ARENA Working Papers
WP 99/4

The Question of Deliberative Supranationalism in the EU*

Erik O. Eriksen
ARENA, University of Oslo

Abstract

The democratic deficit of the EU, it is often contended, is due to the lack of European political parties, representative accountability and a properly functioning public sphere. However, it may be argued that the underlying evaluative scheme which this diagnosis rests on, is based either on liberal aggregative or civic-republican assumptions about democracy. These perspectives offer a pessimistic assessment of the EU project and one that is premised on an overly confined notion of legitimacy. In this paper I try to show that discourse theory represents a promising theoretical alternative to liberal and republican theories of democracy and the standards associated with these because it conceives of the public sphere as a pluralistic institution for opinion formation and conceives of representative bodies not only as bargaining 'markets' but also as deliberating 'fora'

Part I. Introduction

The EU is a supranational construction that is demanding both in descriptive and normative terms. It is a complex network of institutions for regulating common affairs, but it is not unitary and self-contained as a political unit. Even if its institutional structuring resembles a separation of powers, akin to the separation of power in a nation state, there are profound differences. The Council of the Union consists of representatives from the member states, and legislates on behalf of the Union. It decides some matters by qualified majority but most by unanimity. The European Parliament which is directly-elected by the peoples of the member states, have not until recently had much legislative power. Nor has it had much authority to hold the executive accountable. However, Treaty of Amsterdam (1997) increased its role. The European Commission is the executor of Union policies and is endowed with the right of initiative, which includes the right to issue legislative proposals. In addition, hundreds of Committees, which were originally constructed to control delegation of powers from the Council to the Commission, are in operation. Such a system may blur the constitutional distinction between legislative and executive powers, between politics and administration.

What is the European union, then? It is not a state based on a common identity, a fixed territory and an established demos, nor is it a loosely coupled system of allies who cooperate on the basis of mutual interest. The EU involves a lot more than international cooperation, meaning cooperation among states, but it is not a new state. The Community has no territory of its own, no taxing power no independent economic basis and it depends on Member States for implementation of its various legislative and other measures. It is not a body of organized citizens - the citizens' access to the system of government is mainly indirect, and "... there is no single polity which sets the standards of political behavior" (Preuss 1996a:215). There is a lot of discussion on the nature of the EU, such as what kind of organization it is, whether it is democratic or technocratic, whether it is moving towards a more firm supranational type of entity, and whether or not it should develop into a federal type of entity. The main problem that sparks frustration has to do with its presumed lack of democratic legitimacy. ^[1] People are expected to obey laws they themselves or their representatives have not authored. How is the popular will(s) reflected in the EU's political institutions and how can popular opinion be brought to bear upon the decision makers? Without a uniform public sphere of opinion formation and without influence on decision- and lawmaking via elected representatives, the chain of democratic legitimation through citizens' consent is rather long and weak: Only indirectly through elected Member State representatives in the Council do the voters actually wield influence on political decision making. In addition to an expert-dominated legislative process, the strong position of courts indicates a shifting balance of power in favor of law and administration. The prospects for popular governance seem rather bleak, indeed.

Many students of the EU, then, have suggested that we need to conceive of the Union as merely a functional arrangement which is to be assessed in accordance with efficiency standards. It is established and prevails because it guarantees market stability.

"After all, it was the presumed superiority of the Community's problem-solving capacity over those of the traditional nation-states which largely motivated the foundation of the Community in the fifties. In other words, reasons of efficiency and utility belong to the most significant founding rationales of the community" (Preuss 1997:219).

Consequently, one way of assessing the EU is as a functional organization directed towards realizing collective goals as efficiently as possible. However, this should not akin to saying that the EU is merely an economic association or a system of inter-governmental cooperation based on the self-interest of each member state. The notion of utility calculus as the basis of legitimacy is problematic, for conceptual and empirical reasons. First, such an order will be unstable because actors opt out of cooperation whenever they face a better offer (cp. Olson 1965). Second, it is not compatible with the fact that the EU takes decisions on a whole range of matters that are clearly beyond the functional interests of the member states. The EU makes binding decisions on social and cultural matters. It is also widely held that the EU is involved in a constitution-building process and this process has already produced a Union citizenship. ^[2] In no other international organization do we find such effective implementation of laws as in the European community where a recognized Court of Justice to adjudicate disputes (Keohane and Hoffman 1991:11). This ability is due to the doctrine of direct effect which positions laws enacted in Brussels as if they were enacted by national parliaments and the doctrine of supremacy which abeit this still a contentious issue - can be said to give the Court the "Kompetenz-Kompetenz", i.e. the competence to increase its own competence (Weiler 1994:514). Lastly, the Treaty of Amsterdam is held to bring EU one further step ahead as a polity, by enhancing the democratic quality of the EU, through somewhat strengthening its accountability and legitimacy:

"The opening section of the Treaty builds on the Treaty of Maastricht which strengthened the non-economic character of the Union's Constitution. The Treaty of Amsterdam underlines, in a number of different ways, the fact that the Union qua Union is a community of shared values. Article F(1) states that the Union is founded on 'the principles of liberty, democracy, respect for human rights and fundamental freedoms, rule of law, principles which are common to Member States'. This is followed by a provision for dealing with a 'serious and persistent breach by Member State of the principles' outlined in Article Fa(1) of the Treaty" (Laffan 1997:14).

The EU is therefore a far-reaching polity, in territorial, functional and legal terms. Its depth and breadth, and its ability to act on several dimensions become quite incomprehensible from the reference point of a economic notion of democratic legitimacy. The EU's strive for openness, the strengthening of the Parliament, the status of the European Court of Justice, the forthcoming enlargement of the Union and its stand on human (and social) rights indicate that a broader sets of assessment criteria are required. These cases concern both questions of identity - who are we? - and questions of justice in a genuine moral sense, as both Member States' and citizens' interests are affected profoundly by decision making activity of the EU. To understand and assess the EU, then, requires a conception of legitimation that extends well beyond that provided by economic calculus. Democracy, i.e., procedures based on deontological norms, is needed in order to make justifiable decisions when collective choices will interfere with or interrupt established interests and identity-based concerns. That is, to validate moral and ethical norms a popular-democratic concept of legitimation is needed, because only affected parties can decide what is fair treatment of equal and unequal cases, what is in the public interest, and what is the common good.

