European Union: Power and Policy-Making (European Public Policy)

European Union: power and policy-making

This book brings together a very impressive team of leading researchers in a sophisticated analysis of the exercise of political power in the European policy process. The book, which is based on recent research findings, is divided into four parts: theoretical and historical perspectives; agenda-setting and institutional processing; channels of representation; and the EU as a supranational state. The book is designed as a comprehensive introduction to the European Union policy process. It explains how policy is made at the European level and the role of all the major participants—from the member states themselves to pressure groups—in the integration process. It also illustrates the way in which public policy in the member states has become, increasingly, European public policy. European Union: Power and Policy-Making will be an ideal text for students of European Union politics and European policy-making. Its clear style and up-to-date coverage will also appeal to those with a professional interest in the subject, from MEPs and Commission officials to lobbyists. Jeremy J.Richardson is Professor of European Public Policy at the University of Essex and the author of a considerable body of work on the European policy process. He is the founder and editor of the Journal of European Public Policy.

European Public Policy Series Edited by Jeremy Richardson, University of Essex European Public Policy Institute, University of Warwick

This series provides accessible and challenging books on three aspects of European public policy: • the European Union policy process and studies of particular policy areas within the EU; • national and comparative policy studies with a significant interest beyond the countries studied; • public policy developments in non-EU states. Books in the series come from a range of social science disciplines but all have in common the objective of analysing the dynamics of the policy-making and implementation process via empirical work guided by relevant theory, thus furthering our understanding of European integration. Books in the series are accessible beyond the academic and student market, to those who are directly involved in public policy within Europe. Titles in the series include: Democratic Spain Reshaping external relations in a changing world Edited by Richard Gillespie, Fernando Rodrigo and Jonathan Story Forthcoming titles include: Adjusting to Europe The impact of the European Union on national institutions and policies Edited by Yves Mény, Pierre Muller and Jean-Louis Quermone Regulating Europe Giandomenico Majone Policy-making in the EU Conceptual lenses and the integration process Laura Cram Policy-making, European Integration and the Role of Interest Groups Jeremy Richardson and Sonia Mazey EU Social Policy in the 1990s From pluralism to corporatism? Gerda Falkner The European Commission Policy styles and policy instruments Jeremy Richardson and Laura Cram Remaking Social Europe Richard Goma

European Union Power and policy-making

Edited by Jeremy J.Richardson

London and New York

First published in 1996 by Routledge 11 New Fetter Lane, London EC4P 4EE This edition published in the Taylor & Francis e-Library, 2003. Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 Selection and editorial matter © 1996 Jeremy J.Richardson; individual chapters © 1996 the contributors All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data A catalogue record for this book has been requested ISBN 0-203-43443-9 Master e-book ISBN

ISBN 0-203-74267-2 (Adobe eReader Format) ISBN 0-415-12916-8 (hbk) 0-415-12917-6 (pbk)

Contents

List of tables Notes on contributors Preface

vii viii ix

Part I Theoretical and historical perspectives 1 Policy-making in the EU: Interests, ideas and garbage cans of primeval soup Jeremy Richardson 2 The development of the European idea: From sectoral integration to political union Sonia Mazey 3 Integration theory and the study of the European policy process Laura Cram

3

24 40

Part 2 Agenda-setting and institutional processing 4 Agenda-setting in the European Union Guy Peters

61

5 A maturing bureaucracy? The role of the Commission in the policy process Thomas Christiansen

77

6 From co-operation to co-decision: The European Parliament’s path to legislative power David Earnshaw and David Judge

96

7 National sovereignty vs integration? The Council of Ministers Geoffrey Edwards

127

8 The national co-ordination of European policy-making: Negotiating the quagmire Vincent Wright

148

9 The Court of Justice and the European policy process Daniel Wincott

170

v

vi Contents Part 3 Channels of representation 10 European elections and the European voter Mark Franklin

187

11 The logic of organisation: Interest groups Sonia Mazey and Jeremy Richardson

200

12 By-passing the nation state? Regions and the EU policy process Michael Keating and Liesbet Hooghe

216

Part 4 A supranational state? 13 Enlarging the European Union Gerda Falkner

233

14 The EU as an international actor Michael Smith

247

15 A European regulatory state? Giandomenico Majone

263

16 Eroding EU policies: Implementation gaps, cheating and re-steering Jeremy Richardson

278

Index

295

Tables

6.1

Co-operation procedure. Acceptance of EP amendments by Commission and Council (332 proposals completed by December 1993) 6.2 Selected common positions 6.3 Co-decision legislation adopted and published by February 1995 10.1 Turnout (%) in European elections by country, 1979–94 10.2 Effects on turnout of contextual factors 10.3 Those voting differently than they would have voted in national elections, as a percentage of those voting in the European elections, 1989–94

vii

102 103 111 192 193 194

Notes on contributors

Thomas Christiansen is a Human Capital and Mobility Postdoctoral Research Fellow at the University of Essex Laura Cram is Jean Monnet Lecturer in European Public Policy at the University of Strathclyde, Glasgow. David Earnshaw is Director of European Government Affairs and Public Policy, Smith Kline Beecham. Geoffrey Edwards is a Fellow of Pembroke College and Jean Monnet Director of European Studies in the Centre of International Studies, University of Cambridge. Gerda Falkner is a lecturer in Political Science at the University of Vienna. Mark Franklin is Professor of Political Science at the University of Houston, Texas, and Visiting Professor at the University of Strathclyde, Glasgow. Liesbet Hooghe is Assistant Professor of Political Science at the University of Toronto, Canada. David Judge is Professor of Government at the University of Strathclyde, Glasgow. Michael Keating is Professor of Political Science at the University of Western Ontario, Canada. Giandomenico Majone is currently external professor at the European University Institute, Florence. Sonia Mazey is a Fellow of Churchill College, and Lecturer in Social and Political Sciences at the University of Cambridge. Guy Peters is Maurice Falk Professor of American Government at the University of Pittsburgh and is co-editor of Governance. Jeremy Richardson is Professor of European Public Policy at the University of Essex and is editor of the Journal of European Public Policy. Michael Smith is Professor of European Politics at the University of Loughborough. Daniel Wincott is Lecturer in Political Science and International Studies at the University of Birmingham. Vincent Wright is a Fellow of Nuffield College, Oxford, and is co-editor of West European Politics. viii

Preface

Nineteen ninety-six saw the start of another Intergovernmental Conference (ICG) dominated by many of the old and diverse issues which have dogged the European Community and the European Union since the first steps towards integration were taken in 1951. Issues such as: the powers and organisational rules of the main European institutions; relationships between those institutions; the difficult problems presented by the possibility of further eastern and southern enlargement; the familiar issue of ‘deepening’; the role of non-governmental actors such as interest groups and citizens, and above all, the fundamental question of whether the gradual erosion of national sovereignty should continue or, indeed, whether it might actually be reversed, are all still on the agenda. These fundamental political questions are being discussed in the context of strong globalisation tendencies and increased pressures for transnational regulation which force all policy actors, public or private, to recognise the benefits of collective action. The familiar cries of Europe in ‘crisis’, of Europe having lost its way, of Europe entering another period of Euro-sclerosis are all being heard. However, like the many predictions about the collapse of the economy of this or that state that we have heard periodically since the Second World War, the doomsters are almost certainly exaggerating the current difficulties and failing to appreciate just how resilient most political systems are. It takes long-term and fundamental trends, as developed in the old Soviet bloc, for systems to fail. This is because modern, pluralistic systems are dynamic learning organisations, capable of change. The key institutions and individuals operating those systems have enough intelligence to know when to draw back, when to change tack, and when to lie low and let issues stew. They also have a keen sense of the risks of moving away from a process that has been under way for decades, in favour of high risk go-it-alone strategies in the face of the globalisation trends referred to above. Perhaps it is foolish to make political predictions, but I suspect that the current period of selfdoubt and criticism will be just one more phase in what has been a fairly continuous process of Europeanisation. Like teenage children the European Union may be in one of its many ‘difficult’ phases but this should not blind us to the busy ‘low polities’ of European integration which seemingly marches on. If this assertion is correct, what is the main purpose of this book? Its task is straightforward, albeit difficult to fulfil adequately in one reasonably short volume. It is to explain to students of European integration (and to some degree to students of the politics of individual states which are now embedded in the EU policy process) the ways in which power is exercised within the EU today. Our focus is on the policy-making process, as that ultimate arena of power in society. What role do institutions and other actors play in deciding what European policy is about and in ix

x Preface determining the content of the enormous mass of European legislation now in place? Thus, whatever labels we might attach to the EU—federal or intergovernmental for example—they are not the main focus of this volume. Suffice for our purposes that the Union constitutes a very ‘productive’ and maturing system of public policy-making within which an increasing number of different types of policy actor are involved. There is a ‘policy-making engine room’ at work which seems to push along the Euro-sceptics such as Mrs Thatcher as well as Euro-enthusiasts such as Mr Kohl. Our efforts should be judged by whether or not we have assisted students in developing their understanding of the institutions and processes involved in this dynamic—from the ways in which the rather fluid policy agenda is set in the European Union, to the ways in which policy is implemented or (often) not in the member states which have signed up to collective policy decisions. As editor of this volume, which is part of the Routledge European Public Policy Series, I have one overriding debt. The volume could not have been produced without the enthusiasm of the many contributors, despite so many competing demands on their time, and their considerable expertise in the European policy process and its development. Thanks are also due to the publishers, Routledge, and to the then Politics Editor, Caroline Wintersgill, for their patience over the many delays (mostly due to me it should be added!) in completing the volume. I also owe a debt to Julie Lord for helping to prepare the manuscript for publication. Finally, I owe thanks to baby Tess, who arrived unexpectedly early but who finally decided to sleep through the night, enabling me to conclude the final stages of this volume. As the youngest European to be involved (albeit indirectly) in this book, I dedicate it to her in the hope that she will grow up in a Europe which is at peace, democratic, and even efficient. Jeremy Richardson University of Essex, March 1996

Part I Theoretical and historical perspectives

1 Policy-making in the EU Interests, ideas and garbage cans of primeval soup Jeremy Richardson

Many people have proposals they would like to see considered seriously, alternatives they would like to see become part of the set from which choices are eventually made. They try out their ideas on others in the policy community. Some proposals are rapidly discarded as somehow kooky; others are taken more seriously and survive, perhaps in some altered form. But in the policy primeval soup, quite a wide range of ideas is possible and is considered to some extent. The range at this stage is considerably more inclusive than the set of alternatives that are actually weighed during a shorter period of final decisionmaking. Many, many things are possible here. (Kingdon 1984:128)

THE EU AS A POLICY-MAKING STATE: THE IMPORTANCE OF MULTIPLE POLICY STAKEHOLDERS IN THE EXERCISE OF ‘LOOSE-JOINTED’ POWER PLAY One of the main attributes of the nation state is the ability to make ‘authoritative allocations’ for society. In practice this means an ability to formulate and implement public policy programmes governing the operation of society. Whether the European Union (EU) can be considered a fully fledged state is not the concern of this chapter. However, it is beyond dispute that the EU has acquired for itself at least the policy-making attributes of a modern state, across an increasingly wide range of policy sectors. Indeed, much of the criticism of the EC during the Maastricht debates was centred upon the alleged ‘excessive’ policy-making role of the EC in general and of the Commission in particular. The anti-Maastricht argument was that the EC had become a ‘nanny’ state, overregulating the economic and social life of member states. In practice, the erosion of national sovereignty means the erosion of the power of the member states to decide exclusively much of their public policy via domestic policy-making processes and institutions. Empirically, it is beyond dispute that the EU level is now the level at which a high proportion (possibly 60 per cent) of what used to be regarded as purely domestic policy-making takes place. The locus of decision—and therefore power—has shifted. A much more complex structure of policy-making has developed, encompassing a much wider range of public and private policy actors. All of these actors— especially national governments—are having to adjust to the empirical reality of this situation. They have all ‘lost’ some power in a common pooling of policy-making sovereignty. For those European nations who are members of the EU (and for many who are not), at least two policy-making systems now co-habit—domestic and EU policy systems. Though state-like in at least this key attribute, the EU is, of course, a complex and unique policy-making system. Its multi-national and neo federal nature, the extreme openness of

3

4 Jeremy Richardson decision-making to lobbyists, and the considerable weight of national politico-administrative elites within the process, create an unpredictable and multi-level policy-making environment. Even the relationships between key institutions—such as the Commission, the European Parliament (EP) the Council of Ministers (CM), and the European Court of Justice (ECJ) are still in a considerable state of flux as many of the chapters in this volume demonstrate. Although clearly a very productive policy process, the EU political system cannot be said to be a stable one, as the basic constitutional architecture is still very much in dispute. At best the EU policy process might exhibit some stable patterns of cross-national coalition building; at worst it may exhibit some of the extreme aspects of a garbage can (Cohen et al. 1972) model of decision-making. It is no surprise, therefore, that the EU regulatory system has been described as a ‘patchwork of different national regulatory styles’ (Héritier 1996). At this relatively early stage in the development of the EU policy process it is difficult to formulate reliable descriptions—let alone theoretical models—which will capture more than a few aspects of the policy process as a whole. The objective of this chapter is, therefore, limited to an analysis of the possible utility of what has become the dominant ‘model’ for analysing the policy process in Western Europe—the so-called policy community/policy network model. Fortuitously, approaching EU policy-making via this perspective also enables us to utilise related approaches to the study of policy-making which emphasise the importance of ideas, knowledge and expertise, rather than pure ‘interest’. It will be argued that there are inherent similarities in these two ‘actor-based’ approaches, even though they originate from quite different academic perspectives. Essentially they both focus on sets of actors as stakeholders in the policy process. Elsewhere in this volume, contributors analyse the roles of ‘official’ or ‘public’ stakeholders (e.g., national governments, the Commission, the EP, the ECJ). However, all of these actors are influenced by ideas, knowledge, and private interests. Thus, over thirty years ago, E.E.Schattschneider reminded us that the supreme instrument of political power was the ability to determine what politics was about (Schattschneider 1960). Although this is a neglected aspect of the workings of the EU (see Peters in this volume), evidence does suggest that the EU agenda-setting process is especially problematic because of its transnational nature and because of the wide range of state and non-state actors involved in the EU policy process (Mazey and Richardson 1993). Moreover, as with nation states, the EU’s policy agenda is permeable to extra-territorial influences—from non-EU states such as the US and Japan, but also from international standard-setting bodies and organisations such as the World Health Organisation (WHO) (Richardson 1994a). Analysis of the role of ‘communities’ of experts— so-called epistemic communities (see below), is important in the EU because of their essentially transnational focus. The policy community/policy network approach, in contrast, appears to have some utility in assisting our understanding of the ways in which agenda issues are translated or ‘processed’ into technical and workable EU legislative proposals—especially in technical areas of ‘low polities’ (Hoffmann 1996). Other related concepts from public policy, which attempt to integrate analyses of ideas and interests—such as Sabatier’s ‘advocacy coalitions’ and Kingdon’s ‘policy streams’ may also be useful in assisting our understanding of the policy dynamics of the EU, especially if we view the EU policy process as essentially a multi-level, multi-arena game. They may enable us to better understand how all decisionmakers in the EU, public or private, national or supranational, come to ‘frame’ public policy problems (Rein and Schön 1991). The ‘level of analysis’ question is, of course, important. Thus, it may be mistaken to look for one model of the EU policy process. Within the EU, policy can be determined at a number

Policy-making in the EU 5 of levels and, as at the national level, the policy process goes through a number of stages. Also, particular policy areas may be episodic themselves, exhibiting different characteristics in different periods of time. Different models of analysis may be useful at different levels within the EU and at different stages of the policy process. For example, if we were to conceptualise the EU policy process into four stages—agenda setting, policy formulation, policy decision, and policy implementation—we might need to utilise rather different conceptual tools in order to fully understand the nature of the processes in each stage. For example, the epistemic communities approach might be particularly useful in understanding stage one, the policy community/network model for stage two, institutional analysis for stage three, and inter-organisational/behaviour and implementation analysis for stage four. Even then, reality is likely to be much more messy, suggesting that we need a fairly eclectic use of concepts and models. ‘Grand theory’ must await a much stronger empirical base, bearing in mind that there are major cross-sectoral variations in EU policy styles. For example, some policy areas may be highly pluralistic (e.g., environmental policy) and others may exhibit some corporatist tendencies (e.g., agriculture). In searching for useful theories and concepts, the notion of the EU as a policy-making state is important. As Hix has argued, traditional international relations approaches to analysing the EU have tended to focus on the question of degrees of integration. As he suggests ‘since its birth in the 1950s…the EC has mainly been studied as an example of supranational integration of, or intergovernmental co-operation between, (previously) sovereign nation-states’ (Hix 1994:1). The thrust of his argument is that now that the EU is more than an ‘international organisation’, theories of international politics are of limited use for studying the internal politics of the Community. His solution—the use of comparative politics approaches—is not inconsistent with the thrust of this chapter, except that the emphasis here is more on the use of concepts used in the analysis of public policy and decision-making. Our central argument here is that the ‘stuff of European integration is as much about detailed, often technical, Euro-legislation (and especially Euro-regulation) as it is about his high politics issues such as monetary union or the creation of a European superstate. While these issues are, of course, absolutely crucial, and certainly absorb the interest of national governments, the ‘European policy game’ continues to be played at the detailed policy level and continues to attract the attention and efforts of a plethora of interest groups and others in the manner predicted by the neo-functionalists. Low politics this may be, in the Hoffmann terminology (Hoffmann 1966), but it is probably the nine-tenths of the EU ‘policy iceberg’ that is below the water line. There is an increasing amount of political activity at this level within the EU and some means has to be found of analysing and conceptualising it. Moreover, this policy-making activity is not simply a question of intergovernmental relations—if only because such a wide range of non-governmental actors is so obviously involved, at both the national, EU and extra-EU levels. EU policies are not simply the outcome of interstate bargaining even if the policy process usually appears to culminate in this way. It is a complex process involving different types of actors—institutional and noninstitutional, governmental and non-governmental, with all actors involved in what Tsebelis terms ‘nested games’ (Tsebelis 1990). However problems and issues arrive on the political agenda, it is a phenomenon of modern government that procedural mechanisms (formal and informal institutions, formal and informal rules) are devised to bring the various stakeholders together in order to thrash out a solution which is ultimately acceptable. Hence, modern government is not just characterised by ad-hoc and

6 Jeremy Richardson permanent committees, but by a ‘procedural logic’ which brings policy actors together in some kind of relationship—hence the popularity in public policy analysis of approaches utilising variants of the ‘policy network’ approach. POLICY COMMUNITIES, POLICY NETWORKS, AND ISSUE NETWORKS It is worth remembering that the term ‘policy community’ was originally used (at least in Britain) with a quite deliberate emphasis on community, and at a time when policy stability rather than policy change seemed more common. Moreover, it was developed as a counter-weight to more traditional analyses of the British policy process. For example, the sub-title of Governing Under Pressure (first published in 1979) was provocative in claiming that Britain was a postparliamentary democracy: the focus of the analysis was on the informal relationships between different policy actors rather than on the roles of formal institutions. The concept was in part developed to counteract the then dominance of (old) institutionalism and to take account of the growing body of empirical research on the day to day processes of policy-making. Thus: In describing the tendency for boundaries between government and groups to become less distinct through a whole range of pragmatic developments, we see policies being made (and administered) between a myriad of interconnecting, interpenetrating organisations. It is the relationship involved in committees, the policy community of departments and groups, the practices of co-option and the consensual style, that perhaps better account for policy outcomes than do examinations of party stances, of manifestos or of parliamentary influence. (Richardson and Jordan 1979:73–4)

The term policy community was meant to convey a very close and stable relationship between policy actors—somewhat close to the dictionary definition of community—‘joint ownership of goods, identity of character, fellowship (…of interest)’. This formulation was in fact prompted by Heclo and Wildavsky’s study of the spending community in Whitehall, which they likened to village life (Heclo and Wildavsky 1974). Use of the word community also implied some notions regarding level of analysis. If policy actors could be brought together in a long-term and stable relationship which presented the prospect of an exchange relationship, then this was most likely at the sub-sectoral or even micro level. There was also an implication of stable policies as well as stable relationships and a stable membership. Thus, it was argued that: The logic of negotiation also suggests that policy-makers in both government and groups will share an interest in the avoidance of sudden policy change. Working together they will learn what kind of change is feasible and what would so embarrass other members of the ‘system’ as to be unproductive. Members of the system will begin to debate in the same language (if not with the same values), and arguments will be treated seriously only if discussed in these common criteria. There is a role diffusion in that all members—government officials, academic experts and group officials—become policy professionals. (Jordan and Richardson 1982:93–4)

In practical terms, this sectorisation and indeed secularisation of policy-making was seen as being operationalised at a middle management level in policy formulation (Jordan and Richardson 1982:88). Thus, there was a considerable note of caution in these early formulations of the concept. The implication was that the concept had its greatest utility when analysing a particular level of decision—almost exactly the thrust of the argument in this chapter in terms of the EU

Policy-making in the EU 7 policy process. Thus, the current rush to use network analysis at this supranational level needs tempering by reference to what its original proponents claimed. Jordan has more recently further emphasised both the stability of policy communities and the existence of shared views. Thus he sees policy communities as: A special type of stable network, which has advantages in encouraging bargaining in policy resolution. In this language the policy network is a statement of shared interests in a policy problem: a policy community exists where there are effective shared ‘community’ views on the problem. Where there are no such shared views no community exists. (Jordan 1990:327, original emphasis)

The explicit assumption of stability of relations and stability of actor participation (almost exclusiveness) is also evident in more recent attempts to refine the original policy community concept. Thus, as Judge points out, Rhodes repeatedly states (Rhodes 1985:15; 1988:78; 1990:204; Rhodes and Marsh 1992a:182; Rhodes and Marsh 1992b:13) that: policy communities are networks characterised by stability of relationships, continuity of a highly restrictive membership, vertical interdependence based upon shared delivery responsibilities and insulation from other networks and invariably from the general public (including Parliament). (quoted by Judge 1993:122)

The difficulty of using policy community in this more refined but quite restrictive sense is that it appears to reject the notion that new ‘members’ might be admitted and absorbed relatively easily. Moreover, the Jordan formulation places emphasis on a shared community of views, suggesting that policy communities do not exhibit very much conflict. However, in many cases (rather like families and villages) the community holds together—in the sense of exchange relationships—despite quite serious disputes and despite often having to admit new members. If ‘policy community’ is to be used in the very restrictive way in which both Jordan, and Marsh and Rhodes, appear to be using it, it is unlikely to be of much utility as a concept in analysing EU policy-making. This is because the differences between national systems (e.g., for banking, air transport, pollution control) are often so wide as to preclude a shared ‘community of views’ (Jordan 1990, cited above) between the wide range of actors claiming legitimate stakeholder status. Moreover, even at the national level, it might be argued that the emphasis on stability and consensus is one of the causes of the intellectual fatigue which the policy network concept now exhibits. Even national politics in the 1980s and 1990s has been very different to the politics of the 1960s and 1970s—not least because of a considerable degree of radical policy change and the mobilisation of new actors (Dudley and Richardson 1996). Also, the steady extension of the Europeanisation of national policy processes has itself challenged the organisation and power of national networks of actors. There is also a danger that these definitions significantly underestimate the linkages between different policy communities—now a very common feature of the policy process at the national and especially at the EU level. Indeed, Jordan and Richardson had themselves begun, as early as 1982, to emphasise the linkages between policy communities, both within policy sectors and between policy sectors. They argued that ‘there will be many linkages between various policy communities in each sector (for example, between branches of medicine, social services and social policy)…but there will also be some linkages between sectors…what evidence we have suggests that consultation of various types is more extensive than formerly’ (Jordan and Richardson 1982:89–90).

8 Jeremy Richardson The gradual shift in emphasis—from a world of policy-making characterised by tightly-knit policy communities, to a more loosely organised and therefore less predictable policy process— was also reflected, somewhat earlier, in the US. The seminal work (on either side of the Atlantic) is still Heclo’s 1978 analysis, which began to re-direct us towards policy dynamics rather than policy stability. Just as many authors (including this one!) were emphasising stable policy communities, Heclo had observed a trend which appears to be still running strongly at both the national and international levels—namely that policy problems often eventually escaped the confined and exclusive ‘worlds’ of professionals and are resolved in a much looser configuration (if indeed such a structured term can be used) of participants in the policy process. Heclo argued that the nature of power in Washington had begun to change—exercising power was not as much fun as it used to be in the ‘clubby’ days of Washington politics (Heclo 1978:94). Politics was less ‘clubbable’ because more and more groups had entered the policy process. Thus ‘as proliferating groups have claimed a stake and clamoured for a place in the policy process, they have helped diffuse the focus of political and administrative leadership’ (Heclo 1978:94–5). The process had gone so far, he argued, that: With more public policies, more groups are being mobilised and there are more complex relationships among them. Since very few policies ever seem to drop off the public agenda as more are added, congestion among those interested in various issues grows, the chances for accidental collisions increase, and the interaction tends to take on a distinctive group-life of its own in the Washington community. One scene in a recent Jacques Tati film pictures a Paris traffic circle so dense with traffic that no one can get in or out; instead, drivers spend their time socializing with each other as they drive in endless circles. Group politics in Washington may be becoming such a merry-go-round. (Heclo 1978:97)

In the context of the EU, all we need do is substitute for Washington the traffic circle in front of the Commission’s Berlaymont building—or the professional and social networks in Kitty O’Shea’s bar just off the traffic circle. Correctly, Heclo argued that we needed to re-think our notions of political power, existing conceptions of power and control were not well suited to the ‘loose-jointed’ power play of influence that was emerging. In a now classic formulation, he argued that: Obviously questions of power are still important. But for a host of policy initiatives undertaken in the last twenty years it is all but impossible to identify clearly who the dominant actors are. Who is controlling those actions that go to make up our national policy on abortions, or on income redistribution, or consumer protection, or energy? Looking for the few who are powerful, we tend to overlook the many whose webs of influence provoke and guide the exercise of power. These webs, or what I will call ‘issue networks’, are particularly relevant to the highly intricate and confusing welfare policies that have been undertaken in recent years. (Heclo 1978:102)

Again one is reminded of the EU policy process, where interest groups and national governments often feel that policies come from ‘nowhere’ (Mazey and Richardson 1993). Indeed, Dyson borrows a term from Heinz et al. (1993) to describe the policy processes relating to European Monetary Union (EMU). Conventional wisdom might suggest that the German state, and especially the Bundesbank, have such ‘state strength’ (Krasner 1978:55) as to secure their desired pay-offs, but the policy process seems much more messy and complex. Dyson observes, ‘there is little evidence that a single actor—whether the Commission or Ecofin or the Bundesbank—occupies the central policybrokering role within the EMU process in any continuous sense, capable in a more or less

Policy-making in the EU 9 autonomous way of promoting compromise or imposing settlements. In this sense, the EMU policy process has a “hollow core”’ (Dyson 1994:332). Even Heclo, however, was reluctant to accept a total disorder thesis, making at least two important qualifications to the new model of confusion, of diffuse power, and of lack of accountability. He pointed out a paradox of disorder and order when he argued that there was a second tendency cutting in the opposite direction to the widening group participation in public policy. In the midst of the emergence of the loose issue networks cited above we could also see what he called ‘policy as intramural activity’. Thus: Expanding welfare policies and Washington’s reliance on indirect administration have encouraged the development of specialized subcultures composed of highly knowledgeable policy-watchers. Some of these people have advanced professional degrees, some do not. What they all have in common is the detailed understanding of specialized issues that comes from sustained attention to a given policy debate. (Heclo 1978:49)

In a less quoted passage, he deftly links the two apparently contradictory trends, as follows: Whatever the participants’ motivation, it is the issue network that ties together what would otherwise be the contradictory tendencies of, on the one hand, more widespread organizational participation in public policy and, on the other, more narrow technocratic specialization in complex modern policies. Such networks need to be distinguished from three other more familiar terms used in connection with political administration. An issue network is a shared-knowledge group having to do with some aspect (or, as defined by the network, some problem) of public policy. It is therefore more well-defined than, first, a shared-attention group or ‘public’, those in the networks are likely to have a common base of information and understanding of how one knows about policy and identifies its problems. But knowledge does not necessarily produce agreement. Issue networks may or may not, therefore, be mobilized into, second, a shared-action group (creating a coalition) or, third, a shared-belief group (becoming a conventional interest organisation). Increasingly, it is through networks of people who regard each other as knowledgeable, or at least as needing to be answered, that public policy issues tend to be refined, evidence debated, and alternative options worked out—though rarely in any controlled, well-organized way. (Heclo 1978:103–4)

So, how can sense be made of these contrasting images of the policy process? On the one hand we have the policy community concept as originally formulated by Richardson and Jordan in Britain and by Walker in the US, and more recently refined by Jordan, and by Marsh and Rhodes. On the other hand there is the rather ‘disorderly’ issue network concept formulated by Heclo. The suggestion by Rhodes that policy communities and issue networks are part of a continuum—and that policy networks should be used as a generic term—is a sensible reminder that there is not one model of policy-making. He draws on Benson’s 1982 definition of a network as ‘a cluster or complex of organisations connected to each other by resource dependencies and distinguished from other clusters or complexes by breaks in the structure of resource dependencies’ (Benson 1982:148). However, he goes on to distinguish five types of networks ‘ranging along a continuum from highly integrated policy communities to loosely integrated issue networks’ (Rhodes 1990:304). Recognising the network concept as a continuum does enable us to focus on the possibility of changes in the nature of the policy process over time and from sector to sector. Thus, it may be that at any given time several types of policy networks (in the generic sense) are in operation. If so, we need to analyse the interrelationships (if any) between these and the conditions under which they emerge. Also, over time, the policy process might change its characteristics quite significantly, along the continuum; and, of course, it may often be unhelpful to use the network analogy at all.

10 Jeremy Richardson Describing certain stages of the policy process in network terms can be useful and illuminating, but we must not neglect the role of institutions. For example, in the EU, the role of the Council of Ministers is obviously crucial, yet it is difficult to see analysis of policy networks as being central to an analysis of the Council. No doubt ministers will to some degree reflect the power of national networks in the manner suggested by Putnam (Putnam 1988), but, clearly, they do not follow their national interest group systems slavishly. Similarly, the Commission, as an institutional actor in its own right, is enormously powerful in the EU policy process. Again it can be seen as a broker of interests, or a bourse of ideas and interests (Mazey and Richardson 1994), but it is much more than that and has its own institutional interest to protect and expand (see Edwards and Spence 1994, and Christiansen in this volume). Moreover, we must not neglect the role of ideas, of ideology, or the special powers of state actors in setting the agenda for policy change at both the national and international levels; in many instances policy networks are responding to rather than creating policy change. What then is the utility of the policy network approach and what is its potential for EU level analysis? Two modest but sensible claims might be made. First, by trying to identify networks of policy actors we at least focus on what might be called the stakeholders in the EU policy processes. If EU politics is about who gets what, how and when (as surely it is?) then identifying the range of actors involved and trying to see if they can realistically be described as networks is at least the starting point for understanding how the system of making EU policies works. Sensible research questions are, ‘who has an interest in this policy problem? How are they mobilised and organised? What is the timing and nature of their involvement in the policy process? Do they develop stable relationships with each other?’ We also need ask who is likely to gain and who is likely to lose from different policy outcomes? In addressing these questions within the EU, we need to be cautious in transposing some of the (alleged) characteristics of various types of policy network. For example, many groups involved in the EC policy process have little or no formal involvement in policy delivery, nor are they necessarily involved in any direct resource dependencies with other decision-makers except in a most general sense. (Greenpeace and Friends of the Earth being two obvious examples). Similarly, they may have quite different value systems and often exhibit very contrasting and conflicting views of the policy problem and of possible solutions. The basis of the relationship between these different actors is twofold: (1) recognition of each other as legitimate stakeholders in the policy area/problem; (2) a recognition that collaboration may be the best means of extending the Pareto boundary to mutual advantage. In other words, co-operation within various types of policy network is sensible for Pareto maximisers, there are mutual gains to be had. This is rather different to direct resource dependency or a shared direct involvement in service delivery, or to shared values. Focusing on networks of stakeholders may, therefore, help us to analyse the detailed process by which new knowledge and policy ideas (which may well originate elsewhere, see Reich 1988; Radaelli 1995) are translated into specific policy proposals via the involvement of the wide variety and large number of stakeholders that can be identified. Here, the institutional context of the EU is crucial. Thus the Commission is both an adolescent and a promiscuous bureaucracy (Mazey and Richardson 1995). At the stage of translating ideas into detailed and workable public policies (in now fifteen member states), the resource dependencies identified by Rhodes and Marsh at the national level may begin to emerge (Rhodes and Marsh 1992a). At the detailed and technical stage, Commission officials, in particular, need the expertise of other policy actors. If the devil is in the detail, then policy networks—and indeed

Policy-making in the EU 11 policy communities—may come into their own as concepts for advancing our understanding of the EU as a policy-making state. (For a debate on the utility of network analysis in understanding EU policy-making, see Kassim 1994, Peterson 1995a, Peterson 1995b; for a general discussion of networks, see Atkinson and Coleman 1989, Dowding 1995.) POLICY-MAKING UNDER UNCERTAINTY: KNOWLEDGE AND MUTUAL GAINS If one were to be unkind one might see much work on policy networks (and especially on policy communities) as the ‘politics of the piddling’ i.e. policy communities may play a key role only in the processing of issues at the technical and detailed level once key agenda decisions have been reached. Again, the British case post-1979 is illustrative. The Thatcherite revolution was not so much about excluding pressure groups in an attempt to govern without consensus, it was more about determining the new agenda for each policy sector and then consulting the affected interests about how best to implement the new policies for health, education, the legal profession etc. (Richardson 1994b). Most of the radical policy change which took place did not emanate from policy communities or policy networks—they reacted to exogenous changes. Policy-making within the EU may bear some similarities to this policy style. The EU is faced with fifteen different policy systems, each reflecting national power structures (and national policy networks) and national compromises in determining the ‘national interest’. If European integration is to take place, these national policy arrangements must be challenged in some way and new policy settlements agreed. Aspects of an impositional policy style (Richardson 1982) can be seen, ultimately, in the way European Court of Justice decisions affect the nation states, in the pressure for more effective national implementation of EU laws, and of course, in the increased use of qualified majority voting within the Council of Ministers post-Maastricht. In the end, both national policy-making styles and national policy frameworks are challenged by EU legislation. It is not surprising therefore that the range of potential actors in this change process is enormous and the patterns of interaction are sometimes unpredictable. Garbage can politics How, then, does policy change take place within the EU in the absence of a European government and of a stable governing coalition? In a key passage, Adler and Haas argue that it is useful to turn the study of the political process into a question about who learns what, when, to whose benefit and why? (Adler and Haas 1992:370). Perceiving the policy process as centrally concerned with knowledge and its use (Radaelli 1995) is both helpful and is consistent with our concern with actor-based models of the policy process. Moreover, the work by Peter Haas and his colleagues is of special relevance to the workings of the EU. Although concerned with international co-operation (and therefore approaching the EU from an international relations perspective) Haas’s comment that ‘a related question/debate is the extent to which state actors fully recognise and appreciate the anarchic nature of the system and, consequently, whether rational choice, deductive-type approaches or interpretative approaches are most appropriate…’ (emphasis added) is very apposite to our own task here. Thus, virtually all interest group respondents (and most national officials) who were interviewed in our study of the role of interest groups in the EU policy process emphasised the fluidity and unpredictability

12 Jeremy Richardson of the process (see also Mazey and Richardson in this volume). Adopting the rational actor model was difficult for them in situations of high uncertainty and in the absence of crucial information about the policy positions and behaviour of other stakeholders. Indeed, they may be totally unaware of other key actors in the process, let alone of the policy preferences and strategies of those actors! In such situations, the term ‘network’ should be used with great caution. Literally, ‘network’ should mean that the various actors do interconnect in some way. Empirically, this is sometimes difficult to determine and, rather like the puzzle relating to the existence of life elsewhere in the universe, policy actors are often puzzled as to the identity of other actors elsewhere in the ‘system’. Again, this is as true for national governments as it is true for, say, firms or associations. The total ‘system’ is large and amorphous, with lots of parttime participants and a range of ideas floating around in some etherial fashion. In these situations the policy process may resemble the ‘garbage can’ model of decision-making developed by Cohen et al. in 1972 and elaborated by Kingdon (Cohen et al. 1972; Kingdon 1984). The central feature of the original garbage can model is that ‘decision situations’ (or what Cohen et al. termed ‘organised anarchies’) are characterised by three general properties. First, there are problematic preferences. The organisation operates on the basis of a variety of inconsistent and ill-defined preferences (Cohen et al. 1972:1). Their description of organisational life fits well what we already know about some aspects of the EU—namely, that ‘it (the organisation) can be described better as a loose collection of ideas than as a coherent structure, it discovers preferences through action more than it acts on the basis of preferences’ (Cohen et al. 1972:1). The second characteristic of decision situations is ‘unclear technology’. Thus, ‘although the organisation manages to survive and even produce, its own processes are not understood by its members. It operates on the basis of simple trial-and-error procedures, the residue of learning from the incident of past experience, and pragmatic inventions of necessity’ (Cohen et al. 1972:1). Finally, there is ‘fluid participation’ in that participants vary in the amount of time and effort they devote to different domains. In practice, it is useful to view an organisation as ‘a collection of choices looking for problems, issues and feelings looking for decision situations in which they might be aired, solutions looking for issues to which they might be the answer, and decision-makers looking for work’ (Cohen et al. 1972:2, emphasis added). The Haas argument is, centrally, that the politics of uncertainty leads to a certain mode of behaviour—namely that policy-makers, when faced with ‘the uncertainties associated with many modern responsibilities of international governance turn to new and different channels of advice, often with the result that international policy co-ordination is advanced’ (Haas 1992:12). As he argues, the concept of uncertainty is important for two reasons: First, in the face of uncertainty…many of the conditions facilitating a focus on power are absent. It is difficult for leaders to identify their potential political allies and to be sure of what strategies are most likely to help them retain power. And, second, poorly understood conditions may create enough turbulence that established operating procedures may break down, making institutions unworkable. Neither power nor institutional cues to behavior would be available, and new patterns of action may ensue. (Haas 1992:14)

However, as Sebenius points out, uncertainty and power do go hand in hand, uncertainty presents opportunities for power to be exercised if individuals or institutions are sufficiently alert to the opportunities. He, therefore, argues that we need to emphasise the interplay of power and

Policy-making in the EU 13 knowledge in influencing outcomes (Sebenius 1992:325). Alongside uncertainty in the policy process there are opportunities for mutual learning and joint problem solving—especially when issues involve technical uncertainties in such areas as scientific, environmental, economic and security affairs. By combing the politics of uncertainty and the politics of learning, Sebenius in fact captures the core meaning of ‘policy community’ as a concept. Thus he states that ‘beyond understanding technical uncertainties, finding joint gains also requires that each party learn about the other’s priorities in order to craft mutually beneficial trades’ (Sebenius 1992:329). Cooperation, therefore, can produce what Walton and McKersie term ‘integrated bargaining’ as opposed to ‘distributive bargaining’. In the former, the effort is directed towards expanding the pie, whereas in the latter it is a more adversarial process of dividing the pie (Walton and McKersie 1965). Sebinius goes on to quote Howard Raiffa as follows: In complicated negotiations where uncertainties loom large, there may be contracts that are far better for each negotiating party than the non-contract alternative, but it may take considerable skill and joint problem solving to discover these possibilities. Without the right atmosphere and without some reasonably trustful communication of values, such jointly acceptable contracts might never by discerned’ (Raiffa quoted by Sebenius, 1992:329, emphasis added by this author)

This is not too dissimilar to our original formulation of the policy communities concept suggested in Governing Under Pressure, in 1979. This emphasised the development of a common understanding of each other’s problems and a recognition that beneficial bargains could be struck over time. Logically, this does not imply consensus on values or on outcomes—but it does imply a consensus that collaboration will produce efficiency gains all round. There may be considerable and bitter disputation, yet the game continues to be played in order to secure mutual gains or to avoid individual losses. This seems to fit what we know about the EU policy process. Lax and Sebenius have emphasised that the bargaining process indeed exhibits both conflict and consensus. Thus: the competitive and co-operative elements are inextricably entwined. In practice they cannot be separated. This bonding is fundamentally important to the analysis, structuring the conduct of negotiation. There is a central, inescapable tension between co-operative moves to create value jointly and competitive moves to gain individual advantage. This tension affects virtually all tactical and strategic choice. Analysts must come to grips with it; negotiators must manage it. (Lax and Sebenius 1986)

Participating in joint policy-making activity therefore has the potential to maximise benefits to the parties involved. Using concepts from negotiation analysis, Sebenius points out that outcomes can be influenced by favourably affecting the zone of possible agreement between the parties. The ‘zone of possible agreement’ means ‘a set of possible agreements that are better for each potential party than the non-co-operative-operative alternatives to an agreement’ (Sebenius 1992:333). Expertise and epistemic communities The value of these approaches is that it reminds us that policy actors, such as those participating in the EU policy process, are often operating under considerable degrees of uncertainty and are prepared to engage in a negotiative process even when there is considerable disagreement. The key role of epistemic communities in this process relates directly to the principle that policymakers are operating under conditions of uncertainty. Thus:

14 Jeremy Richardson Given the technical uncertainties regarding an issue and the legitimacy of claims to expertise of members of an epistemic community, especially those placed close to the decision-making process, their influence may cause the perceived interests of key players in different countries to grow closer together, along with their understanding of underlying causal relationships. In this situation, the epistemic community members may come to act as a coordinated set of common interpretative filters. (Sebenius 1992:354)

It is the knowledge-based (or at least perceived knowledge-based) nature of epistemic communities that provides these networks of actors with the potential to influence the policy process. Authoritativeness, and therefore legitimacy, are the key currencies of these types of networks and these are central to the definition of epistemic communities formulated by Peter Haas, as follows: An epistemic community is a network of professionals with recognised expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issuearea. Although an epistemic community may consist of professionals from a variety of disciplines and backgrounds, they have (1) a shared set of normative and principled beliefs, which provide a value-based rationale for the social action of community members; (2) shared causal beliefs, which are derived from their analysis of practices leading or contributing to a central set of problems in their domain and which then serve as the basis for elucidating the multiple linkages between possible policy actions and desired outcomes; (3) shared notions of validity—that is, intersubjective, internally defined criteria for weighing and validating knowledge in the domain of their expertise; and (4) a common policy enterprise—that is, a set of common practices associated with a set of problems to which their professional competence is directed, presumably out of the conviction that human welfare will be enhanced as a consequence. (Haas 1992:3)

As with the policy network concept, epistemic communities as a concept is also subject to refinement and re-definition. In a useful footnote, Haas reveals that other characterisations of epistemic communities were discussed during the preparation of the special issue of International Organization in which his seminal paper appears. Some of the additional notions used were as follows: members of an epistemic community share intersubjective understandings; have a shared way of knowing; have shared patterns of reasoning; have a policy project drawing on shared values, share causal beliefs, and the use of shared discursive practices; and have a shared commitment to the application and production of knowledge. (Haas 1992:3)

Interestingly, Haas sees some kind of logic in this process of policy co-ordination via epistemic communities. The situation in which policy-makers find themselves leads almost naturally to the use of experts of various kinds. Just as it has been argued in Britain that there is a ‘logic of negotiation’ (Jordan and Richardson 1982: see, also, Mazey and Richardson in this volume), then so the dynamics of uncertainty, interpretation, and institutionalisation at the international level drive policy-makers towards the use of epistemic communities. Haas argues that ‘in international policy co-ordination, the forms of uncertainty that tend to stimulate demands for information are those which arise from the strong dependence of states on each other’s policy choices for success in obtaining goals and those which involve multiple and only partly estimable consequences of action’ (Haas 1992:3–54). Uncertainty gives rise to demands for information—particularly about ‘social or physical processes, their interrelationship with other processes, and the likely consequences of actions that require considerable scientific or technical expertise’ (Haas 1992:4). Haas goes on to suggest that state actors are ‘uncertainty reducers’ as well as power and wealth pursuers. In conditions of high uncertainty, it becomes difficult for national

Policy-making in the EU 15 governments to define clearly just what the national interest is. They are not only engaged on a two level game as suggested by Putnam, they are also involved on a multi-dimensional international game where strategies consistent with the national interest in one sector may be inconsistent with the national interest being pursued in another sector. It is not surprising that state actors look for ways of reducing uncertainty. They recognise that changing the world is going to be very difficult and may have to settle, therefore, for minimising their surprises! Again, this is consistent with what we know about national policy-making, many policy-makers are risk-averse and one way of reducing risk to them is to share it. For example Henderson’s now classic study of a series of British policy decisions describes risk sharing behaviour via consultation, as follows: making sure that, at every stage of the policy process, the right chairs have been warmed at the right committee tables by the appropriate institutions, everything possible has been done and no one could possibly be blamed if things go wrong. (Henderson 1977)

Bearing in mind just how small the EU is, it would be surprising if Commission officials did not engage in similar behaviour. By drawing other policy actors into the policy process, the Commission may be able to build coalitions in favour of its own notions of desirable policy change. By assisting the formation of networks of ‘relevant’ state and non-state actors, or by ‘massaging’ the way that these networks operate, the Commission can maintain its position as an ‘independent’ policy-making institution and can increase its leverage with the Council of Ministers and the European Parliament. Information and ideas are important building blocks in this process. In a key passage, Haas argues that epistemic communities play a central role in providing much needed information and ideas. Epistemic communities are one possible provider of this sort of information and advice. As demands for such information arise, networks or communities of specialists capable of producing and providing the information emerge and proliferate. The members of a prevailing community become strong actors at the national and transnational level as decision makers solicit their information and delegate responsibility to them. A community’s advice, though, is informed by its own broader world view. To the extent to which an epistemic community consolidates bureaucratic power within national administrations and international secretariats, it stands to institutionalise its influence and insinuate its view into broader international politics. Members of transnational epistemic communities can influence state interests either by directly identifying them for decision makers or by illuminating the salient dimensions of an issue from which the decision makers may then deduce their interests. The decision makers in one state may, in turn, influence the interests and behaviour of other states, thereby increasing the likelihood of convergent state behaviour and international policy coordination, informed by the causal beliefs and policy preferences of the epistemic community. Similarly, epistemic communities may contribute to the creation and maintenance of social institutions that guide international behaviour. As a consequence of the continued influence of these institutions, established patterns of cooperation in a given issue-area may persist even though systematic power concentrations may no longer be sufficient to compel countries to coordinate their behaviour. (Haas 1992:5)

His suggestion that ‘systemic power concentrations’ can also prevent policy co-ordination is an important qualification to the epistemic communities concept. Thus, no-one is arguing that

16 Jeremy Richardson epistemic communities explain everything about the policy process, the advocates of the concept have been notably more cautious than current ‘network’ supporters in making claims for its explanatory power. Haas cites Ikenberry’s analysis of post-war economic management as illustrating the limitations on the effects of the consensual views of specialists. The influence of epistemic communities is over the form of policy choices—‘the extent to which state behaviour reflects the preferences of these networks remains strongly conditioned by the distribution of power internationally’ (Haas 1992:7). We should add that not only is the power of epistemic communities constrained by the realities of the distribution of power internationally, it is also constrained by the need for policy-makers— at both EU and national levels—to involve other forms of actors, particularly conventional interest groups. Not only are there rival epistemic communities, but they get caught up in conventional interest group politics. For example, telecoms is often cited as a classic example of epistemic communities at work (Cowhey 1990). The argument that much of the deregulatory trend can be traced to epistemic communities in the telecoms field looks convincing, yet national interests are directly affected, as are the interests of individual firms in the telecoms sector. Thus, one should not go overboard in emphasising the importance of knowledge and ideas. As Jacobsen argues, the pervasive flaw in ‘power of ideas’ arguments is their failure to take account of the fact that ideas and interests cannot be separated (Jacobsen 1995:309). For example, this is very evident in the field of EU environmental policy-making where the environmentalists often act as a ‘megaphore for science’; policy has to be mediated in some way, via these powerful political actors. It is here, perhaps, that the policy community/policy network concept comes back into its own. Thus, a Commission official may place considerable emphasis on the knowledge-based influence of an epistemic community—the threat posed to the ozone layer by CFC’s for example—but practical action has to involve the close co-operation of the industries involved—such as refrigeration or foam manufacturers. In practice, the Commission did indeed set up various working parties to ‘process’ the CFC problem and it is at this stage that familiar policy networks—indeed policy communities in the sense defined earlier—emerged to process the CFC issue (Mazey and Richardson 1992). The ‘primeval soup’ of the EU and the importance of advocacy coalitions This later ‘processing’ stage in the EU policy process is possibly less problematic in terms of finding useful models—some combination of network, institutional and intergovernmental bargaining models seems reasonable. It is the emergence of problems, issues, and policy proposals which seems much more problematic in terms of available models of analysis—hence the attractiveness of the epistemic communities approach. As Kingdon suggests, the phrase ‘an idea whose time has come, captures a fundamental reality about an irresistible movement that sweeps over our politics and our society pushing aside everything that might stand in its path’ (Kingdon 1984:1). He identifies a number of possible actors in the agenda-setting process, including the mobilisation of relevant publics by leaders, the diffusion of ideas in professional circles among policy elites, particularly bureaucrats, changes in party control or in intra-party ideological balances brought about by elections. The processes involved in agenda setting are identified as being of three kinds—problems, policies, politics (Kingdon 1984:17). His objective is to move the analysis from the usual political science preoccupation with pressure and influence (possibly a criticism of network analysis) and instead to explore the world of ideas. Using

Policy-making in the EU 17 a revised version of the Cohen et al. garbage can model, he analyses three ‘process streams’ flowing through the system—streams of problems, policies and politics, largely independent of each other. He likens the generation of policy proposals to a process of biological natural selection. Thus: many ideas are possible in principle and float around in a ‘policy soup’ in which specialist try out their ideas in a variety of ways…proposals are floated, come into contact with one another are revised and combined with one another, and floated again…the proposals that survive to the status of serious consideration meet several criteria, including their technical feasibility, their fit with dominant values and the current national mood, their budgetary workability, and the political support or opposition they might experience. Thus the selection system narrows the set of conceivable proposals and selects from that large set a short list of proposals that is actually available for serious consideration. (Kingdon 1984:21)

The separate streams of problems, policies and politics come together at certain critical times, he argues. Solutions are joined to problems, and both of them are joined to favourable political forces. The timing of this coupling is influenced by the appearance of ‘policy windows’; these windows are opened either by the appearance of compelling problems or by happenings in the political stream (Kingdon 1984:21). Again, this seems to fit the EU rather well. He cites one of his (US) respondents as saying that it is almost impossible to trace the origin of a proposal. ‘This is not like a river. There is no point of origin’ (Kingdon 1984:77). There is an almost uncanny resemblance between this description of US policy-making and the perceptions of key actors in the EU policy process. Identifying just where a policy ‘started’ in the EU is extremely difficult—hence the common response that ‘policies seem to come from nowhere’. It is a characterisation which is very different to that produced in the policy communities model and indeed also from the generic network model. The relationship between these two apparently opposing models of policy-making is that even the garbage can model—which does indeed seem to capture much of what we know empirically about the EU agenda-setting process—might eventually result in a more structured network of policy actors concerned with detailed policy decisions. In this sense, some kind of ‘resource dependency’ as suggested by Rhodes might emerge at later stages in the EU policy process because successful implementation depends on the co-operation of many stakeholders. Even Kingdon is at pains to point out that the processes he describes are not entirely random, ‘some degree of pattern is evident in these fundamental sources: processes within each stream, processes that structure couplings, and general constraints on the system’ (Kingdon 1984:216). One reason why the process is not random is, of course, that policy problems and policy ideas attract coalitions of actors. Thus, Sabatier argues that (within a policy sub-system) ‘actors can be aggregated into a number of advocacy coalitions composed of people from various organisations who share a set of normative and causal beliefs and who often act in concert. At any particular point in time, each coalition adopts a strategy(s) envisaging one or more institutional innovations which it feels will further its objectives’ (Sabatier 1988:133). An advocacy coalition can include actors from a variety of positions (elected and agency officials, interest group leaders, researchers) who share a particular belief system i.e. a set of basic values, causal assumptions, and problem perceptions, and who show a non-trivial degree of coordinated activity over time. Sabatier developed the model partly in response to the complexity of policy sub-systems. Using the US air pollution control sub-system as an example, he found

18 Jeremy Richardson that it contained a large, diverse set of actors. Normally, he argues, the number of advocacy coalitions would be quite small—in a ‘quiescent sub-system’ there might be only a single coalition, in others between two and four (Sabatier 1988:140). To Sabatier, it is shared beliefs which provide the principal ‘glue’ of politics, indeed, he emphasises stability of belief systems as an important characteristic of policy sub-systems. Policy change within a sub-system can be understood as the product of two processes. First, the efforts of advocacy coalitions within the sub-system to translate the policy cores and the secondary aspects of their belief systems into governmental programmes. Second, systemic events, for example, changes in socio-economic coalitions, outputs from other sub-systems, and changes in the system-wide governing coalition—affect the resources and the constraints on the sub-system actors i.e. policy change takes place when there are significant ‘perturbations’ external to the sub-system (Sabatier 1988:148). One of his hypotheses seems especially relevant to more recent developments in the EU. Thus, his ‘hypothesis seven’ is that ‘Policy-orientated learning across belief systems is most likely when there exists a forum which is a) prestigious enough to force professionals from different coalitions to participate and b) dominated by professional norms’ (Sabatier 1988:156). There is some evidence that Commission officials are moving towards institutionalised structures which do just this i.e. bring together groups of policy actors (be they epistemic communities, advocacy coalitions, or different policy communities) in a forum— such as the Environmental Forum within DG X1 or the September 1993 conference to discuss possible changes on the Drinking Water Directive (Richardson 1994a; see also Mazey and Richardson in this volume). As Sabatier suggests, the purpose of these structures: is to force debate among professionals from different belief systems in which their points of view must be aired before peers. Under such conditions, a desire for professional credibility and the norms of scientific debate will lead to a serious analysis of methodological assumptions, to the gradual elimination of the more improbable causal assertions and invalid data, and thus probably to a greater convergence of views over time concerning the nature of the problem and the consequences of various policy alternatives. (Sabatier 1988:156)

Again, we see a suggestion that policy-makers are intent on securing agreement and stability, and recognise that this process must involve the participation of the various types of ‘stakeholders’ in the policy area or policy sub-system. In the EU, stakeholders can be members of epistemic communities, conventional interest groups such as trade associations or environmental groups, firms, members of national administrations, other institutional actors such as MEPs and increasingly, national regulatory agencies. The trouble is that numbers are often very large and, hence, it is a difficult managerial task to construct coherent policy communities. Multiple policy-making ‘venues’ and the erosion of national sovereignty The very fact that EU policy-making is a collective exercise involving large numbers of participants, often in intermittent and unpredictable ‘relationships’, is likely to re-enforce the processes by which national autonomy is being eroded. The chances of any one government or any one national system of policy actors (e.g., governments and interest groups combined) imposing their will on the rest is rather small. National governments know this. We can, therefore, expect to see the emergence of two apparently contradictory trends. First, the need to construct complex transnational coalitions of actors will force all actors to become less focused on the

Policy-making in the EU 19 nation states as the ‘venue’ for policy-making. Just as many large firms have long since abandoned the notion of the nation state, then so will other policy actors; they will seek to create and participate in a multi-layered system of transnational coalitions. Second, the ‘politics of uncertainty’ will lead national governments and national interest groups to try to co-ordinate their Euro-strategies (e.g., see DTI1993; 1994). In that sense, Euro-policy-making may bring them closer together. (For a more detailed discussion of this paradox, see Mazey and Richardson in this volume.) One reason for the difficulty in maintaining stable national coalitions is that the membership of the EU presents all policy actors with a choice of venue for the resolution of policy conflicts. As Baumgartner and Jones argue, political actors are capable of strategic action by employing a dual strategy of controlling the prevailing image of the policy problem and also seeking out the most favourable venue for the consideration of issues (Baumgartner and Jones 1991:1046). In this sense, the EU policy process represents a different order of multiple access points for policy actors when compared with many of the policy systems of the member states. Many of them, such as Britain and France, have traditionally operated rather centralised policy-making systems with, consequently, relatively few national ‘venues’ for exercising influence. The EU policy process is more akin to the US and German systems where interests have a wide range of venues to engage in the policy process. Thus, unified and centralised policy systems may encourage cohesion in policy communities in part because all of the players know that there are relatively few options for exercising influence elsewhere: this is not the case within the EU where several ‘venues’ are available to actors who have lost out in any one of them. The tendency of the EU policy process to pass through periods of stability and periods of dramatic institutional change—in the episodic fashion suggested earlier—will also lead to instability in actor relationships. Thus, as Baumgartner and Jones suggest, changes in institutional structures (as we have seen, a feature of the EU) can also often lead to dramatic and long-lasting changes in policy outcomes (Baumgartner and Jones 1993:12). CONCLUSION: A GARBAGE CAN FOR ANALYSING GARBAGE CANS? Fundamentally, all of these models and concepts are concerned with the policy process as a collective enterprise—whether the models are concerned with the emergence of policy problems, new knowledge, policy ideas, or the processing of these into workable policies and programmes. Policy-making and policy implementing are collective activities, and we need models which help characterise the process of problem solving in a collective setting where the sovereignty of a range of actors—not just of nation states—is pooled. Earlier, we suggested caution in adopting any one model for analysing the EU policy process. Clearly there is an ongoing and very ‘productive’ policy process i.e. there is now an enormous mass of EU public ‘policy’ in existence and a continuation of the flow of much technical and detailed EU ‘legislation’. Equally clearly there is a vast range of actors, institutions, problems and ideas from which EU policy finally emerges. It often seems like Kingdon’s ‘primeval soup’ or the Cohen et al. ‘garbage can’. Identifying the broad characteristics of this process is proving difficult, which is in part because of the disaggregated nature of much EU policy making. The common problems of secularisation and segmentation—and hence of policy-co-ordination—are writ large in the EU. Policy-making is often sectoral or sub-sectoral policy-making. In part the difficulty in making reliable generalisations is because the process is obviously exceedingly

20 Jeremy Richardson complex; in part it is because the process is changing i.e. the politics of the EU is also about constantly changing the ‘decision-rules’ of the system. And in part it is because analysing the EU is being approached from two rather different academic perspectives—models of national policymaking on the one hand and models of international policy-making on the other. The thrust of this chapter has been to suggest that we can make progress if we focus on policy actor behaviour—as well as on institutions and institutional relationships—in order to begin our search for a better understanding of the EU as a policy system or series of policy sub-systems. If we focus on actors as ‘stakeholders’ in the governance of the EU, we are able to survey a range of actor types and a range of relationships. Different types of actors and different types of relationship may emerge at different times. The policy process is both episodic and taking place in several venues at any one time, and analysis of the behaviour of each actor needs to recognize that actors may be involved in a series of ‘nested games’ (Tsebelis 1990). Actors are involved in a whole series of policy games and this might explain the fact that actors may appear to settle for sub-optimal choices. Tsebelis argues that it is vital for observers of policy-making to take into account contextual factors (i.e. the situation in other arenas) as these may lead actors to choose different strategies (Tsebelis 1990:9). The multiplicity of games in which national governments are involved inevitably affects their autonomy as policy actors. Moreover, the relationship between the EU and its member states is directly affected by the extremely complex nature of the EU policy process itself—hence our advocacy of multiple models. Clearly, intergovernmentalism is important. We still have nation states, national governments try to act in either the national interest or in their own political interests, and these governments are accorded a strong institutional presence via the Council of Ministers. Yet two phenomena—largely the focus of this chapter—place significant limits on intergovernalisation as a model of analysis. First, we do see a proliferation of various types of policy network—more usually the loose, more dynamic issuenetworks on the US model suggested by Heclo, rather than the policy community model originally suggested in Britain by Richardson and Jordan. Put simply, the traditional ‘clients’ of national governments have become transnationally promiscuous in their relationships (see also Mazey and Richardson in this volume). Second, the ‘politics of expertise’ has become especially important in situations of loose networks and high uncertainty. This also weakens national sovereignty because of the increasingly cross-national nature of expertise and the ability of other EU policy actors—particularly the Commission—to choose which body of expertise to mobilise at any one time. Hence our suggestion that the concept of epistemic communities is especially useful at the EU level in understanding how policy problems emerge and come to be ‘framed’ for official policy-makers. The complexity of the EU policy process means that we must learn to live with multiple models and learn to utilise concepts from a range of models in order to at least accurately describe the policy process. In practice, the EU policy process may be closer to a garbage can model than to any ‘rational’ policy process, however uncomfortable that notion may be for analysts. Similarly, our intellectual process may also need to be somewhat garbage can-like in these early years, before we can really explain the ‘why’ as well as the ‘how’ of the EU policy process. Our conclusion, so far, is that the traditional concept of policy network has some utility in understanding both the nature of the EU policy process and the relationship between the EU and member states. However, as at the national level, it also has some major limitations in that the policy networks may be merely reacting to exogenous change. Thus, more sophisticated approaches which combine a number of models are likely to be more useful. Of particular note are the concepts of epistemic communities and advocacy coalitions; they appear to facilitate our

Policy-making in the EU 21 understanding of a policy process which has to balance national and transnational interests and which no one set of players can dominate over time. These models might help us to better understand the initial emergence of problems and issues and the way that they are ‘framed’ for the many stakeholders who are subsequently involved in the act of collective problem solving. ACKNOWLEDGEMENT I would like to thank Geoffrey Dudley, Hussein Kassim, and Anand Menon for their comments on an earlier draft of this chapter. REFERENCES Adler, Emanuel and Haas, Peter (1992), ‘Conclusion: Epistemic Communities, World Order and the Creation of a Reflective Research Program’, International Organization, 46, 1, pp. 367–390. Atkinson, M. and Coleman, W. (1989), ‘Strong States and Weak States: Sectoral Policy Networks in Advanced Capitalist Economies’, British Journal of Political Science, 19, 1, pp. 47–67. Baumgartner, F.R. and Jones, B.D. (1991), ‘Agenda Dynamics and Policy Subsystems’, Journal of Politics, Vol. 53, no. 4, pp. 1044–1074. Baumgartner, F.R. and Jones, B.D. (1993), Agendas and Instability in American Politics (Chicago: Chicago University Press). Benson, J.K. (1982), ‘A Framework for Policy Analysis’, in Rogers, D., Whitten, D., Interorganizational Coordination (Ames: Iowa State University Press) pp. 137–76. Cohen, Michael, March, James and Olsen, Johan P. (1972), ‘A Garbage Can Model of Organizational Choice’, Administrative Science Quarterly, 17, pp. 1–25. Cowhey, Peter, F. (1990), ‘The International Telecommunications Regime: The Political Roots of Regimes for High Technology’, International Organization, 44, 2, pp. 169–199. DTI (1993), Review of the Implementation and Enforcement of EC Law in the UK (London: DTI). DTI (1994), Getting a Good Deal in Europe, Deregulatory Principles in Practice (London: DTI). Dowding, Keith (1995), ‘Model or Metaphor? A Critical Review of the Network Approach’, Political Studies, Vol. 43, pp. 136–158. Dudley, Geoffrey and Richardson, Jeremy (1996), ‘Why Does Policy Change Over Time? Adversarial Policy Communities, Alternative Policy Arenas and British Trunk Roads Policy 1945–95’, Journal of European Public Policy, Vol. 3, no. 1, pp. 63–83. Dyson, Kenneth (1994), Elusive Union. The Process of Economic and Monetary Union in Europe (London: Longman). Edwards, Geoffrey and Spence, David (1984), The European Commission (London: Longman). Haas, Peter (1992), ‘Introduction: Epistemic Communities and International Policy Co-ordination’, International Organization, 46, 1, pp. 1–35. Heclo, H. (1978), ‘Issue Networks and the Executive Establishment’, in King, Anthony (ed.), The New American Political System (Washington D.C.: American Enterprise Institute). Heclo, H. and Wildavsky, A. (1974), The Private Government of Public Money (London: Macmillan). Heinz, John P., Laumann, Edward O., Nelson, Robert L., and Salisbury, Robert H. (1993), The Hollow Core (Cambridge: Harvard University Press). Henderson, P.D. (1977), ‘Two British Errors: Their Probable Size and Some Possible Lessons’, Economic Papers, Vol. 29, no. 2, pp. 159–205. Héritier, Adrienne (1996), ‘The Accommodation of Diversity in European Policy-Making: Regulatory Policy as Patchwork’, Journal of European Public Policy, Vol. 3, No. 3, pp. 149–167. Hix, Simon (1994), ‘The Study of the European Community: The Challenge to Comparative Polities’, West European Politics, Vol. 17, no. 1, pp. 1–30. Hoffmann, Stanley (1966), ‘Obstinate or Obsolete: The Fate of the Nation State and the Case of Western Europe’, Daedalus, 95, 3, pp. 862–915.

22 Jeremy Richardson Jacobsen, John Kurt (1995), ‘Much Ado About Ideas. The Cognitive Factor in Economic Policy’, World Politics, 47, 283–310. Jordan, Grant (1990), ‘Sub-Governments, Policy Communities and Networks: Refilling the Old Bottles?’, Journal of Theoretical Politics, Vol. 2, no. 3, pp. 319–338. Jordan, Grant and Richardson, Jeremy (1982), ‘The British Policy Style or the Logic of Negotiation?’ in Richardson, Jeremy (ed.), Policy Styles in Western Europe (London: Allen and Unwin), pp. 80–110. Judge, David (1993), The Parliamentary State (London: Sage). Judge, David and Earnshaw, David (1996), ‘From Co-operation to Codecision: The European Parliament’s Path to Legislative Power’, in Richardson, Jeremy (ed.) Policy-Making in the European Union (London: Routledge). Kassim, Hussein (1994), ‘Policy Networks and European Union Policy Making: A Sceptical View’, West European Politics, Vol. 17, no. 4, pp. 15–27. Kingdon, John W. (1984), Agendas, Alternatives and Public Policies (New York: HarperCollins). Krasner, Stephen D. (1978), ‘United States Commercial and Monetary Policy: Unravelling the Paradox of External Strength and Internal Weakness’, in Katzenstein, Peter (ed.) Between Power and Plenty. Foreign Economic Politics of Advanced Industrial States (Madison: University of Wisconsin Press) pp. 51–87. Lax, David and Sebenius, James K. (1986), The Manager as Negotiator (New York: Free Press). Maloney, William and Richardson, Jeremy (1995), Managing Policy Change in Britain: The Politics of Water Policy (Edinburgh: Edinburgh University Press). Mazey, Sonia and Richardson, Jeremy (1992), ‘Environmental Groups and the EC’, Environmental Politics, Vol. 1, no. 4, pp. 109–128. Mazey, Sonia and Richardson, Jeremy (1993) (eds) Lobbying in the European Community (Oxford: Oxford University Press). Mazey, Sonia and Richardson, Jeremy (1994), ‘The Commission and the Lobby’, in Edwards, Geoffrey and Spence, David, The European Commission (London: Longman) pp. 169–201. Mazey, Sonia and Richardson, Jeremy (1995), ‘Promiscuous Policy-Making: The European Policy Style?’, in Rhodes, Carolyn and Mazey, Sonia The State of the European Union (Boulder: Lynn Reinner and Longman). Peterson, John (1995a), ‘Policy Networks and European Union Policy Making: A Reply to Kassim’, West European Politics, Vol. 18, no. 2, pp. 389–407. Peterson, John (1995b), ‘Decision-Making in the European Union: Towards a Framework for Analysis’, Journal of European Public Policy, Vol. 2, no. 1, pp. 69–93. Putnam, Robert, D. (1988), ‘Diplomacy and Domestic Politics’, International Organization, 42, 3, pp 427– 60. Radaelli, Claudio (1995), ‘Knowledge Utilisation and Policy-Making’, Journal of European Public Policy, Vol 2, no. 2, pp. 159–183. Reich, Robert, B. (1988) (ed.) The Power of Public Ideas (Cambridge: Harvard University Press). Rein, H., and Schön, D. (1991), ‘Frame-Reflective Policy Discourse’, in Wagner, P., Weiss, C.H., Wittrock, B. and Wollman, H. (eds) Social Sciences, Modern States. National Experiences and Theoretical Crossroad (Cambridge: Cambridge University Press), pp. 262–89. Rhodes, R.A.W. (1985), ‘Power Dependence, Policy Communities and Inter-Governmental Networks’, Public Administration Bulletin, Vol. 49, pp. 4–29. Rhodes, R.A.W. (1988), Beyond Westminster and Whitehall, (London: Unwin Hyman). Rhodes, R.A.W. (1990), ‘Policy Networks: A British Perspective’, Journal of Theoretical Politics, Vol. 2, no. 3, pp. 292–316. Rhodes, R.A.W. and Marsh, D. (1992a), ‘New Direction in the Study of Policy Networks’, European Journal of Political Research, Vol. 21, no. 1, pp. 181–205. Rhodes, R.A.W. and Marsh, D. (1992b), ‘Policy Networks in British Politics’ in Marsh, D. and Rhodes, R.A.W. (eds), Policy Networks in British Government (Oxford: Clarendon Press). Richardson, Jeremy (1982), (ed), Policy Styles in Western Europe (London: Allen and Unwin). Richardson, Jeremy (1994a), ‘EU Water Policy-Making: Uncertain Agendas, Shifting Networks and Complex Coalitions’, Environmental Politics, Vol. 4, no. 4, 1994, pp. 139–167. Richardson, Jeremy (1994b), ‘Doing Less by Doing More? British Government 1979–1994’, WestEuropean Politics, 1994 pp. 178–197. Richardson, Jeremy and Jordan, Grant (1979), Governing Under Pressure: The Policy Process in a PostParliamentary Democracy (Oxford: Martin Robertson).

Policy-making in the EU 23 Sabatier, Paul (1988), ‘An Advocacy Coalition Framework of Policy Change and the Role of PolicyOrientated Learning Therein’, Policy Sciences, 21, pp. 128–168. Schattschneider, E.E. (1960), The Semi-Sovereign People. A Realist’s View of Democracy in America (New York: Holt). Sebenius, James K., (1992), ‘Challenging Conventional Explanations of International Co-operation: Negotiation Analysis and the Case of Epistemic Communities’, International Organization, Vol. 46, no. 1, pp. 323–365. Tsebelis, George (1990), Nested Games: Rational Choice in Comparative Politics, (Berkeley: University of California Press). Walton, Richard and McKersie, Robert (1965), A Behavioral Theory of Labor Negotiations (New York: McGraw Hill).

