Insights by Irthe de Jong (RED-SPINEL) and Sofie Fleerackers (GEM-DIAMOND) on the RED-SPINEL Seminar on “The Place of Expertise in EU Policymaking”.
Uniting legal scholars from academic partners in RED SPINEL – a Horizon Europe-funded project – as well as beyond, the University of Amsterdam Centre for European Law and Governance organized a Seminar in March 2023 to tackle the place of expertise in EU policymaking, and ultimately the EU as a democracy. The seminar, led by Prof. Dr. Chiara Armeni and Prof. Dr. Christina Eckes, took place in the context of working group 4 of RED SPINEL: ‘The protection of fundamental rights within the EU through expert knowledge, citizen participation, and judicial instruments’. This blog post first summarizes the seminar, which featured one keynote, two-panel sessions, and a concluding round-table discussion. Secondly, the post shares some of our reflections as participants in the seminar.
The European Union is increasingly apt at infusing expertise into its governance framework. We can recognize the EU’s reliance on expert knowledge in policy actions ranging from climate change and environmental degradation to migration, and the rise of new technologies. However, such use of expertise does not come without its challenges, especially in times of democratic crisis. While reliance on expert knowledge increases rationality and scientism in policymaking, and can even serve to depoliticize complex issues, a too strong reliance on legal expertise may also set the EU up to evade the difficult normative questions that inevitably come up when just policies need to be designed. Even more so, the opaque use of (legal) expertise has given rise to accusations of technocracy within the EU and has amounted to a perceived disconnect between the EU’s policies and the public. Ensuring visibility to the public into how legal questions are handled in EU policymaking is a precondition of the rule of law, and a degree of transparency that seems to be lacking today. The question arises how the EU can build on expert knowledge for its problem-solving value without forsaking democratic legitimacy.
In her keynote on Legal Expertise in the EU, Prof. Dr. Päivi Leino-Sandberg highlighted the vital role of legal experts in EU policymaking. Leino-Sandberg called for an examination of their role in EU policymaking to allow for more public scrutiny and transparency in the process of consulting legal expertise for EU policy formulation. The first panel was chaired by Dr. Maria Weimer, featuring Dr. Vigjilenca Abazi, on Expert Rule in the Era of Disruptive Politics and Transformative AI, and Prof. Dr. Maria Lee, who presented on Mistrust in Procedural Obligations. Abazi and Lee discussed the deteriorating possibilities for the public to contest expertise in two different policy areas: the regulation and use of transformative AI, and environmental decision-making. Abazi identified three logics of contestation: epistemic (who produces knowledge and how); normative (the justification for the use of knowledge); and structural (the context in which expertise is made, for example by an opaque and complex constellation of decentralized bodies, or by identifiable and accessible actors open to public scrutiny). Lee underlined the importance of law as a necessary condition for a relationship between the public and expert-informed policy.
The second panel, chaired and discussed by Marta Morvillo, featured Anniek de Ruijter – The Politics of Health in the EU: The Role of Law – and Thomas Beukers – The European Commission between Independence and Politicization. De Ruijter explained how expertise may indeed exhibit the potential to undermine democratic legitimacy, yet that, in certain policy areas, such knowledge is considered to be absolutely essential for the formation of the legal framework, as is the case for EU health law. Beukers discussed the role of expertise through two EU institutional innovations on the axis of expertise and politics, namely the European Parliament’s Spitzenkandidaten process and the EU’s Stability & Growth pact - both analyzed through the lens of politicization. Finally, during the roundtable discussion, Morvillo, Weimer, Lee, and moderator Leino-Sandberg assembled the various perspectives and approaches of the earlier panels.
Some Reflections on the Place of Expertise in EU Policymaking
At the outset, the Seminar’s organizers nudged participants with some thought-provoking questions to reimagine the place of expertise in EU regulatory action - both in the EU's substantive policies as well as in its various institutional contexts. Through this exercise, the seminar touched on the one hand upon the necessity of expertise in contributing to a robust democratic space and on the other on the connection between expert knowledge and a perceived decline in accountability of (and public trust in) public institutions.
