ngos and policy making in bulgaria and serbia: is ... · ngos and policy making in bulgaria and...

NGOs and policy making in Bulgaria and Serbia:

Is consultation enough?

Denitsa Filipova1

Abstract The democratic transitions in Central and Eastern Europe in the early 1990s revived

the scholarly interest in civil society, its organizations and their role in democratization

processes. A quarter century later, the ability of non-governmental organizations to perform

one of their main functions, namely, to act as a transmission belt between the state and

society, creating additional channels for interest articulation, is still largely under-examined.

This paper explores the political participation of NGOs working with children in two post-

communist countries (Bulgaria and Serbia) and aims at providing an in-depth contextual

analysis of the specifics of their interaction with the state. It also explores the significance of

European Union political conditionality for the development of consultation practices in these

two new democracies. Although some institutional mechanisms for public consultations have

been established in both Bulgaria and Serbia in response to EU demands for inclusion of civil

society in policy making, the dialogue between the state and the NGO sector is still limited.

NGOs are often invited to legislation-drafting working groups but the organization and

pattern of communication in these forums reveal one-way flow of information, and state

control over all stages of the process.

Keywords: civil society, democratization, non-governmental organizations, political

participation, public consultations, working groups, EU political conditionality

Introduction

There has been a significant revival in the scholarly interest on civil society

since the 1990s, closely related to the fall of the communist regimes in Central and

Eastern Europe (CEE). The democratic transitions in the region were initiated or

supported by wide social movements which raised high hopes in the international

community that that these countries would develop strong civil societies (Green,

2002). Civil society organizations (CSOs) play an important role in democratization

processes not only through opposing authoritarian regimes and contributing to the

establishment of a democratic polity, but also by improving the quality of governance

within that polity (White, 1994). Organized civil groups can thus perform a variety of

functions from state monitoring and enforcement of performance standards to

transmission of public demands to the political arena (White, 1994; Green, 1999).

1 Department of Politics and International Relations, Macquarie University, Sydney

Alas, the high expectations of thriving civil society were not met in the

democratization countries of CEE, mostly due to the lack of democratic tradition, poor

economic conditions and widespread disillusionment (Howard, 2002) as well as the

limited access to policy making (Green, 2002). Popular membership in associations

and other civil groups is very low, especially when compared to the West, which can

be attributed to the totalitarian past of the post-communist states (Howard, 2002). This

low vitality of organized civil society contributed to the prevalence of state-centred

political agendas with low involvement of social actors in their design which has

undermined the quality and legitimacy of social and political reforms (Dryzek, 2009).

The quality of democratic transitions is thus strongly related to the ability of civil

groups to challenge the exercise of power and the availability of political spaces

where they can articulate citizens’ interests.

However, the actual engagement of civil society organizations in the policy

making process of post-communist states is largely under-examined as studies tend to

focus on the representational features of CSOs rather than their political presence

(Green, 2002). Considerable research (Howard, 2002; Henderson, 2002; Matveeva,

2008; Steel et al, 2007) has been devoted to the weak ties between CSOs and the

grassroots, and the dependence of civil groups on foreign donors but little attention

has been paid to the actual activities and effectiveness of these organizations (Green,

2002). Furthermore, hardly any work has been done on the advocacy initiatives of

CSOs in CEE and their role as mediators between the state and the citizens is greatly

overlooked.

In an attempt to address these gaps in the literature, this paper evaluates the

political role of civil society organizations in the context of post-communist transition

and Europeanization through an investigation of the institutional framework for

participation in decision making. It explores the avenues for inclusion of civil society

organizations in the policy process in two CEE countries, Serbia and Bulgaria. This

particular selection of CEE countries provides an opportunity to compare the

development of deliberative practices in an EU-member state and a candidate country

from the same geographical region with similar socio-economic indicators and

common communist legacy. The degree of cooperation between the state and civil

society organizations through the established mechanisms for consultation on national

level is evaluated using the levels of participation defined in the Code of Good

Practice of the Council of Europe as a major European document on NGOs’

participation in policy making.

Data has been collected on the consultation practices in Bulgaria and Serbia

through interviews with representatives of domestic non-governmental organizations

(NGOs) working on child rights and protection, international and intra-governmental

organizations and state officials in 2013 and 2014. Following the advocacy activities

of NGOs working on children’s issues provides a good opportunity to understand the

practicalities of state-civil society interactions in both countries for two main reasons.

First, these NGOs are very active and visible in both Bulgaria and Serbia, engaging in

the development of policies and strategies, and provision of services. Second, their

role is not politically contested as it is universally agreed that children need care and

protection, and the role of civil society organizations in this area is well accepted. This

is not necessarily the case with sensitive political issues where civil society

organizations can be considered illegitimate and be excluded from the policy making

process for political or security reasons which would make studying consultation

practices through their interaction with governmental agencies difficult if not

impossible.

Before taking a closer look at the advocacy activities of NGOs working with

children in Bulgaria and Serbia, this paper reviews the functions and features of non-

governmental organizations as the most common form of organized civil society in

these countries. The second part of the paper then discusses the importance of EU

conditionality for the development of institutional mechanisms for cooperation

between the state and civil society, and for the inclusion of NGOs in the policy

making process. The third part analyses the specifics of the public consultation

processes in Bulgaria and Serbia, and the predominant practice of collaboration with

NGOs, working groups on draft legislation.