2 The development of the European idea From sectoral integration to political union Sonia Mazey

We believed in starting with limited achievements, establishing a de facto solidarity from which a federation would gradually emerge. I have never believed that one fine day Europe would be created by some great political mutation…. The pragmatic method we had adopted would …lead to a federation validated by the people’s vote, but that federation would be the culmination of an existing economic and political reality. (Monnet 1978)

INTRODUCTION The opposition of the UK Prime Minister, John Major, during negotiations preceding the 1992 Maastricht Summit to the inclusion of the ‘F word’ (i.e. federalism) in the Treaty on EU (TEU) was reminiscent of the immediate post-war debate on European integration. Then, as now, the key issues were what kind of European community—economic or political? Intergovernmental or supranational? What kind of institutional framework? The founding Treaties of the European Communities provided no clear answers to these questions; rather they represented an ambiguous compromise between intergovernmentalists and European federalists involved in the post-war debate on European co-operation. The former viewed the European Coal and Steel Community (ECSC), the European Economic Community (EEC) and the European Atomic Energy Community (EURATOM) created by the Treaties, as functional agencies charged with the co-ordination of national, economic strategies in designated sectors.1 However, European federalists hoped that these agencies would, over time, provide the basis for a more comprehensive kind of political integration. The institutional arrangement created by the founding Treaties reflected this ambiguity. On the one hand, the European Commission and the European Court of Justice provided for a supranational European executive and legal authority. On the other hand, however, national governments, represented in the Community’s Council of Ministers, enjoyed important legislative and executive powers with regard to the adoption and implementation of European Community (EC) policies. This uncertainty regarding the proper status and ultimate objectives of European integration left open the question of the future development of the EC. In the absence of a clear blueprint, the development of the EC since 1957 has been uneven and erratic. Nationalism, economic recession, piecemeal enlargement and the growing importance of the Council of Ministers within the EC’s decision-making system have at various times impeded EC decision-making and the process of European integration. 24

The development of the European idea 25 Nevertheless, since 1957, the legal basis, institutional framework and policy competence of the EC has gradually been consolidated and extended beyond the provisions of the original Treaties. Two key turning points in this respect were the 1986 Single European Act (SEA) and the 1992 Maastricht TEU. The cumulative impact of these changes has been the creation of a unique European system of governance (albeit an incomplete one), which now embraces European citizenship and monetary union. This chapter seeks to explain how and why this process occurred. The central theme of the discussion is that there is no single dynamic of European integration and, therefore, no single theoretical framework can encapsulate the totality of European integration. Rather, it is argued that the process of European integration has been a multi-faceted, multi-actor and multi-speed process. Thus, the incremental harmonisation of national laws and technical standards, increased educational and cultural exchanges within the EC, the mutual recognition of professional qualifications by member states and the growth of European regulations are as much part of the integration process as political union. At different times in the Community’s history, different actors, institutions and pressures have been influential in either facilitating or limiting the further development of the EC broadly defined. Thus, even when European integration seemed to have stalled at the so-called ‘high politics’ level (as appeared to be the case during the late 1970s), integration nevertheless continued to take place at the level of low politics and by means of policy implementation. A MULTI-LEVEL FRAMEWORK FOR ANALYSIS National interests and national governments have undoubtedly played an important role in determining the degree and pace of European integration, especially with regard to ‘history making’ (Peterson 1995) decisions such as the initial establishment of the European Communities (Milward 1992), negotiation of the SEA (Moravcsik 1991) and the TEU. In this context, the attitudes and actions of influential individuals and statespersons are crucial. An important corollary of this point is that changes in the composition and ideological character of member governments have also played an important role in determining the pace and direction of European integration. However, to confine our explanation of European integration to the motivations and actions of national governments would be to study only the tip of the iceberg. In addition, we need to evaluate the less visible, but no less important role played by other actors and institutions involved in this process, broadly defined. First, as Mazey and Richardson suggest in Chapter 11 of this volume, organised interests have, since the establishment of the ECSC, played an important role in the European decision-making process (Haas 1958; Kirchner 1980; Mazey 1992). Corporatist interests have enjoyed formal representation at the European level from the outset, initially in the ECSC’s Consultative Committee and subsequently in the Economic and Social Committee of the EC. Moreover, sectoral interests were also represented in the Expert Committees, set up by the High Authority in 1952 as a means of fostering collaboration with national experts on policy issues and problems. As the policy competence of the EC has expanded, an increasing range of interests have gradually been drawn into the policy-making process. This long-term trend has contributed to the process of European integration in two ways: (1) it has resulted in the permeation of the European Commission (and, increasingly, the European Parliament) by an increasing range of interests, many of whom have become influential, albeit often discreet, Euro-lobbyists. Significantly, recent

26 Sonia Mazey studies have confirmed the increasing levels of support since the mid 1980s among diverse interest groups for the Single European Market (SEM), European Monetary Union (EMU) and European regulation (Green-Cowles 1995; Majone 1992; Mazey and Richardson 1993; Sandholtz 1993; Van Schendelen 1992): (2) many groups (especially sectoral and producer groups) have increasingly developed their own European organisations in response to the growing importance of EC policies. Thus, there now exists a dense network of transnational interest groups centred upon Brussels. Second, as revealed in other contributions to this volume, the Community institutions themselves have by means of both their own development and their actions contributed to the process of European integration. The incremental development of the European Parliament, for instance, highlights the way in which institutions can, under certain circumstances, acquire a sort of institutional momentum. The European Parliament, having begun life as a rather insignificant consultative body has, over the years, consciously sought to strengthen its authority and has gradually secured increased budgetary and legislative powers (see Earnshaw and Judge in this volume). These developments, combined with the introduction in 1979 of direct elections and the increasing cohesion of the transnational party groupings within the assembly (Westlake 1994; Bay Brzinski 1995), have significantly increased its legitimacy. Moreover, the European Parliament has since the 1970s actively campaigned for further European integration and appropriate EU institutional reform. Similarly, as highlighted by the contributions of Christiansen and Wincott to this volume, the steady encroachment by the EC into new policy sectors and the judicial activism of the European Court of Justice are important means by which EC institutions have, often unobtrusively, edged the integration process along. Third, any satisfactory account of the historical development of the EC must examine the wider context of European integration. In particular, it should consider the extent to which external pressures and ideas have been influential in determining the pace of European integration. In the immediate post-war period, for example, the threat of Soviet communism and the positive attitude of the US government towards European integration helped to focus the minds of European leaders upon the need for some form of European co-operation. Similarly, more recent Community initiatives such as the development of EC-wide research and technology policies and, more generally, the SEM project are, in large part an attempt to counter the competitive challenge posed to European industries by US and Japanese firms and the so-called ‘tiger economies’ of East Asia. Finally, as Kingdon (1984) argues, prevailing ideas are also important in helping to frame and shape public policy outcomes. Thus, as indicated below (pp. 127–9), federalist ideas and aspirations were undoubtedly important in shaping the immediate post-war debate on the future organisation of European co-operation. These ideals were enthusiastically promoted by the European Federalist movements, and prominent individuals such as Jean Monnet, together constituting an influential ‘advocacy coalition’ (Sabatier 1988), i.e. individuals with shared values and beliefs who are influential in setting the policy agenda. In contrast, the current preference for ‘subsidiarity’ and European deregulation owes much to the present fashion for market solutions to economic problems, espoused by a new, influential advocacy coalition within the EC. Interaction between these variables makes it impossible to identify any single dynamic of European integration; rather the present constitutional and institutional arrangement of the EC is the culmination of a multi-level, multi-faceted process of change and adjustment. As the policy competence of the EC has expanded, so the Community’s constitutional and institutional basis

The development of the European idea 27 has evolved. The transition from sectoral integration to political union has thus been accompanied by the piecemeal consolidation and ad-hoc extension of the institutional capacities of the Community. One aspect of the European integration process has, however, been consistent throughout the period under discussion, namely the deep-seated divide between the commitment of the original Six to some form of political union and the more sceptical attitude of some later entrants to the Community, notably the UK, Denmark and Greece. The significance of this cleavage—not to mention other conflicts of interest—begs the question as to how the Community has survived. Part of the answer to this question is that, paradoxically, the very ambiguity of the European project has facilitated its survival. This opaqueness has enabled different actors to redefine the nature and objectives of integration and to adapt the original constitutional and institutional arrangement of the Community to suit new needs. Thus, in many respects, the picture which emerges from the following discussion is one of European integration by muddling through. CREATING THE EUROPEAN COMMUNITY 1945–1965: THE PRIMACY OF POLITICS The immediate origins of European unification lie in the economic and political problems confronting European countries, notably France and Germany, in the immediate aftermath of the Second World War. The war had devastated European economies, and national governments in 1945 were forced to address the task of economic reconstruction. The establishment of the three European Communities during the 1950s offered a solution to this problem. European integration was also a response to the political legacy of the Second World War. Of crucial importance in this respect was the urgent need—given the onset of the Cold War—to anchor West Germany into the Western alliance system. However, before this could be achieved, French fears about the threat posed to France by an economically powerful West Germany would have to be allayed. The Schuman Plan, which formed the basis of the ECSC, was specifically designed to reassure French policy-makers on this point. The post-war debate on the future of European co-operation was thus clearly an issue of ‘high politics’; as such, it was dominated by intense, intergovernmental negotiations between national politico-administrative elites, whose support (or, in the case of Britain, non-support) for European integration can be explained primarily in terms of perceived national interest. However, the experience of war had also created widespread revulsion towards nationalism and given fresh impetus to federalist movements, which argued that the nation-state system was a primary cause of international conflict (Lipgens 1982). Between 1945 and 1955 European federalist movements constituted an important ‘advocacy coalition’ which pushed the issue of European integration to the forefront of political agendas throughout western Europe, and whose views inspired key policymakers such as Jean Monnet and Robert Schuman. The political impact of post-war European federalism The basis of the post-war European federalist movement was the belief that the establishment of a federal European government would put an end to the long-established pattern of wars between European, sovereign nation-states. The idea was not a new one. In the aftermath of the First World War the idea of a ‘United States of Europe’ had been propounded by the

28 Sonia Mazey Austrian, Count Koudenhove-Kalergi, founder of the Pan-Europa movement, established in 1923. Influential members of this early advocacy coalition had included the French Socialist leader, Léon Blum; the President of the German Reichstag, Paul Lobe; Aristide Briand, French Foreign Minister (1925–32); and Gustav Streseman, German Foreign Minister (1923– 29). Despite the fact that by the end of the 1920s, this movement contained prominent economists, lawyers, educationalists, journalists and politicians, it had nevertheless failed to win the support of the general public, who remained wedded to the concept (and reality) of national sovereignty (Lipgens 1982:40–41). However, the experience of the Second World War gave fresh impetus to the debate on federalism. After 1939, federalist movements and publications proliferated, especially within resistance movements throughout Europe. Particularly influential in this process was the Italian resistance leader, Altiero Spinelli, author of the 1941 federalist, Ventotene Manifesto and founder in 1943 of the Movimento Federalista Europeo, which was influential in mobilising popular support for the federal idea after 1945. The immediate post-war period witnessed a fresh upsurge of public opinion in favour of European integration. From the outset, however, the debate was ambiguous and vague with regard to detail: though the general idea of European co-operation attracted widespread support, no such consensus existed regarding the precise nature of any such arrangement. In September 1946, for instance, the former British Prime Minister, Winston Churchill, declared that ‘We must build a kind of United States of Europe’ to counter the Soviet threat. The impact of this speech was enormous. It gave important credibility to European federalist movements, despite the fact that Churchill was opposed both to federalism and to British participation in any system of European co-operation. There were also important divisions between the plethora of ‘European’ movements established during this period. By far the largest and most prominent of these competing advocacy coalitions was the European Union of Federalists (UEF); this was established in 1946 and comprised some sixty affiliated national groups and over 100,000 members. Other ‘European’ movements established during this period included the International Committee for a Socialist United States of Europe, the French Committee for a United Europe, the United Europe Movement, the European League for Economic Cooperation and the European Parliamentary Union. Significantly, however, not all movements shared the federalist aspirations of the UEF; for example, the United Europe Movement, founded in 1947 by Winston Churchill, and the European League for Economic Cooperation, presided over by the Dutch ex-prime minister, Paul van Zeeland, advocated European co-operation rather than federalism. The momentum created by the post-war advocacy coalition in favour of (some form of) European integration culminated in the European Congress held in the Hague in May 1948, organised jointly by the above associations. The Congress brought together 713 delegates from thirteen countries. Among those present were Konrad Adenauer, West German Chancellor 1949–63; some twenty ex-prime ministers including Winston Churchill, Paul Reynaud and Paul van Zeeland; famous writers and academics including Bertrand Russell; and leading federalists such as Hendrik Brugmans, Alexandre Marc and Denis de Rougemont (Vaughan 1979). On the key issue of what kind of European design should be created there emerged at the Hague Congress a clear divide between the federalist UEF and the more moderate United Europe Movement which, backed by other conservative groups, advocated a confederal association. In the event, the latter view prevailed. The Congress approved a vaguely worded communiqué demanding the creation of ‘a United Europe throughout whose

The development of the European idea 29 area the free movement of persons, ideas and goods is restored’, a Charter of Human Rights, a Court of Justice and a ‘European Assembly where the live forces of all our nations shall be represented’. In October 1948 the broad-based European Movement was established to implement the recommendations of the Hague Congress. Subsequent negotiations were marked by a (now familiar) cleavage between the French, Italian and Belgian governments, which wanted to establish a supranational European organisation and the British government (backed by the Scandinavian governments), which favoured an intergovernmental arrangement. The federalists were defeated. The Council of Europe, established in May 1949, provided a forum for voluntary co-operation between sovereign, national governments in the Committee of Ministers and between members of national parliaments in the Consultative Assembly. Undeterred, the European federalists launched a further attempt in 1952 to establish a supranational European Political Community (EPC) as part of a proposal for a European Defence Community (EDC). The EDC idea was the French government’s response to US demands that West Germany be permitted to rearm in order that it might contribute to the defence of Western Europe. Though it enjoyed the support of both the West German Chancellor, Konrad Adenauer and the US government, the EDC project collapsed in August 1954 with the refusal of the French National Assembly to ratify the Pleven Plan. The failure of the EDC project marked an important turning point within the post-war debate on European integration. In the immediate post-war period, the social, economic and political situation in western Europe was so fluid and external pressures so favourable, that it was just conceivable that the radical federalist strategy advocated by the UEF might just have succeeded. Yet, despite the popularity of of the federal idea in European countries and the important ‘policy entrepreneur’ (Peters 1994) role played by the federalist movements, the resilience of nationalism and the structures of the nation-states constituted an insurmountable barrier to such a development. The establishment of the European communities: the Monnet method Federalist ideas nevertheless continued to exert a powerful influence upon national policymakers seeking political solutions to the economic and security problems facing Western Europe. The founding fathers of the EC—Jean Monnet, French Planning Commissariat, and Robert Schuman, French Foreign Minister—were essentially pragmatic federalists. Though they shared the ideals of the so-called radical federalists, they disagreed with their head-on approach, believing instead that the only way to achieve European integration was by small, incremental steps in sectors where the issue of national sovereignty was less contentious than in ‘high polities’ areas such as defence and foreign policy (Monnet 1978; Duchêne 1994). This strategy (which is consistent with neo-functionalist theories of European integration), underpinned the Schuman Plan, drawn up in April 1950 by the French Foreign Minister, Robert Schuman, at the request of Jean Monnet. The Plan was presented to the French government as a European solution to the urgent need to find a new structure to contain the resurgent heavy industries of the Ruhr (Willis 1968). It proposed that French and German coal and steel production should be ‘pooled’ and placed under a common, supranational authority, the High Authority, which would be responsible for establishing a common market for coal and steel among the member states. European regulation of these industries would also facilitate economic reconstruction. Six countries—Belgium, the Netherlands, Italy,

30 Sonia Mazey Luxembourg, West Germany and France—signed the Paris Treaty in April 1951, establishing the ECSC. Significantly, the British government refused to join the ECSC. Three reasons help to explain the British aloofness from Europe during this period. First, the British wartime experience had strengthened rather than weakened national sentiments. Second, as Churchill had made clear in his 1946 Zurich speech, the primary British obligation at this time was to another ‘natural grouping’, the Commonwealth. Hence his remark during this speech that ‘We are with Europe, but not of it. We are linked, but not comprised. We are interested and associated, but not absorbed’ (cited in Lipgens 1982:318). Third, Labour and Conservative politicians alike were united in their opposition to a supranational European authority which they believed would constrain national policy-makers and undermine the sovereignty of Parliament. The ECSC Treaty provided for five main institutions which constitute the foundations of the present institutional framework of the EC: a Special Council of Ministers (subequently, the Council of Ministers); a High Authority (prototype of the European Commission); a seventy-eight-member Common Assembly (which developed into the European Parliament); a corporatist Consultative Committee (which later became the Economic and Social Committee) and a Court of Justice for settlement of disputes. The organisation and internal power structure of the ECSC embodied several ambiguities and compromises. Monnet’s personal commitment to European federalism and his own experience of working in international organisations had convinced him of the need for the High Authority to be a supranational executive, wholly independent of national governments. More specifically, he believed that only a truly supranational executive would be able to act as a catalyst for the development of European policies. Yet, the High Authority was far from being a sovereign body, it was paralleled as an executive by the Special Council of Ministers, insisted upon by the Benelux countries as a means of defending the national interests of the smaller countries (Urwin 1989). The ECSC was followed by the creation in 1957 of two new communties: the EURATOM, intended to facilitate co-operation between member states in the development of nuclear technology for peaceful purposes; and the EEC. The EEC proposal came from the Benelux governments (inspired by the Benelux customs union established in 1944) and was supported by the powerful Action Committee for the United States of Europe, a nongovernmental organisation formed in 1955 by Monnet. The EEC marked an important departure in the sense that it was not another sectoral community. The integrative impact of the EEC was potentially far-reaching: it sought to establish both a customs union and a common market.2 Moreover, the means by which the EEC was to achieve these aims, together with a precise timetable, were clearly specified in the Treaty. Finally, while the customs union lay at the heart of the EEC Treaty, it also provided for a number of common policies in areas such as agriculture, transport and competition policy. Social policy was also included, in the sense of policy relating to employment. A Social Fund and an Investment Bank were established and the policies were to be financed by a Community budget, whose income would eventually come from its ‘own resources’ (Pinder 1995). Once again, the British government remained aloof from the integration process. Indeed, the British government representative—a civil servant from the Board of Trade—to the Spaak Committee, set up in 1956 to prepare the details of the two new communities, had withdrawn from the negotiations at the first mention of supranational institutions. Several factors facilitated the establishment of the European Communities: the pressing need to achieve Franco-German conciliation; the post-war economic situation and the

The development of the European idea 31 wider political environment (notably the onset of the Cold War) all served to focus the minds of European policy-makers upon the problem of European co-operation. The particular solution adopted reflected the influence of competing advocacy coalitions (proand anti-European federalism), the pivotal role played by individuals such as Jean Monnet and Robert Schuman, and the political commitment of the six member governments to European integration. Thus, in Kingdon’s terms, there had existed an important ‘window of opportunity’. In the early 1960s, support for the EEC (which quickly established itself as the most important of the three Communities) increased among member governments, business and agricultural interests. Rapid economic growth rates in the EEC were attributed in part at least, to the removal of internal tariffs. Meanwhile, the GET, far from provoking protectionism in the international economy, provided the catalyst for far-reaching multilateral tariff cuts, as reflected in the Kennedy Round of GATT negotiations in the mid 1960s. De Gaulle and the empty chair crisis: towards intergovernmentalism The founders of the EC had intended that the European Commission would become a technocratic, supranational European executive, embodying the European general will (Featherstone 1994). Between 1957 and 1965 an assertive Commission under the presidency of the German federalist, Walter Hallstein, set about realising this aim. However, the Treaties were ambiguous in this respect and in 1965, the Commission’s authority was seriously challenged by the French President, General de Gaulle. Elected in 1958, De Gaulle immediately made clear his opposition to European supranationalism, which contradicted his ‘certaine idée of France, based upon a powerful sovereign state, nationalism and an independent foreign and defence policy. De Gaulle’s election marked an important turning point in the development of the EC: the political consensus in favour of European integration disappeared, and with it the agreement on the existing institutional balance of power within the Community. In 1961, De Gaulle launched his intergovernmental alternative to the EC, the so-called Fouchet Plan which sought to establish a ‘union of states’ to coexist with the existing Community in a number of areas, most notably foreign policy, defence and culture. When this initiative failed, De Gaulle scorned the existing Community, declaring at a press conference in May 1961, that ‘there is and can be no Europe other than a Europe of States—except of course a Europe of myths, fictions and pageants’ (cited in Pinder 1995:12). Thereafter, De Gaulle’s strategy was to exploit the EC in defence of French national interests—a strategy reflected in the priority accorded by France to the establishment of the CAP. De Gaulle’s antagonism towards the Community culminated in the so-called ‘empty chair’ crisis which lasted from July to December 1965. During this period French ministers refused to attend meetings of the Council of Ministers and the French permanent representative was withdrawn from Brussels. The crisis was triggered by French opposition to the Commission’s proposals for financing the Common Agricultural Policy, the introduction of the Community’s ‘own resources’, the granting of more extensive budgetary powers to the European Parliament and, in particular, the introduction of majority voting regarding the Council of Ministers. Such developments—wholly consistent with the neo-functionalist concept of ‘spill-over’—were anathema to De Gaulle. The crisis was resolved in January 1966 by the Luxembourg Compromise, which shifted the institutional balance of power away from the Commission in favour of the Council of Ministers. While the Commission’s right to initiate policy was confirmed

32 Sonia Mazey by this document, it was agreed that the Commission should, in future, consult more closely with member governments before issuing new proposals. Moreover, with regard to majority voting in the Council of Ministers, the Luxembourg Compromise stated that where ‘issues very important to one or more member countries are at stake ministers will seek to reach solutions with which all can be comfortable’. The Luxembourg Compromise effectively confirmed the right of member states to veto EC legislative proposals, thereby reversing the federalist ambitions of the Commission. EUROPEAN INTEGRATION BY OTHER MEANS: 1965–1984 Conventional wisdom holds that the integration process stalled during the 1970s and early 1980s. Evidence cited in support of this view typically includes references to the Commission’s increasing resort to ‘package deals’, recurrent ‘crisis’ meetings of EC heads of governments, ‘deadlocked’ meetings of the Council of Ministers and the discordant relationship between the UK (which joined the EC in 1972) and the rest of the Community (George 1990). This apparent ‘slowing down’ of the European integration process at the high politics level is usually attributed to the Luxembourg Compromise, EC enlargement and the onset of worldwide recession in 1974. This view of the EC during the 1970s has some validity; the Luxembourg Compromise did alter the European policy style: henceforth the Commission was forced to negotiate complex package-deals with the member states. EC enlargement from six to nine members inevitably increased the lourdeur (Dehousse and Majone 1994:94) of EC decisionmaking, especially in the light of the Luxembourg Compromise. Moreover, some of the new entrants (notably the UK government) opposed the federalist interpretation of the Treaties. The ‘Community spirit’ which had prevailed during the 1960s was thus eroded in the 1970s. Meanwhile, the onset of economic recession in western Europe gave rise to protectionist temptations in some quarters as national governments struggled to control rising unemployment levels. Yet, notwithstanding these problems, European integration continued to take place in some form or other throughout the 1970s. Indeed, as Caporaso and Keeler argue ‘the resilience of the EC during these troubled times looks even more impressive from the post 1989 perspective’ (Caporaso and Keeler 1995:37). Moreover, in many respects, the pressures and developments (both internal and external to the Community), which culminated in the 1986 SEA, originated in the 1970s. In terms of EC ‘institution building’, for instance, the 1970s witnessed the the creation of European Political Cooperation (EPC), the establishment of regular meetings of the European Council and the introduction of direct elections to the European Parliament. The creation of EPC, which brings together the foreign ministers of the EC was an intergovernmentalist development, but it marked the beginnings of European foreign policy co-ordination. The introduction of regular meetings of the EC heads of government was essentially a response by national governments to the difficulties highlighted above. It reflected their desire—despite the differences between them—to maintain a European dialogue. The European Council, though an intergovernmentalist body, has since its inception played an important agenda-setting role in the integration process. Indeed, several European Council meetings stand out as decisive turning points in the European unification process (see Edwards, this volume). Meanwhile, the incremental development of the European Parliament’s budgetary powers in 1970 and 1975, gave the European

The development of the European idea 33 Parliament increased leverage over the Council of Ministers. This, in turn, provided the Parliament with new opportunities to seek allies among the member states in support of its long-term campaign for increased legislative powers. The introduction in 1979 of direct elections to the European Parliament established the democratic legitimacy of the Parliament—another crucial step in this campaign. Furthermore, the capacity of the EC institutions to set and process the ‘normal’ policy agenda remained relatively unaffected by the public clashes between the heads of government. Thus, one study revealed that ‘in 1975, the Council of Ministers considered 329 proposals from the Commission and adopted 75 per cent of these within two years’. The same study also showed that the annual volume of Commission proposals rose steadily from 1975, reaching 456 in 1979 (of which 77.4 per cent were adopted by the Council) and 522 in 1984 with an 84.3 per cent success rate. The average length of time taken to process legislation declined from 150 days in 1975 to 108 days in 1984 (Smoot and Verschuren 1990, cited in Wood and Yesilada 1996:100). Moreover, during the 1970s, the policy-making competence of the EC continued to expand: existing policies were extended and new policies introduced—in some areas, beyond the parameters of the founding Treaties. EC enlargement in 1973, for instance, was accompanied by the introduction of an EC regional policy and European Regional Development Fund. The origins of EMU also lie in the 1971 Werner Plan and the 1979 launch of the first EMS (the snake). Less dramatically, a large corpus of EC environmental laws were adopted during the 1970s (despite the absence of a Treaty basis for such legislation), and the scope of EC social policy extended beyond the narrow confines of the Treaties. As Christiansen’s analysis in Chapter 5 reveals, the Commission played a pivotal ‘entrepreneurial’ role in this process of policy expansion, in keeping with neo-functionalist models of integration. Two crucial consequences of the expansion of the EC’s policy competence during this period were the increase in the size and complexity of the European Commission (further EC institution building) and the progressive ‘Europeanisation’ of domestic policy-making, reflected in the steady rise in the number of transnational, Euro-groups and the progressive harmonisation of national legal and technical standards. ECJ rulings during this period quietly reinforced this trend. The pace and direction of European unification during the 1970s was thus shaped by several interrelated dynamics. Within this process, individuals often played a key role. For example, the decision in 1978 to launch the original EMS owed much to the personal efforts of the UK Commissioner Roy Jenkins and the French President, Valéry Giscard d’Estaing. As in 1945, the EC external environment was also influential in persuading EC heads of government of the potential benefits of European co-operation; for example, international currency fluctuations following the collapse in 1971 of the Bretton Woods system, gave an important impetus to European monetary integration. EXPLAINING THE SINGLE EUROPEAN ACT: CONVERGING AGENDAS AND WINDOWS OF OPPORTUNITY The 1986 SEA, marked a decisive turning point in the development of the EC. It committed the twelve EC member states to completing the Single European Market (SEM), i.e. a common market, by January 1993 and to establishing EMU. The SEA also committed the signatories to EC institutional reform, designed primarily to facilitate the establishment of the SEM. More

34 Sonia Mazey specifically, the SEA extended qualified majority voting (QMV) in the Council of Ministers (see Edwards in this volume) and introduced the ‘co-operation procedure’, which further increased the legislative powers of the European Parliament with regard to SEM legislation (see Earnshaw and Judge in this volume). The SEA also strengthened the legal basis for EC environmental, social and regional policies, and gave formal recognition to the European Council and EPC. Explanations of the SEA abound. Intergovernmentalist interpretations emphasise the importance of national interests and intergovernmental bargaining (Moravcsik 1991; Keohane and Hoffmann 1991). According to this view, the convergence of national economic strategies in France, Germany and the UK after 1983 was crucial catalyst in the creation of a new political consensus among European leaders in favour of the SEM project. However, as Dehousse and Majone point out, this merely begs the question as to why, how and from where this consensus arose (Dehousse and Majone 1994:100). Nor can this explanatory model wholly account for the linkage in the SEA between the SEM project and EC institutional reform, greater social and environmental protection, and economic and social cohesion—issues which seriously divided member states. A more comprehensive explanation of the SEA also has to evaluate the impact of other pressures and actors involved in the negotiation of the Act. External pressures which contributed to the SEA included the increasing threat of international competition and the emergence during the early 1980s within the EC of a new, neo-liberal, economic orthodoxy. Moreover, while national governments were centrally involved in the negotiation and ratification of the SEA, they were certainly not the only actors involved in setting and processing this policy agenda. Considerable evidence exists, for instance, of the agenda-setting role played in the early 1980s by transnational business and financial interest groups in favour of the SEM, EMU and European regulation (Majone 1992; Mazey and Richardson 1993; Sandholtz 1993; Green Cowles 1995; Van Schendelen 1992). Within the European Parliament, the Kangaroo Group, an all-party grouping which had since 1980 campaigned for the removal of non-tariff barriers within the EC, was influential in providing the political impetus for the 1985 Single Market programme. The European Parliament was also influential in maintaining the momentum for EC institutional reform. Back in 1980, the federalist MEP, Altiero Spinelli had formed the Crocodile Club, which drew up the Draft Treaty establishing the EU (DTEU); adopted by the European Parliament in 1984, the DTEU formed the basis for the IGC discussions which culminated in the SEA. During the 1985 IGC, the Commission, headed by the dynamic Jacques Delors, played a crucial ‘brokerage’ role, linking market integration (the core, substantive policy choice embodied in the SEA) to institutional reform, social regulation and economic cohesion. Going one step further back, the SEM project rested largely upon the principle of mutual recognition, a principle established by the European Court of Justice in its landmark Cassis de Dijon ruling in 1979. The SEA was therefore the product of several interlinked institutional and systemic dynamics which converged around the SEM project. As Dehousse and Majone argue ‘once the general idea of completing the internal market was accepted, it proved possible to convince even the most reluctant member states that a shift towards more majority voting was necessary in several areas’ (Dehousse and Majone 1994:104). Even the Euro-sceptic, UK Prime Minister Mrs Thatcher became caught up in this process of engrenage.

The development of the European idea 35 MAASTRICHT AND BEYOND: TOWARDS VARIABLE INTEGRATION The SEM project unleashed a fresh wave of ‘low politics’ integration in the form of harmonisation of national standards and regulations and the abolition of non-tariff barriers. The dynamic for European integration was also maintained by the combined impact of the Commission and the advocacy coalition in favour of EMU. In keeping with the neofunctionalist concept of ‘spill-over’, the Commission argued that EMU was a corollary of the SEM. In June 1988, the Commission president, Jacques Delors, secured the European Council’s support for his proposal to establish a high-level working party (chaired by himself and largely comprised of the governors of member states’ banks), to draw up proposals for achieving EMU. In 1989, the committee recommended the gradual establishment of a single currency and an IGC was convened to consider the Treaty amendments required to establish EMU. This pragmatic integration strategy was, however, suddenly blown off course by international events. The dramatic collapse of the Soviet Union after 1989 and consequent unification of Germany in 1991 thrust upon the Community member states a much wider policy agenda. First, just as in 1945, France was again anxious to anchor a powerful Germany into the Community system. The German Chancellor, Helmut Kohl was also anxious to demonstrate Germany’s continuing commitment to the EC. Second, the disintegration of the Soviet system created new uncertainties about the future development of western security. Third, eastern enlargement of the Community—and the financial and institutional implications of such a development—was also now an unavoidable issue. At the suggestion of the French President, François Mitterrand and Helmut Kohl, the European Council in June 1990 agreed to set up a second IGC on European political union. The outcome of the two IGCs was the TEU, adopted at the Maastricht meeting of the European Council in December 1991. In contrast to the SEA, the TEU was a ‘lowest common denominator’ agreement. Its single most important achievement was the commitment to establish EMU by 1999 at the latest. Predictably, however, the IGC on political union had reopened, but failed to resolve, a bitter debate on the meaning and direction of European integration. In the absence of any galvanising idea (as had underpinned the EC Treaties and the SEA), or underlying political consensus, the Treaty was a messy compromise between the federalist model of Europe supported by Germany, Italy and the Benelux countries, the more intergovernmental model upheld by France and the even looser co-operation advocated by the UK. The newly-named ‘European Union’ established by the Treaty, comprises three distinct pillars: the European Community (EC); Justice and Home Affairs (JHA); and Common Foreign and Security (CFSP). Of these, only the EC has a supranational executive and legal authority. The JHA and CFSP pillars provide instead for intergovernmental co-operation in the fields of policing, asylum and immigration policies, and European foreign and security policy respectively. The Treaty also established a FrancoGerman defence corps and committed member states (albeit in vague terms) to the eventual establishment of a common foreign and defence policy within the framework of the West European Union (WEU). Within the EC pillar, QMV was extended slightly (but not generalised as requested by the Commission), and a new ‘co-decision procedure’ was introduced to reinforce the European Parliament’s legislative role. The TEU also introduced the principle that a new Commission must enjoy the support of a majority of MEPs—a feeble attempt to redress the problem of the ‘democratic deficit’ within the EC. Finally, a new consultative Committee of the Regions was

36 Sonia Mazey also established (largely in response to demands from the German Länder) to represent local and regional authorities in EC decision-making. The Community’s competences were further extended in the fields of education, vocational training, youth, social policy, public health, consumer protection, environment, research and technology, and trans-European networks. At the same time, however (to appease intergovernmentalists), the principle of subsidiarity was affirmed, restricting the actions of the Community to those matters where the objectives ‘cannot be sufficiently achieved by the Member States’ (Article 3b TEU). Finally, Protocols to the Treaty permitted the UK and Denmark to opt out of the EMU and the UK out of the social chapter as well. CONCLUSION: TOWARDS A ‘FEDERAL DESTINY’ OR ‘VARIABLE GEOMETRY’? Viewed as part of a much longer-term process, the Maastricht agreement marked yet another step in the process of European integration, bringing agreement on the EMU timetable, further extension of the EC’s competence and more institution-building. The establishment of an institutional framework for foreign policy and defence co-operation is a potentially significant development, as is the concept of European citizenship, which was also introduced by the TEU. Thus, in certain respects, the Maastricht agreement carried the Community over an important threshold. However, the legal and institutional patch-work created by the Treaty heralded an important change in the method of the European integration. Hitherto, under the so-called ‘Community method’ all member states had been obliged to proceed at the same pace within a single Community, namely the EC. In 1991, the breadth and significance of the Maastricht agreement precluded any such agreement, hence the resort to pillars and opt-outs. The Maastricht agreement thus signalled the beginning of a Europe of variable geometry. Moreover, ratification of the Maastricht Treaty provoked an unexpected upsurge of public opposition to European integration in general and the Community institutions in particular. Popular fears of mass immigration and strong nationalist sentiments were compounded by more specific concerns about the Community’s ‘democratic deficit’ reflected in the un-accountability of the Commission and the lack of transparency of the EC decision-making process. Several factors—some specific to individual member states—help to explain this backlash against European integration, however, one important cause of this sentiment was the increasing impact of European integration, especially after 1986. In particular, completion of the SEM and preparations for EMU have imposed significant constraints upon national economic policymakers, forced to phase out subsidies, raise interest rates and reduce state expenditure. The very success of the European integration project means that EC policies now affect far more people than in the past. In consequence, EU reform proposals are now considered much more seriously by national politicians, interest groups and the general public than in the past. In part, the Maastricht agreement nearly failed because EC policy-makers failed to appreciate the increasing incongruity between the undemocratic nature of the EU decision-making system and the popular impact of EU policies (Featherstone 1994). Thus, ‘there are reasons to believe that further progress towards integration will require a grand institutional debate’ (Dehousse and Majone 1994:109). The 1996 IGC to review the Maastricht Treaty began in March 1996 and could be considered to be the first such debate to be held on European integration since the Hague

The development of the European idea 37 Congress back in 1948. The Commission has stressed that the primary purpose of the IGC is to consolidate the present arrangements. Its own agenda includes simplification of the EC decision-making process; the further extension of QMV within the Council of Ministers; clarification of comitology; more power for the European Parliament; the extension of the Commission’s authority in JHA and CFSP matters; and the creation of an institutional framework for a European foreign and defence policy. However, other participants have different agendas. France and the UK, for instance, wish to limit the powers of the European Parliament, strengthen the role of the Council of Ministers and review the authority of the European Court (with a view to limiting its jurisdiction). The European Parliament is campaigning for further increases in its legislative power (notably, the right of initiative) and more control over the activities of Commissioners. Meanwhile diverse interest groups are anxious to secure their own particular objectives (Mazey and Richardson 1996). Beneath these specific agendas, however, lie more fundamental interrelated problems. These include: significant differences in the level of member states socio-economic development (reflected in the difficulties several member states are experiencing in meeting the EMU convergence criteria); conflicting perceptions of EU internal and external priorities, a resurgence of nationalist sentiments in member countries and serious over-extension of the EU’s institutions (Gustavsson 1996). Added to these strains, the EU now has to respond to the challenge presented by pressures for eastern and further mediterranean EU enlargement. Indeed, an EU of twenty-five member states is a real posssibility. As the French MEP, Elisabeth Guigou warned in her Reflection document in 1995: The European Union has its back to the wall: it must choose between a reform of its working methods or its dilution into a large free-trade area…. Enlargement without a general reform of the common policies and institutions would lead to stagnation and dilution. (cited in R.Gustavsson, 1996:220)

Yet, coherent solutions to all these related issues can only be achieved once the member states have determined what kind of union they wish to establish. Predictably, however, there is still no agreement between the participants on the fundamental issue of the meaning and purpose of European integration. Europe has a choice between moving towards a ‘federal destiny’ and embracing ‘variable geometry’ (Financial Times 30 February 1996). However, this is precisely the choice which member states have so far refused to confront. Hitherto, the issue has been fudged, but European integration does now seem to have reached a critical juncture. Within the existing community, there are now important socio-economic and political differences between the fifteen member states. Moreover, though widening of the Community has in the past been accompanied by deepening, it is arguably no longer possible to combine these two objectives within the existing arrangement. The costs of further eastern enlargement are simply too high—both for applicant countries forced to accept the acquis communautaire and for existing members, forced to bear the additional cost of extending common policies such as the CAP eastwards. The solution may therefore lie in the recognition of the need for an EU based upon ‘variable geometry’, or ‘concentric circles’ within which different member states enjoy different rights and responsibilities. Such a strategy may be the only realistic means of adapting the European integration process to the changed international environment.

38 Sonia Mazey NOTES 1

2

The ECSC was created by the 1951 Paris Treaty and the EEC and the EURATOM were both established by the 1957 Rome Treaty. The 1965 Merger Treaty created a common Council of Ministers and a common Commission serving all three European Communities. The 1957 ‘Convention on Certain Institutions Common to the European Communities’ signed in parallel with the Treaty of Rome stipulated that the European Parliament, the European Court of Justice and the Economic and Social Committee would serve all three Communities. Members of a customs union agree (i) to abolish all internal tariffs and other trade impediments; (ii) to establish a common trade policy towards the rest of the world. In the EC this takes the form of the Common External Tariff (CET). A Common Market implies greater integration. Members agree in addition to promote the free movement of capital and labour within the customs union. Achievement of a European Common Market was the primary objective of the 1986 SEA and the 1992 project.

REFERENCES Bay Brzinski, J. (1995) ‘Political group cohesion in the European Parliament 1989–1994’, in Rhodes, C. and Mazey, S. (eds) The State of the European Union vol. 3: Building a European Polity?, Boulder: Lynne Reinner and Longman, 111–134. Caporaso, J. and Keeler, J (1995) ‘The EU and regional integration theory’, in Rhodes, C. and Mazey, S. (eds) The State of the European Union, vol. 3: Building a European Polity?, Boulder: Lynne Reinner and Longmann, 29–62. Dehousse, R. and Majone, G. (1994) ‘The institutional dynamics of European integration’, in Martin, S. (ed.) The Construction of Europe: Essays in Honour of Emile Noël, Dordrecht: Kluwer Academic Publishers, 91–112. Duchêne, F. (1994) Jean Monnet: the First Statesman of Interdependence, New York: W.W.Norton and Company. Featherstone, K. (1994) ‘Jean Monnet and the “democratic deficit” in the European Union’, Journal of Common Market Studies, 32, 2:149–170. George, S. (1990) An Awkward Partner: Britain in the European Community, Oxford: Oxford University Press. Green Cowles, M. (1995) ‘Setting the agenda for a new Europe: the ERT and EC 1992’, Journal of Common Market Studies, 33, 4:501–526. Gustavsson, R (1996) ‘The EU: 1996 and beyond—a personal view from the sideline’ in Andersen, S.S. and Eliassen, K.A. (eds) The European Union: How Democratic is it?, London: Sage Publications. Haas, E. (1958) The Uniting of Europe, Stanford: Stanford University Press. Keohane R.O. and Hoffmann, S. (eds) (1991) The New European Community: Decisionmaking and Institutional change, Boulder: Westview Press, 177–194. Kingdon, J.W. (1984) Agendas, Alternatives and Public Policies, New York: Harper Collins. Kirchner, E. (1980) ‘Interest group behaviour at the Community level’, in L.Hurwitz (ed.) Contemporary Perspectives on European Integration: Attitudes, Non-governmental Behaviour and Collective Decision Making, London: Greenwood Press, 96–119. Lipgens, W. (1982) A History of European Integration 1945–1947: the Formation of the European Unity Movement, Oxford: Clarendon Press. Majone, G. (1992) ‘Regulatory federalism in the European Community’, Government and Policy, 10: 299– 316. Mazey, S. (1992) ‘Conception and evolution of the High Authority’s administrative services (1952–1960): from supranational principles to multinational Practices’, in Yearbook of European Administrative History, Baden-Baden: Nomos Verlagsgesellschaft 31–48. Mazey, S. and Richardson, J. (1993) Lobbying in the European Community, Oxford: Oxford University Press. Mazey, S and Richardson, J. (1996) ‘Interest groups and the 1996 IGC’, in Pijpers, A. and Edwards, G. (eds) The European Union and the Agenda of 1996, London: Pinter. Milward, A. (1992) The European Rescue of the Nation-State, London: Routledge.

The development of the European idea 39 Monnet, J. (1978 ed.) Memoirs, New York: Doubleday, 93, 286, 295. Cited in Burgess, M. (1992) Federalism and European Union, 2nd edn., London: Routledge, 54. Moravcsik, A. (1991) ‘Negotiating the Single European Act: National Interests and conventional statecraft’, International Organisation, 45:19–56. Peters, G. (1994) ‘Agenda-setting in the European Community’, Journal of European Public Policy, 1, 1:9–26. Peterson, J. (1995) ‘Decision-making in the European Union: towards a framework for analysis’, Journal of European Public Policy, 2, 1:69–94. Pinder, J (1995) European Community: The Building of a Union, Oxford: Oxford University Press. Richardson, J.J. and Jordan, G. (1979) Governing under Pressure, Oxford: Blackwells. Sabatier, P. (1988) ‘An advocacy coalition framework of policy change and the role of policyorientated learning therein’, International Organization, 46:1–35. Sandholtz, W. (1993) ‘Choosing union: monetary politics and Maastricht’, International Organisation, 47:1–39. Smoot, T and Verschuren, P. (1990), ‘Decision-making speed in the European Community’, Journal of Common Market Studies, 29:77. Urwin, D. (1989) Western Europe since 1945: a Political History, 4th edn, London: Longman. Van Schendelen, R. (ed.) (1992) National Public and Private Lobbying Aldershot: Dartmouth Press. Vaughan, R (1979) Twentieth-Century Europe, London: Croom Helm Publishers. Westlake, M. (1994) A Modern Guide to the European Parliament, London: Pinter. Willis, F.R. (1968) France, Germany and the New Europe 1945–1967, Stanford: Stanford University Press. Wood, D.M. and Yesilada, B.A. (1996) The Emerging European Union, London: Longman.

3 Integration theory and the study of the European policy process Laura Cram

INTRODUCTION In this chapter the development of European integration theory, its roots, development, and the current state of the debate, is examined. The chapter presents a critical overview of the key theoretical approaches to the study of European integration. It concludes with the argument that the insights emerging from contemporary studies of the governance of the EU might usefully be employed to enhance current attempts to conceptualise the integration process. THE EVOLUTION OF EUROPEAN INTEGRATION THEORY: THE THEORETICAL ROOTS During the Second World War and in its immediate aftermath, many scholars sought to elaborate a new type of political system which would facilitate co-operation between nations and the preservation of international (or at least Europe-wide) peace. Some theorists focused on the desirable end product of this co-operation (for example federalism and functionalism), while others focused on the background conditions which would be required for the establishment of a new transnational political community (for example, the transactionalist/communications school). Each, in their own way, contributed to the elaboration of later neo-functionalist attempts to explain the emerging process of European integration begun, in practice, with the establishment of the European Coal and Steel Community in 1951. Federalism For many scholars and politicians the potential solution to the conflict between European nations lay in the development of a European federation of nations. Throughout the Second World War, there were many references to the peace-making potential of a European federal political structure. The federalist movement had strong roots in the European resistance movement, and even further back, for example, in the writings of Coudenhove-Kalergi (1923, 1934 and 1938). The development of the post-war federalist movement was championed by committed federalists such as Jean Monnet, Walter Hallstein and Altiero Spinelli (1966) who were to be disillusioned by the slow progress in Europe and the virtual abandonment of any attempt to create a true European 40

Integration theory 41 federation. The end product of the European integration process was to fall far short of the ideals of these federalists. While remaining a popular vision today, the ‘federalist approach is more a strategy for fulfilling a common purpose and common needs than a theory explaining how these integrative forces arise’ (Hodges, 1972:13). Transactionalism/Communications school In contrast, the work of Deutsch (1957, 1964, 1966, 1967), and other scholars working within the transactionalist/communications tradition, focused on the conditions necessary for political integration to occur. Mutual transactions or communications were, for Deutsch a necessary, but insufficient, prerequisite for the development of a political community. Thus, travel, trade, telecommunications and postal links might, in themselves, lead to mutual relevance but, without creating mutual responsiveness, would fail to generate a sense of community. For Deutsch (1966:96–97), mutually-responsive transactions resulted from a complex learning process from which shared symbols, identities, habits of co-operation, memories, values and norms would emerge. Deutsch’s vision of political integration did not insist on the presence of any specified institutional structure but rather depended on ‘a historical process of social learning in which individuals, usually over several generations, learn to become a people’ (Deutsch 1966:174). The transactionalist/communication school approach was widely criticised, not least, for its methodological focus on transaction flow indices which did not provide an adequate picture of the multi-faceted integration process (Inglehart 1967 and Puchala 1970). However, Deutsch had highlighted the importance of the socio-psychological aspects of community formation (Hodges 1972:19) which were to be highly influential on subsequent work in the field of European integration: in particular, on Haas’s neo-functionalism.1 Functionalism Perhaps the most influential work of this period, both upon the European integration process and upon subsequent attempts to conceptualise this process, was David Mitrany’s functionalism. Yet, functionalism was not a theory of European integration. Indeed, Mitrany was directly opposed to the project of European regional integration. In his advocacy of a ‘A Working Peace System’, Mitrany (1943, 1966:68) proposed a universal, rather than a regional, solution to what he saw as the ‘problem of our generation’: ‘how to weld together the common interest of all without interfering unduly with the particular ways of each’. A central tenet of Mitrany’s work was his opposition to nationalism, and the territorial organisation of power which, like his contemporaries, he saw as a threat to world peace. He was vehemently opposed to the divisive organisation of states in the international system which he described as arbitrary ‘political amputations’ (1943, 1966:82). Yet, while many of his fellow scholars were searching for European co-operative solutions to the problem of world conflict he maintained that ‘peace will not be secured if we organise the world by what divides it’ (1943, 1966:96). In the pursuit of peaceful, non-coercive, community-building, Mitrany argued that nationalism at the nation-state level must not simply be replaced by nationalism at the European level. In his 1943 text Mitrany deals specifically with what he calls the ‘perplexities of federalism’. He had a number of problems with this, the most frequently proposed solution to

42 Laura Cram the problem of conflict in Europe. First, he argued that the ‘problems which now divide the national states would almost all crop up again in any territorial realignment; their dimensions would be different, but not their evil nature’ (Mitrany, 1943 1966:46). Second, while he agreed with the federalists that, ‘cooperation for the common good is the task’ (Mitrany 1943, 1966:97–98), he argued that it would be ‘senseless’ to tie this co-operation to a territorial authority. The number of necessary co-operative activities for him would remain limited while, he argued, ‘their range is the world’ (Mitrany 1943, 1966:98). Further, as all proposed federal solutions were limited, either territorially or ideologically, there was no guarantee that the necessary political consensus could be achieved to create the new constitutional framework which a federation would require. A federation, by its very nature, would prove divisive: ‘federation like other political formations, carries a Janus head which frowns division on one side in the very act of smiling union on the other’ (Mitrany 1943, 1966:93). A key factor in understanding Mitrany’s functionalist vision is the distinction which he draws between political/constitutional co-operation and technical/functional co-operation in his advocacy of a new international society. For him the task was clear: ‘our aim must be to call forth to the highest possible degree the active forces and opportunities for cooperation, while touching as little as possible the latent or active points of difference and opposition’ (Mitrany 1943, 1966:58). The political/constitutional route had clearly failed to rise to this challenge. Mitrany was all too aware of the failings of recent peace pacts, international treaties and of international organisations (which retained states as members) like the League of Nations. In contrast, he advocated the development of technical international organisations, structured on the basis of functional principles, 2 which would perform collective welfare tasks. Internal political conflict and interminable debates about the boundaries of national sovereignty were to be side-stepped. The function to be carried out would determine the type of organisation best suited for its realisation. This ‘technical selfdetermination’ would, in turn, mean that there would be ‘no need for any fixed constitutional division of authority and power, prescribed in advance’ (1943, 1966:73). Indeeed, ‘anything beyond the original formal definition of scope and purpose might embarass the working of the practical arrangements’ (1943, 1966:73). For Mitrany, it was rules, experts and the principle of ‘technical self-determination’ (1943, 1966:72), rather than territorial structures or national politicians, that would facilitate the decline of ideological conflict, the demise of nationalism, and would allow peaceful cooperation to develop on a world-wide scale. In his words: ‘It is no longer a question of defining relations between states but of merging them—the workday sense of the vague talk about the need to surrender some part of sovereignty’ (1943, 1966:42). If the needs of society were revealed, he argued, ‘quite starkly for what they are, practical household tasks’ it would ‘be more difficult to make them into the household idols of “national interest” and “national honor”’ (1943, 1966:99). While not entirely opposed to some kind of formal international union in the future, Mitrany cautioned that, as yet, the ‘political way was too ambitious’ (1943, 1966:97). Indeed he feared that the political/constitutional approach might even hamper progress towards a working international system. Only through co-operation in technical/functional organisations might it be possible to ‘set going lasting instruments and habits of a common international life’ (1943, 1966:58). Without these habits, political/constitutional action could not be contemplated: while with these learned habits of integration such political/ constitutional action may ultimately prove

Integration theory 43 superfluous (1943, 1966:97). Although somewhat vague on the processes by which functional action would lead to international society, Mitrany argued that the ‘growth of new habits and interests’, as a result of functional co-operation, would begin to dilute persisting or emergent ideological divisions (1943, 1966:58). Ultimately, ‘every activity organised in that way would be a layer of peaceful life; and a sufficient addition of them would create increasingly deep and wide strata of peace—not the forbidding peace of an alliance, but one that would suffuse the world with a fertile mingling of common endeavour and achievement’ (1943, 1966:98). With the ‘working peace system’ up and running, nationalism could, at last, be replaced by allegiance to the world community. In the context of European integration, Mitrany’s functionalism remains important not least because of its influence on two of the key architects of the European Coal and Steel Community (ECSC), Jean Monnet and Robert Schuman. Monnet and Schuman, in creating the ECSC, borrowed key aspects of what might be termed, the functionalist method, without adopting Mitrany’s central goal: the dissolution of territorially-based authorities. Thus Monnet and Schuman employed Mitrany’s focus on technical, sector-specific integration, and his emphasis on avoiding political debates about the surrender of national sovereignty, in order to facilitate the incremental establishment of a territorially-based organisation and the creation of a new regional authority structure. For Schuman, the pooling of resources in the European Coal and Steel Community, was ‘a first step in the federation of Europe’.3 Clearly, this was a very different end from that proposed by Mitrany! In many ways this deracination4 of Mitrany’s approach to international co-operation (later perpetuated in many respects by the (mis)categorisation of neo-functionalist theory as a direct descendant of functionalism)5 has led to Mitrany’s vision surfacing in the literature on European integration more often as a caricature of itself than as a true reflection of Mitrany’s functionalist ideal of an international society.6 Mitrany directly opposed the recreation of territorially-based state structures at the European level except insofar as they represented unrelated responses to technical self-determination. Neo-functionalism Functionalism met with many criticisms, not least because of the rather naive belief that a neat division between technical/functional issues and political/constitutional issues could be sustained. Increasingly, political scientists argued that the division between technical, non-controversial, economic issues, on the one hand, and political issues, on the other, was untenable: ‘economic integration, however defined, may be based on political motives and frequently begets political consequences’ (Haas 1958:12). Likewise, while Mitrany had prescribed the necessary development of a new world community, quite how the transition from functional action to international society would take place was never clearly specified and relied on a rather organic process of expansion which was not consistently observable in practice. By the late 1950s Ernst Haas (1958:4), in ‘The Uniting of Europe’, described Western Europe as a ‘living laboratory’ for the study of collective action between European states. A wide range of organisations, which required the collaboration of European governments, operated in Western Europe.7 Yet, as Haas (1958:4) noted: ‘detailed data on how—if at all—cohesion is obtained through these processes is lacking.’ It was this very process which Haas set out to investigate with the development of neofunctionalism.

44 Laura Cram In many ways the title neo-functionalism is something of a misnomer or ‘a case of mistaken identity’ (Groom 1978:21). Developed, in part, to address the gaps in existing functionalist theory and practice and, in part, as a pluralist critique of the realist school,8 which had hitherto dominated the study of international relations, the neo-functionalist approach is of very mixed intellectual parentage. Neo-functionalism, as well as addressing some of the shortcomings of Mitrany’s functionalism, also represents a clear divergence from some of his central tenets in a number of important respects. Although incorporating many elements of the ‘functionalist method’, as practised by Monnet and Schuman on the basis of their deracinated version of functionalist theory, neo-functionalism also draws upon some of the central tenets of both the communications school and of the federalist school of integration theory. Focus on the process of developing a new political community in Europe Neo-functionalism, in its early articulation, focused specifically upon the integration project in Europe. It sought to explain what was happening in Europe, and to provide a conceptual framework within which developments in Europe could be understood.9 For Haas, it was not the necessary background conditions nor the end product of co-operation between the nation-states which were the focus of his study.10 Rather, the focus of study for neo-functionalists was the process of political integration itself. For Haas: Political integration is the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, whose institutions possess or demand jurisdiction over the pre-existing national states. (Haas 1958:16)

In terms of the relationship between Mitrany’s functionalism and the neo-functionalism developed by Haas, it is important to note that for neo-functionalists the basic unit of analysis remained the territorially-based state system so vehemently opposed by Mitrany (Groom 1978:114). There was no concept in neo-functionalism of transcending the traditional territorial division of states: these were simply to be supplemented/replaced by new territorially-based organisations at the European level. The role of supranational institutions In terms of the intellectual parentage of neo-functionalism, Haas viewed a central government as ‘essential institutionally’ and a national (in this case European) consciousness as ‘essential socially’ (1958:8). The links with the federalist11 and communications schools respectively are clear. Although recognising the importance of the insights developed by Deutsch, and in particular of the importance of an emergent European-centred belief system, for Haas, ‘the existence of political institutions capable of translating ideologies into law [is] the cornerstone of the definition’ (1958:7). The contrast with Mitrany’s functionalism is stark. Mitrany specifically warned against the creation of territorially-based supranational authority structures: ‘for an authority which had the title to do so would in effect be hardly less than a world government; and such a strong central organism would inevitably tend to take unto itself rather more authority than that originally allotted to it’ (Mitrany, 1943, 1966:75). In contrast, in Haas’s neo-functionalist approach, the very propensity of organisations to maximise their powers, is an important element

Integration theory 45 of the process through which a political community is formed. Indeed, the supra-national institutions are allotted a key role as potential ‘agents of integration’ (Haas 1958:29). The supranational institutions were expected both to facilitate the transfer of elite loyalties to the European level and to play the role of ‘honest broker’ facilitating decision-making between recalcitrant national governments (Haas 1958:524). Interests, learning and authority-legitimacy transfers The neo-functionalist approach shares with Mitrany’s functionalism a focus on social actors and technical experts. However, Haas did not share Mitrany’s vision of politically neutral actors carrying out technical/functional tasks unaffected by political conflict. Less idealistic, Haas’s pluralist-based neo-functionalism recognised the continuing importance of national political elites, and emphasised the key role played by interest-based politics, in driving the process of political integration. National political elites might, for example, become more supportive of the process of European integration as they learned of the benefits which might ensue from its continuation.12 In turn, a re-evaluation of the interests of the political elite (whether in favour of, or in opposition to, the European project) would result, ultimately, in the transformation of traditional nationally-centred belief sytems: As the process of integration proceeds, it is assumed that values will undergo change, that interests will be redefined in terms of regional rather than a purely national orientation and that the erstwhile set of separate national group values will gradually be superseded by a new and geographically larger set of beliefs. (Haas 1958:13)

In its focus upon the learning of integrative habits, as a result of prior co-operation, neofunctionalism displays a clear link with both the functionalist and communication schools. For Haas, however, this was not a one-way process. Although the attitudes of national political elites would influence the development of the integration process, supranational political elites also had a role to play in encouraging the process of integration. Thus, ‘decision-makers in the new institutions may resist the effort to have their beliefs and policies dictated by the interested elites and advance their own prescription’ (Haas 1958:19). It was through a complex interaction of belief systems that Haas envisioned that the reorientation of the activities of national political elites, in response to European-centred interests and aspirations, would take place. 13 Ultimately, Haas argued that as ‘beliefs and aspirations’ were transformed, through the interaction of supranational and national belief systems, ‘a proportional dimunition of loyalty to and expectations from the former separate national governments’ could be expected (Haas 1958:14). A shift in the focus of national loyalties and, importantly, of expectations towards the new supranational authority structure would similarly be expected. The central importance of the transfer of loyalty in early neo-functionalist explanations of the process of political integration is undisputed. However, in his later work, Haas (1970:633) recognised the difficulty of measuring this transferral and welcomed the contribution of Lindberg and Scheingold (1970) who stressed the importance of the extent to which authority for decisionmaking had been transferred to the European level. The degree to which ‘authority-legitimacy’ transfers had taken place would, they argued, provide a measurable indicator of progress towards

46 Laura Cram a new political community. The authority-legitimacy transfer was not, however, the sole defining criterion of political integration identified by Haas. Crucially, the process of political integration encompassed not only a change in the focus of the ‘loyalties’ of the political elite but also in the focus of their ‘expectations and political activities’ (Haas 1958:16).14 The reorientation of the interests of the political elite, Haas argued, may result as much from their opposition to, as from their support for, the integration process. It is the reorientation of national expectations and political activities in response to supranational developments in Europe, or to the pull of the new centre, which are crucial for the process of political integration, not simply the extent to which the political actors are in support of the process of integration. Haas (1958:288) considered that although elites with ‘long-run negative expectations’ of supranational activity might appear irreconciliable to the ‘unification pattern’, in fact, ‘even the consistently negative-minded may be persuaded to adjust’ (Haas 1958:296). Meanwhile, groups with shortrun negative expectations who mobilise in response to specific supranational policies which they oppose: ‘may, in self defence, become a permanent institution with a common—albeit negative— body of expectations’ (Haas 1958:288). Any shift in loyalties, in response to the activities of the new centre, need not be absolute or permanent. Multiple loyalties may continue to exist. Hence, for Haas (1958:15–16), it is was more likely to be the convergence of a very disparate set of interests that would drive the process of integration and result in the establishment of a new political community, than any mass conversion to the doctrine of ‘Europeanism’. Ultimately, a self-interested shift in loyalty, or in the focus of political activities, by the political elite will increase the dynamic towards the development of the new political community, whether it results from positive or from negative long-term expectations of the integration process (Haas 1958:297). It is this process which is usually referred to as political spill-over. Spill-over v technical self-determination It is the process of political ‘spill-over’ which is, perhaps, most closely associated with the neofunctionalist approach to the study of European integration and which represented the most significant advance upon Mitrany’s functionalist method. Political spill-over, in short, consists of a convergence of the expectations and interests of national elites in response to the activities of the supranational institutions. This, in turn, may result in a transfer of loyalties (authoritylegitimacy transfers) or, at minimum, in a transformation in the political activities of national elites (for example, a rise in European lobbying) in favour of, or opposed to, new supranational policies. Crucially, political spill-over could be positively or negatively inspired and was expected to increase as supranational policies were revealed to be of increasing relevance to national elites. The concept of political spill-over was a major advance upon Mitrany’s functionalist focus on the notion of ‘technical self-determination’, and on his reliance on a rather organic process in which successful co-operation in one area would encourage co-operation in another area. Haas, however, continued to recognise the importance of functional or technical spill-over which, he argued, was based on a quite different logic from that which drove political spillover: ‘sector integration…begets its own impetus toward extension to the entire economy even in the absence of specific group demands and their attendant ideologies’ (Haas 1958:297). In neo-functionalist terms, the process of functional or sectoral spill-over referred to the situation

Integration theory 47 in which the attempt to achieve a goal agreed upon at the outset of co-operation, such as the harmonisation of coal and steel policy, becomes possible only if other (unanticipated) cooperative activities are also carried out, for example harmonisation of transport policy or economic policy. In this way co-operation in one sector would ‘spill-over’ into co-operation in another, previously unrelated, sector. Haas increasingly sought to refine his understanding of the dynamics of the process of functional or sectoral spill-over and to move away from the automaticity inherent in the concept of ‘technical self-determination’. In 1960, Haas argued that there was no ‘dependable, cumulative process of precedent formation leading to ever more community-oriented organisational behaviour, unless the task assigned to the institutions is inherently expansive, thus capable of overcoming the built-in autonomy of functional contexts and of surviving changes in the policy aims of member states’.15 With his focus on inherently expansive tasks, Haas clearly distinguished his neo-functionalism from Mitrany’s functionalism. Far from focusing on the very separate demands of different functional tasks, Haas focused on the potential linkages between sectors. It was this focus on linkage politics which, in part, contributed to the image of the political integration as an inexorable process: a snowball, constantly gathering momentum as the process of integration rolled on. Importantly, the snowball effect identified by neo-functionalism was not limited only to political, or to functional/sectoral spill-over, but also incorporated what Haas (1958:317) referred to as geographical spill-over. Haas recognised that co-operation between one group of member states was likely to have some effect upon excluded states: not least by altering existing patterns of trade. In turn, the responses of non-member states might, he argued, influence the process of integration. In this context, Haas referred particularly to the integrative effects which UK participation in the European Free Trade Area had had upon the UK government’s attitude towards European co-operative ventures (1958:314–317). By 1957, the UK government had recognised that, at least, ‘qualified association’ with the EEC was necessary. Haas (1958:317) noted that ‘a geographical spill-over is clearly taking place’. This is an aspect of neo-functionalist spill-over which is often overlooked but which has clear resonances today as the EU seeks to accommodate an increasing range of demands for membership. The hey-day of neo-functionalism Initial evaluations of the neo-functionalist approach appeared favourable. As the ECSC ‘spilledover’ into the European Economic Community and Euratom, in many ways it seemed that neofunctionalism had rather neatly encapsulated the process of European integration: Economic integration—with its evident political implications and causes—then became almost a universal battlecry, making complete the ‘spill-over’ from ECSC to Euratom and its promise of independence from oil imports, from sector common markets to the General Common Market (Haas 1958:298)

Not only had the Rome Treaties been signed in 1957, providing a good example of sectoral spillover, but, by the early 1960s, a number of members of the competitor European Free Trade Association (EFTA) had begun to apply for membership of the EEC. Hence a type of geographical spill-over had also begun.16 Political spill-over, was in clear evidence, as interest groups mobilised, for example, around the issue of the Common Agricultural Policy. Not least,

48 Laura Cram the European Commission, with Walter Hallstein as President, had adopted an active constitutional role for itself and was a committed ‘agent of integration’. As the goals of the first transition phase were achieved, it was decided that the second phase could be shortened. At the time it appeared that ‘the spill-over may make a political community of Europe in fact even before the end of the transition period’ (Haas 1958:311). Very shortly, however, it became clear that the picture was not so simple as neofunctionalism had painted it. Within a few short years De Gaulle had vetoed the UK membership application (hence curtailing the process of geographical spill-over), the French ‘empty chair policy’ of 1965 had put paid, at least in the short term, to any notion of Commission activism and its encouragement of political spill-over, and, finally, the oil crisis and recession of the early 1970s had brought even the automaticity of sectoral spill-over into question. Clearly, forces other than those identified by Haas were at play and now had to be explained. The realist/intergovernmentalist approach The study of international relations more generally had been dominated, in the post-war period, by the realist model of world politics. The most influential text in post-war international relations, ‘Politics Among Nations’ (Morgenthau, 1948, 1954, 1960, 1967), identified a world system in which the dominant actors were rational unitary states, prepared to use force to achieve their goals, and for whom the maintenance of military security lay at the apex of their hierachy of goals.17 From a realist perspective the interaction between states in a conflictual international environment was central and the balance of power was constantly shifting. From this perspective, co-operative ventures between nation states were likely only to constitute a temporary equilibrium, from which the partners were at liberty to withdraw should they no longer feel that their interests were best served by membership. While there have been many criticisms of the realist approach, it is perhaps unsurprising that one of the most powerful early critiques of the neo-functionalist approach to the study of European integration, should have had roots in this tradition of thought. While acknowledging the shortcomings of the realist school, not least the fact that states could in no way be characterised as unitary actors, Stanley Hoffmann (1966) in his intergovernmentalist critique of the neo-functionalist approach developed upon some of the insights of the realist school. Hoffmann emphasised the importance of the international environment and the role which nation governments played within the global system. The role of national governments was to promote the interests of their peoples to the best of their abilities within an adversarial world system. The implications of this for the study of regional politics (such as the process of European integration) were important. First, the importance of regional politics was, Hoffmann argued, far less important to national governments than ‘purely local or purely global’ concerns (1966:865). Within the global international system ‘regional sub-systems have only a reduced autonomy’ (1966:865). Second, he highlighted the contingent nature of any transnational co-operation. While ‘extensive cooperation is not at all ruled out’, there ‘would be no assurance against a sudden and disastrous reversal’ (1966:896). For Hoffmann, national governments were more ‘obstinate’ than ‘obsolete’ in the process of European integration. This was clearly a serious challenge to the snowball effect of co-operation proposed by the neo-functionalist approach.

Integration theory 49 Hoffmann also drew attention to the ‘limits of the functional method’ or, as he referred to it, the ‘Monnet method’ (1966:885, 886). Hoffmann criticised the logic of integration implicit in the ‘Monnet method’, which Haas had incorporated into his neo-functionalist approach. Hoffmann argued that, in fact, it was the ‘logic of diversity’ which prevailed and would set limits to the ‘spill-over’ anticipated by the neo-functionalists (1966:882). In areas of vital national interest, Hoffmann argued, national governments were not willing to be compensated for their losses by gains in other areas. Crucially, some issues were more important than others. Instead, national governments would choose to minimise uncertainty and would maintain tight control over decision processes when vital interests were at stake. Russian roulette is fine only as long as the gun is filled with blanks…Functional integration’s gamble could be won only if the method had sufficient potency to promise an excess of gains over losses, and of hopes over frustrations. Theoretically, this may be true of economic integration. It is not true of political integration (in the sense of ‘high politics’). (Hoffmann 1966:882)

Hoffmann’s distinction between issues of ‘low politics’ (economic and welfare policies) and matters of ‘high politics’ (foreign policy, security and defence) was central to his critique of the neo-functionalist approach. The ambiguity implicit in the neo-functionalist ‘logic of integration’ might appear acceptable to national governments when taking decisions about tariffs, and almost sufficed for discussions on the issue of agriculture. When it came to the discussion of matters of ‘high politics’, however, clear and consistent goals would be required (Hoffmann 1966:883). National governments would not be persuaded to accept anything less. DEVELOPING INTEGRATION THEORY IN THE 1970s There have been many attempts to reassess and revitalise neo-functionalism. Many of these resulted in important refinements to Haas’s original work (see for example, Lindberg 1963, Haas 1964, Lindberg and Scheingold 1970, Nye 1968, Schmitter 1970). Increasingly, it was recognised that integration was not an inexorable process, in which national governments found themselves caught up, but a process which might just as easily ‘spill back’ or ‘spill around’. However, in the context of the late 1960s and early 1970s it was difficult to make a case for the neo-functionalist approach. Indeed, while in 1970, Haas was reflecting upon the ‘Joy and Anguish of Pretheorizing’, by 1975 he was declaring the ‘Obsolescence of Regional Integration Theory’. As the EEC faced a period of stagnation, shaken by international events and the actions of domestic leaders, the snowball of neo-functionalism seemed to have melted. The study of European integration was clearly less fashionable in this ‘doldrums period’ (Caporaso and Keeler 1995:36). For a number of years scholars of European integration, having observed the apparent stagnation of the integration process and the consignment of neo-functionalist and communication school approaches to the theoretical wastelands, were, understandably, somewhat hesitant to generate ‘grand theories’ of European integration. However, as Caporaso and Keeler (1995:39) argue, the scholarship generated during this period deserves more attention and respect than it has received. As well as providing many important insights into the integration process, the studies of this period provided the foundations for later studies of both the integration process and of the functioning of the EU

50 Laura Cram as a polity or system of governance. Case studies of European policy-making proliferated, significantly enhancing understandings of how the European institutions and member states interacted. Meanwhile, a number of theoretically-distinct developments were to play a significant role in facilitating a more synthetic approach to the study of European integration in the late 1980s and 1990s. Domestic politics approaches First, scholars recognised the importance of domestic politics and of the political concepts developed in the context of domestic politics in enhancing our understanding of European policy-making. In 1975, Puchala questioned the snowball effect of neo-functionalism and argued that national governments remained important determinants of the integration process. In 1979 Wallace, Wallace and Webb, edited a detailed series of case-studies into the process of policy-making in the EC. They concluded that national governments were the central actors in the integration process and that an understanding of the internal domestic politics of the member states was crucial to any rounded understanding of the integration process. This approach was further developed in 1983 when Bulmer sought to move away from the ‘supranationalism versus intergovernmentalism’ debate and to explain the ‘linkages between the domestic and EC tiers’ (Bulmer 1983:349). He criticised the persistent focus on the EC solely as an international organisation and argued that the analytical tools usually applied to the study of national politics could usefully be applied to the study of the behaviour of member states in the EC. Interdependence/Regime theory Meanwhile, the study of international organisations more generally was undergoing some radical changes. Students of international relations, rejecting the realist model, began to attribute to international organisations a degree of dynamism, not solely attributable to the interests of nation states (Keohane and Nye 1974, 1977). Interdependence theorists recognised the fragmented nature of the nation state, the importance of transnational actors (including for example multinational companies) and the effect on national governments of participating in international regimes. Cooperation between member states in an interdependent world is unavoidable, and membership in international regimes may help to minimise the uncertainties inherent for nation states in international collaboration. Crucially, however, in this interpendent world ‘recurrent interactions can change official perceptions of their interests’ (Keohane and Nye, 1977:34). Although, the interdependence school did not focus specifically on the EC, but more broadly on the creation of international regimes, this approach generated a number of important insights which have been incorporated into subsequent attempts to understand the process of European integration. Law and integration Finally, the study of European institutions was being presented with some new challenges. Increasingly, scholars argued that the study of European institutions needed to encompass an examination of the role of the Court of Justice and of the impact of European law in the process of European integration. During this period Weiler (1982) and Stein (1981) began to draw attention

Integration theory 51 to the relevance of the law to any study of the European integration process. While the other institutions might have been going through a doldrums period, this was hardly the case for the Court: Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe. (Stein 1981:1; cited in Wincott 1995a)

UNDERSTANDING RECENT CONSTITUTIONAL DEVELOPMENTS Since the relaunch of the Community (now EU), with the Single European Act and the Maastricht Treaty, the study of European integration has enjoyed a renewed momentum. As Caporaso and Keeler (1995:43) note, ‘to a striking extent, however, the new debates parallel the old’: the central division remains that between state-centric and non statecentric approaches to the study of European integration. Recent attempts to conceptualise the process of European integration, from both perspectives, have sought to incorporate the strengths of earlier approaches, while addressing their weaknesses and building upon some of the theoretical insights developed in the 1970s. Some of the most ambitious studies have emerged as an attempt to explain the negotiation of the Single European Act (SEA), a key constitutional event in the history of European integration. In ‘1992: Recasting the European Bargain’, for example, Sandholtz and Zysman (1989) incorporate some of the key insights of the neo-functionalist approach. They argue that, in the run up to the Single European Act, the European Commission played a crucial leadership role, acting as a ‘policy entrepreneur’.18 Aided by a transnational industry coalition which was in favour of the single market, they argue, the Commission was able to persuade an important coalition of national governments of the benefits of market unification (Sandholtz and Zysman 1989:96). The critical role played by European business elites, in setting the agenda for the 1992 project, in mobilising support, and in overseeing its implementation, has also been demonstrated by Green-Cowles (1995). Crucially, Sandholtz and Zysman (1989) also address one of the most powerful critiques of the neo-functionalist approach: that it neglected the impact of the international environment. For Sandholtz and Zysman (1989:100), changing international and domestic conditions, the rise of Japan, the relative decline of the US and the evident failure of existing national economic policies in Europe were the very events which made 1992 possible: ‘international and domestic situations provided a setting in which the Commission could exercise policy entrepreneurship, mobilizing a transnational coalition in favour of the unified internal market’. Thus, as well as drawing upon the insights of the neo-functionalist school, Sandholtz and Zysman incorporate aspects of the ‘domestic politics’ approach and recognise the vital catalytic role played by changes in the international environment. However, in 1991 in ‘Negotiating the Single European Act’, Moravscik (1991) argued that it was not an elite alliance between European officials and the European big business elite which had made the SEA possible. In contrast to the revised neo-functionalist interpretation of the SEA advocated by Sandholtz and Zysman, Moravscik, drawing on the insights of realist and intergovernmentalist approaches, argued that interstate bargains between Britain, France and Germany were the key determinants of the negotiation of the SEA (1991:42). Moreover, the

52 Laura Cram bargains struck represented the ‘lowest common denominator solution’ achievable only because of the convergence of national interests. Each government had closely guarded its national sovereignty and had placed strict limits on any future transfer of sovereignty (1991:46–8). While acknowledging the influence of the realist school of thought (states as the principal actors in the international system), and of the regime school of international relations (shaping interstate politics by providing a common framework which reduces transaction costs and minimises uncertainty), Moravscik differentiated his ‘intergovernmental institutionalism’ by stressing the importance of ‘domestic politics’ in influencing the changing interests of states (1991:48). Moravscik further develops his argument in ‘Preferences and Power in the European Community’. In this work on liberal intergovernmentalism, he argues that ‘state behaviour reflects the rational actions of governments constrained at home by domestic societal pressures and abroad by their strategic environment’ (1993:474). The preferences of national governments, which determine their positions in international negotiations, are determined, he argues, by domestic societal forces, ‘the identity of important societal groups, the nature of their interests and their relative influence on domestic policy’ (1993:483). Within the framework of liberal intergovernmentalism, however, he allows for a degree of what he terms ‘agency slack’ (1993:484, 488). Thus, within the principal-agent relationship, in which societal principals delegate power to governmental agents, there is on occasion some limited discretion allowed to those agents. Where the interests of societal groups are ambiguous or divided, the constraints upon government are loosened, allowing politicians ‘a wider range of de facto choice in negotiating strategies and positions’. National governments have not, he argues, simply passively enjoyed the benefits of the occasional discretion allowed to them by divided or unclear domestic pressures. They have actively sought to maximise their room for manouevre. Thus, Moravcsik has argued (1993), that national governments have used EU institutions as part of a two-level game (cf. Putnam 1988) to increase the policy autonomy of national governments in relation to domestic interests, ‘particularly where domestic interests are weak or divided, EC institutions have been deliberately designed to assist national governments in overcoming domestic opposition’ (Moravcsik 1993:515). Thus, in his more recent work Moravscik has argued that far from supranational elites tying member states into a process to which they are resistant, the EU may in fact strengthen the state by allowing, for example, chief executives ‘to manipulate their own domestic constituents into accepting common policies’ (1994:47). More recently, Sandholtz (1993) has criticised the presentation of the debate about European integration as a dichotomy between intergovernmentalist and institutionalist approaches. Although decisions are taken in intergovernmental institutions (therefore analysis of intergovernmental bargaining processes is important), the preferences on the basis of which national governments influence EC policies ‘are themselves influenced by EC institutions and law’ (Sandholtz 1993:3). In emphasising the endogenous nature of preference formation, Sandholtz not only recalls the insights of Haas, who argued that participation at the European level would alter the perceptions which national elites held of their own interests, but also emphasises the development of shared identity, norms and behaviour patterns developed within the context of an international regime (in this case, the European Monetary System). Examining the decision of the member states to commit themselves to monetary policy in the Maastricht Treaty, Sandholtz (1993:3) argues that there is an important link between participation in the EU policy regime and the formation of government preferences:

Integration theory 53 membership in the EC has become part of the interest calculation for governments and societal groups. In other words, the national interests of EC states do not have independent existence; they are not formed in a vacuum and then brought to Brussels. Those interests are defined and redefined in an international and institutional context that includes the EC. (Sandholtz 1993:3)

UNDERSTANDING THE EUROPEAN UNION AS A POLITY Attempts to understand major constitutional decisions, as landmarks in the integration process, are now accompanied by a growing literature examining the functioning of the EU as a system of governance. Drawing on approaches from the areas of comparative politics and policy analysis (Sbragia 1992, Bulmer 1994a, 1994b, Peters, G. 1992, Peters, B. 1994, Majone 1993, Marks 1992, Mazey and Richardson 1993, Peterson 1995): increasingly scholars assume that some institutional structure is in place and examine what goes on inside these structures. Politics and policy-making within institutions have assumed an analytic place alongside the politics of institutional change. (Caporaso and Keeler 1995:43)

It is increasingly recognised that it is important to focus, not simply on the process through which major institutional change takes place in the EU, but also on the ‘day to day’ functioning of the EU as a polity. Recent studies reveal the crucial role which interest groups have played in the EU policy process (Mazey and Richardson 1993, Greenwood et al. 1992); while others demonstrate how EU institutions have influenced the agenda-setting, policy formulation and implementation processes. Studies have highlighted the role of bureaucratic politics in the EU (Peters 1992); the role of the Commission as agenda-setter (Peters 1995, Pollack 1995), and the Commission’s role in the promotion of the EU regulatory regime (Majone 1989, 1991a, 1991b, 1992a, 1992b, 1993, Dehousse 1993, Cram 1993, Bulmer 1994a). Likewise, the role of the European Parliament as ‘conditional agenda-setter’ has been examined (Tsebelis 1994). Increasingly too, scholars have begun to assess the important political role played by the European Court of Justice (Weiler 1991, Garrett 1992, Shapiro 1992, Garrett and Weingast 1993, Burley and Mattli 1993, Wincott 1995a) and, importantly, to examine the critical interactions between the Court and other institutions within the policy process (Alter and Meunier-Aitsahalia 1994,Wincott 1995b). Scholars have, meanwhile, been forced to recognise the complexity of the role played by EU institutions. Analysts have, for example, cautioned against over-generalisation concerning the role of ‘the Commission’, which is a highly differentiated structure (Cram 1994), or of the impact of the European Parliament, as its influence varies between policy sectors (Judge et al. 1994). These policy-based studies have important implications for evaluations of the most appropriate ‘conceptual lenses’ (Allison 1971) through which to view the integration process. Peterson (1995:71), for example, conceptualises the EU as a multi-tiered system of governance. He distinguishes between the different types of decision taken, the different actors which dominate, and the different types of rationality which inform their actions, at the various levels of analysis identified within the EU. Peterson concludes that no single theory can explain EU governance at all levels of analysis. Broad ‘macro’ approaches to the issue of integration (such as neofunctionalism or state-centred ‘intergovernmentalist’ approaches) are particularly useful for explaining the major ‘history-making’ decisions of the EU. When it comes to explaining ‘policy

54 Laura Cram setting’ or ‘policy shaping’ decisions, however, ‘macro-theories tend to lose their explanatory power’ (Peterson, 1995:84). Indeed, as our understanding of the EU policy process, and of the process of European integration more generally, becomes more sophisticated, it may increasingly be the case that ‘our explanatory goals are best served by specifying the analytic strengths—and limitations—of approaches that work better in combination than alone’ (Sandholtz, 1993:39). While scholars have argued that it is necessary to distinguish between the politics of the EU policy process, and the process of European integration (Hix, 1994), or between history-making and day to day decisions (Peterson, 1995), it is important not to overstate the division between the two. It is clearly useful to distinguish between different levels of analysis for analytic purposes. It is important, however, to remember that this divide is not clear cut. The relationship between the politics and processes which accompany ‘day to day’ decision-making, as opposed to ‘constitutional’ or ‘history-making’ decisions, is, in many respects, reciprocal. From this perspective, the studies of the ‘normal politics’ of the EU, identified by Caporaso and Keeler (1995:56), might most usefully be viewed, not simply as occurring alongside the development of integration theory but, rather, as performing a crucial role by enhancing existing understandings of the process of European integration and of the various influences upon the environment in which major ‘history-making’ decisions are taken. The insights of these studies are crucial in facilitating the development of a more rounded understanding of the integration process. CONCLUSION: TOWARDS A SYNTHESIS OF APPROACHES Haas noted that, ‘Deutsch [1954] raised all the major questions and introduced many of the concepts that still preoccupy and guide the research effort’ (1970:607). The same might be said today of much of the work of the neo-functionalists. The policy literature has clearly demonstrated that while, of course, national governments take all major decisions and enjoy a central role in the policy process, many of the actors and processes identified by the neo-functionalists and transactionalists also have an important impact on the EU policy process. Yet the criticisms levelled at early neo-functionalist attempts to construct a theory of European integration also remain valid: they failed to specify a clear set of underlying asssumptions concerning the nature of the fundamental actors in the integration process, how their preferences are formed, and the constraints and opportunities which they face (Moravcsik 1993:477). The increased understanding of the intricacies of the policy-process which has been generated by recent studies of the EU as a polity or system of governance has been important in at least two major respects. First, in highlighting new questions to be addressed by integration theorists and exposing the shortcomings of existing explanatory approaches, and second, in addressing some of the commonly-acknowledged explanatory failings of existing theories of integration. Perhaps the most important contribution of the recent upsurge in studies which employ the tools of comparative politics and policy analysis to the study of developments in the European Union, is the role it has played, not only in furthering our understanding of the functioning of the EU as a polity or system of governance, but also in extending our knowledge concerning the nature of the critical actors involved in the process of European integration, their motivations, strategies and goals. The details of the policy process may help analysts to address the recognised shortcomings in the macro-theories by, for example, justifying the various analysts’ focus on particular actors,

Integration theory 55 explaining the process of preference-formation through empirical observation, examining the nature of the actors involved (to what extent may they be characterised as rational actors, for example?), and by identifying the relationship between the policy environment and the taking of major constitutional decisions (Cram 1994, Wincott 1995). The policies which emerge from the policy-making process, moreover, and the impact on the various actors of their participation in this process, may be critical factors in determining the role which national governments play and the positions which they adopt in the negotiations on the future of the EU. Thus, by altering the environment in which the dominant actors (member states) take critical ‘history-making’ decisions, the activities of the institutions and other interests may also have had a major impact upon the integration process. A crucial insight of the early integration theories has largely been overlooked in recent years: namely, that in understanding the outcome of negotiations at the ‘constitutional’ level of EU decision-making it is crucial to take into account the learning and adaptation processes, which iterated contact between the various actors in the policy-making process has made possible, and to filter this into any theoretical account of the integration process. NOTES 1 See section on neo-functionalism p. 43. 2 In his advocacy of functionally-organised international organisations Mitrany referred, for example, to the organisation of the International Labour Organisation (1943, 1966:83–85). 3 Schuman Declaration, 9 May 1990, reproduced in part in Weigall and Stirk (1992:59). 4 Thanks to James Mitchell for this characterisation. 5 See A.J.R.Groom (1978) on this point and also below. 6 For example, in a footnote to his 1965 article in the Journal of Common Market Studies, Mitrany notes one misplaced critique of ‘functionalism’: ‘the experience of the European communities shows the unreality of the ‘functionalist’ thesis that starting from small, autonomous specialised authorities one could build a complete state!’ (M.J.Petot cited in Mitrany 1965, 1966:198). Yet, as Mitrany reminds us: ‘A complete state and its introverted nature happens to be the very idea which functionalism seeks to overcome internationally.’ (Mitrany 1965, 1966:198). The critique, in fact, relates more closely to Monnet and Schuman’s deracinated version of functionalism rather than to Mitrany’s functionalist thesis. 7 Haas (1958) notes in particular: The Organisation for European Economic Cooperation; the Council of Europe; the Western European Union; and the European Coal and Steel Community. 8 See below for a summary of the key aspects of the realist approach to international relations. 9 Later this was to result in the criticism that neo-functionalism which based its analysis on results from the study of only one example of the integration process, did not travel well. Thus, that its strengths as a generalisable theory of integration were diminished (see Caporaso and Keeler 1995 on this point). 10 Although both of these were recognised as crucial aspects of European integration. 11 Although Haas specifically points out that the central institutions need not be federal but could equally be unitary state structures (Haas 1958:8). 12 Although, they may equally, Haas recognised become opposed to the integration process as they recognise its costs (Haas 1958:287–288). 13 Interestingly, Haas had found the ECSC legislature rather wanting in this respect—it had clearly not lived up to the expectations Monnet had of a federal executive—Haas felt, however, that the Assembly might prove to be a more ‘faithful prototype’ of a federal parliament’ (Haas 1958:311). 14 Emphasis added by Cram. 15 Emphasis added by Cram. Haas (1960:376) quoted in Lindberg (1963:10–11). 16 Applications for membership came from Denmark, Ireland and the UK in 1961 and from Norway in 1962. 17 See Keohane, R. and Nye, J. (1977) on Morgenthau. 18 Recall Haas’s (1958:29) emphasis on the important role of institutions as ‘agents of integration’.

