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Communication rights, democracy & legitimacy : the European Union

Hoffmann, J. Publication date 2009 Document Version Final published version Link to publication Citation for published version (APA): Hoffmann, J. (2009). Communication rights, democracy & legitimacy : the European Union. [Thesis, fully internal, Universiteit van Amsterdam]. Academic Publishing AG & Co. KG.

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Download date:06 Apr 2026

COMMUNICATION RIGHTS , DEMOCRACY & LEGITIMACY

The European Union

Julia Hoffmann Cover design: Johannes von Engelhardt

Photograph: Andy Marfia COMMUNICATION RIGHTS , DEMOCRACY & LEGITIMACY

The European Union

ACADEMISCH PROEFSCHRIFT

ter verkrijging van de graad van doctor

aan de Universiteit van Amsterdam

op gezag van de Rector Magnificus

prof. dr. D.C. van den Boom

ten overstaan van een door het college voor promoties

ingestelde commissie,

in het openbaar te verdedigen in de Agnietenkapel

op donderdag 10 december 2009, te 14.00 uur

door

Julia Hoffmann

geboren te Erlangen, Duitsland Promotiecommissie

Promotor: Prof. dr. C.J. Hamelink

Overige leden: Prof. dr. J.L.H. Bardoel

Prof. mr. W.T. Eijsbouts

Prof. dr. G.C.A. Junne

Prof. mr. E.C.M. Jurgens

Dr. T. McGonagle

Prof. dr. K. Schönbach

Faculteit der Maatschappij ‐ en Gedragswetenschappen TABLE OF CONTENTS

INTRODUCTION 1

COMMUNICATION AS A HUMAN RIGHT : PICKING UP THE CHALLENGE ? 17

1. Introduction 18

2. Arguments for a broader “right to communicate” 20

3. The political history of the “right to communicate” 22

3.1. The Call for a New World Information and Communication Order

3.2. WSIS and CRIS: Picking up the Thread?

3.3. WSIS: No Reference in the Official Final Declaration

4. Open questions and challenges 33

4.1. What kind of right?

4.2. Positive obligations

4.3. Substance

4.4. Should the right to silence also be accepted outside judicial proceedings?

4.5. Whose right?

4.6. Against whom?

4.7. Codification

5. Concluding remarks 43

5.1. Where to move from here?

TRANSITION I 59

THE ROLE OF COMMUNICATION RIGHTS IN THE DEMOCRATIZATION OF THE EUROPEAN UNION 67

1. Introduction 68

2. Locating the democratic deficit 69

2.1. International Relations and the EU

2.2. The Babylonian problem and the “no demos” critique

3. Legitimacy as an issue of Communication 73

3.1. Deliberative democracy and the legitimacy of European governance

4. Communication Rights as Citizenship Rights 89

5. Conclusion 95

TRANSITION II 109

THE IMPACT OF EUROPEAN LAW AND POLICY ON COMMUNICATION RIGHTS 113

1. Introduction 114

1.1. Assessing Communication Rights

1.2. An operational definition

2. Locating Communication Rights in EU governance structures 119

3. Infrastructure 120

3.1. The EU approach to a European public sphere

3.2. e‐Inclusion and e‐Accessibility

4. Content 124

4.1. Freedom of Expression

4.2. Privacy, the confidentiality of communication and personal data

4.3. The Right to Access to Information

4.4. Regulatory Framework for Media Governance

4.5. Media pluralism and ownership concentration

4.6. Public Service Broadcasting

5. Process 152

5.1. Information and Communication Policy

6. Conclusion 158

TRANSITION III 193

THE EVOLUTION OF A PUBLIC RIGHT TO ACCESS TO DOCUMENTS 205

1. Introduction 206

2. The structure of the Code of Conduct 208

2.1. Laying the ground for access: case law of the European Courts

3. Regulation 1049/2001 211

3.1. The process

3.2. The proposed revision

3.2. What is a document?

3.3. Third Party documents

3.4. Member State documents

3.5. The case of “sensitive documents”

3.6. Partial access

3.7. Procedural rules

4. The new exceptions regime 221

4.1. Absolute grounds of refusal

4.2. Exceptions with Public Interest Override

4.3. Concluding remarks on exceptions with public interest override

5. The public registers 242

6. Concluding remarks 246

