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In Whose Interest? Public-Private Interactions in the Governance of Social Harm

Through explaining two cases of social harm: the case of organised drug crime in the port of Rotterdam and regulated social harms like chemical pollution in the PFAS case, Bisschop highlighted the importance of public-private interactions in governing social harm. During her lecture, she answered the question on how to best approach social harm by means of the following three building blocks.

Learning from the past

“The first step is a willingness to learn from the past. It is about using the insights from previous research, about admitting past mistakes”, Bisschop states. She explained that too little action was taken to govern the adverse effects of PFAS. To prevent making the same mistakes and perpetuating social harm, it is essential that organisations and actors adopt a learning attitude and look critically at their own functioning to enable discussions about what is considered acceptable and unacceptable social harm.

Establishing a baseline of unacceptable social harm

The second essential step is establishing a baseline of unacceptable social harm – whether environmental or otherwise. “It is about determining an absolute limit, drawing a line in the sand”, according to Bisschop. It is highly important that in determining these baselines all relevant societal groups and stakeholders are heard and all perspectives considered. “This is exactly what we intend to do in the FORT-PORT project (Focusing On the Right Things in the Port of Rotterdam). We aim to help establish and govern a baseline of unacceptable social harm in the Port of Rotterdam”, adds Bisschop.

“Third and finally, it is about governing that baseline, both proactively and reactively, and doing so through a combination of public and private actors and responses. This also includes restoring the imbalances from the past”, according to Bisschop. Improving governance of social harm is as much about the interactions of public and private actors as it is about the individual characteristics of each actor. Their working methods, goals, norms and values can cause dilemmas in cooperation. So how can public-public and public-private interactions be sustainable, both in micro-interactions and within the macro system?

Strength in interaction

A truly integrated approach is not without its challenges because it requires individual agencies to put their own goals second to the common ones. “The strength lies in public-private interactions, but more diverse ones than interactions between governments and companies alone. It requires markets, states, civil society and individuals to balance out each other’s powers and deliberatively determine and guard the baseline of unacceptable social harm. This requires evidence-based insights into the challenges and success factors and into the working mechanisms of public-public and public-private interactions”, according to Bisschop.

To conclude her lecture, Bisschop states: “I’ve addressed public-private challenges in governing social harm in the Netherlands, a country with a strong government apparatus. Social harms also require tackling in countries and regions with even less of a balance between public and private interests. The Netherlands, therefore, has a responsibility to not only address the social harm of organised drug crime and chemical pollution in their own backyard but also avoid displacing it”.

The Concept of the Public and Private Interest in EU Law

In his inaugural lecture, Repasi dove into the ‘troubled waters’ of public and private interests with references to the law of the European Union.

After Repasi set the definition of interest, he explained what separates the two concepts by means of the historical qualifications of public or private interests. “Liberalism and republicanism distinguish themselves from each other according to the role and the position of the individual in relation to a collective - the state”, Repasi stated.

Is revision necessary?

Due to three developments in recent decades, respectively the rise of transnational private actors, the rise of transnational law and the rise of transnational challenges, Repasi questions whether these traditional attempts to approach the concept of public and private are holding up to the reality of today’s transnational challenges like climate change, guaranteeing financial stability or taming digitalisation. Or whether the concept of public and private interest as it is understood traditionally must be recalibrated, revised, or even given up.

Public over private

As a starting point, Repasi puts forward the hypothesis that ‘private’ interests do not exist, but only interest. It is the qualification of ‘interests’ as public ones that trigger certain far-reaching consequences, which sets public interests apart. This hypothesis is based on an analysis of the functions and consequences attached to interests that qualified as ‘public’ ones through the lenses of conflict and conflict resolution. The qualification of an interest as a public one leads to the application of conflict rules that result in public interests prevailing over other interests; it justifies the deviation from the application of foreign law to an international situation in favour of domestic law (‘ordre public’ control); and, most notably, gives access to the procedures and instruments of public enforcement.

Given the significance of the qualification of interests as public ones, the definition of what is a public interest, is a crucial one. Two alternatives are imaginable: a procedural one – according to which any interest is qualified by the legitimate legislator in accordance with legitimate procedures – and a substantive one – according to which certain interests must be qualified as public ones on the basis of abstract criteria, irrespective of whether the legislator has decided so or not. A substantive definition of public interests runs into very difficult legitimacy issues. If, namely, the functions and consequences attached to public interests are that far-reaching as described, the one who has the power to define public interests must meet high legitimacy standards – legitimacy standards that are set by constitutions for the legislator. Reasons of rule of law and of legitimacy found Repasi’s position in favour of the procedural definition of public interests.

The role of private actors in qualifying interests as public ones

Private actors are involved at multiple moments in the emergence of public interests, the adoption of laws, their implementation and enforcement. This leads Repasi to his main research question of how much dilution in the adoption, implementation and enforcement of a public interest measure by private actors can be allowed before this public interest measure loses its quality of being legitimate and, by that, the privileges attached to the presence of the public interest.  He comes to two conclusions: “First, the involvement of private actors in the creation of public interests, the adoption of public interest measures and in their implementation and enforcement does not per se lead to the conclusion that the public interest itself or the measures pursuing it cannot be considered legitimate anymore. Second, however, there is a degree of involvement of private actors that does not justify it anymore to consider a certain type of measure, at least in their effects, to be one pursuing public interests.”

This leads to the question: when to draw a line between these two? “From my perspective, this depends on the role a private actor assumes. A private actor can be either a market participant or a citizen, or part of the public authority. The latter case is the critical one, whilst the former simply reflects the nature of the private actor. We can therefore exclude the private actors’ involvement as agents of public interests from the list as well as formalised citizen’s participation in the creation of public interests.”

The divide is outdated

To conclude his lecture, Repasi stated: “The concept of the public and the private interest as it is reflected by the public-private divide is outdated. For continental Europe, this is mainly because of EU law that is shaking up the hierarchical relationship between public and private interests, hijacking the private interests of citizens and market participants in order to advance the public interest of European integration. The pillars of the new concept of ‘public interest’ are legitimacy and the degree of involvement of private actors. The more critical the involvement of private actors becomes, the more a public interest measure loses its legitimacy and, by that, its access to the functions of public interests, namely preferential treatment in conflicts of interests and laws and public enforcement.”