56 Laura Cram REFERENCES I would like to thank James Mitchell for his helpful comments on this chapter. Allison, G. (1971) Essence of Decision: Explaining the Cuban Missile Crisis Boston: Little, Brown andCompany . Alter, K. and Meunier-Aitsahalia, S. (1994) ‘Judicial Politics in the European Union: European Integration and the Pathbreaking Cassis de Dijon Decision’ Comparative Political Studies 26:4, 536–561. Bulmer, S. (1983) ‘Domestic Politics and EC Policy-Making’ Journal of Common Market Studies 21:4, 349–363. Bulmer, S. (1994a) ‘The Governance of the European Union: A New Institutional Approach’ Journal of Public Policy 13:4, 351–380. Bulmer, S. (1994b) ‘Institutions and Policy Change in the European Communities: The Case of Merger Control’ Public Administration 72, 423–444. Burley, A. and Mattli, W. (1993) ‘Europe Before the Court: A Political Theory of Legal Integration’ International Organisation 47, 41–76. Caporaso, J. and Keeler, J. (1995) ‘The European Union and Regional Integration Theory’ in Mazey, S. and Rhodes, C. (eds) The State of the European Union vol. 3 Boulder: Lynne Reiner/Longman. Coudenhove-Kalergi, R. (1923) Pan-Europa Editions Ltd: Glarus, Switzerland. Coudenhove-Kalergi, R. (1938) Europe Must Unite Editions Ltd: Glarus, Switzerland. Coudenhove-Kalergi, R. (1943) Crusade for Pan Europe New York: Putnam. Cram, L. (1993) ‘Calling the Tune Without Paying the Piper? Social Policy Regulation: The Role of the Commission in European Union Social Policy’ Policy and Politics 21, 135–146. Cram, L. (1994) ‘The European Commission as a Multi-Organization: Social Policy and IT policy in the EU’ Journal of European Public Policy 1:2, 195–217. Dehousse, R (1993) ‘Integration v. Regulation: On the Dynamics of Regulation in the European Community’ Journal of Common Market Studies 330:4, 383–402. Deutsch, K. (1954) Political Community at the International Level: Problems of Definition and Management Garden City: Doubleday and Co. Deutsch, K. et al. (1957) Political Community: North Atlantic Area New York: Greenwood Press. Deutsch, K (1964) ‘Communication Theory and Political Integration’ in Jacob, P. and Toscano, J. (eds) The Integration of Political Communities, Philadelphia: J.P.Lippincott & Co. Deutsch, K. (1966) Nationalism and Social Communication: An Inquiry into the Foundations of Nationality 2nd edn, Cambridge MA: MIT Press. Deutsch, K. (1967) Arms Control and the Atlantic Alliance London: John Wiley and Sons. Garrett, G. (1992) ‘International Cooperation and Institutional Choice: the European Community’s Internal Market’ International Organisation 46:2, 533–560. Garrett, G. and Weingast, B. (1993) ‘Ideas, Interests and Institutions: Constructing the European Community’s Internal Market’ in Goldsetin, J. and Keohane, R. (eds) Ideas and Foreign Policy: Beliefs, Institutions and Political Change London: Cornell University Press. Green-Cowles, M. (1995) ‘Setting the Agenda for a New Europe: The ERT and EC 1992’ Journal of Common Market Studies 33:4, 501–506. Greenwood, J., Grote, J. and Ronit, K. (1992) (eds) Organised Interests and the European Community London: Sage. Groom, A.J.R. (1978) ‘Neo-functionalism: A Case of Mistaken Identity’ Political Science 30:1, 15–28. Haas, E. (1958) The Uniting of Europe Stanford: Stanford University Press. Haas, E. (1964) Beyond the Nation-State: Functionalism and International Organisation Stanford: Stanford University Press. Haas, E (1960) ‘International Integration: The European and the Universal Process’ International Organization 15, 366–392. Haas, E. (1970) ‘The Study of Regional Integration: Reflections on the Joys and Anguish of Pre-Theorising’ International Organisation 4, 607–646. Haas, E. (1975) The Obsolescence of Regional Integration Theory Berkeley: Institute of International Studies.

Integration theory 57 Hix, S. (1994) ‘The Study of the European Community: The Challenge to Comparative Politics’ West European Politics 17:1, 1–30. Hodges, M (eds) (1972) ‘Introduction’ in European Integration London: Penguin. Hoffmann, S. (1966) ‘Obstinate or Obsolete? The Fate of the Nation State and the Case of WesternEurope’ Daedalus, 95:892–908. Inglehart, R. (1967) ‘An End to European Integration’ American Political Science Review 61, 91–105. Judge, D., Earnshaw, D. and Cowan, N. (1994) ‘Ripples or Waves: the European Parliament in the European Community Policy Process’ Journal of European Public Policy 1:1, 27–52. Keohane, R. and Nye, J. (1974) ‘Transgovernmental Relations and the International Organisations’ World Politics 26:1, 39–62. Keohane, R. and Nye, J. (1977) Power and Interdependence: World Politics in Transition Boston: Little, Brown. Lindberg, L. (1963) The Political Dynamics of European Economic Integration Stanford: Stanford University Press. Lindberg, L. and Scheingold, S. (1970) Europe’s Would-Be Polity: Patterns of Change in the European Community Englewood Cliffs: Prentice-Hall. Majone, G. (1989) ‘Regulating Europe: Problems and Prospects’ Jarbuch zur Staats- und Verwaltungswissenschaft: Baden-Baden. Majone, G. (1991(a)) ‘Cross-National Sources of Regulatory Policymaking in Europe and the United States’ Journal of Public Policy Vol. 11 (No. 1), pp. 79–106. Majone, G. (1991b) ‘Market Integration and Regulation: Europe after 1992’ European University Institute Working Papers SPS No. 91/10, Florence. Majone, G. (1992a) ‘Market Integration and Regulation: Europe after 1992’ Metroeconomica 43, 131–156. Majone, G. (1992b) ‘Regulatory Federalism in the European Union’ Government and Policy 10, 299–316. Majone, G. (1993) ‘The European Community: Between Social Policy and Social Regulation’ Journal of Common Market Studies 31:2, 153–169. Marks, G. (1992) ‘Structural Policy in the European Community’ in Sbragia, A (ed.) Euro-Politics: Institutions and Policy-Making in the ‘New’ European Union Washington: The Brookings Institution. Mazey, S. and Richardson, J.J. (eds) (1993) Lobbying in the European Union Oxford: Oxford University Press. Mitrany, D. (1943, 1966) A Working Peace System Chicago: Quadrangle. Mitrany, D. (1965, 1966) ‘The Prospect of European Integration: Federal or Functional’ Journal of Common Market Studies reprinted in A Working Peace System Chicago: Quadrangle. Moravcsik, A. (1991) ‘Negotiating the Single European Act: National Interests and Conventional Statecraft in the European Community’ International Organisation 45, 19–56. Moravcsik, A. (1993) ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’ Journal of Common Market Studies 31:4, 473–524. Moravscik, A (1994) ‘Why the European Community Strengthens the State: Domestic Politics and International Cooperation’, paper presented to the Conference of Europeanists, Chicago, April 1994. Morgenthau, H. (1948, 1954, 1960, 1967) Politics Among Nations: The Struggle for Power and Peace New York: Knopf. Nye, J. (1968) (ed.) International Regionalism Boston: Little Brown. Peters, G. (1992) ‘Bureaucratic Politics and the Institutions of the European Union’ in Sbragia, A. (ed.) EuroPolitics: Institutions and Policy-Making in the ‘New’ European Union Washington: The Brookings Institution. Peters, B. (1994) ‘Agenda-Setting in the European Community’ Journal of European Public Policy 1: 1, 9– 26. Peterson, J (1995) ‘Decision-Making in the European Union: Towards a Framework for Analysis’ Journal of European Public Policy 2:1, 69–93. Pollack, M. (1995) ‘Obedient Servant or Runaway Eurocracy? Delegation, Agency and Agenda-Setting in the European Community’ paper presented to the Annual Meeting of the American Political Science Association, The Chicago Hilton, 31 August–4 September 1995. Puchala, D. (1970) ‘International Transactions and Regional Integration’ International Organization 24:732– 763. Puchala, D (1975) ‘Domestic Politics and Regional Harmonisation in the EC’ World Politics 27:4, 496–520.

58 Laura Cram Putnam, R.D. (1988) ‘Diplomacy and Domestic Politics’ International Organisation 42, 427–461. Sandholtz, W. and Zysman, J. (1989) ‘1992: Recasting the European Bargain’ World Politics 42:1, 95–128. Sandholtz, W. (1993) ‘Choosing Union: Monetary Politics and Maastricht’ International Organisation 47:1, 1–39. Sbragia, A. (1992) ‘Introduction’ in Sbragia, A. (ed.) Euro-Politics: Institutions and Policy-Making in the ‘New’ European Union Washington: The Brookings Institution. Schmitter, P. (1970) ‘A Revised Theory of Regional Integration’ International Organisation 24, 836–868. Shapiro, M. (1992) ‘The European Court of Justice’ in Sbragia, A (ed.) Euro-Politics: Institutions and PolicyMaking in the ‘New’ European Union Washington: The Brookings Institution. Spinelli, A. (1966) The Eurocrats: Conflict and Crisis in the European Community New York: The Johns Hopkins University Press. Stein, E. (1981) ‘Lawyers, Judges and the Making of a Transnational Constitution’ American Journal of International Law 70, 1–27. Tsebelis, G. (1994) ‘The Power of the European Parliament as a Conditional Agenda-Setter’ American Political Science Review 88:1, 128–142. Wallace, H., Wallace, W. and Webb, C. (1977, 1983) Policy-Making in the European Community Chichester: Wiley. Weigall, D. and Stirk, P. (1992) (eds) The Origins and Development of the European Community Leicester: Leicester University Press. Weiler, J. (1982) ‘Community, Member States and European Integration: Is the Law Relevant?’ Journal of Common Market Studies 20, 1/2. Weiler, J. (1982) ‘The Transformation of Europe’ Journal of Common Market Studies 21, 39–56. Wincott, D. (1995a) ‘The Maastricht Treaty: An Adequate “Constitution” for the European Union?’ Public Administration 72, 4. Wincott, D. (1995b) ‘Institutional Interaction and European Integration: Towards an Everyday Critique of Liberal Intergovernmentalism’ Journal of Common Market Studies 33:4, 597–609.

Part 2 Agenda-setting and institutional processing

4 Agenda-setting in the European Union Guy Peters

Agenda-setting is a crucial stage in the policy process for any political system.1 By definition, no policy can be made if the issue to which it is addressed cannot first be placed onto the active agenda of a governmental institution. Having a new issue considered is not in general an easy task and almost always requires substantial political mobilisation, and often a good bit of luck as well. Therefore, agenda-setting is an initial crucial ‘veto point’ (Immergut 1992) in the policy process at which political and administrative leaders can exercise their power, either to have a policy intervention considered, or to prevent anything from happening that would diminish the wellbeing of their constituent group. As we will point out below in greater detail we should, in fact, conceptualise agenda-setting as having several components, rather than as being the rather simple decision as to whether to consider the issue or not. In particular, the exact social and political construction of the issue is as important to the final determination of how the issue will be processed and decided as is the initial decision to consider it at all. A single issue can be conceptualised in different ways that will make it more or less attractive to policy-makers. Further, its construction will determine which set of decision-making institutions will process the issue, and therefore to some extent determine its fate. Not all issues are equal in the agenda-setting process. Many seem to reappear almost automatically on government agendas, as they arise due to the proximity of the annual budget or they are components of programmes that must be reauthorised on a frequent basis (Walker 1977). For some programmes, however, this frequent attention by government decision-makers is not entirely welcome. Some programmes return to the agenda because they are unpopular with significant actors in the political system and they frequently must defend themselves against attempts to shut them down. Thus, the most desirable trajectory for a programme may be to go through the policy process once and then be able to hide from much subsequent attention unless it is intended to enhance the programme. Crises can move some issues onto the agenda and through the entire policy process within days. The advocates of other policy changes, however, must strive for years in order to have their favourite concern be considered for the first time. Likewise, certain types of issues tend to be advantaged by political systems and others are disadvantaged, if not excluded outright. Issues that affect certain social groups, e.g., children, adversely can be placed on an active agenda readily, while those affecting traditional ‘pariah groups’, e.g., AIDS patients or drug-abusers, will take much longer (Rochefort and Cobb 1994). Therefore, one way to gain an analytic handle on the ‘style’ (Richardson 1982; Mazey and Richardson 1995) and character of a political system is to examine how issues are first identified, how they are defined, and how they are then processed for further consideration through that system. 61

62 Guy Peters Most of the above discussion is based on a conception of agenda-setting as an incremental process of agenda accretion conducted within a political equilibrium. We should also remember that the EU has also had instances in which issues have been placed on the agenda in large bundles. These bundles of issues have come at times from the initiative of the Commission, especially from the activist Jacques Delors (Sandholtz and Zysman 1989) and his proposals contained in the Single European Act. Other large spates of new agenda items have appeared during the semi-annual meetings of the prime ministers of member countries that often have been used to loosen up any rigidities in the system. This is especially true given that each head of government wants to have major initiatives adopted while he or she is the host for this meeting. The conventional discussion of agenda-setting is also based on the idea that the pressure for policy change tends to be external, i.e. it emanates from societal interests seeking to utilise the state for their own benefit. This view certainly can be sustained for the EU, as the growing literature on lobbying internally would indicate (Mazey and Richardson 1993a; Richardson and Mazey 1993b). In all political systems, however, issues are a resource as well as a problem, and actors within formal institutions can utilise problems and issues to exert pressures toward achieving their own goals (personal and/or organisational). Conversely problems are resources as well as mere problems, and organisations attempt to seize on or create (conceptually if not in reality) problems in order to enhance their own bureaucratic power (Allison 1971; Donnelley 1993); societal groups may become ‘pressured’ as well as exert ‘pressure’. The EU has been conceptualised in a number of different ways (Sbragia 1992; Tugendhat 1988), but one important approach to this entity is to think of it as a political system not all that dissimilar to others. In that conceptualisation, the fundamental task of the political system is to make policy, and to do so issues must be placed on the agenda of the EU. This paper will attempt to understand how this important stage of policy-making occurs within the EU, and the possible impacts that the rather peculiar structures and processes of the Union may have on agenda-setting. We will first explicate several of the aspects of the EU as a political entity that we believe have an impact on agenda-setting. We will then examine several possible ways to understand the processes of agenda-setting in the Union. Finally, we will look at the way in which the nature of institutions and agenda-setting processes will influence the range of possible policy outputs of the Union. The fundamental argument of this chapter is that agenda-setting in the EU is significantly different from that process as it is practised in most national political systems. In particular, we will argue that the existence of a number of points of access, of a large number of influential policy advocates, and of a wide range of policy options that have been legitimised in one or more of the constituent political systems makes agenda-setting substantially easier than in most other environments. The other class of political systems which may share some of the same openness are presidential regimes. As Pierson and Weaver (1993, 145) have argued, these fragmented political systems are characterised by an asymmetry between agenda-setting and policy adoption. On the one hand a fragmented, presidential-style system does allow for much easier placement of issues on one or another active agendas; on the other hand, however, these systems make the effective resolution of those issues, and the implementation of any decisions that are reached, more problematic. This relative openness to new ideas is also a function of the relative lack of institutionalisation of the European system, when compared to more established political

Agenda-setting 63 systems; the EU has its own rigidities but they are perhaps fewer than in longer-established systems. If other political systems are characterised by ‘punctuated equilibria’ (Baumgartner and Jones 1993) then the EU appears still to be searching for its initial policy equilibrium in most areas—agriculture with its clearly developed EU style of intervention may be the exception (Butler 1993). That systemic openness is not, however, an unconditional benefit and with it goes a great deal of indeterminacy and potential policy instability. The agenda is open to a variety of types of interventions which may undermine the direction that the leadership is attempting to impose on the political system. THE NATURE OF AGENDAS The agenda literature in political science has pointed to the difference between systemic agendas, which are the sum of all issues that a political system has accepted as being legitimate items for concern, from more specific institutional agendas. The greater openness of the EU appears to be true for placing issues onto the systemic agenda (Cobb and Elder 1983), although there is no guarantee that those issues will then actually be moved onto the active institutional agenda. An issue may be able to gain active consideration on the agenda of a particular Directorate General (DG) that has an interest in having a particular conception of a policy accepted as the official definition. The absence of institutionalisation and the loosely-articulated policy-making system, however, may make moving any one version of the issue any further through the European policy process difficult. What is more likely is that there will be several organisations (administrative and legislative) with alternative conceptualisations of the same issue, each vying to have its own view enacted. In such a relatively unstructured situation there is an even more pronounced need for policy entrepreneurs than there is in other political settings, although the literature has documented the importance of those entrepreneurs in a number of settings (Hargrove 1987). The above discussion points to several important distinctions to be made in this discussion. The most important being that between the placing of an issue on an agenda and its placement on that agenda in a particular form. Thus, in the political struggle for policy, having a favourite agenda item placed on the agenda, but in a form that is not acceptable, must be counted as a defeat for a policy entrepreneur. Indeed, in many instances a policy entrepreneur would probably prefer to have the issue not considered at all than to have it considered in an undesirable format. One of the most important powers for a political actor is to be able to create non-decisions (Bachrach and Baratz 1962) when a decision might be inimical to his or her interests, and a policy activist within the EU would be no different in that respect. Although placing an issue on the agenda in an undesirable (to one or another set of actors) form can be inimical to those interests, merely placing the issue on the agenda at all may be threatening to the advocates of some issues. One strategy for opponents of a policy idea is to have it considered before the time is ‘ripe’, thus killing off the programme. As noted, policies that lack powerful constituencies or patrons are placed in jeopardy every time they come forward for consideration. This is often the case for means-related social programmes in individual countries. In the EU there are also some programmes of this type. For example, the contemporary social agenda of the Union is unpopular with a substantial number of influential actors so that whenever it must be considered actively it runs the risk of being cut back, or even cut out.

64 Guy Peters Within the EU there are, everything else being equal, even more alternative policy conceptualisations than might exist within a single country. The acceptance on one format or another of an issue may represent the victory of one national or professional perspective on the problem, and with that the need for other countries to adapt, or to attempt to defeat the proposal.2 The shift from harmonisation to mutual recognition as the mechanism for policy integration tends to attenuate the conflicts that might otherwise exist, but even then some national policy definitions may have serious negative impacts on others so that there will be pressures for more uniform policies. This is especially true for policies that have spill-over effects on other countries, such as environmental pollution or technical safety standards. Likewise labour and social policies that might make the workings of the single internal market less competitive. The characteristics of lobbying within the EU also tend to accentuate the number of alternatives available to decision-makers. Although they have been moving toward presenting more unified positions Euro-organisations tend to function more as the clearing houses of national interests and organisations rather than as the aggregators of those interests. Therefore, an industry or a commodity group in agriculture or whatever, often will not present a unified position but instead may provide a menu from which decision-makers can choose. The separate national organisations and individual firms may also continue to lobby for their own favourite policies. There are certainly attempts at co-ordination but these tend to run into opposition based on national differences and differing perceptions of desirable outcomes: the result is a complex ‘honeycomb’ of interests (Mazey and Richardson 1993a, 199) and substantial indeterminacy of policies. These differing national and professional (Eisner 1991) perspectives on policy point to the ideational aspects of policy, as distinct from the sheer political power necessary to motivate action in a political system. Very few issues are presented to government already neatly wrapped and identified. Rather, issues become defined through a complex process of contending ideas, advocacy, learning and ultimately either political domination or synthesis. In this political process information and ideas may be as important as power, and policy entrepreneurship becomes a process of marshalling evidence as well as counting votes (Krehbiel 1991). The first stage of this process is the social construction of the issue: what is the issue really? Interests that can control this initial definition are likely to be successful at the end of the process. This is true whether they want to use the issue for substantive policy change or if they are only attempting to use the issue as a means of gaining enhanced political power. Further, the proper selection of issues can be used as a means of advancing an agenda of integration. THE POLITICAL INSTITUTION OF THE EU We will not engage in any full-scale explication of the nature of the political institutions of the EU, that task having been done thoroughly in a number of other places (Peters 1992; Nugent 1989). Rather, we will point to several salient features of those institutions that influence the manner in which agendas are set, and therefore to some extent what issues will appear on the agenda and what their form might be. Some of these institutional features, for instance, fragmentation, are common to almost all political systems but appear in a somewhat exaggerated

Agenda-setting 65 form in the EU. Therefore, the process here will be like all other agenda-setting processes but may again be a somewhat extreme version of that common process. Fragmentation The complexity and fragmentation of EU institutions present at once a barrier and an opportunity for the potential agenda-setter. There appears at first glance to be a clear political domination by the Commission in the policy process of the Union, but in reality there are multiple avenues of potential influence, even within the Commission. Each of the Commissioners is a political actor with some independent authority, albeit presumably neutered to some extent by the pledge of allegiance to the Union as opposed to former national interests. Political leaders in some countries have utilised the Commission as a place to reward politicians in their declining years for previous service, or as a place to exile potential problems. However, the Commissioners themselves may consider the appointment an opportunity to advance their personal ambitions. They may believe that they can utilise policy activism within their portfolio as a means of reviving their political careers either on the national or the European stage. Similarly the administrative structure of the Commission is divided between a number of DGs, each headed by a powerful and (presumably) ambitious Director General. These DGs also have an incentive to capture potentially significant policy initiatives and shape them in a manner compatible with the assigned tasks of their organisation. It is important to note here that the issue boundaries of the DGs are not always clearly defined and many significant issues logically may fall into more than one. This indeterminacy, in turn, generates a need for a social and political process to define the issue in a way that best suits one organisation or another. An emerging policy area such as bio-technology, for example, might be seen as falling either into agriculture (DG VI), research science and technology (DG XII), or perhaps even competition policy (DG IV) (Patterson forthcoming). The organisational outcome of this competitive process among the DGs will determine not only their relative political power but also influence the nature of the policy goals and instruments that will become operational in this area. Environmental policy is another obvious example of the fragmentation in European institutions. The European role in the environment falls between DG XI and the newer ‘EuroQuango’ of the European Environmental Agency (Vogel 1993). This policy area is also heavily impacted by other DGs that have complementary and competitive interests. For example, Regional Affairs (DG XVI) has an interest in promoting economic development in the less economically developed portions of the Union, and may not be as concerned with the environmental impacts of their activities as other parts of the EU would like them to be. Similarly, DG VI (Agriculture) may well have interests that conflict with those of the environmental organisations. The absence of adequate co-ordination mechanisms may prevent making the allocative decisions (jobs versus the environment) that would be expected from a more coherent governmental apparatus. The existence of these options for the organisational placement of an issue provides the entrepreneurial agenda-setter with several opportunities, provided that the issue being advocated is one that is attractive to at least one set of powerful interests. This relative lack of institutionalisation of the European bureaucracy—Mazey and Richardson (1995) referred to it as an ‘adolescent bureaucracy’—allows the advocates of appealing issues not only to have the issue

66 Guy Peters considered but also perhaps to have it considered in a particular format by the receptive DG. On the other hand, however, if the issue is politically unattractive the prospective agenda-setter may be told that the issue is beyond the remit of the particular DG and the poisoned chalice can be refused rather easily. The legislative side of government in the EU has somewhat less opportunity to place issues on any official agenda, given that the formal right of policy initiation resides with the Commission. Still, these institutions (in this argument I include the Council as a legislative body rather than an executive body) do have some capacity to have issues brought up for consideration. First, the-Council is comprised of ministers from the member countries and as such is almost certainly able to have items placed on the agenda. This may not be done formally, but the informal process certainly provides them with substantial powers. Second, the differentiation of the European Parliament into functional committees that roughly shadow the DGs within the Commission enables it to bring issues to the attention of the relevant parts of the Commission, although not really to force active consideration within the Commission. Tsebelis (1994), for example, discusses the European Parliament as a ‘conditional agenda setter’, given that, under the ‘cooperation procedure’, it can pass legislation that is more difficult for the Commission and Council to overturn than it is to adopt (Jacobs and Corbett 1990). Finally, we should remember that the EU has a more active court system than is found in many European countries (Burley and Mattli 1993) so that issues may be forced on to an active agenda simply through the ability of one or another actor to bring suit against either a member state or perhaps against some component of the EU itself. This makes agenda-setting for government in the EU more open than it otherwise would be, and makes it more like the United States in which some of the major issues decided by government (racial integration, abortion) have been initiated through the legal system. This capacity of societal interests to bypass legislative and executive institutions weakens those institutions but may also make them more responsive to potential issues in their relevant environments. Rather than permitting an issue to come forward in an undesirable (to it) manner through the court system, a DG may choose to bring the issue forward. The absence of effective policy co-ordination Any complex political system encounters difficulties in ensuring adequate policy coordination among its numerous institutions, actors and policy sectors (Peters 1995). The EU, we will argue, has an even greater problem than most political systems with co-ordination, given that it lacks one important tool that has been crucial to agenda management and policy linkages in other democratic political systems. This device is the political party, and even more specifically party government (Rose 1974; Katz 1987). The concept of party government is a familiar one in democracies: a party or coalition presents a set of policy ideas to the public which, if elected, they enact and then implement.3 Political parties can provide a mechanism for co-ordinating policies across institutions and even across levels of government. Given that the political systems of the member countries of the EU are parliamentary democracies 4 their citizens are accustomed to having their executive and legislative branches co-ordinated through a party or a coalition of parties. The evidence is that the ability of political parties to provide that co-ordination is less than perfect in these systems (Rose 1974). They do, however, offer the possibility of

Agenda-setting 67 developing a set of priorities, a co-ordinated policy agenda and of constraining the range of alternatives considered at any one time. This is true even if that agenda is not always put into effect. Political parties cannot perform the function of co-ordinating policy priorities in the EU. In the first place, the executive (the Commission) is appointed by the national governments and reflects the configuration of forces in these countries more than it does the distribution of partisan allegiances within the EU itself. There is an emerging form of parliamentary responsibility within the EU, but there is a very long way to go to forge the type of accountability linkage required to permit any party or coalition to co-ordinate those institutions. Further, the political parties within the European Parliament are themselves aggregations of national parties, so that the parties generally lack the unity required to produce a more coherent pattern of agenda-setting. There are efforts to enhance the coherence of parties and some successes, but there is still not the capacity for prioritisation that exists in many national systems. Another aspect of the co-ordination problem within the EU is that there are separate national policy styles that are embodied in the individual commissioners so that if a particular portfolio has an (e.g.) Irish Commissioner then policy may take on an Irish flavour so long as that individual remains in office. In this instance EU policy-making may look like policy-making in a coalition government with the member countries being the functional equivalent of the several parties in a coalition. This is likely to be true even if the Commissioners behave as required by their oath of office and do not attempt to serve national interests. The argument here is that their styles and cultures are as important in determining their behaviour as any specific calculations about national advantage they might be tempted to make. To take this argument to an even lower level of aggregation, we can argue that the DGs themselves often are not integrated and co-ordinated entities: in part this lack of institutionalisation is a function of their relative newness. While organisations in national bureaucracies have had a number of decades or even centuries to develop their collective cultures, those of the EU have had only a few decades. Even if that time might have been enough to develop a strong culture in a stable environment, the instability of both the organisational formats and of personnel has minimised the capacity to create a common organisational perspective in the EU. This institutionalisation problem is exacerbated by the fact that the members of these organisations are drawn from the same wide variety of political and administrative cultures, as are the members of the Commission. This heterogeneity might be overcome if there were other integrating factors, e.g., a common professional background, but in most instances the bureaucracy itself has remained internally inconsistent and relatively unco-ordinated. Finally, the interface between the political and civil service levels in Brussels is not very well developed, with conflict often prevailing over co-operation. A lack of common purpose between the civil service and their nominal masters is hardly peculiar to the EU, but it is perhaps exaggerated by the other complexities of the system. Perhaps because of the internal inconsistencies and national differences within any DG the commissioners have at times utilised their personal cabinets almost as alternatives to the civil service. Those actions have created substantial tensions on the basis of both organisational and national differences (Barber 1993). These difficulties have generated demands for streamlining the Commission and for providing greater policy co-ordination through a strengthened president of the Commission and several vice

68 Guy Peters presidents (Gardner 1992). Until that happens, however, there will be substantial co-ordination problems in the ‘executive branch’ of the EU. In summary, there is the danger of an overload of demands within the EU. The structure of interest groups has yet to become stabilised into well-defined networks, with the consequence that there are a large number of European and national groups contending for influence over policy decisions. Given that there is also a large number of points of access for these interest group activities, there is a significant volume of relatively unstructured interactions between the private sector and the formal institutions of the Union. Without adequate institutionalisation, or the co-optation of interest groups that characterises some national systems (Heisler with Kvavik 1974), all this activity is likely to generate unpredictability and rapidly shifting policy agendas. Proto-federalism As well as having internally divided institutions, the EU also has a divided territorial structure that influences the pattern of agenda-setting. There is something of an emerging federal structure, with the acceptance of the Maastricht Treaty making Brussels all the more like the central government of a federal or confederal union. There is also a structure of regional government that is becoming more clearly articulated within the member countries, although those regional governments vary in the extent to which they can act autonomously vis-à-vis Union institutions (Keating 1993). Thus, there are a number of territorial bodies that can be used as points of access for socio-economic groups that want to press their own policy agendas on the wider EU. In particular, groups that are rarely successful at the national level may find that increasingly they have alternative routes of access available to achieve a favourable governmental decision. This is especially true for interests, e.g., ethno-regionalist groups, that traditionally have been excluded and frustrated at the national level; for example, several regions in France have been able to bypass Paris almost entirely as they press their demands on Brussels. In the United Kingdom, Scotland and Wales have both been successful in extracting resources from the EU, as much because of their relatively-deprived economic status as their nationalistic ambitions, but still this appears to many to be greater success than they have enjoyed with London over several centuries. Regional groups may be able to obtain greater policy autonomy on their own, given pressures toward ‘subsidiarity’ at the EU level. Further, the regional aggregations, as well as non-territorial interests such as environmental groups, may be able to circumvent roadblocks at the national level and go directly to Brussels. There are no guarantees of success at influencing the agenda at any level of government, but there are certainly greater opportunities to gain access and to shape at least one agenda in the multi-level environment than there were prior to the emergence of the EU as a significant force in a range of policy areas. It should also be noted that sub-national groupings are not the only ones who may experience frustration at the national level. National governments themselves may feel that their options are constrained by traditional patterns of policy, or by the strength of entrenched social interests. For example, labour unions are perceived as a barrier to economic change in many countries and the ability to go to the European level to circumvent restraints that might prevent policy innovation at the national level can be an important resource. Environmental activists (in and out of government) may also find it

Agenda-setting 69 useful to utilise the Union as a means of pulling an ‘end run’ on entrenched business interests in their societies. The territorial structure of the EU may have an influence on policy that extends beyond simply whether an issue is being actively considered or not. Agenda-setting is not just about having an issue considered actively by government, it is also about how that issue will be defined once it makes it onto the agenda. Policy issues do not define themselves but rather are shaped through complex social and political processes (Best, 1989; Hilgartner and Bosk 1988). One of the important features of agenda formulation in the EU is that the number of different national policy styles provides a number of ready-made alternatives for many policies considered by the Union. For example, in environmental policy, does one accept the issue of acid rain as formulated by the British or does one propose the more stringent conceptualisation of the Dutch and Germans (Zito 1993)? These differences may be less significant in areas now governed by mutual recognition rather than by harmonisation (Shapiro 1992, 134–136) but the presence of alternatives is an important characteristic of agenda setting in the EU. An additional advantage presented by the multiplicity of actors within the EU is that a wider variety of issues are already on the ‘systemic agendas’ (Cobb and Elder 1983) of these countries than there would be in any one political system. The systemic agenda is the sum of all issues that government has decided are worthy of public consideration, whether or not they are under active discussion in any institution at the time. The presence of the twelve different systemic agendas in the twelve different member countries presents policy entrepreneurs (Kingdon 1984) within the EU itself with the opportunity to select issues that have already been legitimated in one or more national contexts. These issues then can be used to advance European integration, and/or advance the interest of their particular institution (a DG for example) while still claiming some political source of legitimacy for the action. There are also instances in which the selection of one particular view of policy can advance a national interest, if for no other reason than it prevents pressures for policy changes. THE PROCESS The EU institutional framework within which agenda-setting occurs has a decided influence over the process that emerges. The institutional framework we have described is characterised by a great deal of fragmentation and the existence of a number of complementary and potentially competitive actors. This fragmentation also implies that there is the danger of deadlock and mutual blockage, without the intervention of actors willing to make agenda-setting a major concern. James Christoph (1993), for example, describes EU policy-making as ‘…loosely knit, headless, porous, inefficient, often unpredictable and occasionally chaotic’. This process also encounters the risk of producing only incremental outcomes while more vigorous policy change may be needed. Therefore, the EU would appear to be a congenial environment for policy entrepreneurs (Riker 1980): that environment is characterised by a great deal of indeterminacy, combined with the existence of a number of policy options that already have at least some legitimacy from their associations with national governments. What is needed is some means of breaking the institutional deadlock.

70 Guy Peters The above description is very much that of pluralist politics. The institutions of the EU create a number of arenas for the interplay of relatively autonomous groups. The existence of a number of arenas means that groups that lose in one can be successful in another. This represents a marked departure from the format of governing in many of the constituent countries of the EU. In those systems relationships between state and society are marked by the rather formalised interactions associated with corporatism (Streeck and Schmitter 1991). In this case not only are the outcomes of the process less determined but the issue of access itself is problematic. In such a setting interests may be willing to trade specific policy interests in order to secure their long-term relationship with a DG or other part of the Union apparatus. The process of determining agendas in almost any political system is a process of selection, but that characteristic is perhaps even more pronounced in the context of the EU. In the first place, there are large numbers of actors who want to participate in the process, each perhaps with their own conceptions of good and bad policy, and with a set of institutional interests to pursue through the process. Second, the number of policy options is perhaps even greater than within the conventional national political system (Wilsford 1994). There are usually a number of different and viable policy conceptions among the member countries that can offer a policy selector a range of choices to solve the same problem. Furthermore, the range of policies within the proper purview of the EU is not clearly defined, with the consequence that an active policy entrepreneur may be able to expand the range of issues under consideration and with it expand the scope of Union action. The process of agenda-setting in the EU may therefore be conceptualised as something very much akin to the now classic model of ‘garbage can’ decision-making (Cohen, March and Olsen 1972). There is a multiplicity of actors and solutions combined through a loosely-linked process, with solutions seeking problems as much as problems chasing solutions. Also, preferences are unstable and uncertain and the decision that something needs to be done often creates the preferences rather than vice versa. This model represents a reversal of the usual logic assumed in rationalist models of decision-making, and it may be particularly applicable to the question of agenda-setting and problem definition. Issues may come to the agenda simply because they were convenient and served some other organisational purpose rather than as the true reflection of the goals of the organisation. Once the process of moving an issue onto the agenda is settled, the questions of policy formulation may be resolved more in the manner assumed of more conventional models. This inversion of the usual rationalist model of the policy search procedure may be particularly applicable to the behaviour of the various Directorates General of the Commission. These organisations tend to have a particular range of solutions and policy definitions available to them, e.g., competition policy, and may want to utilise those solutions as the means of gaining involvement in as great as possible a range of policy concerns. The DGs therefore may compete with one another to reduce the ambiguity in the policy area and to be able to define the agenda. Some students of agenda-setting (Baumgartner and Jones 1993) have argued that organisations seek to impose monopolies of problem-definition over particular policy areas, and this competition among DGs would be a part of that process. As yet the definitions of policy within the EU appear sufficiently loose and unstructured that there will be few monopolies and a continuing pattern of competition and instability.

Agenda-setting 71 Imbalances within the European system The institutional features described above have, to some degree, made the EU the prospective agenda-setter’s paradise. There is a loosely coupled political system with a number of independent points of access that will enable the energetic policy advocate to inveigle his or her way into the proceedings. There is also a wider range of policy options and differing conceptions of ‘good’ policy than exists in most national governments. This range of options will enable the policy advocate to choose an acceptable option that will begin with familiarity and acceptance from at least a portion of the relevant decision-making elite. Finally, there are a number of political actors who may well believe that they have something to gain in terms of their careers by being involved with a successful policy initiative. All of these factors make the prospects for agenda-setting within the Union appear very positive for the policy advocate. In fact, the prospects for agenda-setting appear to be almost the opposite of the rather gloomy scenario for policy implementation within the EU advanced by Scharpf (1988) and others. Scharpf argued that because successful implementation in the EU (and other federal or quasi-federal arrangements) required the agreement of at least two independent actors, the likelihood was that only the lowest common denominator could ever emerge as policy. Further, given that there are some countries with relatively poorly developed policy regimens in issue areas such as the environment, the lowest common denominator is likely to appear very low indeed to the more advanced actors. Thus, it is argued, the progress of any European vision is likely to be thwarted by the inability to move a more progressive vision along rapidly and with that there will be discontent among some important actors within the system. Agenda-setting and the attendant formulation of specific policy interventions, on the other hand, is a more individualistic action over which the constituent members of the EU are less likely to have a veto power. All that is required is that a very limited number of actors—perhaps only an individual commissioner or council member—agree that the issue is worthy of consideration. As noted above this openness is by no means a guarantee of success, but it does present the opportunity for the policy activist to motivate the discussion in a particular direction. This structure then provides the EU with a very broad systemic agenda of issues, as well as numerous versions of most of those issues, with the consequent ability of decision-makers to pick and choose among them. Thus, an issue will not require any common denominators in order to reach an agenda, but in fact it is often possible to address problems in ways that may be highly desirable and that can move the discussion well beyond the lowest common denominator. One further factor that differentiates the agenda-setting stage from the implementation stage is that both sets of actors involved—societal interests and official actors (political or bureaucratic)— often can gain advantages from having the agenda defined in a particular way. Further, given that there is not a monopoly on either side, a quasi-market in ideas and policies can develop that can in the best circumstances move away from the rather dismal forecasts concerning implementation. There is no guarantee that this quasi-market will be successful in producing an optimal or even a desirable outcome, but its openness (see above) does appear to offer some opportunities for negotiation and dealing to move it away from the less desirable outcomes predicted by the implementation scenario. In the case of implementation there is a hierarchical situation in which one actor is attempting to impose its will on other powerful actors. Implementation may in part be

72 Guy Peters bargained for within the EU (Hancher et al. 1993), but at its heart there is still a hierarchical determination of priorities in Brussels, and hence a diminished ability to bargain subsequently over the acceptability of policies. In addition, implementation is a monopoly situation in which within each geographical entity there is a single actor responsible for implementation. The EU cannot shop around to find an implementor who is more interested in the goals of the Union (or the particular DG in question).5 Since neither of those two restraints come into play in the case of agenda-setting there is much more capacity to move the decision-making beyond the dismal outcomes that Scharpf has predicted for the other end of the policy-making cycle. The quasi-market that can be, and has been, developed for policy ideas is very similar to the idea of the ‘advocacy coalition’ model for policy learning (Sabatier 1988). The fundamental point is that, as well as being about political interests, conflicts over policy are often about ideas and about the technical content of policy. In these instances advocacy of ideas is the means by which the participants learn about their policy options and attempt to create a viable consensus over one policy option. Although this process cannot alter the fundamental perspectives of the participants (their ‘core values’), argumentation over these more technical issues can often identify a zone of agreement and with that there emerges a possibility for effective policy. Within the EU there are potentially a number of alternative conceptualisations of policies, and with that the potential for conflicts over the definition of policy, and of course potentially over the necessity for any policy at all. There can be national styles of science, just as there are national styles of governing, and with those scientific differences can arise varying advice over desirable policies. Merely saying that an issue will be solved ‘technically’ or ‘rationally’ is no guarantee that there will be agreement. Making policy then becomes an exercise in the mobilisation of knowledge and political power to attempt to gain control over a policy area. In that exercise teaching and learning can be the mechanism for spreading a particular conceptualisation, with policy entrepreneurs being the advocates assumed to be important to the spread of those ideas (Kingdon 1984). Knowledge and ideas are, of course, put to the use of societal interests, but they also can have influence of their own. As noted above policies need to be shaped and need to be shaped by activists and entrepreneurs who have the commitment to the ideas. A similar set of ideas is contained in the growing literature on ‘epistemic communities’ in international politics (Adler 1992; Haas 1990). Again, this literature argues that policymaking in areas with a significant technical content is a function of the ideas created by the knowledge (epistemic) communities. These communities will be largely self-contained and have their own standards of proof and utility for their knowledge. What this body of literature does not do, that the advocacy coalition literature does do rather well, is to present an idea of how the potential (probable?) conflicts among different policy communities will be resolved. It appears that epistemic communities are conceptualised much as paradigms in the Kuhnian approach to the philosophy of science and lack any external standards of proof for justifying their claims. This problem of conflict between epistemic communities is all the more of a problem when different communities are associated with different national conceptions of science. It may at times be difficult to separate genuine disagreements over science from national styles, or even national self-interest, in these policy debates. For example, British scientists have used measurement techniques for acid-rain that could help justify their government’s

Agenda-setting 73 opposition to stricter standards for emissions. Did the scientific standards provide the justification for the policy perspective or did the scientific approach grow out of a clear national perspective on policy? Those chicken and egg questions are always difficult to answer. WINNERS AND LOSERS Although the structure and process for agenda-setting may lead to greater optimism than those of implementation, certain types of policies are still advantaged, while others are disadvantaged. The principal advantage appears to lie with policies that can be used to distribute benefits across a wide range of countries, or regions, and therefore can provide political benefits to a wide range of actors (politicians as well as administrators). In this sense the system is not dissimilar to the policy outcomes in the United States with its tendency toward parochial, ‘pork barrel’ politics. In this sense the outcomes may be somewhat like those predicted by Scharpf, in that the lowest common denominator, in this sense, is not to make decisions that demonstrably extract resources from one country or region and give them to another. Another implication of the process of agenda-setting within the EU, following from the above discussion, is that policies that do not create obvious winners and losers—even when they must and do exist—are advantaged. This is to some extent true in any political system but appears especially true for the EU. The general policy approach of the Union tends to be regulatory, given that the major policy focus has been economic and that the principal instruments available have been regulatory (Majone 1992). One of the virtues of regulatory policy is that it tends to disguise the winners and losers in politics from casual observers, given that the ultimate impacts of policy tend to be manifested through market activities rather than through taxes and subsidies. In general, however, the argument can be made that the EU will adopt the instruments that will evoke the least opposition from national or industrial sources (Cram 1994). SUMMARY All political systems must confront the need to develop and process a range of policy issues. The EU is no different but it must process those issues in the context of a very complex and penetrable political system. The fragmentation of the institutions and the multiple points of access permit policy entrepreneurs within the EU to force the system to consider a range of alternatives. This characteristic makes the agenda-setting process within the EU the antithesis of the implementation process. Rather than moving toward a lowest common denominator, agenda-setting has the possibility of being innovative and moving the policy debate to higher level of attainment, however that concept might be measured. One implication of the above analysis is that the political system of the EU could be destined to create dissatisfaction. On the one hand there is the possibility of being creative, or at least of selecting a high-quality policy alternative from a list of options that already have been legitimised in one or more of the member countries. On the other hand, there is ample reason to believe that even if such a policy is adopted it will be very difficult to have it implemented, given the coordination and implementation problems that exist between Brussels and the member countries.

74 Guy Peters There are cycles of optimism and pessimism in EU politics, but this apparent imbalance at the two ends of the policy cycle may be a continuing policy-making problem. NOTES 1

2 3 4 5

This analysis is based on the rather conventional ‘stages’ view of the policy process often associated with the work of Charles O.Jones (1983). It assumes a linear process moving from agenda-setting through implementation and evaluation. Especially given the complexities of politics within the EC we should expect some aspects of the process to be decidedly non-linear. The need to fight at this stage may be minimised because of the control which national governments retain over implementation (Siedentopf and Ziller 1988). As Rose and others point out this rarely works as smoothly in practice as it does in the theory. The exception is France that has been described as ‘semi-presidential’ (Duverger 1980), but which also has definite traits of a parliamentary regime. The principle of subsidiarity tends to provide more opportunity for implementation through sub-national governments. This is particularly true where those governments are well-developed and already powerful, as in Germany.

REFERENCES Adler, E. (1992) ‘The Emergence of Cooperation: National Epistemic Communities and the International Evolution of the idea of Nuclear Arms Control’, International Organisation 46, 101–146. Allison, G.T. (1971) The Essence of Decision (Boston: Little, Brown). Bachrach, P. and Baratz, M. (1962) ‘The Two Faces of Power’, American Political Science Review 56, 947– 952. Barber, L. (1993) ‘The Towering Bureaucracy’, Financial Times 21 June. Baumgartner, F.R. and Jones, B.D. (1993) Agendas and Instability in American Politics (Chicago: University of Chicago Press). Best, J. (1989) Images of Issues (Berlin: De Gruyter). Burley, A.-M. and Mattli, W. (1993) ‘Europe Before the Court: A Political Theory of Legal Integration’, International Organisation 47, 41–76. Butler, F. (1993) ‘The EC’s Common Agricultural Policy (CAP)’, in Lodge, J. (ed.) The European Community and the Challenge of Europe (New York: St Martin’s). Christoph, J.B. (1993) ‘The Effects of Britons in Brussels: The European Community and the Culture of Whitehall’, Governance 6, 518–537. Cobb, R.W. and Elder, C.D. (1983) Participation in American Politics (Baltimore: Johns Hopkins University Press). Cohen, M.D., March, J.G. and Olsen, J.P. (1972) ‘A Garbage Can Model of Organisational Choice’, Administrative Science Quarterly, 17, 1–25. Cram, L. (1994) ‘The European Commission as a Multi-Organization: Social Policy and IT Policy in the EU’, Journal of European Public Policy 1, 195–217. Donnelley, M. (1993) ‘The Structure of the European Commission and the Policy Formulation Process’, in Mazey, S. and Richardson, J.J. (eds) Lobbying in the European Community (Oxford: Oxford University Press). Duverger, M. (1980) ‘A New Political Systems Model: Semi-Presidential Government’, European Journal of Political Research 8, 165–187. Eisner, M.A. (1991) Antitrust and the Triumph of Economics: Institutions, Expertise and Policy Change (Chapel Hill, NC: University of North Carolina Press). Gardner, D. (1992) ‘EC Commission Faces a Bruising Shake-Up’, Financial Times 23 September. Haas, E.B. (1990) When Knowledge is Power (Berkeley: University of California Press). Hancher, L., Molle, W.T.M., Ter Kulle, B.H. and Van Schendelen, M.P.C.M. (1993) ‘Bargained Administration in Europe’, unpublished paper, Rotterdam, Erasmus University, November.

Agenda-setting 75 Hargrove, E. (1987) Leadership and Innovation; A Biographical Perspective on Entrepreneurs in Government (Baltimore: Johns Hopkins University Press). Heisler, M.O. with Kvavik, R. (1974) ‘Patterns of European Politics: The “European Polity” Model’, in Heisler, M.O. (ed.) Politics in Europe (New York: David McKay). Hilgartner and Bosk (1988) ‘The Rise and Fall of Social Problems: A Public Arenas Model’, American Journal of Sociology 94, 53–78. Immergut, E.M. (1992) Health Politics: Interest and Institutions in Western Europe (Cambridge: Cambridge University Press). Jacobs, F. and Corbett, R. (1990) The European Parliament (Boulder, CO: Westview). Jones, C.O. (1983) Introduction to the Study of Public Policy 2nd. edn (Monterey, CA: Wadsworth). Katz, R.S. (1987) The Future of Party Government: European and American Experiences (Berlin: De Gruyter). Keating, M. (1993) ‘Regional Governments in Western Europe’, paper presented at Conference on Regional Politics and Policy, London, Ontario, University of Western Ontario, October. Kingdon, J.W. (1984) Agendas, Alternative and Public Policies (Boston: Little, Brown). Krehbiel, K. (1991) Information and Legislative Organisation (Ann Arbor: University of Michigan Press). Majone, G. (1992) ‘Regulatory Federalism in the European Community’, Government and Policy 10, 299– 316. Mazey. S. and Richardson, J.J. (1993a) ‘Interest Groups in the European Community’, in J.J. Richardson (ed.) Pressure Groups (Oxford: Oxford University Press). Mazey, S. and Richardson, J.J. (1995) ‘Promiscuous Policy-Making: The European Policy Style?’, in Rhodes, C. and Mazey, S. (eds) The State of the European Union Vol. 3, Building a European Polity? (Boulder, CO: Lynne Rienner), 337–359. Nugent, N. (1989) The Government and Politics of the European Community (Durham, NC: Duke University Press). Patterson, L.A. (forthcoming) ‘Bio-technology Policy in European Union’ (PhD dissertation, University of Pittsburgh). Peters, B.G. (1992) ‘Bureaucratic Politics and the Institutions of the European Community’, in Sbragia, A. (ed.) Euro-Politics: Institutions and Policymaking in the ‘New’ European Community (Washington, DC: The Brookings Institution). Peters, B.G. (1995) ‘Managing Horizontal Government: The Politics of Coordination’, in Searching for a New Paradigm for Public Administration (Seoul: Korean Association for Public Administration). Pierson, P.D. and Weaver, R.K. (1993) ‘Imposing Losses in Pension Policy’, in Weaver, R.K. and Rockman, B.A. (eds) Do Institutions Matter? (Washington, DC: The Brookings Institution). Richardson, J.J. (1982) Policy Styles in Western Europe (London: Allen and Unwin). Riker, W. (1980) ‘Implications from the Disequilibrium of Majority Rule in Institutions’, American Political Science Review 74, 432–446. Rochefort, D.A. and Cobb, R.W. (1994) ‘Instrumental Versus Expressive Definitions of AIDS Policymaking’, in Rochefort and Cobb (eds) The Politics of Problem Definition (Lawrence, KS: University Press of Kansas). Rose, R. (1974) The Problem of Party Government (London: Macmillan). Sabatier, P. (1988) ‘An Advocacy Coalition Framework of Policy Change and the Role of Policy Oriented Learning Therein’, Policy Sciences 21, 129–168. Sandholtz, W. and Zysman, J. (1989) ‘1992: Recasting the European Bargain’, World Politics 42, 95–128. Sbragia, A. (1992) ‘Thinking About the European Future: The Uses of Comparison’, in Sbragia, A. (ed.) Euro-Politics (Washington DC: The Brookings Institution). Scharpf, F.W. (1988) ‘The Joint Decision Trap: Lessons from German Federalism and European Integration’, Public Administration 66, 239–268. Shapiro, M. (1992) ‘The European Court of Justice’, in Sbragia, A.M. (ed.) Euro-Politics (Washington, DC: The Brookings Institution). Siedentopf, H. and Ziller, J. (1988) Making European Policies Work: The Implementation of Community Legislation by Member Countries (London: Sage). Streeck, W. and Schmitter, P.C. (1991) ‘From Corporatism to Transnational Pluralism: Organised Interests in the Single European Market’, Politics and Society 19, 133–164.

76 Guy Peters Tsebelis, G. (1994) ‘The Power of the European Parliament as a Conditional Agenda-Setter’, American Political Science Review (forthcoming). Tugendhat, C. (1988) Making Sense of Europe (New York: Columbia University Press). Vogel, D. (1993) ‘The Making of EC Environmental Policy’, in Andersen, S.S. and Eliassen, K.A. (eds) Making Policy In Europe (London: Sage). Walker, J.L. (1977) ‘Setting the Agenda in the US Senate’, British Journal of Political Science 7, 423–435. Wilsford, D. (1994) ‘That is the Question: Integrating and Harmonising Health Services and Pharmaceuticals in the European Community’, Journal of Health Politics, Policy and Law (forthcoming). Zito, A. (1994) ‘Epistemic Communities in European Union Environmental Policy-Making’, Ph.D. Dissertation, Department of Political Science, University of Pittsburgh.

5 A maturing bureaucracy? The role of the Commission in the policy process Thomas Christiansen

Introduction1 The history of European integration is very much the history of the European Commission.2 The ups and downs of the integration path have clearly been reflected in the activity of the Commission. The European Court of Justice and the European Parliament made some of their greatest strides in periods during which the general progress of the integration project was in doubt, but the Commission seems to have been thriving mainly when the general climate was favourable. The reverse is equally true: when integration has been progressing, the Commission had a major part in its dynamism. This close linkage between the fortunes of the Commission and those of the integration process at large indicates the special nature of the Commission. Unlike the Court, the Parliament and even the Council of Ministers, the Commission is a ‘purpose-built’ institution: there are no historical precedents and there is no final destination to its institutional development. The sui generis nature of the Commission as well as its susceptibility to the changing circumstances of its institutional environment make the Commission special and interesting—and difficult—to study. In the absence of similar institutions, comparative analysis is fraught with difficulty: comparing the Commission with international secretariats, as was suggested in the mid 1960s (Siotis 1964), was even then highly questionable (Sidjanski 1965). It would certainly be of very limited usefulness now. This is one reason why during the 1970s and 1980s there was hardly any in-depth academic work on the Commission, only in the 1990s has the Commission been receiving appropriate academic attention (Edwards and Spence 1994). There are several reasons for this reassessment of the Commission’s significance. First, there is the general realisation that many of the developments of the past ten years would not have happened as they did if it had not been for the Commission. Significant differences remain between the way in which European integration is understood by neo-liberal intergovernmentalists and neo-functionalists, but the majority of observers would now agree that the Commission has been of some influence, not just in limited areas of policy-making, but also with respect to the wider process of integration itself (Moravcsik 1993; Tranholm-Mikkelsen 1991). Political science in general has also made advances in its treatment of political institutions. After a reductionist phase in which much of politics was understood in terms of inputs, outputs and systemic environment, recent writing, often referred to as ‘new institutionalism’, has returned the focus on the state and its institutions (Cammack 1992; Evans et al., 1985; Thelen and Steinmo 1991; March and Olsen 1985; Powell and DiMaggio 1991). 77

78 Thomas Christiansen In terms of analysing the EC/EU, this has meant a return to the study of the role of central institutions, replacing the previous trend of looking only at either the making of specific policies or at the pursuit of member state preferences (Bulmer 1994; Peterson 1995; Gehring 1994; Olsen 1995a; Olsen 1995b). Finally, the EC/EU’s own development dictates more attention to the institutions themselves. After two rounds of treaty revision—the Single European Act (SEA) and the Maastricht Treaty on European Union (TEU)—which dealt predominantly with policy issues (for example, the Internal Market and Economic and Monetary Union) the 1996 intergovernmental conference (IGC) is explicitly about the institutional reform of the Union. Both SEA (1986) and TEU (1992) had, of course, important institutional repercussions (Dehousse 1989; Lodge 1989; Dehousse and Majone 1994), and it is the aftermath of these together with the anticipation of further changes that warrants greater attention to institutional design and institutional change. The role of institutions in European public policy Looking in more detail at the European Commission and its context in the 1990s requires some attention to concepts and terminology. As the title of this chapter suggests, we are seeking to establish whether we are confronting a ‘maturing bureaucracy’, i.e. an institution with has already transformed significantly from its ‘nascent’ and ‘adolescent’ years, but which has still not found a final organisational form. There is, so the assumption goes, an ongoing search for the structures and procedures of how best to administer European public policy, but this search takes place in ever narrower circles. In what might be seen as path-dependent development on the basis of past institutional choices, the Commission is homing in on its place in the governance of Europe—a specific European policy style is becoming discernable (Mazey and Richardson 1995). At the same time, the responsibilities and structures of the Commission remain subject to frequent change. While it might be developing as a maturing bureaucracy, we must be careful with static terminologies. Indeed, part of the process of maturation for the Commission is about its ability for organisational learning and the development of administrative practices that are adaptable to different contexts. Institutions are significant in mediating the demands of the structural environment with the day to day running of policy-making by individual decision-makers. A useful way of approaching the analysis of their unique role is by looking at the way institutions deal with the tensions inherent in the system. Institutions are meant to provide for continuity, stability and predictability, and to do so they have to some extent incorporate the contradictions built into their systemic environment, ‘cutting them down to size’. In this sense, political institutions in liberal democratic systems are typically subject to the tension between the provision of general public goods and the maintenance of the principles of market economy (Friedland and Alford 1991). The Commission, and the Union at large, have to deal with a specific array of systemic tension and internal conflicts (Christiansen forthcoming). Below we will look in some detail at the more crucial contradictions of European governance and the way in which they define the Commission. One such contradiction is the Commission’s dual function of having to provide for both stability and dynamism within the Community system. On the one hand, the Commission, with its formal monopoly of initiative, is seen as the motor of the integration process. It must come up with not simply legislative or policy proposals, but, in a wider sense, with ideas for

A maturing bureaucracy? 79 complex problem solving. As a result, much of the recent work on the Commission has emphasised the degree of innovation it has brought to the formulation of both public policies and decision-making procedures. On the other hand, the Commission is expected to remain neutral to national or other partisan interests, to propose and administer policy impartially and provide for the smooth running of the European polity. It is expected not to ‘rock the boat’, as it were, considering how tenuous its legitimacy is in the eyes of national elites and the wider public. To some extent, this balancing act between dynamism and continuity which the Commission has to perform matches a related conflict: from the beginnings of the High Authority, Jean Monnet, its first president, had been aware of what he regarded as the dangers of bureaucratisation (Mazey 1992). He had wanted the High Authority to remain an elitist body of policy-making experts, rather than risk becoming bogged down in the quagmire of parliamentary politics (Wallace and Smith 1995) or in minutiae of sectoral integration (Mazey 1992). Walter Hallstein, the first EEC Commission President and former diplomat, chose a more explicitly political approach to conduct Commission business. When clashing with de Gaulle, he learned to his cost what the dangers of a ‘political’ Commission were. The ‘1965 crisis’—which had France withdrawing from the Council for almost a year after a dispute over the Common Agricultural Policy—was as much about the content of policy as it was about the power of the Commission, de Gaulle’s concern at this juncture was not only to preserve French interests in a particular policy field. In a wider sense, the crisis was sparked by—and put an end to—Hallstein’s ambition to turn the Commission into something like an internationally recognised ‘European government’. What followed the showdown between de Gaulle and Hallstein were two decades of a decidedly ‘non-political’ Commission: implementing treaty provisions where it was acceptable to member states, but remaining passive where there was opposition from national capitals. The initiative on institutional reform was definitely left to member states and the European Court. Clearly, the Luxembourg Compromise with its implicit national veto had its effects not simply on decision-making in the Council, but was also a parameter of Commission activity (Borrmann and Engel 1990). But while the experience of the 1960s spelled an end to far-reaching federalist ambitions, it did not incapacitate the Commission in its more subtle policy-making role. In what remained a cumbersome institutional framework and an unfavourable overall climate, the Commission executed its assigned tasks and indeed sought to extend Community competences. The main aim of the Rome Treaty, the abolition of all custom tariffs within the Community and the creation of a Common External Tariff by 1969, was achieved ahead of schedule. But more than just the administration of agreed policies, and the successful management of two rounds of enlargement in the 1970s and early 1980s, this period also saw the Commission ‘quietly’ extending the limits of Community activity. In fields such as education, research and development and the environment, on which the treaties were silent, the Commission developed, first, a Community agenda, and, subsequently, the policy-tools to facilitate Community action. In regional policy the Commission sought to go beyond the straightforward budget bargain among member states and began to design policies such as the Integrated Mediterranean Programmes that actually had a substantial regional dimension. Progress in all of these cases was gradual, cumbersome and slow-moving, and yet these early advances were the essential foundations for the Commission’s more ambitious and self-confident projects of the late 1980s.

