • Promoting experimental learning and deliberative problem-solving • Procedural limitations • Lack of transparency • Barriers to participation • Weak integration into domestic policymaking • Insufficient emphasis on mutual learning

A reflexive reform strategy • Overcome limitations of existing OMC processes by applying the method to its own procedures • Benchmarking, peer review, monitoring, evaluation, iterative redesign • Ongoing reforms as evidence of practical viability • Strengthening of peer review/mutual learning programs • Proposals by EU institutions for greater openness, stakeholder participation, and ‘mainstreaming’ of OMCs into domestic policymaking

The Open Method of Coordination: Effective and Legitimate?