The Contestation of Expertise in the European Union

This introductory chapter presents the main purpose of the book and sets out the framework through which contestation of expertise is analysed. We explain the need for an institutional approach to understand the growing contestation of expertise, its implications for policy-making and the legal order, as well as potential ways forward. The chapter defends that we need to understand not only the processes and actors in the expertise arena, but rather we also need to focus on the factors and institutional setting that drive such contestation and map its implications. Contestation of expertise is a particular challenge for the European Union and its fragile reliance on multiple channels of legitimation. This introductory chapter lays out the dilemma for the EU and the existential threat of contestation: without recourse to expertise as a basis for policy-making, the EU would be ill-equipped to face the potentially centrifugal tendencies of polarised public opinion or incommensurable policy-preferences. The chapter sets out the ground for the substantive chapters and outlines their main content.

Decision-making in the European Union is often characterized as technocratic and depoliticized. But has European integration also increased the role of experts and expertise in national policy-making? The chapter addresses this issue by developing a theoretical argument about the interaction between the ‘knowledge regimes’ at the European and national levels. It argues that national institutions for the provision of knowledge and advice may adapt to the knowledge architecture at the EU level, through pressure from EU-level institutions, imitation and expert networks. Yet, there are also mechanisms that work towards continued variation, such as institutional complementarities and path dependence. The chapter discusses mechanisms of adaptation or continued divergence within four institutional sites: expert agencies; advisory bodies and consultation mechanisms; parliamentary expertise; and research and education policy and institutions.

Expertise in policymaking can have multiple functions: gaining access to policymakers, increasing the legitimacy of an actor or policy, or informing the broader public about an issue. Lobbying groups can provide policymakers with expertise in exchange for access, or they can politicise an issue by making their message appeal to their members and the public. This chapter examines the latter of these choices—namely, how politicising an issue affects how NGOs and other actors contest expertise in the policy process. We examine the case of TTIP, where NGOs’ use of outside strategies to create politicisation and gain public support lost them legitimacy in the eyes of Commission and business groups. However, certain NGOs were also granted more access to the policymaking process. This indicates that while politicisation can make contestation more polarised, it may also lead to effects whereby more moderate groups are given access and a platform for their claims. Politicisation and expertise-based lobbying may therefore be seen as complements rather than a trade-off.

Considering the growing contestation of expertise in the public sphere, this chapter explores the institutionalisation of expert groups and how the European Commission (EC) has adapted its use of expertise. Drawing on established conceptualisations about the functions of expertise during the policy-making process, our analysis is two-fold. Firstly, we consider macro level changes and broader trends in the entire Expert Groups (EGs) system. Secondly, we examine the micro level changes of expert advice use in two case studies. Based on new data from the Commission’s register of EGs, as well as on interviews, primary and secondary sources, we find improvements with regard to transparency, conceptualised as improved access to the register. The EC has also specified better the classification of different types of experts. Furthermore, the two case studies of EGs—focusing on financial sustainability and lowering limits of industrial pollution—show that the use of expertise is both instrumental and strategic. Concretely, the strategic (consensus-building) use of expertise helped to narrow down the range of viewpoints. Eventually, this facilitated the identification of compromises and acceptable policy solutions in the policy shaping stage of the EU legislative process.

The focus of this chapter is on the organisation and role of expertise in the Common Foreign and Security Policy (CFSP). It more particularly examines how the High Representative/Vice President (HR/VP) and the European External Action Service (EEAS) have organised the gathering and processing of European foreign policy expertise and whether this has led to contestation. Based on a case study on the Asia-Pacific department, it first identifies the rules of the game underlying the organisation of expertise in the EEAS and successively explores the day-to-day practice of these rules. The chapter does not limit itself to subject matter expertise but also includes political expertise, procedural expertise, policy expertise and expertise on experts. Building on social psychology, it focuses on expert groups rather than on individual experts as the basic unit of analysis. The exploratory case study on the Asia-Pacific department learns that the EEAS is in general able to perform as an expertise driven organization, notwithstanding its limited operational budget, successive reductions in staff numbers, and its staff rotating policy. There is a clear division of roles whereby EEAS staff concentrates on expert, political and process expertise, while subject matter and policy expertise are sourced externally. Thanks to flexible internal rules, EEAS staff members are able to identify and work with the required sources rather easily. The way in which the EEAS has organized the gathering and processing of European foreign policy expertise has not led to contestation, either from the member states, the Commission, or the broader public. There are occasional frictions between the EEAS and the member states, as well as between the EEAS and the Commission. However, such tensions are not so much about the use of expertise but rather concern the delineation of competences, political reliability, and different degrees of openness.

