In REALaw 2/2021, I published an article titled ‘A procedural idea of environmental democracy: the ‘debat public’ procedure within the EU framework’. The article is the outcome of research that I carried out between the University of Trento (Italy), the Centre de Recherche et d’Etudes Administratives de Montpellier (France) and the Center for Public Law of the Université Libre de Bruxelles (Belgium). It also benefited from the feedback received at the REALaw Forum for Young Scholars held in Maastricht in October 2020, where it was presented for the first time.
At the core of the article lies the question of whether the débat public procedure can constitute an autonomous research subject with a European dimension; meaning, in other words, whether it is possible to distil a débat public paradigm that can serve as an ideal model for other European legal systems. The idea of the débat public as a potential “model” procedure, and of an independent administrative authority in charge of facilitating the exchange of views among participants in the débat (see below), is grounded on the observation of empirical evidence. The French version of the débat public was first introduced in 1995 by the French legislator, and subsequently has migrated to Italy starting from 2007, first at the regional level and, since 2016, also at the national level. This happened because it proved to be useful to enhance public participation in environmental decision-making. Has this circulation preserved the fundamental features of the débat public “paradigm”? What are such features?
The débat public: an overview
The social context, in which the urgency of listening to the voices of citizens with regards to environmental issues, was felt is that of the 1980s France when even traditional environmentally-friendly political representatives were deemed not sufficiently responsive to citizens’ voices. To make it worse, there was also a legal framework that considered sufficient the involvement of citizens in an overly mature phase of the decision-making processes through the so-called enquête publique procedure, which de facto left no room for the discussion and the amendment of the proposed projects.
It was only in 1995 that the débat public officially found a normative ‘consecration’ with the so-called Loi Barnier that established for the first time the general principle according to which citizens must be called upon to give their contribution on the objectives and main features of projects in the phase of their elaboration. The idea of such a solution came from the other side of the Atlantic, in particular from the Canadian experience of the BAPE (Bureau d’Audiences Publiques sur l’Environnement du Québec). This was – and still is – the first example of an institutional body carrying out participatory procedures on a large scale. With subsequent amendments between 1995 and 2012, the French Legislator fine-tuned its ambition to create a nationwide hub for the management of participatory practices. The result is the use of débat public both for the realization of large-scale infrastructure projects and for the discussion of general options in environmental governance (an example of this is the débat on nanotechnologies). Presiding over these procedures, since 2002, is the Commission Nationale du Débat Public (CNDP), an independent administrative authority with a varied composition of politicians, civil servants, and experts.
In 2007, this model migrated to Italy first at the regional level. The legislator of Tuscany (Italy) passed a new legal provision (L.R. 69/2007, whose main points are summarised here) establishing inter alia, a Commissione Nazionale del Dibattito Public, shaped after the French homologue. The success of this experimentation subsequently led the Italian National legislator to introduce the débat public within the revision of the Public Procurement Code (in particular in Article 22, which delegated to a further regulatory act, adopted in 2018, the operational details). As a consequence, the construction of specific, large-scale infrastructure projects must nowadays be preceded by a débat public. The circulation of the model left behind some features, such as the nature of the CNDP, which in Italy is not an independent authority but a branch of the executive, thus being somehow limited in implementing its mandate. Nonetheless, it is still well possible to distil a débat public paradigm, i.e. a complete set of features that defines it as a specific and recognisable tool contributing to the enhancement of environmental democracy.
Participation, Effectiveness, Authority
From above, an idea of the débat public emerges: although with some differences, the débat public can be qualified as a unique paradigm with specific features. Essentially there are three features: a specific understanding of the notion of public participation; ‘effectiveness’ as the goal of the procedure itself; and ‘authority’, understood as both the existence of the public authority in charge of managing the débat, and the authoritativeness of the outcome decision.
In particular, the notion of participation of the débat public results from the Aarhus Convention and the shared understanding of the constitutional right to participation referred to in the French and Italian Constitutions: a definition according to which the public shall be informed early, when all options are still open, and in an adequate, timely and effective manner, within a procedure allowing sufficient time for informing the public to prepare and participate effectively in the decision-making phase.
This also explains the second central feature of the débat public paradigm: effectiveness. It represents both the goal pursued by the procedure and the impact of the individual contributions on the outcome. In this second regard, the Maastricht Recommendations on Promoting Effective Public Participation prepared under the Aarhus Convention turn out to be particularly useful.
The third element that defines the paradigm is represented by the establishment in France, Tuscany and Italy of public authorities with the specific mandate of managing the débat public. The idea of an independent authority for the management of participatory processes is not exclusive to the field of environmental decision-making. A noticeable example of it also comes from the field of technology assessment, and the Danish case of the Danish Board of Technology Foundation in particular. The modus operandi is very similar: implementing a legal framework that requires that citizens’ voices are heard and taken into account, through the establishment of specific processes in specific cases. As the French CNDP explains in its website ‘participatory democracy is not subject to a very strict legal framework; its exercise is based on a simple yet complex basis: the participation of an unpredictable ensemble of citizens, gathered to debate in a common freedom of speech’. But the ‘authority’ feature also refers to the authoritativeness of the decision taken following any fair participatory procedure: as Ostrom pointed out already in the early 1990s, the more open and participatory the decision-making processes relating to natural resources are, the more the outcome decisions will be perceived as legitimate (Ostrom 1990).
A “peripheries-centre” subsidiarity?
In defining the principle of subsidiarity, Article 5, para. 3 of the Treaty on the European Union establishes that in cases which ‘the objectives of the proposed action cannot be sufficiently achieved by the Member States either at the central level or at the regional and local level’, the European Union has the power to step in when such objectives ‘can be better achieved at the Union level’. It seems to me that in the field of environmental democracy, especially when the construction of cross-border, intra-Union major infrastructure projects is at stake, such a residual competence of the Union might play a substantive role. In practical terms, considering the centrality of the ‘authority’ feature referred to above, this might also include the creation of a supranational agency or authority with a twofold mandate: harmonizing the best practices in the management of participatory procedures at the EU level by coordinating the works of the different national stakeholders, and managing directly participatory EU-wide, cross-border procedures in specific, limited cases to be precisely individuated by EU secondary law. This would prevent the dispersion of knowledge related to the good practices in public participation gathered at the local and national levels. When it comes to participatory procedures, ad hoc and creative solutions are indeed pivotal for their success. That is also why collecting such knowledge could also contribute to the emergence of a shared pan-European understanding of the notion of environmental democracy, going beyond the strictly normative approach of the binding legal sources referred to above. As Professor Falcon affirmed some years ago (Falcon 2010), the role of law in this context is to introduce ‘a regulatory framework that leaves considerable room for integration, that sets out certain points – and is binding on them – but that also leaves many other points to operational determinations’. A further side effect of a harder effort in enhancing European environmental democracy might also be a strengthening of the perceived legitimacy of both the decisions and the institutions implementing them; which, in a time of widely asserted democratic deficit, could be particularly beneficial.
Posted by Alberto Nicòtina (Ph.D. Candidate in Constitutional Law, University of Antwerp)
Suggested citation: A. Nicòtina, “The French “débat public”: a model for European environmental democracy?”, REALaw.blog available at https://realaw.blog/?p=624.