80 Thomas Christiansen The pattern of Commission activity in this period was to circumvent potential obstruction by national governments by involving a wide range of non-governmental groups and interests in deliberation about new policy initiatives. Such groups and organisations were regularly drawn into the ambit of the Commission by its comparative openness to outside views and representation (Mazey and Richardson 1994). They would then emerge favourable to the development of a European policy which they had helped to design. The advantage of such a strategy was that the emerging transnational network of interest groups and nongovernmental organisations, supportive of a Community role in social regulation, would eventually put pressure on national administrations and governments to ‘fall into line’. At the very least, the Commission could point to ‘demand’ from private interests in a given Community policy, and in this way legitimise its activity in the uncharted waters outside the treaty. Simultaneously, the Commission built up a body of ‘soft law’: it oversaw the growth of frameworks of rules, recommendations, decisions and practices in novel policy sectors which were strong enough to structure social and economic interests—leading them to accept that ‘Europe matters’—without having to seek explicit member state approval by sending formal proposals to the Council. This construction of soft law continued to be significant even when policy-making in the wide variety of sectors become codified later (Snyder 1993). It provided valuable experience in a novel system of administration and implementation—a system in which the Commission cannot rely on hierarchy or coercion, but where its power must be based on negotiation and persuasion. In this manner—while its political ambitions had run dry—the Commission’s capacity to mould social and economic interests, to construct agendas for EC action and to develop the innovative practices necessary for European governance during the 1970s and early 1980s were an important phase in its ‘maturation process’. It was on the basis of this experience that, with Jacques Delors taking up the presidency in 1985, there was a return to a proactive, political leadership from the Berlaymont. A number of factors—and many of them external to the Commission and even the Community itself—came to together in the success of the ‘1992’ programme. But there was also Delors’s ability to invigorate and lead an administration that had in many areas shown the kind of bureaucratic fatigue Monnet had feared from the outset. At the end of Delors’s ten-year tenure at the helm of the Commission its political potential had been demonstrated conclusively. Politicisation was due to more than changes within Commission itself: the same period also saw the rise of a maturing Parliament which, after the first direct elections in 1979, has become an increasingly self-confident actor in the European policy process. Having demonstrated its ability for prolonged cohesion with its drafting of the ‘Treaty of European Union’ in 1984, it gained additional powers for co-operation and co-decision in SEA and TEU, respectively. More than the traditional talking shop, the European Parliament moved into Commission territory in becoming an ‘agenda-setter’ in its own right (Tsebelis 1994). Ultimately, the increase in the Parliament’s legislative powers begged the question of its control over the executive. In effect, the lack of parliamentary control over the Commission has become an permanent issue on the Union’s reform agenda in the 1990s. As a result, the Commission is now facing a broad range of criticisms. It is castigated for being too bureaucratic or technocratic (for which read: insensitive to the political priorities of the day) as well as for too much political activism (for which read: too involved in the decisions on political priorities). Such criticism of the Commission is contradictory, but not necessarily wrong;

A maturing bureaucracy? 81 the fact of the matter is that there is an inherent contradiction in the Commission providing both political leadership and an impartial civil service to the EU system. The tension, if not contradiction, between the organisational modes underlying ‘bureaucracy’ and ‘politics’ were recognised early on as fundamental issues for the Commission (Coombes 1970; Scheinmann 1966). In so far as there is a general problem of reconciling democracy and bureaucracy in liberal democratic systems (Pollit 1988), the problems for the Commission were simply the reproduction, perhaps exacerbation, of similar conflicts erupting in national administrative systems. The Commission’s difficulties in treading this path between the scylla of bureaucratisation and charybdis of politicisation have been complicated in the post-Maastricht phase. The Union’s institutional system has been exposed to extensive and rather damaging public scrutiny. The central institutions’ lack of public accountability and transparency in their decision-making processes had long been features of the Community system, but during and after the TEU ratification they were perceived as serious and urgent problems. Especially the Commission, combining political leadership and technocratic responsibility, has been in the dock. In the aftermath, there have been calls for democratic procedures to appoint and control the Commission, as well as demands—often under the banner of subsidiarity—for it to scale down the extent and intensity of its regulatory activity. While reforms so far have gone some way to ameliorate these concerns, the 1996 IGC will involve still more critical questions about the Commission’s accountability. In the mid-1990s, therefore, the Commission is facing more than the traditional balancing act between political bargaining and technocratic rule. More appropriately, the pressures on the Commission appear as a triangular force-field, in which the ‘corners’ are constituted by the need for public accountability, the attention to member state interests and a measure of independent expertise. This state of affairs reflects, for the Commission, the overall ‘contradictions between intergovernmental bargaining, functional administration and democracy [which are] embedded in the treaties establishing the European Communities’ (Wallace and Smith 1995: p. 140). The basic challenge for the Commission in the run-up to the 1996 IGC is to maintain and enhance both efficiency and legitimacy (Ludlow 1991). Its activity has to balance—and, if necessary, to trade off—these two, often conflicting demands. Against this agenda, looking at the Commission in terms of internal tension has a number of benefits. First, it avoids the pitfalls of envisaging the Commission as a single, unitary organisation, without having to abandon the idea of institutional self-interest. The institutional self-interest (or ‘survival’) argument, often advanced when it comes to explaining Commission activity (Moravcsik 1993; Fuchs 1995), while useful, is in itself not very profound, as it does not tell us much about the precise content of that self-interest. As has been pointed out, in the making of public policy, a complex interaction is going on between individual bureaucrats’ self-interest and their institutional environment (Egeberg 1995a). Charting the Commission’s activity in terms of the demands put on it by democratic, intergovernmental and technocratic pressures helps to fill the notion of institutional self-interest with content. Crucially, it allows us to account better for its change over time. Second, studying its internal dynamics will lead us to an understanding of differences within the Commission. It is a complex and varied institution, where organisational logics are not always compatible with each other. The co-existence of a number of distinct administrative traditions and policy styles (Richardson 1982; Burnham and Maor 1995); the autonomy of individual

82 Thomas Christiansen administrative units (Schink 1992); the way in which sectoral policies engender differing organisational cultures (Cini 1995); the persistence of national allegiance within ‘inter-national’ organisations (Egeberg 1995b)—all these are important, if not defining, aspects of the Commission. Focusing on internal dynamics will allow us to engage these individually, without abandoning an overall perspective on the institution. Internal dynamics: growth, functional specialisation and policy co-ordination The European Commission is the product of a functionalist path of integration. While often seen as the champion of a federalist cause for Europe, its organisational design has largely been determined by the tasks it has had to fulfil within the EU. As these have grown over time, so the Commission has grown in size and administrative specialisation. Commission services are currently organised in twenty-three Directorate-Generals (DGs). These are predominantly sectoral in nature, that is, they provide for the specialised technical and administrative know-how in the various policy sectors in which the Community is active. In addition, there are ‘horizontal’ DGs which are dealing with cross-cutting concerns such as the budget, personnel or financial control. Specialised services, directly answerable to the president, are responsible for legal affairs, press relations, fraud control and the like (Nugent 1995a). As a result of this process of expansion and specialisation it is probably fair to say that the Commission is now both too large and too small. It is too large considering Monnet’s initial plans were for a moderate supranational agency with limited functional responsibility; it is too large also for those who want to see European integration as an intergovernmental affair that can do without expansive bureaucratisation at the centre. Yet, at the same time, the Commission’s services are small in relation to both the size of national administrations and the size of the problems it has to address. It is also for these reasons of size, and of constrained financial and administrative resources, that the Commission now performs largely regulatory policies. Unable to command the kind of resources that member states usually have at their disposal (Majone 1989) and reliant on member-state administrations to implement European policy (Somsen 1995), the Commission pushed novel regulatory concepts to the limit (Majone 1994a; Eichener 1992)—an approach which could ultimately turn the Community into an ‘independent fourth branch of government’ (Majone 1993a). Most of the Commission’s competences relate to the regulation of the Internal Market. Creating and maintaining the ‘four freedoms’—the free movement of capital, goods, services and persons—has precedence over the regulation of individual sectors. The Commission continues to spend considerable resources managing the coal and steel, agriculture and fisheries sectors, but the balance has been steadily tilting. With the implementation of the ‘1992’ programme, overseeing the deregulation on the national level and building up a corresponding European-wide regulatory framework has taken centre-stage inside the Commission. There are essentially three aspects to this issue: facilitating the abolition of national rules, policing the emerging single market, and developing minimum standards for those areas affected by deregulation. The main task for the Commission here is in dealing with non-tariff barriers—the vast amount of national health, safety and trading standards inhibiting free trade and the free movement of production factors. In theory, there is a distinction to be made between the distortion of trade through illegitimate practices designed to benefit national producers, and the legitimate interest in

A maturing bureaucracy? 83 social and environmental protection that member states may continue to undertake. In practice, member states had used taxes, technical and health standards for products and services, state subsidies and public procurement policies as subtle forms of protectionism, after tariffs and customs duties had been abolished. A key tool in approaching this issue has been the mutual recognition principle, which the Commission first spelt out in its 1985 White Paper. Forcing all member states to allow the trade in products once they have been licensed for trade in one member state, and the resulting process of regulatory competition, has allowed the Commission to concentrate on designing the minimum requirements that all products still have to fulfil, and on policing the market that is emerging (Majone 1993b). In this way, the Commission could leave the cumbersome process of harmonisation, which had bogged down Community activity in the decades before the Single Act, to market-led competition between member states regulatory systems. It could then concentrate on the creation of the policy tools necessary to police the emerging market, and to devise auxiliary policies to provide for minimum standards in fields affected by deregulation. Yet even this was in many cases decentralised to bodies such as CEN and CENELEC—European-wide industry-based standardisation organisations seeking to develop non-binding standards for product safety and electrical appliances, respectively. Consensus on standards emerging from these private organisations would, once endorsed by the Commission, become de facto EU standards for the single market. Essentially, the Commission developed a policy of merely overseeing what had become in many sectors market self-regulation. Policing the Internal Market—which for the Commission has mainly meant the definition and application of rules for merger control and state aid control—has also become increasingly important. The Commission’s DG IV, responsible for these competition policies, is widely seen as one of the most powerful sections of the administration. The direct, wide-ranging and open-ended powers given to the Commission in this field justify the observation that this is ‘the first supranational policy of the Union’ (McGowan and Willks 1995). A legal scholar even likens the Commission, combining the roles of prosecutor and of judge in this policy field, to that of a ‘leviathan’ that must be ‘bound’ in the future (Brent 1995). If the policing of the Internal Market has not been an uncontroversial process, then the same is true for the regulatory framework the Commission is building up to ameliorate its effects and provide for minimum social, environmental and health standards. Arguably, the Commission has often used the ‘free movement’ argument on a tenuous legal basis to build up additional competences, the results are extensive policy competences in the education, environmental and social field, and policies which constitute more than simply a combat against non-tariff barriers (Pollack 1994; Eichener 1992; Mazey 1995). The often uncertain legal basis, its limited financial resources and the sometimes hostile attitude of member states has forced the Commission to be innovative in going about the creation of such policy competences. The presence of a ‘health and safety at work’ clause in the Single Act, requiring only qualified majority vote in the Council, has resulted in the Commission basing a whole host of social policies on this article rather than facing the national veto in the Social Chapter procedures (Cram 1993). There is, of course, more to the Commission’s work than just the more or less extensive definition of the Internal Market programme. The Single Act introduced, next to the ‘four freedoms’, Community competences in environmental policy and made the achievement of economic and social cohesion a goal of the integration process. The latter, in turn led to the

84 Thomas Christiansen reform and extension of structural funds for regional policy and, after Maastricht, in the development of ‘Trans-European Networks’ as well as the creation of the Cohesion Fund. With the Community’s budget stabilised through a number of inter-institutional agreements—the Delors I and II packages—finances dispensed by the Commission from the late 1980s onwards began to made a significant impact within domestic systems. The reformed structural funds and the associated process of implementation and lobbying, in particular, brought sub-state actors into direct contact with the Commission (Marks 1993). The Commission actively assisted this ‘partnership’ by establishing an advisory committee comprised of local and regional decision-makers (Hooghe forthcoming). The combined effect of these developments was, for the EU, the establishment of the Committee of the Regions in the TEU, and for the Commission a vast increase in its involvement in European territorial politics. DG XVI, in charge of regional policy, has grown into a sizeable bureaucracy, dispensing up to 142 billion Ecu over the current five-year period (European Commission 1993). Periodically expanding framework programmes for environment and research and development policy did much the same in these fields. Here, too, the Commission established direct links with affected actors in domestic systems: national administrations, business firms, universities, research institutes, interest and pressure groups. Again, the DGs involved increased in size and significance, but also had to resort to policy-innovation and indeed experimentation in order to find a way of co-operating with often hesitant or reluctant national administrations. After Maastricht, the Commission had accumulated competences in practically every field that national administrations have traditionally controlled. Defence and home affairs—the traditional core of national sovereignty—remain exceptions to this trend, but even in foreign economic and political relations the Commission’s role has continuously grown (Smith 1994; Nuttall 1994). In some areas, such as state-aid control or the management of aid for eastern Europe, the Commission’s responsibilities are, in fact, unique even by national standards. In the hangover mood following the Maastricht ratification it came as little surprise, therefore, that questions should be asked about the ‘limits’ (Dehousse 1994) of this ‘creeping’ (Pollack 1994) extension of competences. In a variety of policy areas there were demands for ‘decentralisation’—often little disguised attempts at repatriation of Commission powers back to national administrations. But the conflict has not simply been between the Commission and the member states. The dual aim of the Union, to provide for an Internal Market and for economic and social cohesion—reminiscent of the earlier distinction between negative and positive integration—has also led to conflicts between the DGs in the Commission championing different objectives. Internal disputes between the environment and the Internal Market DGs about the stringency of environmental protection, or between the competition policy and regional aid DGs about the degree of public support for poorer regions (Wishlade 1993), are prime examples in this respect. The point to be made is a straightforward one: far from being a unitary actor, the Commission is an internally much fragmented organisation. The term ‘multi-organisation’ has been coined to capture the way in which different logics are being followed by different parts of the administration (Cram 1994). Consequently, there are dangers of fragmentation: inter-institutional contacts and relations proliferate in specific sectoral areas, so that ultimately each DG has regular contact with ‘its’ working groups in the Council, with ‘its’ committee in Parliament, and, indeed, with ‘its’

A maturing bureaucracy? 85 specific policy ‘constituency of interests’ in European society or the market-place. The emergence of ‘epistemic communities’—the development of an esprit des corps among dedicated policy-makers, recipients, advisers, and experts in a given field—is a recognisable phenomenon (Richardson 1996). The extent to which the Commission not only participates but actively encourages such transnational policy-communities is only one side of the coin. The other side is the increasing difficulty of uniting the policy-making strands of various DGs behind a formal ‘Commission line’. More significantly, perhaps, in addition to interinstitutional wrangles, deadlock within the Commission is becoming an obstacle to Union decision-making. Such intra-Commission conflict is not simply an issue for technocratic co-ordination. It affects the cohesion among Commissioners and, given the increasingly politicised nature of their work, leads to cabinet-style instances of ‘bureaucratic politics’ under the motto ‘where you stand depends on where you sit’ (Peters 1992; Page and Wouters 1994). It might well be a sign that it is because more power and significance now go with the job, that it is has become difficult for the Commissioners to avoid turf-battles and political differences. But, whatever the underlying reasons, this has not made it any easier for the Commission to carry out its mission. There are, of course, a variety of procedures to counter such centrifugal trends. In the following section we discuss the office of the president and the principle of collegiality as means to project an image of unity. But there are also various bureaucratic procedures to provide for the harmonisation of Commission business. Most of these involve the function of Secretariat-General (SG) which is designed to co-ordinate the work of the various DGs. Its responsibility of co-ordinating the drafting of legislative texts within the Commission makes the SG the nerve-centre of the institution. The increasing difficulties of such horizontal coordination have led to suggestions for the development of the SG into something like a ‘clearing-house’ for the Commission’s legislative proposals (Dehousse et al. 1992). Monitoring legislation, chairing the regular meetings of Director-Generals, and representing the Commission in inter-institutional negotiations, the SG is the gatekeeper between internal and external relations of the Commission. In addition, the SG organises the weekly meetings of chefs des cabinets and deputy chefs des cabinets. The cabinets, the personal advisory staffs of each Commissioner, are primarily responsible for relaying information back and forth between the Commissioner’s desk and the Directorate-General under his or her responsibility. In this sense they play a crucial part in the vertical integration of political and administrative spheres within the Commission, but in the post-1992 phase their role in the conduct of the Commission’s horizontal coordination has become equally, if not more, important. In pursuing policies conducted by other Commissioners and DGs, the cabinet members provide their Commissioner with the ability to keep track of the whole range of business at the weekly Commission meeting (Donnelly and Ritchie 1994; Ross 1995). This function is more than merely supportive of policy coordination: each Commissioner’s capacity to follow and accept the whole of the Commission agenda is the necessary basis for the principle of collegiality—the acceptance, that Commission decisions will be supported and defended collectively vis-à-vis other institutions and the general public.

86 Thomas Christiansen Collegiality, allegiance and leadership: the Commission’s politics in the 1990s In governing the process of European integration the Commission’s fundamental strength is to practise, or to experiment with, innovative forms of policy-making and continuous institutional reform (Snyder 1993). With the help of such methods, administrative growth and functional specialisation have allowed the Commission to expand its influence in an increasing number of policy sectors. Yet, at the same time, the expansion of tasks has made the maintenance of overall coherence to its programme more difficult. If, as a result, the Commission has matured from a small agency to an extended bureaucracy, then individual DGs have turned from organisational sub-sections into quasi-ministries in their own right. Consequently, insofar as the Commission has been able, on its own behalf and also on behalf of the EC/EU as a whole, to project the image of ‘corporate actor’ (Kenis and Schneider 1987; Fuchs 1995), and indeed to continue functioning as a unified institution, it is important to look at the institutional arrangements which bind it together. The elaborate efforts the Commission undertakes, especially at the Director-General and chef de cabinet level, to co-ordinate its policy-making activity have already been mentioned. Yet the very need for such extensive co-ordination indicates the ways in which the Commission is different from ordinary bureaucracies. It lacks, in this context, a full-blown hierarchical structure: while the individual DGs provide the ‘chain of command’ which is traditionally associated with bureaucracies, the Commission—the college of twenty Commissioners—is essentially a nonhierarchical body. Its members are equals, and their president a primus inter pares. Individual Commissioners, unlike national ministers in some member states, are not meant to run their portfolio autonomously. The collegiality principle means that a common Commission policy must be supported by all Commissioners. The principle of collegiality has two important ramifications for the study of the Commission: first, there is the inherent need for co-ordination, negotiation and consensusbuilding in what is, as we have shown, an expanding and potentially fragmented organisation; second, giving direction to Commission affairs and providing sustained leadership in the manner foreseen by the founders, are extremely difficult to achieve. We briefly look at each of these in turn. The co-ordination imperative has already been mentioned above—it places considerable strain on Commissioners’ cabinets and on the Secretariat-General. Their work to coordinate policy is not only directed at identifying overlap, closing gaps and avoiding inconsistency, but also in bringing the principle underlying the Commission’s work—that the Commissioners speak with a collective voice—closer to becoming reality. The officials involved have to look as much sideways as they have to look up and down. Procedural delays and inter-departmental differences within the Commission are a result of this basic requirement for co-ordination. But there is also the positive effect of a culture of compromise and bargaining, which prepare the Commission well for any inter-institutional negotiations that often follow. The internal process of policy coordination has most likely brought out the sensitive issues of a policy proposal, and the result is something that is less likely to offend Council and parliament than any directive that might be the product of a single DG. Yet beyond the mere practicalities of policy-co-ordination lies a more fundamental question. The absence of hierarchical organisation in a bureaucracy like the Commission is habitually seen as a problem. ‘If everyone is in charge, no-one is in charge’ sums up this critical attitude to non-hierarchical governance. What this reaction neglects are the limits of

A maturing bureaucracy? 87 hierarchy even where this is part of the formal arrangement. Post-war developments in West European states and their administrative systems—widely seen as the manifestation of hierarchical organisation—exemplify the waning of ‘hierarchy’ as an unproblematic concept along Weberian lines. Internal differentiation, regionalisation and privatisation have all been responses to ‘overload’—the inability of a formally hierarchical state administration to ensure central control and uniformity of outcome (Deutsch 1981). There is also appreciation of the benefits of collegiality and various forms of ‘government by committee’ in national systems (Baylis 1988). The academic analysis of public administration has developed new approaches in order to account for, and explain, the departure from hierarchy (Downs 1967). More recently, there is an awareness that bureaucracies ought to be seen as administrative networks rather than hierarchies (Ladeur 1993). These developments in the practice and the analysis of public administration indicate that the wide-spread normative bias in favour of a Weberian conceptualisation of bureaucracy ought not to guide our assessment of the Commission. In fact, it could be argued that, through its life-long practice of non-hierarchical organisation, the Commission is much better suited to run the affairs of the Union than national administrations are to run the affairs of their respective countries. The second consequence of collegiality—the problems entailed for leadership—turns the discussion to the office, and the person, of the Commission President. The lack of formal powers to ‘govern’ the Commission have been very challenging for successive holders of this office. The Commission President has to oversee an increasingly large administration and a diverse group of Commissioners. To advance, in this context, the course of European integration against at times sceptical national governments and an uncertain public takes special qualities. In retrospect it is perhaps fair to say that some of the previous presidents failed in their task of actively promoting European integration. Much of what the Commission does and can do depends on the willingness of national governments to proceed with European integration. But the Commission President can exercise political leadership and thereby exert significant influence on the course of integration. Jacques Delors’s two and a half terms in office are the best manifestation of this potential (Drake 1995). What is important, in this respect, is that an effective Commission President’s qualities must include not only a determination to advance the course of European integration and an awareness of what is politically feasible, but also a relatively tight control over the institution itself. As is now increasingly well documented (Ross 1995; Grant 1994), Delors’ success as Commission President also hinged on his ability to ‘run’ the Commission itself. Towards this aim, the presence of a group of dedicated staff, in particular Delors’s chef de cabinet Lamy and Secretary-General Williamson, was critical in allowing Delors to streamline policy-making, to promote forcefully his strategy for a ‘relaunch’ of the Community and, ultimately to enhance greatly the institutional standing of the Commission. A leadership role for the Commission depends therefore much on the individual choices made by the President in office—it is a capacity for leadership that depends on the utilisation of the Commission’s resources (Nugent 1995b). This emergence of a pro-active and ‘political’ Commission in the late 1980s, together with the more general critique of the Union’s ‘democratic deficit’, meant that there has been increasing focus on the democratic credentials of the Commissioners and of the Commission President. The most immediate response has been a redefinition of the parliament’s powers of supervision vis-à-

88 Thomas Christiansen vis the Commission. Until the TEU, parliamentary powers over the Commission were purely negative: the European Parliament could, with a two-thirds majority, force the entire Commission to resign—a provision potentially so damaging to the reputation of both supranational institutions that it was never activated. The European Parliament had no say in the more ‘positive’ process of appointing the Commission, but a number of provisions in the TEU changed this situation quite dramatically. First, the change in the Commission’s term of office—extending it to five years and making it parallel to the parliamentary term—enhanced the potential for linking the Union’s party politics and the appointment for the Commission. This linkage was not very strong during the 1994 European elections, but the potential for a more dynamic relationship in the future is certainly there, especially as parties become more involved in the legitimisation of Union politics (Hix 1995). More importantly, Maastricht also provided for consulting parliament on the incoming Commission. This might be seen as a rather minimalist provision—there are no powers to block individual appointments for Commissioner posts—but parliament succeeded in implementing procedures and thoroughly examining the individuals and their plans for the Commission’s programme. To facilitate a consultation mechanism, the European Parliament decided to organise public interviews with designated Commissioners—a process which can be compared to US Senate-style confirmation hearings (Jacobs 1995). The new Commission under Jacques Santer which came into office at the beginning of 1995 provided the first opportunity to hold such hearings, which generated considerable debate and publicity. A number of Commissioners were censured by the European Parliament, and in one case the Parliament was able to force a change of portfolio on a Commission member it thought unsuitable for the task at hand. Santer’s own uninspiring performance against the background of Delors’s record didn’t help in the generally critical atmosphere. While eventually the Santer Commission was approved by a simple majority, both the strong criticism of individual Commissioners and the very high turnout at the final vote indicated that the European Parliament considers this an important assignment that it will carry out with fervour: an even bumpier ride was promised for the institution of the next Commission. Therefore, while for the time being the European Parliament’s role in the nomination of the Commission remains purely consultative, EC history indicates that these are the beginnings of wider responsibilities, the demands for ‘proper parliamentary accountability’ of the Commission are likely to increase. This turns the discussion to the more general area of the Commission’s ‘external relations’. Above we discussed the explosion of the Commission’s contacts with interest groups and other non-governmental organisations during the past ten years. During the same period, the nature of inter-institutional relations between Commission, Council and Parliament has changed fundamentally. As we have seen, the Commission’s relationship with Parliament has become more adversarial as the European Parliament’s influence and self-confidence have increased— the traditional partners in the integration project are now also rivals (Westlake 1994). The Commission’s relations with Council, on the other hand, have become more structured in the framework of what is now generally referred to as ‘comitology’. Council and Commission share the executive function in the Union, and the preferred method of conducting the execution of policies is through the creation of specialised committees (Docksey and Williams 1994). With the extension of Community competences, the ‘comitology’ structure has been greatly expanded: there are a few thousand of these committees now, and their supervision—

A maturing bureaucracy? 89 not to mention legitimatisation—has become increasingly difficult (Buitendijk and van Schendelen 1995). In addition, a number of ‘Decentralised Community Agencies’ were established in the early 1990s. The more prominent among these are the European Environmental Agency in Copenhagen, the European Monitoring Centre for Drugs and Drug Addiction in Lisbon, the European Agency for the Evaluation of Medicinal Products in London. Decentralised agencies are meant to facilitate the exchange of information and to prepare the harmonisation of national provisions in areas requiring detailed technical expertise. Like the proliferation of ‘comitology’, the creation of such agencies must seem like an intrusion into what would otherwise be the territory of the Commission. But the post-Maastricht challenge to the Commission’s traditional hold on policy-making did not only come from ‘comitology’ and agencies. More importantly, the TEU included an article on subsidiarity (Art. 3b), providing for the imperative that policies be made at the lowest level possible, and only be moved to European decision-making if they could be better executed there. As a result, the Commission has been forced to withdraw a large number of proposals and to indicate its future self-limitation in a number of sensitive areas (Agence Europe 1993; European Commission 1994). In some cases, the calls for subsidiarity might have come as a blessing to a Commission overloaded with the details of regulatory policy-making; but at the same time, the demands of subsidiarity, together with the expansion of ‘comitology’, have raised the spectre of a ‘repatriation’ of some areas of EC policy-making back to the national level. But it is, in the mid 1990s, too early to say whether this codification of subsidiarity ought to be considered as a lasting and structural change for the European institutions, or whether it will turn out to have been just a passing fad. There are certainly fundamental problems associated with the justiciability in the courts with what is essentially an abstract notion (Partain 1995). More generally, assessments of the usefulness and ultimate relevance of subsidiarity are sceptical (Dehousse 1992). It is difficult to see how such an abstract notion—assuming a clear delineation of competences between different levels of government and the primacy of lower levels—can be meaningfully implemented in the EU. In the complex system of European multi-level governance the emphasis is on joint decision-making and the sharing of powers, rather than on dividing lines between the national and supranational level (Christiansen, 1996). In any case, the networks of policy-makers and advocacy coalitions which have a vested interest in the status quo will seek to prevent any radical move towards more intergovernmental bargaining (Mazey and Richardson 1995). The Commission’s position at the outset of the 1996 IGC is therefore one of broad exposure. The assumption of a leadership role for the Commission under Jacques Delors, as well as the overall politicisation of Union business after Maastricht, have exposed the Commission’s ‘democratic deficit’. Further confrontations with the European Parliament on this issue are predetermined. The extension of competences and the growing significance of policy networks centred on the Commission have heightened the awareness of national governments towards the sensitiveness of ‘technical’ regulation. The desire for ‘renationalisation’ of policy, and for setting limits to Commission activity has correspondingly grown; therefore, while the Commission has been transformed significantly during the past ten years, the pressure for further changes is building up. The Union, and the Commission in particular, have arrived at an important juncture where the search for answers to these difficult questions cannot be longer delayed.

90 Thomas Christiansen The European Commission in 1996 and beyond At the beginning of this chapter a number of tensions which the Commission had to internalise and ‘digest’ were examined. In the assessment of the recent phase of integration, we have seen how the management of these contradictions—politicisation v. bureaucratisation, continuity v. change, specialisation v. growth—has become increasingly difficult. While it would be wrong to say that the Commission is under threat, its freedom of manoeuvre has been significantly limited in the course of the past few years. This comes at a time when a fundamental reform of the Union’s institutional structure is due. In early 1996, the Union began negotiations on a threefold agenda: increasing democratic legitimacy, enhancing the efficiency of governance and preparing for enlargement (Reflection Group 1995). The final part of this chapter will therefore briefly look at the way in which this institutional reform agenda bears on the Commission. The discussion over enlargement bears heavily on the Commission, the main issue here being the number of Commissioners. The spectre of a Union of thirty member states after enlargement would mean a Commission of thirty-six members, if the current rules applied. This is generally considered to be in excess of the number of portfolios available for Commissioners, and would result in further fragmentation of the established ‘division of labour’ among Commissioners. A Commission of thirty-six members would also strain immensely the horizontal co-ordination mechanisms, and, with the general increase in diversity among views within the college, would put the principle of collegiality into question. While as a consequence of these scenarios a reduction in the number of Commissioners, or at the very least some upper limit to this number, is called for, there is profound disagreement on the way to achieve this. The number of Commissioners is linked to the principles of nationality (in that each member state sends at least one Commissioner) and proportionality (in that the larger member states send two). Any reform to limit the number of Commissioners would have to do away with at least one of these principles, consequently, while the smaller member states fear they would not be represented in a reduced Commission not bound by the nationality principle, larger member states dislike the idea that there would be only one Commissioner from each member state. Various intermediary combinations—a larger Commission based on the nationality principle combined with the creation of an ‘inner cabinet’ or a ‘directorate’—might square the circle, but at the same time risk alienating both camps. The question of efficiency also involves the Commission to a significant degree. As a response to the Commission’s extension of competence, it has been suggested that the Commission ought to be split up into various independent agencies: a European Trade Commission, a European Environmental Agency, a European Cartel Office, and so forth (George 1995; Vibert 1995). The case for such an ‘unbundling’ of the Commission is argued with reference to the increasing diversity of tasks and the need to remove delicate decisions from political influences. In this sense, these are proposals that link up with the creation of decentralised agencies, but also with the perception that the Community as a whole can be seen as an ‘independent branch of government’, and that the task of reform is to ensure its independence. While ‘unbundling’ can be seen as a response to increased complexity and to the need for greater institutional independence—and therefore to enhance the executive capacity of the Union—it is also a response to the very power the Commission has accumulated. The range of

A maturing bureaucracy? 91 competences, the amount of independent expertise and the degree of political leadership which the Commission has built up in the past thirty years constitute a significant concentration of resources. Considering the history of integration, it ought to come as little surprise that while some look for ways of enhancing the capacity and effectiveness of supranational institutions, others will seek to limit this power. As indicated above, the issue of democratic accountability remains on the agenda. Most proposals for the 1996IGC concur that the European Parliament’s involvement in the control and supervision of the Commission would have to increase (Nentwich and Falkner 1995). Not all go as far as suggesting that the parliament should be directly involved in the appointment of the Commission President, or that MEPs should, in the future, be able to remove individual Commission members rather than only the college as a whole. But the European Parliament itself will demand these changes, and insofar as popular support for any reform of the Treaty is necessary, the wider public can be expected to support such demands. It is a testament to the theme of inherent contradiction that, at the outset of the 1996 IGC, the Commission should be faced with reform proposals that lead in entirely different directions. The democratic agenda supposes the emergence of a comprehensively political regime for the EU, based on a conception of parliamentary government (Fitzmaurice 1994). The Commission’s political role, as a quasi-cabinet governing Europe, is accepted—but it needs to be legitimised through accountability to the European Parliament. The efficiency agenda assumes that the Commission has grown too large for it to provide decisive leadership and coherent policy-making, and there are demands for streamlining and clearer lines of responsibility. The more radical critics demand that the Commission’s size needs to be reduced, or at least that its growth needs to be limited, by hiving off tasks to independent agencies or returning them to national systems. Most importantly, there are warnings about the negative effects that further politicisation and a reform along the lines of majoritarian democracy would have on the Commission’s effectiveness and legitimacy (Dehousse 1995). Entrenching independent decision-making, removed from partisan interests and party politics, is the preferred solution here (Majone 1994b). This tension between the demands of democracy and efficiency is not new to the Commission. As we have discussed throughout this chapter, inherent conflicts such as this one have always been present within the Commission, and institutional changes in the past have often been responses to these. But at the end of the century the stakes are exceptionally high, precisely because of the considerable advances which the Commission has made so far. Like a bridge-head in the rather hostile territory of the future, the Commission is exposed to attacks from numerous sides. The Intergovernmetal Conference will show whether the Commission has to withdraw from this exposed position, or whether the member states of the Union decide to follow the Commission across the bridge. NOTES 1 2

The author would like to thank Jeremy Richardson and Amy Verdun for comments on an earlier draft. The usual disclaimer applies. With the Maastricht Treaty, the Commission of the European Community has become the European Commission. While it is formally an institution of the EC, it also fulfils limited functions within the wider framework of the European Union. For this reason, and on the grounds of historical continuity, the European Commission is treated here as an institution of the European Union, also. Otherwise the ‘ECSA rules’ on institutional terminology apply (Rhodes and Mazey 1995:1).

92 Thomas Christiansen REFERENCES Agence Europe ‘Inter-institutional agreement on procedures for implementing the principle of subsidiarity’, 4 November 1993, pp. 3–4. Baylis, T.A. (1988) Governing by Committee—Collegial Leadership in Advanced Societies (New York: State University of New York Press). Borrmann, C. and Engel, C. (1990) Die Verwirkliching des Binnenmarktzieles 1992 durch eine engere Zusammenarbeit zwiscehn dem EG-Ministerrat, dem europäischen Parlament und der EGKommission (Bonn and Hamburg: HWWA Institut für Wirtschaftsforschung und Institut für Europäische Politik). Brent, R. (1995) ‘The binding of Leviathan—the changing role of the European Commission in competition cases’, International and Comparative Law Quarterly, 44, 2, pp. 255–279. Buitendijk, G. and Van Schendelen, M.P.C.M. (1995) ‘Brussels advisory committees: a channel of influence?’, European Law Review, 20, 1, pp. 37–58. Bulmer, S. (1994) ‘The governance of the European Union: a new institutionalist approach’, Journal of Public Policy, 13, 4, pp. 351–380. Burnham, J. and Maor, M. (1995) ‘Converging administrative systems: recruitment and training in EU member states’, Journal of European Public Policy, 2, 2, pp. 185–204. Cammack, P. (1992) ‘The new institutionalism: predatory rule, institutional persistence, and macrosocial change’, Economy and Society, 21, 4, pp. 397–429. Christiansen, T. (1996) ‘Reconstructing European space: from territorial politics to multilevel governance’, in Joergensen, K.E. (ed.), Reflective Approaches to European Governance (London: Macmillan). Christiansen, T. (forthcoming) ‘Tensions of European governance: politicised bureaucracy and multiple accountability in the European Commission’, Journal of European Public Policy, 4, 1. Cini, M. (1995) Administrative culture in the European Commission: The Case of Competition and Environment, paper prepared for the 4th Biennnial ECSA Conference, Charleston, SC. Coombes, D. (1970) Politics and Bureaucracy in the European Community—A Portrait of the European Commission (London: George Allen and Unwin). Cram, L. (1993) ‘Calling the tune without paying the piper? Social policy regulation: the role of the Commission in European Community social policy’, Politics and Policy, 21, 3, pp. 135–146. Cram, L. (1994) ‘The European Commission as a multi-organisation: social policy and IT policy in the EU’, Journal of European Public Policy, 1, 2, pp. 194–217. Dehousse, R. (1989) ‘1992 and beyond: the Institutional dimension of the internal market programme’, Legal Issues of European Integration, 1, pp. 109–136. Dehousse, R. (1992) Does Subsidiarity Really Matter?, EUI working paper LAW No. 92/32, (Florence: European University Institute). Dehousse, R. (1994) ‘Community competences: are there limits to growth?’, in Dehousse, R. (ed.), Europe After Maastricht—An Ever Closer Union? (München: Law Books in Europe/C.H.Beck), pp. 103–125. Dehousse, R. (1995) ‘Institutional reform in the European Community: are there alternatives to the majoritarian avenue?’, West European Politics, 18, 3. Dehousse, R. and Majone, G. (1994) ‘The institutional dynamics of European integration: from the Single Act to the Maastricht Treaty’, in Martin, S. (ed.), The Construction of Europe (Dordrecht: Kluwer Academic Publ.), pp. 91–112. Dehousse, R. et al. (1992) Europe after 1992: New Regulatory Strategies EUI working paper LAW No. 92/31 (Florence: European University Institute). Deutsch, K. (1981) ‘The crisis of the state’, Government and Opposition, 16, 3, pp. 331–343. Docksey, C. and Williams, K. (1994) ‘The Commission and the execution of Community policy’, in Edwards, G. and Spence, D. (eds), The European Commission (London: Longman), pp. 117–145. Donnolly, M. and Ritchie, E. (1994) ‘The College of Commissioners and their Cabinets’, in Edwards, G. and Spence, D. (eds), The European Commission (London: Longman), pp. 31–61. Downs, A. (1967) Inside Bureaucracy (Washington: Little, Brown and Co.). Drake, H. (1995) ‘Political leadership and European integration: the case of Jacques Delors’, West European Politics, 18, 1, pp. 140–160. Edwards, G. and Spence, D. (1994) The European Commission (London: Longman).

A maturing bureaucracy? 93 Egeberg, M. (1995a) ‘Bureaucrats as public policy-makers and their self-interest’, Journal of Theoretical Politics, 7, 2, pp. 157–167. Egeberg, M. (1995b) Organisation and nationality in the European Commission services, paper prepared for the ECPR Joint Session of Workshops, Bordeaux. Eichener, V. (1992) Social Dumping or Innovative Regulation? EUI working paper SPS No. 92/28 Florence: European University Institute. European Commission (1993) Community Structural Funds 1994–99 (Luxembourg). European Commission (1994) Report to the European Council on the Application of the Subsidiarity Principle, COM (94) 533 final (Brussels). Evans, P. et al. (1985) Bringing the State Back In (Cambridge: Cambridge University Press). Fitzmaurice, J. (1994) ‘The European Commission’, in Duff, A. et al. (eds), Maastricht and Beyond (London: Routledge), pp. 179–189. Friedland, R. and Alford, R. (1991) ‘Bringing society back in: symbols, practices and institutional contradictions’, in Powell, M. and DiMaggio, P. (eds), The New Institutionalism in Organizational Analysis (Chicago: Chicago University Press), pp. 232–267. Fuchs, G. (1995) ‘The European Commission as a corporate actor? European telecommunications policy after Maastricht’, in Rhodes, C. and Mazey, S. (eds), The State of the European Union (3) (Boulder, Co.: Lynne Rienner Publ.), pp. 413–430. Gehring, T. (1994) ‘Der Beitrag von Institutionen zür Förderung der internationalen Zusammenarbeit: Lehren aus der institutionellen Struktur der Europäischen Gemeinschaft’, Zeitschrift für Internationale Beziehungen, 1, 2, pp. 211–242. George, S. (1995) The European Commission: opportunities seized; problems unresolved, paper prepared for the First UACES Research Conference, Birmingham. Grant, C. (1994) Delors: Inside the House that Jacques Built (Brealey: London). Hooghe, L. (forthcoming) ‘The politics of the European Commission under the structural funds’, in Hooghe, L. (ed.), European Integration, Cohesion Policy and Sub-national Mobilisation (Oxford: Oxford University Press), Hix, S. (1995) ‘Parties at the European level as an alternative source of legitimacy. The party federations and the EU socio-economic agenda’, Journal of Common Market Studies, 3, 4. Jacobs, F. (1995) The European Parliament’s Role in Nominating the members of the Commission: first steps towards parliamentary government of US Senate-type confirmation hearings?, paper prepared for the Fourth Biennial International ECSA Conference, Charleston, SC. Kenis, P. and Schneider, V. (1987) ‘The EC as an international corporate actor: two case studies in economic diplomacy’, European Journal of Political Research, 15, 4, pp. 437–457. Ladeur, K.-H. (1993) ‘Von der Verwaltungshierarchie zum Administrativen Netzwerk?’, Die Verwaltung, 10, 2, pp. 137–165. Lodge, J. (1989) ‘The political implications of 1992’, Politics, 9, 2, pp. 34–40. Ludlow, P. (1991) ‘The European Commission’, in Keohane, R.O. and Hoffmann, S. (eds), The New European Community—Decisionmaking and Institutional Change (Boulder, Co.: Westview), pp. 88–132. Majone, G. (1989) ‘Regulating Europe: problems and prospects’, in Ellwein, T. et al. (eds), Jahrbuch zur Staats- und Verwaltungswissenschaft (Baden-Baden: Nomos), pp. 159–177. Majone, G. (1993a) The European Community: An Independent Fourth Branch of Government?, EUI working paper SPS No. 93/9 (Florence: European University Institute). Majone, G. (1993b) Mutual Recognition in Federal Type Systems, EUI working paper SPS No. 93/1 (Florence: European University Institute). Majone, G. (1994a) Understanding Regulatory Growth in the European Community, EUI working paper SPS No. 94/17 (Florence: European University Institute). Majone, G. (1994b) Independence v. Accountability? Non-Majoritarian Institutions and Democratic Government in Europe, EUI working paper SPS No. 94/3 (Florence: European University Institute). March, J.G. and Olsen, J.P. (1988) Rediscovering Institutions: The Organisational Basis of Politics (New York: The Free Press). Marks, G. (1993) ‘Structural policy and multilevel governance in the EC’, in Cafruny, A.W. and Rosenthal, G.G. (eds), The State of the European Community (Boulder, Co.: Lynne Rienner). Mazey, S. (1992) ‘Conception and evolution of the high authority’s administrative services (1952–1956): from supranational principles to multinational practices’, in Heyen, E. et al. (eds), Jahrbuch der

94 Thomas Christiansen Europäischen Verwaltungsgeschichte 4: Die Anfänge der Verwaltung der Europäischen Gemeinschaft (Baden-Baden: Nomos), pp. 31–47. Mazey, S. (1995) ‘The development of EU equality policies: bureaucratic expansion on behalf of women?’, Public Administration, 73, 4, pp. 591–610. Mazey, S. and Richardson, J. (1994) ‘The Commission and the Lobby’, in Edwards, G. and Spence, D. (eds), The European Commission (London: Longman), pp. 169–201. Mazey, S. and Richardson, J.J. (1995) ‘Promiscuous policy-making: the European policy-style?’, in Rhodes, C. and Mazey, S. (eds), The State of the European Union: Building a European Polity? (Boulder, Co.: Lynne Reinner). McGowan, L. and Wilks, S. (1995) ‘The first supranational policy of the European Union: competition policy’, European Journal of Political Research, 28, 2, pp. 141–169. Moravcsik, A. (1993) ‘Preferences and power in the European Community: a liberal intergovernmentalist approach’, Journal of Common Market Studies, 31, 4, pp. 473–523. Nentwich, M. and Falkner, G. (1995) Intergovernmental Conference 1996: Which Constitution for the Union (Occasional Papers in European Studies 10) (Colchester: Centre for European Studies at the University of Essex). Nugent, N. (1995a) The Government and Politics of the European Union (London: Macmillan). Nugent, N. (1995b) ‘The leadership capacity of the European Commission’, Journal of European Public Policy, 2, 4, pp. 603–623. Nuttall, S. (1994) ‘The Commission and foreign policy-making’, in Edwards, G. and Spence, D. (eds), The European Commission (London: Longman), pp. 287–304. Olsen, J.P. (1995a) The Changing Political Organization of Europe, working paper No. 17 (Oslo: ARENA). Olsen, J.P. (1995b) European Challenges to the Nation State, working paper No. 14 (Oslo: ARENA). Page, E. and Wouters, L. (1994) ‘Bureaucratic politics and political leadership in Brussels’, Public Administration, 72, 3, pp. 445–459. Partain, D.G. (1995) ‘The “Justiciability” of subsidiarity’, in Rhodes, C. and Mazey, S. (eds), The State of the European Union (3) (Boulder, Co.: Lynne Rienner Publ.), pp. 63–80. Peters, G. (1992) ‘Bureaucratic Politics in the European Community’, in Sbragia, A. (ed.), Euro-Politics (Washington, D.C.: The Brookings Institution). Peterson, J. (1995) ‘Decision-making in the European Union: towards a framework for analysis’, Journal of European Public Policy, 2, 1, pp. 69–93. Pollack, M. (1994) ‘Creeping competence: the expanding agenda of the European Community’, Journal of Public Policy, 14, 2, pp. 95–145. Pollit, C. (1988) ‘Bureaucracy and democracy’, in Held, D. and Pollit, C. (eds), New Forms of Democracy (London: Sage), pp. 158–191. Powell, M. and DiMaggio, P. (1991) The New Institutionalism in Organisational Analysis (Chicago: Chicago University Press). Reflection Group (1995), Reflection Group’s Report (Brussels: Council of the European Union). Rhodes, C. and Mazey, S. (1995) The State of the European Union (3) (Boulder, Co.: Lynne Rienner Publ.). Richardson, J.J. (ed.) (1982) Policy Styles in Western Europe (London: Allen and Unwin). Richardson, J.J. (1996) ‘Actor based models of national and EC policy-making: policy communities, issue networks and advocacy coalitions’, in Kassim, H. and Menon, A. (eds), The EU and National Industrial Policy (London: Routledge) Ross, G. (1995) Jacques Delors and European Integration (Cambridge: Polity Press). Scheinmann, L. (1966) ‘Some preliminary notes on bureaucratic relationships in the European Economic Community’, International Organization, 20, 4, pp. 750–773. Schink, G. (1992) ‘Kompetenzerweiterung im Handlungsystem der Europäischen Gemeinschaft: Eigendynamik und policy-entrepreneure’ (Florence: unpublished PhD thesis). Sidjanski, D. (1965) ‘Some remarks on Siotis’ article’, Journal of Common Market Studies, 3, 1, pp. 47–61. Siotis, J. (1964) ‘Some problems of European secretariats’, Journal of Common Market Studies, 2, 1, pp. 223–250. Smith, M. (1994) ‘The Commission and external relations’, in Edwards, G. and Spence, D. (eds), The European Commission (London: Longman), pp. 249–286. Snyder, F. (1993) ‘The effectiveness of European Community law: institutions, processes, tools and techniques’, The Modern Law Review, 56, 1, pp. 19–54.

A maturing bureaucracy? 95 Somsen, H. (1995) Subsidiarity and the Enforcement of EC Environmental Law, paper prepared for the EUI Conference on ‘Subsidiarity and shared responsibilities: new challenges for EU environmental studies’, Florence. Thelen, K. and Steinmo, S. (1991) ‘Historical institutionalism in comparative politics’, in S.Steinmo et al. (eds), Structuring Politics (Cambridge: Cambridge University Press), pp. 1–32. Tranholm-Mikkelsen, J. (1991) ‘Neo-functionalism: obstinate or obsolete? A reappraisal in the light of the new dynamism of the EC’, Millennium, 20, 1, pp. 1–22. Tsebelis, G. (1994) ‘The power of the European Parliament as a conditional agenda-setter’, Americam Political Science Review, 88, 1, pp. 128–142. Vibert, F. (1995) ‘The Case for “Unbundling” the Commission’, in The Philip Morris Institute for Public Policy Research (ed.), What Future for the European Commission (Brussels). Wallace, W. and Smith, J. (1995) ‘Democracy or technocracy? European integration and the problem of popular consent’, West European Politics, 18, 3, pp. 137–157. Westlake, M. (1994) The Commission and the Parliament—Partners and Rivals in the European PolicyMaking Process (London: Butterworths). Wishlade, F. (1993) ‘Competition policy, cohesion and the co-ordination of regional aids in the European Community’, European Competition Law Review, 14, 4, pp. 143–150.

6 From co-operation to co-decision The European Parliament’s path to legislative power David Earnshaw and David Judge

INTRODUCTION There was a time, not long ago, when the received orthodoxy was that the European Parliament lacked ‘true legislative capabilities’ (Thomas 1992:4) and that it could generally be ‘regarded as a somewhat ineffective institution’ (Nugent 1994:174). As Nugent proceeds to note, however, this reputation ‘today at least, is not entirely justified’ (1994:174). Indeed, favourable comparisons are now frequently drawn between the European Parliament and national legislatures. Juliet Lodge maintains, for example, that ‘unlike national parliaments, it [the European Parliament] is not in decline’, and, that in fact, ‘the European Parliament is arguably one of the most vital EC institutions’ (1993:21). Even the European Commission itself is willing to draw a comparison between the legislative impact of the European Parliament and national parliaments, ‘Since the Single European Act came into force on 1 July 1987, over 50 per cent of Parliament’s amendments have been accepted by the Commission and carried by the Council. No national parliament has a comparable success rate in bending the executive to its will’ (ISEC/23/94 Commission Press Release, 15 December 1994). Clearly something happened to change perceptions of the European Parliament’s legislative role, and that ‘something’ was undoubtedly the treaty revisions effected by the Single European Act 1986 and the Treaty on European Union 1991. For the European Parliament, the introduction of the co-operation procedure by the Single European Act in 1987 was, in Martin Westlake’s opinion, ‘as much of a watershed as the first direct elections in 1979 or the granting of budgetary powers in 1970…. In Parliament’s eyes, it marked out the beginning of a path which it hopes will ultimately lead to full legislative codecision powers with the Council’ (1994:137). What this chapter seeks to discover is how far down this path towards legislative power the European Parliament travelled under the co-operation procedure of the SEA and in its first experiences of co-decision under the TEU. In this sense this chapter is both historical and analytical; and it is based upon the premiss that if the significance of the co-decision procedure is to be understood and assessed a prior knowledge of the co-operation procedure is required. It is important, therefore, to understand exactly how the co-operation procedure operated in the 1989– 94 Parliament and to assess its actual impact upon Community legislation. This is so both for the historical record—to gauge the practical impact of the procedure; as well as for analytical reasons—to see how far in practice the co-decision procedure in the 1994 Parliament has extended the legislative impact of the European Parliament. 96

From co-operation to co-decision 97 INITIAL FOOTSTEPS: CONSULTATION Before the Single European Act came into effect in 1987, most Community legislation was adopted after a single reading under the consultation procedure. The legislative process envisaged in the EEC Treaty was simple in conception: the Commission made proposals, and Council decided upon those proposals after taking into account the ‘opinion’ of Parliament and the Economic and Social Committee. In this sense Parliament had no direct legislative power. Any influence it exerted was dependent, in essence, upon the threat of delay. With the Isoglucose ruling by the Court of Justice in 1980 Parliament did, however, attain a de facto power of delay. Thereafter, it was certain that Council could not adopt a decision until Parliament had delivered its opinion. Moreover, Parliament maximised the benefit derived from this ruling by amending its Rules of Procedure to allow for an indefinite referral back to committee of its draft opinions (see Corbett 1989:362; Jacobs et al. 1992:180–182). This rule change provided the European Parliament with ‘a strong bargaining position to fall back on’ (Jacobs et al. 1992:182) in its negotiations with the other institutions in the legislative process. In practice, however, Parliament’s influence remained limited, in that this power could only be invoked effectively on matters of urgency, and negative, in that it was a power to delay (and hence to obstruct). Nonetheless, the true significance of the consultation procedure was that it inserted Parliament, no matter how tangentially, into the legislative process. THE NARROW PATH: CO-OPERATION The procedure Concern with the restricted formal involvement of the European Parliament in the legislative process was one of the stimuli for the European Parliament’s Draft Treaty on European Union of 1984, and, subsequently, for the institutional reforms effected by the Single European Act itself (see Lodge 1984). Whilst disappointed with the institutional provisions of the SEA, the European Parliament did recognise that the co-operation procedure was a new, formal and incremental extension of its power. Indeed, it was also acknowledged that further extension of the European Parliament’s legislative powers would depend upon the constructive and responsible use of its new powers under the SEA (see Westlake 1994:138). The co-operation procedure was thus clearly an intermediate procedure; building upon consultation yet moving one step closer towards some form of co-decision. The essence of the new co-operation procedure was that it added a second reading onto the consultation procedure. The first reading remained almost unchanged, with Council consulting Parliament on the basis of a Commission proposal. Parliament still retained the de facto power of delay, as no time limits were involved at this stage, and adopted amendments and forwarded these to the Council. Under the co-operation procedure, Council’s decision, having received Parliament’s amendments (still officially termed ‘opinions’ under the SEA), was no longer final. Instead, Council was required to adopt a ‘common position’, which it then referred back to Parliament for a second reading. Once the common position was forwarded to Parliament, a three month time limit was activated, within which Parliament could, variously: unconditionally approve it or fail to take a decision; reject it by an absolute majority of its members; or amend the common position again by an absolute majority of its members.

98 David Earnshaw and David Judge If Parliament rejected the common position then the text fell, unless Council decided by unanimity to overturn Parliament’s rejection within a further three month timetable. If Parliament’s amendments were supported by the Commission and incorporated into a revised proposal, then Council could either adopt the revisions by qualified majority, or, alternatively, modify the agreed proposal by unanimity. Any amendments not supported by the Commission required unanimity to be adopted by the Council. The co-operation procedure applied to only ten articles of the EEC Treaty (Articles 7; 49; 54[2]; 56[2]; 57; 100A and 100B; 118A; 130E; and 130[Q]). But some two-thirds of the Commission’s 1985 White Paper on the completion of the internal market fell under the cooperation procedure, and about one-third of all legislation considered by Parliament was covered by co-operation. Now, following entry into force of the Treaty on EU, cooperation applies to Article 6 on the prohibition of discrimination on the nationality; Articles 75(1) and 84(2) on transport policy; Articles 103(5), 104a(2), 104b(2), 105a(2) on economic and monetary union; Article 118a(2) on workers’ health and safety; Article 125 on the European Social Fund’s implementing decisions; Article 127(4) on vocational training; Article 129d on Trans-European Networks (measures other than guidelines); Article 130e on European Regional Development Fund implementing decisions, 130s(l) on environment policy and Article 130w on development co-operation. The politics of the procedure Although disappointed with its new powers (see Lodge 1986:221; Judge 1986:328; Westlake 1994:138) MEPs recognised that co-operation was a new power, and that with judicious use, it had the potential for future development. From the outset senior MEPs and officials within Parliament were acutely aware of the strategic political implications of the procedure (as indeed were officials in the Commission, but for different reasons). Both institutions were sensitive to the new inter-institutional dynamic that had been created by the procedure; and both were aware of the changes in institutional priorities and working routines needed to maximise the effect of the SEA. a) Inter-institutional dialogue Both institutions appreciated that the first reading stage was crucial to the success of the cooperation procedure and that dialogue between Commission and Parliament was the key to making the procedure work (Fitzmaurice 1988:391). Whilst seeking to maintain its autonomy and independence, the Commission had a vested interest in ensuring that its own legislative initiatives did not stall because of inter-institutional rigidities or textual ambiguities in the Treaty itself. From the outset, therefore, it adopted a flexible attitude to Parliament, working out a number of inter-institutional agreements and informal understandings, as well as adopting a more formal ‘code of conduct’ in 1990. These changes in attitude and working practices were themselves testimony to the fact that Parliament now had to be taken seriously, not least because of the very practical advantage of securing its support at an early stage of the legislative process. In this context, what happened at the first reading stage, and even before, was the prime concern of the Commission.

From co-operation to co-decision 99 b) First reading Equally, Parliament focused its attention upon first reading. As the co-operation procedure was activated by the Commission’s choice of legal base for its legislative proposals, potentially this choice could turn into a matter of acute political controversy. Parliament was vigilant from the outset, therefore, to ensure that, where there was scope for interpretation, the Commission would use the Treaty articles requiring co-operation rather than consultation (see European Parliament Rules 1987: Rule 36[3], now European Parliament Rules 1994: Rule 53). In practice, however, there have been relatively few major disagreements between Parliament and Commission over the legal base (most notably in 1988 over maximum permitted levels of radioactivity in foodstuffs). Moreover, both institutions, jointly, have been willing to challenge Council when it has overturned their prior agreement on the choice of legal base (as in the ‘Titanium Dioxide’ ruling of 1991 [see Jacobs et al. 1992:188–9]). What proved to be far more contentious in practice, and indeed gave rise to much tension between the Commission and Parliament, was the issue of ‘comitology’; that is the Commission’s specification in draft legislation of the type of committee needed to assist it in the performance of executive functions. As Fitzmaurice (1988:394) noted at the outset of the co-operation procedure, ‘Choice of the type of Committee (Comitology) to be involved in management functions (delegated legislation) is also contentious. Parliament usually, but not always, seeks maximum delegation to the Commission and therefore dislikes any committee type except consultative committees.’ In recognition of the importance of first reading, Parliament’s 1986 rules assumed that legislation subject to co-operation would ‘in theory have absolute priority for consideration in committee (Rule 47[2])’ (Fitzmaurice 1988:393). Provision was also made to facilitate the construction of stable political majorities early in the co-operation procedure. This was essential if the necessary treaty-prescribed absolute majorities were to be secured to amend the Council’s common position at second reading. Hence, the new rules introduced the provision that amendments at second reading stage would only be admissible if they sought to restore Parliament’s first reading amendments, or sought to amend a part of a common position which differed substantially from the original proposal presented to Parliament, or were compromise amendments representing an agreement between Council and Parliament. It is worth remembering that this was effectively a ‘self-denying’ ordinance on the part of Parliament, and that the best proof of the importance of this rule is that, as Westlake notes, ‘representatives of the Council and Commission still sometimes inadvertently hold the European Parliament to account [for its first reading] undertakings as though they were obligations flowing from the treaties’ (1994:141).

c) Relations with Council The new rules adopted by Parliament in 1986 envisaged a monitoring procedure (Rule 41, now Rule 61) whereby the preparation of a common position by Council would be monitored by the rapporteur and chairman of the relevant committee. It was hoped that committee secretariats, along with Parliament’s Suivi des Actes Parlementaires (Fitzmaurice 1988:395), would obtain information from Council and Commission about their responses and reactions to the

100 David Earnshaw and David Judge amendments adopted at first reading. Some observers hoped, optimistically, that such monitoring would ‘serve to check that the Commission is keeping its promises on amendments and effectively upholding amendments it has accepted…[and serve, indirectly] to prevent the Council from adopting a common position that strays too much from Parliament’s position’ (Fitzmaurice 1988:395). As can be seen below, however, the reality of European Parliament-Council relations under co-operation diverged significantly from this optimistic prognosis. In practice, Council’s common position represents the outcome of usually lengthy, and always complex, negotiations between delegations of the Council. These take place at various levels: in Council working groups comprising civil servants from national bureaucracies or member state permanent representations; in Coreper, comprising member states’ permanent representatives themselves; and in the Council itself between ministers. The policy environment within which negotiation occurs is ‘disaggregated and competitive’, and founded on a ‘dissonance of values, confused lines of authority, conflicting interpretations of the legitimate scope of EC policy and uncertainty about the delivery of programmes’. In this environment, even modest agreements have to be viewed ‘as a major achievement’ (Wallace 1983:65). Moreover, the process is opaque, with parliamentarians usually having to rely, in the words of Bouke Beumer, former Chairman of the European Parliament’s Committee on Economic and Monetary Affairs and Industrial Policy (EMAC), on the Commission to ‘drop a few morsels of information our way’ (DEP 3–396, 20 November 1990:89). The common position is undoubtedly the crucial stage of the co-operation procedure. Formal recognition of this came in the right granted under the procedure for Parliament to be reconsulted if Council’s common position differed markedly from the text considered by the European Parliament at the first reading stage. Whilst Council has accepted this right in principle, particularly if major changes have been incorporated into the text by Commission or Council, difficulties have still arisen in practice (see Jacobs et al. 1992:189). Equally, the centrality of the common position to the operation of the procedure was acknowledged in Article 149(2b) of the SEA. Under this article both Council and Commission were required to inform Parliament fully of the reasoning behind the adoption of a common position. Council had no objections to outlining the justification of its common position in writing to Parliament, but this positive principle was mitigated, on its first practical application, by Council cavalierly stating that the preamble to the draft directive constituted the justification of its common position. Not surprisingly, Parliament found Council’s response to be unacceptable and pressed, through its then President, Lord Plumb, to secure ‘as a minimum [that] the Council should provide a specific and explained reaction to each of Parliament’s amendments’ (OJ C318 30 November 1987:41). Thereafter, Council’s explanations of its common positions improved to the extent that they noted Council’s view on each substantive change made to draft proposals. Council did not see fit, however, to list the position taken by each member state in its collective deliberations, nor to publish its reasons. Until 1993 Council refused to distribute publicly its reasons, making them available only to the European Parliament. The latter, in turn, distributed them along with Council’s common position. In the inter-institutional declaration on Democracy, Transparency and Subsidiarity, of October 1993, Council finally undertook to ‘publish the common positions which it adopts under the procedures laid down in Articles 189b and 189c, and the statement of reasons accompanying them’. This is now done in the Official Journal. Nonetheless, these explanations provide the only publicly-available formal record of Council’s response to Parliament’s amendments, and as such they are an essential, and under-utilised,

From co-operation to co-decision 101 source of information by which the contribution of these amendments to Council’s decisions can be gauged. SURVEYING THE PATH: COUNCIL’S REASONS If a qualitative assessment of parliamentary amendments is essential to an understanding of the legislative impact of the European Parliament under the co-operation procedure, the problem then arises of how to measure this impact. This is a problem endemic to any assessment of legislative impact (see Hall 1992), and one way to confront this problem, favoured by the authors, has been to undertake detailed case studies of the European Parliament’s legislative activity (see Earnshaw and Judge 1993; Judge and Earnshaw 1994; Judge et al. 1994; Earnshaw and Judge 1995a). The approach pioneered here, however, is to examine the reasons provided by Council on its common position. These statements are of value in that they indicate which amendments have been accepted, and how Council justifies the choice of amendments. Indeed, one of the requirements upon Council is that in transmitting the common position to Parliament it has to state its reasons for adoption and also indicate the position taken by the Commission. In this sense Council and Commission are required to inform the European Parliament fully of the reasons which led Council to adopt its common position. As such, Council’s reasons and the Commission’s position on the common position effectively provide a qualitative assessment of the legislative impact of Parliament. Hence, the Commission’s Manuel des Procédures Opérationnelles (European Commission 1994) advises officials, when producing observations that they: must be brief. It is imperative, however, to inform Parliament clearly of what happened with the amendments that the Commission has accepted in first reading (and consequently integrated in the modified proposal). It is necessary, also, to give a global evaluation of the Common position, notably concerning compromises which might have been accepted by the Commission or modifications introduced unanimously by Council.

The Commission’s observations and Council’s reasons indicate, therefore, the publicly stated view of the other institutions of the European Parliament’s legislative role in specific cases—or at least the view which the other institutions believe it prudent for them to convey. In either respect—as dispassionate assessment or public relations exercise—the reasons provided by Council provide a further dimension to a qualitative assessment of the European Parliament’s legislative impact. They provide another analytical prism through which the legislative activities of Parliament can be refracted. Qualitative assessment The need for qualitative assessments of the legislative impact of Parliament under the cooperation procedure has been widely appreciated within Parliament itself. Indeed, the impressive success rate of European Parliament amendments is such, especially when compared to member states’ Parliaments, that it is invariably assumed that some qualification is in order. Hence, in a report drawn up by the European Parliament’s Committee on Institutional Affairs in 1992, it was noted that 50 per cent of Parliament’s amendments had been accepted by Council and that the legislative role of the European Parliament had thus been ‘transformed’ by the co-operation

102 David Earnshaw and David Judge procedure. Despite this, however, the Resolution went on to note that ‘a purely statistical analysis may exaggerate the political importance of the amendments adopted and that a political assessment is urgently needed’ (OJ C42, 15 February 1993:135). Other commentators have also counselled that the success rate of the European Parliament ‘must be analysed cautiously’ (Jacobs et al. 1992:187; see also Westlake 1994:142). Yet, the irony seems to be lost on many commentators that, whilst the raw figures showing the relatively limited impact of national Parliaments on domestic legislation are dismissed as ‘misleading’ for underplaying parliamentary influence (see for example Norton 1993:83), at the European level, raw figures are dismissed for overstating parliamentary influence. Certainly, as Table 6.1 reveals, in quantitative terms alone the ‘success rate’ of European Parliament amendments is impressive: with some 49 per cent ultimately accepted by the Council. The problem is that these figures take no account of the relative political weight of amendments, nor do they indicate the extent to which rejected amendments are eventually taken up in modified form in other, or new, proposals. In addition, the figures are unable to distinguish between ‘substantive’ amendments, designed to be accepted, and ‘propagandistic’ amendments, designed to advance an issue up the policy agenda of Council and Commission (without any realistic expectation of inclusion in the final directive).

Table 6.1 Co-operation procedure. Acceptance of European Parliament amendments by Commission and Council (332 proposals completed by December 1993)

Source: European Parliament 1994a: Les Avis Legislatifs du Parlement Europeen et Leur Impact

Impact In view of the major significance of the common position in the co-operation procedure it was decided to analyse a selection of common positions upon which MEPs themselves believed that Parliament had had some legislative impact (for details of the choice of common positions see Earnshaw and Judge 1995a). To this end a study was undertaken of the reasons provided by Council on its common positions on the directives listed in Table 6.2. The impact of the European Parliament: the view of the Council There is a relatively standard format to the presentation of Council’s reasons on common positions (hereafter ‘reasons’): each lists the European Parliament’s amendments adopted jointly by Council and Commission; those amendments accepted by Council and which the Commission did not incorporate in its amended proposal; and, finally, those amendments rejected by Council and which the Commission also rejected. Some reasons also identify parts

From co-operation to co-decision 103 Table 6.2 Selected common positions

Source: Full titles and European Parliament documentary information on SYNs can be found in European Parliament 1994a: Les Avis Legislatifs du Parlement Europeen et Leur Impact

of the common position where Council chose a different approach to that of either the Commission or Parliament. A good example of these presentational conventions is provided in the common position on the health and safety at work of temporary workers. The reasons on this common position identify: ten European Parliament amendments accepted by the Commission and taken up by Council (and cross-referenced to the common position text); two not accepted by the Commission but agreed by Council; and six amendments rejected by both Council and Commission. At seven places in the common position Council noted that it had ‘opted for a different approach from either the Commission or Parliament’ (Council’s reasons, SYN 281)—and made the contrast with the relevant European Parliament amendments rather than the articles of the Commission’s proposal. A similar approach was taken in the reasons on health and safety for pregnant women. In this case, although Council made no reference to major differences with the Commission, the Commission recorded in its communication to Parliament its disagreement with Council and regret at the inadequacy of the common position. (The Commission’s view on the selected common positions is examined below.) Unfortunately, the voting constellations leading to the adoption of common positions are recorded only inconsistently in Council’s reasons. Hence, in the reasons examined here, Council confirmed that it had acted unanimously on appliances burning gaseous fuels (SYN 178), the legal protection of computer programs (SYN 183), and the acquisition and possession of weapons (SYN 98). However, in only two common positions did Council announce its adoption by qualified majority, on the labelling of tobacco products (SYN 314), and veterinary medicines (SYN 189). In the case of food hygiene, Council noted that ‘eleven delegations voted in favour and the French delegation abstained’ (Council’s reasons SYN 376:2). No information was provided about the position adopted by national delegations on the other common positions.

104 David Earnshaw and David Judge Quasi-counting and rough estimations Council reasons are of importance in providing a rough estimation of the acceptance of Parliament’s amendments. In December 1992 Council adopted unanimously its common position on the proposal on the hygiene of foodstuffs. In so doing it claimed to have adopted ‘to a very large extent the European Parliament’s amendments which were endorsed by the Commission’ (Council’s reasons, SYN 376:2). Council specifically identified in its reasons the inclusion of no less than twenty-two European Parliament first reading amendments; and Parliament’s rapporteur concluded that the common position: represents a significant success for the Parliament’s first reading position. Something like 50 per cent of the Parliament’s amendments have been incorporated in the Parliament’s opinion either in total, part or principle. (PE 204.176, 1993:9)

On the annex to the directive, 10 of the 26 amendments made by Parliament were accepted by Council. Parliament’s overall satisfaction with the common position was demonstrated by just eleven amendments being voted at second reading in April 1993. Four amendments were supported by the Commission and were subsequently taken up by Council in its final legislative instrument. Each of these amendments had been voted at first reading, yet had not been accepted at that stage by either Commission or Council. On veterinary medicines, Council’s common position on the two proposals submitted under the co-operation procedure, adopted in June 1990, reflected ‘either literally or in spirit’ (Council’s reasons, SYN 189:2) all the amendments proposed by Parliament and accepted by the Commission. Indeed, Council singled out one important European Parliament amendment and noted that the common position ‘contains word for word the amendment that the Parliament proposed’ (Council’s reasons, SYN 189:3). At second reading Parliament voted only one amendment to the common position by absolute majority. Other amendments tabled, though mostly successful, failed to gain the requisite 260 votes. The one successful amendment was not taken up by Council or Commission. The directives on veterinary medicines and immunological veterinary medicines were subsequently adopted together in December 1990. In the reasons on the transit of electricity and the transit of gas through grids, Council declared itself to have ‘adopted the vast majority of Parliament’s amendments as included in the Commission’s amended proposal’ (Council’s reasons, SYN 206 and SYN 207). The same reasons specifically identified three European Parliament amendments not adopted by Council, on the grounds: first, that they involved horizontal issues applying to EU energy policy; or, second, were unnecessary in the current text as it would be ‘for the Commission …to submit any proposal it deems necessary at any time it considers suitable’ (Council’s reasons, SYN 206). Similarly, on public procurement in the excluded sectors, the Council’s reasons note that, ‘Generally speaking, the Council has taken on board the amendments which the Commission made in its amended proposal in order to take account of the Parliament’s Opinion at first reading’ (Council’s reasons, SYN 153/154). Indeed, in this common position Council followed Parliament in combining two proposals into one (one on procurement procedures in the water, energy and transport sectors, and one on the procurement procedures of entities in the telecommunications sector). However, Council ‘did not think it appropriate to adopt certain

From co-operation to co-decision 105 other amendments’. In the case of extending the legislation to all water purchases Council maintained that it ‘would be out of all proportion to impose procurement obligations on all contracting entities…when the potential for cross-border procurement is known to be very limited’ (Council’s reasons, SYN 153/154). In the case of the promotion of equal opportunities for women, disabled workers and migrant workers, Council noted that ‘it is superfluous to include to this effect in the Directive in the light of the judgment of the Court of Justice’ (Council’s reasons, SYN 153/154). In related proposals on the application of public procurement procedures in the excluded sectors and on the award of public service contracts, Council declared, respectively, that the ‘amendments proposed by the European Parliament and included by the Commission in its amended proposal have been substantially accepted by the Council’ (Council’s reasons, SYN 292); and that ‘most of the amendments proposed by the European Parliament and incorporated by the Commission in its amended proposal were accepted by the Council’ (Council’s reasons, SYN 293). In each of these reasons, a detailed commentary was also provided against the specific, numbered amendments voted by Parliament explaining how and why Council ‘further amended or completed’ (Council’s reasons, SYN 292) the European Parliament’s amendments. In the reasons on new hot water boilers Council referred explicitly to the ‘convergence between Parliament’s Opinion and the Council’s common position’ (Council’s reasons, SYN 294). This convergence included: Council accepting ‘Parliament’s suggested amendment specifying, quite rightly, that the Directive comes under the SAVE programme’; taking into account ‘Parliament’s proposal of the term “mass-produced”…by adding boilers manufactured on a one-off basis’; taking up ‘Parliament’s idea of specifying that the boilers in question are appliances used to transfer heat generated by combustion to water’; and following ‘Parliament’s general line of thinking regarding the “essential requirements” referred to’. While Council opposed the position of Parliament on energy efficiency requirements and ‘deemed it necessary to lay down figures’ for these requirements, it was, nonetheless, ‘appreciative of the political considerations reflected in Parliament’s suggested amendment’ on this aspect of the proposal. Indeed, Council’s overall conclusion on this common position was that: the Council would stress that, like Parliament, it sets great store by strict compliance with energy efficiency requirements for hot water boilers. It believes that it has amply observed the spirit of Parliament’s requests designed to achieve full compliance with the provisions of the Directive. (Council’s reasons, SYN 294)

In contrast, the reasons for the common position on general product safety (SYN 192) provided less positive support for Parliament’s position. Council rejected Parliament’s main concerns that: the directive should apply to a wider range of products than initially envisaged by the Commission; a consultation and investigation procedure be included; and immunity should be provided for persons who publicly questioned a product’s safety. More positively, Council was willing to acknowledge that it had: first, ‘included a reference to certain categories of people at special risk—notably children, as suggested by Parliament’; second, that the common position ‘specifies, along the lines sought by Parliament…the obligations of producers and distributors’; and, third, ‘and in line with Parliament’s amendment No. 32, the illustrative list of arrangements…has been dropped from the common position’. Similarly, on the notification of measures restricting the placing of products on the market, the Community

106 David Earnshaw and David Judge system for information, and the scope of action available at EU level, the Council argued that the ‘text of the common position contains provisions which are broadly in line with the approach followed by the European Parliament and the Commission’ (Council’s reasons, SYN 192). As in the case of the sweeteners proposal (see Earnshaw and Judge 1993), the energy-labelling common position was rejected by Parliament. In this instance, however, the Commission did not withdraw the proposal and it was eventually adopted by Council unanimously. On five research and development specific programmes under the third Framework Programme, the Commission was prompted in March 1991, after a critical debate in Parliament, to announce its intention to withdraw the proposals after Council had adopted its common positions. In turn this led to an informal trialogue between Parliament, Council and Commission and a resultant interinstitutional agreement of April 1991. Under this agreement Council incorporated into its next common position on the information technology specific programme ‘the amendments contained in the conclusions reached by the Presidents of the three Institutions’ (Council’s reasons, SYN 258). Council felt moved to note that: ‘the views of the Council, the European Parliament and the Commission converge considerably on virtually all aspects of the scientific content which make up the substance of the information technologies programme’ (Council’s reasons, SYN 258). The importance of the April 1991 inter-institutional agreement was further underlined by Council’s explicit reference to the common position’s compatibility with that agreement; particularly on the issues of participation by third countries, committee procedures, impact assessment, the exceptional procedure, and the finance deemed necessary for the programme (see also Earnshaw and Judge 1995a). Finally, on the cosmetics common position, Council noted the inclusion of a series of amendments proposed by Parliament, and drew attention ‘in particular’ to ‘two “compromise amendments” concerning a ban on animal testing of cosmetic products’ (Council’s reasons, SYN 307:3). Council then acknowledged that it had introduced ‘in line with the compromise amendment proposed by Parliament and Commission, a general ban on animal testing of cosmetic products which takes effect on the same date as the one proposed by Parliament, i.e. on 1 January 1998’ (Council’s reasons, SYN 307:3). The position of the Commission a) Dissent from the Council’s common position In five of the cases examined here the Commission’s communications on the common positions record some dissent from the position of Council. As noted above, this communication is of some importance as it provides an assessment by the Commission of the progress of Parliament’s amendments. In the case of public procurement in the excluded sectors, for example, the Commission considered the high thresholds decided by Council to be ‘the most that the Commission could, at a pinch, accept’ (Commission communication, SYN 153/154). On other provisions the Commission noted what, from its perspective, ‘would have been preferable’ or ‘should be deleted’ in the common position. Ultimately, however, ‘and subject to the comments set out’ elsewhere in its communication, the Commission was willing to ‘accept the Council’s common position’. Similarly, on the common position on general product safety, the Commission recorded its ‘regrets that, for the time being, coverage of all products has not been adopted’

From co-operation to co-decision 107 (Commission communication, SYN 192) and pointed out that more detail in parts of the text ‘would have contributed to greater harmonisation’. Once again, however, the Commission ‘accepted the common position because it maintains the overall spirit and the fundamental elements of its proposal’. In the case of the acquisition and possession of firearms, the Commission merely dissented from the date of implementation of the directive, ‘following the unanimous opposition of the member states’ to the date it had originally proposed (Commission communication, SYN 98). On energy labelling, the Commission observed that it had ‘agreed to all the changes introduced in the common position, with the exception to the change in article 10 [type of committee]. This change was introduced by the Council acting unanimously’ (Commission communication, SYN 356:4). While agreeing generally with the common position, the Commission still qualified its acceptance with the statement: ‘With the exception…of the change to the Committee from type I to type IIIb’. The most significant instance of Commission dissent came in the directive on the health and safety of pregnant workers. Whilst Council’s common position referred to sickness allowance as a means of determining compensation during maternity leave (see European Report, 1774, 6 June 1992), the Commission considered this to be ‘inappropriate, not only because a pregnant woman cannot be assimilated to a sick woman, but also because levels of sickness benefits are normally lower than maternity benefits’ (Commission’s communication, SYN 303). Without this provision the Commission announced that ‘it could have associated itself with the common position’, and tentatively proposed that it would ‘come back to the Council after the European Parliament’s second reading is completed’. This disagreement found reflection in the directive—as adopted in October 1992, and as published in the Official Journal (OJ L348, 28 November 1992:8). An exceptional reference to the minutes of Council—recording that allowances received due to ill-health shall be used ‘for purely technical reasons’—is to be found there. b) Information on the process of negotiation in Council Commission communications can also be of value in their occasional divulgence of snippets of information about the process of negotiation in Council. Thus, for instance, in the Commission’s communication on public procurement procedures in the excluded sectors, it was noted that the common position ‘was difficult to reach’ due to the differing policies, legal principles and priorities of member states. ‘Strong efforts of flexibility on all sides’ would thus be required ‘in order to ensure the achievement of the objectives of the directive’ (Commission’s communication, SYN 292). ‘Council’s inability to reach agreement’ was further noted by the Commission in the common position on procedures for the award of public service contracts. This internal disagreement was of particular concern to the Commission as it had resulted in Council’s failure to retain the Commission’s proposal on third country serviceproviders (Commission communication, SYN 293). In addition, in the communication on the information technology specific programme, the Commission was willing to record that the common position was adopted unanimously even though Council had not volunteered this information in its statement of reasons. Similarly, on veterinary medicines, the Commission’s communication divulged that ‘in a [Council] minutes statement, the Commission is requested to take whatever measures necessary’ to clarify the borderline between two directives. Moreover, the Commission was also requested by Council ‘as a matter of urgency’

108 David Earnshaw and David Judge (Commission communication, SYN 189:2–4) to consider an agreed EU list of medicines available with or without prescription, even though Council recognised that it would not be possible for Council to introduce such a list in the short term. Occasional insights into Council’s own decision-making procedures can also be found in the Commission’s communications. Thus the common position on hot water boilers refers to the Commission informing the Council ‘Working Party on Energy’ of the position it adopted in Parliament at first reading. This open acknowledgement of Council’s subsidiary negotiating processes is unusual. The Commission went on to reveal that it took it some four months to inform the working party of the position the Commission took in Parliament’s plenary debate. In contrast, on energy labelling, ‘the Commission orally informed Council of the position it adopted on the Parliament’s Opinion’ on the day following Parliament’s vote. Compatibility of Council’s common position with Parliament’s first reading amendments In the majority of selected cases the Commission acknowledged the qualitative impact of Parliament’s amendments on the common position. On the legal protection of computer programs, for example, the Commission considered that the ‘common position clearly reflects the principal amendments proposed by Parliament and incorporated by the Commission in its amended proposal’ and elsewhere that it ‘reflects to a very large extent the wishes expressed by Parliament’ (Commission’s communication, SYN 183). In the common position on the health and safety of atypical workers, the Commission noted that the common position ‘taken as a whole, very largely reflects the amendments introduced into the Commission’s modified proposal, and which thus takes account of the amendments made by the European Parliament’ (Commission’s communication, SYN 281). The Commission went still further in the communication on the common position on the award of public service contracts, here it acknowledged that the common position followed ‘in particular Parliament’s approach of simplifying the application of the directive as far as possible’ (Commission’s communication, SYN 293). In the related common position on procurement procedures in the excluded sectors, key aspects were recorded as ‘originating in Parliament’s amendment’ (Commission communication, SYN 292). The Commission’s communication on the tobacco-labelling common position drew attention to the extent to ‘which [it] is practically identical to the Commission’s amended proposal’ and which ‘largely [took] account of the European Parliament’s opinion’ (Commission’s communication, SYN 314). Indeed, the Commission regarded ‘the common position as very satisfactory’. Tipping the balance: from legislative influence to power An examination of Council’s reasons and Commission communications thus indicates the considerable qualitative impact made by the European Parliament upon the legislative proposals considered here. They also underline the point, made elsewhere (Judge et al. 1994:49), that influence is not an absolute—either entirely present or entirely absent. Council’s reasons repeatedly illustrate the contingent nature of Parliament’s ability to amend legislation. This capacity varies across, and within, policy fields; as well as varying across time in accordance with the configuration of political forces in the inter-institutional triarchy of Council-CommissionParliament. Indeed, perhaps the true importance of the SEA and the co-operation procedure is that

