Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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structural discrimination, for the need of enabling reciprocal learning-processes and for
needs of structuring these processes more formally and to render them more transparent 6 .
This awareness can be reinforced by keeping in mind a second aspect of the informal nature
of the Union’s functioning. The institutional infrastructure of the European Union is composed
of the “hard” treaty-institutions, of institutions/sub-institutions established through
delegation (committees and agencies, for instance), and of “soft” institutional configurations
like issue-related expert groups and lobbying actors as well as of interest groups of
different kinds (public- and common-interest groups, actors from social, environmental and
civil-rights movements, NGOs etc.) that influence the decision-shaping process through different
channels. Embedded in the broader contexts of the constitutionalisation-debates, esp.
those relating to the “democratic deficits” of the European Union, efforts of institutional reform
towards accountability, transparency and democratic quality lead to a strengthening of
information- and access-rights on the one hand, to secondary law-production relating to
transparency and openness, and to a set of soft legal instruments like best-practice declarations,
codes of conduct, Whitebooks and so on - mostly inspired by the upcoming discourses
about “Good Governance” (see XX). And indeed: Since the late 1990s there has
been an enormous rise in participation of external actors at different levels of the law-making
process and in different institutional settings. The problem still has ever been that these
forms of participation are not structured by transparent and formal procedures allowing for
active intervention by those who are concerned. Access is highly a question of resources
and organisation-power, and of “perception” on the side of the institutional actors who decide
upon who is heard. So in practice, we are frequently dealing with an ad-hoc inclusion
and a biased representation (see Tömmel XX), but not with equal access, or an equal right
to be heard. To our mind in fact, these processes pose serious normative, procedural and
practical problems; because in such informal configurations, structural discrimination, i.e.,
6
In this respect obviously further empirical studies are needed to get to a balanced evaluation of the institutional
practices and esp. of the quality of deliberation-processes. Although we can at present not rely on elaborated
empirical insights, we can articulate a kind of scepticism about the (normative) quality of the institutional
practices underlying the notion of transparent process of justification (see above). Apart from that, a
quick look at actual institutional compositions might well reveal a situation that is “open to asymmetries” and
not just resolvable by socialisation. The European Courts, for instance, have – in plain numeric terms – been
stocked up in proportional adequacy. At second sight, two figures are quite striking: In relation to the Advocates
General at the ECJ (which is in substantial terms a crucial position) as well as in relation to the heads of
chambers at the Court of First Instance (which is in hierarchical terms a position that matters) there is an obviously
unproportional relation between “old” and “new” judges.