I would like to address the prospects for such a concept of legitimacy from a discourse-theoretical deliberative perspective on democracy, because the prevailing view of the democratic deficit of the EU is founded on a set of - whether implicitly or explicitly stated - assessment standards. The prevailing judgment of democratic deficit (which is said to be due to lack of a public sphere, lack of European political parties and lack of voter influence through representative bodies), can be questioned by spelling out the evaluative standards that inform such a diagnosis. In particular, to conceptualize democratic legitimacy, the deliberative perspective emphasizes arguing and deliberative quality over and above interest representation, bargaining and voting procedures. Applied to the EU, the appropriate starting point in such an endeavor could be to look at the notion of the public sphere, the role of parliamentary discourse and negotiations in the committee system. I will start by providing a short outline of the discourse theoretical perspective.

Part II. From adversary to deliberative democracy

Problems of realism

The conventional criticism leveled against the EU is generally informed by a realist view of politics, i.e., politics as struggles over outcomes: what is in it for me? Resource allocation - the distributive aspects - are in focus: who gets what, how and when? In this perspective, democracy is understood as method of decision making or a system for preference aggregation: A collective decision is just when it emanates from the aggregation of peoples' preferences through fair procedures. Realists or protagonists of the economic theory of democracy and of elitism and pluralism, rely on egoistic assumptions about human nature. They understand advanced industrial societies as conflict-ridden (Schumpeter 1942), and as "... inherently pluralistic and diverse" (Crick 1962). Decision-making refers to a mode of interaction in which private interests bargain with each other over how to maximize their own interest or given preferences. The only agreement needed in these kinds of cooperative undertakings is that on procedure, or the rules of the game. Consensus on the formal rules applied - in particular the principle of majority vote - is required to accomplish collective decision-making. Consensus on these rules is just presupposed, but not explained, even though it is this agreement that ensures political integration. Legitimacy I achieved in elections that are free, fair and secret. In the struggle and competition between contestants legitimacy stems from the aggregation of preferences in frameworks that are fair and neutral.

Likewise, realism in international politics conceive of international relations as interaction between states being in a 'state of nature'. [3] States are treated as 'rational' actors. Parties who are dependent on each other compete within a set of rules for the largest share. Game theory or rational choice is, then, the adequate tool for analyzing inter-state cooperation or intergovernmentalism, not primarily because they are power-based relationships - "a dog eat dog world" ^[4] - but because interaction is driven by mutual self-interest and strategic calculations ^[5]. The nature of cooperation is more about mutual advantage or utility than about reciprocity, impartiality or commonality (cp. Barry 1989, Rawls 1993:17). The formation of the preferences of the actors and �(T)the constitution of the interests of a nation are taken as established before negotiations among nations begin� (March and Olsen 1998:951, cp. Moravcsik 1997).

Undoubtedly, this approach has improved the analytical precision in the hypotheses and the empirical foundation of the conclusions in political studies. But at the same time the selected scientific tools have surely favored one particular way of understanding politics (Almond 1990). Ideals are a sham, an ideology or a mask to be exposed and debunked. The realist or economic approach to politics "may explain adversarial politics, but it ignores other critical aspects, such as the unitary, the communitarian or the dialogue aspect of politics" (Scalia 1991:205). It cannot explain the role of binding norms or the force of moral arguments in qualifying standpoints. "Its medium is bargain, not argument. Its tools of persuasion are not claims and reasons but conditional offers of service and forbearance. Whether formally embodied in a vote or in a contract, or just informally carried out in social behaviors, a strategic outcome represents not a collective judgment of reason but a vector sum in a field of forces" (Michelmann 1989:293). These models of politics and democracy, then, have been criticized on several accounts. Further problems arise with supranational institutions which serve to lengthen the actual chains of representation, control and legitimacy as the processes of aggregation become more cumbersome.

Majority rule may be seen as a response to the problem of finding one right answer. However, why does majority voting bind participants, when no voting procedure secures that the collective ranking of preferences reflects the preferences of the voters (cp Arrow 1951, Riker 1982)? Why is the outcome of a formal, correct aggregation of non-reflective preferences respected when the outcome is insecure? Merely aggregative solutions ".. can not live up to the ideals of democratic legitimacy because outcomes can only claim to represent winners and not a common will" (Chambers 1997:1). Majority support is not sufficient to enact laws legitimately as many scholars have pointed to (Dahl 1989:135ff, Offe 1982). There has to be non-majoritan sources of legitimacy, because: "The majority principle itself depends on prior assumptions about the unit: that the unit within which it is to operate is itself legitimate and that the matters on which it is to operate is itself legitimate and that the matters on which it is employed properly fall within the jurisdiction of the unit. In other words, whether the scope and domain of majority rule are appropriate in a particular unit depends on assumptions that the majority principle itself can do nothing to justify" (Dahl 1989: 204).

Majority voting presupposes agreement on political boundaries and power assignments, as it affects the sovereignty of the nation states. On one reading the majority principle is dependent upon a community of memory, of communication and of experience (Kielmannsegg 1996). Even though parliament does not necessarily represent the demos or the nation as such, it is only a legitimate and an effective mechanism for representation and majority voting when it rests on approved territorial bounds and authority structures that reflect approved power assignments. Only then will those who object to a majority decision actually comply with it out of volition. Majority voting, in fact, has increased in the EU and has been of vital importance for creation of a single market. It has contributed to what amounts to a rather dramatic transforming of the norms that regulate decision making in the EU (Weiler 1997:107). This lends credence to the notion that the EU is something more than and different from an international organization. However, unanimity is the main decision rule and the search for consensus is a powerful norm.