List of cases 275

TRANSITION IV 277

TERRORISM BLACKLISTING : PUTTING EUROPEAN HUMAN RIGHTS GUARANTEES TO THE TEST 281

1. Introduction 282

2. Legal Framework of the smart sanctions regime 285

2.1. The Interplay of legal systems

2.2. Ways of communitarization

2.3. The lists and access to court

3. How to become listed: Information in the political process 289

3.1. The UN Committee

3.2. The Council procedure

3.3. A lack of information at all stages

4. Information in the legal process 294

4.1. Human rights guarantees within the European Union

4.2. European Community Courts case law

5. Concluding remarks 303

List of cases 319

CONCLUSION 321

SAMENVATTING 335

SUMMARY 337

ACKNOWLEDGEMENTS 339

INTRODUCTION

COMMUNICATION RIGHTS , DEMOCRACY AND LEGITIMACY : A CASE STUDY OF THE EUROPEAN UNION

The roots of the current system of sovereign nation ‐states are often seen in 1648, when the Peace of Westphalia established the basic principles that have formed the basis for the rules for peaceful coexistence of today’s international community. Ever since some basic assumptions had been agreed upon which have guaranteed sovereignty of the nation ‐state over its territory and citizens, national governments have taken over the task of “governing” those states. The appropriate form of its government has changed continuously, slowly moving from feudal systems of power via constitutional monarchies to representative democracies – following the requirements of changing social, economic and political developments that shaped ideas about citizenship and statehood and created new necessities for governments to cope with.

Now, the very concept of national sovereignty is being called into question by new global challenges that demand supranational cooperation and solutions, such as pollution, climate change, global financial crises and large scale global poverty, which seem to imply a weakening claim to sovereign decision ‐making of the traditional nation ‐state. The League of Nations (established in 1920) was one of the first very ambitious projects of international cooperation that tragically proved its weaknesses in the face of war prone nations on the eve of World War II. The creation of subsequent international organizations – especially the emergence of the United Nations (UN) system – has been one answer to the challenges to traditional concepts of sovereignty as a way of compensating the loss of authority of the nation ‐state in some fields of policy ‐making. Processes of increasing and accelerating international integration, subsumed under the term “globalization” have caused a transition from policy ‐making under monopolistic government control to a more complex system of interrelated processes of decision ‐making at various levels and including new actors alongside governments, which has been described by the term “governance”. 1 This transition took place first at the nation ‐state level in response to the decreasing ability of traditional politics to retain exclusive control over all processes touching on domains within their political responsibility. Policies of privatization and the increasing importance of international trade have been two of the main sources of this decrease. On a global level,

INTRODUCTION

2regulatory regimes have emerged to answer new needs for regulation and coordination of domains that lie beyond the reach of any one nation ‐state alone. 2

However, it can be questioned if the traditional democratic notion of a legitimate way of organizing political community can be stretched as far as to include the mechanisms of international organizations without going beyond an acceptable threshold, “since the means for holding domestic bureaucracies accountable to democratically elected leaders are far stronger and more extensive than the means for holding international governing elites accountable” (Jakubowicz, 2004: 4).