Non-governmental organizations and advocacy

Civil society is defined as the realm of organized social life that is voluntary,

self-generating, (largely) self-supporting, autonomous from the state, and bound by a

legal order or set of shared rules (Diamond, 1994). It is made up of various

organizations and movements that condense and amplify the resonance of social

problems in private life, and pass it on to the political realm or the public sphere

(Habermas, 1992 in Anheier, 2013). These organizations include but are not limited to

trade unions, professional associations, community groups, leisure and sports clubs,

churches, and non-governmental organizations (Matveeva, 2008).

Non-governmental organizations are the most numerous and visible type of

civil society organizations in post-communist countries. This high presence of NGOs

in transition states can be attributed to the historical association of these organizations

with developmental aid projects based on international funding. While the debate on a

precise definition of NGOs is still ongoing, the stance adopted in this paper is they are

formal, functionally differentiated and frequently professional non-profit

organizations which interact both with the state and the grassroots, bridging the

divides between lay and expert knowledge2 (Richter, 1997; Jassanoff, 1997).

NGOs are different from grassroots organizations which are smaller, often

local-level and membership-based, operating without paid staff, reliant upon donor or

NGO support, and working in a network with larger or professionalized groups.

NGO’s work with grassroots groups, often comprised of poor and marginalized

populations, and assistance with capacity building are only some of their functions.

They also pluralize the institutional arena increasing the number of intermediary

organizations between the citizens and the decision makers, check state power, and

provide essential services (Mercer, 2002; Salamon et al, 2000). This paper focuses on

the opportunities for NGOs to perform the role of transmission belt between their

beneficiaries and the decision makers through participation in the policy making

process.

Organizational legitimacy is thus important for the present study as NGOs’

participation in policy making is related to the legitimacy of their claims (Pollard and

Court, 2005). Following the logic of democratic representation, NGOs are often

accused of legitimacy deficit based on their professionalization, service orientation

and lack of membership (Matveeva, 2008; Fagan, 2005). However, many NGOs have

no potential to be representative by membership-logic and often do not claim to

represent members due to the nature of their work (Buth, 2011). Unlike trade unions

or professional associations, NGOs advocate on behalf of individuals who are their

beneficiaries and not members. Thus, the ability of NGOs to legitimize their political

claims through avenues other than traditional membership representation is important

for the present research as NGOs in Bulgaria and Serbia are not membership

organizations.

In the absence of active membership participating in the groups’ decision-

making, organizational representativeness can also be achieved through public trust

(Buth, 2011). In such cases, legitimacy stems from social representativeness or “the

acceptance of groups’ representativeness in the eyes of the constituency, in other

words, the social validity of a representative claim; based on expertise and

organizational credibility” (Buth, 2011). Social representativeness is particularly valid

for service provision NGOs because they are specialized in working with specific

target groups and have thorough knowledge of their beneficiaries’ needs.

The organizational specifics of NGOs as professional organizations with

expertise in a particular field are also related to the advocacy strategies they use.

Advocacy is defined here as “the attempts to change policies or influence the

2 In this paper, the term NGOs is going to be used interchangeably with “non-profit organizations” and “the

third sector”

decisions of any institutional elite, government, and state institutions through

enhancement of civic participation to promote a collective goal or interest” (Boris &

Mosher Williams, 1998). NGOs thus may be in the position to serve as a link between

individuals and the broader political process, providing a way to bring group concerns

to broader public attention and to push for policy or broader societal change, not only

on behalf of those belonging to a group but also on behalf of the general public”

(Salamon et al, 2000). The involvement of civil society organizations in the decision

making process is the essence of advocacy and is a powerful anti-corruption

mechanism (Mercer, 2002).

Varying types of advocacy have been discussed in the literature with some

scholars distinguishing between rights-based and civic advocacy (Boris and Mosher-

Williams, 1998) or between political advocacy that is directed at political institutions

and social advocacy that aims to influence public opinion (Jenkins, 2006). These

different modes can be summarized in the two broad categories of advocacy proposed

by Lang (2013), institutional and public advocacy, which are characterized by

different ways to seek influence, different repertoires of action, and different

communication practices.

Institutional advocacy is defined by Lang (2013) as the attempt to influence

decision making by gaining some degree of insider status in institutions or in

organizations that initiate, prepare, legislate or execute policy change. Institutional

advocacy strategies are primarily tailored to secure access to, and build relationships

within, a given governance body or arena, to activate institutional elites. This

advocacy mode is performed in non-public or semi-public contexts, such as

government commissions and expert consultations, and its primary communication

practices or tools are the sharing of expert knowledge, insider debate and lobbying. Its

aim is to work constructively inside institutions to achieve policy success through

consultation and collaboration. In this process, civil society organizations try to gain

legitimacy by providing expertise or build on their reputation of being effective

project implementers to gain institutional leverage.

Public advocacy, by contrast, aims to achieve policy success by engaging

broader publics and, at its most effective, actively stimulating citizen voice and

engagement in the policy process employing strategies that allow for interactive

communication with citizens with a focus on outreach such as initiating public debate,

synthesizing and amplifying citizen voices (Lang, 2013). The tools of public advocacy

are protest, mobilization of citizens, and calls for action via the media, using strategies

of communication and/or confrontation, and they are more suited to grassroots

organizations which have a large support base.