Voting is not enough

In recent years the theory of deliberative democracy has received renewed attention in political analysis. This theory maintains that majority rule " is never merely majority rule..." because "...counting of heads compels prior recourse to methods of discussion, consultation and persuasion" (Dewey 1927: 207). Increasingly, political scientists have paid attention to the way discussion is required to facilitate collective decision making. The voting mechanism can not stand alone, but presupposes discussion as an additional and supportive devise, to foster decision making. Empirically speaking, there is a whole lot of communication going on in a decision-making situation, as claims and proposals require justification. Logically speaking; there is no assurance that aggregation of exogenous preferences will produce robust results, as was shown by Arrow and Riker (op.cit.): Even though preferences may be rational and transitive the resulting social rankings are fundamentally arbitrary; majority decisions do not represent �the will of the people� (Shapiro 1996:34). Aggregation of preferences is not enough to legitimate political decisions. However, the point about deliberative democracy is not only that discussion is needed in order to reach binding decisions. No model of democracy can do without discussion. It is an efficient means to represent preferences and to compensate for asymmetric information and contribute to better decisions (cp. Johnson 1993, Cohen 1998, Fearon 1998). Political decision making is by its nature a choice under uncertainty and "deliberation is in itself a procedure for becoming informed" (Manin 1987: 349). It is a way of reaching more security in an insecure world. Actors live lives that are limited in time and space. Consequently, they have bounded rationality: they do not possess all information and do not have all the competence and capability necessary to process it adequately (March and Simon 1958). Actors may be ill-informed; they may have badly or falsely grounded opinions, they therefore need the arguments of other's in order to reach a more enlightened understanding (cf. Mill 1859, Dahl 1989). In addition, there is the problem of complex or mixed motives that make coherent action difficult. Base preferences engender no respect, only laundered preferences that endure public scrutiny should prevail (cf. Goodin 1988, 1996). In standard cases actors need communication to get a clear idea of what to do and to form a consistent opinion. Communication may also take the form of bargaining. “To bargain is to engage in communication for the purpose of forcing or inducing the opponent to accept one's claim. To achieve this end, bargainers rely on threats and promises that will have to be executed outside of the assembly itself.” (Elster 1992:15). In bargaining processes parties employ speech acts strategically in order to achieve results. They may even misrepresent their preferences and deceive one another by paying homage to virtue and social norms (Elster 1998b:97ff).

The claim on behalf of deliberative democracy is stronger than pointing to the way discussion is essential for pooling private information in order to make rational means-end calculations. Many proponents of deliberative democracy contend that public communication is needed in order to legitimize outcomes vis-�-vis the citizenry. Thus, democracy is also an end in itself, not only a means. It is a (or the) way to secure right results - and is, thus, a legitimation principle. Only deliberation can get political results right as it entails the act of justifying the results to the people who are bound by them. This is the reason why contenders have to argue in relation to prevailing social norms in order to reach lasting agreements. To solve collective action problems there is a need for normative argumentation, i.e., shared notions of what ought to be done. Compliance with some deontological norms that in themselves command respect - e.g. democratic procedures or human rights - is often required. Even though appeals to norms in real discussions are liable to deception, the fact that parties at least are hypocrites - they have to �pay homage� to norms in order to achieve agreement - does not only document to the importance of norms but also shows, I believe, that strategic communication is parasitic on authentic communication.

From a normative point of view legitimacy can only be achieved in a deliberative, public process between free and equal citizens. This is so because what is common will have to be decided in public and not prior to it (Cohen 1991:29). The nature of politics is, thus, not confined to pragmatic dimensions of collective reason, i.e., as finding the best means to maximize given ends, but rather to the setting of goals and standards and the interpretation of values. Cognitive knowledge about voters' preferences and how to achieve ends efficiently does not suffice. In addition, normative articulations about what values and fulfillments are important to us and what norms or rules should be applied in dealing with common problems and conflicting interests are needed. In order to drum up support parties have to try to convince other parties with arguments or reasons that others understand and may accept. Further, in order to justify claims an actor has to compare his claims and beliefs to those of others and enlarge his position so that it becomes compatible with something that others say or hold to be true and correct. He has to speak from the position of the generalized other (cf. Mead 1962). This requires communicative rationality, i.e., parties try to talk themselves into consensus by applying standards of impartiality. Actors coordinate their aims by mutually respecting validity claims. By arguing in relation to inter-subjective standards of truth, rightness, and sincerity participants can reach an agreement and a base for judging what are reasonable choices (Habermas 1984: 392).

Arguing, then, not voting or bargaining, is the currency of democracy. Also, in politics, the social fabric is made up of parties that gives and respond to reasons, even though prevailing disagreements - due to hostility and conflicts over outcomes - necessitate decision making devices such as voting and bargaining. These non-deliberative procedures, however, in order to function adequately to a large degree also presuppose well conducted arguing processes, not least because they must be justified - argued for - in order to be respected (cp. Johnson 1998, Gutman and Thompson 1996).

Part III. Constitutional Democracy

The Challenge to Civic Republicanism

It is, however, necessary to distinguish the discourse theoretical concept of democratic legitimacy from the conventional civic-republican notion of legitimacy. The latter connotes the old Aristotelian model of deliberative democracy that conceives of politics as deliberation in relation to a common good. Here politics is the succession of ethics, and the constitution (Politea) is the institutional expression for the meaning of the good life. In modern pluralistic societies, however, there are conflicts over notions of the good life. The problem associated with the republican notion of deliberative democracy (and of communitarianism in general) is the priority of the good over the right. The shortcomings of civic-republicanism, which gives priority to collective will formation, represents a parallel to the one-sidedness of liberalism (in the tradition of Hobbes and Locke), which favors (pre-social and pre-political) rights. The defenders of civic-republicanism understand democracy as a community which deliberates upon what is equally good for the members. By implication, they do not recognize any commitment that is not in accord with the authentic understanding of the collectivity. It is only citizens that are the bearers of rights, not human beings in general (Arendt 1963). This theory pictures democracy as a process of collective self-discovery which only gives human rights a binding status as long as they correspond to the society's ethical self-understanding (Habermas 1996a:100f).

It is that enables Dieter Grimm to see the question of an EU constitution as a question of political self-determination. True self-determination is dependent on the existence of a demos. And as there is no European demos, there can be no democracy ^[6]. To this tradition belongs the German Constitutional Court's Maastrict decision which supported the Maastrich Treaty with reference, not to supranationality, but to its being an association of states. Joseph Weiler has labelled this the No-demos thesis, saying that it ".. is premised on an organic understanding of peoplehood deriving from the European Nation-State tradition which conflates nationality and citizenship and can, as a result, conceive of Demos only in statal terms" (Weiler 1995:219). It is also from this perspective that Jean-Marie Gu�henno can state that democracy is possible when the "Gemeinschaft" from the outset is strong enough (1996:398), and Fritz W. Scharpf can maintain that democratic self-government is dependent upon a high degree of cultural homogeniety (Scharpf 1996b).

If democracy is framed as deliberation on the good life, collective goals and communal ends, then the central point of modern politics, which pertains to the neutrality of the state regarding substantive conceptions of the good life, is left out. Modern constitutional democracies are united around a procedural commitment to treating people equally and fairly (Dworkin 1978, Rawls 1993). Constitutions have changed, and are no longer the embodiment of a concept of the good life as in premodern societies. It is now a device for limiting, controlling and civilizing statal power. It is supposed to secure societal autonomy, individual freedom and organize, legitimize and authorize political power (Preuss 1996a:113, 1996b, Castiglione 1996, Bellamy 1996, Habermas 1993). Within modern societies there is a plurality of values and conflicting views about the good life among different groups, local communities and cultures. When a mjority of the people shares certain values, opponents and minorities may become threatened. Thus, a polity favoring certain values or virtues would be unfair to dissidents unless they are equipped with rights protects their interests. Modern democracies are politically integrated on the basis of common notions of justice and fairness, rather than on the basis of substantive values (Kymlicka 1989:21). A modern constitutional order is held to be neutral with regard to competing notions of the good life. Under pluralistic circumstances, a heroic deontologist or an authoritative interpreter of the good life will not do. ^[7] Therefore, a deliberative concept of politics has to reflect the way procedures and the system of rights institute and regulate the political process, how they intervene in the shaping of a collective will and in monitoring decision-making processes.