Furthermore, meaningful changes have taken place due to the recent phase of globalization that go beyond the creation of new intergovernmental institutions: the emergence of international law, human rights law and upcoming global civil society movements as well as the transnationalization of the economy (that has been intensified by rapid technological advance, which has for the first time created the possibilities for truly global business entities) have enlarged the group of actors to be dealt with in policy ‐making processes. These changes have impacted the reality of the international community consisting of an exclusive group of state entities, opened up spaces for participation of other actors and called for consideration of other societal institutions. 3

Some scholars, in fact, see the whole concept of the nation ‐state crumble and fall due to a lack of legitimacy and authority in the face of the forces of globalization, which, according to their arguments, leave nation ‐states helplessly toothless towards global capital volatility and an increasing permeability of territorial boundaries in terms of migration, terrorism or information entering via satellite TV or the Internet (e.g. Strange, 2003; Mathews, 1997; Rodrik, 1997).

It is, however, hard to deny that the nation ‐state still is at the centre of major policy decision ‐making and has not lost its ultimate power concerning many areas of regulation. Still, it is equally hard to overlook a whole range of new actors that come into action in domains that had traditionally been government monopolies. The emergence of these new actors is partly the result of deliberate action of governments on the one hand (intergovernmental institutions), and a response to a lack of effective government action and protection (civil society movements) on the other.

All these developments have given rise to a highly complex system that evades

INTRODUCTION

3traditional descriptive vocabulary about national governments and policy ‐making. What the world is witnessing today are processes of “governing without government”. 4 This shift of the locus of policy ‐making power away from the monopolistic level of national governments is also referred to as “multilevel governance”. Another novel aspect of multilevel governance is its overlapping territoriality. The levels of governance are multiple; from the local, national, regional to the global whereas the process of policy ‐making can in fact take place at many levels simultaneously.

The imperative to come up with modes of governance in order to cope with new global challenges that must be tackled in a coordinated manner across borders is indisputable. While the current phase of globalization 5 has certainly been sped up by new means of (tele ‐) communication and technological advancement generally, the manner, speed and priorities that guide this phase of globalization are largely a matter of deliberate choice (Habermas, 2003). It is then equally clear that a change in the mode of governance requires the explication of normative considerations about the principles around which this new system is to be organized. Introducing new actors besides governments holds the promise of more participation, increased accountability, legitimacy and transparency.

Since the 1980s political forces that favour neo ‐liberal economic orthodoxies have prevailed (such as the monetarism advocated by British Prime Minister Margaret Thatcher) over public service centred ideas of the nation ‐state and its tasks (Gray, 2002). Accordingly, the current period of integration on a global scale is mainly driven by economic imperatives in the spirit of a neo ‐liberal paradigm under the leadership of its most powerful advocate, the United States and international organizations such as the World Bank, the International Monetary Fund (IMF) and the World Trade Organisation (WTO). 6 The so ‐called Washington Consensus 7 that has coined worldwide policies of the above institutions results, however, in high pressures on virtually all governments to follow the trend by opening up their markets to foreign direct investment, liberalizing their economies and privatizing their public services, often to the detriment and in direct opposition to national democratic will (Klein, 2008). The mechanisms of growing interrelatedness of the economy on a global – or at least regional – scale have resulted in growing interdependencies and have arguably begun to lead their own lives, making it ever harder for single nation ‐states to escape from its logic. It has also become a common claim made by governments justifying their policies that current trends

INTRODUCTION

4of free trade and liberalization have resulted in a power shift favouring corporate capital and thereby reducing the space to manoeuvre for the nation ‐state (Strange, 2003).

Looking at overall trends in the emerging system of global governance reveals that the democratizing potential of multilevel governance is not (yet) fully being used. In fact, as O’Siochru and Girard (2002: 34) argue, the transition from a hierarchic mode of governance by governments and multilateral organizations, which has prevailed for decades, to a mode of self ‐governance may result in outcomes where market driven interests tend to win it over public service ideals. This judgement was shared by the analysis of global governance in the 1999 Human Development Report, which emphasized the imbalanced nature of the emergence of a global governance system in favour of private, corporate interests. 8

The developments of globalization and global governance provide the context within which several processes of regional integration can be placed. Thus, organizations such as the African Union 9, the North American Free Trade Agreement (NAFTA) 10 or the Latin American