As already mentioned, NGOs in Bulgaria and Serbia generally are not

membership organizations; they may have volunteers but do not have membership

base or a large base of supporters which to some extent limits their political leverage

and ability to gather support for public campaigns. They are specialized in working on

particular issues and target groups which allows them to develop narrow professional

expertise but restricts their connections with the public. This is a common

phenomenon in post-communist countries where NGOs were founded in the 1990s

through a top-down approach with donor funding to act as watchdogs and capacity

building organizations which to assist with institution building and serve as a proxy

for civil society.

Thus, NGOs working in the field of child rights and protection in Bulgaria and

Serbia are primarily involved in institutional advocacy through the participation in

working groups and public consultations organized by the government. They are

invited to discussions of draft laws and strategies mostly to provide professional and

technical expertise on the needs of their beneficiaries and the groups they work with.

For this reason, the present paper focuses on the avenues for institutional advocacy in

Bulgaria and Serbia as this is the main channel for NGOs in these two countries to

pursue their advocacy goals and influence policy making. The next section of the

paper discusses how the development of such mechanisms for consultation with civil

society organizations in Bulgaria and Serbia was encouraged by the European Union.

The European Union and civil society in Bulgaria and Serbia

One of the major external factors that play a role for civil society development

in the post-communist countries of CEE is the European Union. The EU has strong

influence on the countries in the region on their way to EU accession through its

political and economic conditionality. The leverage of the European Union for

changing the institutional and legislative frameworks in applicant states is especially

strong during the pre-accession period when candidates aim to satisfy accession

criteria and become members of the union. The EU promotes the development of

particular areas in the candidate countries not only through conditionality

requirements but also through the provision of funds for certain strategies and

projects, and technical assistance for state bodies.

The EU has clearly indicated that civil society is an important part of European

integration: it encourages the relationship between civil groups and its own

institutions3, and requires the same from member states and candidate countries. The

3 Communication from the Commission, Towards a reinforced culture of consultation and dialogue - General

principles and minimum standards for consultation of interested parties by the Commission – COM (2002) 704

European Commission’s White Paper on Governance4 from 2001 sets forth the

necessity of a stronger interaction between institutions, local governments, and civil

society on both European and national levels. This need is further recognized in the

EU Enlargement Strategy from 20075 where the Commission makes the development

of civil society in the Western Balkans6 one of the key reform priorities for the

accession of the countries in that region.

However, the requirements of the European Union in the area of civil society

under its political conditionality towards the candidate countries are fairly general and

of recommendatory nature. The EU cedes to the member states to independently

establish their own models of a favorable environment for the development and work

of civil society organizations and for cooperation between state institutions and CSOs.

The aquis communitarire does not contain special rules on these issues and thus the

development of civil society in candidate countries is not subject to the strict EU

conditionality which governs the adoption of all current EU rules (the acquis). These

rules are divided into 35 different policy fields (chapters), covering different sectors,

each of which is negotiated separately. The institutional framework and the legislative

process of the candidate countries is discussed against the general political

conditionality set in the accession criteria and to some extent in different sector –

specific chapters.

The first major EU document introducing political criteria into the assessment

of accession candidates are the Conclusions of the Presidency of the European

Council in Copenhagen in 1993. Section Seven of the Conclusions concerns the EU

relations with the countries of CEE and states that “membership requires that the

candidate country has achieved stability of institutions guaranteeing democracy, the

rule of law, human rights and respect for and protection of minorities, the existence of

a functioning market economy as well as the capacity to cope with competitive

pressure and market forces within the Union”. These requirements may have

subsequently promoted the establishment of nonprofit organizations so as to work

towards their achievement, but the development of civil society organizations per se is

not explicitly mentioned in the document.

The European Commission makes the development of civil society and civil

dialogue one if its key priorities for accession much later in its communication with

the states of the Western Balkans and Turkey7. The issue was first addressed in 2005

4 Communication from the Commission, European governance - A white paper, COM(2001) 428

5 Communication from the Commission to the European Parliament and the Council, Enlargement Strategies

and Main Challenges 2007-2008, COM(2007) 663 final 6 Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Kosovo,

Croatia 7 BSCDN, 2010, Background Analysis on Civil Society and Civil Dialogue Benchmarks

in a Communication by the Commission8 towards Turkey and Croatia, promoting

strengthened civil society dialogue. It is referenced in the EC Enlargement Strategy

from 2005 which states that “a vital part of the Commission’s communications

strategy is the civil society dialogue, which aims to reinforce links between civil

society in the EU and candidate countries in order to improve mutual understanding,

address concerns, and encourage a high quality debate”.

The increasing importance the EC places on the development of civil society in

candidate countries and its role as a partner in the policy making process is reflected

in the EC Progress Reports9 for Serbia

10 and Bulgaria

11. Even though the EC Progress

Reports do not provide strict benchmarks for the development of the third sector and

consultation procedures, the fact that civil society and mechanisms for consultation

are mentioned in most Progress Reports on both countries exerts pressure on the

governments, and provides a reference point for improvement in the legislative and

institutional frameworks for NGOs in Bulgaria and Serbia. The Progress Reports for

both countries have reiterated over the years the necessity to develop coherent

approaches for consultations with civil society and other stakeholders, and their

inclusion in the policy making process.

