Three Generations of Participation Rights Before the European Commission

Abstract

This article offers a conceptual framework for analyzing the development of participation rights before the executive branch of the European Community - the European Commission. Process rights before the Commission can be divided into three categories, each of which is associated with a distinct phase in Community history and a particular set of institutional actors. The first set of rights, the right to be heard when the Commission inflicts sanctions or other forms of hardship in individual proceedings, emerged in the 1970s in competition law. This phase was driven by the Court f Justice, influenced by the English administrative law doctrine of natural justice. The second stage occurred in the 1990s, with the right to transparency in all Community activities, including those of the Commission. The drive for transparency was led by member countries with long-standing traditions of open government - the Netherlands, Denmark, Sweden, and Finland - and by the European Parliament. The third and most recent phase is the debate on whether and under what conditions individuals, firms, and their associations, billed as “civil society,” should take part in Community lawmaking and rulemaking. The Commission and the Convention on the Future of Europe, which produced the Constitutional Treaty, have been the keenest proponents of giving citizens and their associations a right to participate in rulemaking and legislative proceedings. In conclusion, the article argues that, in the absence of a European consensus on interest representation, it would be premature to create a court-enforced right to civil society participation.