Expertise in the form of climate change science plays an indispensable role in governmental decision-making regarding the reduction of greenhouse gases. In order to make the (peer-reviewed) climate science accessible for policy-making, an important task is given to the Inter-Governmental Panel on Climate Change (IPCC). However, reports from the IPCC—together with other scientific documents—may also be used in the courtroom. This contribution explores what role IPCC reports have played thus far in seminal court decisions in the US and Europe. Furthermore, it observes that while the IPCC will stay important for decision-making in the context of the Paris Agreement, the IPCC and its decision-making procedures have not remained uncontested in legal (and other) literature. In tandem with the important role taken or given to the IPCC, fundamental legal questions regarding the production of climate science by the IPCC have to be examined, for which the concept of “global administrative law” may be useful since it examines the legitimacy and accountability of international decision-making. If courts are indeed willing to follow statements from the IPCC or from peer reviewed articles in such a way that this amounts to standard-setting, like a specific emission pathway, the rule-making power of the executive and legislative branch will clearly become less important and may be overturned. While this can be an enormous victory for climate protection, the implied shift of power still needs to be objectively identified and discussed, particularly also in view of helping to avoid unjustified contestation of climate science.

This chapter looks at the various ways in which the WTO dispute settlement bodies (DSBs) have engaged with science and scientific expertise when deciding trade disputes between WTO Members. In this context, it pays a special attention to the approach taken by the DSBs to the problems posed by scientific uncertainty, the development of specific science-based standards (such as insufficiency of scientific evidence or the specificity of risk assessment), and the conceptualization of the applicable standard of review. The chapter concludes that science has become an important and, in some instances, decisive element in the assessment of any national health and environmental-related trade measure. At the same time, it also identifies certain challenges posed by the employment of the strict science-based criteria. In particular, the WTO case law clearly shows that regulatory science is not as value- and policy-free as initially anticipates. Although the DSBs have tried to respond to these challenges by adjusting their science-based standards (e.g. by softening the specificity requirements, accepting that no minimum risk threshold should be required), some specific problems remain either still unrecognized or have been addressed only partially (e.g. the standard of review applicable to scientific determinations). It therefore remains to be seen whether the DSBs will be able to elucidate science-based standards in a way that will satisfy the expectations of the different constituencies.

This chapter explores the public contestation of the scientific advisory institution the Chief Scientific Adviser (CSA) that was established by the European Commission from 2012–2014. Several non-governmental organisations collectively challenged the legitimacy of the position by pointing to two problematic issues: first, the concentration of power in a single adviser to deliver policy advice to the Commission President, and second, the lack of transparency on the contents, documentation, and public disclosure of the delivered policy advice. The controversy is argued to be part of a broader trend of re-evaluating the relationship between scientific advice and policy-making, specifically on the EU’s decision-making processes about how such experts are appointed, how their advice should be used and shared with the public. As such, through investigating the public controversy of the CSA, competing perspectives on how science and policy-making nexus is understood by the European Commission and the public are revealed. This is relevant especially in light of increasing demand for democratising decision-making, and for transparency and accountability of expert advisory bodies in the EU’s policy-making infrastructure.

Bringing together the main insights of the book, this concluding chapter restates the relevance of understanding contestation of expertise in the EU. The chapter shows the main patterns and the consequences of contestation of expertise drawing from the different contributions in this book. The chapter is also forward looking by presenting how we need to re-think the role of expertise in the ‘post-factual’ world. We present four scenarios for future developments and acknowledge that regardless of which direction the EU is headed in the longer term, at present the European Union will have to adapt to the reality of a system in which scientific expertise remains both essential and contested in its contribution to public policy-making. What remains certain is that the contestation of expertise will continue to be a feature of European Union politics and jurisprudence in the 2020s.