Theories of deliberative democracy that are modeled on deliberation within the city state or a homogenous nation state are, thus, challenged by pluralism and also by complexity due to societal differentiation. In opposition to conventional models of deliberative democracy that regard politics as deliberation in relation to the common good, Habermas reframes deliberation in Kantian terms, which means that he maintains a liberal position, giving priority to the right over the good. Citizenship is not conceptualized as based on a national or ethnic origin reflecting specific worldviews, but as based on a constitutionally entrenched notion of public and private autonomy.

Democratic Legitimacy

The modern state is premised on the right of the individual - on the safeguarding of individual rights. Modern societies are pluralistic and conflict-ridden and the constitution makes it possible for different groups and subgroups to live together under a common law. They have to resolve their conflicts through the medium of law. Citizenship and nationality - demos and ethnos - are conceptually decoupled in the modern state and the state is, in principle, neutral regarding different conceptions of the good life. There are two points to be made:

First: The lessons to be learned from the political revolutions of Europe are instructive with regard to how we are to tackle the challenge of supra-nationalism: "Indeed, in my understanding and construction of supranationalism its value system is, surprisingly actually wrapped up with the value system of European ethno-national liberalism of the 19th century and, as such, can offer great comfort for those concerned to preserve the values and virtues of the Nation-State" (Weiler 1995:245). Or as Habermas puts it "Democracy and human rights form the universalist core of the constitutional state that emerged from the American and French Revolutions in different variants" (Habermas 1996a:465)

Second: The discourse theoretical concept of deliberative democracy sits very well with supranationalism as it decouples citizenship and nationhood and conceives the constitution as a system for accommodating difference. Modern states are premised on cultural diversity as there is a right to nonparticipation. The legislative structure of the modern constitutional state, and the modern idea of democratic citizenship makes solidarity between strangers possible. Actually, they are not nation states - Volksnationen - founded on an ethical sittlichkeit or cultural substance, but rather nations of citizens integrated by common laws and legal procedures. The democratic constitutional state does not need another basis than the recognition of and trust in the procedures that ensure participation in collective goal formation and that make peaceful conflict resolution possible (Habermas 1996b:189): The democratic constitutional state (Rechtstaat) institutionalizes the conditions necessary for integration through self-legislation. This practice is anchored in the medium of law as it simultaneously secures the private autonomy of the individual by certain protective rights, and secures the public autonomy of the individual by a right to participation. Both human rights and democracy are necessary for securing the private and the public autonomy of the citizens because individual rights cannot be formulated adequately unless those affected first have been engaged in public deliberation to discuss how to treat typical cases. The democratic process, which in it self is legally constituted, is the source of legitimation.

"... the principle of democracy states that only those statutes may claim legitimacy that can meet with the assent (Zustimmung) of all citizens in a discursive process of legislation that in turn has been legally constituted" (Habermas 1996a:110).

In this way discourse theory departs from both republican and liberal conceptions of popular sovereignty and democratic legitimacy. Whilst �liberals� (or rather, social choice theorists) conceive of the individual as bearer of rights and democratic legitimacy as a question of a fair aggregation of preferences, the republicans locate popular sovereignty in the public assembly of citizens. Discourse theory, in contrast, launches a de-substantialized and intersubjectivist concept of sovereignty and locates it in the anonymous and dispersed forms of communication in civil society - in the public spheres - combined with institutionalized discources within the formal political complex. Democracy is conceived of as a set of argumentative or communicative presuppositions and procedural conditions. These bear the burden of legitimation: "Only the principles of the guaranteed autonomy of the public spheres and competition between different political parties, together with the parliamentary principle, exhaust the content of the principle of popular sovereignty" (Habermas 1996a:171).

The EU does not meet these conditions, it is contended, as there are no European political parties furthering the European interest, and since the Council of Ministers is the main legislative body. However, even though Parliament originally was given only a consultative role, subsequent Treaties, - and consultation, cooperation, co-decision procedures - and the Amsterdam Treaty have extended Parliament's influence so that it now shares decision-making power with the Council in a larger number of areas. Further, all major political currents are represented in the Parliament - (though the election turnout is low). Other claims are that there is no European public sphere and that the institutionalized deliberations within the politico-administrative complex adhere to the logic of power rather than to that of reason. Nevertheless, these findings are not uncontroversial as is shown in several recent publications. It has become obvious that what you see depend, to a large degree, on where you sit: The empirical findings are often the product of the conceptual lenses used. In this last part of the paper I will address the criteria for diagnosing the quality of the public sphere and the nature of the interaction within representative bodies that follow from the preceding outline.

Part IV. Deliberative Supranationalism

The Public Sphere Revisited

The public sphere as such provides the sort of deliberative arrangement that fits the requirement of discourse theory. In principle, everybody is entitled to speak without any limitations, whether on themes, participants, questions, time or resources. It is a common space for free communication secured by legal rights to freedom of expression and assembly.

The pessimistic view of democracy in the EU maintains that as there is a lack of collective identity, the prospect for a viable European public sphere is rather bleak. �In the absence of European media, European political parties, and genuinely European processes of public-opinion formation, constitutional reforms could not, by themselves, overcome the present democratic deficit at the European level� (Scharpf 1994:220). There is no agreement on common interests or values and different languages and disparate national cultures make opinion formation and coherent action unlikely. "Plainly, 'Europe' is not a simple politico-cultural space; nor is 'Europeness' an unambiguous attribute" (Schlesinger 1995:4). These moods have been fueled by the notable upsurge in xenophobic and racist movements in Western Europe. While on the basis of simple empirical findings one may be disappointed, I think, that the pessimistic diagnosis reflects not only a rather constrained conception of the public sphere and political opinion formation but also a national-constitutionalist view of supranational legitimacy. There have to be a common ground for deliberation; a common audio-visual space for interaction; and a shared identity to stimulate collective opinion formation, the molding of common interests and the mobilizing of collective action.