One way in which the EU explicitly demands the inclusion of civil society in

decision making is through the requirement that NGOs need to be included in the

8 Commission Communication on Civil Society Dialogue between the EU and the Candidate Countries

(COM (2005) 290). 9 The practice of progress reports was established in 1998 in regards to the accession of the post-communist

states of Central and Eastern Europe. In Agenda 2000 the Commission states it would report regularly to the European Council on progress made by each of the candidate countries of CEE in preparations for membership and that it would submit its first report at the end of 1998. Since then Commission has made regular reports to the Council, together with any necessary recommendations for opening bilateral intergovernmental conferences, reviewing the progress of each Central and East European applicant state towards accession in the light of the Copenhagen criteria, in particular the rate at which it is adopting the Union acquis. The Commission's reports serves as a basis for taking, in the Council context, the necessary decisions on the conduct of the accession negotiations or their extension to other applicants. 10

Serbia – along with 5 other Western Balkans countries – was identified as a potential candidate for EU membership during the Thessaloniki European Council summit in June 2003. In 2008, a European partnership for Serbia was adopted, setting out priorities for the country's membership application. Serbia officially applied for European Union membership on 22 December 2009, and the European Commission recommended making it an official candidate on 12 October 2011. The country received full candidate status on 1 March 2012. In September 2013 a Stabilisation and Association Agreement between the EU and Serbia entered into force. In December 2013, the Council of the EU approved opening negotiations on Serbia's accession and the first Intergovernmental Conference was held on 21 January 2013 at the European Council in Brussels. 11

Bulgaria applied for EU membership in 1995 and on 13 October 1999, the Commission recommended Member States to open negotiations with Bulgaria and Romania, the Slovak Republic, Latvia, Lithuania and Malta. Bulgaria became a member state on 1 January 2007. When the country joined the EU on 1 January 2007, it still had progress to make in the fields of judicial reform, corruption and organized crime. In December 2006, the Commission set criteria ("benchmarks") for assessing progress made on these issues.

development of the national strategic documents which are relevant for the EU

integration process, and in the programming of both pre-accession and post-accession

funds.

In Serbia, the financial assistance received through the Instrument for Pre-

Accession Assistance (IPA) is managed by the EU Delegation in Serbia until the

country receives accreditation to manage assistance itself (under the Decentralised

Implementation System)12

. However, the EC invites national, regional and local

authorities, the donor community in Serbia, civil society organisations as well as other

relevant stakeholders to take part and actively participate in the consultative meetings

when adopting the National program on Serbia under IPA components for a particular

year. The Serbian European Integration Office also signed a Memorandum of

cooperation with NGOs in 2005 to create a framework for a more effective

participation of CSOs in public policies impacting on the EU integration.

In Bulgaria, in accordance with the European partnership principle13

, NGOs’

representatives take part in all working groups which design the new Programming

Period for European Structural and Investment Funds, 2014-2020. The overarching

thematic areas to be funded are pre-determined by the EU in its Common Strategic

Framework for Cohesion Policy, Europe 2020. The Bulgarian state is then responsible

for developing a Partnership Agreement, a document setting the national priorities

which will be funded under the ESIF14

, and detailed Operational Programs15

specifying the subareas to be supported and financed in different sectors.

12

Serbia has just recently received accreditation for IPA components I and II on 20/21 March 2014 13

Partnership has been for a long time one of the key principles for implementation of the European Union Common Strategic Framework funds (CSF funds). The partnership principle implies close cooperation between public authorities at national, regional and local levels in the Member States, and with the private and third sectors. Partners should be actively involved throughout the whole programme cycle — preparation, implementation, monitoring and evaluation. 14

European Structural and Investment Funds 15

There were seven Operational Programs (OPs) in Bulgaria for the Programming Period 2007-2013: Transport, Environment, Regional Development, Competitiveness, Technical Assistance, Human Resources Development, and Administrative Capacity. The OPs are a form of financing from the EU Structural funds, the major financial instrument of the EU for the implementation of its cohesion policy. The Operational Programs guarantee the coordination, financial control and implementation of the EU Structural Funds instruments in Bulgaria. Their structure in Bulgaria is organized in accordance with the domestic institutions responsible for national policy in the corresponding sectors. Each OP has its own Managing and Contracting Authority which is the Ministry responsible for the specific sector. The OPs contribute to the realization of the relevant thematic priorities set in the National Strategic Reference Framework (NSRF), a document which defines the role of the Structural Funds for the programming period and presents the strategy for development of Bulgaria for this period, as well as the main goals of Bulgarian policy in relation to EU Funds. The OPs and the Partnership Agreement (which replaces the NSRF) are not yet finalized for the next programming period 2014-2020.

The working groups which draft the Partnership Agreements and the

Operational Programs must include a wide range of partners - representatives of local

authorities, socio-economic partners, civil society organizations, the academic society

and others. There is a mechanism for non-random selection of legitimate and active

NGOs which to participate in these working groups and to provide information to the

other civil society organizations from their particular field. The National Strategy for

Development 2020 which is one of the documents to inform the Partnership

Agreement and other state policies has also been developed in consultation with

NGOs. The extent to which the practice of consulting NGOs through working groups

is employed when national legislation is being developed is discussed in the next

section of the paper.