From co-operation to co-decision 109 they transformed the Council-Commission dialogue into a trialogue. In other words, the cooperation procedure ‘hyphenated’ the relationship between Parliament and the other two institutions. But Parliament still remained, constitutionally, the ‘outsider’, dependent essentially upon maximising its legislative influence through informal inter-institutional linkages. Only with the Treaty on EU was the triangular relationship between Council-Commission-Parliament formalised, and the balance tipped from legislative ‘influence’ to ‘power’. THE UNDULATING PATH: THE CO-DECISION PROCEDURE The new legislative procedure introduced by Article 189b of the Treaty on EU (TEU), and now almost universally referred to as the ‘co-decision procedure’, was not what the European Parliament itself had hoped for. Its scope was more limited and its operation more complex than initially envisaged by Parliament (see Corbett 1994:208–210). In practice, it turned out to be far from the generalised system of co-decision sought by the European Parliament (see Lodge 1993:29) as it applies to only fifteen Treaty Articles. That said, however, significant policy areas are covered by the new procedure including most internal market legislation, public health, educational and cultural measures, environmental action programmes, consumer protection and the framework programme for research. Even so, there are limitations upon the scope of the procedure within these policy areas (see Corbett 1994:208). Thus, for example, on research and technological development, and on cultural issues, unanimity is required in Council; and in other areas, such as Trans-European Networks, co-decision is limited to the approval of general guidelines. What is not in dispute is the complexity of the procedure (for details see Jacobs et al. 1992:190–194; Lodge 1993:29–33; Corbett 1994:208–212; Westlake 1994:144–146). Whilst codecision extends far beyond co-operation, it is based, in essence, upon the latter procedure. The first stage remains as in the co-operation procedure, with the European Parliament producing an opinion on the Commission’s proposal before Council adopts its common position. However, whereas previously, the Commission sent its proposal to Council—which in turn then asked Parliament for an opinion—the TEU introduced a ‘legal innovation’ in the legislative procedure, whereby the Commission now formally sends its proposal directly to Parliament at the same time as it sends it to the Council (see European Commission 1993:4). Then, at second reading, Parliament may amend Council’s common position. So far so simple; but, unlike the co-operation procedure, in which Council finally and exclusively determines the outcome of these amendments (albeit on the basis of a re-examined Commission proposal), under co-decision, a conciliation committee may be convened if Council does not approve all of Parliament’s amendments. The conciliation committee, comprised of equal numbers of MEPs and the delegations of Council, is intended to bring together the views of Parliament and Council in a joint text acceptable to both institutions. According to the 1993 inter-institutional agreement, ‘Arrangements for the Proceedings of the Conciliation Committee under Article 189b’, which ‘fleshes out’ the operation of conciliation, the Commission’s role in conciliation is ‘to take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council’. A conciliation committee may also be convened where the European Parliament declares its intention to reject Council’s common position. In this case conciliation takes place during the second reading. Here, according to Article 189b(2)(b), the objective is for Council ‘to explain further its position’. This ‘petite’ conciliation is not intended to produce a joint text; following the

110 David Earnshaw and David Judge conciliation Parliament may only confirm its rejection of the common position, or table amendments to it. Outright rejection of Council’s common position may also occur where conciliation fails to agree a joint text and Council decides to re-confirm its common position. In such a case the measure will be definitively adopted unless the European Parliament rejects the text by an absolute majority within six weeks (as occurred in the case of ONP voice telephony, see below). The cumulative effect, therefore, is that Parliament potentially may extract four readings from the procedure. Not surprisingly, therefore, commentators and practitioners alike regard the procedure at best as ‘highly complex’ (Westlake 1994:145) and at worse as ‘cumbersome’ (European Parliament EN/DV/253/253692 1994:4). Equally, however, analysts are convinced that co-decision is ‘a remarkable step forward’ (Westlake 1994:146), and ‘of fundamental importance to public perceptions of Parliament’s role: it can no longer be accused of lacking teeth’ (Corbett 1994:210). In essence, the procedure produces a common act of the Council and Parliament, and so, for the first time, the European Parliament is a full participant in the EU legislative process and is no longer dependent simply upon delivering its opinion which Council then, in its own right and on its own, decides upon. Moreover, whereas the co-operation procedure, and the Commission’s role in it, could be criticised as a ‘style of codecision under administrative supervision’ (Jean-Pierre Cot, MEP, DEP 3–396, 20 November 1990:79), co-decision opens the possibility of systematic, direct negotiation between the European Parliament and Council. In this respect co-decision is fundamentally different from co-operation. Formally Parliament is now an equal partner in the legislative process, with acts adopted under the procedure jointly signed by the presidents of Council and Parliament. A CRAZY-PAVED PATH?: INITIAL EXPERIENCES OF CO-DECISION By the end of the 1989–94 parliamentary term in June 1994, 110 proposals for co-decision legislation had been submitted to Parliament. (This represents about a quarter of the Parliament’s legislative workload.) By this date agreement between Council and Parliament had been found, and the procedure concluded, on fifteen proposals. Four of these cases involved conciliation (European Parliament 1994b:4; see also OJ C205, 25 July 1994:236). By February 1995, twentythree co-decision procedures had been completed, and the resultant legislation had been signed by the Presidents of Council and Parliament and published in the Official Journal. What the rest of this chapter focuses upon therefore is the initial experience of co-decision as revealed in these twenty-three procedures. Hence this analysis covers the first year of the codecision procedure following the first European Parliament vote on a common position of Council submitted under co-decision in January 1994 (OJ C44, 14 February 1994:81). Table 6.3 lists the measures subject to the co-decision procedure during the first year. Those procedures which were still in progress in January 1995 are not examined here (this category includes some measures on which substantive agreement had been found but for which definitive acts had not then been adopted, for example, motorcycle speed, power and torque [see Earnshaw and Judge 1995a], and miscellaneous additives). In the following discussion attention is concentrated upon Parliament’s processing of legislation after Council has adopted its common position, as this is the phase of co-decision which provides the greatest contrast with the earlier co-operation procedure. But, in line with earlier sections of this

From co-operation to co-decision 111 Table 6.3 Co-decision legislation adopted and published by February 1995

chapter, a brief survey of Council’s common positions is provided initially in order to assess Parliament’s overall impact at first reading in the twenty-three completed procedures. LOOKING BACK DOWN THE PATH: COUNCIL’S ASSESSMENT OF THE EUROPEAN PARLIAMENT’S IMPACT AT FIRST READING The general pattern which emerged under the co-operation procedure—of Council taking up a considerable number of the European Parliament’s amendments at first reading—can also be identified from Council’s reasons on the twenty-three items of co-decision legislation identified in Table 6.3. This was particularly so where support for Parliament’s amendments also came from the Commission, indeed, Council’s reasons are peppered with overt acceptances of such amendments. Thus in the case of the directive on summertime, for example, Council considered that its common position ‘incorporates most of the amendments adopted by the European Parliament’ (Council’s reasons, OJ C137, 19 May 1994:40); on the 13th amendment to the directive on the marketing and use of dangerous substances, Council ‘basically went along with the amended Commission proposal’ which in turn had ‘incorporated…all the amendments proposed by the European Parliament’ (Council’s reasons, OJ C244, 31 August 1994:11); and, on the Fourth Framework Programme, Council’s reasons for its common position stated, even more strongly, that:

112 David Earnshaw and David Judge Council has sought to incorporate to the largest extent possible the suggestions from the European Parliament, with a view to formulating a text which reflects a consensus between the two legislative bodies whilst respecting the overall balance of the Commission’s proposal. (Council’s reasons, OJ C101, 9 April 1994:54)

In the reasons on recreational craft, Council noted that the Commission’s amended proposal had taken up thirteen of the European Parliament’s twenty-two amendments and that: ‘Almost all of those amendments have been adopted by the Council in its common position either to the letter or in spirit, and expanded upon in certain cases’ (Council’s reasons, OJ C137, 19 May 1994:25). Similarly, on timeshare, Council was ‘able to include in its common position, whether literally, in substance, or in part, the European Parliament’s amendments taken on board by the Commission in its amended proposal’ (Council’s reasons, OJ C137, 19 May 1994:47). On the continuation of an EU-wide system of information on home and leisure accidents (EHLASS), Council ‘accepted without change the amendments proposed by the European Parliament which were also accepted by the Commission’ (Council’s reasons, OJ C244, 31 August 1994:88). Finally, on technical standards, Commissioner Bangemann, whilst addressing Parliament’s plenary during the second reading debate on Council’s common position, noted that of ‘the 12 amendments tabled, which Parliament adopted in its first reading and which were accepted by the Commission, 10 were incorporated into the common position’ (DEP 3–442, 7 February 1994:27). There was one notable exception, however, where Council made no pretence that Parliament had significantly influenced its common position. This was the directive on emissions from motor vehicles where the Commission ‘drew up an amended proposal which incorporated three of the 23 amendments proposed by the Parliament’ (Council’s reasons, OJ C101, 9 April 1994:12). These three amendments were only minor—relating specifically to the recitals of the proposal; and so, although subsequently adopted by Council, had no effect on the substantive provisions of the common position. In contrast there were occasions when Council explicitly supported European Parliament amendments which had not been accepted by the Commission. In its reasons for the common position on hydrocarbon exploration, for example, Council noted that it had ‘accepted, word for word or in substance…five amendments of the European Parliament, not inserted by the Commission in its amended proposal’ (Council’s reasons, OJ C101, 9 April 1994:20). Parliament’s rapporteur, during the second reading debate, underlined the significance of this event in his observation that: ‘interinstitutionally speaking it is interesting to note that the Council has not taken any notice of the Commission here’ (DEP 3–445, 8 March 1994:39). In addition, five other European Parliament amendments were accepted by the Commission and also by Council. This left two amendments which were neither incorporated by the Commission in its amended proposal, nor accepted by Council. Even with these two, Council was satisfied, nonetheless, ‘with the Commission’s assurance that it would bear these amendments in mind, and did not therefore consider it necessary to amend the texts’ (Council’s reasons, OJ C101, 9 April 1994:20). LOOKING UNDER THE PAVING STONES: INFORMATION ON COUNCIL’S DELIBERATIONS Apart from information about procedural and chronological details, which are generally provided consistently in Council reasons, Council remains reluctant to divulge information about its

From co-operation to co-decision 113 internal deliberations. What information is available is provided erratically. On the packaging directive, the opposition to the common position of the German, Dutch and Danish delegations was recorded; on the dangerous substances 12th amendment, the Italian delegation voted against adoption of the common position; on timeshare, the common position was adopted by ‘a qualified majority’ (with a footnote to the Council’s reasons noting that the Portuguese delegation voted against, while the Dutch abstained [Council’s reasons, OJ C137, 19 May 1994:47]); on motor vehicle emissions, the common position was adopted unanimously; and, on the listing particulars directive, it was recorded that: ‘No member state voted against or abstained’ (Council’s reasons, OJ C137, 15 May 1994:57). No information was provided about Council decision-making in any of the other common positions adopted, and published, under the co-decision procedure up to February 1995. It is also the case that Council has failed to divulge information even where it has formally committed itself to do so. In the 1993 inter-institutional declaration on ‘Democracy, Transparency and Subsidiarity’, Council undertook to ‘publish the common positions which it adopts under the procedures laid down in Articles 189b and 189c, and the statement of reasons accompanying them’. By February 1995 Council’s common positions on seven measures had not been published in the Official Journal—despite the conclusion of the co-decision procedure and the fact that the final legislative acts had been published. BACK ON THE PATH: PARLIAMENT’S SECOND READING In eleven of the twenty-three items of legislation to reach the end of the co-decision path by February 1995, Parliament proposed no amendments at second reading. In each case legislation was adopted on the basis of the common position agreed by Council. On seven of these issues Parliament undertook its second reading expeditiously, without further debate. This it did on the basis of a letter of recommendation from the relevant parliamentary committee (under Rule 66[7]), or by means of the President declaring the common position approved without a vote (Rule 68). However, on four other issues further debate occurred without Parliament proposing additional amendments. These deliberations were motivated, on occasion, by a desire to maximise Parliament’s policy preferences without the need for a formal vote on amendments. In the case of the directive on summertime, for example, Parliament’s Transport Committee succeeded in extracting a commitment from the Commission (which apparently had already been given to Council) that it should submit a report on the economic and other effects of changing over from wintertime to summertime and vice versa. In fact, the need for just such a report had been identified in Parliament’s first reading amendments, but Council had not incorporated this amendment in its common position. With Council anxious to reach a quick decision, it requested Parliament to expedite its second reading on this issue. Astutely, the European Parliament raised the possibility of delaying its second reading, leading the Commission to declare, forthwith, that it ‘undertakes further to table a report on this to the European Parliament and the Council before 1 January 1996’ (DEP 3–447, 22 April 1994:294). Parliament then proceeded to vote its approval of the common position, without amendment. On the proposal relating to particulars to be published for the admission of securities to official stock exchange listing, Parliament’s Legal Affairs Committee had initially decided to propose three amendments to the common position. It became clear in April 1994, with European

114 David Earnshaw and David Judge elections looming, that if Parliament amended the common position and provoked conciliation, adoption of the directive would be delayed. Parliament’s rapporteur believed that such a delay would ‘not [be] helpful either to capital movements or our stock markets’ (DEP 3–447, 20 April 1994:156). However, if passed without amendment, the directive would enter into force within one month. The rapporteur along with the Legal Affairs Committee proposed, therefore, that Parliament ‘vote against the Legal Affairs Committee’s amendments so that this legislation can be brought in immediately’ (DEP 3–447, 20 April 1994:156). As a result, Parliament adopted no amendments to the common position, and the directive was definitively adopted by Council and Parliament in May 1994. The continuing problem of absolute majorities The difficulty facing Parliament at second reading stage is brought into stark relief in the two other cases in which Parliament did not vote amendments to Council’s common position. The basic problem is that the European Parliament must muster an absolute majority to amend a common position. A clear, and early example of this difficulty was provided by the directive on motor vehicle emissions. As noted above, Council had already refused, at first reading, to take up any of the European Parliament’s substantive amendments; Parliament was then faced with a Commission determined to defend Council’s common position against the second reading amendments proposed by Parliament’s Environment Committee. The latter sought: first, to tighten 1996 emission standards; second, to give member states greater leeway in applying tax incentives; and, third, to decide on stricter limits from 1999 immediately, rather than waiting for the results of a Commission-industry study on reformulated fuels and new engine technologies. Commissioner Bangemann was in no doubt that should Parliament adopt the suggested amendments at second reading, ‘endless disputes with the Member States in the conciliation committee’ would ensue, and that ‘we know that the Member States are not prepared to go further’ (DEP 3–444, 7 March 1994:35). In Parliament, however, some members saw the possibility of a sequel to Parliament’s 1989 small cars emissions triumph. Outside there was also considerable press and industrial interest in Parliament’s second reading which led Parliament’s rapporteur, Kurt Vittinghof (Soc/Ger), to comment that the ‘industrial lobby has never been so strong, [and] has never had such an influence as in this case’ (DEP 3–444, 1 March 1994:30). To the surprise of many, therefore, the plenary vote saw amendments tabled by the Environment Committee not only failing to pass the absolute majority threshold but, unusually, actually being defeated. The result was that Council’s common position was approved unamended. The Chairman of Parliament’s Environment Committee, reflecting on the debate, recorded that it had been ‘disfigured by a great deal of misleading and hysterical lobbying by a great many people who should have known better, including certain Commission officials’ (DEP 3–445, 9 March 1994:105). Finally, on the 12th amendment to the directive on dangerous substances and preparations, the European Parliament’s Environment Committee proposed an intention to reject the common position. Parliament’s first reading amendments had been designed to restrict the scope of the measure, and this Council had accepted in essence in its common position. Nonetheless, Council still sought to follow the Commission’s proposal that there should be a limitation on the use of nickel in jewellery and similar items. The Environment Committee’s favoured appoach, however, was simply to label items containing nickel, thereby enabling the consumer

From co-operation to co-decision 115 to choose. More particularly, Parliament’s rapporteur, Caroline Jackson (EPP/UK), argued that the Commission had blatantly disregarded the cost to industry of the proposal, and that members of the Environment Committee ‘find it unacceptable that a Commission official could come to our meeting…and say that he had not had any conversations with the jewellery industry’ (DEP 3–448, 3 May 1994:103). Once more, this time in the vote to declare an intention to reject, Parliament fell short of the required absolute majority threshold. On this occasion there were 214 votes in favour of rejection and thirty-seven against (with nine abstentions). While the EPP and Socialist members voted overwhelmingly in favour of the Environment Committee’s proposal, an absolute majority was denied by a combination of absenteeism, due to impending elections, and the dissenting votes of members of the Green and Rainbow groups, who considered labelling both as an insufficient safeguard and as offering lower levels of protection than already existed in some national legislation. With the loss of the vote to declare an intention to reject, Parliament’s President therefore declared the common position to be approved without amendment. INTO THE INTER-INSTITUTIONAL CRACKS ALONG THE PATH: AMENDED COMMON POSITIONS In the first year of the co-decision procedure twelve Council common positions were amended by Parliament. Only in eight cases, however, did this result in Council convening the conciliation committee. In the other four cases, Council went ahead and accepted Parliament’s second reading amendments, which it did sometimes against the position adopted by the Commission (for example, on technical standards), and, on one occasion, on sweeteners in food, against the wishes of a member state which had supported the initial common position. On the latter issue Parliament voted one amendment to the common position, to which one member state—France—was vehemently opposed. (France had supported the original sweeteners common position.) Protracted negotiations were required, therefore, in Coreper to try to reach an accommodation acceptable to the French delegation. Some member states, in particular the UK, argued at length that it was important to retain intact both the common position itself and also the initial line-up of member states in Council in support of the common position; it was thought that adopting the legislation by a different qualified majority than had voted for the common position could set a dangerous precedent. Until this point Council had sought to maintain the same majority between the common position stage and the definitive adoption of legislation, thereby minimising the impact of European Parliament amendments at second reading. Eventually a solution was found within Coreper whereby the sweeteners common position was definitively adopted with the abstention of the French delegation, and with the Commission committing itself (in a Council minute statement) to review the offending clause before the directive was implemented nationally. A final part of the compromise was that France made a further statement in Council about the difficulties it faced on the issue— following which both the sweeteners and colours legislation was adopted (for full details see Earnshaw and Judge 1995a).

116 David Earnshaw and David Judge Into conciliation By February 1995 seven measures had entered the EU statute book after being processed through the conciliation procedure. All seven involved conciliation after Parliament’s second reading, as opposed to the ‘petite’ conciliation which is possible during the second reading after a declaration of intent to reject the common position. ‘Petite’ conciliation was used only once in the first year—on motorcycle power limits. (This issue is not examined here as the directive was not definitively adopted by the end of January 1995; [for details see Earnshaw and Judge, 1995a]). Comitology In several cases conciliation was prompted by inter-institutional conflicts between Parliament and Council: most notably over the question of comitology. Indeed, the issue of comitology was to prove decisive in the first rejection of Council’s common position under co-decision (see below). However, the inter-institutional dispute was first signalled immediately after the entry into force of the TEU, when Parliament voiced its disapproval of retaining existing comitology procedures for co-decision legislation. Parliament’s position was set out in a report from its Institutional Affairs Committee, drafted by Biagio De Giovanni (Soc/Italy) and considered by plenary in December 1993. The report argued that existing comitology practices should not apply to measures adopted jointly by Council and Parliament under the co-decision procedure but should be retained only for those measures adopted by Council alone. Under co-decision, in Parliament’s view, ‘full responsibility for legislative acts…lies with Council and Parliament’ (OJ C20, 24 January 1994:177). As Biagio De Giovanni commented: The Council used to have a power of delegation to the Commission for the execution of acts it had adopted, but it is quite clear that in the case of acts of co-decision that exclusive power of delegation lapses because the Council no longer has sole responsibility for the act and it is therefore also clear that this power belongs to the Council and the European Parliament jointly. (DEP 3–440, 14 December 1993:94)

In December 1993 Parliament adopted a resolution based on the De Giovanni report on comitology in which it proclaimed that it should have an equal right with Council to propose annulment of Commission-implementing decisions. It recognised, however, that the agreement of both institutions would be necessary for annulment to occur; and sought to strengthen the Commission’s role by allowing it to adopt measures after receiving the opinion of member states and the European Parliament. These principles were applied for the first time under co-decision in March 1994 on the comitology provisions contained in the common positions on mechanical coupling devices and recreational craft. In the former, Council opted for a regulatory committee, and in the latter for an advisory committee procedure. In both cases, Parliament’s amendments stipulated that the relevant European Parliament committee, and not simply the committee of member state representatives, should be consulted on the Commission’s draft implementing measures. In the case of the recreational craft common position, where Council had already agreed to an advisory committee procedure (under which the Commission need only ‘take the utmost account’ of the opinion of the committee), Parliament resisted proposing more restrictive implementing provisions than those foreseen by Council. On the mechanical coupling devices

From co-operation to co-decision 117 common position, Parliament went further and also asserted a claim to be able to annul implementing measures. Not surprisingly, Council resisted strongly Parliament’s attempt to include these principles in the common position on mechanical coupling devices. On this occasion, the institutions agreed to differ: with Council maintaining that the correct type of committee had been provided, while the European Parliament delegation in the conciliation committee dissented from this view and maintained that the principles laid down in the December 1993 comitology resolution should apply. The final compromise, agreed at a single meeting of the conciliation committee, was to delete in its entirety the article dealing with adaptations to technical progress by commitology. Council was satisfied that an implementing committee established under a related framework directive would be sufficient in this instance. On this basis, in May 1994, Parliament approved the joint text agreed by the conciliation committee, so omitting any reference to comitology. On the proposal on recreational craft, Parliament acceded in conciliation to Council’s decision to establish an advisory committee, but only after winning a declaration from the Commission that Parliament would be kept fully informed of the work of the committee. Significantly, on this measure the Commission also ‘abandoned the exceptions based on confidentiality and urgency’ which it had retained in the 1988 Delors/Plumb undertaking on comitology (through which Parliament is normally kept informed of implementing legislation [European Parliament 1994b; see also Jacobs et al. 1992:234]). Council further agreed to two substantive second reading amendments: one specifically excluding from the directive boats designed to carry passengers for commercial purposes; and the other a technical amendment withdrawing certain provisions concerning fireproofing. Substantive issues The other conciliation procedures centred almost entirely on issues of policy. In the case of the proposal on deposit guarantee schemes Parliament passed seven second reading amendments. The legislation was designed to protect depositors in credit institutions, and the European Parliament sought, variously: to set higher guaranteed amounts and regular reviews of these amounts (which it had partly won at first reading); to ensure prompt repayments to creditors in cases of financial collapse; and to enable depositors to take direct legal action against deposit guarantee schemes. Only four of the European Parliament’s seven amendments were accepted by the Commission, but these included the important provision for maximum amounts guaranteed in deposit guarantee schemes to be revised at least every three years. Initially, in conciliation, Council had accepted that guaranteed deposits be reviewed, but only every five years. Council further compromised with Parliament on the issue of depositors’ ‘redress’; and agreed to set a time limit of twenty-one days in which the deposit guarantee must be activated. Indeed, with one exception, Council responded positively to the substance of each of Parliament’s amendments voted at second reading, and Council even agreed that the review of amounts covered by deposit guarantee schemes should be subject to co-decision, rather than to a comitology procedure. As a result, Parliament approved the joint text at its May 1994 plenary session, and the text was formally signed by the European Parliament and Council Presidents later the same month. The exception was provided when the German delegation voted against the adoption of the deposit guarantee directive in Council, as its provisions were deemed incompatible with

118 David Earnshaw and David Judge Germany’s own very high level of depositor protection. Germany subsequently brought a case to annul the directive in the Court of Justice (Case C-233/94). (This case had the distinction of being the first action brought jointly against Council and Parliament as ‘co-legislature’.) Germany argued that the legal base of the directive, Article 57(2), was insufficient and that Article 235, requiring unanimity in Council, should have been used instead. Germany also maintained that unanimity in the Council and the co-decision procedure ‘are not mutually exclusive’, and pointed to the requirement for unanimity for the adoption of the RTD Framework Programme and cultural measures (OJ C275, 1 October 1994:20). However, as one observer notes, the requirement for Council to act unanimously under codecision in the area of research and technological development policy ‘makes an already complicated procedure even more cumbersome’ (European Parliament 1994c:14). The Fourth RTD Framework Programme (FP) was one of the first issues subject to co-decision, and became the first to result in the convening of a conciliation committee under the new procedure. The likelihood that it would be processed through co-decision, led to informal trialogues being held—bringing together the Council Presidency, the Chairman of Parliament’s Energy, Research and Technology Committee, and the Commissioner responsible for research policy— even before the Commission submitted its formal proposal in June 1993. The trialogues continued throughout the first reading and through to the conciliation, and were judged to be ‘an indispensable instrument for co-ordination between the Community institutions involved in the decision making process’ (European Parliament 1994c:21). At an analytical level the trialogues also underscore the point that the formal powers of the European Parliament, in this case at the very prospect of co-decision, led the Commission and Council to court the European Parliament informally. There was both a substantive concern to ensure that the European Parliament’s Energy Committee would not delay adoption of the fourth FP, and an interinstitutional concern to guarantee the smooth operation of the co-decision procedure on one of its first outings (Judge et al. 1994:47). The outcome of this informal collaboration, alongside the formal processes, was clear soon after Parliament’s first reading: with Council’s common position taking up no less than eighty of the European Parliament’s 118 amendments. At second reading the European Parliament’s Energy Committee decided, therefore, to focus on six key issues: first, it sought to raise the funding available for the fourth FP by 400 mecu (at first reading it had proposed, unsuccessfully, an increase of 600 mecu, while the Council had cut the Commision’s proposal in its common position); second, the need for independent, external evaluation of the FP; third, a reduction in the proportion of the Joint Research Centre’s competitive activities; fourth, the isssue of commitology (with the European Parliament insisting that advisory committees should be established in the case of new specific programmes); fifth, the relationship of the THERMIE programme to the FP; and, sixth, the inclusion of worker health and safety as an additional theme in the FP. In concentrating its attention upon a limited number of second reading amendments Parliament was able to present a unified front. Council, on the other hand, was ‘unable to agree a unified approach’ as ‘six delegations [were] prepared to accept the 400 mecu increase…while the United Kingdom, France and Germany opposed any increase’. As a result, Council approached the first meeting of the conciliation committee ‘equipped only with the mandate of the common position and the claim that it had already met Parliament’s demands to a very large extent’ (European Parliament 1994c:43). Divisions in Council were exacerbated by the requirement that Council act unanimously on FP decisions. Yet on

From co-operation to co-decision 119 one issue—that of comitology—Council was unanimous in its opposition to Parliament’s stance. Conciliation eventually resulted in compromise both between the institutions and among Council delegations. But these compromises were only effected by informal negotiations beyond conciliation; between, on the one side, the European Parliament, the Commission and Council Presidency; and, on the other, among Council delegations in Coreper. Ultimately, Council conceded an increase in funding of 300 mecu (to be allocated in line with Parliament’s priorities), while an amount set aside for possible use in 1996 was reduced from 895 mecu to 700 mecu. The proportion of the Joint Research Centre’s activities devoted to competitive activities was reduced slightly; in Parliament’s view this reduction was still inadequate but not sufficient to jeopardise the overall agreement. Parliament’s demand for external, independent assessment of the programme’s implementation was also accepted, as was the inclusion of health and safety as an additional theme in the industrial technologies and socio-economic research programmes. Offsetting these successes for Parliament, Council managed, nevertheless, to block Parliament’s desire to see the implementation of existing specific programmes through advisory committees. The Commission sought, and Council agreed to, the retention of existing comitology arrangements in its proposals for specific RTD programmes, with advisory committees being proposed only for new programmes. On the other hand, Parliament’s delegation recorded, in a declaration, its intention to ‘submit to plenary the results of the conciliation for approval, after the Commission has presented proposals for THERMIE II’. In accordance with Parliament’s stance, the Commission then stated its intention to submit such a proposal, and to continue THERMIE activities outside the FP (European Parliament 1994d:3). Leading the way down the path: the Environment Committee and co-decision By far the greatest burden of processing co-decision proposals in the first year fell on Parliament’s Environment Committee (see Table 6.3). Over half of the co-decision procedures concluded by February 1995 came within the responsibilities of this single committee. In fact, the Environment Committee was responsible for every co-decision procedure concluded during the second half of 1994, three of which—packaging waste, the control of volatile organic compound emissions, and the protection of purchasers of timeshare properties—went to third reading and conciliation. Timeshare proved to be the least contentious issue. Negotiations focused on just four European Parliament second reading amendments, and agreement between Parliament and Council was reached during a single meeting of the conciliation committee in September 1994. Nevertheless, Parliament’s impact through conciliation was marked, pushing the Commission significantly beyond what it had been prepared to accept at second reading; and beyond what Council had been prepared to accept at the outset of conciliation. The starting positions were that Parliament sought a transposition period of two years and Council had agreed a three year period. Conciliation produced a compromise for thirty months, mid-way between the two positions. However, this was not an unambiguous ‘success’ for Parliament: as the directive would have been definitively agreed by Council in May 1994, in this instance, therefore, the process of conciliation itself delayed adoption of the measure, and hence its implementation, by some four months. Parliament could claim, however, to have underlined

120 David Earnshaw and David Judge the need for more rapid transposition than Council would otherwise have countenanced. On this point Parliament and the Commission were in agreement, though this was not the case with two other European Parliament amendments relating respectively to a cooling off period under which purchasers could withdraw from their contract, and to the information which must be included in contracts. Notably, in conciliation Council sided with Parliament and accepted both amendments in their entirety. In return, Parliament accepted Council’s reluctance to agree with the remaining amendment (which was in any case of doubtful legality and which the Commission opposed). Packaging waste proved to be far more contentious in conciliation. Already at first reading the widespread interest of industry and environmental lobbies had found reflection in over 100 amendments being tabled to the proposed directive. The political sensitivity of the issue was further demonstrated when Council adopted its common position only by qualified majority— against the opposition of Germany, the Netherlands and Denmark. All three countries supported more stringent legislation. Matters were further complicated by the fact that, from July 1994, the Presidency of Council was held by Germany—which was firmly opposed to the common position subject to negotiation in the conciliation committee. Indeed, Germany was reported to have drawn ‘sharp criticism from within the Council’s own ranks over the way the presidency handled a dossier it evidently [had] little interest in seeing concluded before its national parliamentary elections on 16 October’ (Environment Watch Western Europe, 7 October 1994:4). An additional twist to the negotiations was provided by the imminent accession to the EU of Sweden, Finland, Austria (and, at that time, Norway). All of these potential entrants were known to be likely to support the minority in Council, and hence, if agreement was not reached before the end of 1994, to threaten any future negotiations on the directive. The packaging directive is also notable for underlining the difficulty in obtaining an absolute majority in Parliament at second reading (noted above). Some nineteen amendments were adopted at this stage, while forty-two others were lost, despite, in many cases, securing large majorities in support. Luigi Vertimati (Soc/Italy), Parliament’s rapporteur, lamented the outcome of the vote: ‘[It] was not what I was hoping for. I would be tempted to request a referral back to committee, but I will not do that in view of the pressing need for a directive on this matter’. In practice, any such referral would have been less than effective given the tight timetable laid down under the co-decision procedure. Vertimati thus placed his hopes upon the prospect of conciliation and ‘that the directive can be improved during a future session’ (DEP 3–448, 4 May 1994:183). Of the nineteen amendments adopted by Parliament nearly half affected recitals, and five related to the definitions used in the directive. All were accepted by the Commission; though it had required a change of heart by the Commission on five of the amendments—to avoid the need for conciliation by seeking the adoption of the amendments by qualified majority in Council. For the Council, however, one of Parliament’s amendments proved to be fraught with political difficulties to the extent that, at the June 1994 Environment Council, Belgium held out against adoption of this single amendment. (This was despite the legal services of the Commission and Council composing an interpretative statement which would effectively have nullified the amendment’s possible impact.) While all of Parliament’s other amendments could readily be accepted by Council, Belgium maintained that this one would result in legal uncertainty over the use of national economic and fiscal instruments to promote the directive’s objectives. Some support for Belgium was eventually forthcoming from Luxembourg and the UK (though the UK’s

From co-operation to co-decision 121 position was based on the rather different grounds that it feared any adoption of EU-level fiscal measures by qualified majority). In the absence of a qualified majority, Council referred the issue to Coreper. There, Belgium maintained its opposition, and after lengthy negotiations among member state permanent representations, Council declared it was unable to accept all the European Parliament’s amendments and intended, therefore, to convene the conciliation committee. Before the first meeting of the conciliation committee Council offered no formal information about its position on the amendments to Parliament. As a result the Chairman of the Environment Committee felt moved to criticise the ‘relative intransparency of the procedure followed by Council’ (Agence Europe, 2 September 1994). Parliament, for its part, sought concessions from Council on five amendments which had failed to pass the absolute majority hurdle at second reading in return for a re-drafting of the single amendment disputed by some delegations of Council. Disputes within Council continued however, with the German Presidency of Council, on one side, showing ‘a willingness to take on board the five changes called for by the Parliament’s delegation’ (Environment Watch Western Europe, 7 October 1994:4), whilst the Italian delegation, on the other, believed that this strategy would set a ‘dangerous precedent’. In this the Italians found support from the Portuguese, French, Greek and UK delegations (Reuters News Service, 20 September 1994). Given these internal divisions, the first conciliation meeting appeared, at least to one commentator, to be ‘chaotic and fruitless’ (Environment Watch Western Europe, 7 October 1994:3). Parliament did manage, however, to force onto Council’s agenda (as opposed to Coreper’s) a further discussion of the European Parliament’s proposals. Nonetheless, the result of the Environment Council of 4 October 1994 was that: ‘After a detailed discussion …the Council concluded that it was unable to respond favourably to the Parliament’s proposed amendments which had not been adopted by an absolute majority of its members on second reading’ (Council Press Release 9744/94:12). Agreement between Parliament and Council was eventually effected at a third meeting of the conciliation committee, after the delegations of both Council and Parliament had asked the Commission to ‘formulate suggestions for a compromise solution’ (Environment Watch Western Europe, 18 November 1994:3). A reworded version of the disputed amendment was accepted, as was Parliament’s insistence that there be a specific reference in the directive to a parliamentary role in the review of the practical experience of the legislation. (Significantly, this last point had not figured among Parliament’s second reading amendments). The Commission also offered Parliament an assurance on comitology, whereby Parliament was to be kept fully informed of implementing measures submitted to a regulatory committee established by the directive. Parliament made it clear, however, that it accepted this assurance ‘without prejudice either to any position it may adopt on other legislative acts or to the position it will adopt in respect of any general agreement between the Institutions on this subject’ (Statement by the European Parliament entered in the minutes of the Conciliation Committee, PE-CONS 3627/94). Running in tandem with the conciliation on packaging was that on VOC emissions, with meetings of the conciliation committee devoted to discussion of both the packaging and VOC dossiers. As with packaging waste, the German delegation had voted against the common position, but again, paradoxically, found itself responsible for co-ordinating Council’s stance in negotiations with Parliament. At its second reading in March 1994 Parliament adopted seven amendments to the VOC common position; a further amendment failed, by just six votes, to pass

122 David Earnshaw and David Judge the absolute majority threshold. Of the seven amendments, the Commission supported just one. In turn, Council adamantly refused to make concessions on anything but this single amendment at the first meeting of the conciliation committee. At a subsequent meeting, Council did eventually concede to Parliament’s two main amendments which envisaged an extension of the directive to tanker ships and loading terminals; additionally Council also accepted a slightly re-worded version of a third amendment to bring rail tankers into the scope of the directive. However, these concessions only emerged after several suspensions of the meeting to allow national delegations to discuss their respective positions. In return, Parliament agreed to drop three of its less significant amendments; while on the contentious issue of comitology, the conciliation committee reached an agreement similar to that concluded in the case of packaging. Some dissension was expressed within Parliament’s delegation over these agreements on comitology, but eventually the VOC directive—along with that on packaging—was signed by Council and Parliament Presidents at the end of December 1994. THE PATH BLOCKED?: REJECTION Only one Council common position was rejected in the first year of co-decision (though later, the European Parliament rejected a joint text on the legal protection of bio-technological inventions, which had been agreed in conciliation committee [see Earnshaw and Judge 1995b: 644–646]). This was on a proposal to apply open network provision (ONP) to voice telephony services. The proposal was introduced by the Commission in October 1992, and Parliament voted on it at first reading in March 1993. Council’s common position, submitted to Parliament in July 1993, reflected several of the European Parliament’s first reading amendments. However, Council added a regulatory committee for the most important aspects of the directive’s implementation, and opposed a number of Parliament’s amendments promoting the interests of telephone users and transparency. The political sensitivity of the common position was noted by Parliament’s rapporteur in her recommendation for second reading: ‘commitology [has] become a more serious issue…as a result of the Council’s common position’; and she reiterated the point that such a committee procedure ‘has been traditionally regarded as unacceptable by the Parliament’ (PE 206.718/fin, 1993:12). Accordingly, she proposed deletion of the regulatory committee, and sought formal consultation of Parliament and Council where the Commission requested ‘modifications…of a significant nature’ to adapt the directive to new technological developments or to changes in market demand (OJ C44, 14 February 1994:97). The significance of the ONP case is that the issue of comitology became entwined with, and provided the opportunity for, Parliament’s assertion of its claim to some equivalence with Council in the implementation of measures. Of equal significance is that this constituted the first direct challenge by Parliament to a common position under the co-decision procedure. Indeed, the constitutional importance of the ONP proposal is underscored in Docksey and Williams’ (1994:141) observations that: The issue of comitology and the accompanying question of institutional balance became so sensitive that for the first time under the co-decision procedure the conciliation phase failed. This failure made it possible for Parliament to exercise its new veto power under the procedure.’ Both before and during the negotiations in the conciliation committee, held during the run-up to the June 1994 European elections, Council refused to entertain Parliament’s

From co-operation to co-decision 123 position on commitology. Council also disagreed basically with Parliament on the substantive issues underpinning the proposal. Indeed, ‘during the many hours of the conciliation procedure’ the rapporteur found ‘it was daunting to see how little leeway the Council was prepared to give’ (DEP, 4–449, 19 July 1994:8). Hence, without agreement on a joint text in conciliation, and amidst the campaign for the election of the new European Parliament, Council chose to reaffirm its common position. Parliament, via its President, had asked the Commission (pursuant to Rule 78[1]) to withdraw its proposal, and the Council not to confirm its common position. Council did, however, delay its formal confirmation of the common position until the end of June, thereby making it possible for the newly elected Parliament to decide on the text at its July session—within the six week timetable laid down in Article 189b. The decision to confirm its common position, and to do so by qualified majority, led the Council into uncharted constitutional waters. In the Commission’s view, the Council’s vote was based on weak legal foundations, and raised new legal uncertainties about the operation of the codecision procedure. The Commission’s position was that its acceptance of Parliament’s second reading amendments constituted, in fact, an amended proposal—and, hence, had consistently put forward its opinion on Parliament’s second reading amendments as such. According to this view, Council may only confirm its common position unanimously—in effect amending the Commission’s new proposal. Council, however, did not share this interpretation. Instead, it argued, first, that its common position was an ‘act’ of Council, after which the Commission was not at liberty to amend (or withdraw) its proposal (on this unresolved legal uncertainty, see Earnshaw and Judge 1993:113– 115; and Earnshaw and Judge 1995a:54–55). Second, under co-decision, Council could point to Article 189b(6), which states bluntly, but nevertheless ambiguously, that: ‘the Council, acting by a qualified majority…confirms the common position to which it agreed before the conciliation procedure was initiated, possibly with amendments proposed by the European Parliament’. In adherence to this Article, Council confirmed the ONP common position, against the vote of Portugal (with Spain abstaining). If the validity of Council’s interpretation was to be accepted, then one consequence would be a significant reduction in the impact of the Commission in pressing upon Council those parliamentary amendments which it supported. In fact, so great was the concern of the Commission on this occasion that it entered a statement in Council’s minutes ‘reserv[ing] the right to analyse the consequences of the Council’s action and, if necessary, to initiate proceedings before the Court of Justice’ (Agence Europe, 31 May 1994). Proceedings did not materialise, however, with Commission and Council preferring, in the short term at least, to leave the issue open to varying interpretations. At Parliament’s first session after the June 1994 elections its rapporteur observed that ‘the Council has not felt able…to accept any of the amendments nor any of the compromise text’. On the unresolved issue of comitology Council limited itself to a reiteration of ‘its commitment…to return to the discussion of the question of comitology. The procedures for implementing this directive will be re-examined to the extent that the result of this discussion so requires.’ As an expression of Parliament’s dissatisfaction with this outcome the rapporteur called on Parliament to ‘stand firm on this and by rejecting this report fight for the principle of commitology which has been so important’ (DEP 4–449, 19 July 1994:8). Parliament then proceeded to reject Council’s re-confirmed common position by an overwhelming 373 votes to 45 with twelve abstentions.

124 David Earnshaw and David Judge CONCLUSION: SIDE BY SIDE ON THE PATH What this chapter has sought to do is to trace the historical tracks of the European Parliament in its search for legislative power at a crucial stage of the development of the EU between 1989 and 1994. In following Westlake’s advice to conceive of this route to legislative power as a path, then under co-decision the European Parliament has finally achieved a formal position on this ‘path’. Before then, under consultation, Parliament’s role was essentially confined to communicating its opinion from behind the metaphorical hedgerows to the Commission and Council as they proceeded along this path; whereas, under co-operation, Parliament was given the formal opportunity to step onto the path in limited policy fields and for limited periods. Importantly, as this chapter has chronicled, Parliament used this power to establish an informal foothold on the path far in excess of what the formal procedure envisaged. A qualitative assessment of the European Parliament’s legislative impact under the provisions of the SEA reveals that both Council and Commission alike have been willing to acknowledge Parliament’s significant but contingent contribution to the legislative process. Indeed, under co-operation, Parliament could be seen metaphorically to be jostling the two other institutions—whispering respectively in their ear, and nudging them considerable distances down the path—before being effectively pushed off onto the verge of decisionmaking after Council adopts its common position. Parliament’s attempts to clamber back onto the path thereafter, through amendment and the occasional formal rejection of the common position, met with only limited success. Under co-decision, however, Parliament is now an equal partner in the legislative process, and has a rightful place on the path alongside Council in several important policy areas. Legislation processed under co-decision is formally the common act of Council and Parliament. One consequence has been, as Westlake (1994:150) observes, that: The Council, its procedures, its secretariat, its personalities and even buildings are no longer “off limits” to Parliament…MEPs are now entitled to stalk its corridors and sit at its tables in search of compromise and concession.’ In this search for compromise, informal dialogue between Council and Parliament has increased; as has their capacity to respond to each other’s propositions and counter-propositions (see European Parliament 1994b, 1995). At a practical level, Council and Parliament have regularised their interactions at the conciliation stage through inter-institutional agreement. Further agreements have also resulted from conciliation—on balance to Parliament’s advantage (see, for example, the modus vivendi on comitology, December 1994, and the joint declaration on the incorporation of financial provisions into legislative acts, February 1995; see also Earnshaw and Judge 1995b). As experience of the process of conciliation accumulates, so recognition increases of the ‘real autonomy’ enjoyed by the conciliation committee in reaching a joint text (European Parliament 1994b:15; European Parliament 1995:3). Under co-decision, conciliation is essentially a bipartite bargaining process which, in turn, places the Commission in a considerably more ambiguous position than in the co-operation or consultation procedures. The ultimate logic of the Commission’s position is that it needs now to act in a more even-handed manner between Parliament and Council in its search for legislative agreement. But Parliament is not content simply to maintain its present position on the legislative ‘path’ it also wants to widen that path in the future by extending co-decision ‘to all areas in which legislation is adopted by the Council (at the very least in all cases where majority voting applies)’ (PE211.919/B: 19). To this end Parliament pressed the 1996 IGC to abolish the co-

From co-operation to co-decision 125 operation procedure and extend co-decision to the range of policy areas covered by that procedure. What the initial experience of co-decision reveals is what we already know: that the European Parliament will seek to maximise, through its own internal procedures and through informal pressure, its own contribution to the legislative process. There is no certainty about the direction in which, or speed with which, the legislative path of the EU will develop. It is certain, however, that the European Parliament is at last firmly on that path. ACKNOWLEDGEMENT This chapter draws upon research conducted for the Directorate General for Research of the European Parliament (Project IV/93/54) and published as a European Parliament Political Series Working Paper W-11, 4–95. It also records data first published in The Journal of European Public Policy, vol. 2, no. 4, December 1995. REFERENCES Agence Europe. Corbett, R. 1989, ‘Testing the new procedures: The European Parliament’s first experiences with its new “Single Act” powers’, Journal of Common Market Studies, 27, 4, pp. 359–372. Corbett, R. 1994, ‘Representing the people’, in Duff, A., Pinder, J. and Pryce, R. Maastricht and Beyond: Building the European Union, Routledge, London. Docksey, C. and Williams, K. (1994) ‘The Commission and the execution of community policy’ in Edwards, G. and Spence, D. The European Commission, Longman, London. Earnshaw, D. and Judge, D. (1993) ‘The European Parliament and the sweeteners directive’, Journal of Common Market Studies, 31, 1, pp. 103–116. Earnshaw, D. and Judge, D. (1995a) Prelude to Co decision: A Qualitative Assessment of the Cooperation Procedure in the 1989–94 European Parliament, Directorate General for Research, Project IV/93/54, published as The Cooperation Procedure, Directorate General for Research, Working Paper Political Series W-11, European Parliament, Luxembourg. Earnshaw, D. and Judge, D. (1995b) ‘Early days: the European Parliament, codecision and the European Union Legislative Process Post-Maastricht’, Journal of European Public Policy, 2, 4, pp. 624–649. European Commission (1993) Mise en Oeuvre du Traite Sur l’Union Euroepéenne—Relations Avec le Parlement, SEC (93) 1768/2, European Commission, Brusssels. European Commission (1994) Manuel des Procédures Opérationnelles, Commission of the European Communities: Brussels. European Parliament EN/DV/253/253692, (1994) The European Parliament and the Parliaments of the Member States: Parliamentary Scrutiny and Arrangements for Cooperation, Division for Relations with Parliaments of the Member States, Directorate-General for Committees and Delegations, European Parliament, Luxembourg. European Parliament Rules of Procedure (1987) Rules of Procedure, (4th edn), European Parliament: Luxembourg. European Parliament Rules of Procedure (1994) Rules of Procedure, (9th edn), European Parliament: Luxembourg. European Parliament (1994a) Les Avis Legislatifs du Parlement Europeen et Leur Impact, Procedures de Cooperation, Direction Generate des Etudes, European Parliament, Luxembourg. European Parliament (1994b) Report on the First Application of the Codecision Procedure, Conciliation Secretariat, European Parliament, Brussels. European Parliament (1994c) The European Parliament and Codecision: The Research Framework Programme, Energy and Research Series, W-11, Directorate General for Research, European Parliament, Luxembourg.

126 David Earnshaw and David Judge European Parliament (1994d) Results of the Meeting of the Conciliation Committee on 21 March 1994, European Parliament, Luxembourg. European Parliament (1995) Rapport D’Activites du 2ieme Semestre de 1994, Conciliation Secretariat, 14 February, European Parliament, Brussels. Fitzmaurice, J. (1988) ‘An analysis of the European Community’s co-operation procedure’, Journal of Common Market Studies, 26, 4, pp. 389–400. Hall, R.L. (1992) ‘Measuring legislative influence’, Legislative Studies Quarterly, 17, 2, pp. 205–231. Jacobs, F., Corbett, R. and Shackleton, M. (1992) The European Parliament (2nd edn), Longman, London. Judge, D. (1986) ‘The British Government, European Union and EC institutional reform’, Political Quarterly, 60, 4, pp. 400–412. Judge, D. and Earnshaw, D. (1994) ‘Weak European Parliament influence? A study of the environment committee of the European Parliament’ Government and Opposition, 29, 2, pp. 262–271. Judge, D., Earnshaw, D. and Cowan, N. (1994) ‘Ripples or waves: the European Parliament in theEuropean policy process’, Journal of European Public Policy, 1, 1, pp. 27–52. Lodge, J. (1984) ‘European Union and the first elected European Parliament: the Spinelli initiative’, Journal of Common Market Studies, 22, 4, pp. 377–402. Lodge, J. (1986) ‘The Single European Act: towards a new Euro-dynamism’, Journal of Common Market Studies, 24, 3, pp. 203–223. Lodge, J. (1993) ‘EC policy-making: institutional dynamics’, in Lodge, J. (ed.), The European Community and the Challenge of the Future (2nd edn), Pinter, London. Norton, P. (1993) Does Parliament Matter?, Harvester Wheatsheaf, London. Nugent, N. (1994) The Government of the European Union (3rd edn), Macmillan, London. PE 204.176 (1993) Recommendation for a Second Reading on the Common Position on Food Hygiene, Committee on Environment, Public Health and Consumer Protection, European Parliament, Luxembourg. PE 206.718/fin (1993) Recommendation of the Committee on Economic and Monetary Affairs and Industrial Policy on the Common Position on the Application of ONP to Voice Telephony, European Parliament, Luxembourg. PE 211.919/B (1995) Draft Report on the Development of the European Union, Part B: Explanatory Statement, European Parliament, Luxembourg. Reuters News Service. Thomas, S.T. 1992, ‘Assessing MEP influence on British EC policy’, Government and Opposition, 27, 1, pp. 3–26. Wallace, H. (1983) ‘Negotiation, conflict, and compromise: the elusive pursuit of common policies’, in Wallace, H., Wallace, W. and Webb, C. Policy-Making in the European Community, Wiley, Chichester. Westlake, M. (1994) A Modern Guide to the European Parliament, Pinter, London.

7 National sovereignty vs integration? The Council of Ministers Geoffrey Edwards

The Council of Ministers (the Council of the Union since November 1993) is at the heart of decision-making in the EU. From the beginning, the decision-making formula was that the Commission proposed and the Council disposed. While that may have become more complicated with moves towards co-decision with the European Parliament, the Council clearly remains the forum for interstate bargaining and the representation of national interests (Moravcsik: 1993). It is often held therefore to epitomise an integration process that leaves the political order in Europe essentially one of states (Hoffmann: 1991). But although academic realists and intergovernmentalists (with whatever prefix or suffix) continue to set store by the Council in upholding the concept of the nation state, others, whether developing further some of the ideas of the neo-functionalists, or utilising other ‘new’ institutionalist concepts have laid stress on the changed framework within which member governments interact and negotiate (Wessels 1991; Bulmer 1996; Lewis 1995). As Wessels put it: ‘the Council is not an “interstate body”…but a body at the supranational level’ (Wessels 1991:137). The distinction is critical. Through constant interaction at a myriad of levels, from heads of state and of government in the European Council to the most highly technical of Council working groups, member governments are a part of a complex network of institutions and procedures that makes up EU decision-making. That interaction, indeed, the institutional network itself, inevitably plays a part in determining government strategies and in influencing the goals and objectives of governments both at the national as well as the European levels. From the beginning of the European Coal and Steel Community (ECSC), neo-functionalists raised questions about adopting any simplistic view of either integration or the Council. In 1958, for example, Ernst Haas posed the question of why it was that the Council of the ECSC was different from other organisations in Europe such as the Organisation for European Economic Cooperation (OEEC later OECD), and why such a clearly intergovernmental body so continuously produced decisions which endorsed progress towards economic integration (Haas: 1958). Part of the answer he saw in the concept of ‘engagement’, by which he meant: if parties to a conference enjoy a specific and well-articulated sense of participation, if they identify themselves completely with the procedures and codes within which their decisions are made, they consider themselves completely ‘engaged’ by the results even if they do not fully concur with them. (Haas 1958:522)

It was a conclusion regarded as increasingly misplaced during the 1960s with General de Gaulle’s rejection of the norms and procedures of the Communities, and his insistence on the 127

128 Geoffrey Edwards right of veto in what became known as the Luxembourg Compromise of 1966. And yet, even during the worst period of ‘Euro-sclerosis’ in the 1970s, Christoph Sasse could still write of the Community, ‘Its institutions are, for all the inadequacies, something more than mere forums for intergovernmental coordination exercises’ (Sasse 1977:86). As became much clearer in the 1980s, the Council developed into the major forum in which governments took decisions on an ever-growing range of issues of central importance to the economic, social and therefore political well-being of each of them. Neither the concept of subsidiarity nor the stronger emphasis on the role of the state in the public discourse on the Maastricht Treaty has significantly altered that position in the 1990s. With the reforms introduced or codified by the Single European Act (SEA) of 1987 and extended by the Treaty on European Union (TEU) of 1993, especially those relating to qualified majority voting (QMV), Haas’s concept became pertinent once again, although not without challenge. Despite the difficulties and questions to which the ratification of Maastricht gave rise, there are few member governments that consistently question the decision-making process. Indeed, even a self-declared realist like Milward has pointed out (Milward and Dorensen 1993:16), there is an important if ‘elusive’ notion of irreversibility within the Community, expressed particularly in the concept of the acquis communautaire. Milward himself may then have sought to reassert a more conventionally realist position by arguing that it did not follow that ‘all later signatories of the Treaties of Rome valued irreversibility so highly’, but the notion remains important even if elusive. The sense of ‘engagement’, or, as Weiler put it (Weiler 1991:2429), of being ‘locked’ into a forum ‘with a fairly rigorous and binding legal discipline’ has meant, to use Haas’ words again, that there is a ‘cumulative pattern of accommodation in which the participants refrain from unconditionally vetoing proposals and instead seek to attain agreement by means of compromises upgrading common interests’ (Haas: 1958). As Helen Wallace put it somewhat later: All the literature on negotiations, and not only at the international level, stresses the relevance of serial exchanges to the stability and predictability of the process. Over a period cooperative modes can be established and habits of transacting business entrenched. (Wallace 1991:225)

This socializing or Europeanizing effect for decision-makers, whether at the political or official levels, can, of course, be exaggerated but it cannot be easily ignored. Even so, for a process identified long ago by the neo-functionalists, it has been seriously under-researched (though for a wider application of ideas of epistemic communities in international relations, see Haas 1992). But there has been more than simply an entrenchment of habits; there has also been cumulative change. Reform of the institutions (including i.e., procedures and norms) has frequently been on the EC/EU political agenda, for as Tsebelis put it, the knowledge that different institutions can influence outcomes means that governments build changes in institutional design into their policy preferences (Tsebelis 1990:98). Since such proposals have more often sought to deepen and consolidate than to reverse the existing policy process, including, arguably, the institutionalisation of summitry in the form of European Councils, the sense of irreversibility has been reinforced. Opposition to deepening, hitherto at least, has meant remaining with whatever the status quo was the last time reforms had been agreed rather than reverting to a more traditional international negotiating process. Whether this irreversibility can be maintained is, of course, one of the major

National sovereignty vs integration 129 issues posed by the prospect of further enlargement to include the countries of central and eastern Europe (Redmond and Rosenthal 1996). Whatever the future, the result so far has been an ambiguity in defining the nature of the Council. It is (especially if one includes the European Council in addition to the Council of the Union) both the ultimate arbiter of policy and an integral part of a supranational decision-making process. But, rather than pointing to the ‘rescue’ of the nation state in its traditional form (Milward: 1992), this suggests the adaptation of the state (and the modification of the traditional principles on which it has been based) towards participation in a political system that bears strong comparison with co-operative federalist systems such as that in Germany, where responsibilities over a wide range of issues are shared. FORMAL STRUCTURES The formal Council structure derives in some respects from a late Dutch contribution to the negotiations on the Coal and Steel Community, the early proposals suggesting only a supranational High Authority together with an Assembly. The looser, framework Treaty of Rome built on ECSC practice and extended the Council’s role and function. The Treaty designated one Council though it rapidly manifested itself in many formations, of foreign ministers in the General Affairs Council, economic and finance ministers in ECOFIN, alphabetically from agricultural ministers to trade ministers. Depending on the legislative programme of the Commission and the Council Presidency (see Treaty: 24), the Council meets for over ninety times a year (Rometsch and Wessels 1994:216). At official level, preparing for the Council is the Committee of Permanent Representatives, made up of ambassadors to the EC/EU (Coreper II) and their deputies (Coreper I). Below Coreper are the numerous working groups of officials, somewhere between 180 and 200 meeting during each Presidency (ibid.: 213). The formal procedure was and remains that the Commission draws up its proposals and sends them on to the Council and to the European Parliament. The Council via Coreper then sends the proposals to be dissected by the working groups made up of national officials, usually sent from national capitals, whose primary focus, rather naturally, is on how they fall within national sectoral priorities. Determining how they fit within wider national agendas and how best they can be dealt with in strategic and tactical terms at the European level is usually the function of national administrations together with the permanent representations in Brussels. Practice inevitably varies considerably among the Member states (for examples, see George 1992; Lequesne 1993 and Wright in this volume). As we shall see, Coreper plays a key role in despatching dossiers up and down this hierarchical structure in the interests of agreed outcomes. However much a compromise, Maastricht reinforced both the supranational dimension of the Council and the role of Coreper. The agreement to move towards a unitary decisionmaking body was partially offset by an acknowledgement that its decisions should be reached through different procedures, not least in terms of unanimity and qualified majority voting (QMV). Yet the Council became the body responsible for decisions not only within the Community framework, but also the Common Foreign and Security Policy (CFSP, also termed the ‘second pillar’, given the use of the temple metaphor especially by the ‘minimalists’ in the negotiations of the TEU, in contrast to the more maximalist, organic concept of a tree with branches) and the Justice and Home Affairs (JHA, pillar three)

130 Geoffrey Edwards frameworks. A change of title did not in itself, of course, mark a watershed. The decision to allow Coreper to undertake the final preparatory role for the Council, for example, rather the Political Committee which had serviced CFSP’s predecessor, European Political Cooperation, or the so-called K.4 Committee which fulfilled the same role for JHA, was suggestive rather than guaranteed. There have also been few serious efforts by Member governments to allow for the convergence of procedures, especially in relation to QMV, presaged by Maastricht (European Commission 1995). The issue of voting Different procedures, of course, have impact on how goals are structured and pursued. Where the original treaties required unanimity, each national government was able to regard itself as the final determinant of the parameters of any compromise—or, of course, of none—and usually couched its position in terms of the national interest. Similarly, even with those articles providing for majority voting, the possibility of ultimately relying on the Luxembourg Compromise allowed member governments to prevent agreement by claiming that vital national interests were at stake. Sasse went further to suggest that the Luxembourg Compromise created conditions in which the Council avoided taking any major decisions not simply because vital national interests were held to be involved but because unanimity had established itself almost as the general rule. Unanimity became, as it were, the priority of all working groups, so that the Commission’s proposals were for ever being amended and its right of initiative continuously watered down (Sasse 1977:88). Moreover, it was left to each member government to determine what was a vital interest and rarely were claims rejected by other governments, however wayward they might have considered the position being taken. One or two member governments, including that of the UK—particularly under Mrs Thatcher—went still further and let it be known that they would support any other government if it were to find itself isolated.1 The continued existence of the Luxembourg Compromise since the signing of the SEA has been somewhat problematic. Teasdale (1993) somewhat optimistically, perhaps, considered that it had fallen into disuse as part of the move towards further integration since the Genscher-Colombo initiative of 1981. 2 Certainly his analysis was supported by the European Court of Justice, which, in 1986, held that ‘the rules regarding the manner in which the Community institutions arrive at their decisions are laid down in the Treaty and are not at the disposal of the Member States or of the institutions themselves’ (Teasdale: 579). Others, not least in the British government, have believed the Compromise ‘alive and well’ and have pointed to particular instances of its use since the SEA, such as the Greek government’s use of it in the summer of 1988. And even if not used, it has, according to the British Foreign Secretary, ‘hovered over a discussion’ (Foreign Affairs Committee 1990:89). The Compromise has remained important for two not always identical groups: for traditionalists, ‘realists’, or what have become known in the UK as Euro-sceptics, it is politically important in that it upholds the primacy of the state; for others, it has been significant in providing some element of democratic accountability in a Community in which the European Parliament has limited and still often only advisory and supervisory powers. In principle, if not always in practice when it came to the minutiae of legislative detail, national governments were accountable to national parliaments. The extension of QMV in the Single European Act, however, necessarily modified the principle of accountability insofar as a government could be outvoted whatever its national

National sovereignty vs integration 131 parliament’s position. This gave rise, especially in Germany, Denmark and elsewhere, to additional concern about the so-called ‘democratic deficit’ in the Community. To some extent the argument was based on a false premise in that much of the subject matter of the Council would have been dealt with under executive action or delegated legislation in any case and few, if any, national parliaments had sought to re-establish controls already lost (the Danish Folketing generally being the foremost exception). But the SEA and then Maastricht galvanised some parliaments into attempting at least to monitor executive actions more seriously, reinforcing pressures (made particularly clear at the popular level) on Member governments for greater transparency and the provision of greater and more timely information. The development of the co-operation procedures under the SEA and their extension under Maastricht, together with greater co-decision, not only modified the balance between Council and Member governments on the one hand, and the European Parliament and national parliaments on the other (see Earnshaw and Judge in this volume), but had an impact within the Council itself. It gave rise, for example, to the potential of member government/European Parliament coalitions in the interests of extra leverage within the Council on the part of the outvoted minority (Fitzmaurice 1988). The demands of conciliation, in which the roles of the Council Presidency and the Commission have often been vital as honest brokers, create the opportunity for governments to reopen negotiations within the Council on the common position it had reached earlier—perhaps in the interests of meeting some at least of the amendments put forward by the European Parliament. In Corbett’s words, ‘the majority in the Council must either “buy off” Parliament or “buy off” its own minority’ (Corbett 1989:363). On the other hand, to follow Wessels (1991:142–145), it would be misleading to accept the results of the quantitative record of European Parliament amendments accepted by the Council as indicative of radical change. The European Parliament’s impact on other decisions, including those that fall within what might be termed ‘high politics’ has remained limited. While the Maastricht Treaty extended the European Parliament’s influence with the Council on an increased range of issues, it fell short of allowing it anything but loose advisory powers on issues falling within both the second and third pillars. In the Council itself, the practice of voting had grown even before the SEA came into force, though as described by Wessels (1994:147) it had not necessarily emerged in any formal way, the Presidency taking silence for acceptance at the conclusion of the discussion. Gradually, however, in response to demands for greater openness the number of formal votes has increased and the results, i.e, on votes where the Council deems itself to be acting as a legislature and where it has not decided otherwise,3 are now regularly published in the form of press releases. But even if the Luxembourg Compromise may still ‘hover’ over some discussions, it has been clearly recognised—by the British government along with the others—that what has become necessary in the negotiating process is finding the required coalition of governments with which to push an issue forward, or, of course, a coalition large enough to block agreement. Mrs Thatcher described fairly candidly the predicament in which she found herself when discussing the need both to prevent being driven ‘helter-skelter’ towards federalism and to re-establish free trade as the goal of the Community in place of protectionism. As she put it: To do this I would have to seek alliances with other governments, accept compromises and use language which I did not find attractive. I had to assert persuasively Britain’s European

132 Geoffrey Edwards credentials while being prepared to stand out against the majority on issues of real significance to Britain. (Thatcher 1993:548)

Others may have found it less distasteful but at times equally burdensome. As suggested above, the British, at least before Maastricht, were confident that there were enough member governments who accepted the principle of the Luxembourg Compromise— enough at least to form a blocking minority (see Messrs Hurd and Maude in evidence to the Foreign Affairs Committee; 1990)—which thereby, of course, negated the need actually to use a veto. During the Maastricht negotiations the British remained sanguine about the impact of opening pillars two and three to the possibility of majority voting. Such provisions were, after all, allowed only under strictly circumscribed conditions: under J3 of the TEU a joint CFSP action can be taken by majority vote but only on the basis that the European Council has decided unanimously to allow it; under the so-called passerelle of K.9 of the JHA, the Council had to agree unanimously that Article 100c on visas could be taken within the Community framework with, after 1 January 1996, majority voting. Nonetheless, Maastricht did extend the areas subject to QMV within Pillar one. This gave rise in some quarters (even in the UK) to a realisation that a new approach might need to be taken; the DTI, for example, suggested that: ‘Ministers and officials should… have the confidence to be open about the difficulties they sometimes face in Brussels, and should be prepared to make use of business contacts and networks in reinforcing the UK negotiating position’ (quoted in Mazey and Richardson 1996). But the British government, in common with other governments, had its attention very much more focused on the domestic political—especially party—arena. This points up the significance of the interaction of different arenas at different levels, though whether that has led to sub-optimal outcomes in any or all of them would be a moot point (but see Tsebelis 1990; or Putnam 1988). The prospect of the further enlargement of the EU to include four small EFT An countries created both a threat, of undermining the belief that in all circumstances a blocking minority could easily be achieved, and an opportunity. The British sought to retain a blocking vote of twenty-three, as against the proposal to raise the figure to twenty-six out of a new total of seventy-four votes (in the event only three EFTAns acceded, the Norwegians voting against accession). In doing so they were initially supported by the Spanish and perhaps the French, though they were isolated by the spring of 1994. However, rather than allow the British to bring the enlargement process to a halt, a compromise was reached under the Greek Presidency, the so-called Ioannina Compromise. In words redolent of Luxembourg, heads of state and of government agreed that if there were between twentythree and twenty-six votes opposing adoption by QMV, ‘the Council will do all in its power to reach, within a reasonable time and without prejudicing time limits laid down in the Treaties and by secondary law…a satisfactory solution that could be adopted by at least 68 votes’ (Agence Europe 14 April 1994). They also agreed that the Compromise should be reviewed at the 1996 Intergovernmental Conference. Despite this concern for formal voting procedures, the emphasis within the Council has traditionally been on finding the acceptable compromise, with the Commission and the Presidency of the Council, supported by the Council Secretariat, charged with finding it. During the 1970s, that search may have meant, as Sasse suggested above, that the Commission’s proposals were continuously revised down to the lowest common

National sovereignty vs integration 133 denominator or were even lost completely in a working group that gradually met more and more sporadically. But while, of course, the legislative output of the 1970s compared unfavourably with that of the 1980s, especially with the dash to complete the internal market by 1992, the period was not devoid of all decisions. In fact, often under the auspices of strategic guidelines laid down by heads of state and of government (especially the Paris summits of 1972 and 1974) it saw the beginnings of Community policies in several new fields which were later to be codified in the SEA, such as environmental policy, research and development and so on. The gradual realisation, especially by the end of the decade that—for whatever reason, but perhaps most importantly the need better to compete with America and Japan—common action was more desirable and more effective than individual inaction was one factor. So too, was the growing success of common decision-making which not only entrenched the habit of agreement, but also built up a momentum that, while far from irresistible, was nonetheless of the utmost influence in paving the way for the relaunch of the 1980s (for different perspectives on this see inter alia Keohane and Hoffmann 1991; Sbragia 1992; Story 1993). What was of particular significance was that the momentum created was not always simply on the basis of the aggregation of national interests. Gradually (and sometimes, given the night-long sessions of the Council, clearly only too gradually), as Haas had predicted, the consensus began to form around more than the least co-operative attitude expressed (Haas 1958:523). It may not necessarily have formed around the Commission’s proposal as originally conceived, though it obviously did on many occasions, for as one former British Permanent Representative in Brussels put it: To see Davignon [member of the Commission between 1977 and 1985] persuading, bullying, cajoling, wheeling and dealing in the Council and emerging with agreed conclusions on the line he wanted all along was a pure delight and a living denial of the thesis that the Commission is powerless or purely technocratic. (Butler 1986:18)

But, in going as far as possible to offer something to each member state, the compromise eventually arrived at, may, at the same time, also enhance interests held in common. Insofar as the outcome is usually legislation, so the member states become ‘locked’ into a new legislative process—now one increasingly involving the European Parliament through codecision procedures—and into a new legal order. Mrs Thatcher’s helter-skelter would appear still to be in running order, despite the scepticism aroused by Maastricht. Moreover, Nuttall has pointed to a similar occurrence even in the intergovernmental forum of European Political Cooperation (EPC), the forerunner of the CFSP. Even here the consensus tended to form around the median line between the two extremes. Nuttall went on to suggest that: This is not surprising, given the club atmosphere and the pre-disposition of diplomats to regard a failure to agree as the worst of outcomes’ (Nuttall 1992:314). As the bulk of the output of EPC was declaratory, and, indeed, has remained so under the CFSP, this co-ordination of diplomatic activity was not often particularly difficult (though see Pijpers et al. 1988). It was, of course, when such diplomacy proved inadequate to meet the demands of crises, whether in the Gulf or in the former Yugoslavia, that the limitations of policy convergence became clear (see Hill 1996; de Schoutheete et al. 1996). In more normal circumstances, however, the commitment of diplomats and, indeed, of foreign ministers, to common diplomatic activity has been clear and the growing

134 Geoffrey Edwards inseparableness of the CFSP and EC within the EU, and their increasing interaction despite their different procedures, had important consequences in the additional commitments of Maastricht and the institutional changes consequent on it (Edwards 1995:542–548). Moreover, even the failures, including the Gulf and, perhaps even the former Yugoslavia, have served to extend and deepen the investment of governments and others in the Europeanising process, both through Maastricht and WEU and through a slow multilaterialisation of bilateral defence arrangements (van Ham 1996). The sheer intensity and density of European interactions as shown in the number of meetings, as well as the range of discussions, have clearly played a vital role in entrenching the integration process. If the number of meetings at ministerial level in only a Community framework is now over ninety a year, it means in effect a Council meeting almost every other working day. The scale of the increase can be seen in the fact that in 1958 there were only some twenty-three sessions of the Council in 1958; in 1992 there were approximately ninetyfive.4 This latter figure may have been somewhat swollen by the Council seeking to meet the 1992 deadline for the completion of the Internal Market, but there have not been particularly serious ebbs and flows in the numbers, the general trend has been upwards. What has been particularly consistent over the past two decades has been the number of meetings of foreign and agriculture Ministers who have kept up a steady rhythm of at least one a month, and economics and finance ministers who have managed only slightly less. The frequency of such meetings inevitably contributes to a greater understanding of each other’s positions even if it does not necessarily lead to agreement. In addition, nearly all Councils meet informally once during each Presidency. Discussions (i.e., rather than negotiations) continue amid the sometimes considerable luxury if not comfort of schloss, chateau or country house with recourse to many fewer officials than those who usually crowd into the new Council building in Brussels. That may not mean that each minister is able or willing to slough off his or her national, party or other identities, but the informality of the exchanges is clearly prized. Formal decisions may not be made, but deals are often struck during such weekends or the groundwork laid for them. Such meetings contribute a further element in the general socialisation process, especially when they are added to the innumerable bilateral meetings undertaken by ministers. Some Councils may be more ‘clubable’ than others depending inevitably on personalities, national positions and ideological stances. The longevity of some ministers (especially among foreign ministers) can also be a positive factor. Co-ordination and efficiency The very scale of ministerial meetings creates problems of co-ordination and consistency. At the national level, regular meetings of the functional Councils may exacerbate problems of cohesion within the member governments. There is clearly a premium for those with strong centralised coordination machineries, such as those of France and the UK, which limit such centrifugal pressures (see Wright in this volume). At the Council level, though, the problem of fragmented decision-making was one that received growing attention during the 1970s, stimulated especially by the 1972 and 1974 Summits in Paris which had proposed a wide range of new policy areas for the newly-enlarged Community of Nine. The initial idea was that Foreign Ministers in the General Affairs Council would exercise an overall ‘control’ (the so-called ‘La Marlia procedure’; Edwards and Wallace 1977:27–28). It soon proved not to be feasible—though it is interesting to note that

National sovereignty vs integration 135 the Reflection Group set up to prepare for the Intergovernmental Conference of 1996 has suggested a reversion to a more prominent co-ordinating role for the General Affairs Council (Reflection Group 1995). But finance ministers in the past rarely proved susceptible to management by foreign ministers and they themselves often proved unable to curb the spending habits of some of their colleagues, most notably agricultural ministers; it was not merely that the Common Agricultural Policy was the most comprehensive of the EC’s policies, though that frequently reinforced the position of individual national ministers. At the national level, they were often able, especially in coalition governments, to insulate themselves from pressures elsewhere in government despite (or sometimes because of) the declining role played by agriculture in the economy. The slow pace of reform throughout the 1970s and 1980s—and into the 1990s—gives testament to the continued strength of the agricultural lobby and their ministers—the French hostility to the agreement negotiated by the Commission within the framework of the GATT Uruguay Round in 1993 is an obvious example. Ultimately, only heads of government (and/or of state) have usually been in a position to exercise sufficient influence over more recalcitrant Ministers, a factor which contributed significantly to the support received by Giscard d’Estaing in his move to institutionalise summitry (though outside the Treaty framework) in the form of the European Council in 1974 (see below). In December 1978, the European Council, itself, decided to establish a Committee of Three (known thereafter as the Three Wise Men) to look at the problem of the growing fragmentation in decision-making. The Committee’s mandate was to report on institutional arrangements to bring about ‘the proper operation of the Communities…and for progress towards European Union’ (Committee of Three 1979). While the Three Wise Men reported that institutional factors were very much of secondary importance to economic ones, they suggested a number of reforms that were taken up over the succeeding decade. Their conclusion was that there was both a vertical dimension to management which involved political factors and national sensitivities and a horizontal one created by the sheer amount of business to transact in different fora. In relation to the Council structure they called for a ‘clearer definition, and the consistently more efficient execution, of responsibilities for the management of business’, and suggested that political priorities needed to be established at the highest level, with improved co-ordination at both the Community and national levels. They also made a number of practical suggestions relating to the Committee of Permanent Representatives and the Presidency of the Council, and proposed more majority decisions as well as the devolution of decisions to lower levels, including more delegation of management tasks to the Commission (ibid.: 92). The Committee of Permanent Representatives (Coreper) The role of Coreper is vital—some 90 per cent of decisions are now taken at the level of Coreper or below. Coreper, while initially allowed for under the Treaty of Rome, was first referred to in the Merger Treaty of 1965, which brought the Coal and Steel, Economic, and Atomic Energy Communities together. Then it was held responsible for preparing the work of the Council and carrying out tasks assigned to it. It was initially criticised as both undermining the role of the Commission in the interests of the member states, and undermining the role of ministers in the Council in the interests of the further technocratisation of the Community (Spinelli 1966; Noël and Etienne 1971). However, it gradually became accepted as an essential element in Community decision making. By 1977, Sasse could write:

136 Geoffrey Edwards Wide areas of the acquis owe their very existence to the political commitment, the extra-ordinarily high technical and specialist efficiency and the sense of responsibility of most of the committee’s members…the day to day life of the Community would be unthinkable without …[its] presence. (Sasse 1977:101)

