Something old, something new, something borrowed, something blue:

The soft modes of governance in the EU

The shifting balance of political authority in the context of European integration triggered not only a reconceptualisation of the nature of the governing process itself (from government to governance), but it also called for the reconsideration of the modes and instruments that serve political steering.

The standard phrase used to refer to the specific EU governance toolbox is ‘new modes of governance’.

There is an ongoing debate about the accuracy of the attribute ‘new’, as most of the modes of governance hardly start from scratch (Smismans 2006, 4). The difficulty to distinguish neatly between what is ‘old’ and what is ‘new’ in the exercise of political power within the EU or the daring consideration that ‘old’ modes of authoritative control are rendered obsolete by ‘new’ governance mechanisms add substance to the debate. But what surpasses this semantic disagreement is that the EU modes of governance do represent an alternative to traditional modes of governing. In order to avoid this temporal criterion trap, I will employ the phrase ‘soft modes of governance’.

Before embarking to a short analysis, let me clarify the choice of this section’s title. The expression pertains to a traditional wedding custom, standing for the good luck token the bride must wear on her wedding day. By way of analogy, ‘something old’ in the soft modes of governance refers to the historical continuity of ‘old’ and ‘new’ types of governing; ‘something new’ stands for those features that distinguish them as specific for the multi-level Euro-polity; ‘something borrowed’ hints at their building on diverse elements proper to other domains of public action (like business, or societal interactions at large); finally,

‘something blue’ is a part of the expression and, at the same time, happens to match the theme colour of the EU.

Back to my argument, the soft modes of governance are characterised by the heterarchical setup in which they emerge (as opposed to hierarchy), the non-formalised, open, voluntary, cooperative, deliberative and informative procedures that secure consensual agreements (rather than majoritarian decisions), their problem-solving capacity, the plurality and variety of participants to the policy process. The emergence and development of the soft modes of governance are closely linked to the evolution of the EU as a multi-level system⁶. Against this background, they appear as ‘non-coercive processes based on the will of

the participants to agree, by way of collective deliberation, on procedural norms, modes of regulation and common political objectives and, at the same time, to preserve the diversity of national and even local experiences’ (Bruno et al. 2006, 520 cited in Caporaso and Wittenbrinck 2006, 472-3).

Insofar as the soft modes of governance have been explained and categorised according to various criteria, three guiding principles should be retained: voluntarism (nonbinding targets, soft law, no formal sanctions), subsidiarity (decisions are taken at the lowest possible level) and inclusion (the actors concerned participate in governance by defining policy goals and instruments) (Héritier 2002, 187; 2003, 106). The mechanisms through which the soft modes of governance operate are, among others, policy learning and diffusion, persuasion and standardisation of policy knowledge, monitoring and target development (Héritier 2002).

The most notable soft mode of EU governance is the Open Method of Coordination (OMC). Its establishment by the 2000 Lisbon Strategy determined a growing interest for the ‘new’ modes of governance, especially from the Commission. Other soft modes of EU governance are voluntary agreements, benchmarking, mainstreaming and best practices. Although all these governance modes depict a break with traditional models of governing, they developed from a fundamental EU public governance structure, the Community Method. Similar (but not identical) to nation state authority structures, the Community Method is articulated by several core features: hierarchy, norms, public control and sanctions, and the separation of powers and their respective competences (Commission’s legislation initiative right, Parliament’s and Council’s legislative and budgetary power) (Smismans 2006, 4).

In an attempt to introduce flexible, differentiated and horizontal institutional arrangements, Commission’s White Paper on European governance refers to five soft governance instruments. Framework directives are aimed at flexible policy implementation and simplified institutional interaction (especially between the Council and the Parliament). Second, co-regulation⁷ combines binding legislative and regulatory action by integrating ‘overall objectives, basic rights, enforcement and appeal mechanisms, and conditions for monitoring compliance’ into the legislation and encouraging voluntary accords between the Commission and stakeholders (Commission 2001, 21). The latter are responsible for the preparation and implementation of policy measures. They can also initiate self-regulating measures⁸, which are non-binding, but which are nevertheless coupled with formal procedures.

Third, aimed at ‘spreading best practice and achieving greater convergence towards the main EU goals’

(European Council 2000), the Open Method of Coordination (OMC) implies:

 fixing guidelines for the Union combined with specific timetables for achieving the goals which they set in the short, medium and long terms;

 establishing, where appropriate, quantitative and qualitative indicators and benchmarks against the best in the world and tailored to the needs of different Member States and sectors as a means of comparing best practice;

 translating these European guidelines into national and regional policies by setting specific targets and adopting measures, taking into account national and regional differences;

 periodic monitoring, evaluation and peer review organised as mutual learning processes.

Explicit reference to the OMC as a desirable soft, non-legislative tool can be found in policies like research and innovation, health care, social inclusion and pensions; it was subsequently integrated into education policy, e-business and enterprise, information society, and climate change-related policies (Citi and Rhodes 2007, 8). The OMC is founded on classic soft practice (monitoring, peer review, benchmarking, voluntary policy objectives, etc.), characteristic for most international cooperation organisations, and on traditional EU soft legal instruments like recommendations, declarations or codes of practice⁹ (ibidem, 9). However, its comparative novelty resides in that it allows the member states to choose how a policy is to be shaped and implemented, by which instruments and in which way it should

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Fourth, the White Paper enumerates network-led initiatives as another form of soft governance that links businesses, communities, research centres, and regional and local authorities in order to ‘provide new foundations for integration within the Union and for building bridges to the applicant countries and to the world’ (Commission 2001, 18).

Finally, regulatory agencies assist the Commission in the implementation of EU policies, especially in areas that require highly technical expertise (for instance the European Environment Agency). Among the advantages of their assistance the Commission acknowledges their specialised insight, potential for increased visibility for the sector they represent and the cost-effectiveness in relation to business interests (Commission 2001, 24).

The soft modes governance characteristic for the environmental policy represent a group of policy approaches referred to as ‘new environmental policy instruments’ (NEPI). The need for more effective, efficient and flexible environmental policy-making transformed the NEPIs in regular tools in the shaping and the implementation of numerous environmental policies, such as climate change. The most common NEPIs are market-based instruments like emissions trading, eco-taxes, environmental subsidies and incentives, liability and compensation systems, and green public procurement; voluntary agreements; and environmental management and audit schemes (EMAS) (Herodes et al. 2007, 11; Bomberg 2007, 251-4).

A detailed and contextualised analysis will be provided further on with the occasion of the discussion of EU’s domestic climate change policy.

CHAPTER 3