Working groups as a consultation mechanism

Working groups are the main institutional mechanism for interaction between

NGOs working on child rights and protection, and the state in regards to policy

making in Bulgaria and Serbia. In both countries, working groups are convened by the

government to develop or discuss particular draft legislation or policy strategy and

non-governmental organizations are often invited to provide input to the document.

All NGOs interviewed for this study mention their participation in working groups as

their main advocacy activity and the most significant channel they have for

influencing state policy. The specifics of working groups convened to develop draft

laws and policies in Bulgaria and Serbia are explored in this section of the paper in

order to shed light on the process of interaction between NGOs and the state in the

policy making process.

The wide consultation of stakeholders during policy formulation is strongly

emphasized in the legislative procedures of the European Union through the standards

of the Commission16

as the sole institution with the right to legislative initiative in the

EU17

. The Commission’s legislative proposals are the result of an extensive external

consultation process, which may be conducted in various ways: impact assessment,

reports by experts, consultation of national experts, international organizations and/or

non-governmental organizations, and consultation via Green and White Papers. An

internal consultation process is also launched among the different Commission

departments in order to ensure that all aspects of the matter in question are taken into

account (meetings of thematic inter-service groups; Inter-service consultation).

16

Communication from the Commission, Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission, COM (2002) 704 17

Except where the Lisbon Treaty (Treaty on the European Union-TEU and Treaty on the Functioning of the European Union-TFEU) provides otherwise, in particular judicial and police cooperation in criminal matters

The Commission is further assisted in preparing legislative proposals and

policy initiatives by two types of advisory bodies: 1) Comitology committees, which

are set up on the basis of regulations, directives or decisions and 2) Working groups,

which are established informally by the Commission services. Working groups are set

up by the Commission to assist it in proposing EU legislation or exercising tasks of

monitoring and coordination/cooperation in relation with EU policies. These groups

provide expert advice to the Commission and may consist of national experts but also

experts or stakeholders from business, NGOs, trade unions, academia, etc.

Furthermore, each Directorate General of the European Commission has a number of

working groups, where the EC works with experts from EU governments, other EU

bodies, international organisations, professionals, academics, researchers, NGOs and

the business community to promote its policies in various ways (draw up national

measures and action plans for implementing, consulting stakeholders etc). Thus, the

consultation of interested parties, including NGOs, in the process of development of

draft legislation and policies through working groups is a well-established practice in

the European Commission.

In both Bulgaria and Serbia, the Government, as the holder of executive

authority is charged with policy formulation and implementation, adopting decrees

and other general enactments required for the enforcement of laws, and proposing the

adoption of laws and other general enactments to the National Assembly. In both

countries there is no normative regulation which requires the calling of a working

group for the development of draft laws or strategies.

According to the Bulgarian Law on State Administration, Article 45

(amendment from 2012), a minister can convene working groups for the development

of draft legislation or policy falling within the competency of their institution. The

composition of the working group may include officials from other administrative

units upon the agreement of the head secretary of the institution, and representatives

of NGOs are often invited to these working groups as observers or participants. The

purposes, functions and tasks of the working groups are set in the relevant government

decree or ordinance for their establishment. Thus, working groups are not a

compulsory part of the legislative process in Bulgaria and their organization and

composition is at discretion of the line ministry.

In Serbia, the government also forms law-drafting working groups which are

usually comprised of representatives of state authorities and organisations as well as

experts in specific fields. The Decree on the Principles of the Internal Organisation

and Classification of Jobs in Ministries, Separate Organisations and Government

Services18

lays down the existence of four types of groups that are established by

18

Articles 25-28 of the Decree on the Principles of the Internal organisation and Classification of Jobs

separate enactments: coordinating bodies, project groups, joint bodies and special

working groups.

A project group may be established to perform a task requiring the cooperation

of a number of authorities, i.e. bodies within an authority, and which the civil servants

cannot perform within their regular duties. A joint body may be established to perform

tasks the nature of which requires the participation of several authorities, i.e. bodies

within an authority. A special working group may be established by a head of

department, a director of a body within an authority or a director of a Government

service who is accountable to the Government Secretary General. They may appoint

experts in the relevant fields to the group to provide it with professional assistance in

the fulfilment of the most complex project tasks. Although law-drafting most often

calls for establishing a working group with a mixed composition, i.e. a combination of

civil servants (from different state administration authorities) and external experts,

such a model is not provided for by the regulations19

. There are no provisions

governing the decision- making and working methodologies of working groups.

The legislative framework in both Bulgaria and Serbia shows that the

establishment of law-drafting working groups has not yet been normatively regulated

and has been left to the initiative of those in charge of developing the specific

regulation. In practice, either the competent minister appoints the members of the

working group charged with drafting a regulation/ public policy document or a

regulation/public policy document is drafted by a ministry expert unit and no working

group is formally set up. The documents are then uploaded onto the internet portals of

the government in both countries for short public discussion which consists of

submission of written opinions on the draft document by individuals or organizations.

Where working groups are formally established, the decision on their appointment

also governs the technical issues related to their work, such as their tasks and duration.