Coreper sits at the point where the horizontal and vertical dimensions of co-ordination meet. It is responsible for judging at what point a dossier needs further consideration by national experts in the working groups or the point at which a political decision is required by ministers. The Permanent Representatives also bear responsibility (whether as Coreper II, the Deputies, or I, the Ambassadors) for co-ordinating across the range of Community activities and this dimension has continuously grown. It has been limited only by the role of the Special Committee for Agriculture (SCA) and the Monetary Committee with their special concerns. The 113 Committee (after Article 113 of the Treaty of Rome dealing with external trade matters), which began as an advisory committee of national officials, has also gradually become the key forum for discussion and preparation for ministers. 5 Nonetheless, Coreper’s formal responsibilities were significantly extended under Maastricht beyond the Treaty of Rome framework to include final responsibility for submissions to ministers for issues falling under the second and third pillars. EPC/CFSP issues had formerly been dealt with in the Political Committee, made up of Political Directors, senior, usually very senior, Foreign Ministry officials. JHA issues had formerly been dealt with by a whole raft of committees dealing with co-operation against terrorism and drugs (such as TREVI), on immigration and asylum (the Ad-hoc Group on Immigration) and judicial co-operation on civil and criminal matters. These were brought together under the Group of Co-ordinators, later termed the K4 Committee. Coreper’s ‘primacy’ has not been established without considerable tension and continuing suspicion on the part of the Political Committee and the K.4 Committee, and their supporting working groups, many of which were meant to merge but few of which have succeeded in doing so (Edwards 1995:542). The final compromise between Permanent Representatives and Political Directors allowed face to be saved with Coreper retaining the final voice but undertaking not to amend Political Committee recommendations in normal circumstances. Coreper, in other words, may not have quite the fullest responsibility over the unitary decision-making structure suggested under the Maastricht Treaty. The huge proportion of decisions that are reached at Coreper level or below and then taken by the Council of Ministers as ‘A’ points, i.e., without further discussion, is due very largely to the fact that so many of the legislative proposals put forward by the Commission are highly technical and detailed (see Christiansen in this volume). They are the result, usually, of extensive consultation by the Commission, which in view of its small size is heavily dependent on external expertise. From the beginnings of the Coal and Steel Community, through the establishment of the EEC and Euratom, the High Authority/ Commission has consulted experts in national administrations in its pursuit of the ‘European’ interest or at least in the interests of enhancing the feasibility and the acceptability of its proposals (Mazey 1992). Once formulated, the proposals are then subject to the scrutiny of those same national officials, this time charged solely with ensuring that legislation is acceptable back home, rather than anything that might be more ‘objectively’ desirable. There are perhaps some 180–200 working groups, some meeting two or three times during a presidency, others with less impetus behind them and more

National sovereignty vs integration 137 political foot-dragging from some Member States, only once or twice a year. If the working groups can agree, the proposal can be adopted by Coreper to become an ‘A’ point for a subsequent Council. But what is a mere technicality to one Member State may have significant political reverberations for another. It may still be possible for the ambassadors or their deputies in Coreper, or the Special Committee for Agriculture, to reach an agreement, but it can often be a sensitive decision, and Permanent Representatives are therefore placed in a delicate position vis-à-vis their capitals. It is perhaps not surprising that several (including the British Permanent Representative) return home weekly to report and discuss strategies and tactics. There are interesting differences between Member States in their attitudes towards their Permanent Representations. Some Permanent Representations are a microcosm of national administrations with many home departments represented so that their is inbuilt expertise even if they are then in constant touch with capitals by telephone and fax. Other Member States prefer to keep their Permanent Representations relatively small and to send experts from capitals (HayesRenshaw et al. 1989). While the distinction can obviously be exaggerated, the constant interaction of officials from the Permanent Representations with each other and the Commission creates a greater incentive to agree or to strike short- or longer-term package deals in the interests of moving on; experts from national capitals are inevitably the more strongly influenced by general national attitudes towards the EC as well as the national departmental house style of tackling issues. Moreover it was this ‘socialisation’ that contributed so much to Coreper’s acceptance, for as Spinelli pointed out in 1966: The permanent representatives and their functionaries reside a long time in Brussels, have a mandate to contribute to the Community’s success and continuously have to deal with the Community’s prospects laden with integrating intent. Caught up in this environment they easily become interpreters and defenders of the points of view of the Commission before their own governments and administrations. (Spinelli 1966:79)

The situation appears to have changed little; as Dietrich von Kyaw, the German Permanent Representative, was reported as saying only ‘half in jest’ in 1995, his permanent representation was known in Bonn not as the ‘ständiger Vertreter’ but as the ‘ständiger Verräter’ (permanent traitor) (Financial Times 11/12 March 1995; see also Wright in this volume). The European Council The idea of setting strategic goals and priorities ‘at the highest level’ urged by the Three Wise Men in 1978 had, of course, been one of the major reasons for the establishment of the European Council of heads of state and of government. The Council (established in 1974, recognised in the SEA, but given ‘legal’ responsibilities only in the TEU (Article D)), was largely the result of the efforts of President Giscard d’Estaing of France who sought to capitalise on and develop the momentum achieved by the 1969 and 1972 summits. It was also the case that this institutionalisation of summitry well-reflected French institutional structure with political guidelines determined from above. The new European Council was, of course, regarded with deep suspicion by many European federalists who saw it very much as a French plot epitomising the intergovernmental tendency of the French above all. But it was also seen as part of a general trend

138 Geoffrey Edwards towards a re-emphasis on the importance of national governments in an enlarged and, seemingly after the 1974 oil embargo, beleaguered Community. Certainly it was increasingly the case that the European Council determined much of the subsequent work of the Council of Ministers and the agendas set by each six-monthly presidency, especially on the bigger more politically sensitive issues. But this did not always mean that results in the Council of Ministers, or even in the European Council itself, were then achieved rapidly. Final agreement on the nature and size of the European Regional Development Fund, for example, agreed in principle at the 1972 Summit, was achieved only against the considerable reluctance of Helmut Schmidt who became Chancellor in 1974, the German government delaying agreement in the Council of Ministers for a further year. It was not that Heads of State and of Government (HOGS) were without influence—when, that is, they were in agreement—but that oil price shocks and resulting stagflation, as well as the consequences of enlargement, proved rather more powerful; decisions in the EC were not, as the Three Wise Men had been keen to point out, simply a question of institutional innovation. It later also took some five years for the Council to resolve Britain’s budgetary problem. Whatever the disposition of the HOGS to agree and to provide strategic direction, invariably some of them have been more interested in, and in command of, their dossiers than others. Some may well also be rather more pre-occupied with domestic affairs rather than with some esoteric argument of little relevance to winning (or losing) a key vote in a national parliament or a general election. Without underestimating domestic as against European pressures, it remains the case that the position of the European Council at the apex of the Community and the expressly intergovernmental EPC frameworks became increasingly ambiguous. While, for example, remaining formally outside the decision making process, it was increasingly referred to by Councils of Ministers unable to reach a political agreement. The European Council gradually became, in other words, a sort of political court of appeal for the Community, with issues pushed ‘upstairs’ for HOGS to deal with. At the same time, in seeking to set overall guidelines and strategies for the Community, as recommended by the Three Wise Men, the Council resorted less and less to individuals or ‘Wise Men’ but to the Commission. The contrast is between the Tindemans Report on European Union drawn up by the Belgian Prime Minister in 1976 or the Three Wise Men’s Report, and the Cockfield White Paper on the Internal Market, the Delors Report on Economic and Monetary Union in 1988 and the Delors Report on Growth, Employment and Competitiveness in 1993. It was not necessarily the case that the reports of former prime ministers reached very different conclusions from those of Commissioners for, whatever the provenance of individual reports, they all tended to emphasise the need for further integration and the role of the Community qua Commission. Perhaps the greater difference was in the way in which the Reports were dealt with, that of Tindemans gathering more dust than most: the importance of such reports, however, lay in the fact that the European Council was creating the framework for further Community action. Moreover, although the Council was conceived as a body which was to provide the leaders of Western Europe with the opportunity for a ‘cosy fireside chat’ on the big issues of the day free from institutional constraints, it gradually found that it could not exclude, let alone ignore the Commission and its President. It may initially have been galling for Presidents of the Commission to have been called in to such meetings only for specific issues and then to be asked to wait outside, but by the time Roy Jenkins was appointed in 1977, the president’s

National sovereignty vs integration 139 participation had been accepted (even though Giscard d’Estaing continued his opposition to the president’s participation in the Western Economic Summits—still irritating enough for a former British Chancellor of the Exchequer) (Jenkins 1989:20–22). Within the decade, it had become inconceivable for the Commission President to have been excluded from such a meeting. Not only that, but the HOGS had extended their meetings to include a report from the President of the European Parliament. European Councils in other words have become an integral part of the EC/EU institutional structure, albeit recognised as such only in the Maastricht Treaty. The Presidency of the Council The role of the Presidency has grown in significance throughout the existence of the Community (Edwards and Wallace 1977; O’Nuallain and Hoscheit 1985) and remains a key issue in terms of the Union and its enlargement. Initially it was a relatively minor role concerned with organising and chairing meetings, in which it was assisted by the Council Secretariat and undertaken usually in close liaison with the Commission. From 1970 until 1986, when a small Political Secretariat was set up, the presidency was also responsible by itself for organising meetings of EPC. Organising meetings, agendas, minutes, inevitably provided Member States with an opportunity to pursue proposals towards which they were particularly favourable. To the extent that merely six months in office and the existing momentum of business and the agendas set by European Councils allowed, individual presidencies were able to take at least some initiatives. This was further encouraged in the 1980s when it became a requirement for the incoming Presidency to present a programme of action to the European Parliament and, indeed, to be held to account by the European Parliament (at least in terms of the potential for embarrassment) for their achievements during their six months in office. The effort of trying to fulfil its programme reinforced the role the presidency had had perforce to undertake, after the Gaullist challenge to the authority of the Commission in 1965–6, of mediating among the Member States. In some respects the presidency complemented the role of the Commission in searching for compromise. In others, especially when the Commission stood strongly in support of its own proposals—acting in a sense like an nth state—it was more a question of the presidency supplementing or even supplanting the Commission. Bilateral ‘confessionals’, and lunch-time and corridor discussions undertaken by the presidency, supported by the Council Secretariat, became the normal means of seeking to bring about a consensus. Insofar as considerable emphasis is placed on the search for such compromises, which can of course involve its own national position, the Presidency role can be as costly as it is educative of each other’s demands. In addition, as the European Parliament has sought and acquired influence, so the presidency increasingly became a focal point in the European Parliament-Council relationship. The presidency not only presents its programme to the European Parliament, but it has long answered questions on behalf of the Council, taken part in debates, exchanged information in the committees and taken part in colloques. As suggested above, these tasks increased with SEA when the presidency took on heavier duties in reporting and explaining common positions adopted by the Council and in trying to maintain the Council’s unity in the conciliation process. Those duties became even more burdensome after Maastricht with the growth in conciliation procedures and inter-institutional agreements, when the presidency

140 Geoffrey Edwards has a responsibility to negotiate with the Parliament while keeping agreement among the Member governments. Externally, too, the role of the presidency grew in importance. It was not merely the responsibilities laid upon it to represent the Member States within an EPC context, issuing declarations, delivering demarches etc.; in addition, the growing number of ‘mixed’ agreements, straddling the EC/EPC divide meant that the representative role of the Council alongside the Commission became heavier. Under the SEA the presidency, together with the Commission were given the additional responsibility of ensuring consistency between the two frameworks; under the TEU, that responsibility seems to lie only with the presidency. Given the increased burden on the administrative resources of the country holding the presidency and, equally if not more important, to ensure continuity between one Presidency and the next, regarded as particularly urgent in view of the accession and almost immediate presidency of Greece, the Nine introduced the idea of the troika, whereby the Presidency was to be assisted by the immediately preceding and immediately succeeding presidencies (Nuttall; 1992). While EPC as such was formalised in the SEA, the troika was formally recognised only in the TEU. Even though it has sometimes proved cumbersome and not always the most credible means of projecting a coherent foreign policy on behalf of the Union, the troika has been regarded as particularly useful and necessary. The manner in which Member governments have approached and undertaken the office of the Presidency has varied depending on both national administrative practices—especially their administrative co-ordination and policy coherence—and their attitudes towards the EC/ EU. The French, for example, have usually set out to project a particular vision of Europe, while the British have tended to emphasise efficiency in management. The contrasts can be also as much in style as the result of size: that between the Italian and the Luxembourg Presidencies in 1990, for example, was particularly marked, summed up, perhaps a little unfairly as follows: While some British journalists likened the Italian Presidency to a bus trip with the Marx brothers in the driving seat, the Luxembourg Presidency has all the signs of being driven by a sedate couple who only take to the road on Sundays and then infuriate other motorists by respecting the speed limit. (The European 28/30 December 1990)

Smaller states are usually obliged to set out those priorities to which their more limited administrative resources can more easily or beneficially be devoted, even if few would wish to go so far as Mr Santer, when Luxembourg Prime Minister, who declared that smaller states ‘have no ambition; they only want to serve the Community’ (Europe, Washington, January/February 1991). The demands of the office are, therefore, rarely taken lightly by any member government. In terms of preparation, for example, the Irish reportedly prepared for their 1990 presidency for some two years beforehand, a not particularly unusual length of time. They were then, however, somewhat unlucky when a good part of their agenda suddenly became superfluous when a hitherto lacklustre French presidency moved into a higher gear in the last month of their period in office in December 1989 (Laffan and O’Donnell 1990; Edwards and Pearson 1991). Such challenges to prepared positions are not particularly unusual since it is common practice for flurries of activity to occur in the Council in the last month as presidencies seek to make some mark in terms of decisions reached. As the British Foreign Secretary, Douglas Hurd, reported to

National sovereignty vs integration 141 the European Parliament after the Danish ‘No’ vote in June 1992, immediately before the British Presidency, ‘The best laid plans of a Presidency are often, of course, derailed by the unexpected’ (Mr Hurd to the European Parliament, 8 July 1992, quoted in Edwards and Lund 1993). While that may not have explained the particularly negative approach adopted by the British Presidency (Ludlow 1993), such examples point to the continued significance of national approaches to the presidency at the political level and the possible lack of continuity between them, especially if the unexpected cannot easily be absorbed by the administrative machinery in support. Crises, whether within the EU—as in the case of the Danish referendum—or outside—as in the case of the collapse of Yugoslavia in 1991—inevitably test not just national capacities as well as commitment, but also the efficiency of the Council machinery. The Dutch Presidency, for example, not only had to deal with the additional demands of the Intergovernmental Conferences on Economic and on Political Union during their 1991 Presidency, but they also had to cope with the growing conflict in the former Yugoslavia. In addition they also had to deal with the negotiations with the post-‘velvet revolution’ countries of central and eastern Europe on the Europe agreements, an area in which they also had little expertise (the first Dutch White Paper on the area was published in 1988). It added up to an enormous burden, the strains of which were sometimes clear—perhaps most obviously seen in the Dutch ‘non-paper’ of September on Political Union which was rejected by all but the Belgians (see Pijpers 1992; Edwards and Pearson 1992; Laursen and Voonhacker 1993). There are also, though, all the internal domestic crises and disruptions, not least national elections, that strain the effectiveness of the Council and the presidency. The Portuguese in 1992 were particularly beset by such disruptive influences during their six months in office, for as the then Portuguese Foreign Minister put it: ‘A little of everything happened during our Presidency, from elections or referenda in half the member states to the change of four Prime Ministers and six Foreign Ministers, with the attendant procession of consequences.’ (João de Deus Pinheiro, quoted in Edwards and Lund 1993). But in terms of the efficiency and effectiveness of the Council, the vagaries of the presidency are offset by three factors: first the evolution of the troika in EPC/CFSP has been complemented on the EC side by the growing recognition that six months offers only limited opportunities for individual initiatives and that co-ordination among presidencies in setting in train a rolling programme may bring benefits over the longer term. Second, at the level of co-ordinating meetings and agendas, there are the regular weekly meetings of the so-called Antici group, made up of national officials from the Permanent Representations. Before each Coreper meeting the Anticis meet in the Council Secretariat to discuss the agenda, any likely new Commission positions (they are jointly briefed by the Commission Secretary General on Commission decisions) or particular Member State difficulties. They can then report back to their Permanent Representations so that each goes into Coreper having had the opportunity to refer back to capitals, consult and generally be better prepared. The third factor that acts as a constraint on individual presidencies, is the Council Secretariat. Established under the ECSC in 1954 and made up of career officials as well as seconded national officials, the Secretariat provides general infrastructure support for the various levels of the Council (i.e from working group up to the European Council). While working especially to each Presidency, it provides a strong collective memory. To some, it represents more a traditional international secretariat, and has for that reason sometimes appeared as almost a preferred alternative to the Commission. The TEU brought the small Political Secretariat, established by the

142 Geoffrey Edwards SEA to service EPC, within the Council Secretariat itself, albeit still structured on a distinctive basis (with Secretariat officials matched by officials seconded from national foreign ministries). But while the modalities of that incorporation took time to bring about, it was clear that from being ‘a service organization of note-takers and clock-watchers, the Council secretariat is to become the Union’s second executive’ (Buchan 1993). Such a possibility, unsurprisingly, raised fears among the more orthodox that slowly but steadily a body more sensitive to Member governments would determine more of the EU’s agenda. THE CHALLENGE OF THE FUTURE The Council in its myriad of forms is clearly both the centre of intergovernmental bargaining in the Union as well as continuing to be the legislature of the Union. Its ambiguous nature makes it a difficult subject for conventional theorising. That is reinforced by, on the one hand, the continuous, largely centripetal pressures (the principle of subsidiarity notwithstanding) that result from the need to introduce greater efficiency and effectiveness in policy making and a greater accountability to parliamentary institutions. It is a balance that national governments have also increasingly found difficult to maintain. On the other hand, the Council and the Union itself, is faced with the prospect of a process of enlargement that could double the number of existing Member States. Enlargement has traditionally been regarded as creating the danger of dilution, hence past accessions have usually been accompanied by a further integration. Doubling the membership to include the countries of Central and Eastern Europe raises the dilemma in even more acute form (Edwards 1996b). The existing single institutional framework including the Council is clearly already under intense strain. If in the past there has been concern over fragmentation of decision-making, then tension is now institutionalised under the TEU with a pillared structure and a unitary Council employing different procedures based on different principles of decision-making. But even within the Community framework, the situation has become more difficult because of the ad-hoc way in which competencies have been added, the variety of voting procedures adopted, and the consequent complexity and opaqueness of the relationships with the other institutions. To take the example of the environment: aspects of environmental policy were introduced during the 1970s on the basis of Article 235 of the Treaty of Rome which required unanimity; they were then placed more firmly within the Community’s competence in the SEA, though still largely to be decided unanimously, except when Article 100a on the internal market could also be used; Maastricht then introduced QMV under Title XVI of the Treaty, though with derogations relating to provisions of primarily a fiscal nature etc. which remained to be decided on the basis of unanimity. Moreover, some parts of Title XVI are to be determined according to Article 189b, which introduced co-decision with the European Parliament, other parts under Article 189c, the co-operation procedure. In fact there are some twenty or so different decision-making procedures within the Union.6 The need for greater clarity in the interests of efficiency is pressing and, above all, the need for transparency within the Council and in its relations with the other institutions is incontrovertible. These issues are hardly new but they were given particular salience by the difficulties of ratifying Maastricht. The shock of the first Danish referendum which rejected Maastricht and the French ‘petit oui’ in September 1992 were both seen to have been the result, at least in part, of the lack of openness in European decision-making. Possible solutions to the

National sovereignty vs integration 143 problem have inevitably varied. Those who take the position that the Union is and should remain a Union of States have usually laid stress less on any radical restructuring of the Council than on the need for national parliaments to be more involved in controlling Member governments when negotiating in the Council. But the sheer scale of the legislative output and the technocratic nature of the policy process have already raised profound questions. According to the Presidents of the French Senate and the Bundestag, for example, some 80 per cent of economic and social legislation and perhaps 50 per cent of all other legislation passed at the national level now emanates from Brussels, whether via directives or more informal political decisions of the Council which have no legal force as such but which are regarded as binding on governments (House of Commons 1995:xxiv). Much of that legislation has been of such a highly technical nature and so politically uncontentious that it has been passed as ‘A’ points by the Council without discussion. It may also be the case that it would not normally have been considered by a national parliament even if its origin had been the national executive. And yet the suspicion remains that national parliaments have lost control over their executives. This has, of course, been reinforced by the extension of QMV. Whatever the extent of the national legislature’s influence over its executive, the latter can now be outvoted—except perhaps when the strength of feeling is so great on the part of the government in the minority that the possibility of a Luxembourg veto ‘hovering’ in the background, persuades the majority to continue the negotiations until an acceptable compromise is achieved. In that process the role of a national parliament can be significant. But the possibility of perhaps thirty national parliaments becoming directly involved in the legislative process of the Union suggests a prospect of chaos and immobility. Whatever reforms are envisaged at the national level, it is clear that there remains considerable scope, too, for reform in the Council. As yet, the Council has not approached reform with any great enthusiasm. It may, for example, have taken some steps to open up certain debates to the public and allow for better access to information, but legislative secrecy has in an important sense been perpetuated through increased reliance on interinstitutional agreements (IIAs)—indeed, the conciliation procedure itself relies on deals hammered out in the traditional ‘smoke-filled rooms’. Certain Council debates have been opened up to the public via television, the publication of Council voting records has been agreed as well as explanations of votes and some allowance for access to Council archives has been made. However, opening certain Council debates to the public has meant, in effect, televising the initial discussion on the programme of the presidency and similar set pieces, a somewhat limited and stultifying procedure, which led one Belgian MEP to retort: the Council’s hesitancy on the subject of transparency and democracy is overwhelming. You have just invented the televising of formal meetings with set speeches. Frankly I prefer to change channels and watch Maigret. (European Parliament Debates No 3–433/122 14 July 1993)

There is perhaps a real difficulty in determining usefully when the Council is a negotiating forum and when it is a legislature, with genuinely different demands in terms of openness. But there has been a decidedly reluctant and limited position adopted on access to information, not least access to documentation covering the CFSP and Justice and Home Affairs pillars. The Reflection Group in its report for HOGS prior to the 1996 IGC sought to address the problems of efficiency, effectiveness and accountability anew, against the background of further

144 Geoffrey Edwards enlargement (Reflection Group 1995). It is clear that the possible impact of further enlargement of the Union may well be the most profound challenge to the existing institutional structure. After all, it is essentially that which was established for six relatively homogeneous states. The structure has been stretched to encompass a growing number of Member States and a very much more diverse range of interests with relatively few modifications. The result has been a sometimes anguished debate over the future unity of the Union and the continued applicability of the basic principles underlying the Community so far within a (generally) uniform system. As Ludlow put it, the principles hitherto have been: that the weak accept the same goals as the strong and submit themselves to the discipline necessary to obtain them and that the strong acknowledge their solidarity with the weak politically and financially. The reality is what makes both principles feasible, namely the single institutional framework. (Ludlow 1993:9)

These principles may well have been challenged in individual policy areas, most importantly in the monetary sphere, the free movement of people within the Schengen group and in terms of the social protocol to the TEU that allowed Britain an opt out, and in terms of defence and security. And yet, so far, as we have seen, there has been an important sense of being locked into an ongoing process. The possibility of moving towards the formalisation of divergence therefore poses a fundamental challenge. The generally adverse reaction to the CDU-CSU paper in September 1994 (CDU-CSU 1994), which had appeared to support the idea of cores and peripheries, was indicative of a widespread concern. It was less the fact that the Union had already begun to move towards ‘variable geometry’ than that it was difficult to conceive of being able to avoid its entrenchment. The ‘structured dialogue’ agreed by European Councils to bring the countries of central and eastern Europe into a closer relationship prior to membership may familiarise their administrative and economic elites. But, the larger number of smaller states in the Union, for example, may well reinforce the incentive on the part of the larger Member States to establish more than simply a de facto directoire. The members of this may vary depending on the issue, with the UK, for instance, usually included if it is a matter of the CFSP but not necessarily on other issues. But the idea usually involves the steady membership of at least France and Germany, reinforcing the centrality of the Franco-German axis. The relationship has been critical on the central issues of integration and institutional reform even if on other, sub-constitutional issues, more ad-hoc alliances and coalitions with membership determined by a raft of considerations have been more important (Wallace 1985). However, the extension of QMV has forced Member governments, especially the larger ones, always to bear in mind the potential of future Member States, their interests in the next package of decisions, and the nature of any majority—hence the British concern and the Ioannina Compromise. It may be that on important questions that do not demand unanimity but are too important simply to be dealt with by existing procedures, a double majority might be introduced whereby the majority must include the majority of the population of the Union as well as a majority of the Member States. The Reflection Group was unable to agree unanimously on many proposals for reform of the Council, whether in terms of greater openness or the extension of QMV to avoid immobilism, there was usually at least one representative of the HOGS who stood out against the consensus— most frequently the British representative. Enlargement does, however, pose difficult choices about the continued applicability of the concept of a single institutional framework and the

National sovereignty vs integration 145 uniformity of application of the acquis (even if at different speeds)—so difficult perhaps that the 1996 IGC may well prefer to put off any radical decisions for as long as possible. NOTES 1

2

3

4

5 6

It was therefore particularly ironic that one of the rare occasions when a Member government was overruled when invoking the Luxembourg Compromise was Mrs Thatcher’s government in 1982, over agricultural prices. As the UK was at the same time involved in the Falklands conflict, in which the support of the other EC members was more than useful, Mrs Thatcher did not make much of it, at least in public. The Genscher-Colombo initiative launched by respectively, the then German and Italian Foreign Ministers, sought, inter alia, to set European political co-operation on a legal footing, to limit the use of unanimity and to expedite the completion of the internal market. Elements of it were superseded by other agreements and the initiative itself ended up merely as the Solemn Declaration on European Union (see Bonvicini: 1987). The Council acts as a legislator according to its Rules of Procedure when it adopts rules which are legally binding on the basis of the relevant provisions of the Treaties, especially Article 43, 189b and c, though with certain exceptions. Votes are not made public on other non-binding acts such as conclusions or recommendations or if the votes are indicative or on the adoption of preparatory acts. Approximately, because the numbers supplied from different sources rarely coincide, the Commission estimating eighty-five sessions in 1990, for example, while the Council reckoned it had met ninety-one times. See Edwards and Pearson (1991, 1992) and the chapter on the Council by Romesch and Wessels in Edwards and Spence (1994). The 113 Committee’s central position in trade matters was formally recognised in the 1994 Trade Barriers Regulation, which allows industries to demand investigation into trade barriers in third countries—I am grateful to Michael Johnson, formerly of the DTI for this point. Typically the Council and the Commission disagreed over the numbers of different procedures in operation, the Council listing twenty-three, the Commission, twenty-nine in their respective reports to the Reflection Group.

REFERENCES Bonvicini, Gianni (1987) ‘The Genscher Colombo Plan and “The Solemn Declaration on European Union” (1981–83)’ in Pryce, Roy (ed.) The Dynamics of European Union London: Croom Helm. Buchan, David (1993) Europe: The Strange Superpower Aldershot: Dartmouth. Bulmer, Simon (1996) ‘The European Council and the Council of the European Union: The Gatekeepers of a European Federal Order?’ Publius: forthcoming. Bulmer, Simon and Wessels, Wolfgang (1987) The European Council London: Macmillan. CDU-CSU Fraktion of the German Bundestag (1994) Reflections on European Policy Bonn 1 September 1994. Committee of Three (1979) Report on European Institutions Brussels. Corbett, Richard (1989) ‘Testing the New Procedures: the European Parliament’s first experiences with its new Single Act powers’ Journal of Common Market Studies Vol. 27, no. 4. Edwards, Geoffrey and Wallace, Helen (1977) The Council of Ministers of the European Community and the President in Office London: Federal Trust. Edwards, Geoffrey and Pearson, Brendon (1991) ‘Der Ministerrat’ in Weidenfeld, Werner and Wessels, Wolfgang (eds) Jahrbuch der Europäischen Integration 1989–90 Bonn: IEP/Europa Union Verlag. Edwards, Geoffrey and Pearson, Brendon (1992a) ‘Der Ministerrat’ in Weidenfeld, Werner and Wessels, Wolfgang (eds) Jahrbuch der Europäischen Integration 1989–90 Bonn: IEP/Europa Union Verlag. Edwards, Geoffrey (1992b) ‘Central Government’ in George, Stephen, Britain and the European Community; the Politics of Semi-Detachment Oxford: Clarendon Press.

146 Geoffrey Edwards Edwards, Geoffrey and Lund, Camilla (1993) ‘Der Ministerrat’ in Weidenfeld, Werner and Wessels, Wolfgang (eds) Jahrbuch der Europäischen Integration 1989–90 Bonn: IEP/Europa Union Verlag. Edwards, Geoffrey and Spence, David (eds) (1994) The European Commission London: Longman. Edwards Geoffrey and Pijpers, Alfred (eds) (1996) The European Union: 1996 and Beyond London: Cassell/ Pinter 1996 forthcoming. Edwards, Geoffrey (1995) ‘The Common Foreign and Security Policy’ in Barav, A. and Wyatt, D.A. (eds) Yearbook of European Law 1994 Oxford: Clarendon Press Edwards, Geoffrey (1996) ‘The Council of Ministers and Enlargement: A Search for Efficiency,Effectiveness and Accountability?’ in Redmond and Rosenthal European Union and Enlargement: Past, Present and Future. European Commission (1995) Report on the Operation of the Treaty on European Union (SEC(95)) Final May 1995. Financial Times. Fitzmaurice, John (1988) ‘An Analysis of the European Community’s Co-operation Procedure’ Journal of Common Market Studies Vol. 26, no. 4. Foreign Affairs Committee, House of Commons (1990) Second report The Operation of the Single European Act Vol. II, Minutes of Evidence. George, Stephen (ed.) (1992) Britain and the European Community Oxford: Oxford University Press. Haas, Ernst (1958) The Uniting of Europe Stanford: Stanford University Press. Haas, Peter M. (1992) ‘Introduction: Epistemic Communities and International Policy Co-ordination’ International Organization 46, 1, pp. 1–36. Hayes-Renshaw, Fiona, Lequesne, Christian, and Mayor Lopez, Pedro (1989) ‘The Permanent Representations of the Member States to the European Communities’ Journal of Common Market Studies Vol. 28, no. 2. Hoffmann, Stanley (1991) ‘Balance, Concert, Anarchy, or None of the Above’ in Treverton G. (ed.) The Shape of the New Europe New York: Council on Foreign Relations. House of Commons Select Committee on European Legislation (1995) The 1996 Intergovernmental Conference: The Agenda. Democracy and Efficiency: the role of national parliaments, Vol. 1. Hill, Christopher and Allen, David (forthcoming) ‘The Changing Context of European Foreign Policy’ in De Schoutheete et al. (eds) The European Union in the World—the Common Foreign and Security Policy in the Maastricht Treaty Boulder, Colorado: Lynne Reinner. Jenkins, Roy (1989) European Diary 1977–1981 London: Collins. Keohane, Robert O. and Hoffman, Stanley (eds) (1991) The New European Community: Decisionmaking and Institutional Change Boulder, Colorado: Westview. Kirchner, Emil (1992) Decision-Making in the European Community Manchester: Manchester University Press. Laffan, Brigid and O’Donnell, Roy (eds) (1990) The European Community Before and After the Irish Presidency Dublin: Irish Association for Contemporary European Studies. Laursen, Finn and Vanhoonacker, Sophie (eds) (1992) The Intergovernmental Conference on Political Union Maastricht: EIPA. Lesquesne, Christian (1993) Paris-Bruxelles: comment se fait la politique européenne de la France Paris: Presses Universitaires de la Fondation Nationale des Science Politiques. Lewis, Jeffrey (1995) ‘The European Union as a “Multiperspectival Polity”‘ paper presented at the Fourth Biennial Conference of the European Community Studies Association, Charleston, May 1995. Ludlow, Peter (1993) ‘The UK Presidency: a View from Brussels’ Journal of Common Market Studies Vol. 31, no. 2. Mazey, Sonia (1992) ‘Conception and Evolution of the High Authority’s Administrative Services (1952– 56): From Supranational Principles to Multinational Practices’ in Volkmar Meyer, Erik (ed.) Yearbook of European Administrative History 4: Early European Community Administration Baden Baden: Nomos. Mazey, Sonia and Richardson, Jeremy (1996) ‘Agenda Setting, Lobbying and the 1996 IGC’ in Edwards, G. and Pijpers, Alfred (eds) The European Union: 1996 and Beyond London: Cassell/Pinter forthcoming. Milward, Alan S. (1992) The European Rescue of the Nation-State London: Routledge. Milward, Alan and Dorensen, Vibeke (1993) ‘Interdependence or integration? A national choice’ in Ruggero, R., Lynch, F., Romero, F. and Dorensen, V. The Frontier of National Sovereignty London: Routledge.

National sovereignty vs integration 147 Moravcik, Andrew (1993) ‘Preferences and Power in the European Community: A Liberal Intergovernmental Approach’ Journal of Common Market Studies 31, 4, 473–524. Noël, Emile and Etienne, Henri (1971) ‘The Permanent Representatives and the “Deepening” of the Communities’ Government and Opposition. Nuttall, Simon (1992) European Political Co-operation Oxford: Clarendon Press. O’Nuallain, Colm and Hoscheit, Marc (eds) (1985) The Presidency of the European Council of Ministers London: EIPA/Croom Helm. Pijpers, Alfred et al. (eds) (1989) European Political Co-operation in the 1990s Dordrecht: Martin Nijhoff. Pijpers, Alfred (ed.) (1992) The European Community at the Crossroads Dordrecht: Martinus Nijhoff. Putnam, Robert (1988) ‘Diplomacy and Domestic Politics” The Logic of Two-Level Games’ International Organisation 42, pp. 427–60. Redmond, John and Rosenthal, Glenda (1996) European Union and Enlargement: Past, Present and Future Boulder, Colorado: Lynne Rienner forthcoming. Reflection Group (1995) Progress Report from the Chairman of the Reflection Group on the 1995 Intergovernmental Conference BN 509/1/95 Rev. 1 (Reflex 10) Madrid 1 September 1995. Rometsch, Dietrich and Wessels, Wolfgang (1994) ‘The Commission and the Council of Ministers’ in Edwards, Geoffrey and Spence, David The European Commission London: Longman. Sasse, Christoph, et al. (1977) Decision-Making in the European Community New York: Praeger. Sbragia, Alberta (ed.) (1992) Euro-politics Washington DC: Brookings. Spinelli, Altiero (1966) The Eurocrats Baltimore; Johns Hopkins University Press. Story, Jonathan (ed.) (1993) The New Europe Oxford: Blackwell. Teasdale, Anthony (1993) ‘The Life and Death of the Luxembourg Compromise’ Journal of Common Market Studies Vol. 31, no. 4. Thatcher, Lady (1993) The Downing Street Years London: HarperCollins. Tindemans, Leo (1976) Report on European Union Bulletin of the European Communities Supplement 1/76 Brussels. Tsebelis, George (1990) Nested Games Berkeley: University of California Press. Wallace, Helen (1985) Europe: The Challenge of Diversity London: RIIA/RKP. Wallace, Helen (1991) ‘Making Multilateral Negotiations Work’ in Wallace, William (ed.) The Dynamics of European Integration London: RIIA/Pinter. Wallace, Helen (1993) ‘European Governance in Turbulent Times’ Journal of Common Market Studies Vol. 31, no. 3. Van Ham, Peter (1996) in Edwards and Pijpers The European Union. Wessels, Wolfgang (1991) ‘The EC Council: The Community’s Decision-making Center’ in Keohane, Robert O, and Hoffmann, Stanley (eds) The New European Community: Decisionmaking and Institutional Change Boulder: Westview.

8 The national co-ordination of European policy-making Negotiating the quagmire Vincent Wright

Co-ordinating EU policy-making confronts national governments with numerous and particularly difficult and distinctive problems. The purpose of this chapter is to first examine the nature of the problems: then the apparatus which has been established at both the national and EU level to deal with co-ordinating; finally the effectiveness of that apparatus. The argument of the chapter may be summarised brutally: that member states are acutely aware of co-ordination problems; that different mechanisms have been established to deal with them; that the effectiveness of those mechanisms differs widely both across the member states and according to the level (EU or national) and issue involved; that effectiveness cannot be divorced from the ambitions of, and the constraints upon, the member states; that policy effectiveness does not necessarily flow from coordination effectiveness, and weaknesses of co-ordination may even be highly functional.

THE QUAGMIRE: EU CO-ORDINATION POLICY Co-ordinating any form of policy-making at national level is already problem-ridden. At EU level those problems become acute. The first problem lies in the very concept of co-ordination. The public policy literature distinguishes between anticipatory, active and reactive, between formal and informal, between vertical and horizontal, between negative and positive and between policy and procedural (ensuring the respect for due process) forms of co-ordination, whilst recognising that the distinctions are singularly blurred in practice, and generally failing to provide a framework which links the various forms. In fact, nation states are involved in an entire repertoire of co-ordinating activities, with the mix varying according to the member state. More importantly, it is not always clear what is being sought by co-ordination. At a minimum, it may imply an attempt to avoid particular mishaps or fiascos, or a wish ‘not to impede, frustrate or negate one another’s activities’ (Metcalfe 1987). At the other end of the spectrum, co-ordination involves overall steering and, as such, is persistent, generalised and purposeful. However, most coordination activities fall between these two extremes. Selznick, in a classic work (Selznick 1957), identifies four functions of institutional leadership, which provide a useful clue about the goals of co-ordination. These functions are: 1 The definition of an institutional mission and role (the ‘creative task of setting goals’). 148

The national co-ordination 149 2 The institutional embodiment of purpose (the capacity ‘to build policy into an organisation’s social structure’). 3 The defence of institutional integrity (‘maintaining values and institutional identity’). 4 The ordering of internal conflict (‘reconciling the struggle between competing interests’). Clearly, the co-ordination objectives of the member states of the Union vary considerably, depending on the mix of ideological ambition, institutional capacity and political constraints—a point to which we will return. The second set of complications relates to the EU policy chain which stretches considerably co-ordination requirements. In the first place, the EU is distinctive amongst international organisations in locking its members into a continuous policy-making process of both an active and reactive nature. The co-ordination chain extends from that within each ministry and interministerial co-ordination (of both a vertical and horizontal nature) at domestic level, to coordinating the domestic-EU interface, and then to co-ordinating within Brussels. Success depends on a country’s capacity to co-ordinate across the extended policy chain (see the case of Britain for the 1986 subsidies to shipbuilding Directive) (Siedentopf and Ziller 1988:198). Second, the various levels of co-ordination may be usefully distinguished for analytical purposes, but, in practice, they intertwine in constant fashion, creating a highly unstable policy environment. The impact of this interaction may be seen in a number of ways. Thus, the administration of Brussels bears the imprint of the structures and functioning of those of several member states, but these latter administrations have been forced into reforming personnel management and into organisational modernisation, experimentation and innovation by membership of the Union (Debbasch 1988; Gomez Fuentes 1986): institutions are created and then sometimes disbanded (the Irish cabinet sub-committee of 1973 to 1977 is an example) or they have their competencies expanded or contracted (the history of the French SGCI, the centralising body responsible for coordinating EU policy, is revealing in this respect); the balance of power may shift (often between the Economics or Finance Ministry and the Foreign Office, with the Ministry or Junior Ministry for European Affairs being squeezed between the two, depending on the prevailing political climate). The ricochet effect between national and EU levels is constant, and means that EU policy-making takes place in an unsettled environment—and one which is further destabilised by internationalisation, technological change, privatisation, liberalisation and new public managements reform programmes (Wright 1994). The second impact of the constant interaction of domestic and EU policy-making may be seen in the need to be sensitive to the co-ordinating requirements at both levels and those requirements may be conflicting. As will be noted later, a first-class integrated national machine—such as that of the British—may suffer from inflexibility and occasional aversion to accommodation and coalition-building which may lead to miscalculations and policy failures in Brussels (Ludlow 1993). A third indication of the intimate and complex relationship between national and EU policy-making is well known: constraints at one level may be transformed into opportunities at the other. National bargaining positions in Brussels may be reinforced, by invoking ‘problems back home’ whilst essential but unpalatable politics (notably in the area of industrial restructuring) are imposed on domestic constituencies by governments which readily finger Brussels as the real culprit. Finally, the impact for co-ordinators of the national-EU interaction may be seen in the changes it has brought about in the leverage of individual actors (powerful regions, courts, central banks, legislatures) and in the reshaping of policy networks linking interests, Brussels and the state (Goetz 1995; Mazey and Richardson 1993; Schmidt 1995).

150 Vincent Wright The third major set of complications springs from the nature of the EU which presents distinctive difficulties for national co-ordinators. In some respects, it might be argued that some of these difficulties are present at national level and are merely accentuated at EU level. Thus managing the problems of fragmentation, sectoralisation, and policy interdependencies is not peculiar to Brussels. However, the extent and nature of these problems in Brussels is of a different order from that prevailing in the member states. The degree of sectoralisation is such that it is often difficult to discern a clear national interest (F.Snyder 1960:60), or the sectoral requirements of national actors may clash with those of their state (Peterson 1991:271; Paterson and Whilson 1987). Similarly, co-ordinators at both national and EU level are confronted with different forms of co-ordination—negative and positive—and also with different policy types. It may be agreed that both national and EU-level co-ordinators have to contend with regulatory, redistributive and distributive policy types, involving different actors, different institutional procedures and different bargaining requirements (Pollack 1994). Both levels also deal with routine as well as emergency situations. Both, finally, are involved in ‘history-making’ as well as low policy making. However, the differences lie in the periodic bursts at EU-level of bargaining over major systemic and constitutional issues—which is not the case in the majority of member states—and, perhaps more important—in the fact that discussions over low politics are sometimes highly emotional and politicised when systemic or constitutional implications are suspected. There are several other distinctive features of the EU regime which singularly complicate the life of national co-ordinators. They may be summarised as follows: 1 The structural ambivalence of EU decision-making. The EU combines elements of an incipient federation, a supranational body, an intergovernmental bargaining arena and an international regime. It is treaty-based yet displays the features of putative constitutionalism. Depending on the pillar, negotiations may be closed and secret, based on non-public bargaining principles rooted in concepts of classical international law between states, or they may be pluralistic and transparent as the result of the development of the Union into an arena of interest articulation and aggregation. Decisions are both international contracts and normal binding legislative Acts. To understand the Union we need the tools of both international relations and comparative politics (Hix, Hurrell and Menon forthcoming). The ambivalence of the Union touches all aspects of its institutions— the lack of separation of powers between the legislature and executive functions which has important legal ramifications; the role of the Commission which oscillates between policy entrepreneurship and leadership (Cram 1993) and passive spectatorship, and which combines a capacity to control the agenda with managerial weakness and inadequate expertise (Sutherland 1993; Hay 1989); the constant interpenetration of national officials, elected officials (at EU, national and local levels) and commission officials, leading to the blurring of identities, loyalties and responsibilities. 2 The changing size of the Union as the result of successive enlargements. This has an immediate and radical impact on the task of co-ordinators. 3 The evolving agenda of the EU. This, for a variety of reasons (intergovernmental bargains, functional spill-over, side payments) has expanded in scope, variety, depth and political saliency. Co-ordination was clearly much easier when the agenda was restricted to

The national co-ordination 151 Customs Union, parts of energy policy, competition policy, agriculture and commercial policy. Matters are further complicated by the fact that some countries have opted out (but not entirely) of some areas, and that the political saliency of a particular issue may differ widely across the member states: witness, for instance, the anger of the British at proposals to increase the minimum meat content in sausage to a level that any selfrespecting Frenchman or Italian would have found unacceptably low; or the ironic fury of the British who have tolerated years of travel with British Rail but who amaze their continental partners by organising mass pickets against the ‘inhuman’ transport of live animals. The constantly changing nature of the EU means not only that more sectors involving more actors have to be co-ordinated, it also deprives national co-ordinators of two powerful weapons of public policy. The first is a reasonably settled ‘assumptive world’—a set of historically-rooted operational codes and assumptions about the conception of ‘good’ or appropriate policy. The second is path-dependency based on policy continuity over a long period of time. Both introduce essential elements of predictability and constraint into national policy-making, thus reducing the requirements of co-ordination (Dror 1975). 4 The lack of control over large areas of agenda setting. Brussels is a highly fragmented universe, characterised by a proliferation of policy advocates and policy entrepreneurs. It is penetrated by lobbies and interests of a territorial as well as sectoral nature whose links with their nation state are being loosened or redefined (if not entirely cut) (Grant in Mazey and Richardson 1993; Peterson 1992; McLaughlin, Jordan and Maloney 1992; Sandholtz and Zysman 1989). The market for policy ideas is wider and more dynamic than in the member states. Managing policy initiatives and innovations is difficult because of the lack of ‘negotiated order’ structured around well-established and reasonably stable policy networks (Mazey and Richardson 1993:22–23). This does not mean, of course, that member states are powerless in agenda setting. Indeed, they are the most active policy entrepreneurs in the EU and are the invariable source or channel of directives. However, nation states at domestic level shape the agenda by establishing the general framing document (by way of a White Paper) for proposed legislation to which other actors react, and this document generally remains intact, with minor amendments. Nevertheless, a Commission proposal, often inspired by a member state, can be mauled out of all recognition (sometimes by other states) as it lumbers its way through the complex processes of consultation. Finally, part of the agenda of the EU is shaped outside the arena of Brussels by member states (notably Germany and France) striking deals in diplomatic negotiations. These deals affect not only history-making decisions, but traditional sectoral policies. For instance, the important Company Accounts Directive of 1978 was carefully prepared by the Germans who assiduously visited other national capitals before placing the proposal on the EU agenda (Siedentopf and Ziller 1988:29). 5 The institutional organisational density, complexity and fluidity of Brussels. Brussels is a decisional maze which encompasses the independent organisation of the Community as well as the intergovernmental bodies which interact through a complex web of ad hoc and permanent committees, sub-committees and working groups. These committees are largely responsible for the mass of micro-level sectoral decisions (which are then formally accepted by the competent authority) and they are interwoven with a set of

152 Vincent Wright overlapping bargaining networks. Brussels is truly an over-crowded policy arena. It is also an arena full of late-comers (the Court of Auditors goes back only to 1975), and where authority relations are sometimes ill-defined (for example, between the institutions of political co-operation and of Coreper and between regulatory bodies such as Eurofed, the European Environment Agency, the Agency for Pharmaceutical Products, and the corresponding Directorates General) and fluid. Power may shift between Council and the Commission, and with the development of the Union, Parliament may become a more significant player (Cassese and della Cananea in Heyen 1992; Lequesne 1993). In the same sector authority may switch between different bodies (Swinbank 1989) or may be transferred to a new body such as an ad-hoc working party or an official task force created by Coreper. The influence of the presidency of the Commission and of certain Directorates General (notably DGIV) has waxed and waned according to the policy climate and the personality of the incumbents. 6 The complexity and fluidity of procedures—particularly since the Single Act and Maastricht. The complexity may be seen in the decision-making procedures of the Commission which sometimes acts collegially, sometimes individually, and, on occasions, through a group of Commissioners. The constant procedural changes include the cooperation procedure which has drawn the Parliament into the early stages of some policy processes, the extension of the use of QMV, and an increase in the number of specific procedures (for economic, monetary and foreign affairs, for justice, and for internal affairs). If one combines the various voting methods of the Council with the different forms of participation by the Parliament it is possible to detect no fewer than twenty-five distinct procedures for making decisions in the EU. Now, the power of institutions clearly varies according to the procedures invoked, and different decision rules generate the need for different co-ordinating mechanisms and styles. They also engender different outcomes: unanimity rules slowed down the adoption of regulatory and distributional policies by the respective sectoral councils, whilst QMV accelerated the pace of acceptance of the harmonising Directives for the open market (Pollack 1994:140–141). In this absence of a stable and generalised system of decision-making, the institution to be targeted by national co-ordinators differs according to the sector and the issue (Ziller 1993:243). To complicate matters further, there are unwritten codes concerning the use of the national veto, or the fact that significant minorities cannot be ignored or overruled. 7 The essential requirement of coalition building. This is much more difficult than at the domestic level. In the unstable policy environment of Brussels, alliance-building is unpredictable and time-consuming. This is not to deny that some coalitions may be emerging (north versus south, the so-called Club Med. countries) as one of the consequences of successive enlargements; free marketeers versus dirigistes and protectionists (on issues such as the liberalisation of civil aviation, energy and telecommunications, or state aids to ailing national enterprises), budget expanders versus budget restrictors (de la Guerivière 1992). Yet the cleavages which shape the coalitions are often cross-cutting, and run within national delegations. Thus, Agriculture Ministers have a tendency to oppose their own national Finance Ministers. Furthermore, patterns of domestic alliance building are not always reproduced in Brussels. For instance, the German Transport Ministry does not share its British counterpart’s sympathy for the

The national co-ordination 153 national road-users lobby. Unstable coalitions are, therefore, inevitable in a world of sectoral segmentation, of log-rolling within and across sectors, of issue-linking, of side payments and of package dealing. The opacity of some coalition building is also a source of difficulty for co-ordinators, since it gives rise to information barriers (Weber and Wiesmeth 1991). These problems are compounded when the deals are struck outside Brussels through traditional diplomatic channels. 8 The weakness or the absence of certain official channels of co-ordination which are present at the national level. At the national level, unofficial channels of co-ordination policy networks, political parties, professional networks, personalised clans—often compensate for weak official networks. This is much less the case in Brussels. Unofficial channels, in the form of nationally-organised networks that link the various institutions of the Union do exist in Brussels. But they are often ill-structured and unreliable. Moreover, also weak in some sectors of EU activity are path-dependency and referential frameworks which reduce the scope of required co-ordination and which provide systemic ballast and predictability. Furthermore, effective political parties and settled sectoral professional networks—powerful agents of co-ordination—are weaker and more divided in Brussels. Indeed, it might be argued that the problem of distinctive and even competing sectoral logics and cultures is exacerbated at EU level (Bellier 1994; Scharpf 1988). 9 The problem of administrative mismatch. This problem lies at three levels. First, a particular item on the EU agenda may be co-ordinated by different national ministries shaped by different needs and cultures. Hence, issues of insurance are generally dealt with by the DTI in Britain but by the Finance Ministry in France (Siedentopf and Ziller 1988:28–29). Second, the structure and the functioning of the administration of Brussels bear all the hallmarks of a multinational mongrel, having absorbed or been directly influenced by the practices of several states. Parts of it inevitably fit badly with the administrative organisation and culture of certain member states (Bodiguel 1995; Dubouis 1975; Rideau 1987; Jamar and Wessels 1985; Cassese and Franchini 1994). Finally, there is the problem of the divorce between, on the one hand, the initiatory, agenda-setting and formalisation stages of Brussels decision-making, and, on the other, the process of practical implementation. The problem takes a particularly acute form in Brussels because the Commission is entirely dependent for implementation on member states which themselves suffer from implementation problems: the policy chain is thus lengthened amongst weak links. 10 The difference in the range and type of skills, styles and resources required to co-ordinate at national and at EU level. Some skills and resources may be similar (legal, technical, administrative and linguistic expertise is an obvious example), but co-ordinating in the quagmire of Brussels may also call for a type of co-ordination which is not only different from that prevalent at national level but may even be in conflict with it. This is a point which is explored at greater length in the following section.

154 Vincent Wright THE INSTRUMENTS OF CO-ORDINATION Domestic co-ordination of EU policy involves more than negotiating with one’s own side to reconcile internal differences, to clarify objectives and priorities and to discuss strategies and tactics (Metcalfe 1987:277). It also requires negotiating with shifting constellations of actors over very different issues at very different levels. And it involves the transmission to the country’s representatives in Brussels of a reasonably coherent version of the negotiated compromises. Four major conclusions emerge from a study of the domestic instruments of European policy co-ordination: 1 Major political and constitutional EU issues are increasingly dealt with by the heads of government aided by the Foreign Minister and the Finance Minister. 2 The formal link between the domestic capital and Brussels is now generally assured by either the country’s Foreign Affairs Ministry or its Finance or Economics Ministry—or by both. 3 Most ministries in all member states have adjusted their internal organisations to the requirements of European policy-making. 4 In spite of some emulation and convergence the nature of domestic co-ordination of European affairs varies widely across the member states. Highly politicised and major constitutional issues at EU level are co-ordinated at core executive level, generally by the head of government in close consultation with the Foreign Minister and the Finance Minister. In France, it has generally been the President who has dictated major policy ambitions. It was President de Gaulle who fathered the Fouchet Plan and the Luxembourg compromise, and who blocked enlargement in 1964 and 1967. It was his successor, Pompidou, who lifted the French veto on enlargement, and it was Giscard d’Estaing who took the French decision on direct elections to the European Parliament, and who powerfully contributed to the creation of the European Council. The Socialist government’s decision to remain in the EMS was taken by François Mitterrand who also played a key role in resolving the problem of the British budgetary contribution. His hand could be seen in most of the major constitutional developments in the EU during the 1980s. During the first period of cohabitation Mitterrand had to share power with Prime Minister Chirac (who installed a diplomatic cell at Matignon), and during his terminal illness at the end of the second period of cohabitation his influence in European affairs was largely symbolic. Successive German Chancellors have also had a major constitutional role in the construction of Europe—from the early influence of Adenauer to the more recent roles of Schmidt and Kohl in the creation of the European Council, the launching and consolidation of the monetary union and in the ‘relaunching of the EC’ in the 1980s. Less glorious, but no less significant has been the role of British Prime Ministers who have frequently imposed their wishes on a hapless and unhappy Foreign Office. Equally, there is little doubt that Gonzales and Papandreou defined the main lines of their country’s responses to major highpolitics decisions in the EU. It should be noted, however, that the Prime Minister is not always free to pursue his or her own agenda. This is most notably the case in The Netherlands where all ministers enjoy equal autonomy and status, and in Belgium where the Prime Minister has frequently to contend with the

The national co-ordination 155 conflicting and competing demands of the representatives of Flanders and Wallonia. In most countries, heads of government have to co-operate closely, on major EU constitutional issues, with their Foreign Ministers and their Finance Ministers—a lesson that even Prime Minister Thatcher was reluctantly obliged to learn. The second major conclusion is that, increasingly, the co-ordinating link between the domestic capital and Brussels is being formally assumed by the Foreign Ministry. Throughout Europe, attempts are being made by member states to transmit a reasonably coherent message to their representatives in Brussels. This has involved the administrative reorganisation of several Foreign Ministries. Thus, in May 1993, the German Foreign Ministry created a new division which merged the co-ordinating tasks of previously separate units. Nevertheless, the precise nature of the co-ordinating link provided by the Foreign Ministry differs across countries: in some countries it attempts to co-ordinate policies before transmitting them to Brussels, whilst in others—notably Britain and France—it tends to convey policies co-ordinated by other bodies (in which it is represented). It should also be noted that in several countries—Germany and Greece, for example—there are competing co-ordinating channels, generally in the form of the Finance or Economic Affairs Ministry. Finally, the increasing trend towards centralising the link to Brussels does not preclude the widespread practice of direct linkage between sectoral ministries and their counterparts in Brussels. Indeed, paradoxically, both centralised co-ordination and the countervailing phenomenon of sectoral segmentation (each a response to the other) appear to be on the increase. The accelerating adjustments to European policy-making within each ministry provides the third major conclusion (Le Vigan 1990; Administration et la construction européenne 1988). This phenomenon is the inevitable reaction to the deepening and widening of the scope of the EU policy-making. Each member state has witnessed a proliferation of internal co-ordinating bodies as well as of horizontal mechanisms to link each ministry with others: very few ministries now do not harbour at least one division or section devoted to interdepartmental coordination. Those ministries most immersed in EU affairs often have several co-ordinating mechanisms. Thus, the French Economy Ministry has a bureau in the Budget Division which liaises with the Ministry of Agriculture, the cellules in the Treasury Division which grapple with the consequences of the EMS and with its articulation with national monetary policy, and the DREE (direction des relations économiques extérieures) which monitors economic developments in other member states. The French Foreign Office also has three co-ordinating bodies: the ‘service de coopération économique’ the ‘bureau de droit communautaire’ and the ‘sous-direction de l’Europe occidentale’, which is responsible for European political cooperation. Of course, this proliferation of co-ordinating mechanisms merely raises the question: who co-ordinates the co-ordinators? And this leads to the fourth major conclusion—that the nature of domestic co-ordinating instruments varies widely across the member states of the Union. A frenzy of institutional experimentation and innovation characterises the sphere of EU coordination, as each country seeks to improve its effectiveness. (Wallace et al. 1983; Page and Wouters 1995; Chiti 1992; Oberdorff in Muller 1992; Battini 1993; Cassese and Franchini 1994). However, in spite of some evidence of institutional emulation and of convergence (the creation of ministries or junior ministries of European Affairs (Burban 1971), of interdepartmental committees with like-sounding titles) variety is still the dominant feature of national coordination. This variety is determined by the interplay of four major factors: formal organisations

156 Vincent Wright and procedures; internal informal networks; internal politico-administrative style and culture; the pattern of ambitions, resources and constraints. Naturally, each country has a mix of official vertical and horizontal mechanisms, although the resort to, and the authority of, these mechanisms differs widely. Amongst the better known, and generally admired mechanisms of vertical co-ordination are the European Secretariat attached to the Cabinet Office in Britain and the SGCI (secrétariat général du comité interministériel pour les questions de co-opération économique européenne) in France (Metcalfe and Zapico-Goñi 1991). The task of managing EU policy in Britain is entrusted to one key ministerial committee, European Questions (OPD(E)), which is chaired by the Foreign Secretary; to its shadowing official committee (EQ(S)) and to the European Secretariat of the Cabinet Office. The latter is the permanent centre of core executive co-ordinating activity. Established even before British entry into the EC, the European Secretariat is charged with constant overall policy coordination. It ensures that ‘there is a policy’, that consistency with wider policy goals is maintained, and that policies are implemented (Bender 1991). It also centralises and transmits all relevant documents, studies the potential impact of particular policies, and prepares for European Council meetings. As the centre of a set of tentacular and overlapping networks, it has proved itself highly competent in reacting quickly to emergencies, in providing an overarching framework for departments and in disseminating information quickly and widely (Mazey in Mény and Wright 1994; Edwards 1992). In the pursuit of its co-ordinating goals it convenes some 200 inter-departmental meetings a year, and organises a weekly meeting with the UKREP. The much respected French system of co-ordination centres of the SGCI and has normally been attached to the Prime Minister’s office (it spent only a very brief spell under the control of the Ministry for European Affairs). A body of some 120 officials, it performs many of the duties of its British counterpart, informing all relevant ministries and the Council of State of proposals of the European Commission, inviting preparatory studies of potential problems of harmonisation with national law, and, since 1986, ensuring the translation of EU Directives into national law (Lequesne 1993; Carnelutti 1988; Guyomarch 1993). A third example of a highly structured and centralised system is that of Denmark, with its cabinet sub-committee chaired by the Prime Minister. It meets weekly, working in tandem with a committee of senior officials who are chaired by the head of the Foreign Economic Affairs Ministry. The task of this latter committee is to coordinate the detailed work of the ministries (Laffan 1983). The Danish Foreign Affairs Ministry, in line with British and French practice, is responsible for establishing a centralised link to the Permanent Representation in Brussels. Elsewhere in Europe, centralisation gives way to fragmentation, with considerable variety in the extent and pattern of that fragmentation. Some countries rely essentially on two ministries—the Foreign Office and the Economics Ministry—to try to co-ordinate some of their European policies. This is the case in Germany, Ireland and Greece. In other countries— Spain, Luxembourg and Portugal—the Foreign office has overall political responsibility for EU affairs. In many countries a lead ministry, that which is most involved in the relevant policy, is often charged with general co-ordination. In truth, in all these countries, there is a mix of these three solutions: Foreign Office for some purposes, bicephalous, or lead ministries for others (see Dinan 1986; Laffan 1983; Burns and Salmon 1977 on the Irish example). In all cases, however, the major means of co-ordination is a set of interdepartmental committees—the horizontal compensating for the imperfect vertical forms of

The national co-ordination 157 co-ordination. Thus, the German Federal Republic often confers co-ordinating responsibility on the ministry most involved in a policy, but co-ordination also takes place in the weekly sessions organised by the Economics Ministry (Department E (Europe) which has the role of ensuring the two-way transmission between Bonn and the German Permanent Representative in Brussels), and by the Foreign Office and an occasionally assertive Chancellor’s Office. In Spain, the Foreign Affairs Ministry, through a Junior Minister for European Affairs, enjoys overall political responsibility for EU affairs. The latter chairs two important interdepartmental bodies—the Inter-departmental Commission for Economic Affairs related to European Integration, and the Delegated Commission for Economic Affairs. However, there are other committees charged with EU policy co-ordination and which escape the control of the Foreign Affairs Ministry (Moderne 1986; Acebes in Mény and Wright 1994; BurgoyneLarsen 1995). In similar vein, the creation in Italy of a Department attached to the Prime Minister’s office and given the task of co-ordinating European policy did not lead to the dismantling of the numerous interdepartmental commissions and committees charged with the same responsibility (Battini 1993; Chiti 1992:403). In The Netherlands, all ministers enjoy the same constitutional status and autonomy; the country lacks, therefore, the top-down co-ordination exercised through the arbitration of a Prime Minister as well as a body such as the British European Secretariat or the French SGCI. It relies on general co-ordinating activity through the Foreign Ministry and the Economics Ministry, and, occasionally, the Prime Minister’s Office. Yet most coordination takes place through bargained compromises in the horizontally organised fora of an official and unofficial nature (Van den Bos 1991). We should not exaggerate the distinction between centralised and fragmented systems. In France, for example, the SGCI is pivotal in some respects, but it may not be as powerful or as centralising as its friends contend or its enemies fear (Spence in Mazey and Richardson 1993:55). It shares part of its general policy co-ordinating role with the Ministry of the Economy, the Foreign Office and the Ministry for European Affairs, and its role as monitor of legal implementation of EU law with the Secretariat General du Gouvernement. There are numerous examples of ministries resisting the centralising embrace of the SGCI: hence the need for a succession of circulars sent by Prime Ministers (starting with Debré, including Rocard and ending recently with Balladur) insisting that departments had to refer European matters to the SGCI. Hence, too, the constant need for arbitration at Matignon amongst departments which refuse the authority of the SGCI. Furthermore, as in Britain, the practice of leaving co-ordination to a lead ministry is widespread. Similarly, in Britain, the major co-ordinating organ, the European Secretariat, may lie at the heart of co-ordinating activity, but high politics, such as GATT negotiations, constitutional reform at EU level or European political co-operation is managed more directly by the Prime Minister, the Foreign Office or by cabinet committees, the most senior of which is the Overseas and Defence Committee, chaired by the Prime Minister and serviced by the Cabinet Secretariat. Its sub-committee—Overseas and Defence (Europe)— is chaired by the Foreign Secretary and serviced by the European Secretariat. In Britain and France, moreover, a great deal of European policy of low political salience and involving little inter-departmental interaction tends to be dealt with in heavily segmented fashion by individual ministries or by ad-hoc inter-departmental committees (Armstrong and Bulmer 1996). Finally, in all three centralised cases—Britain, France and Denmark—there is abundant evidence of many direct links between sectoral ministries and Brussels (Siedentopf and Ziller 1988:63).

158 Vincent Wright Conversely, the degree of official fragmentation in countries such as The Netherlands and Germany should be kept in perspective. The Dutch have made some tentative moves to improve co-ordination through the Directorate General for Economic Co-operation and Integration and through the Foreign Office (its Junior Ministry for European Affairs chairs CoCo and CoCoHan, two co-ordinating inter-departmental committees). Since January 1992 new instruments have been created, and the Foreign Office is now called upon to prepare a three-monthly implementation review for Parliament. In Germany, the Chancellor’s Office keeps a constant eye on major European issues, and conflicts between ministries are discussed in the monthly meetings of the Ausschuss der Europa-Staatssekretäre, a committee of state secretaries responsible for European affairs. It is chaired by a Junior Minister in the Foreign Office and comprises representatives of that ministry as well as those from the Economics, the Finance and the Agricultural Ministries, from the German Permanent Representation in Brussels, the State Secretary in the Chancellor’s Office responsible for European Affairs, and those State Secretaries whose departmental issues are under discussion. Moreover, a committee, which meets every Tuesday, examines the agenda of Coreper, and ad-hoc meetings of officials may be convened to discuss specific issues. Other countries which lack a centralising co-ordinating body are not totally devoid of co-ordinating mechanisms. The Irish, for example, have created a committee of senior civil servants with a general co-ordinating role. In Italy, the Foreign Office has slowly assumed some ascendancy over the formal structures of co-ordination, through its Directorates General for Economic Affairs and for Political Affairs (the latter deals with foreign policy and EU constitutional matters). Furthermore, since 1987, the prestigious Interdepartmental Committee for Economic Planning (CIPE) has been charged with providing the guidelines for the country’s overall economic strategy, with improving the instruments for the rapid spending of EU funds allocated to Italy, and with monitoring the translation of EU Directives into domestic law. These tasks require close co-operation with CIPI (industrial policy) and CIPES (external trade), two other important inter-departmental committees. However, in Italy, as in Germany, The Netherlands, Ireland and most other member states, developments designed to improve the machinery of co-ordination do not amount to anything approaching the British, French or Danish situations. In exploring the instruments of co-ordination it is, of course, important to probe behind the official facade by considering actual practice: thus, as Van den Bos has pointed out, the formal equality of Dutch Ministers in EU policy making masks the fact that some ministers are clearly more equal than others. Furthermore, we need to analyse the role of unofficial networks of co-ordination as well as the politico-administrative environment and culture in which the official system is embedded. By doing so, it is possible to detect several different scenarios: 1 The British scenario. In this case, a centralised official system is underpinned by an equally centralised and integrative politico-administrative culture (Dunleavy and Rhodes, 1990). 2 The French scenario. An official centralised system is both further centralised by constant resort to the arbitration of Matignon and the Elysée as well as increasingly fragmented as the result of the confrontational styles and strong centripetal forces within the French administration—forces which surfaced in the early battle for control of the SGCI (Claisse in Heyen 1992; Gerbet 1969:202; Debbasch 1991:132; Lequesne 1993:45).

The national co-ordination 159 3 The Spanish scenario. A reasonably structured system is hampered by internal conflicts notably amongst the cuerpos which, like the grands corps in France, vie for supremacy in new sectors (Gomez Fuentes 1986) 4 The Irish and Dutch scenarios. In this case, officially fragmented systems have generated unofficial channels or networks to ensure a respectable degree of coherence in defining the national interest (Van den Bos 1991). 5 The German, Italian and Belgian scenarios. Attempts at improving the fragmented machinery of co-ordination fall foul of persistent and deeply entrenched departmental rivalries. In these countries—and others such as Greece, The Netherlands and France— there is the traditional rivalry between the Foreign Affairs Ministry and the Economics or Finance Ministry. In Germany, European policy remains ill-co-ordinated between large and disparate groups which are jealous of their autonomy, and it can be disrupted by tensions between the Chancellor’s office, the Foreign Office and the Economics Ministry (Bulmer and Paterson 1987; Goetz and Hesse in Heyen 1992; Huelshoff 1993; Wessels and Regelsberger 1988). Italian government is ‘government by department’ (Hine 1995:58), and traditional turf battles are exacerbated in EU policy co-ordination by the exigencies of coalition politics, of party politics and of personal enmities (Ronzitti 1987; Franchini 1990). Belgium presents an extreme example of official fragmentation being compounded by the prevailing politico-administrative environment and culture. In European affairs, officials of the External Economic and Social Policy Committee (which is attached to the Prime Minister’s office and which is dominated by officials from the Economics Ministry) have to compete with those from the Foreign Office who consider the EU as one of their chasses gardées (Ziller 1993:63–64; Mahieu 1969; Conrad in Heyen, 1992:228). As at the national level, co-ordination in Brussels takes both an official and an unofficial form and it is shaped by politico-administrative culture and by policy style. Unlike at the national level, formal co-ordination in Brussels is similar for all member states. Each state is represented by a Permanent Representation, headed by an Ambassador who invariably hails from the diplomatic corps. The Permanent Representation is serviced, in the main, by national officials on secondment. The expanding scope of EU activity has led to a corresponding increase in the size and variety of such officials. Initially dominated by diplomats, Finance Ministry and Agricultural Ministry officials, each Permanent Representation has acquired specialists to shadow the increasing number of policy sectors. The size varies from the surprisingly modest (those of France and The Netherlands have fewer than thirty members) to the barely adequate, since the biggest have only between forty-five and fifty-five. During a state’s Presidency of the Council, membership tends to expand. The first task of the Permanent Representation is to inform the national capital of possible or impending EU legislation, and this requires sensitive antennae and an effective information gathering and transmission service. Second, the Permanent Representation has the task of defining the national position in Brussels, and of presenting it in an acceptable form and at the appropriate moment. A failure to present an issue in a desirable form may result in its transfer to the non decision-making category (Peters 1994:12). Likewise, mobilising the wrong resources may be costly—as the reputedly efficient French and

160 Vincent Wright British have sometimes painfully learnt (Dumez and Jeanemaître 1992:16–19). Presenting a clear message is relatively easy when one is received from a Foreign Office which, in turn, is presenting a position formulated in a centralised agency. This is the case for Britain, France and Denmark, where an official of the Permanent Representation regularly attends meetings of the national co-ordinating body. However, even these countries have the problem, which is acute for other member states, of contending with issues which are of national concern but which are negotiated directly between individual ministries or interests and Commission officials. The Permanent Representation also negotiates the national position. It works essentially through the Coreper which has the task of preparing the meetings of the Council of Ministers and which is the locus of brokering major legislative deals. It is also entrusted with managing its country’s dealings with all the other institutions of the EU. Most officials of the Permanent Representations spend their time in the working groups of the Council, reporting back to their national co-ordinating bodies or to ministries, details of relevant proposals. They also have the often unenviable task of translating national instructions into bargainable positions within the working groups. On the whole, officials of the Permanent Representations enjoy some discretion in settling technical matters, but leave political issues to the Coreper or to the full Council. A Permanent Representation has a further important general brief in managing its country’s business in Brussels: that of sensitising a whole range of EU institutions to the policy stances and constraints of its country. It hopes, thereby, to influence the agenda-shaping of the Union. Finally, the Permanent Representations have the task of reporting back to the appropriate national bodies on the decisions made in Brussels and on the repercussions of those decisions for national law. The co-ordinating activities of the Permanent Representations are, therefore, of a generalised and of a specific nature, and are structured around a two-way system of transmission between Brussels and the member state and also within the ‘black box’ of Brussels decision-making: it is the deliverer of messages that it has only partly formulated and of which it may even disapprove—a singularly uncomfortable position on occasions. The roles of unofficial co-ordinating channels are as important in Brussels as they are at the domestic level. In the pursuit of their objectives Permanent Representations can often (although by no means always, since some national officials ‘go native’ and resist intergovernmental pressures; Michelmann 1978:482–483), count on the co-operation of their compatriots who staff key institutions of the Union—the consultative, management and regulatory committees and subcommittees which proliferate at all levels, the expert groups and work groups, the Directorates General and the Cabinets (enclaves composed of the nationality of the Director General) (Kassim and Wright 1991). Increasing attention is also being paid by some Permanent Representations to the parliamentary groups. Member states have always been concerned to maintain a permanent presence along the critical pathways of the policy process, particularly in the early drafting phase of legislation, and especially in areas of national concern (agriculture for Ireland and Greece, fisheries for Spain, competition policy for the United Kingdom) (Siotis 1964). Indeed, they keep a keen eye on all important appointments within the Commission in order to protect their (unofficial and unwritten) ‘quota’. Brussels decision-making is thus characterised by the existence of both official networks and ill-structured and loosely functioning administrations parallèles, unofficial channels which provide access to the Commission.

The national co-ordination 161 The Union’s bureaucratic system is shot through with national officials and influences. There is, for example, an Italian ‘Mafia’ and a quite effective Spanish network. There is little doubt that a strategically placed and sympathetic national official can greatly ease the task of a member state. Thus, during the 1989–1992 CAP negotiations French officials were favoured by the presence of many of their compatriots in DGVI (Le Theule and Litvan 1993:771). The differences in the style of co-ordination of European policy at national level are mirrored in Brussels; thus, when UKREP receives a text from the Commission, it immediately reports to London and relevant embassies on its operational consequences and proffers precise advice. This is not the case with most other Permanent Representations, including that of France. In truth, UKREP is an efficient and tightly-knit body which closely liaises with London, and it is strategically constrained by that factor, especially as instructions from London are those of the government as a whole. Concessions by UKREP in Brussels may, therefore, constitute the unpicking of a compromise that had been bitterly fought over in Whitehall. German, Irish and French officials, like their British counterparts, enjoy little strategic latitude but are afforded some tactical discretion. By way of contrast, officials from Belgium, Italy and Luxembourg appear to work within relatively loose policy frameworks defined by their respective capitals (Nugent 1994:414–415; Rutten 1992), whilst those from the Netherlands appear to have to work with a combination of vaguely formulated principles and ideas on some issues, and precise instructions in some sectors (Van den Bos 1991). There is another reflection of the domestic position: the degree of homogeneity achieved by the Permanent Representations in presenting their country’s position. Thus, in sharp contrast with the British who generally stifle inter-departmental rivalries in Brussels, the Germans occasionally parade them, as is evident in the occasional battles between officials from Agriculture, from Finance and from the Foreign Office. CO-ORDINATING CAPACITY: SOME CONCLUDING REMARKS Any analysis of EU policy co-ordination at domestic level must raise the question of its effectiveness. However, this triggers further complex questions: for instance, is a centralised system inherently more effective than a fragmented one? In some senses, the answer must be that centralisation is effective. The British system, for example, ensures that ‘there is a policy’ which is binding on domestic actors, which is coherent and consistent with wider policy objectives, and which is clearly transmitted to UKREP in Brussels. However, a centralised system may be dysfunctional in several ways. In the first place, the centre may be divided (the case in France during the first period of cohabitation between 1986 and 1988) or paralysed (during the Pompidou illness at the end of his Presidency) or inept (the case of Prime Minister Major over voting rights in 1994). Second, the negotiation and transmission of a tight domestic compromise may bind the hands of the country’s negotiators in Brussels where flexibility is often desirable (hence the tensions between the SGCI and the French Permanent Representation during a set of negotiations in 1996). Third, loose and horizontally-organised but negotiated compromises may be messy and time-consuming, but they may also ensure a better implementation record because the agents of implementation have participated in the decisionmaking process. Fourth, the degree of centralisation is no guarantee of quality—which depends on resources such as adequate personnel, internal cohesion, sufficient time to deal with

162 Vincent Wright business, expertise (in technical sectoral matters, in languages, in EU law and procedures). And whilst the political skills and leverage record on resources of the three centralising countries is generally good (although there is certainly a problem of internal cohesion and of time for the SGCI) it is clear that other member states enjoy at least some of the above resources. Thus, countries such as The Netherlands and even Italy, where the technical expertise of Foreign Office officials is singularly lacking (Hine 1995:62), together with Britain, France and Denmark, have each a small network of EU experts who rotate between domestic and EU-level co-ordinating bodies, who reduce the formal density of the policy arena and who may even foster a certain team spirit in the pursuit of national interests (Hayes-Renshaw et al. 1989:127; Van den Bos 1991). But effectiveness must be judged not only according to the nature and resources of formal and informal co-ordinating mechanisms. It must be related to the nature of the issue— whether it is constitutional and political or simply bureaucrat and technical, or whether it is urgent and reactive or merely routinised. It may also be related to the requirements of EU domestic policy making. It is, therefore, possible to evaluate effectiveness according to a states’ capacity to: 1 Anticipate new EU legislation and its impact at the national level. Almost all countries (particularly those of southern Europe) are weak in this respect. The possible exceptions are Denmark and Britain (where, for example, the 1996 IGC triggered the creation by the European Secretariat of a reflection group). Even the much-vaunted French system is seen as wanting in its anticipatory ability: during the prolonged CAP negotiations of the early 1990s the French delegation ‘a surtout découvert les problèmes au fur et à la mesure qu’ils se présentaient’ (Le Theule and Litvan 1993:755). This weakness of the French system led to the creation, by Edith Cresson, in January 1993, of ‘groupes d’études et de mobilisation’, but the experiment proved to be but a further addition to the Prime Minister’s long list of failures. There is some evidence that governments are increasingly aware that anticipation is now an important policy weapon. Thus, the Dutch established, in 1989, an inter-departmental group, the BNC, to review new European Commission proposals and their consequences for national policies and law. 2 Shape the EU policy agenda and to tap the resources available in Brussels—two activities which demand somewhat different skills. The British and the Germans are considered to be good down-stream lobbyists for economic matters, the French for cultural affairs and the Spanish and Greeks for agricultural issues. Success in shaping the agenda depends on presenting to the country’s representatives in Brussels a technically-sound dossier, at the right time, within the referential framework of the EU and ideally garbed in a legitimising pro-EU discourse. 3 Smoothly and quickly translate European legislation into national law. The patchy record of some member states, as seen in regularly published league tables, may be attributed to a set of factors including the extent of the adjustment required and the inertia or ineptitude of officials. Defects in the co-ordinating machinery may also be a factor. Without doubt, efforts have been made by several guilty countries (notably France, The Netherlands and Italy) to improve their legal implementation performance (Hine 1995; Carnelutti 1988).