There is a communitarian, or rather a civic-republican, string to this kind of critique, which conceptualizes politics as people reasoning together about the common good. This process of reasoning is seen as something quite different from discussion of private concerns, i.e., it appears as if a common will from the outset prevails. This view presupposes a homogeneous culture, a populace, a united people that comes together in public spaces to deliberate and decide about common concerns. It pictures the public sphere as something rather distinct and stable, as a place where enlightened and equal citizens can assemble to discuss public matters. This is the concept of res publica handed down from the Greeks where citizens meet in Agora as friends and brothers to deliberate before decisions are reached in Ekklesia, resurrected in the medieval republicanism and in the seventeenth century England, France and Germany. The greek model of the public sphere which e.g. Hannah Arendt (1958) makes use of presupposes a homogenous political community (Benhabib 1992:90ff). A volont� gen�rale is possible because citizens are equal and share common values and notions of the public interest. In case of conflict, parties can reach an agreement on the basis of a hermeneutic interpretation of common values and affiliations about who they are and who they would like to be, and, then, develop into a collective subject - a nation - capable of action.

In this model there is no distinction between deliberation and decision-making, between opinion formation and will formation. Consequently, this conceptualization does not capture the way the modern public sphere is institutionalized in opposition to government, it is situated in the civil society and rendered possible by the fact that the citizen have rights that they are entitled to use against the state. However, also the bourgeois conception of the public sphere of the previous century is too narrow as it is conceived as one public arena and in this analysis ".... the emergence of additional publics (is interpreted) as a late development signaling fragmentation and decline. This narrative, then, ... is informed by an underlying evaluative assumption, namely, that the institutional confinement of public life to a single, overarching public sphere is a positive and desirable state of affairs, whereas the proliferation of a multiplicity of publics represents a departure from, rather than an advance toward, democracy" (Fraser 1992:122).

There are many public spheres in modern states and they are not confined to national borders. There are subaltern, counterpublics and there are overarching publics transcending limitations of time and space made possible by new media technologies and audiovisual spaces. There are local publics, regional, national and international publics, and there are general publics, inter-mediate and semi- and quasi publics (Habermas 1996a:374ff, cp. Cohen and Arato 1992). New forms of communication are evolving and citizens' involvement in public debate may be seen as rather voluntary and elective than obligatory and "native". The many publics may be seen as fostering democracy as they enhance the possibilities for popular participation in opinion formation. Even though the problem of fragmentation prevails it is fair to say that the more publics, the more debate, and consequent the more democracy. Fewer voices are excluded and more questions are asked: more publics provide more possibilities for testing the legitimacy of power.

Involved in the discourse theoretical notion of the public sphere is a distinction between opinion formation, which is the domain for public sphere, and will formation which is the domain for decision-making units within the political system. Publics do not act as they possess no decision-making agency. In public spheres it is only possible to deliberate and as such form opinions about what should be done. In pluralistic and complex societies public opinion is "anonymous" - it is "decentered" into the network of communication itself, it is dispersed, and has no power to govern.

"In the proceduralist legal paradigm, the political public sphere is not conceived simply as the backroom of the parliamentary complex, but as the impulsegenerating periphery that surrounds the political center: in cultivating normative reasons it has an effect on all parts of the political system without intending to conquer it" (Habermas 1996a:442).

These informal arenas for public discussion and opinion formation provide a context of discovery. This is an open and inclusive network of public spheres with fluid boundaries that makes possible the formation of public opinion (Habermas 1996a:373). The public sphere is a unique, European invention constituted by nothing outside the common action we carry out in it and where no authority can claim control but must seek approval. We are in fact witnessing a transition from the speech of power, to the power of speech. ^[8] Habermas at once attacks the republican notion of popular sovereignty conditioned upon "the will of all", as well as the notion of a center of society, the legislature, as the locus of democratic legitimacy. In the discourse theoretical reading of procedural democracy it is the public and informal opinion formation, freed from the necessities, compulsion and coercion involved in actual decision-making, that connects political action to the interests and needs of civil society. The constitutional protection of the public sphere makes possible free processing of opinions, information and formation of position taking and generation of communicative power.

In this view, the public sphere in Europe is not totally missing as there are new European audio-visual spaces - newspapers, television, Inter-net, and English maybe as a bound to be first language - and the new social movements and identity politics cross borders ^[9]. In light of the new information technology, "(C)communication comes to be seen as flows among publics rather than as exchange among discrete commodities which can be owned and controlled privately as things" (Keane 1993:243). Moreover, the point is that the public sphere is not an entity unto itself, as something, which may or may not exist. The public sphere is not prior to or independent of decision making agencies but is created and formed in opposition to them - as a vehicle to test the legitimacy of legal provisions and as a counterweight to governmental power. This view of the emergence of the public sphere is based on the contention that the state originated, more or less, through war or brute force, and that state authority only subsequently was democraticized, i.e., subjected to the rule of law. First came the state, then came democracy. Collective identity has to be made rather than merely discovered. It is from this assertion that the contention `no European demos without a European democracy' is derived.

However, it is not the public sphere alone that bears the burden of legitimation. Rather, it is the interplay between free and open debate in noninstitutionalized (weak) publics and institutionalized debates - strong publics - in the political system that together secure the presumption of rational opinion and will-formation. Popular sovereignty is to be secured by a "two-track" model. The democratic procedures constitute, according to Habermas, a context of justification, as they provide the reference point for decision making and negotiations that make clear which norms and goals that are to be realized.

Deliberative Bodies

Institutionalized discourses, in representative bodies, are necessary not only in order to narrow down alternatives for decision making and voting, but also in order to reach more enlightened opinions about the public interest interest(s) or the common good(s). They improve decision- making. Representation contributes to refine and enlarge opinions by passing them through the deliberate concern of chosen members of the demos. As James Madison already made clear, representation contributes to political rationality by lifting elected members of the community out of parochial settings, potentially corrupted by local factions, to supra local settings where they have to ground their claims with regard to others' interests and needs. In national or federal settings the representatives have to take into consideration different interests and perspectives in order to justify particular claims and thereby can reach more reasonable and legitimate decisions. Representation may be seen as a precondition for political rationality as it secures institutional fora in which elected members of constituencies peacefully and cooperatively can seek alternatives and solve conflicts and problems on a broader basis: ..." a central goal of constitutional democracy is to secure a realm for public discussion and collective selection of preferences while guarding against the dangers of factional tyranny and self-interested representation" ... and, further, principles of constitutional democracy ".. include, above all, the effort to promote deliberation in government, to furnish surrogates for it when absent, to limit factionalism and self-interested representation, and help bring about political equality" (Sunstein 1988:52; 1990:171).