A selection of the questions that surfaced during the discussions:
How can we ensure democratically legitimated problem-solving capacity within the EU? How can expertise both advance and hinder the process of making institutions democratic and how does expertise relate to the current struggles of democracy?
What is the place of expertise in working towards objectives such as equality and climate stability?
To which extent should expertise be politicized, especially in situations of crises like the climate crisis?
What role does the separation of powers play in ensuring procedural legitimacy and a sense of ownership regarding complex policy topics?
In the remainder of this blog post, we offer some reflections on these questions from the perspectives of our Ph.D. research.
Reflections born from our own research projects
As a first takeaway from the seminar, it can be noted that when it comes to complex policy areas such as the climate crisis, health, and new technologies, the EU relies heavily on expertise. Seemingly, expertise is a good means to circumvent convoluted political debates. After all, if the science is clear on what needs to be done, there is no need to open this up to contestation. This approach is particularly visible in environmental policymaking, where science-based targets have become the standard. However, while science might provide relatively clear numbers on CO2-emission reduction or how large the population of a certain species needs to be to avoid ecosystem disruption, expertise cannot unequivocally tell us how to get there. As Maria Lee noted in the first panel, this reliance on targets has led to a tendency to perceive procedures as inconvenient, because ‘science already shows us what to do’. However, this approach fails to acknowledge the normative questions of environmental policy, the fallibility of expert knowledge, and the role of the public in generating democratic outcomes. Especially climate policy deals with important political questions: which economic activities should be downscaled, which types of renewable energy should we invest in, who pays for the damages of the energy transition, and how do we distribute the costs of decarbonization? Even though climate science is more than clear and agreed on the need for decarbonization and biodiversity protection, it cannot give an unequivocal answer as to how. In other words, as important as expertise is to streamline and guide policymaking, it cannot take the politics out of policymaking by pretending that expert knowledge provides all the answers. Expertise cannot and should not be used to circumvent political questions, as complex as answering those questions might be.
While expertise is essential for high-quality policy, the seminar flagged the need for strong alternative sources of democratic legitimacy, in particular reliable opportunities for public contestation, participation, and scrutiny. Transparency alone is unlikely to be sufficient as noted by Vigjilenca Abazi, procedural transparency might grant passive access to expertise, but it does not empower disempowered voices to contest policy. Especially in environmental decision-making, the participation of the public has a long tradition based on international human rights, for example through the Aarhus Convention. Might citizen participation be able to counterbalance the use of expertise by providing public scrutiny and reopening the floor for contestation and political questions? The devil is in the details – or more specifically, the implementation details. Even when the legal opportunity to contest and participate is there, meaningful participation of the public depends on a multitude of factors, including political engagement and knowledge of the public, socio-economic circumstances that might hinder marginalized communities from participating, and trust in the relevant political institutions. Furthermore, a myriad of citizen participation procedures exists – from the more traditional consultation rounds to deliberative citizens’ assemblies, that intensively immerse participants in the substance of the decision and focus on building agreeable solutions. These procedures can be aimed at a variety of objectives, from expressing democratic rights to improving quality decision-making. Nevertheless, legal opportunities to participate, and a commitment of policymakers thereto, are essential preconditions to generate a conversation between expertise and the public.