The national co-ordination 163 4 Implement and monitor European legislation at street level. This is a much underresearched area. Whilst the major source of slippage may lie in the institutional design or in the resistance or lack of resources (budgetary and expertise) of those entrusted with the task (Aguilar Fernandez 1994; Georgiou 1994), it is clear that there are problems of co-ordination. Interestingly, the highly centralised French system, dominated by Parisian-based members of the grands corps may be insensitive to problems of practical implementation (Claisse in Heyen: 179) whilst the diffused and negotiated co-ordinating style of the Germans may facilitate such implementation (Hesse 1991). If we examine the factors which shape domestic co-ordinating capacity we need to explore the extent of the adjustment required by EU policies: EU legislation may be the formal recognition of national practices or may be entirely novel and require major reforms. Pollution control illustrates this point admirably. Clearly, the factors which determine the state’s capacity for co-ordination are size, nature and degree of fragmentation of the state machine, its tendency towards sectoralisation, professional specialisation, bureaucratic turf-defending, and its inter-departmental and inter-corps rivalries. As noted above, there are striking contrasts between the situations amongst the member states. We need also very carefully to consider the extent of its functional and territorial penetration. The factors which determine a country’s co-ordinating capacity at the EU level include some of the above factors, but also comprise the following: 1 Political clout, which is linked to size. However, the factor of size may be negated or diluted by political ineptitude (the case of Britain on occasions) or by self-restraint (the case for a long period for Germany, for obvious historical reasons (Bulmer and Paterson 1989:95–117). 2 Constitutional congruence on the extent to which a country’s policy synchronises with the logic of the Union’s basic constitutional principles or aspirations (Bulmer in Dyson 1992). The relative success of the British in their pursuit of sectoral liberalisation springs from its match with the logic of the open market. In some areas, such as telecommunications, Britain has ‘not merely opened the gate but provided ammunition for the EU to attack other fortresses’. Yet, constitutional congruence is no guarantee of quick success. Plans to liberalise the EU’s energy markets, backed by Britain, Germany and the Commission, have been blocked in the Energy Council for several years because of the French government’s opposition to competition in the area of energy distribution to customers (Financial Times 6 February 1996). The fitful and painfully slow pace of liberalisation in the air transport sector provides another example of the capacity of protectionist countries (some very badly co-ordinated) to slow down a constitutionally congruent policy. 3 Existing policy congruence, or the extent to which proposals are respectful of the acquis communautaire, or are not attempting to unbundle policies based on previous complex bargains. Problems are compounded if the proposals engender negative or zero-sum consequences—as the well-oiled and determined British co-ordinating machine was to discover over budget contributions.

164 Vincent Wright 4 Policy climate congruence, or the degree to which a proposal is in harmony with the prevailing climate in Brussels. Thus, the air of budgetary crisis in 1984 and 1988 facilitated the reform of CAP, whilst the 1980s favoured market-creating and market-consolidating policies as well as providing a propitious terrain for the pro-integrationist demands of the Commission-French-German troika. The climate after the Maastricht ratification difficulties has been much less conducive to pro-integration initiatives, and has shifted the balance of power within the Union. 5 Administrative congruence, or the extent of the match between the administrative procedures and the policy style of a country with the procedures and ‘emergent policy style’ at EU level (Mazey and Richardson 1993). Thus, the open, flexible, co-operative, pragmatic and consensus-building style of the Germans and the Dutch may be ill-suited to formulating overall steering strategies (the apparent strength of the British and the French), but is appropriate for the building of coalitions which is the basis of much successful EU policy-making, particularly when a country is occupying the presidency. Nor have the German deficiencies prevented it from playing a major role in shaping the constitutional destiny of the Union. Conversely, the elitist, centralising and confrontational style of the French, so evident in the inter-departmental committees at home, may be very counterproductive—as was clear in the failure of the French to prevail in the controversial de Havilland affair, the reform of CAP in 1990, the importation of Japanese cars in 1991, and the reform of the Common Fisheries Policy in 1993 (Muller 1992:23–24). At both national and EU level, a country’s capacity to co-ordinate is naturally affected by the pattern of domestic constraints—judicial, industrial, institutional and political. Clearly, the mix, extent and nature of constraints vary widely, even if we restrict our analysis to the political level. Thus, if parliaments are generally weak in constraining governments—there are exceptions, notably in Denmark (with its highly professional and politicised EU Committee) and Austria (Laffan 1983:57; Ronzitti 1987:38–44). Similarly, majority parties or ruling coalitions are rarely an obstacle for governments, although in Italy, The Netherlands and Germany, coalition politics seriously weaken the capacity to centralise co-ordination (Van den Bos 1991; Bulmer and Paterson 1992:115; Hine 1995; Bulmer and Paterson, in Wessels and Regelsberger 1988), and in Britain the hapless Major government is constantly shifting its EU policy to try and accommodate the irreconcilable objectives of its own backbenchers. Similarly, sub-national constraints in formulating EU policies are not a problem in countries such as Britain, France, Denmark, Portugal and The Netherlands, but are significant in Spain and, more especially in Belgium. They may also become more important in Germany, as the Länder try to claw back some of the powers allegedly lost through EU policy-making. Intergovernmental relations are much more important at the implementation phase: ignoring local governments may lead to problems of street-level compliance. Finally, the effectiveness of co-ordination cannot be divorced from the aspirations and objectives of the member states (Nugent 1994:413–414). It is all too readily assumed that all member states share the British and Danish characteristics of suspicion towards the EU and of sustained greed towards its resources—twin characteristics that require a constant and global coordinating function. Nor is every country as obsessed with managing sectoral spill-overs or externalities. It may be perfectly legitimate to reproach the French for frequently failing to set specific EU policies into a larger national referential framework, since they have the pretension of

The national co-ordination 165 doing so (Le Theule and Litvan 1993:783). But for member states with more modest ambitions the criticism would be invalid. As also noted above, the policy activism of a country varies according to type (with the Germans and the French keen constitutional reformers) and sector (the British push a pro-competition agenda whilst the Germans are keen environmentalists—although often for sound commercial reasons). In short, the effectiveness of a country’s domestic EU coordinating capacity must be judged according to the issue, the policy type, the policy requirements and the policy objectives. Merely to examine the machinery of co-ordination is to confuse the means and the outcomes. A number of more general conclusions may be drawn from this brief study. The first is, that given all the difficulties of co-ordination, what is surprising is the amount that appears to take place. Second, whilst co-ordination may be important in some respects, its absence does not appear to be disruptive or dysfunctional. Indeed, third, lack of co-ordination or inadequate coordination may be functional, and not only in ensuring latitude at the bargaining table, but also particularly for those countries which bear the highest costs in terms of policy adjustment, since legal compliance or street-level implementation may be phased in a more prolonged and politically palatable way. Poor national co-ordination may even be functional for the EU itself, since it does facilitate interstate bargaining, whilst policy slippage due to weak implementation co-ordination may be yet another price the Union has to pay for support. REFERENCES ‘L’administration et la construction européenne’ (1988) in Revue française d’administration publique, no. 48, October–December. Aguilar Fernandez, Susana (1994) ‘Convergence in Environmental Policy? The Resilience of National Institutional Designs in Spain and Germany’, Journal of Public Policy, vol. 14, no. 1, pp. 39–56. Armstrong, Kenneth and Bulmer, Simon (1996) ‘The United Kingdom’ in Rometsch, D. and Wessels, W. The European Union and Member States: Towards Institutional Fusion?, Manchester: Manchester University Press. Battini, Stefano (1993) ‘L’influence de 1’intégration européenne’ Revue française d’administration publique, July–September, no. 67. Bellier, Irene (1994) ‘La Commission Européenne: Hauts fonctionnaires et “Culture du Management”’, Revue française d’administration publique, no. 70, April–June, pp. 253–262. Bender, B.G. (1991) ‘Whitehall, Central Government and 1992’, Public Policy and Administration, vol. 6, no. 1, Spring, pp. 13–20. Bodiguel, Jean-Luc (1995) ‘The Civil Service and the European Union’, International Review of Administrative Sciences, vol. 6, no. 3, September, pp. 433–453. Bulmer, Simon (1986) The Domestic Structure of European Community Policy-Making in West Germany, New York: Garland. Bulmer, Simon (1992) ‘Completing the European Community’s Internal Market: the Regulatory Implications for the Federal Republic of Germany’ in Kenneth Dyson (ed.), The Politics of German Regulation, Aldershot: Dartmouth, pp. 53–78 . Bulmer, Simon and Paterson, W. (1987) The Federal Republic of Germany and the European Communities, London: HarperCollins. Bulmer, Simon and Paterson, William (1988) ‘European Policy-Making’ in Wessels, W. and Regelsberger, E. (eds), The Federal Republic of Germany and the EC: the Presidency and Beyond, Bonn: Europa, Union Verlag, pp. 231–268. Bulmer, Simon and Paterson, William (1989) ‘West Germany’s Role in Europe: “Man-Mountain” or “SemiGulliver”’, Journal of Common Market Studies, vol. 28, no. 2, December, pp. 95–117. Burban, J. (1971) ‘La création de ministres des Affaires Européennes au sein du gouvernement des Etats membres de la communauté’, Revue du Marche Commun, vol. 147, October, pp. 355–358.

166 Vincent Wright Burgoyne-Larsen, L. (1995) L’Espagne et la Communauté Européenne, Brussels: Editions de l’Université de Bruxèlles. Burns, B. and Salmon, T. (1977) ‘Policy-making Coordinating in Ireland on European Community Issues’, Journal of Common Market Studies, vol. 15, no. 4, June, pp. 272–287. Carnellutti A. (1988) ‘L’Aministration française face à la Règle Communautaire’, Revue française d’administration publique, vol. 40, October–December. Cassese, S. and della Cananea, G. (1992) ‘The Commission of the European Economic Community: The Administrative Ramifications of its Political Development (1957–1967)’ in Heyen, Erk Volkmar Yearbook of European Administrative History: Early European Community Administration, Baden-Baden: Nomos Verlagsgesellschaft, pp. 75–94. Cassese, S. and Franchini, C. (1994) L’amministrazione pubblica italiana, Bologna: il Mulino. Cassesse, Sabino and Wright, Vincent (eds) (1996) Reshaping the State in Western Europe, London: Cassell. Chiti, Mario P. (1990) ‘Il coordinamento delle politiche comunitarie e la riforma degli apparati digoverno’, Associazione per gli studi e le ricerche parlamentari, no. 1, pp. 235–254. Chiti, Mario P. (1992), ‘Implicazioni Amministrative della integrazione europea’, Rivista Italiana di Diritto Pubblico Comunitario, vol. 2, no. 4. Claisse, A. (1992) ‘L’adaptation de 1’administration française à la construction européenne (1948–1969), in Heyen, Erk Volkmar Yearbook of European Administrative History: Early European Community Administration Baden-Baden: Nomos Verlagsgesellschaft, pp. 165–180. Claisse, A. (1994) ‘L’obiettivo della modernizzazione amministrativa in Francia: riconciliare Stato e società’ in Mény, Y. and Wright, V. (eds), La Riforma Amministrativa in Europa, Bologna: Il Mulino, pp. 71–110. Conrad, Yves (1992) ‘L’administration beige face à la construction européenne (1952–1967). Une première orientation historique’, in Heyen, Erk Volkmar Yearbook of European Administrative History: Early European Community Administration, Baden-Baden: Nomos Verlagsgesellschaft, pp. 223–237. Cram, L. (1993) ‘Calling the Tune Without Paying the Piper? Social Policy Regulation: the Role of the Commission in the European Community Social Policy’, Policy and Politics, vol. 21, no. 1, pp. 135–146. Debbasch, C. (1988) National Administrations and European Integration, Paris. Debbasch, C. (1991) ‘L’influence du processus d’intégration communautaire sur les administrations nationales’, in L’Europe et le Droit, Paris: Dalloz. Dinan, Desmond (1986) ‘Political-Economic Linkage and Bureaucratic Rivalry: A Case Study of Ireland in the EEC’, Administration, vol. 34, no. 4, pp. 434–454. Dinan, Desmond (1994) Ever Closer Union?, Basingstoke: Macmillan. Dror, Y. (1975) ‘From Management Sciences to Policy Sciences’, in White, M.J. et al. (eds), Management and Policy Science in American Government, Lexington Mass.: DC Heath, Chapter 13. Dubouis, L. (1975 ‘L’influence française sur la fonction publique communautaire’ in La France et les Communautés européennes, Paris: LGDJ, pp. 501–507. Dumez, Hervé and Jeanemaitre, A. (1992) ‘La France, 1’Europe et la concurrence: ensignements de 1’Affaire A.T.R.—de Havilland’, Commentaire, no. 57, Spring, pp. 16–19. Dunleavy, P. and Rhodes, R.A.W. (1990) ‘Core Executive Studies in Britain’, Public Administration, vol. 68, pp. 3–28. Dyson, Kenneth (ed.) (1992) The Politics of German Regulation, Aldershot: Dartmouth. Edwards, G. (1992) ‘Central Government’ in George, S. (ed.), Britain and the European Community:the Politics of Semi-detachment, Oxford, Oxford University Press, pp. 64–70. Franchini, Claudio (1990) Amministrazione Italiana & Amministrazione Comunitaria, Rome: Edi. Press. Georgiou, George A. (1994) ‘The Responsiveness of the Greek administrative system to European Prospects’, International Review of Administrative Sciences, Vol. 60, pp. 131–144. Gerbet, Pierre (1969) ‘La préparation de la decision comrnunautaire au niveau national français’ in Gerbet, P. and Pepy, D. (eds), La décision dans les Communautés européennes, Bruxelles: Presses Universitaires. Goetz, Klaus (1995) ‘National Governance and European Integration: intergovernmental Relations in Germany’ Journal of Common Market Studies, vol. 33, no. 1, pp. 92–116. Gomez Fuentes, A. (1986) Así cambiara Espagna: la batalla del mercade comun, Barcelona: Plaza and Janes. Gueriviére, Jean de la (1992) Voyage à I’intérieur de l’Eurocratie, Paris. Guyomarch, Alain (1993) ‘The European Effect: improving French Policy Coordination’, Staatswissenschaften und Staatspraxis, vol. 4, no. 3, pp. 455–478.

The national co-ordination 167 Hay, R. (1989) The European Commission and the Administration of the Community, Brussels: Official Publications of the European Commission. Hayes-Renshaw, Fiona et al. (1989) ‘The Permanent Representation of the Member States to the European Communities’, in Journal of Common Market Studies, vol. 26, no. 2, December, pp. 119–137. Hesse, Joachim Jens (1991) ‘West German Federalism: Effects, Outputs and Implications for European Integration’, Discussion paper no. 3, Oxford: Centre for European Studies, Nuffield College. Hesse, Joachim Jens and Goetz, Klaus H. (1992) ‘Early Administrative Adjustment to the European Communities: the Case of the Federal Republic of Germany, in Heyen, Erk Volkmar Yearbook of European Administrative History: Early European Community Administration, Baden-Baden: Nomos Verlagsgesellschaft, pp. 181–206. Hesse, Joachim Jens and Goetz, Klaus H. (forthcoming) The Europeanisation of Public Administration: an Anglo-German Comparison, Speyer: Forschungsinstitut für offentliche Verwaltung bei der Hochschule für Verwaltungswissenschaften. Heyen, Erk Volkmar (1992) Yearbook of European Administrative History: Early European Community Administration, Baden-Baden: Nomos Verlagsgesellschaft. Hine, David (1995) ‘Italy and Europe: the Italian Presidency and the Domestic Management of European Community’, in Leonardi, R. and Anderlini, F. (eds) Italian Politics: a Review, vol. 6, London: Pinter, pp. 50–68. Hix, Simon, Hurrell, Andrew and Menon, Anand (forthcoming), Western European Politics. Huelshoff, Andreas (1993) From the Federal Republic to Deutschland, Colorado: Westview Press. Jacquel, J.P. (1994) ‘Le labyrinth décisionnel’, Pouvoirs, no. 69. Jamar, J. and Wessels, W. (1985) Community Bureaucracy at the Crossroads, Bruges. Kassim, Hussein and Wright, Vincent (1991) ‘The Role of National Administrations in the DecisionMaking Processes of the European Community’, Rivista trimestrale di diritto pubblico, no. 3, pp. 832–850. Laffan, Brigid (1983) ‘Ireland and Denmark in the European Community—Political and Administrative Aspects’, Administration, vol. 29, no. 1, pp. 43–62. Lequesne, Christian (1993) Paris-Bruxelles: Comment se fait la politique européenne de la France, Paris: PFNSP. Ludlow, Peter (1993) ‘The UK Presidency: A view from Brussels’, Journal of Common Market Studies, vol. 31, no. 2, June, pp. 246–260. Mahieu, Marie-Paule (1969) ‘La preparation de la decision communautaire au niveau national beige’ in Gerbet, P. and Pepy, D. (eds), La Décision dans les Communautés européennes, Bruxelles: Presses Universitaires. Martin Acerbes, Angel (1994) ‘Adattamenti organizzativi e funzionali dell’amministrazione spagnola nel processo di integrazione europea’ in Mény, Y. and Wright, V. La riforma amministrativa (1994). Mazey, Sonia (1994) ‘The Adjustment of the British Administration to the European Challenge’, in Mény, Y. and Wright, V. (eds) La Riforma amministrativa (1994). Mazey, Sonia and Richardson, Jeremy (1993) (eds) Lobbying in the European Community, Oxford: Oxford University Press. Mény, Yves et al. (1996) Adjusting to Europe: The Impact of the European Union on National Institutions and Policies, London: Routledge. Mény, Yves and Wright, Vincent (1994) La riforma amministrativa in Europa, Bologna: Il Mulino. Metcalfe, Les (1987) ‘Comparing National Policy Coordination: Do the Differences Matter?’, paper presented at the Erenstein Colloquium, Maastricht, European Institute of Public Administration. Metcalfe, Les and Zapico-Goñi, E. (1991), ‘Action or Reaction?’, in European Policy Making, London. McLauglin, A.M., Jordan, G. and Maloney, W.A. (1992) ‘Policy-making in Agriculture: Primary Policy community or specialist policy communities’, Working Paper Series, no. 5, University of Aberdeen: British Interest Group. Project. Michelmann, Hans J. (1978) ‘Multinational Staffing and Organizational Functioning in the Commission of the European Communities’, International Organization, vol. 3, no. 2, pp. 477–496. Moderne, Franck (1986) ‘L’Administration espagnole et l’intégration européenne’ in Annuaire Européenne d’Administration Publique, vol. 9, Paris: CNRS, pp. 137–155. Muller, Pierre (1992) L’administration française est-elle en crise?, Paris: L’Harmattan.

168 Vincent Wright Nugent, Neil (1994) The Government and Politics of the European Community, London: Macmillan Education. Oberdorff, Henri (1992) ‘L’administration face aux enjeux de la construction communautaire’ in Muller, P. pp. 129–145. Page, Edward C. and Wouters, Linda (1995) ‘The Europeanisation of the National Bureaucracies?’, in Jon Pierre (ed.), Bureaucracy and the Modern State, Aldershot: Elgar, pp. 185–204. Paterson, W. and Whilson, C. (1987) Government and the Chemical Industry: a Comparative Study of Britain and West Germany, Oxford: Clarendon Press. Peters, Guy A. (1994) ‘Agenda-setting in the European Community’, Journal of European Public Policy, vol. 1, no. 1, pp. 9–26. Peterson, John (1991) ‘Technology Policy in Europe: explaining the Framework Programme and Eureka in Theory and Practice’, Journal of Common Market Studies, vol. 29, no. 3, March, pp. 269–290. Peterson, John (1992) ‘The European Technology Community: policy Networks in a SupranationalSetting’, in Marsh, D. and Rhodes, R. (eds), Policy Networks in British Government, Oxford: Clarendon Press. Pollack, Mark A. (1994) ‘Creeping competence: the Expanding Agenda of the European Community’, Journal of Public Policy, vol. 14, no. 2, pp. 95–145. Rideau, Joel (1987) ‘Le système communautaire et le modèle européen d’administration publique, in Annuaire Européen d’Administration Publique, vol. 10. Ronzitti, Natalino (1987) ‘European Policy Formulation in the Italian Administrative System’, The International Spectator, vol. 22, no. 4, October–December, pp. 207–214. Rutten, Charles (1992) ‘Au coeur du processus de decision europeen: le Coreper’, Revue française d’Administration Publique, no. 63, July. Sandholtz, W. and Zysman, J. (1989) ‘Recasting the European Bargain’, World Politics, no. 42, October, pp. 95–128. Scharpf, Fritz W. (1988) ‘The Joint Decision Trap: lessons from German Federalism and European Integration’, Public Administration, vol. 66, Autumn, pp. 239–278. Schmidt, Vivien A. (1995) ‘Democracy at Risk? The impact of European Integration on National Patterns of Policy-making’, paper presented to the fourth biennial International Conference of the European Community Studies Association, Charleston, South Carolina, May 11–14. Schmidt, Vivien A. (1996) ‘The Impact of European Integration on Domestic Political Economic Policymaking Institutions: the Cases of France, Great Britain and Italy’, unpublished paper. Selznick, Philip. (1957) Leadership in Administration: A Sociological Interpretation, Evanston, Ill.: Row & Peterson. Siedentopf, Heinrich and Ziller, Jacques (1988) (eds) Making European Politics Work, vol. 1, Comparative Syntheses, London: European Institute of Public Administration, London: Sage. Siedentopf, H. and Ziller, J. (1988) The Implementation of Community Law by the Member States, Maastricht. Siotis, J. (1964) ‘Some Problems of European Secretariats’, Journal of Common Market Studies, vol. 2, pp. 22–248. Snyder, F. (1990) New Direction in EC Law, London: Weidenfeld & Nicolson. Spence, D. (1993) ‘The Role of the National Civil Service in European Lobbying: the British Case’ in Mazey, S. and Richardson, J. Lobbying in the European Community, Oxford: Oxford University Press. Sutherland, Peter (1993), ‘Progress to European Union: a Challenge for the Public Service’, Administration, vol. 41, no. 2, Summer, pp. 108–112. Swinbank, Alan (1989) ‘The CAP and the Politics of European Decision-Making’, Journal of Common Market Studies, vol. 27, no. 14, June, pp. 303–322. le Theule, François-Gilles and Litvan, David (1993) ‘La réforme de la PAC: analyse d’une negotiation communautaire’, Revue française de sciences politiques, vol. 43, nos. 4–6, pp. 75–787. Van den Bos, Jan M. (1991) Dutch EC Policy-Making: a Model Guided Approach to Coordination and Negotiation, Thesis, Amsterdam. Le Vigan, Thomas (1990) ‘Les finances et Bruxelles’, Pouvoirs, 53, pp. 73–88. Wallace, Helen et al. (1983) Policy-making in the European Community, Chichester: Wiley. Weber, Shlomo and Wiesmeth, Hans (1991) Journal of Common Market Studies, pp. 255–267.

The national co-ordination 169 Wessels, Wolfgang and Regelsberger, E. (eds) (1988) The Federal Republic of Germany and the EC: the Presidency and Beyond, Bonn: Europa Union Verlag. Wright, Vincent (1994) ‘Reshaping the State: the Implications for Public Administration’ in Müller, W.C. and Wright, V. (eds), The State in Western Europe, Retreat or Redefinition?, Western European Politics (Special Edition), vol. 17, no. 3, July London: Frank Cass, pp. 102–137. Ziller, Jacques (1993) Administration comparée, Paris: Montchretien.

9 The Court of Justice and the European policy process Daniel Wincott

INTRODUCTION Somewhat belatedly the Court of Justice is now being subjected to sustained political analysis and taken into account in the general political science literature on European integration (Burley and Mattli 1993; Volcansek 1992; Weiler 1993; Weiler 1994; Alter and Meunier-Aitsahalia 1994; Garrett 1992; Garrett and Weingast 1993). According to some of these analyses the Court has played a role, perhaps even the crucial one in the integration process, acting as ‘the principal motor for the integration of Europe’ (Mancini, cited in Volcansek 1992:109). Some studies have suggested that the Court is ‘an unsung hero’ of the ‘unexpected twist’ by which, in the face of the scepticism of most political science and international relations theory, the EC became ‘something far more than an international organisation of independent sovereigns’ (Burley and Mattli 1993:41). Other political analysts have argued that the Court simply reflects the interests of dominant member states, having little independent influence (Garrett 1992), and certainly incapable of ‘imposing’ a policy which was not within the set of relatively well-defined member state preferences (Garrett and Weingast 1993). Adopting a policy perspective, the argument presented here takes up a position somewhere between these extremes. I argue that the Court should not be viewed as an imposing and wholly independent institution which is ‘forcing’ (as Volcansek claims of economic integration 1992:109) or has ‘engineered’ (Burley and Mattli 1993:44 on ‘legal integration’) integration. But neither should the role of the Court be minimised. Instead, an image is sketched of the Court as one actor among many in the European policy process. The language of policy analysis, describing policy-making as a process of negotiation and mutual adjustment, is particularly appropriate for analysing European integration. In addition, policy and the policy process in Europe have been subject to continual mutation; thus, an analysis which attributes a rational and synoptic control of integration to a single institution or group is likely to be misleading. Instead, emphasis on the contingencies of the construction of policy ‘problems’ and ‘solutions’ and how they are brought together, and on the influence of ideas and knowledge is more likely to provide a fruitful prospectus for research. The contribution of the Court of Justice to the integration process should be seen in this light. This chapter will be divided into three further sections. In the first of these sections the role of the Court in the process of ‘constitutionalising’ the Treaty of Rome, and also in the general 170

The Court of Justice 171 development of Community law, will be examined. The second section will consider the role of the Court of Justice in the making of substantive Community policy by examining developments in a number of sectors. The final section presents an extended conclusion, and presents an assessment of the contribution of the Court to the European policy process, and an evaluation of the developing field of political science analysis of the Court. THE ‘CONSTITUTIONAL’ ROLE OF THE COURT The ‘constitutionalisation’ of the Treaty of Rome refers to the transformation of Community law from conventional international law, which in principle imposes direct obligations on only states, to a new form of law, much more like the internal law of a state. The ‘constitutionalising’ of the Treaty addressed the main problem of legal policy faced by the Court, that is ensuring the effectiveness of Community law. It has sought to solve, or at least manage, this problem by giving Community law rights directly to individuals, particularly rights of redress against governments which fail to live up to their Community obligations. As a result Community law is much more effectively implemented than conventional international law. Nevertheless it remains true that the Community suffers from an ‘implementation gap’ which is wider than that in most national systems, probably because it still relies to a considerable extent on the good faith of the states to enact Community rules into their national legal systems. The ‘constitutionalisation’ of the Treaty of Rome is usually presented as though decisions of the European Court by themselves transformed the Treaty into the European constitution. In a gloss on Eric Stein’s important argument (Stein 1981), Burley and Mattli partially imported this legal understanding into the political science literature by suggesting that: By their own account, now confirmed by both scholars and politicians, the thirteen judges quietly working in Luxembourg managed to transform the Treaty of Rome…into a constitution. (Burley and Mattli 1993:43–44)

By contrast with most legal analyses, Burley and Mattli emphasise the manner in which other interests were drawn into the process of integration. However, they seem to attribute an overweening influence to the Court, at least in the sphere of what they call ‘legal integration’, which, whatever else it encompasses, certainly includes the ‘constitutionalising’ process. In particular, they describe legal integration as ‘engineered’ by the Court (Burley and Mattli 1993:44). Thus, their account does not emphasise the relational or negotiated character of the development of the European constitution sufficiently. By contrast Weiler (1993; 1994) analyses the relationship between the Court and national governments, courts and the legal profession as one of partnership in ‘a dialogue’ or ‘multilogue’ (Weiler 1993:419), these other actors are the Court’s ‘interlocutors’ (Weiler 1993:418–433). Direct effect The notion that Community law might have a ‘direct effect’ in the legal orders of the member states is not present in the Treaty of Rome, although one form of Community secondary legislation—the Regulation—is ‘directly applicable’. Thus the attribution of direct effects to (certain) provisions of the Treaty of Rome was a piece of judicial activism. ‘Direct effect’ means that individuals can rely on Community laws as such, without a requirement for national implementing legislation. The ECJ

172 Daniel Wincott initially established the principle of direct effect in relation to a limited category of articles of the EEC Treaty, but soon extended it to a wider range of Treaty articles and eventually to many categories of Community secondary legislation, including some Directives. Ultimately the issue of whether a provision of Community law can have direct effect comes down to two issues; whether it is capable of being ruled upon by a court, and whether national courts would be prepared to accept it. Pierre Pescatore, a former judge of the ECJ, has argued that the issue of direct effect: boil[s] down to a question of justiciability. A rule can have direct effect whenever its characteristics are such that it is capable of judicial adjudication, account being taken both of its legal characteristics and of the ascertainment of the facts on which the application of each particular rule has to rely. This means that ‘direct effect’ of Community rules in the last analysis depends less on the intrinsic qualities of the rules concerned than…on the assumption that they [national judges] take these attitudes in a spirit of goodwill and with a constructive mind…. To this extent, direct effect appears to be in a way ‘l’art du possible’. (Pescatore 1983:176–177)

The development of direct effect began with the Van Gend case (26/62 [1963] ECR 1), in which the Court made clear the radical basis of the doctrine. It claimed that the Community represented a ‘new legal order’, and that the ‘States had limited their sovereign rights’ (Case 26/62 Van Gend [1963] ECR 1 at 12) by becoming members of the Community. On this basis and ‘independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage’ (Case 26/62 Van Gend [1963] ECR 1 at 12). Subsequently the ECJ extended the principle of direct effect to apply to positive obligations contained in Treaty provisions as well as the prohibitions, and to cover relationships between individuals as well as those between an individual and the state (i.e. direct effect could be ‘horizontal’ as well as ‘vertical’). Surprisingly, the initial development of the direct effect of Treaty provisions was more or less uncontested by the member states. Despite the fact that some states objected to the idea of direct effect in the proceedings of the Van Gend case, after the Court took its decision, the member states accepted it without further ado, perhaps because the practical impact of this doctrine initially seemed relatively minor. Practically, the application of direct effect to Treaty provisions meant that it would be more difficult for the member states to avoid actually implementing the policies embedded in the framework of the Treaty of Rome, policies to which in principle they were already committed (see Weiler 1993:430, for a discussion of the importance of the low visibility of Court decisions during the early phase of integration). If the attribution of direct effect to Treaty provisions began the transformation of EC law, its extension to some categories of Community secondary legislation fundamentally altered the Community policy process. The extension of the direct effect principle to Directives, the most widely used form of secondary legislation, was particularly important. On the face of it a Directive leaves member states a good deal of discretion concerning the achievement of the general objectives they set out, which might have made it difficult to ensure that member states were implementing them adequately. However, if a Directive could have direct effect then this problem is more or less removed. Even if a member state failed to implement the Directive, or failed to implement it adequately, which could rely on it as law. The Court developed the notion of the direct effect of Directives gradually. Initially, in Grad v. Finanzamt Traunstein (Case 9/70 [1970] ECR 825) the Court argued that a combination of

The Court of Justice 173 several forms of Community legislation (Directives and Decisions) could produce direct effects. In subsequent cases the Court provided further hints that some Directives on their own might be directly effective (see Commission v. Italian Republic Re. Forestry Reproductive Material (Case 79/72 [1973] ECR 667)). Eventually in Van Duyn (Case 41/74 [1974] ECR 1337) the ECJ argued that a Directive, on its own, could produce direct effects. The Court justified this development partly because it would improve the effectiveness of Community law—a political, rather than legal argument. In addition, the Court suggested that it would be incompatible with the binding effect of a Directive to argue that in principle it could not have direct effects. Finally the Court implied that the existence of Article 177, which allows national courts to ask the ECJ to interpret matters of Community law, suggested that a Directive might have direct effect. The justifications provided by the Court for attributing direct effect to Directives in Van Duyn were widely disputed, both academically and by national judiciaries (see Weatherill and Beaumont 1993:296–301; 323–325; Wincott 1995b). In Ratti (Case 148/78 [1979] ECR 1629) the Court provided a stronger argument in favour of the proposition that some directives should be capable of producing direct effects. In particular, the Court suggested that member states should not be able to benefit from their own failure to fulfil their Community obligations. As subsequently became clear (Marshall, Case 152/84 [1986] ECR 723) this argument could only justify the direct effectiveness of directives in cases against the state (vertical direct effect), which left an inconsistency in the application of Community law. This inconsistency resulted in a stream of cases in which the ECJ was confronted with having to attempt to define what the extent of the state might be (see, for example, Weatherill and Beaumont 1993:299–300 for discussion). It may also have led to the Court using Article 5 of the Treaty of Rome creatively, to draw national courts further into the business of applying Community law, as we shall see below (see also Maher 1994). Supremacy The supremacy principle is a logical corollary of direct effect. Which set of rules should govern if a directly effective Community law contradicted provisions of national law? The ECJ presented its resolution to this issue soon after Van Gend, in the Costa case (6/64 [1964] ECR 585). It ruled that in the event of a conflict, national law should give way to Community law. In other words, the Court declared that EC law was supreme over domestic law, despite the fact that the Treaty of Rome did not contain a supremacy clause. The doctrine of supremacy was not received with the equanimity that had been displayed towards the initial statement of direct effect; instead a lengthy negotiation took place between the European Court and national courts, particularly in Italy, Germany and France over the issue of supremacy (see Wincott 1995b for a discussion of this process). One of the most symbolically significant aspects of this negotiation concerned the issue of human rights protection. If Community law is supreme over all national law, it must even take precedence over protection of human rights in national constitutions. Since the Treaty of Rome contained no provisions protecting human rights, a risk existed that supreme Community law might violate constitutionally protected national human rights. To guard against this possibility the German and Italian constitutional courts reserved the right to review Community law against their national human rights standards, which amounted to a limitation to the principle of

174 Daniel Wincott supremacy. In consequence, partly in order to protect the principle of supremacy, and under considerable pressure particularly from the German courts, the ECJ departed from its previous refusal to read human rights into the Treaty; and, in a dramatic example of judicial activism, ‘created’ human rights protection as a fundamental principle of Community law. Ironically, the European Court subsequently turned this difficulty to its advantage and developed a body of case law on human rights, which allowed it to add considerable gravitas and legitimacy to its claim that the Treaty of Rome should be regarded as a constitution. Although it took a considerable time for supremacy to be accepted by the legal systems of all the member states, for practical purposes this principle is now established. Nevertheless, difficulties surrounding the relationship of the EC and national legal orders do emerge periodically. The recent in the ruling of German Constitutional Court, the Bundesverfassungsgericht, on the Maastricht Treaty (Judgment of 12 October 1993 CMLR [1994] 1) in which the German Court expressed a ‘quite flat (and renewed) denial of the absolute supremacy of Community law and its supreme judicial organ’ (Herdegen 1994:239), is a recent and serious example of this sort of difficulty. Community law and national law The relationship between the ECJ and national courts has been based mainly on Article 177 of the Treaty of Rome, although more recently Article 5 has come to play a larger role, as we shall see. Under Article 177 the ECJ interprets Community law for national courts when a national court refers a question of Community law raised in a case with which it is concerned. The judgment in the particular case is left to the national court. Article 5 contains a ‘loyalty clause’ which states that member states must take appropriate measures to ensure the fulfilment of their Treaty obligations. In the 1980s the ECJ began to argue that this provision requires national courts to ensure that legislatures and executives meet their responsibilities under Community law. Article 177 has come to play a central part in the legal life of the Community, probably providing more of the case load of the Court than any other method of access to it. It is also the main way in which individuals have gained access to Community law. The alternative of allowing them to have direct access to the European Court, perhaps by means of Article 173 was ruled out by the Court; it might have increased the burden on the ECJ while at the same time making Community law much less accessible to the general public. Other methods of ensuring that the member states implement Community rules adequately rely on other member states or the Commission taking a particular state to Court (using Article 169 and 170). Although the Commission has prosecuted member states for failing to implement Community laws properly, inevitably the Commission cannot scrutinise the detail of national law in the way that a multiplicity of self-interested domestic actors would. In addition, it is politically difficult for the Commission and the member state to sue one another. Several commentators suggest that Article 177 was included more or less as an after-thought (Burley and Mattli 1993, Weiler 1991), implying that Articles 169 and 170 were indeed the main mechanisms for the enforcement of Community law in the member states. Others argue that the similarity of Article 177 to various national provisions makes it improbable that those who drafted the Treaty failed to understand ‘the immense potential of such provisions’ (Cappelletti 1987:13). It is clear, however, that the Court of Justice was eager to develop the use of Article 177, and used

The Court of Justice 175 judicial and extra-judicial means to do so (Rasmussen 1986). From the late 1960s onwards, the ECJ made every effort to educate national judges in the use of Article 177, including hosting seminars and conferences in Luxembourg. In addition the ECJ aided national courts by reinterpreting inappropriate questions, which were often asked, in such a way as to allow it to make a ruling (Mancini 1989:606). Some analysts argue that, in co-operation with national courts, the ECJ has been ‘able to transform the procedure of Article 177 into a tool whereby private individuals can challenge their national legislation for incompatibility with Community law’ (Mancini 1989:606, see also Hartley 1986), despite the wording of the Article, and the formal refusal of the Court to review national laws under it. In a remarkably candid discussion of the use of Article 177 Federico Mancini, an ECJ Judge, argued that the Court was paying ‘lip service to the language of the Treaty’ but: having clarified the meaning of the relevant Community measure, the Court usually went on to indicate to what extent a certain type of national legislation can be regarded as compatible with that measure. The national judge is thus led hand in hand as far as the door; crossing the threshold is his [sic] job, but now a job no harder than child’s play. (Mancini 1989:606)

During the 1980s the Court began to interpret Article 5 as binding on all the organs of the state, in their internal relations with one another. Thus, national courts were given a duty to ensure that their legislatures and executives meet their Community obligations, increasing the judicial review capacity of national courts, to judge national laws against a Community standard. This development partially resolved the inconsistency left in Community law as a result of Directives having only vertical, not horizontal, direct effect. In the Von Colson (Case 14/83 [1984] ECR 1891) and Marleasing (Case C-106/89 [1989] ECR 1–4135) rulings, the Court argued that national courts should interpret domestic law, whatever its apparent meaning, in a manner consistent with Community law. It seems that national courts should now interpret national law so as to ‘implement’ Community law even if no national legislation exists on the relevant issue (Maher 1994:231). The ECJ developed the use of Article 5 further in the Francovich case (C-6 and 9/90 [1993] CMLR 66), where the ECJ decided that the national court could award damages to an individual against the national government, where loss has been suffered in consequence of non-implementation of a Directive. The Court and the European ‘constitution’ The process of ‘constitutionalising’ the Treaty of Rome is notable for a number of interrelated reasons. These include the incremental strategy of doctrinal development adopted by the Court, the importance attached to ensuring that member states implement Community legislation adequately and the relational character of the ‘constitutionalisation’ process. Although the constitutionalising process has resulted in individuals being given rights directly by Community law, the motivation for these developments seems to have been to bring pressure to bear on the member states by opening them up to prosecution. The ‘constitutionalising’ process has been largely a political negotiation between courts and lawyers. In the area of substantive policymaking, a larger range of interests and groups can be drawn in to the integration process, as we shall see.

176 Daniel Wincott THE COURT IN THE EUROPEAN POLICY PROCESS The Court of Justice has played an important part in substantive policy development in Europe. However, we shall see that to understand its contribution, the Court’s rulings need to be placed in the context of the wider legislative and policy process in the Community, where they do not always have the impact that seems to have been intended by the Court. It can be boldest when its rulings are likely to be supported by some significant social or economic group and is most influential when its rulings feed into the Community legislative process. Free movement of goods The policy of the free movement of goods is central to economic integration in Europe, and an area where the Court might be expected to have had a major influence. However, even the Cassis de Dijon judgment (120/78 [1979] ECR 649), which is famous for launching the internal market programme, is less influential than is often thought. In legal terms the radical interpretation of the internal market occurred in the Dassonville ruling (8/74 [1974] ECR 837) (Alter and Meunier-Aitsahalia 1994; Wincott 1995b; Volcansek 1992 also discusses this case). Dassonville rendered illegal all trading rules which might ‘actually or potentially, directly or indirectly’ impede intra-Community trade. The Cassis decision actually restricted the scope of the basic Dassonville rule, by allowing several justifications for the restriction of trade. The fact that Dassonville is not as well known as Cassis despite the greater legal significance of the earlier case, illustrates the extent to which the context of a ruling dominates its content. Cassis did introduce the principle that alcoholic drinks lawfully marketed in one member state should be allowed to circulate freely throughout the Community. However, the slogan ‘mutual recognition’, which became an emblem of the internal market programme did not appear in Cassis, this expression, which has its origins in the Treaty of Rome, was applied to the free movement of goods in the debates which followed the Cassis ruling. The real significance of the Cassis case is the legislative use which the Commission made of it (Alter and Meunier-Aitsahalia 1994; Wincott 1995a). Alter and Meunier-Aitsahalia (1994) have argued that the Commission went well beyond the meaning of the Court’s judgment in attempting to re-launch the integration process. Moreover, they argue, agreement on the desirability of mutual recognition developed as a result of a process of political mobilisation and bargaining by the Commission, states and interest groups which occurred well after the Court’s Cassis judgment. The free movement of goods policy, as well as being a site of important pro-integration jurisprudence, has also provided evidence of the Court being unable to control its environment and eventually retreating from a radical pro-integration position under pressure which resulted from self-interested litigation by private interests. A striking example of the disruptive influence of strategic litigation on the integration process is the ‘saga’ of Sunday trading (Rawlings 1993). Various UK retailers, particularly those specialising in DIY, attempted to use Community law to provide a basis for trading on Sunday, which was then banned by rather ramshackle legislation in England and Wales. The UK politics of reforming this legislation were complicated because it cut across conventional political cleavages. In the ruling Conservative party the issue pitted free marketeers against proponents of traditional religious and family values. As a result it proved

The Court of Justice 177 difficult to find a consensus in favour of either rolling back the de facto increase in trading on Sunday or a fully liberalised solution. A number of retailers sought to by-pass the national political debate by means of an appeal to Community law on free movement, so the Court of Justice was drawn into the ‘saga’. Specialist legal teams evolved both for the retailers and for the local authorities that prosecuted them. In a judgment which has been described as ‘delphic’ in places (Rawlings 1993:317, referring to the Torfaen case (145/88 [1990] 1 CMLR 337), the Court of Justice showed reluctance to be drawn into the detail of the case, leaving it up to the national court to decide whether the ‘restrictive effect’ of the Sunday trading rules on the free movement of goods exceeded ‘the effects intrinsic to trade rules’ (cited in Rawlings 1993:317). Both sides claimed victory after this decision, the general impact of which was to sow confusion in the English legal system. In end the English legislation was altered, and Sunday trading was (partially) liberalised, as a result of a general political and legal campaign, of which the Eurolitigation was only one part. Indeed, the main ‘use’ of the European litigation for those campaigning for the right to trade on Sunday was to cause chaos in the English law, thereby forcing the government to legislate to clarify the situation. This use of Community law places the European Court in a difficult position. As one commentator has suggested, the ECJ’s part in the Sunday trading ‘saga’ ‘may do great damage to the reputation of Community law inside and among member states’ (Rawlings 1993:335). Moreover, it probably contributed to the Court subsequently seeming to retreat from its very wide ranging Dassonville interpretation of Article 30 on the free movement of goods in the Keck judgment (Cases C-267, C-268/91 not yet reported). Gender equality Article 119 of the Treaty of Rome committed the member states to implement equal pay for women and men by the end of 1962. The historical record shows that this deadline for implementation fell by the way, as did many subsequent ones during the 1960s. Even by the mid 1970s Article 119 was effectively unimplemented. Despite regular pressure from the Commission, the member states were unwilling to tackle the issue (Warner 1984). By the early 1970s, however, a number of influences favourable to the implementation of Article 199 had developed. First, ‘second wave’ feminism gained ground across Europe and second, the political leaders of the member states adopted an attitude more open to the development of European social policy. However, these influences did not create conditions sufficiently favourable for the passage of Community legislation on equality. Although the women’s movement undoubtedly influenced the general climate of opinion in the member states and the Commission, the ‘direct input’ into the European policy process by women was small (Hoskyns 1986:308). The evidence from other aspects of social policy suggests that although a number of pieces of social legislation were passed in the late 1970s, many of the proposals in the Commission’s 1974 Social Action Programme failed to become law. Judgments made by the Court of Justice made a crucial difference in raising the issue of equality on the Community’s legislative agenda, and in putting pressure on the member states to pass proposed legislation. In the ‘Defrenne’ cases it was hinted (in 1970–71) and subsequently confirmed (1975–6) that Article 119 of the Treaty of Rome was directly

178 Daniel Wincott effective. In other words, by 1976, irrespective of existing national legislation any woman (or man) who had been treated unequally in terms of pay could sue her employer. These cases had a strong impact on the legislative agenda by raising the idea that Article 119 could be directly effective, they also altered the terms on which the member states participated in the legislative process. It is worth noting that the Court did not move immediately to declare Article 119 directly effective, never mind to produce an expansive interpretation of what ‘equal pay’ might mean. Instead in the first Defrenne case (Case 80/70 Defrenne [1971] ECR 445) the Court did not consider the question of the direct effect in its judgment, despite the fact that the AdvocateGeneral had raised the issue. Indeed the Advocate-General, argued that Article 119 did have direct effect but it was only in the second Defrenne case (Case 43/75 [1976] ECR 455) that the direct effect of Article 119 was confirmed by the Court. If the gradualism of the Court in relation to the confirmation or attribution of direct effect of Article 119 shows a characteristic, and political, feature of its methods, the second Defrenne case involved one of the most dramatic presentations of the Court’s political face. As a matter of legal principle, if Article 119 was directly effective, its effect should date from the end of 1962, as the Court recognised in its judgment. However, in the face of considerable pressure from national governments, the Court inserted an extraordinary proviso that the judgment would have only prospective effect, except for those individuals who already had cases before a court. These cases again show the importance of having a determined litigant or group of litigants, prepared to return time and time again. Although no doubt buttressed by the general development of the women’s movement, the personal determination of Gabrielle Defrenne and her legal support, played a key role in the Court of Justice being able to develop its position on Article 119. Without a batch of cases on the subject, the influence of the Court would have been much more limited. Subsequently, the legislation passed in the 1970s itself became the subject of expansive interpretation by the Court of Justice. During the 1980s the British Equal Opportunities Commission pursued a strategy of litigation attempting to force an unresponsive national government to develop equal opportunities policies. While this strategy met with some success, it eventually provoked a dramatic political response, which augurs badly for the future influence of the Court. Several member states and a number of major pension companies objected to a potential development of the Court’s case law on equality into the area of pension provision. They managed to get a protocol (known as the Barber protocol) attached to the Maastricht Treaty which amounted to a manipulation of the judicial process by politicians—a clear indication that the Community’s legislators are prepared to restrict the judicial independence of the Court. Merger regulation One of the most dramatic examples of the Court supporting the extension of Community competence has been in competition policy. The Commission has an unusually extensive administrative role in this policy area, which even includes a judicial component. Although on the face of it this might have marginalised the contribution of the Court, in fact it placed special importance on its particular ability to construct a position as legally legitimate.

The Court of Justice 179 As with the provisions of the Treaty of Rome on free movement of goods, the Articles governing competition provide the basis and framework for a policy. Articles 85 and 86 contain the main substantive provisions, and regulate cartels and the abuse of a dominant position respectively, but neither mention merger control. More generally the nature and extent of Community’s competence remained to be spelled out. During the 1960s the Commission was not strongly concerned to develop such a competence, and indeed in 1966 it issued a memorandum specifically ruling out the use of Article 85 to control them. By the early 1970s, the Commission’s general role in the regulation of competition had become fairly well established, and the Commission’s interest in merger regulation began to grow. In 1972, in proceedings against Continental Can, the Commission attempted for the first time to use Article 86 to control a merger. When this case was taken to the Court of Justice on appeal, the Court gave legal sanction to the principle that Article 86 could be used to regulate mergers, although, characteristically, the specific case against Continental Can was dismissed (Case 6/72 [1973] ECR 215). Some nine months after the Court’s ruling in February, the Commission brought forward a proposal for a merger regulation, in October 1973. For a variety of reasons (not the least of which was the necessity for unanimity in competition legislation) this regulation was not passed by the Council of Ministers. Indeed, revised (and watered down) drafts of this regulation were re-presented to the Council during the 1970s and 1980s, all of which failed to become law. Even after Continental Can, Article 86 did not provide a legal framework which forced companies to refer proposed mergers to the Commission. However, in the late 1970s and early 1980s uncertainty about the existing rules and the prospects for legislation meant that the companies began to refer plans for mergers to the Commission (Bishop 1993:300–301). This development, in combination with the emergence of the internal market programme led big business to press for the development of a coherent Community regime for the regulation of mergers. Industry was particularly concerned that a ‘one stop shop’ should be created, so that the parties to a merger did not have to clear the project with a range of national authorities as well as the Commission. In 1987 the Court of Justice strongly increased the pressure for Community legislation on mergers. Its ruling in the Philip Morris case (joined cases 142/84 and 156/84 [1987] ECR 4487) altered the widely held understanding that Article 85 could not be used to regulate mergers. In interpreting this Article in this way the Court was contradicting the mood of the member states as expressed in their refusal to accept drafts of a merger regulation placed before them in 1982 and 1984. Arguably, the Court was able to make this move because of the emerging mood of support for Community-level merger control among industrialists. The Court’s decision in this case strongly increased the concern about the incoherence of merger control in western Europe. The magnification of the existing anxiety among industrialists strengthened their pressure for an EC regulation. In addition, this decision eroded the power (or sovereignty) of the member states, and weakened their will to resist Community level legislation. Indeed, after the Philip Morris case, arguably the member states could actually regain some ability to limit the development of the Community merger control regime by agreeing legislation. In this context it is worth noting that the substance of the regulation was further watered down between 1987 and 1989, when the Merger Control Regulation (Regulation 4064/89) was passed.

180 Daniel Wincott The Court and substantive policy The Court’s role in the making of substantive policy is often overstated. Certainly, the Court’s ability unilaterally to make policy is almost non-existent. However, the Court can have a significant impact on policy, usually by influencing the legislative process (either at the Community or national levels). It can do this, for example, by issuing judgments which unsettle established practices and understandings (Dassonville and Cassis) and alter the balance of forces in a legislative process (Philip Morris). The Court is best able to make an expansive ruling when it can rely on some significant social or economic interest to support and legitimate its judgment, especially when a loose alignment of forces can come together to overcome the objections of particular member states. However, we have also seen that the use of Community law by private interests does not always produce results favourable for integration. As Community law continues to mature we can expect an ever wider range of interests to become aware of its potential, and to use Community law in ways which do not suit the ECJ. CONCLUSION: THE PLACE AND POWER OF THE COURT IN THE EUROPEAN COMMUNITY The analysis presented here suggests that the Court of Justice does not have the capacity to force or engineer the process of integration in Europe. Nevertheless, the Court has made a substantial contribution to the integration process both through its role in developing Community law and in particular policy sectors. The influence of the Court has been attributed to a number of factors, including the cleverness and political acumen of the judges, the normative power of the ‘formalism’ of the law (Weiler 1993; 1994) and the lack of attention paid to the Court during the early stages of the integration process (Stein 1981; Weiler 1994). The ability of the Court to engage the material interests of various groups is of particular interest; Burley and Mattli (1993) have developed a legal neo-functionalist theory according to which the material interests of individuals in general, and national judiciaries and academic and practising lawyers were engaged by the Court to further the process of ‘legal integration’ in Europe. Mancini, an ECJ judge of the 1980s and 1990s, attributed the success of the Court to its judges, or what he called ‘the cleverness of my predecessors’: If what makes a judge ‘good’ is his [sic] awareness of the constraints on judicial decision-making and the knowledge that rulings must be convincing in order to evoke obedience, the Luxembourg judges of the 1960s and the 1970s were obviously very good. (Mancini 1989:605)

However, this argument tends to downplay the extent of difficulty the ECJ found in persuading national judges to ‘obey’ them. Also, it directs attention away from the unconvincing character of crucial doctrinal developments, such as the attribution of direct effects to Directives. If the pure persuasive force of the arguments of ECJ judges cannot wholly explain their influence on the integration process, the normative power of the legal form, what Weiler has called ‘the pull of formalism’ (Weiler 1993:423–424, 427), may have contributed to the states’ acceptance of the Court’s jurisprudence. Perhaps the ‘cleverness’ of judges had been

The Court of Justice 181 in their ability to take up frankly political positions, while broadly retaining credibility as a legal, that is an apolitical, institution (Burley and Mattli 1993; Weiler 1993; 1994). However, the ability to retain legal credibility may have been mainly a result of factors beyond the control of the Court. The recent growth of controversy around its role certainly seems to owe more to changes in its environment, rather than any radicalisation of the Court (Weiler 1993; Wincott 1994). The ‘legal’ character of its rulings explains the Court’s ideological influence. A number of scholars have argued that the Court has contributed crucial ‘ideas’ to the integration process (Alter and Meunier Aitsahalia 1994; Garrett and Weingast 1993; Gerber 1994); some of these analyses present these ideas as discrete inputs into the European policy process. However sometimes ideas which seem to originate with the Court turn out to have been thought up elsewhere (Wincott 1995b; Gerber 1994); moreover, it is very difficult, and often fruitless, to discover the origin of a particular ‘idea’. Understanding the general structure of knowledge in the Community is more likely to produce useful insights. The construction of ideas as expert legal knowledge by the ECJ is an important characteristic of the Community. National judiciaries may have been drawn into the integration process as a result of Community law offering them an opportunity to engage in increased judicial review of national legislation (Burley and Mattli 1993). Weiler has argued that: [i]nstitutionally, for courts at all levels in all Member States, the constitutional architecture with the ECJ signature meant an overall strengthening of the judicial branch vis a vis the other branches of government. (Weiler 1993:425)

On the other hand, some courts, and perhaps particularly higher courts, clearly feel that their national prerogatives are threatened by the ECJ, as the reaction of the German Constitutional Court to the Maastricht Treaty illustrates. Whatever the explanation it is certainly true that the engagement of national courts in the Community project was crucial. By being presented to the people and governments of Europe partly through the medium of their own courts, Community law benefited from the legitimacy and coercive capacities of the national legal systems. As far as the engagement of private interests in Community law is concerned, we have seen the Court making expansive judgments in relation to the direct effect of Article 119 or the use of Article 85 to regulate mergers where a significant portion of the relevant population seems likely to support the new development. Indeed, in both these policies there is evidence of the Court making the new development gradually, perhaps to test out the level of support it would be likely to receive, and, particularly in the case of merger regulation, perhaps actually to contribute to the generation of support for its position by gradually strengthening the capacity of the Community to regulate mergers. However, we have also seen evidence, in the ‘saga’ of Sunday trading, of private interests using Community law in ways which seem to compromise the integration process rather than support it. This evidence suggests that European law has not been the ‘domain’ of an automatic process of neo-functional integration, nor has the European Court been in a position to control, or engineer, the uses made of Community law by private interests. To the extent that Community law may be used to disintegrative effect, ‘why was it not used in this way earlier?’ and ‘under what conditions and when is the integration process likely either to be supported or undermined by private interest litigation?’ become crucial questions for future research.

182 Daniel Wincott The incremental character of the Court’s approach to the development of both legal doctrines and Community policies has been strongly emphasised by the analysis here. One legal analyst, aware of the constraints on the Court, characterised its style thus: A common tactic is to introduce a new doctrine gradually: in the first case that comes before it, the Court will establish the doctrine as a general principle but suggest that it is subject to various qualifications; the Court may even find some reason why it should not be applied to the particular facts of the case. The principle, however, is established. If there are not too many protests, it will be reaffirmed in later cases; the qualifications can then be whittled away and the full extent of the doctrine revealed. (Hartley 1988:546, emphasis added)

This gives a nice flavour of the tactics of the Court, although it may attribute too much foresight to it. Hartley implies that the Court had the doctrine fully worked out initially, and subsequently implemented it gradually. On some occasions the Court may plan out the gradual introduction of a new doctrine, but on others the development of the Court’s jurisprudence probably owes more to serendipity or ‘learning by doing’ than conscious planning. The role of the Advocate-General has been of particular importance for this sort of development. He is an officer of the Court whose job is to consider the legal arguments made in a case, and perhaps to come to a provisional conclusion on it, but whose ‘opinion’ does not have a legally binding character. Advocates-General have often been able to ‘sound out’ new ideas without risking the good name of the Court as a whole. The question of why it adopts an incremental approach goes to the heart of the nature of the Court. The explanation mainly lies with issues of legitimacy and power. The legitimacy of the Court making a constitutive contribution to the development of specific policy areas or the general legal character of a polity is questionable. The issue of legitimacy is particularly important in the context of the European integration, because the Community as a whole, including its law, is deficient in one of the defining characteristics of a state—the power of coercion. In consequence the Court has had to persuade the individuals, states, and Community institutions which make up the EC to obey its rulings, rather than being able to force them to do so. This may also help us to understand why the Court seems to have adopted an incremental approach, whether it was gradually implementing an internally predefined doctrine or taking advantage of opportunities produced by developments unfolding in its wider environment (some of which might partially be a product of its own activity). The absence or weakness of coercive power in the Community also sheds some light on the peculiar character of the implementation of Community legislation. Recently, analysts of the European policy process have turned their attention to problems of implementation, which are generally regarded as severe, even judged by the reality of national standards rather than the traditionally assumed ideal of faultless translation of policy into practice. The development of the legal structure of the Community has been largely an attempt to improve the effectiveness of Community law, and by comparison with international organisations, Community implementation is remarkably effective. However, the Community remains profoundly dependent on the member states, in the form of national governments and judiciaries, which leads to wide variation in implementation. Although the Community has begun to address these issues, as shown by the new power given by the Maastricht Treaty to impose fines on those who fail adequately to implement Community legislation, this power is unlikely fully to overcome the difficulty with implementation, which has something of a genetic character in the Community.

The Court of Justice 183 Overall, the Court of Justice has made contributions in two main areas of European integration. First, it has played a leading role in the development of the Community’s law. For all its faults, this law is the main feature which distinguishes the Community from conventional international organisations. Perhaps the most significant aspect of this contribution is the fact that it dramatically increases the likelihood that laws passed by the Community will be implemented at national level. The development of the Community’s legal system, and particularly the doctrines of direct effect and supremacy also increased the capacity of the Court to influence substantive policy-making in Europe. In general, however, it would be misleading to attribute the development of substantive policies wholly to the Court. In fact, it has been most effective when its rulings have altered the balance of power in the policy-making process so as to facilitate the passage of legislation which might otherwise have failed to become law. The interaction of the Court with other institutions (Wincott 1995a) and interests in the development of Community law and in the policy process is a crucial characteristic of European integration. REFERENCES Alter, K. and Meunier-Aitsahalia, S. (1994) ‘Judicial Politics in the European Community: European Integration and the Pathbreaking Cassis de Dijon Decision’ Comparative Political Studies 26 (4). Barnard, C (forthcoming) ‘A European Litigation strategy: the Case of the EOC’ in More, G. and Shaw, J. (eds) The New Legal Dynamics of European Union Oxford: Oxford University Press. Bishop, M. (1993) ‘European or National? The Community’s New Merger Regulation’ in Bishop, M. and Kay, J. (eds) European Mergers and Merger Policy Oxford: Oxford University Press. Bulmer, S. (1994) ‘Institutions and Policy Change in the European Communities: The Case of Merger Control’ Public Administration 72 (3). Burley, A-M. and Mattli, W. (1993) ‘Europe before the Court: A Political Theory of Legal Integration’ International Organization 47 (1). Cappelletti, M. (1987) ‘Is the European Court of Justice “Running Wild”’ European Law Review 12 (1), pp. 3–17. Garrett, G. (1992) ‘International Cooperation and Institutional Choice: The European Community’s Internal Market’ International Organization 46 (2). Garrett, G. and Weingast, B. (1993) ‘Ideas, Interests and Institutions: Constructing the EC’s Internal Market’ in Goldstein, J. and Keohane, R. (eds) Ideas and Foreign Policy Ithaca, New York: Cornell University Press. Gerber, D. (1994) ‘The Transformation of European Community Competition Law?’ Harvard International Law Journal 35 (1). Hartley, T. (1986) ‘Federalism, Courts and Legal Systems: The Emerging Constitution of the European Community’ American Journal of Comparative Law 34. Hartley, T. (1988) The Foundations of European Community Law Oxford: Clarendon Press. Herdegen, M. (1994) ‘Maastricht and the German Constitutional Court: Constitutional Restraints for an “Ever Closer Union”’ Common Market Law Review 31. Hoskyns, C. (1986) ‘Women, European Law and Transnational Politics’ International Journal of the Sociology of Law 14. Hoskyns, C. (1994) ‘Gender Issues in International Relations: The Case of the European Community’ Review of International Studies 20. Maher, I. (1994) ‘National Courts and European Community Courts Legal Studies 14 (2). Mancini, G. (1989) ‘The Making of a Constitution for Europe’ Common Market Law Review 26. Mazey, S. (1988) ‘European Community Action on Behalf of Women: The Limits of Legislation’ Journal of Common Market Studies 27 (1). Pescatore, P. (1983) ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law’ European Law Review 8. Rasmussen, H. (1986) On Law and Policy in the European Court of Justice Dordrecht: Martinus Nijhoff.

184 Daniel Wincott Rawlings, R. (1993) ‘The Europlaw Game: Some Deductions from a Saga’ Journal of Law and Society 20 (3). Shapiro, M. (1980) ‘Comparative Law and Comparative Politics’ Southern California Law Review 53. Stein, E. (1981) ‘Lawyers, Judges and the making of a Transnational Constitution’ American Journal of International Law 75 (1). Volcansek, M. (1992) ‘The European Court of Justice: Supranational Policy-Making’ West European Politics 15 (3). Warner, H. (1984) ‘EC Social Policy in Practice: Community Action on behalf of Women and its Impact in the Member States’ Journal of Common Market Studies 23 (2). Weatherill, S and Beaumont, P. (1993) EC Law London: Penguin. Weiler, J. (1991) ‘The Transformation of Europe’ Yale Law Journal 100 (8): pp. 2405–2483. Weiler, J. (1993) ‘Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration’ Journal of Common Market Studies (31) 4. Weiler, J. (1994) ‘A Quiet Revolution: The European Court of Justice and its Interlocutors’ Comparative Political Studies 26 (4). Wincott, D. (1994) ‘Is the Treaty of Maastricht an adequate “Constitution” for the European Union?’ Public Administration 72 (4). Wincott, D. (1995a) ‘Institutional Interaction and European Integration: Towards an “everyday” critique of Liberal Intergovernmentalism’ Journal of Common Market Studies 33 (4):597–609. Wincott, D. (1995b) ‘The Role of Law or the Rule of the Court of Justice? Judicial Politics in the European Community’ Journal of European Public Policy 2 (4): pp. 583–602.

Part 3 Channels of representation

10 European elections and the European voter Mark Franklin

Elections in a democracy are supposed to perform the functions of holding governments accountable and representing voters’ interests, thus legitimising the exercise of power. Elections to the European Parliament fail to perform these functions. Since the Treaty of Union came into force in November 1993, the European Parliament has had a role to play in selecting the President of the European Commission, nevertheless European elections do not set in motion a process of government formation in the same way as do national elections in the member states. Moreover, policies proposed by parties and candidates in European elections rarely have much European content, instead they relate to the national political arena and are generally specific to particular countries. Parties use these elections as opportunities to test their standing with the public in terms of their domestic political agendas. But national governments do not stand or fall by European election results either, so the choices of voters have no immediately obvious repercussions on policy at either level. In the circumstances it is perhaps not surprising that many citizens of the EU fail to take these elections seriously, and turnout is generally low—often even lower than at regional and local elections which everywhere are less important than national elections. The low levels of public participation in European elections in turn raises questions in some minds about the legitimacy of the EU. But the fact that European elections have no consequences for government formation at the national or European levels, and no discernible effect on the conduct of European affairs, does not mean that they have no effects at all. Indeed the very failure of European elections to legitimatise the exercise of European power has consequences for the future of the EU, and European elections also have many consequences—most of them unanticipated and many of them unfortunate—for the politics of member states. They also determine the composition of the European Parliament (even if voters do not focus on this aspect of their votes) which in turn can have implications for policy-making, especially with the new co-decision-making powers of the European Parliament following the Treaty of Union. In this chapter we will not concern ourselves with the consequences of European elections for policy since this would require a focus on EU policy-making rather than on EU elections. Instead we will describe some of the effects that European elections have had on the politics of member states, and evaluate their role in creating a ‘crisis of legitimacy’ for the European union. But first we need to describe the nature of these elections.