However, if there is some credibility to the thesis of a non-existence of a European public sphere, there is no lack of representative bodies in the EU, as we have seen. There are bodies both for representing Member State citizens (the EU Parliament) and Member States (The Council, The Commission), and Regions (Committee of Regions). Regarding the notion of democratic deficit the argument now takes on a different turn. It is maintained that the deliberations adhere to the logic of power rather than to the logic of arguments; self-interests rather than common interests dominate. It is the large member states that have the most votes, and it is the economic-functional interests of the society whose voices are most easily heard, due to lobbying and considerable bargaining resources. Decisions are reached by experts, and not by elected representatives, and laws are passed without due hearings and with little transparency and publicity - it is an elite game (Middlemas 1995:612). The representative system and the institutionalized discourses do not live up to democratic ideals, (viz. equality of persons). The EU system on the whole is, on this reading, occupied by the special interests of big business and the ideology of free markets (Traxler and Schmitter 1995). The gap between power transferred to Community level and democratic control is "... filled by national civil servants operating as European experts or as members of regulation and management committees, and to some extent organized lobbies, mainly representing business" (Williams 1991:162, cited from F�llesdal 1998). “The EU is characterized by principles of national representation, interest representation, and representation of expertise” (Andersen and Burns 1996:227).

On another reading, however, the EU already does possess a constitution and laws that establish legal governance structures [10]. The political process is legally constrained. Small countries and rural interests are also systematically overcompensated in the voting formula of the Council of Ministers; and unanimity is required on a whole range of issues, which in fact gives Member States veto power, and thus puts them on an equal footing (akin to the principle of equality of states). Veto-power is a main barrier to supranationalism, but on the other hand, it represents a constraint on discourse that induces communicative rationality: When parties can block outcomes, actors have an incentive to convince others by employing 'rational' arguments of what is a right or good decision. Moreover, veto or higher majority quorum may protect against professionals and lobbying. The emphasis placed on consensus in the Community is interesting also because representatives and delegates from Member State countries are brought together in many kinds of deliberating fora and arenas. They meet in committees, in boards and councils, in order to resolve conflicts and find solutions to common problems in a cooperative way. This interaction is governed by legal norms and procedures which means that parties have to raise claims to correctness even if they are subjectively following their own interests (cf. Alexy 1989:219ff). Regulatory acts establish missions and objectives for the bodies, and legal rules both enable and constrain action of their members in order to secure fair and reasonable results. There are e.g. procedures for consultation, cooperation, and co-decision making and the objectives of the Commission are to identify the European interest, to consult as widely as is necessary and to respect the principle of subsidiarity.

The type of inter-state interaction generally referred to as international cooperation – intergovernmentalism - may be described as strategic, and as conflict resolution through bargaining (Moravcsik 1994). The question of whether the EU is something more - representing a deeper form of integration ^[11]- then, can be addressed by examining the ability to act in concert, to achieve consensus on conflicting issues and to form a common will about how to solve common problems. If the EU is to be something more than an arrangement for inter-state cooperation - the Union has to be able to act on a collective basis: The members have to have an open mandate from their constituencies in order to be able to identify common interests, that is interests that do not solely reflect nation state interests, but which they can identify with. Forming a common will is conditioned on the ability to act communicative rationally. Actors that all have different interests or preferences must give priority to seeking agreement over self-interest maximation. The question of whether or not the EU is a supranational democratic polity can fruitfully be examined from the point of view of interaction modes. In short, is the interaction made up of Member States that compete for the biggest share or is it constituted by some notions of common interests and shared identities. "What supremacy requires is the identification of rules and principles ensuring the co-existence of different constituencies and the compatibility of these constituencies' objectives with the common concerns they share" (Joerges 1996:25). However, it is not enough to document interest incorporation and the formal structure of decision-making. We also have to study the actual deliberation and decision-making processes and examine the rationality, i.e., universality of the concrete decisions. Is there a European 'bonum commune'? In order to answer such questions we have to assess the substance of the arguments and not only the character of the procedure, because, even though we have no procedure-independent criteria of what is a rational outcome - a common interest - it is the "... arguments that provides the basis for rational judgements" (Peters 1994:116) ^[12]. In other words, the discussion itself must comply with certain standards of rationality - it must be of a certain quality - in order to satisfy requirements for legitimacy (Mauss 1996:880f). In a next step it is necessary to study if and how members voluntarily comply with decisions that may be detrimental to their self interest, while furthering the common interests (Eriksen 1990:348, 50).

In order to examine the quality of the interaction process in representative and collegial bodies the conceptual strategy of realism or the methodology of economics, do not suffice, as they preclose the possibility for communicative action. My contention is that the nature of cooperation may be of a different kind. Some institutions embody rules and procedures that facilitate communicative action while others favor strategic interaction. In a research program there is need for criteria of demarcation for how to decide when a process has been of a strategic nature and when it has been of an argumentative nature.

Deliberative Criteria

If the critique of the public sphere is informed by the evaluative scheme of civic republicanism, the critique of institutionalized negotiations is informed by the evaluative scheme of rational choice or the economic theory of democracy, seeing democracy primarily as a question of fair aggregation of preferences, and negotiations as strategic interaction. ^[13] In the process of bargaining between representatives of conflicting interests the object for each of the parties is to get a maximum outcome for their own interests, and for this end they have to be able to persuade their counterparts that, if necessary, they have the resources needed to force their interests through. An aspect of this is to persuade others that they also have the will to employ these resources. The hallmark of bargaining, then, is the latent presence of coercion. Use of hidden or open threats and warnings are therefore central elements in bargaining situations (cf. Schelling 1960). Compromise procedures regulated by norms of fairness are called for when it comes to regulation of strategic behavior.

The EU system is marked by consensual rather than by conflictual decision-making. Consequently, a simple distinction between unanimity and voting will not do. Agreements may, even when parties have veto power, be of a different kind. It may be a compromise which is the typical (positive) outcome of bargaining. That usually means none of the parties gets exactly what he or she wants, but each regards the result as better than no outcome at all. How much the various actors have to deviate from their opening position depends on the strength of their bargaining power, i.e., the resources at their disposal, and on their ability to conduct the bargaining process in a (for each of them) favourable way. In that case parties will have different arguments for consenting. Another possibility is rational consensus which "...rests on reasons that convince alle parties in the same way.." (Habermas 1996a: 166). There has been a lot of controversy over the status of consensus, i.e. rational or qualified consensus, in Habermas' work.