The specifics of working groups in Bulgaria and Serbia20

The working groups convened for the purpose of developing draft legislation,

policy, strategy or project (hereto, the working groups) in Bulgaria and Serbia are

organized in very similar ways. They are convened by the line ministry to develop and

discuss a draft document and comprise of representatives of the state administration

and in many cases also external stakeholders invited by the institution. Non-

in Ministries, Separate organisations and Government Services (official Gazette of the RS nos. 81/07 and 69/08). 19

Survey on the Improvement of the Legislative Process in the Republic of Serbia, GIZ, 2012 20

This section of the paper is based on the data collected in interviews with 17 NGOs working on child rights and protection and 11 representatives of state institutions in Bulgaria and Serbia

governmental organizations are often called to participate in such working groups but

the selection mechanism is not clear and varies greatly among institutions. The

decision whether to invite representatives of NGOs or not and from which

organizations is at the discretion of the minister and their administration, and the

groups are not open to the public. In some cases, specific selection mechanisms for the

choice of participants are issued by the ministry for particular working groups but this

is more of an exception than the general rule.

In general, the criteria for selection of participants for the working groups are

unclear in both countries and there is lack of transparent and systematic mechanism

for their organization. The procedure for convening working groups and designation

of tasks and responsibilities within them is not well established but is rather ad hoc

and dependent on the decision of individuals in the ministries. This elusiveness

provides government officials with the opportunity to selectively invite to the working

groups NGOs which they perceive as more compliant and supportive of state policies.

“There is no standard practice for convening working groups; they are usually

convened to develop a specific document and the members are determined by the decision of

the chairperson of the relevant institution – they include representatives of other relevant state

agencies and if they decide, they invite NGOs, the bigger ones with more expertise.” (NGO,

Serbia)

Working groups can be convened both to discuss and amend a draft proposal

already prepared by the ministry, and to develop a draft document. A common

structure of the working groups is having one overarching big group and few small

expert groups focused on specific parts of the content of the policy or strategy in

question. In addition, there usually is a group of jurists which prepares the writing of

the bill to be submitted to the parliament for review and approval. The number of

meetings of the working group and their frequency varies in accordance with the type

and significance of the document being prepared.

Participants in the working group provide written comments and/or oral

suggestions in the discussions at the meetings which are protocoled by the

coordinator. The coordinator of the group who usually is a public servant from the line

ministry is responsible for organizing the submissions into one document. The

coordinator then sends the text of the draft document to the participants via email for

notes and comments a few times until a final version is agreed on. The exchange of

information in the working groups is usually in electronic form via email with track

changes in the working documents. At a later stage, a harmonization table which

contains the suggestions for changes and the submitted options in separate columns is

sent by the coordinator to the participants for internal distribution in the group.

The ministry then decides on the content of the final version of the document

and has no obligation to send that version to the group participants for any further

comments or to provide justification for the adoption of certain proposals and the

rejection of others. The only legal obligation the governments of Bulgaria and Serbia

have in regards to public consultation is to publish the final version of the draft

document on the website of the line ministry and/or the government web portal for

public discussion before submitting it to the National Assemblies. These discussions,

however, usually have very tight deadlines and the consultation results are not

published nor is feedback provided to the individuals and organizations which have

submitted an opinion.

From the point of view of the governments in both Bulgaria and Serbia, the

consultative process is well developed and NGOs have access to policy making at

different levels and on various policies. For the government, the role of NGOs in the

policy process is to provide technical and professional expertise so that the state can

make informed decisions. The state is thus more willing to consult NGOs on technical

matters or in areas where it lacks sufficient knowledge and needs practical insight, and

not on the formulation of the essential core of policies and strategies. The government

sees working groups as just one stage of the legislative process while for NGOs this is

a major avenue for advocacy and they would like to have more dialogue with the state.

“Overall, the Bulgarian government works well formally with the NGO sector, the

NGO sector is a desired partner if the things they propose are narrow expertise on problems

which they encounter; the government listens to NGOs when they are not familiar with the

technology of the process”(NGO, Bulgaria).

The instrumental view of the government on NGOs as providers of

professional expertise makes NGOs feel their participation is perceived by the state

just as a formality which needs to be marked off on paper without engaging in

substantial debates. In some cases, NGOs perceive the working groups’ process as

“pro forma”, organized mostly for the purpose of satisfying the consultation

requirements set by the European Union. For these reasons, NGOs often feel used by

the state to legitimize and validate governmental decisions and strategies. They state

that the invitation to working groups alone is not sufficient for productive

participation in the policy making process and they often feel co-opted in the

development of strategies and draft laws.

“The state does not encourage participation in policy making, sometimes we are

invited in working groups with the purpose to crate visibility of partnership, not so much to

take into consideration the opinion of NGOs – legitimization of administration’s decisions,

without any change happening; we are more cautious about participating in these groups

now”(NGO, Bulgaria).

Most national strategies on children’s right and protection, education and social

inclusion state that these documents have been developed in collaboration with

experts from non-governmental organizations. However, it is almost impossible to

track which organizations have been consulted and what part of their suggestions has

been included in the final version of the strategy. The working documents of working

groups are not made public, there are is no official response provided by the ministry

on the suggestions of the participants in the working groups, and the contributors to

draft laws or policy strategies are not referenced in the final versions of the

documents. Thus, it is very difficult to determine to what extent the discussions taking

place in working groups are authentic and produce objective and well balanced draft

laws and strategies, taking into consideration the suggestions of all sides.

