assessing the democratic quality of new modes of eu governance: the industrial emissions directive as a test case

Abstract

This paper focuses on the democratic quality of ‘new’ modes of EU governance. Since these innovative governance arrangements are more likely to demonstrate democratic features of a deliberative nature, the criteria for an ideal type of deliberative democracy are developed based on the well-known work of theorists Jürgen Habermas and Iris Marian Young. The empirical test case of the Industrial Emissions Directive and, more specifically, the selection and deliberation processes of its Technical Working Groups are assessed using these criteria. The research reveals how a particular new mode of EU governance works in practice and how it performs from the perspective of deliberative democracy.

Appendices

Appendix 1

A BAT amounts to an industrial technique that is currently operated in a certain sector and exhibits a superior environmental performance while simultaneously being reasonably accessible for operators (Commission, 2010: Art. 3). Technique does not only refer to technology but it also includes ‘the way in which the installation is designed, built, maintained, operated, and decommissioned’ (Commission, 2010). The goal of the TWG process is finishing a draft of a BAT reference document (BREF). Whereas chapters two, three, and four of a BREF concern the identification of BATs and their associated emission limit values (BATAELs), the fifth chapter consists of the so-called BAT conclusions, which present the final decisions that determine which techniques are to be considered BATs (Lange, 2008; or see for example the BREF for the production of Chlor-alkali). Once ‘agreement’ on this issue has been reached, the next step is the activation of the IEDF which communicates a formal opinion on the BREF and its BAT conclusions which, in turn, has to be taken into account by the Commission (Commission, 2010: Art. 13). Subsequently, only the fifth chapter composed of the BAT conclusions is put to a vote in a Committee consisting of one representative for each member state. If passed by qualified majority voting (QMV) (ibid.: Art. 75; EU, 2008), the Commission will adopt this decision as a delegated act. From that point onwards, BATs have legal binding status (Commission, 2010: Art. 76).

In 2012, the Commission adopted an implementing decision that laid down ‘rules concerning guidance on the collection of data and on the drawing up of BAT reference documents […]’ (Commission, 2012a: title). This document prescribes in great detail the procedures that ought to structure the decision-making process inside the TWGs (2012/119/EU). According to this document, the European Industrial Pollution Prevention and Control Bureau in Seville (EIPPCB) is charged with the responsibility of drafting the BREFs and hosting the TWG meetings (Commission, 2012a: Section 1.2).

Ideally, the BAT determination process takes between 31 and 39 months (Commission, 2012a) during which a meeting is held twice, notably the so-called kick-off meeting and the final meeting, wherein all participants are expected (but not obliged) to take part. Each meeting usually takes approximately one week. Before the kick-off meeting commences, the EIPPCB makes an ‘activation call’ and sends out a request to all participants to upload on to the BAT Information System (BATIS) the specifications of industrial techniques they consider BAT and ‘wish’ to find in the BREF. Subsequently, the BREF writers of the EIPPCB review and filter the collected data in order to produce the first formal draft of the BREF. Then, a round of feedback from the TWG members on BATIS and another round of revising on the part of the BREF writers will produce the first formal draft of the BREF, which will be the subject of discussion at the final meeting in Seville. These discussions first and foremost focus on the BAT conclusions on which eventually the EIPPCB makes final decisions. The BREF writers will produce and upload on to BATIS a final draft of the BREF which should reflect the discussions during the final meeting.

Appendix 2

See Figure 1.

Figure 1

Pictorial of TWG process (Commission, 2012a).