Communicative rationality, in the present use, only means trying to establish consent or consensus by employing arguments, and as far as agreements are backed by mutually acceptable arguments one may say that there has been some sort of deliberative process going on. A transition to a higher level of abstraction - discourse or principled arguing - where participants examine what lies in the equal interest of all concerned, is not necessary, I believe, for reaching binding decisions in many cases involving political controversies. The existence of formally correct procedures, and of rights and the knowledge of others' strong evaluations, is often involved in actual decision-making and sheds light on the fact that decisions come about which are neither compromises nor rational consensuses. In a deliberative process one sees the force of the good argument working to accommodate some points of view and values which make further cooperation possible. The participants do not agree on all matters, or on all premises of a conclusion, but the discussion makes the parties aware of the values at stake and of how the situation may be described from another angle. This means that there are a whole lot of situations where the force of the better argument influences decision-making without resulting in a qualified consensus. These agreements neither rest upon a pure convergence of interests nor are they negotiated compromises between contending parties. They are communicatively achieved working agreements (Eriksen 1999) [14]. Democratic legitimacy result from an open, public deliberative process, but the reasons that convince many need not convince all although the minority understands and respects the reasons provided by the majority and accept the result because of a fair process. The problem of consensus and of majority vote have, among other things, led James Bohman to propose a less demanding principle of democracy stating that laws are legitimate if they stem from an open and fair process, the result allows for further deliberation, and �... the process makes the public deliberation of the majority the source of sovereign power� (Bohman 1996:187).

Deliberative Democracy

Implementation of legislative actcs by the Commission is assisted by hundreds of committees of experts from the Member States. Comitology is an EU expression designating this practice. The Council has been rather reluctant on conferring implementing powers to the Commisson - they have as Joerges and Neyer put it not been "willing to loosen their intergovernmental grip on the implementation process in favour of supranational institutions. In more constructive terms, the Comitology decision rejects the idea of supranational central implementation machinery headed by the Commission, and thus indirectly forces national governments into a co-operative venture" (1997: 277).

Comitology, which is an EU invention, may be understood as an institutional response to efficiency and legitimacy requirements. The Commission needs unbiased information and expert knowledge as well as opinions of laymen (and/or representatives of nongovernmental bodies), in addition to loyalty and support from repesentatives of national governments in order to be able to implement measures effectively. Several hundreds committees are active in the implementation of Council decision and enjoy extensive freedom of discretion. It is a general point to be made that broad participation and fair decision-making rules enhance legitimacy, but what is peculiar to comitology - contrary to other international committees - is that these committees are involved in decision making that is binding on domestic governments. On the one hand this contribution to Europeanization widens �.. the gap between normal citizens and policy matters� (Wessels, 1998:228). On the other hand, it has been proposed to see comitology, as a new political order that may remedy democratic deficit. We then have to ask: What conditions do the undertakings of the committees have to comply with in order to contribute to deliberative supranationalism?

My proposal is that they have to take on a communicative style if they are to remedy the alleged democratic deficit or if they are to contribute to democratic supranationalism. The problem of bargaining and voting procedures is that they encourage a process of give-and-take, pork barreling, log-rolling etc. that do not change opinions or involve learning or enlargements or refinements of perspectives - there is no molding of a common rational will. ^[15] In a way it signals that the discussion has come to a standstill - a dead lock. It also indicates that the parties have accepted an outcome, but not because it is an optimal outcome. They have to accept it because of the resources and power relations involved. Each participant would ideally like another and better outcome for themselves, but can live with the agreement that has been obtained. It is a suboptimal solution from the point of view of the actors. [16]

Arguing, in comparison, then is marked by a change of views, by the way the discussion helps to mould preferences and to move standpoints. In case of conflict at least one of the contenders has to change position in order to establish agreement. And in case common problems are to be solved, agreement on collective goals, about what should be done is needed, i.e., molding of a common will is required. When strategic rational actors change their views, it is only to strike a better bargain: they are not moved by the force of the better argument, but by the outlook for success. Which logic the deliberations in fact adhere to is an empirical question. Whether they adhere to the logic of bargaining or to the logic of arguing can not be settled in advance. Christian Joerges and J�rgen Neyer (1997) conclude after having studied the working of food committees that different interests and affected parties are taken into account and thereby actually meet the congruence criteria [17] They also contend that interaction takes on a communicative rather than the bargaining intergovernmental style. [18] Also reports from the deliberations of the working groups that the COREPER (Committee of Permanent Representatives) and the Council have to rely on in preparing the deliberations of the Council, points in this direction. �Several authors argue that the national civil servants involved in these working group meetings are exposed to a spirit of co-operation and mutual understanding, to an esprit de corps (Sasse et al., 1977, Pag 1987, Wessels 1991, Westlake 1995, Kerremans 1996)�.... and, further: �Obviously, informal communication is intense in the working groups manned by full-timers. These working groups also seem to enjoy a common leadership of core members. Among these core members the non state institutional actors clearly are more than primi inter pares. They generally are the hub of the informal communication network. The principal fact emerging from the data is that our respondents appear to have adopted a common attitude to their different partners, ...� (Beyers and Dierickx 1998, 1,21). There is a distinct supranationalist dimension to the way the interaction between experts is going on as they have to pay more attention to expertise and how to reach agreement and manage to �get the work done� ( Beyers and Direckx 1997:454).

Independent regulatory bodies, like courts of law and committees consisting of experts, national civil servants, and representatives of affected interest groups and NGOs seems to be more efficient in order to produce solutions. Recent empirical research indicates that they are � ..more suitable for complex, plural societies than are mechanisms that concentrate power in the hands of political majority� (Majone 1996:286). However, the problem of democratic legitimacy prevails as they are linked to unequal chances of participation. They are based on expert knowledge and often power and contribute to the technocratization of politics. Institutional reforms for enhancing public accountability are called for .