“The government encourages the participation of NGOs and the provision of

expertise but the question with the participation is elusive because it is a different thing to be

heard. NGOs are not worried about not being included but about what difference does it

make”. (NGO, Bulgaria)

Efforts to obtain any of the working groups’ documents did not come to

fruition as the coordinators in the line ministries groups are difficult to identify, they

often change positions and the preliminary versions of various draft laws and

strategies cannot be traced. There was also a systematic failure on the side of NGOs to

provide for this study the comments or proposals they have submitted, and any

responses they have received from the government as part of their participation in

working groups. This information could not be found on their websites and thus the

specifics of their communication with the state in the working groups presented in this

paper is based on the information provided by the NGOs in interviews.

The NGOs describe their participation in working groups as a process of

unequal cooperation where the government sets the agenda and controls the outcome

of the discussions, making the decision on what part of the contributions gets included

in the final document. Most NGOs state that they do not receive any feedback from

the government on the suggestions they have made and their proposals, and there is no

justification provided for the final content of strategies and policies.

“The policy making process is definitely not very participatory, there is lack of

transparency and not enough information – one thing is said in the working groups and

another document is produced in the end.” (NGO, Bulgaria)

The lack of feedback from the government is a major dysfunction in the

existent practice of working groups in Bulgaria and Serbia if they are to be seen as any

kind of deliberative forums. In their present form, working groups lack dialogue

features and are a one-way channel of information from the participants to the

government. The reasons for the government to avoid providing information back to

the stakeholders and interested parties are not clear and may include higher costs, time

limitations and the unwillingness to be held publicly accountable for its decisions.

This absence of dialogue with the state on policy proposals and developments is the

main objection of most NGOs interviewed for this study. They, however, do not have

the capacity or political leverage to make national governments satisfy their requests

for feedback. Thus, they need to find external support for their demands through

references to existing consultation practices developed by the EU or other

international bodies the state feels accountable to.

Working groups and levels of political participation

The framework set in the Code of Good Practice for Civil Participation in the

Decision-Making Process 21

by the Council of Europe (hereto the Code) is used in this

paper to evaluate the level of participation of NGOs in national decision making in

Bulgaria and Serbia through the mechanism of working groups. According to the

Code of Practice, the involvement of NGOs in the different steps of the political

decision making process varies based on the intensity of participation. It identifies

four gradual levels of participation, from least to most participatory: information,

consultation, dialogue and partnership. These are briefly described below.

1. Information - a relatively low level of participation which usually consists of

a one-way provision of information from the public authorities and no interaction or

involvement with NGOs is required or expected.

2. Consultation - a form of initiative where the public authorities ask NGOs for

their opinion on a specific policy topic or development. Consultation usually includes

the authorities informing NGOs of current policy developments and asking for

comments, views and feed-back. The initiative and themes originate with the public

authorities, not with the NGOs.

21

The Code of Good Practice was developed by the Conference of International NGOs (INGOs) at the Council of Europe - the only assembly of NGOs playing an institutional role in an international intergovernmental organization. At the meeting of the Council of Europe Forum for the Future of Democracy held in Sweden in June 2007, participants called on the Conference of International NGOs of the Council of Europe to prepare a Code of Good Practice for Civil Participation which would cover subjects such as mechanisms for NGO participation in decision-making processes and civil society involvement in public policy. The Conference of INGOs subsequently developed the Code of Good Practice for Civil Participation in the Decision-Making Process in 2009. This document lays out the rationale, the framework and the means for enhanced civil participation. It was prepared by experienced civil society representatives, elaborated in a pan-European consultation process, tested and commented by members of national and international nongovernmental organizations (NGOs) and is already being used by activists and representatives of authorities.

3. Dialogue – the initiative for dialogue can be taken by either party and can be

either broad or collaborative. A broad dialogue is a two-way communication built on

mutual interests and potentially shared objectives to ensure a regular exchange of

views. It ranges from open public hearings to specialized meetings between NGOs

and public authorities. The discussion remains wide ranging and is not explicitly

linked to a current policy development process.

A collaborative dialogue is built on mutual interests for a specific policy

development. The collaborative dialogue usually leads to a joint recommendation,

strategy or legislation. Collaborative dialogue is more empowered than the broad

dialogue as it consists of joint, often frequent and regular, meetings to develop core

policy strategies and often leads to agreed outcomes.

4. Partnership - a partnership implies shared responsibilities in each step of the

political decision-making process from agenda setting, drafting, decision and

implementation of policy initiatives. It is the highest form of participation. At this

level NGOs and the public authorities come together for a close cooperation while

ensuring that the NGOs continue to be independent and have the right to campaign

and act irrespective of a partnership situation. Partnership can include activities such

as delegation of a specific task to an NGO, for example delivery of services, as well as

participatory forums and the establishment of co-decision-making bodies, including

for resource allocation.

The Code of Conduct also distinguishes between six stages in the political

decision making process and the above mentioned levels of participation can be

applied to each of the stages: 1) agenda setting, 2) drafting, 3) decision, 4)

implementation, 5) monitoring, and 6) reformulation. The drafting stage which is of

highest relevance for the present paper due to its focus on legislation-drafting working

groups is described in the Code as follows:

“Public authorities usually have well-established processes for policy drafting.