An important aspect of the debate on the place of expert knowledge in EU regulatory action is the role of legal experts. What counts as ‘legal expertise’, who can be regarded as a legal expert, and how does legal expertise differ from other types of expertise? What is the role of legal experts in democratic processes? In her keynote, Paivi Leino-Sandberg underlined that such seemingly simple questions do not give rise to straightforward answers. Throughout the EU policy-making apparatus, legal actors are ubiquitous, integrated across the EU’s technocratic decision-making processes and policy fields. These legal actors take on distinct roles and positions as experts of the law, from academics, interest representatives, or practitioners outside the EU institutions to those legal practitioners working within the policy-making apparatus, at Member State or EU level. In all of those roles, legal experts’ impact on EU regulatory action is vast. Legal experts perform an essential democratic function. They shed light on the legal context and meaning of an issue, be that of climate change, the regulation of AI, or migration, and give highly necessary insights into possible legal solutions and the extent of the flexibility of the law, allowing room for a range of valid policy options to tackle a certain societal issue. It is within this function as ‘the one who reads and interprets the law’ that a legal expert’s true impact lies. The law is incredibly flexible, and immense power is involved in the practice of interpretation. Sometimes, different ‘readings’ are really just that: a reading, with every reading being a choice that brings about risks and consequences for EU policymaking. As eloquently explained by Leino-Sandberg, legal experts in the EU institutions have no monopoly on reading the law but they do hold a critical institutional position crucial to EU democracy. Through the power of legal interpretation, the meaning of law can easily be framed – and reframed – in political processes, and in this lies a greater risk of political responsibility being outsourced to the lawyer.
Related to this aspect is the question of (im)partiality and the mistakenly perceived ‘neutrality’ of expert knowledge when used in a political context. Legal experts are subject to different standards, depending on their role: one may expect academics to take a more neutral position, while legal practitioners are to be partial to the interests of their clients. A legal expert’s task is to find flexibility in the law where needed and in doing so, the focus lies on the interest of the client, be that an EU institution or rather a private actor asking for legal advice. The EU integration project exemplifies this focus in a particular manner, as Leino-Sandberg demonstrated: the inherent purpose of institutional legal experts in the EU institutions is to move EU integration forward, their task being to remove legal obstacles that hamper this cause. If EU treaties constrain the range of possible actions too much, EU legislators need the flexibility to be able to offer pragmatic solutions, and this is where legal experts come in.
Connecting the discussions back to the broader purpose of the RED-SPINEL project and current rule of law debate, the focus of the seminar lies on rule of law adherence in and by the EU institutions: on the very stability of the EU institutional framework. Transparent decision-making is essential to this. The lack of transparency in how legal questions are handled in the EU institutions renders political control increasingly difficult. If untransparent reliance on (legal) expertise allows for politics to take a detour in accountability, this may very well undermine democratic legitimacy.
Call to action
The roundtable left uncontested that the inclusion of expert knowledge in EU policymaking serves an important democratic function, even though expert knowledge as such may not come about democratically. Expert knowledge is not a problem for democratic policymaking in and of itself. Even more so, especially in times of crisis, such as the climate crisis, science-informed policy is vital for high-quality and adequate policy. However, expertise should not be taken for granted as an objective and neutral truth. Knowledge is more complex than that, embedded in society and politics, and not separate from issues such as inequality, discrimination, and societal debates. Moreover, even where scientific consensus exists, expertise cannot answer political questions. Science can unequivocally show us that we need rapid decarbonization to halt climate change, yet it cannot tell us how to do so: which economic activities to downscale, who to pay for related damages, and what type of energy to use instead.
In other words, as important as expertise is to streamline and guide policymaking, it cannot take the politics out of policymaking by pretending that expertise has the answers. Expertise cannot, and should not, be used to circumvent political questions, as complex as answering those questions might be. The problem with expertise in EU policy-making, therefore, does not lie in expert knowledge itself but in the weakness of other sources of democratic legitimacy, in particular reliable opportunities for public contestation, participation, and scrutiny. It is those opportunities, made possible through law, that foster a democratic relationship between the use of expertise and the public, and that provide space for well-informed policy without forgoing the possibility to generate imperfect democratic outcomes.
Irthe de Jong is a Ph.D. Researcher at the University of Amsterdam and Université Libre de Bruxelles.
Sofie Fleerackers is a Marie Skłodowska Curie Doctoral Fellow at the University of Amsterdam and University of Geneva, and PhD Fellow at KU Leuven.