Conclusion

When we address the EU system from a discourse-theoretical perspective we become aware of the rather complex set of institutions and procedures that are relevant for assessment of democratic quality. Democratic legitimacy does not solely rest on representative institutions for aggregating preferences, nor does it merely rest on citizens' participation in decision-making bodies. Both informal and formal institutions are needed, and both procedures for deliberation and for decision making are required, because only full representation plus rational deliberation together ensure democratic legitimacy. The procedure itself guarantees, as mentioned, only the right to participation, not the quality of discursive processes. A more positive theoretical program is possible as some institutional rules and institutional practices favor one type of behavior while other favor others. Certain procedural norms and institutional settings are required to ensure that participants take on a communicative and not a strategic attitude. [19]

From this perspective we learn that in order to address the democratic deficit of the EU or of its democratic quality we have to examine, first, the Member States and how well their democratic structure of governance is functioning. Is there a free press, party-competition and representative bodies, and is the way the Member States exercise veto power in itself a contribution to democratic governance? Secondly, we have to address the network of intermediate organizations, NGOs, political parties, social movements and criss-crossing communicative channels of civil society. Do they contribute to opinion formation, maintain popular pressure on EU decision-makers and do they question the legitimacy of the EU's undertaking? Thirdly, we have to analyze the institutional complex of the EU itself, the EU Parliament is directly elected, but how much power does it really possess? The role of the Court and the Committee system are also to be addressed. Do they represent a broad spectrum of opinions and do they ensure a certain degree of popular influence on decision making? And, lastly, how is the interaction conducted? From what sources do the decisive arguments extract their force and what is the quality of the debate? To what degree do decisions and laws stand up to a generalizing or universalizing test?

Taken together, these checkpoints render it possible to address the problem of the democratic deficit of the EU in a more sophisticated way than the conventional theories of democracy make possible. In the end such an analysis may come to find that the EU embodies certain qualities that, from a democratic point of view, are important. The EU contain, after all, a rather complex �constitution� comprising both voting and bargaining procedures, one the one hand, and procedures for ensuring both public and institutionalized deliberations. People are subjected to laws that they themselves have not authored, but the complex institutional set up of the Community contributes to the impression that citizens, at least partly, possess the possibility of being co-authors of the law. This may help us understand why the EU at all survives as a governmental structure capable of making binding decisions, despite all its obvious defects and all the criticism leveled at it.

Footnotes

* Chapter prepared for Erik Oddvar WEriksen and John Erik Fossum (eds.), Democracy in the European Union - Integration Through Deliberation? London: UCL-Press. It was read at the conference on "Democracy in Europe - Integration through deliberation, in Bergen, February 1998, and at ARENA, May 1998. I am grateful for comments made by participantsd and to John Erik Fossum for also dcorrecting language.

[1] The literature on the "Democratic Deficit" of the EU is enormous, see e.g. Castiglione 1995, Williams 1991, Middlemas 1995, Schmitter 1992, 1996a, 1996b, 1998, Weiler 1995, Gustavson 1996, Andersen and Eliassen 1996, Pogge 1998. Lehning and Weale 1997.

[2] "In the field of health and safety regulation, the Community has, 'post-Maastricht', found itself unwittingly involved in a third phase of integration, being increasingly required to play a direct role in the implementation of European health and safety measures" (Vos 1997:211).

[3] There may be degrees of anarchy depending on whether only government is absent or whether there is lack of laws or norms altogether (cp �sterud 1991:294)

[4] See Morgentau [rev. by Thompson] (1993), Waltz (1959) see eg. M�ller 1994, Risse 1997 for the debate on International relations in Germany from the perspective of communicative action.

[5] Strategic rational actors “not only make choices on the basis of expectations about the future _ but also on the basis of their expectations about the expectations of others” (Elster 1979:19).

[6] See Grimm 1995, and for a critical comment see also Habermas 1996b:185ff..

[7] This is one of great insights of B. Constant (1819/1980).

[8] "Modern democracy invites us to replace the notion of a regime governed by laws of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimate - a debate which is necessarily without and guarantor and without any end" (Lefort 1988:39). See also Taylor 1995:266f, Habermas 1962/1989, 1992, 1997:123ff.

[10] A constitution for cooperation on the European level can not mirror nation state constitutions, they cannot be a statal constitution writ large, because it is only through membership in a Member State that they have an EU membership. J. Weiler understands the European community as a new kind of integration and sees "European demos and citizenship as part of a polity with multiple political demoi ... which may consist in what may be called the 'concentric circles' approach" (Weiler 1997:119): One is simultaneously a european and an englishman. The EU is a union of peoples, not replacing the national with the European (p.121)..

[11] Several proposals are launched to catch the post-national nature of EU, such as supranationalism (Weiler 1995), deliberative supranationalism (Joerges and Neyer 1997), a mixed polity (Bellamy and Castiglione 1997), an imperfect state (Middlemas 1995), Condomino or Consortio (Schmitter 1996b).

[12] In this way legitimacy and democracy are conceptually linked: Democracy is a way to find out what justice consists in (Young 1990).

[13] Bargaining is aslo a kind of speech acts as strategic action often involves communication among the parties. Giving and receiving orders between supervisors and subordinates is a typical example (Eriksen and Weig�rd 1997, Cp. Elster 1998)

[14] This resembles Habermas’ recent notion of konsens, but this kind of agreement is reserved for ethical political discourses: "The consensus (konsens) issuing from a successful searh for collective self-understanding neither expresses a merely negotiated agrement (Vereinbarung), as in compromises, nor is it a rationally motivated consensus (Einverst�ndnis), like the consensus on facts or questions of justice. It expresses two things at once: self-reflection and resolve on a form of live" (Habermas 1996a:182)

[15] The most that is to be expected is agreement on what the parties cannot subscribe to.

[16] Nevertheless, they may even support it with rational arguments: considering the circumstances, a compromise is in fact `a first best outcome' unless you waste some of the resources in the process of bargaining. Of course, you could achieve better results if you had more power, had more resources, and were more talented; but that is wishful thinking.

[17] Congruence means that those who are affected should also be those responsible (cp. Z�rn 1998:8).

[18] The following citation from an interview with an official from the German Bundesministerium f�r Gesundheit gives support to a hypothesis of arguing: "During the course of working together, delegates approximate not only national legal provisions but also different problem definitions and problem-solving philosophies. They slowly move from representatives of the national interest to representatives of a Europeanised interadministrative discourse in which mutual learning and understanding of each others difficulties surrounding the implementation of standards becomes of central importance. The emergence of shared feelings of interadministative partnership is crucial to understanding the course of the negotiation because the control which national governments have on delegates is generally rather weak. Sometimes, governments have not defined their preferences and therefore leave delegates a wide margin of discretion. In other instances, delegates use their unique informational status to influence their governments' perception of their own preferences or even simply by-pass them" (interview conducted with official from the Bundesministerium f�r Gesundheit, Bonn, 28.02.96, by Joerges and Neyer 1997:292).

It may also be possible to establish the required communicative relationships in existing policy networks, triangulars, corporatist arrangements and the like to deal with conflict resolution and problemsolving.

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[Date of publication in the ARENA Working Paper series: 15.02.1999]