Here NGOs are often involved in areas such as identifying problems, proposing

solutions and providing evidence for their preferred proposal with, for example,

interviews or research. Facilitating opportunities for consultation should be a key

element in this step as well as various forms of dialogue to collect input from key

stakeholders.”

The contributions of NGOs at this stage of the policy making process include

guaranteeing that consideration is given to the needs and interests of the stakeholders

affected by the draft policy, and providing analyses and research on issues under

consideration or raising additional priorities about the drafting process. The

responsibilities of the public authorities, on the other hand include the provision of

timely and comprehensive information, adherence to minimum consultation standards

such as clear objectives, rules for participation and timelines, and last but not least,

responsiveness. Responsiveness is defined in the Code as ensuring active involvement

of relevant public authority representatives; listening, reacting and giving feedback to

consultation responses. The importance of the responsiveness of public authorities is

reiterated for each of the stages of the decision making process.

An important aspect of the Matrix of Civil Participation presented in the Code

is that it shows working groups as the form of interaction with the highest level of

participation for all stages of the policy making process. Working groups are

presented in the Code as an example of partnership between NGOs and the public

authorities; in the drafting stage of the policy making process this partnership is called

co-drafting which is “the active involvement in drafting parts of the legislative

process”.

However, the research findings of the present study indicate that working

groups in Bulgaria and Serbia are not examples of partnership in the policy making

process between the state and NGOs but are instead a form of consultation. The

working group process is entirely controlled by the line ministries: form the decision

on the necessity of a working group, through the selection of participants to the

content of the final version of the draft law or strategy. The initiative and the themes

of discussion originate with the public authorities that subsequently ask NGOs for

their comments and opinion on specific policy developments. The Code of Good

Practice defines such requests for contributions from the state towards NGOs as

examples of consultation, not dialogue or partnership.

Although working groups in Bulgaria and Serbia officially serve the purpose of

including stakeholders, such as NGOs, in the policy making process by giving them

the opportunity to co-draft legislation and national strategies together with state

authorities, the actual role of NGOs in the drafting process is far from clear. They are

being consulted through their participation in working groups but there are no shared

responsibilities in the drafting of legislation between them and the state, and the

outcome of their proposals cannot be determined. The line ministries do not provide

feedback to the NGOs on their submissions, and do not announce the results of the

consultation process with an explanation of the acceptance or rejection of certain

proposals.

Thus, working groups in Bulgaria and Serbia at present are one – way channels

of interaction between the state and the NGOs which satisfy minimal consultation

requirements, and lack the characteristics of dialogue and partnership. Despite the

abovementioned limitations, working groups’ consultations have nevertheless

provided the NGOs interviewed for this study with access to the decision making

process and an opportunity to advocate for their goals in the area of child rights and

protection. In the years to come these consultation practices may become more

participatory through changes in the legislative frameworks in Bulgaria and Serbia,

and the development of a more influential NGO sector with higher advocacy capacity

and popular support.

Conclusions

The study of the involvement of NGOs working on child rights and protection

in policy making in Bulgaria and Serbia presented in this paper shows that the

consultation process in these two countries is not systematic or transparent. There is

lack of well-established deliberative institutions in both countries and the participation

of NGOs in the policy making process is defined to a large extent by the willingness

of the government to include them in consultative forums such as working groups.

The overall impression from the experiences NGOs interviewed for this study

have had in working groups suggests that policy makers in Bulgaria and Serbia do not

have a well-developed understanding of the role of civil society in the development of

policies. NGOs are still perceived as the “necessary evil” and a provider of technical

information, and not as an equal partner by the governments which believe that policy

making is their sole responsibility. However, NGOs in Bulgaria and Serbia also

recognize that their relationship with the state has improved in recent years and

progress has been made towards a more inclusive policy making process, partially as a

result of EU requirements.

EU recommendations and conditionality have played a central role in the

development of consultation practices in Bulgaria and Serbia through its emphasis on

the development of consultation mechanisms for inclusion of civil society in policy

making. However, the vagueness of the requirements set by the European

Commission on civil society in the Progress Reports for Bulgaria and Serbia shows

some limitations of soft political conditionality. The existence of minimal

requirements for public consultation on draft laws in the national legislation of both

countries and the inclusion of NGOs in working groups as a point of access to the

policy process are presented as sufficient for cooperation with civil society by national

governments.

Even though working groups are presented in the Code of Good Practice for

Civil Participation in the Decision-Making Process developed by the Council of

Europe as a form of partnership, which is the highest level of participation, the

practice in Bulgaria and Serbia shows that they are instead a form of consultation. The

governments in both countries convene working groups at their discretion to obtain

expert information and professional insight from NGOs and other interested parties on

a draft law or policy. They do not provide feedback to the participants in the working

groups on their proposals or any explanation on the acceptance and rejection of certain

suggestions in the final version of the draft documents. Working groups thus lack an

essential feature of dialogue: the two-way communication to ensure a regular

exchange of views; they serve as an avenue for the governments in Bulgaria and

Serbia to consult NGOs in the policy making process without engaging in partnerships

and sharing their legislative power.

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