187

188 Mark Franklin THE EUROPEAN ELECTORAL PROCESS Elections to the European Parliament were first conducted within the existing nine members of the European Economic Community, as it was then termed, in June 1979, and were repeated in June of every fifth year thereafter. Greece held its first European elections in 1981, adding its representatives to the Parliament in 1979; and Portugal and Spain did the same in 1987, adding their representatives to the Parliament of 1984–1989. By 1994, therefore, ten countries had participated in four European elections and two additional countries had participated in three—forty-six elections altogether—quite enough for us to be able to grasp the process involved in the different countries and to reach some fairly firm conclusions about consequences. While we can speak broadly of Europe-wide elections, there are significant variations in the way in which these elections are conducted in member states. Most strikingly, they are not all conducted on the same day. Some European countries traditionally go to the polls on Sundays while others have favoured mid-week voting. So European elections have been held on a Thursday in Denmark, Britain, Ireland, the Netherlands, Northern Ireland and Spain, but on the following Sunday elsewhere. Although this difference in timing has potentially important consequences (similar to the consequences of polls closing in California after outcomes have been announced in New York), in fact it matters little because the contests vary so much in different countries that the outcome in one country can hold little interest for those voting anywhere else. Another difference between countries is the electoral system employed. Except in the British Isles, list-system proportional representation is universal, but in England, Scotland and Wales plurality voting is used (first past the post, with singlemember districts); while in Ireland and Northern Ireland a single transferable vote system is employed, similar to that used in Ireland in national elections (Northern Ireland uses the British system for national elections). Again these differences would have potential consequences for the nature of the representational process in the EU if European elections contributed to any such process. As it is, far more important than these differences are the contrasts between the systems employed in any one country for European elections and national elections. As already mentioned, Northern Ireland has a quite different electoral system for European than for national elections. In other countries the system may be superficially similar in both types of election, but there are always differences in practice—sometimes quite subtle ones. Except in the Netherlands, which has only a single constituency for national elections, the number of constituencies into which the electorate is divided is always fewer in European elections (seventy-eight in Britain, five in Italy, four in Ireland, two in Belgium, and one each in Denmark, France, Greece, Luxembourg, Portugal and Spain). In Germany the two-vote system used for national elections is changed in European elections to a single vote system, with the same single constituency as is used for second votes in national elections. Fewer constituencies makes it easier for a party to run candidates throughout the country, and this benefits smaller parties. On the other hand, except in Germany (which enforces the same 5 per cent threshold in European as in national elections) the number of votes required to get any candidate elected is always greater in European elections (much greater in the Netherlands), which has the contrary effect—disadvantaging small parties. To the extent that small parties are advantaged or disadvantaged in European elections this can have important consequences for national

European elections 189 politics if European elections themselves are taken as indicators of strength in the national political arena. Although the European Parliament contains party ‘groups’ that sit together and co-operate in legislative matters, these groups are hardly relevant to the electoral process. In some countries the European Parliamentary group affiliation is mentioned on campaign literature (in Ireland, for example, Fine Gael campaigns as part of the social democratic People’s Party of Europe) but this does not appear to be salient to voters. Transnational party activity was probably most extensive at the first elections in 1979, when EC funds were available for such activities, but voters appear to have paid little attention even then. There was little perception of the result of the election in transnational terms. Blumler and Fox, in their study of the 1979 European elections (1982) revealed that about 50 per cent of voters admitted they had no idea which party grouping had been most successful in Europe as a whole, and that even among voters who claimed to have some idea there was considerable diversity of opinion (cf. Marsh and Franklin 1995). Only in Denmark are there parties that campaign specifically on European issues (one is against Danish membership in the EU and the other is against any further moves towards closer union), and European elections in Denmark do have a distinctively European flavour (Worre 1993; 1995); but this simply emphasises the lack of European flavour to these elections elsewhere. In other countries it is rare for a European issue to intrude on a European election campaign, although Franklin and Curtice (1995) have shown that in 1989 attitudes to the Social Charter had measurable consequences for the outcome of the election in Britain. Possibly the manner in which this occurred (Franklin and Curtice argue that the issue was ‘domesticated’ in terms of national political discourse) might serve as a model for the way in which European issues may in time come to have more impact in other countries; but to the extent that this happens, the consequences of European elections for domestic politics will become even more unpredictable than they are at present, as discussed further in this chapter. European elections and the national political arena The apparent lack of any distinctively European character to European elections led commentators to focus initially on the manner in which these elections reflect national political processes. Reif and Schmitt (1980) coined the term ‘second-order national election’ to stress the similarity between European elections and local and regional elections where voting patterns also tend to reflect national political trends (see also Reif 1984; 1985). The most important characteristic of second-order national elections is that there is less at stake than in first-order elections. This is why turnout is expected to be lower. It is also why European election outcomes are expected to reflect the balance of political forces in the national political arena. But this early focus on the way in which European elections reflect national political forces left a great deal unexplained. In particular, while turnout in European elections was everywhere lower than in national elections, there were also major differences between turnout in successive European elections held in the same country. Moreover, the connection between support for government parties in European and national elections is closer when European elections are compared to subsequent national elections than when they are compared to previous national elections (Marsh 1994; Marsh and Franklin 1995),

190 Mark Franklin suggesting that any causal connection might actually run the opposite way to that initially supposed. Partly because of these findings, recent research has started to focus on how European elections affect the national political arena in member countries of the EU. Most importantly, the very fact that these elections can be used as ‘markers’ for the standing of national parties in the national political arena gives them an importance as catalysts of change in that arena. It is conventional wisdom that European electoral success played a role in the rise of the Front National in France and was important to the early success of the German Greens. Reif (1984) notes that government coalitions may be strained by adverse results, and gives illustrations. However, the nature of these effects and their importance depends on when they occur in the national electoral cycle (van der Eijk, Oppenhuis and Franklin 1994; Oppenhuis, van der Eijk and Franklin 1995). Since European elections are held at the same time in all participating countries but national elections are not, it follows that there will be a lack of synchronisation between the two types of election, both nationally and internationally. Sometimes the European elections will occur shortly after a national election, sometimes only after the elapse of a number of months or years, and sometimes they will occur in the shadow of national elections that are known (or felt) to be imminent. Evidently the value of European elections as markers for what would happen in a national election held at the same time as (or instead of) the European election will depend on how recently a national election has been held. If a national election was recent, then the value of a European election outcome as a marker will be minimal: a better marker already exists in the shape of the recent national result. On the other hand, if some considerable time has elapsed since the most recent national election (and especially if another national election is imminent) then the importance of European elections as markers is evidently much greater. We will see that the position in the electoral cycle at which a European election occurs matters for the choices made by voters and for the consequences of the election for national politics. Only in Denmark can European elections not be employed as markers for the standing of national parties. This is because the two Euro-sceptical parties in that country compete only in European elections. Because they receive a significant share of the vote, which is taken from other parties in proportions that are hard to compute with any accuracy, these elections do not have an outcome that is readily interpreted in national terms. Politicians and commentators in Denmark cannot easily tell what would have been the outcome of a national election held at the same time as (or instead of) the European election, and so Danish domestic politics are insulated from the consequences of European elections as nowhere else in the EU. European elections and the study of voting behaviour Because European elections have no apparent European content (except in Denmark) and no consequences for policy-making in the European arena that are discernible to voters, the political behaviour displayed at European elections is the behaviour of individuals in relation to their national political arenas; but because national political power is not at issue in these elections, these national electoral processes are uncontaminated (except in a few important instances) by the intrusion of political concerns that might dominate particular national elections. Consequently, European elections present themselves as

European elections 191 unique laboratories for a truly comparative study of why people vote and why they vote the way they do. The most important feature of this laboratory is that it permits us to measure the effects of contextual variables that are necessarily invariant in any particular national election. These contextual variables include the nature of the electoral system, whether compulsory voting is in effect, the timing of elections (Sunday or weekday), and other institutional factors that are different in different countries of the EU. They also include social and political factors that not only vary as between countries but can also change (perhaps slowly) over time even within individual countries. Such factors include educational level (the most widely validated influence determining the likelihood that individuals will vote), extent of unionisation (generally supposed to promote voting by social groups that would otherwise have low participation, see Verba, Nie and Kim 1979; Parry, Moiser and Day 1990), and the strength of linkages between social groups and political parties (class or cleavage voting, see Powell 1980; 1986). They also include the number of parties (one indicator of the adequacy of choices available), their distribution in terms of size (and hence their likelihood of wielding government power), and the extent to which citizens appear satisfied with the choices on offer (cf. Sartori 1994). Even more importantly, European elections, by falling at different times in the national political calendar, differ in their importance to voters for reasons explained above. Over and above these contextual differences is one additional way in which European elections differ from each other: some of them occur concurrently with national elections. Our ability to treat this circumstance as a contextual variable along with other contextual variables permits us to validate our assumption that voters do not behave differently in European elections than they would in national elections that were otherwise identical. The characteristics outlined above are quite numerous, but if we distinguish Northern Ireland from Great Britain (as we must because of the different electoral system used in Northern Ireland), we have fifty elections conducted in different countries since 1979 that differ in terms of these variables—more elections than variables by a considerable margin, especially as it turns out that several of the listed factors have no influence on the outcomes of European elections. To the extent that these factors account for the different outcomes we observe, we will know that these outcomes are not the result of idiosyncratic peculiarities of individual countries but are simply the consequence of the political, social, and institutional setting within which the elections are conducted. Indeed, it turns out that the outcomes of European elections can very largely be explained in such terms. Turnout variations One of the most evident differences between European and national elections has always been the low turnout recorded in European elections. Many commentators have suggested that low turnout should be considered to indicate a lack of legitimacy of the EC/EU, since citizens appear by their failure to vote to be withholding their support for European institutions. Table 10.1 shows that Britain and Denmark, the two most Euro-sceptical members of the EU, also have generally shown the lowest turnout in European elections. Indeed, two early studies of individual-level voting choice found a connection between attitudes to Europe and propensity to vote (Inglehart and Rabier 1989; Blunder and Fox 1982). More recent studies, however, have found this relationship to be spurious (Niedemeier 1990;

192 Mark Franklin Table 10.1 Turnout (%) in European elections by country, 1979–94

(a) Greece’s first election was held in 1981. Because it is generally recognised that turnout in Greece is underestimated, 13 per cent was added to each of the figures for turnout in that country on the basis of conducted in van der Eijk and Franklin (1995). (b) The first election for Portugal and Spain was held in 1987. Source: Franklin, van der Eijk and Oppenhuis (1995)

analysis

Schmitt and Mannheimer 1992; Marsh and Franklin 1995)—the result of failing to control for other variables—and Table 10.1 does show that turnout in the by no means Euro-sceptical Netherlands has averaged even less than in Denmark. If individual-level analyses fail to find effects on turnout from attitudes to Europe, then presumably we should also seek explanations for the low aggregate level of turnout in Denmark and Britain among the contextual features of European elections listed earlier. One additional contextual feature that we have not yet mentioned is very apparent in Table 10.1: the first European election ever held in each country (in 1981 in Greece, in 1987 in Portugal and Spain, and in 1979 elsewhere) saw generally higher levels of turnout than at later elections. Evidently the inauguration of European elections was often able to generate a level of interest that soon declined. When countries are coded on the basis of contextual features, and these features are used to try to explain the variance in turnout from country to country, one important variable is the period of time until the next national election which, at the time of writing, is unknown for the 1994–1999 Parliament except in the cases of Belgium, Denmark, France, Germany and Luxembourg. These are countries in which subsequent national elections have already been held or at least announced. For other countries participating in the 1994 European elections we have estimated the time to their next national elections on the basis of the average from past electoral cycles. Among these cases, our ability to explain the large variations in turnout shown in Table 10.1 is impressive. Table 10.2 reports the effects on turnout of those variables whose effects prove significant in multivariate perspective. Taken together, five variables explain some 87 per cent of the variance corresponding to country differences, and come within 5 per cent of accounting for most of the

European elections 193 Table 10.2 Effects on turnout of contextual factors

Source: Original analysis of data on Table 10.1 and from van der Eijk, Franklin, et al.

fifty values of turnout recorded in these elections. Only Britain shows turnout that is always below what would have been expected on the basis of its characteristics (but only by an average of 8 per cent). At the other end of the scale, a much more egregious exception is Spain, whose turnout has averaged 12 per cent more than expected over the course of the three European elections conducted there. No other country’s turnout diverges significantly (at the 0.05 level) from what would be predicted on the basis of characteristics listed in Table 10.2. So the large variations in turnout that we saw in Table 10.1 can be largely explained by the divergent contexts within which European elections occur, and there is no evidence that low turnout corresponds to lack of support for the European project (for a more detailed assessment of the sources of turnout variation see Franklin, van der Eijk and Oppenhuis 1995a, b). Results of European elections The outcomes of European elections in terms of party choice differ much less from what would have occurred in concurrent national elections than does turnout. Nevertheless, some parties do gain and some parties do lose compared to what would have occurred had the elections been general elections—often by as much as 6 per cent of total votes. These gains and losses occur for two reasons. Some parties gain (lose) from the fact that they are more (less) successful in getting their normal supporters to the polls. The low turnout in European elections helps (hurts) them more than it does other parties. Other parties gain (lose) because they are supported (abandoned) in European elections by voters who in national elections would have voted differently. For some parties these two processes cancel out, leaving them with about the same level of support that they would have enjoyed in national elections; for others the two processes reinforce each other, leading to quite dramatic divergences from national election outcomes. However, by far the greater of the two effects is the effect of people voting differently which is generally more than twice as great as the turnout effect, and can involve more than 40 per cent of those voting (in France and Denmark in 1994), as shown in Table 10.3. Note, however, that this total amount of what has been called ‘quasiswitching’ (van der Eijk, Franklin et al. 1996) involves a great many contradictory movements that cancel out in aggregate, leaving net effects of much lower magnitude; seldom above 6 per cent, as already mentioned. The consequence of this inconsistency on the part of voters is very different for different parties. To a large party, the loss of 6 per cent may be chastening but not disastrous. To a small

194 Mark Franklin Table 10.3 Those voting differently than they would have voted in national elections, as a percentage of those voting in the European elections, 1989–94

Source: Original analysis of data from the European Election Studies of 1989 and 1994 (van der Eijk, Franklin, et al. 1995).

party, the loss of 6 per cent could amount to decimation. Thus in 1989 the British Conservatives lost about 3 per cent compared to what they would have expected to get in a general election, while the Liberal Democrats lost some 4 per cent. But while to the Conservatives this was just a rather poor showing, to the Liberal Democrats it amounted to a virtual halving of the vote they would have received had the election been a general election (Franklin and Curtice 1995). Meanwhile, the British Green Party benefited by 6.6 per cent, virtually doubling the vote it would have received in a national election. The example of the British Liberal Democrats notwithstanding, most losses in European elections are suffered by large parties and most gains are enjoyed by small parties. This appears not to be because of the desire of voters to punish government parties (opposition parties also lose if they are large) but purely a result of the fact that political power is not at stake in European elections. It turns out that an important influence on voting choice is party size: other things being equal, voters prefer to support a party that has a better chance of putting its policies into practice. Evidently this question is not at issue in a European election, and so large parties fail to get the bonus that they would have been accorded in a national election (van der Eijk, Franklin and Oppenhuis 1994; 1995)—a bonus that appears to be worth about 5 per cent of the vote to a party that enjoys the support of 40–50 per cent of the electorate. But while small parties gain in European elections compared to their performance in national elections, such gains are not apportioned evenly among small parties. Moreover, which particular small parties gain depends very largely on the location of the European elections in the domestic electoral cycle. Just as in the case of turnout, people behave differently when a national election is imminent than when one has recently occurred. The critical difference appears to be the attention paid to the outcome by politicians and commentators. We have indicated that in the immediate aftermath of a national election a European election outcome is of no great interest; a better marker of the standing of parties in the

European elections 195 national arena already exists. These are also the elections in which the largest transfer of votes from large to small parties takes place, and the small parties that benefit are on the whole moderate parties of the centre. It is as though, freed from concerns about governing the country, voters in such elections could ‘vote with the heart’ indicating that these are the elections in which voting is apparently most sincere, in contrast to national elections themselves, when voters ‘vote with the head’, taking into account the strategic situation in which large parties are more likely to get their policies enacted. As the national electoral cycle advances, however, and the next national election comes closer, two things happen to affect the behaviour of voters should a European election take place. The first is that the marker set by the previous national election has become obsolete, so that party leaders and commentators look to the European election as a relevant measure of the standing of parties. The second is that, with the approach of a national election, party leaders are motivated to take account of any messages they receive from the electorate in order to improve their chances when the national election comes. This is the circumstance in which protest voting appears most prevalent, since this is when extreme parties do best. Clearly voters do not suppose that their votes will cause such parties to gain office; but they evidently hope that the parties they normally support will take note of the protest and adapt their policies accordingly. Borrowing a phrase from the lexicon of British football hooligans we have called this behavior ‘voting with the boot’ (van der Eijk, Franklin and Oppenhuis 1994; Oppenhuis, van der Eijk and Franklin 1995). Votes for far-right parties in France and Germany in 1989 should be seen in this light, as should votes for Green parties in several countries. The striking thing about these findings, both those relating to turnout and those relating to party choice, is the apparent sophistication of the voting act. In the immediate shadow of a forthcoming national election up to 10 per cent more people will take the opportunity to give their parties a piece of their mind than in the immediate aftermath of a national election; and the message that is sent in such circumstances is quite different from the message sent at a national election or in the immediate aftermath of one. At the individual level, the evidence of rationality is even greater (van der Eijk, Franklin et al. 1996). CONSEQUENCES FOR NATIONAL POLITICS The consequences of European elections for national politics are of three kinds. In the first place national parties may be led to take various actions as a result of extrapolating the outcome to a national election situation. Sometimes a government party may be induced to call an early national election, as in Spain in 1989, to capitalise on the popularity they see themselves enjoying (del Castillo 1995). Sometimes such a party may be led to adapt its policies, as in Germany in the same year (when a much harsher policy towards eastern European migration was briefly adopted) in order to defuse the apparent appeal of an extreme party (Schmitt 1995). These reactions may turn out well or ill, depending on how accurately the European election outcome reflected the true situation in the national political arena; but there will always be a tendency for miscalculations to occur exactly in proportion to the extent of the interest taken in the European election outcome: to the extent that party leaders and commentators take notice, voters behave differently than they would have done had national power been truly at stake (which is different again from how they would have behaved had no-one been paying attention).

196 Mark Franklin This mismatch between the use and accuracy of the indicator might appear perverse, but it is a natural result of the different objectives and perceptions of voters and politicians. Because real national power is not at stake, voters expect no repercussions from voting one way rather than another; so when politicians indicate that they are paying attention to the outcome, voters suddenly find themselves in an unaccustomed position of power. They can send a message of displeasure without the risk of electing a party that is untried or dangerous. The analogy to a small child, normally disregarded but suddenly in the public eye, is very evident. Such a child suddenly finds adults paying attention, but his or her parents too are in the public eye, which limits the extent of punishment that can be expected. Such a child has an incentive to behave badly, and often does. The second type of consequence is more insidious. European election outcomes differ from the outcomes that would occur in national elections for more reasons than mere perversity on the part of voters. Small parties are often advantaged for technical reasons as well, having to do with differences in the electoral system under which European elections are held. For both these reasons a party system can progressively break down under the impact of successive European elections, as appears to be happening in France (Cayrol and Ysmal 1995) and perhaps also in Germany (Schmitt 1995). The third type of consequence results more directly from the fact that European elections are not employed as opportunities to put forward or oppose policies related to the European arena. Keeping such policies off the national agenda seems to be a preoccupation of national political parties, for reasons too complex to be discussed here (see Franklin, van der Eijk and Marsh 1995). Occasionally, however, such issues break through to become salient in national terms. When this happens, the results can be quite devastating for individual parties or leaders (as in the case of Mrs Thatcher following the European elections of 1989). European elections would be the proper venue for such matters to be discussed, if only they could be fought by different parties than those that fight national elections; but this only happens in one country: Denmark. In that country national politics are insulated from the effects of European elections. European elections cannot be used as markers even while they can be used to give an airing to real European issues, precisely because they are not fought by the same parties as fight national elections. Elsewhere, European elections constitute something of a sword of Damocles that national parties hang over their heads, apparently unknowingly, because of the potential that European issues have for splitting national parties into pro- and anti-European factions (Franklin, van der Eijk and Marsh 1995). Isolating European elections from the national political arena would remove this uncertainty, and would also mitigate the other two consequences summarised above, since all three arise from the use of these elections as markers for what would happen in national elections. Mitigating their effects on national politics would be good enough reason to reform the way in which European elections are conducted; but there are even better reasons when one considers these elections from a European perspective. CONSEQUENCES FOR THE FUTURE OF THE EU Proper democratic representation and accountability are associated with the notion of free elections. However, in order for elections to fulfil these functions, a number of conditions must be met which are not necessarily provided by the simple institution of elections per se.

European elections 197 The logic of democratic elections presupposes that the political verdict of electorates can be construed as emanating from the political preferences of voters—preferences that are relevant to the decision-making arena concerned. If this condition is met, elections can be considered to simultaneously (1) legitimise power allocated by the elections (and therefore also to legitimise policies which may be devised with this power), (2) exert electoral control by holding officeholders accountable and (3) represent groups of citizens and their interests in the political process (thus showing sensitivity to their concerns). In order for elections to function in these ways, electorates must have some awareness of the political stance and record in the arena under consideration of those who are contending for their votes (Franklin and van der Eijk 1996). It is evident that these conditions are lacking in the present day European Union. Voters have on the whole never been encouraged to develop preferences for different European policies that would permit them to choose among candidates and parties in a European election in such a way as to legitimatise and control the exercise of power at the European level. Indeed, candidates and parties seldom put forward policies that differ, in regard to Europe, and frequently do not put forward policies of any relevance at all to European matters. By failing to take the opportunity to present voters with meaningful choices they also miss the chance to educate them about European affairs. This failure is primarily due to the fact that the parties that select candidates and put forward policies at European elections are not European parties but national parties, and these parties generally treat European elections as opportunities to test their own relative popularity in the national arena. Naturally, national elections offer even less of a forum for discussion of European matters. So neither in their choice of national leaders who comprise the Council of Ministers, nor in their choice of members of the European Parliament who hold the Commissioners accountable, are voters given the opportunity to have any input in the conduct of European affairs. As Bogdanor has stated, ‘Elections, if they are to be meaningful, must fundamentally allow for choice’, but national party systems provide ‘an artificial superstructure unable to articulate the wishes of the electorate’ (1989:214). There are reasons why politicians maintain this ‘artificial superstructure’—reasons that may not be easily overcome (Franklin, van der Eijk and Marsh 1995)—but the consequence is that input into the European decision-making process is restricted to individuals and groups who have non-electoral routes (for example interestgroup lobbying) for making their desires known. This lack of proper democratic accountability and control in European affairs is a grave problem, potentially amounting to a crisis of legitimacy for the EU. How this crisis will manifest itself cannot be anticipated, but the ratification process for the Treaty of EU has signalled a warning that should not be ignored (Dinan 1994:290–291). Members of the European Parliament (as well as many professional observers of European integration) diagnose a democratic deficit in European representative institutions. To their eyes, this deficit often appears in terms of a lack of power on the part of the European Parliament to be able to assert itself in relation to the Commission and (particularly) the Council of Ministers. In fact, it should be evident from a reading of this chapter that the democratic deficit felt by members of the European Parliament actually results from the fact that European elections are fought primarily on the basis of national political concerns, rather than on problems relevant to the European arena. It is true that the European Parliament lacks certain powers (in comparison with modern-day national parliaments); but what it lacks most is not power but a mandate to use that power in any particular manner. It lacks that mandate because of the way in which European

198 Mark Franklin elections are conducted. Lacking a succession of mandates to develop Europe in any particular way, the EU and its predecessor entities were built by national governments with little input by their citizenry, on the basis of what has been called a ‘permissive consensus’ regarding successive moves towards European unity (Inglehart 1971). The consequence of this permissive consensus has been to free national parties from the need to coherently address and articulate European policy concerns—often a difficult matter for parties whose origins lie in the aggregation of quite other sorts of interests and concerns. Instead of defending their participation in European regulatory decision-making on the grounds of fulfilling an electoral mandate, ruling parties have consistently defended such actions on the grounds that they have done their best to protect national interests, thus casting European politics as a zero-sum game between the member states, and undermining their efforts in other spheres to stress the positive-sum aspects of European integration. Sometimes, of course, their ‘best’ is not enough, and unpopular consequences seem to flow from European developments. Governments are then tempted to blame ‘Europe’ for these consequences. But to the extent that governments succeed in this, they merely cause themselves to appear impotent to influence events in Brussels, displacing the crisis of legitimacy from the European to the national arena (Franklin and van der Eijk 1995). In this manner, the permissive consensus appears to be eroding, faster in some countries than in others. A variety of developments have increased the salience and visibility of European policies to individual citizens. In the absence of well-established alternatives regarding the substantive direction of such policies, leading to a debate within each country (or over Europe as a whole) regarding what type of EU the people want to live in, criticism is likely to focus not on ‘what Europe’ but on ‘whether Europe’. This yields unpredictable consequences for European political systems, as the Danish and the French referenda over the Maastricht treaty and Mr Major’s difficulties with the British Conservative Party have amply demonstrated. It also puts into question the very future of the European project. The proper place for debates of this kind would be in the context of European election campaigns, but European elections have never been used for such a purpose. Possible means of stimulating such a debate are discussed at length in the final chapter of van der Eijk, Franklin, et al. (1996); but the first step is to recognise the potential consequences of a continued failure to conduct meaningful European elections. REFERENCES Blumler, J. and Fox, A. (1982) The European Voter: Popular Responses to the First European Community Elections, London: Policy Studies Institute. Bogdanor, V. (1989) ‘Direct Elections, Representative Democracy and European Integration’, Electoral Studies, 8, 3:205–216. Castillo, P. del (1995) ‘Spain: a Dress Rehearsal’ in Eijk C. van der, Franklin, M. et al., Choosing Europe? The European Electorate and National Politics in the Face of Union, Ann Arbor: University of Michigan Press. Cayroll, R. and Ysmal, C. (1995) ‘France: the Midwife Came to Call’ in Eijk C. van der, Franklin, M. et al., Choosing Europe? The European Electorate and National Politics in the Face of Union, Ann Arbor: University of Michigan Press. Dinan, D. (1994) Ever Closer Union? An Introduction to the European Community, London: Macmillan. Eijk, C. van der, Franklin, M. et al. (1996) Choosing Europe? The European Electorate and National Politics in the Face of Union, Ann Arbor: University of Michigan Press. Eijk, C. van der, Franklin, M. and Oppenhuis, E. (1994) ‘Strategies for Cross-National Analysis of Party Choice’, Cardiff, Wales: Conference on elections, public opinion and parties.

European elections 199 Eijk, C. van der, Franklin, M. and Oppenhuis, E. (1995) ‘The Strategic Context: Voting Choice’, in Choosing Europe? Eijk, C. van der, Oppenhuis, E. and Franklin, M. (1994) ‘Consulting the Oracle: The Consequences of Treating European Elections as “Markers” of Domestic Political Developments’, Madrid: European Consortium for Political Research. Franklin, M. and Curtice, J. (1995) ‘Britain: Opening Pandora’s Box’, in Choosing Europe? Franklin, M. and Eijk, C. van der (1995) ‘The Problem: Representation and Democracy, in Choosing Europe? Franklin, M., Eijk, C. van der and Marsh, M. (1995) ‘Conclusions: The Electoral Connection and the Democratic Deficit’, in Choosing Europe? Franklin, M., Eijk, C. van der and Oppenhuis, E. (1993) ‘Why People Vote: The Influence of Systemic, Contextual and Individual Characteristics on Electoral Participation in Europe’, Washington D.C.: American Political Science Association. Franklin, M., Eijk, C. van der and Oppenhuis, E. (1995a) ‘The Systemic Context: Turnout’, in Choosing Europe? Franklin, M., Eijk, C. van der and Oppenhuis, E. (1995b) ‘The Motivational Basis of Turnout in European Elections, 1979–1994: The Case of Britain’, in Railings, C., Farrell, D., Broughton, D. and Denver, D. (eds) British Elections and Parties Yearbook 1995, London: Frank Cass. Inglehart, R. (1971) ‘Public Opinion and European Integration’, in Lindberg, L. and Scheingold, S. (eds) European Integration, Cambridge MA: Harvard University Press, 160–191. Inglehart, R. and Rabier, J. (1989) ‘Europe Elects a Parliament’, Government and Opposition, 14, 4: 479– 505. Marsh, M. (1994) ‘Testing the Second-Order Election Model after Four European Elections’, Pavia, Italy: S.I.S.E. Conference on Le Elezioni del Parlemento Europeo 1979–1994. Marsh, M. and Franklin, M. (1995) ‘Unanswered Questions from the Study of European Elections, 1979– 1994’ in Choosing Europe? Niedemeier, O. (1990) ‘Turnout in the European Elections’, Electoral Studies, 9, 1:45–50. Oppenhuis, E., Eijk, C. van der and Franklin, M. ‘The Party Context: Outcomes’ in Choosing Europe? Parry, G., Moiser, G. and Day, N. (1990) Political Participation and Democracy in Britain, Cambridge: Cambridge University Press. Powell, B. (1980) ‘Voter Turnout in Thirty Democracies: Partisan, Legal and Socio-Economic Influences’, in Rose, R. (ed.) Electoral Participation: A Comparative Analysis, Beverly Hills: Sage. Powell, B. (1986) ‘American Voter Turnout in Comparative Perspective’, American Political Science Review, 80:17–43. Reif, K. (1984) ‘National Electoral Cycles and European Elections’, Electoral Studies, 3, 3:244–255. Reif, K. (1985) ‘Ten Second-Order National Elections’, in Reif, K. (ed.) Ten European Elections, Aldershot: Gower, 1–36. Reif, K., and Schmitt, H. (1980) ‘Nine Second-Order National Elections: A Conceptual Framework for the analysis Of European Election Results’, European Journal of Political Research, 8,1:3–44. Sartori, G. (1994) Comparative Constitutional Engineering: an Inquiry into Structures, Incentives, and Outcomes, New York; New York University Press. Schmitt, H. (1995) ‘Germany: a Bored Electorate’, in Choosing Europe? Schmitt, H. and Mannheimer, R. (1992) ‘About Voting and Non-voting in the European Elections of June 1989’, European Journal of Political Research, 19, 1:31–54. Verba, S., Nie, N. and Kim, J. (1979) Participation and Political Equality: A Seven Nation Comparison, Cambridge: Cambridge University Press. Worre, T. (1993) ‘Denmark and the European Union’, in Thomesen, B. The Odd Man Out? Denmark and European Integration 1948–1992, Odense: Odense University Press. Worre, T. (1995) ‘Denmark: Second Order Containment’, in Choosing Europe?

11 The logic of organisation Interest groups Sonia Mazey and Jeremy Richardson

THE LOGIC OF ORGANISATION AND NEGOTIATION: ‘SHOOTING WHERE THE DUCKS ARE’1 In any political system, interests organise themselves to influence the policy-making process and try to shape the institutions of policy-making to their own benefit. For any one issue, we can identify a wide range of actors who have a direct interest—they stand to gain or lose by the final policy decision. Each policy problem as it reaches the political agenda brings with it a whole constellation of interests who then engage in political activity in order to ensure that the processing of that issue is to their advantage. As people become more educated, more articulate and wealthier, and as knowledge and information becomes more accessible, so more people come to recognise that they have an interest in public policy issues. Thus, new interests seek out new ways of pressing their case on public decision-makers. Interests find a multiplicity of access points at the EU level, especially with the acceleration of the Europeanisation of public policy in the member states. They are also alert to any shifts in the distribution of power between existing institutions and between existing levels of government. Hence, if supranational policy-making institutions emerge, there is an inherent ‘logic’ of interest-group behaviour which will lead interest groups to re-target their lobbying strategies to take account of the new distribution of power. Interest groups are thus an excellent ‘weather vane’ of the distribution of power in society; as the distribution of power shifts, interest groups follow. After a long process of European integration—which has in essence been a process of the ‘Europeanisation’ of much public policy hitherto the exclusive province of the sovereign member states—we see a process of ‘re-targeting’ of interest group strategies (Mazey and Richardson 1993). If power has shifted to a new level of government, any sensible interest group is bound to attempt to influence policy-making at the new level. As one American interest group official put it, ‘you need to shoot where the ducks are!’. Similarly, public policy-makers at the new level of government also face the same practical problems of governance faced by policy-makers at the national or local level. In a modern, technical and above all, highly regulated society, it would be strange indeed if policy-makers felt that they could govern without interest groups. For policy-makers, interest groups are an essential link between government, the many ‘specialised publics’ and the public at large. Groups supply technical information, they warn policy-makers of potential ‘trouble’, and if mobilised, they supply essential support for the political system as a whole. Thus, just as there is a ‘logic’ of interest group organisation there is also a ‘logic of negotiation’. 200

Interest groups 201 Public policy-makers, in any system, learn how to negotiate with other important policy actors or stakeholders as this is the most practical way to solve policy problems. Thus, ‘certain practices appear to be likely to develop in any society as a means of abating conflict. Societies cannot, by definition, be solely based on conflict, and the “logic of negotiation” appears inevitable’ (Jordan and Richardson 1982:81). This may be especially true in a policy-making system such as the EU where European-level officials face unique problems in formulating laws which can be made to work (and are acceptable) in fifteen very different member states. Each of these states has different regulatory styles and traditions and it is an exceptionally difficult task to produce proposals which can mobilise the necessary winning coalition in both the Council of Ministers (CM) and European Parliament (EP). One way of doing this is to integrate interest groups directly into the various stages of the policy process, from problem identification through to policy implementation. From our extended interviews with over forty Commission officials and our postal survey of an additional fifty officials from a range of Directorates General (DGs) it was very clear that officials placed enormous importance on the consultation of interest groups. Typical responses were: ‘I see consultation as an important and very useful source of information to ensure that EC legislative measures are efficient and effective in the “real world”.’ (Dutch official, DGXV) ‘We are following a consultation process in (this) area of telecoms laid out in Directive 90/382/EEC. It works well and results in an “open” decision-making process.’ (British official, DG XIII) ‘We strongly value open, extensive and continuing consultation, formal and informal—our whole activity was based on this.’ (British official, DG XII) ‘For the purposes of programme planning the use of workshops and advisory bodies is particularly relevant as it gives a possibility of balancing various views.’ (Dutch official, DG XIII) ‘The type of input which is now provided is now much more consolidated—we are getting written contributions which are based on a well established consensus and generally well argued.’ (French official, DG XIII) ‘Consultation is in general positive as it allows us to broaden the perspective on a given-issue.’ (Spanish official, DG XVII)

We also asked our postal survey respondents to rank certain statements about lobbying, on a scale ranging from ‘strongly agree’ to ‘strongly disagree’. In response to the statement ‘The Commission cannot function as a policy formulator without the active assistance and advice of outside firms’, the vast majority of the respondents indicated that they either ‘strongly agreed’ or ‘agreed’ with this statement. Officials seem to be implementing this view in a practical way as in a typical month it appears common for most Commission officials to have some kind of official contact with up to ten pressure groups or firms. Many officials in fact listed between ten and twenty groups or firms with whom they had had official contact in the month preceding the survey (February 1992). Similarly, the number of contacts between officials, groups and firms can be quite large. For example, one Italian official in DG XII reported fifty written contacts and thirty

202 Sonia Mazey and Jeremy Richardson telephone contacts in the preceding month, although a more usual level was the seven written contacts, the ten telephone contacts and four official meetings with groups/firms reported by a Belgian official in DG III. It might be argued that focusing on interest group contacts with the Commission produces a distorted picture of the nature of the European interest group system. However, the European Parliament has experienced the same phenomenon. Dinan reports that after the Single European Act (SEA) there has been a ‘profusion of lobbying at the European Parliament’ (Dinan 1994:277). Also, reflecting the fact that shifts in the distribution of power between the institutions and levels of government affects interest group strategies, he suggests that it was the acquisition of power under the co-operation procedure which made the European Parliament more attractive to lobbyists. Thus ‘before the SEA, lobbyists had little reason to cultivate the favor (sic) of MEPs. Afterwards, when Parliament acquired more power and MEPs became proficient at using the cooperation procedure, lobbyists seized the opportunity to shape legislation through amendments’ (Dinan 1994:277). Of special interest, in terms of our suggestion that there is a ‘logic’ of negotiation which leads public policy-makers to cultivate relationships with groups because of the policy-makers’ own needs, is his suggestion that ‘in many cases, lobbyists alerted MEPs to the Co-operation Procedure’s potential and provided them with information about impending legislation that their small staffs were often otherwise unable to obtain’ (Dinan 1994:272). A similar, symbiotic relationship between groups and decision-makers regarding the making of European public policy is to be found at the national level in at least those member states such as Britain, Germany, Holland, Denmark and Sweden, which have a long tradition of ‘the accommodation’ of interest groups into policy-making. It is not surprising, therefore, that these traditions should be transferred to the European level. In the British case, the Government has reviewed its system of consulting interest groups (particularly business groups) concerning proposed European legislation. The DTI Report was published after the review strongly recommended a re-enforcement of existing (already close) consultation procedures. Thus, it recommended that: departments identify at the earliest stage (i.e. as soon as there are signs that the EC Commission is developing an interest in and possible proposals on a subject) key business interests. Departments should then consider with the key groups concerned how UK interests might be best projected; whether the existing UK regime should be promoted in its current or amended form, and whether business is sufficiently organised to represent its interests effectively in Brussels…once key business interests are identified we recommend that Departments establish a consultative college with these, enforcers and other major interest groups. (DTI 1993:5)

Following publication of the Report, the establishment of consultative groups in government departments has become widespread. Similar patterns have developed elsewhere in other member states. For example in France, where co-ordination between the state and interest groups has not always been effective, in 1988, the then Minister for European Affairs, Edith Cresson, set up a number of mobilisation groups (Groupes d’Etude et de Mobilisation (GEM)) based around EC policy themes. They were designed to facilitate the exchange of information between groups, officials and ministers at the national level (Nonon 1989). In a similar way, ‘the strong (often neocorporatist) traditions of government/group relations in Germany facilitate effective sectoral level co-ordination of German lobbying in the EC, reflecting the “privileged position” which the business associations enjoy in the public policy-making process’ (Kohler 1993).

Interest groups 203 We see, therefore, a similar phenomenon in the European policy-making process to the long-established traditions of national policy-making in Western Europe—namely a high degree of interest group integration into the policy process, based upon the twin ‘logics’ of organisation and negotiation. This appears to be taking place at the two main levels in the Euro policy process—at the European level itself and within the existing nation states. Indeed, the importance of Euro-lobbying at both of these levels (and at the regional level too for some issues) raises an important paradox—namely that the gradual shift in the locus of power to the European level in many policy sectors has caused both a proliferation of lobbying at this supranational level and has also intensified lobbying at the national level. Indeed, some observers continue to emphasise the primacy of lobbying national governments as the most effective means for interest groups to influence policy decisions at the Euro-level. For example, Grant argues that ‘if a national interest organisation is worried about, say, a draft Community directive, then its best course of action may well be to use its established contacts with the national government (Grant 1993:28). He goes on, however, to concede that this can be a risky strategy because of qualified majority voting (QMV) and because decision-making in the CM often takes place via a process of negotiation by exhaustion (Grant 1993:28). We return to this paradox later but meanwhile note Spence’s interesting suggestion that national officials who participate in the Euro-policy process are ‘lobbied lobbyists’—they are simultaneously subjected to influence and called upon to exercise it (Spence 1993:48). Discussing the British civil service in the context of the Euro-lobbying system, he notes that ‘whereas a lobbyist knows that in the context of national legislation, Whitehall is the prime focus of law-making, in the European context the British civil servant is but one of many points of access in the decision-making process’ (Spence 1993:48). Here, Spence is highlighting a central feature of the Euro-lobbying system. It is essentially a multiarena, multi-level, decision-making system, in which all actors necessarily participate in a complex series of what Tsebelis termed ‘nested games’ (Tsebelis 1990). This makes it especially difficult to make really reliable and robust generalisations about the distribution of power between the different policy actors or stakeholders in the EU policy process. However, one generalisation seems to be well founded and based on solid empirical evidence—the number and range of interest groups has increased enormously over the history of the EU. It is to the trajectory of this mobilisation that we now turn. THE EMERGENCE OF A EUROPEAN INTEREST GROUP SYSTEM: FROM UNDER-SUPPLY TO OVER-SUPPLY OF REPRESENTATION? One of the earliest systematic studies of the emergence of a European interest group system was Kirchner’s analysis of interest group formation, published in 1980 (Kirchner 1980a). He quotes Meynaud and Sidjanski’s earlier study of European pressure groups which found that ‘many of these groupings established themselves at the Community level in response to the formation of a new centre of decision-making and as a result of advantages expected from Community action (Kirchner 1980a:96–97). Sidjanski’s study suggests that some of the groups were formed as the EEC’s own institutions were formed, others when it became clear that the EEC’s regulatory powers could actually affect different interests in society (Sidjanski 1970:402). Sidjanski also noted a phenomenon common in all developed political systems— that public bureaucrats often assist the emergence and creation of groups, reflecting the

204 Sonia Mazey and Jeremy Richardson functional ‘logic’ which we suggested earlier. In other words, if a European interest group system did not exist, the Commission would have to invent it as an essential building block of a European policy-making system. For example, Mazey suggests that, since the late 1970s, ‘the Commission has also fostered the development of transnational women’s networks and set up European networks of “experts” to monitor and advise on various aspects of equality policy. This constituency mobilization strategy is consistent with theories of bureaucratic expansion and neo-functionalist models of European integration’ (Mazey 1995:606, emphasis added). A similar phenomenon was identified by Green Cowles who describes the role of the Commission in the setting up of the European Round Table (ERT), representing some of the largest companies within the EU. She records that ‘the first list of potential industry members was drawn up in 1982 in the Commission’s Berlaymont building by Volvo and Commission staff (Green Cowles 1995:504). (The ERT eventually played a major role in the emergence of the Single European Act (SEA) and the creation of the 1992 single market programme.) Kirchner notes that yet another phenomenon familiar from studies of national interest group systems was evident in the early years of the Union—namely that groups beget yet more groups. Once one set of interests is mobilised and organised to influence decisionmakers, those interests in society who are not yet organised will see the need to do so; if they do not, they are leaving policy space exclusively occupied by rival interests. Interest group mobilisation is at least a means of ‘risk avoidance’ in the manner first suggested by David Truman in 1950. In an attempt to defend pluralism in the USA (surely, now also the defining characteristic of the EU interest group system), he argued that over time interest group power would tend to reach some kind of equilibrium. This was partly because society was full of what he termed ‘potential groups’ which, when threatened by the successes of those interests already organised, would themselves become organised to defend their own interests (Truman 1951:31). The mobilisation of trade unions at the European level seems a classic example of this phenomenon. In his study of trade unions as pressure groups in the EC, Kirchner suggests that European trade union interest group organisations emerged because of a perceived threat from already organised business groups (Kirchner 1977:28). This process has continued. As he notes, ‘the threats posed by expanding multinational corporations and the opportunity for involvement in meaningful policy development with such regional organizations as the EC, the Council of Europe, EFTA and OECD, have all contributed to new transnational organisations and more ambitious trade union goals, (Kirchner 1980b:132). A similar risk-avoidance ‘insurance’ strategy has been noted even for powerful multi-national companies, however. McLaughlin and Jordan (drawing on McLaughlin’s study of the lobbying activities of the European motor industry) suggest that a ‘negative incentive’ is at work for firms when deciding whether or not to join the relevant European association for their industry. If a firm does not join, the Euro-association may produce ‘unwelcome group decisions’ (McLaughlin and Jordan 1993:155). The danger of not participating in a European association is that the Commission (formally emphasising, as it does, the importance of Euro-associations in its consultation procedures) might take the Euro-association’s view as the definitive view of the industry as a whole, to the detriment of the non-participating firm. These ‘counter-strike’ or risk-avoidance strategies may go some way to explaining the seemingly endless increase in interest group mobilisation at the European level. Rather like a rolling snowball, lobbying creates more lobbying.

Interest groups 205 It would be quite wrong, however, to explain the emergence of a European interest group system solely in these defensive terms. As Kirchner notes in the case of trade unions, there were also perceived positive benefits from European level organisation. He suggests that one of the aims of the trade unions in mobilising at the Euro level ‘is to promote, at the European level, the interests which become increasingly difficult to achieve at the national level’ (Kirchner 1980b:132). We believe that, increasingly, this is a major motivation underpinning the continuation and development of the EU interest group system, consistent with neo-functionalist theory i.e. groups increasingly see positive benefits from Euro-level solutions. This is particularly the case for groups concerned with trans-frontier problems, such as environmental groups and even companies bearing heavy costs due to the proliferation of different national regulations. Kirchner’s data implies that the development of the EU and the development of the EU interest group system went hand in hand. Sectional groups (i.e. those groups representing a particular section or functional category of society and based on their members’ occupational roles or professions) outnumbered promotional groups (groups seeking to promote specific causes or values, such as environmentalists) by two to one in this period. His general conclusion is that ‘there is a linkage between the extent to which Community policies exist in a given sector and the degree of co-operation and integration reached by European interest groups in that sector’ (Kirchner 1980a:115). The story since then has been one of rapid acceleration of Euro-interest group formation. By 1985, Butt Philip was reporting that ‘almost five hundred Europe-wide pressure groups now devote their resources to influencing decisions taken by the EC (Butt Philip 1985:1). In addition to the proliferation of Euro-groups, (encouraged by the Commission) he noted that ‘some national pressure groups and industrial corporations have also appointed several representatives or agents in Brussels to circulate among the diplomatic, bureaucratic and representative elites’ (Butt Philip 1985:1). In a key passage, he argued that: In general, pressure groups have come to recognise the importance of protecting and promoting their interests in the European Community by means of suitable Community wide organisations. (Butt Philip 1985:8)

However, he suggested two important qualifications to this general trend of the emergence of a Euro-level interest group system. First, he recognised that the continued importance of national governments in the Council of Ministers ‘may mean that pressure groups prefer to supplement their national representations by means of direct approaches to Community institutions—rather than substitute international representations for national action. If this should prove to be the rule then little will have been achieved for the integration within the Community as a whole of interests which cross national frontiers’ (Butt Philip 1985:8). Second, he prophesied that ‘we should not expect much increase in the number of such [Euro] groups in the future’ (Butt Philip 1985:88) Although it would have been difficult to know this at that time, there is now reason to believe that both observations have been overtaken by subsequent events. If we take the numbers issue first, clearly the rate of formation of Euro-associations has slowed down. As, by definition, they are sectoral or trans-sectoral level organisations, at some point pretty well all sectors will have their own Euro-association. We suspect that this is almost the case today, but in 1986 Grote found rather more Euro-groups than had Butt Philip—654 in fact (Grote 1989, cited in

206 Sonia Mazey and Jeremy Richardson Greenwood et al. 1992). The growth in other types of Euro-level representation seems to have been almost exponential. Thus, in 1992, the Commission estimated that there were no less than 3,000 ‘special interest groups of varying types in Brussels, with up to 10,000 employees working in the lobbying sector’ (SEC (92) 2272 final p. 4), and that over 200 firms had direct representation in Brussels, with, in addition, approximately 100 lobbying consultancy firms. For any one issue, therefore, there is a potential for quite large numbers of interest groups to become mobilised. For example, when DG XI held a conference to discuss possible changes to EU drinking water laws, in September 1993, some 250 people participated, including almost every conceivable ‘stakeholder’ in the water sector (Richardson 1994:153). Similarly, when the European Parliament held a public hearing on certain aspects of the (then) forthcoming 1996 IGC, in October 1995, representatives of 100 interest groups took part (Mazey and Richardson 1996). This proliferation of lobbying is accounted for by the arrival in Brussels of different types of lobbying organisation. First, we have seen a boom in professional lobbying consultancies (the so-called ‘hired guns’). Second, more and more national associations now have permanent offices in Brussels, in addition to their membership of the relevant Euroassociation. Third, many more individual firms now maintain lobbying staffs in Brussels in a ‘belt and braces’ approach to lobbying strategies. Our own survey of Commission officials in 1992 certainly confirmed this trend, in some DGs at least. A common response to our question—‘Could you indicate whether you feel that the “constituency” of groups with which you deal is changing—either in terms of numbers or composition’—was that both the number and the type of lobbyists is widening, and that they are becoming more professional and more organised. Thus, a Dutch official in DG VI noted a trend ‘from European organisations to national or private ones’ (this despite the Commission’s ‘procedural ambition’ to favour Euro-associations [emphasis added]). A Belgian official in DG III observed that ‘Their overall number is increasing. There is an increase in US controlled lobbies—they become more intrusive.’ This in fact indicates an important phenomenon— namely that when we speak of Euro-lobbying we include a considerable amount of lobbying by interests from outside the Union—particularly US and Japanese industrial and commercial interests, as they have such a huge investment in Europe. Variations between DGs and within DGs were apparent, however. For example, a British official in DG XIII pointed out that the ‘traditional constituency remains the same in telecommunications—telecommunications network operators, trade associations, users, law firms’. But he also observed that ‘a new trend is a growing interest from potential service providers’. Another very clear recent development has been the proliferation of regional and local representation in Brussels. More and more of the regions of Europe now maintain Brussels offices as part of their regional economic development strategies (Mazey and Mitchell 1993; Keating and Hooghe in this volume). For example, we identified sixty-seven regional authorities which had set up permanent offices in Brussels by 1994; thus, an Irish official responded that ‘regional and local authority contacts were increasing at a rapid rate’. The multiple representation strategy was illustrated by the response of a Dutch official in DG XVII who observed that oil and gas supply companies increasingly felt the need to use European associations to represent their interests to the European institutions, but that, in addition, the large oil and gas transmission companies have their own European personnel located in Brussels. It is clear, therefore, that the European interest group system is now extremely extensive. As the range of European policy-making has been extended, and as European legislation has become more technical and detailed, then so more interests have come to recognise that European public

Interest groups 207 policy is a key feature of their organisational environment. Just how effective and cost effective this density of representation is remains an open question. There is enormous variation in effectiveness of Euro-associations for example. Commonly, they are criticised for their cumbersome internal decision-making machinery, making it difficult for them to respond quickly and clearly to issues as they read the European agenda; they are often poorly resourced; and they often survive with a very small staff in Brussels (perhaps only two or three staff). They are typically seen as ‘lowest common denominator’ organisations. Because of these difficulties, more and more individual firms and more and more national associations have set up their own offices in Brussels. Despite the Commission’s officially stated preference for dealing with Euroassociations (i.e. the Commission hopes they will perform one of the traditional functions of interest groups—the aggregation of demands), officials habitually resort to consulting firms or national associations as the most efficient way of obtaining reliable information, quickly. Due to the costs of permanent representation in Brussels, the hired lobbying consultancy sector has also grown rapidly. Some interests (even those with their own Brussels offices) ‘buy-in’ lobbying expertise from the many law firms, lobbying firms, and management consultancy firms operating in Brussels and it is in this sector where the ‘oversupply of representation’ is possibly most apparent. Many of our Commission respondents commented that lobbying consultants were of little use and that they (the officials) could gain much more from technical and industry experts. However, as with Euro-associations, there is enormous variation in the effectiveness of lobbying consultants. Those consultants developing a long-term specialisation in particular policy areas over time certainly do develop a good reputation with Commission officials, MEPs and Coreper staff, and their input is regarded as important and effective. As at the national level, effectiveness is probably more related to techniques of lobbying than size of organisation, although resources clearly do matter. It is to the ‘rules of the game’ that we now turn. THE RULES OF THE GAME: FAMILIAR PATTERNS IN UNFAMILIAR SETTINGS The Euro-policy process is unusually complex, unpredictable and unstable. Whilst multi-arena and nested games might be much more common in national policy systems than we used to believe, it is clear that the Euro-policy process exhibits this feature to a higher order. Yet, despite this, successful lobbying in Europe demands the same behavioural norms as at the national level, familiar behavioural patterns of lobbying—the ‘rules of the game’—are welded to unfamiliar institutional structures and processes. Familiar patterns What, then, are these ‘rules of the game’? Several standard behavioural norms are important for successful lobbying, as follows: 1 2 3 4 5

Develop good ‘advance intelligence’. Watch national agendas. Lobby early. Stay in the whole race. Maintain good links with Commission officials.

208 Sonia Mazey and Jeremy Richardson 6 7 8 9 10

Maintain good links with national officials in national capitals and in Coreper. Maintain good links with the European Parliament. Present rational, technical arguments. Be co-operative, positive and trustworthy. Develop a lobbying strategy based on a European perspective to problem solving and form European-wide coalitions. 11 Do not gloat or boast when you succeed. Most of these ‘rules’ would apply to traditional lobbying in western European states and are perfectly familiar to well-organised interest groups—yet many of them are seemingly ignored at the European level. For example, as one official put it, the best time to lobby the Commission (which, despite increased powers from the European Parliament and the continued centrality of the Council of Ministers is still the primary lobbying target) is when a proposal is merely a glint in an official’s eye (Hull 1993). He suggested that probably 80 per cent of lobbying is too late. As one DG V official responded in our survey, ‘a contact at a late stage of the policy-making process is disturbing and completely useless’. Another official, from DG II, commented that ‘most of the time lobbying is too late, the proposal has reached the Council of Ministers’. Similarly, an official from DG III noticed that when they reached a certain ‘final preparatory stage’ within the service and the Directorate, the number of ‘contacts’ rose. He noted a similar ‘jump’ when proposals reached the Council or European Parliament stage—again, too late to exercise a major influence. Thus, there is no substitute for ‘advance intelligence’ to detect the very earliest stages of a change in policy—the beginnings of a change in ‘policy fashion’. It is at the problemidentification and options-search stage of the policy process that lobbying has always been most effective—and this is also true for the EU. Therefore, much effort has to be put into making regular contact with professional bureaucrats at the two main levels in the European policy process—officials in Brussels (Commission officials and officials of the member states in Coreper) and officials in national capitals. The latter are important in terms of ‘agenda watching’ because national agendas can be translated into European agendas quite quickly. Thus, as Héritier suggests, one of the main explanations for the considerable variety of types of Euro-regulation (a ‘patchwork of regulation’ as she terms it) is that member states try to secure ‘home runs’ by persuading the EU to adopt their own national regulatory systems for a given policy problem (Héritier 1996). However, whatever the origin of policy ideas, the Commission retains the Treaty-based right to initiate policy, albeit sometimes in response to the Council of Ministers or indeed to the European Parliament (see Christiansen in this volume). Hence, if lobbyists had to choose only one attribute of our list of lobbying strategies, they would almost certainly choose to have links with Commission officials. There are two common sense reasons for this. First, the old British Civil Service adage that it is ‘better to know the person who drafts the letter than the person who signs it’ can be applied to the Commission/Council of Ministers relations. The Commission has the technically difficult task of drafting proposals, at whoever’s behest, which can both attract a winning coalition across Europe and can be implemented in fifteen diverse member states. Second, a high proportion of the concerns of interests groups are technical and detailed. That is the ‘stuff’ of lobbying in any political system. At the detailed level, the Commission is especially important. As the Commission is a relatively small bureaucracy it depends on organisations such as interest groups (and on national officials and other experts in, for example, epistemic communities) for its expertise. To some degree, some

Interest groups 209 of the interests might be perceived as more ‘detached’ from naked national interest than are national government officials. They can provide an alternative view to that being espoused by national governments. Moreover, the Commission is adept at placing new problems and new ideas into what Kingdon called the ‘primeval soup’ from which policies emerge (Kingdon 1984:21). Hence there is a third reason for interest groups to develop close relationships with the Commission—it is a way of influencing both the identification and the ‘framing’ (see below) of European policy problems. Increasingly, the European Parliament has secured for itself a more significant place in the policy process, as we suggested earlier (see also Earnshaw and Judge in this volume). Therefore, there is no doubt that the European Parliament has moved up the ranking list of lobbying targets, depending on the issue at hand. Even very powerful business groups have seen the potential threat to them presented by the reforms to the European Parliament’s legislative powers. For example, the European Parliament rejected the conciliation committee’s recommendations on the proposal for the legal protection of biological inventions, to the considerable annoyance of industry. However, it is unwise to perceive particular institutions as consistently favouring or disfavouring particular sets of interests. For example, although it is thought that business groups have a particularly close relationship with the Commission (and that so-called ‘promotional’ groups are rather more ‘EP dependent’) there can be conflict. Thus, in 1996 the Commission provoked a major row with European industry over the Commission’s plans for a radical reform of the rules governing the licensing of patents in the EU. In the face of a concerted lobbying campaign, the Commission was forced to abandon its plans (see Financial Times, 1 February 1996). A sensible lobbying strategy for influencing European public policy is necessarily, therefore, multi-institutional in its targeting. It is also necessary for interest groups to propose ‘European’ solutions to problems, rather than solutions which are obviously purely national. Rather than ‘opposing further European interference’ it is more sensible to accept Europeanisation but to exercise influence on European level institutions on how best that should be implemented. Finally, ‘winning’ needs handling in a subtle way. Above all, European policy-making is characterised by a multitude of interests (both official and private). Any ‘win’ creates losers, if concessions are gained and Commission officials are won over, it is best not to compromise those officials by boasting of one’s ‘success’. These relatively familiar lobbying rules are, of course, implemented in very unfamiliar settings—hence the advice that it is necessary to stay in the race until it is finally over. This is because the trajectory of any one EU policy decision remains unpredictable, as we would expect from a series of nested games. The decision process meanders through a range of complex and competing institutions, and players enter and leave the games (as in ice hockey) at different times. Many an interest group has flown back from Brussels happy with a ‘result’, only to discover months later that the ‘bargain’ has been torn up in their absence, because new players have entered the game. Hence, we now turn to a brief discussion of the problems of managing unfamiliar settings whilst playing by familiar rules. Managing unfamiliar settings: stable and unstable policy and issue networks As in all political systems, there is a tendency for ‘constituencies of interest’ to emerge around particular policy areas and particular policy problems. Stable patterns of relationships may emerge—hence the popularity in comparative public policy studies of ‘policy community’ and

210 Sonia Mazey and Jeremy Richardson ‘policy network’ models . Can interest groups adapt to the unfamiliar institutional settings of the EU policy process by resort to building stable policy networks, on the national pattern? The answer depends on the level and type of policy decision under discussion. Peterson sees the meso-level of individual EU policy sectors as where ‘policy-shaping’ (as opposed to ‘historymaking’) decisions are made (Peterson 1995:74). ‘Technocratic rationality, based on specialized technical knowledge, often dominates the meso-level’ (Peterson 1995:74). As he puts it, ‘most policy-shaping decisions are “second order” decisions which address the question: how do we do it?’ (Peterson 1995:74). It is at this level that, he argues, policy networks are especially relevant. He suggests that ‘the policy network model is particularly germane at the EU’s meso-level because, in order to formulate policy effectively, the Commission must usually consult an eclectic array of actors: private and public, national and supranational, political and administrative’ (Peterson 1995:77–78). However, he notes that the type of networks found varies along a continuum from ‘policy communities’ to ‘issue networks’. This suggestion is useful as it underscores the point that there are major variations across sectors and over time. Some sectors may never be ‘manageable’ and may exhibit a policy process characterised by ‘uncertain agendas, shifting networks, and complex coalitions’ (Richardson 1994). However, the desire by all participants to build stable policy environments—to seek some kind of ‘negotiated order’—is actually quite strong. Indeed, Mazey notes that the predecessor of the Commission, the High Authority, consulted groups from an early stage. Thus, organised interests were ‘represented in the Expert Committees which were set up by the High Authority in 1952 as a means of fostering collaboration with national experts on policy issues and problems’ (Mazey 1992:45). In fact, there are some signs that the Commission, at least, wants to secure a form of institutionalisation of consultation in order to make consultation more manageable and predictable. For example, the Commission habitually uses advisory committees, expert groups, conferences, seminars, and workshops to bring together the ‘affected interests’. This can perform two functions: it can assist in consensus-building and it can be a means of subtly causing the different policy stakeholders to accept a common ‘framing’ of policy problems. This might be the most important stage of the EU policy process and, therefore, of the lobbying process. As Rein and Schön define it, a ‘frame’ is ‘a perspective from which an amorphous ill-defined situation can be made sense of and acted upon’ (Rein and Schön 1991, p. 262). A core activity of the plethora of fora for ‘bringing the interests together’ is to agree on a common ‘framing’ of the problems under discussion. As a Belgian official from DG IV put it to us, he found ‘small workshops with experts, run in an informal way, were more prone to be honest and “scientific” research of a solution acceptable to all parties’. Similarly, a British official in DG XIII commented that workshops were especially useful at the ‘ideas gathering’ stage of the policy process. Increasingly, the Commission resorts to the creation of special fora which bring together the whole range of ‘stakeholders’ for a given policy problem. Typical examples include the ‘round table’ on a single currency in January 1996. This was hosted by the Commission and arranged with the European Parliament and included 400 participants representing a wide range of interests in the EU. Similarly, in 1996, the Commission will be setting up an Energy Consultative Committee representing all energy interests. Somewhat earlier, DG XI set up a broadly based ‘Environmental Forum’ designed to bring together the diverse range of interests concerned with EU environmental policy.

Interest groups 211 There is, of course, the practical question of managing such a dense interest group system — both for the Commission and for the Parliament. It is no surprise, therefore, that questions of ‘regulating’ lobbying have arisen. This seems to have happened because of the intensification of lobbying, following the passage of the SEA. Both the Commision and the European Parliament have produced reports and recommendations regarding ‘regulation’ of lobbying. As McLaughlin and Greenwood note, the European Parliament has so far tended to favour a somewhat toughter regulatory stance in its proposals, compared with the Commission’s continued preference for a system which is essentually self-regulatory. (For a full discussion of the regulatory issue see McLaughin and Greenwood 1995). In practice it is fair to say that at the time of writing (1996) no-one could claim that EU lobbying is ‘regulated’. This leaves the problem of differential access, which is seen by McLaughlin and Greenwood as still a key issue (McLaughlin and Greenwood 1995:151). We doubt that this problem will ever be solved, if only because the EU policy process is likely to remain characterised by a multiplicity of access points. Regulating access to one or two institutions, such as the Commission and the European Parliament, even if it were possible, would not restrict access to other levels and arenas in the policy process—particularly to the national level. It is to the relationship between this level and the EU level that we now, finally, turn. It is here that the most puzzling paradox of EU lobbying is to be found. Managing unfamiliar settings: playing at home and away As we suggest earlier, there is considerable debate about whether it is better for interest groups to lobby the governments of the member states rather than lobbying European institutions. Much depends upon the nature of the issues—the ‘high politics’ or history-making decisions may be more intergovernmental and the low-politics (meso-level in Petsonson’s terms) issues more supranational in the way that they are processed. In practice, however, much of the EU policymaking is an amalgam of these rival ‘models’, hence, rational Euro-lobbying requires a multitrack approach. This certainly involves liaising with and ‘pressuring’ national governments as well as the supranational institutions. The most sophisticated lobbyists apply their influence to both levels and have, as their ultimate goal, the creation of a common perception of a problem and a common perception of its solutions, at all levels in the EU policy system. Here, we return to Rein and Schön’s concept of ‘framing’. If we take the example of one of the key policy events in modern EU history—the passage of the SEA and the emergence of the 1992 programme—we can see how it is possible to produce opposing interpretations of the same events. The classic statement of the intergovernmental position is relatively unambiguous. In his study of the negotiations surrounding the Single European Act (SEA), Moravcsik concludes that, ‘although supranational institutions have an important role in cementing existing interstate bargains as the foundation for renewed integration…the primary source of integration lies in the interests of the states themselves and the relative power that each brings to Brussels’ (Moravcsik 1991:75, emphasis added). In a crucial passage he later argued that ‘the unique institutional structure of the EC is acceptable to national governments only insofar as it strengthens, rather than weakens, their control over domestic affairs, permitting them to attain goals otherwise unachievable’ (Moravcsik 1993:507). Essentially, the thrust of his argument is that EC institutions strengthen the power of national governments.

212 Sonia Mazey and Jeremy Richardson There are two major weaknesses in this analysis. First, it is possible to argue that the unique institutional structure of the EU, far from ‘strengthening the autonomy of national leaders visà-vis particularistic social groups within their domestic polity’ (Moravcsik 1993:507), is, logically, just as likely to undermine it. This is because, in the context of multilevel, multi-arena and nested games, the uncertainty principle is of enormous importance. States might well be rational actors (though state politicians may act rationally in their own interests rather than those of the state), but so are domestic and (increasingly) transnational interest groups. If they too act rationally, they will know that the ability of any one state to influence, let alone control, the EU policy process is extremely limited. Hence, it is often rational for them also to seek supranational solutions, in their own right. The Europeanisation of policy-making—the transference of decision-making power to a supranational level, albeit one in which the states have a very powerful role—has done as much to weaken states as policy actors as to strengthen them. As Bulmer suggests, ‘an investigation below the surface suggests that national governments are in many cases prisoners of domestic and international circumstances’ (Bulmer 1983:360). The British Government is a case in point. In its review of the implementation of EC law and of ways in which Britain might increase its influence over European policy-making, it has openly conceded that it can no longer ‘deliver’ to its domestic interest groups. Thus, it recognises that QMV has introduced very different decision-rules and has suggested that ‘Ministers and officials should therefore have the confidence to be open about the difficulties they sometimes face in Brussels, and should be prepared to make use of business contacts and networks in reinforcing the UK negotiation position’ (DTI1993). Tellingly, it noted that ‘the requirement to reach agreement by recognising the needs and fears of others, by trading concessions and identifying common interests, is as pressing in the board room as it is in the Council of Ministers’ (DTI 1993). In essence this was ‘civil service speak’, informing business that Her Majesty’s Government could not be relied upon in European negotiations! The transnational activities of domestic interests (and the increasing emergence of genuinely European interests who do not frame problems in national terms) have been noted by others as weakening the intergovernmentalist stance. This is especially so in those very policy areas which Moravcsik claims support for the intergovernmentalist thesis. Thus, Sandholtz and Zysman (1989) suggest that the 1992 project owed much to the close collaboration of business and the Commission (as well as, they readily concede, to national governments whose policies and perspectives changed). Thus, they argue that ‘European business and the Commission may be said to have together bypassed national governmental processes and shaped the agenda that compelled attention’ (Sandholtz and Zysman 1989:116). Based on a more detailed analysis of the agenda-setting process leading to the 1992 project, Maria Green Cowles reaches similar conclusions. She argues that the European Round Table (ERT) ‘played a leading role in setting the agenda and providing policy alternatives for the 1992 programme’. Indeed, she goes on to suggest that the ‘agenda for the single market programme was set by economic interests’ (Green Cowles 1995:522). As Caporaso and Keeler interpret her data ‘by the time state leaders came to the bargaining table, a substantial amount of work had been accomplished’ (Caporaso and Keeler 1995:45). Thus, one needs to ask, from where do national ministers acquire the ‘intellectual baggage’ which they take to the Council of Ministers? To whom did leaders such as Margaret Thatcher talk? Other studies indicate the links between business leaders, operating transnationally, and national political leaders. Thus, Sandholtz and Zysman’s interviews confirmed that the ERT became a powerful lobby vis-à-vis the national governments. They quote one member of the

Interest groups 213 Delors Cabinet as declaring, These men are very powerful and dynamic…when necessary they can ring up their own prime minister and make their case’ (Sandholtz and Zysman 1989:117, citing van Tulder and Junne). It is in this way that ‘mood changes’, shifts in ‘climates of opinion’ and new ‘policy fashions’ which become ‘conventional wisdoms’ emerge. Just as epistemic communities are turned to by international and national policy-makers in times of uncertainty (see Richardson, Chapter 1 in this volume), then so political leaders also listen to business and financial leaders, particularly when faced by economic problems and uncertainties. As Sandholtz and Zysman suggest, the 1992 movement was characterised by uncertainty—‘neither the pay-off from nor preferences for any strategy were or are yet clear’ (Sandholtz and Zysman 1989:107). CONCLUSION We may conclude, therefore, on this note of uncertainty. It is an affliction suffered by all players in the EU policy process. In such situations those policy actors possessing certain ‘decisional’ and ‘attitudinal’ attributes may have particular advantages in constructing ‘win’ situations in a series of nested games. Two such attributes might be, first, the development of a long-term view of Europe and its place in the globalisation process, and, second, an ability to change preferences readily in response to changing circumstances. At least some European interest groups appear to possess these attributes: for example the large multinational companies do, indeed, take a European and global view, they may also have a more flexible decision-making process and preference-formation processes than, say, member states, or those interest groups exclusively ‘anchored’ in national interest group systems. As Heinz et al. suggest in their study of US interest groups, ‘interest representations involves learning. A group’s understanding of its interests may change as a result of improved analysis or reflection on past experience’ (Heinz et al. 1993:392). Much more research is needed, but it seems reasonable to hypothesise that organisations such as multi-nationals and interest groups such as Greenpeace, Friends of the Earth (FOE) and Worldwide Fund for Nature (WWF) are probably less constrained in their lobbying strategies and have more flexible preference formation processes than governments, for example. If, as Heinz et al. suggest, uncertainty begets uncertainty, it would be rational for all interest groups wishing to influence the European policy process to avoid being locked into any one set of relationships (e.g., with ‘their’ national government) or into any one ‘advocacy coalition’ (Sabatier 1988) or any one policy community or policy network. Thus, in one of the few detailed comparative studies of national variations in policy networks and their effect on Euro-lobbying, Josselin, comparing British and French policy networks in the financial services sector, concluded that domestic policy networks in which private actors retained relative autonomy fuelled in part by distrust and the need for information, appeared to be better suited to the pursuit of multiple [lobbying] targets; conversely, vertical, state-dominated structures would not encourage the development of active strategies of transnational linkages on the part of non-governmental organisations. (Josselin 1996)

British sectoral actors, who were ‘less tied to a strict policy structure than the French, were better able to exploit the multi-access lobbying system of the EU’ (Josselin 1996). Thus, we conclude by suggesting that lobbying in the EU is likely to remain pluralistic, unpredictable,

214 Sonia Mazey and Jeremy Richardson and favouring those actors who can mobilise ideas and knowledge in order to ‘massage’ the ‘framing’ of public policies, who can manage a series of multi-level and shifting coalitions, and who can re-formulate their preferences rapidly and consistent with the long-term goals of their organisation. NOTE 1. We are grateful to Grant Jordan for supplying us with this quotation.

REFERENCES Bulmer, Simon (1983) ‘Domestic Politics and European Community Policy-Making’, Journal of Common Market Studies, Vol. 31, No. 4, pp. 349–363. Butt Philip, Alan (1985) Pressure Groups in the European Community, London: UACES. Caporaso, James and Keeler, John T.S. (1995) ‘The European Union and Regional Integration Theory’, in Rhodes, Carolyn and Mazey, Sonia (eds), The State of The European Union, Vol. 3, Building a European Polity? Boulder: Lynne Rienner/Longman, pp. 29, 62. Dinan, Desmond (1994) An Ever Closer Union? An Introduction to the European Community, London: Macmillan. D.T.I. (1993) Review of the Implementation and Enforcement of EC Law in the UK, London: DTI. Grant, Wyn (1993) ‘Pressure Groups in the European Community: An Overview’, in Mazey, Sonia and Richardson, Jeremy (eds), Lobbying in the EC, Oxford: Oxford University Press, pp. 27–6. Green Cowles, Maria (1995) ‘Setting the Agenda for a New Europe: The ERT and EC 1992, Journal of Common Market Studies, Vol. 33, No. 4, pp. 501–526. Greenwood, Justin, Grote, Jürgen and Ronit, Karsten (1992) (eds) Organized Interests and the European Community, London: Sage. Heinz, John P., Lauman, Edward O., Nelson, Robert L. and Salisbury, Robert H. (1993) The Hollow Core Private Interests in National Policy-Making, Cambridge, Mass: Harvard University Press. Héritier, Adrienne (1996) ‘The Accommodation of Diversity in European Policy-Making: Regulatory Policy as Patchwork’, Journal of European Public Policy, Vol. 3, No. 2 (pp. 149–167). Hull, Robert (1993) ‘Lobbying Brussels: A View from Within’ in Mazey, Sonia and Richardson, Jeremy (eds), Lobbying in the European Community, Oxford: Oxford University Press. Jordan, Grant and Richardson, Jeremy (1982) ‘The British Policy Style or the Logic of Negotiation?’, in, Richardson, Jeremy (ed.), Policy Styles in Western Europe, London: George Allen and Unwin, pp. 80–110. Josselin, Daphné (1996), ‘Domestic Policy Networks and European Negotiations: Evidence from British and French Financial Services, Journal of European Public Policy Vol. 3, No. 3, pp. 297–317. Kingdon, John W (1984) Agendas, Alternatives and Public Policies, New York: HarperCollins. Kirchner, Emil (1977) Trade Unions as Pressure Groups in the European Community, Farnborough: Saxon House. Kirchner, Emil (1980a) ‘Interest Group Behaviour at the Community Level’, in Hurwitz, Leon (ed.), Contemporary Perspectives on European Integration, London: Aldwich. Kirchner, Emil (1980b) ‘International Trade Union Collaboration and the Prospects for European Industrial Relations’, West European Politics, Vol. 3, No. 1, pp. 124–137. Kohler, K. (1993) ‘Germany, Fragmented But Strong Lobbying’ in Van Schendelen, M.P.C. (ed.), National Public and Private EC Lobbying, Aldershot: Dartmouth Publishing. Mazey, Sonia (1992) ‘Conception of Evolution of the High Authority’s Administrative Services (1952– 1956): from Supranational Principles to Multinational Practices’, Yearbook of European Administrative History, Baden-Baden: Nomos. Mazey, Sonia (1995) ‘The Development of EU Equality Policies: Bureaucratic Expansion on Behalf of Woman?’, Public Administration, Vol. 73, No. 4, pp. 591–609. Mazey, Sonia and Mitchell, James (1993) ‘Europe of the Regions? Territorial Interests and European Integration: The Scottish Experience’ in Mazey, Sonia and Richardson, Jeremy (eds), Lobbying in the EC,

Interest groups 215 Oxford: Oxford University Press, pp. 27–46. Mazey, Sonia and Richardson, Jeremy (1993) (eds), Lobbying in the EC, Oxford: Oxford University Press. Mazey, Sonia and Richardson, Jeremy (1996) ‘Agenda-Setting, Lobbying, and the 1996 IGC, in Edwards, G. and Pijpers, A. (eds), The European Union and the Agenda of 1996, London, Pinter. McLaughlin, Andrew and Jordan, Grant (1993) ‘The Rationality of Lobbying in Europe: Why are EuroGroups So Numerous and so Weak? Some Evidence From the Car Industry’, Mazey, Sonia and Richardson, Jeremy (eds), Lobbying in the EC, Oxford: Oxford University Press, pp. 27–46. McLaughlin, Andrew and Greenwood, Justin (1995) ‘The Management of Interest Representation in the European Union’, Journal of Common Market Studies, Vol. 33 No. 1, pp. 143–156. Moravcsik, Andrew (1991) ‘Negotiating the Single European Act’ in Hoffmann, Stanley and Keohane, Robert E. (eds), The New European Community. Decision-making and Institutional Change, Boulder: Westview Press. Moravcsik, Andrew (1993) ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’, Journal of Common Market Studies, Vol. 3, No. 4, pp. 473–524. Nonon, J. (1989) Agir Pour ne pas Subir, Paris: Ministry of European Affairs. Peterson, John (1995), ‘Decision-Making in the European Union: Towards a Framework for Analysis’, Journal of European Public Policy, Vol. 2, No. 1, pp. 69–94. Rein, H., and Schön, D. (1991) ‘Frame-Reflective Policy Discourse’, in Wagner, P., Weiss, C.H., Wittrock, B. and Wollman, H. (eds), Social Sciences, Modern States, National Experiences and Theoretical Crossroads, Cambridge: Cambridge University Press, pp. 262–289. Richardson, Jeremy (1994) ‘EU Water Policy: Uncertain Agendas, Shifting Networks and Complex Coalitions’, Environmental Politics, Vol. 3, No. 4, pp. 139–167. Sabatier, Paul (1988) ‘An Advocacy Coalition Framework of Policy Change and the Role of Policy Orientated Learning Therein’, Policy Sciences, 21, pp. 128–168. Sandholtz, Wayne and Zysman, John (1989) ‘Recasting the European Bargain’, World Politics, Vol. 42, pp. 95–128. SEC (92) 2272 final, An Open and Structured Dialogue Between the Commission and Interest Groups, Brussels: European Commission, 2 December 1992. Sidjanski, Dusan (1970) ‘Pressure Groups in the EEC’, in Cosgrove, C. and Twitchett, K. (eds), The New International Actors. The United Nations and the EEC, London: Macmillan. Spence, David (1993) ‘The Role of the National Civil Service in European Lobbying: The British Case’, in Mazey, Sonia and Richardson, Jeremy (eds), Lobbying in the EC, Oxford: Oxford University Press, pp. 27–46. Truman, David (1951) The Governmental Process: Political Interests and Public Opinion, New York: Knopf. Tsebelis, George (1990) Nested Games: Rational Choice in Comparative Politics, Berkeley: University of California Press.

12 By-passing the nation state? Regions and the EU policy process Michael Keating and Liesbet Hooghe

INTRODUCTION European integration and regionalism are two developments which are altering the architecture of the western European state. Their combined effects have created new forms of politics. Much has been written on the Europe of the regions (Petschen 1993) which some observers think, or hope, will rival or even displace the Europe of states. Others have written of new forms of ‘multilevel governance’ (Scharpf 1994; Marks 1992, 1993) or third-level politics (Bullman 1994). In this chapter we examine the emergence of the region in the context of the state and of the European Union. Then we look at the links between regions and the EU and the influence of regions in EU policy-making. We find that, rather than a new and ordered territorial hierarchy, there is a complex mixture of different territorial units. Policy continues to be focused on the state, but this is penetrated by European and regional influences. REGIONS AND REGIONALISM IN WESTERN EUROPE The emergence of the region as a level of politics and government has been a response to impulses from ‘below’ and from ‘above. States have regionalised their systems of government in the pursuit of modernisation and rationalisation. From the 1960s, they have engaged in regional policies aimed at correcting territorial imbalances in economic development. Diversionary policies based on fiscal incentives gradually gave way to more elaborate forms of regional planning, involving the state and regionally-based political and economic actors. From below, there have been demands for decentralisation in the name of efficiency and democracy, and for recognition of the historic and cultural specificities of regions and minority nations. The interplay between top-down and bottom-up regionalism produced its own dynamic. Regions discovered their own territorial identities, encouraged by state policies which invited them to articulate their demands in spatial terms. For their part, states sought to control the evolution of regionalism, engaging in ever more elaborate forms of territorial management, including spatial development policies, administrative and, in some cases political, decentralisation, systems of intergovernmental co-operation, clientelism and policy differentiation. In some cases, the effort to balance state needs with the emerging regional politics produced a crisis of territorial representation, especially where the new territorial politics coincided with a crisis of the national party system or the central regime (Keating 1988). 216

Regions and the EU policy process 217 By the 1980s, national diversionary regional policies were being run down as states concentrated on the needs of national competitiveness in European and global markets. This provoked a search for mechanisms by which regions themselves could enhance their prospects for development. Regional development theory, too, has put an increasing emphasis on indigenous development, rather than diversionary policy managed from the top down. The role of territory in the process of economic restructuring is seen as critical. There has been a corresponding decentralisation in the political realm, territory has become an important element in political debate, and many countries have engaged in further institutional decentralisation. So the region has emerged as an important level of politics and policy. This has two aspects. The region is an arena in which interaction takes place among political and economic actors; it is also itself an actor in the wider state and European policy system, insofar as it is able to articulate a common regional interest. None of this has produced a homogeneous level of regions in Europe. In some cases, territorial politics has developed around historic nations, such as Catalonia or Scotland. In others, the focus is an administrative region created in the post-war era, which has taken on a life of its own, such as most of the German Länder. In yet others, the key level of action is the city-region; this is usually so in France. Sometimes, there is a political competition between a city and its region as to which should be the key level of action, for example between the city of Barcelona and Catalonia. The internal constitution of regions as arenas and actors also varies. In some cases, the region is simply a system of government and political representation. In others, there is a strong regional civil society and civic culture (Putnam 1993) with elaborate linkages among actors and between the public and private sectors. REGIONS AND EUROPEAN INTEGRATION European integration has further enhanced the importance of regions, in the political and economic domains, and produced a new dynamic. The opening of markets has increased the peripheralisation of marginal regions and produced a new territorial hierarchy. At one time, it was thought that integration would concentrate development in the central regions of the ‘golden triangle’; other metaphors have included the ‘blue banana’. This would produce a new centreperiphery cleavage. It is clear now that matters are more complex but there is a broad, if not universal, consensus that market integration is still likely to exacerbate territorial disparities (Molle et al. 1980; Keeble et al. 1988; Camagni 1992; Steinle 1992; Begg and Mayes 1993; Commission of the European Communities 1991; André et al. 1991). Unlike nation states, the EU has no automatic compensation mechanism through fiscal equalisation and large universal spending programmes financed by general taxation (Mackay 1993). The needs of national competitiveness together with EU rules also prevent states from intervening to correct these disparities through diversionary policies, as in the past. EU competition policy may further disadvantage marginal regions, through preventing cross-subsidisation of communications services and opening public procurement (Fullarton and Gillespie 1988). Other EU policies, including agriculture and research spending, may also benefit the more developed regions (Strijker and de Veer 1988; Cheshire et al. 1991; Grote 1992). The single market programme has further disarmed national governments, while economic and monetary union will remove their ability to manipulate exchange rates and interest rates or to run budget deficits, all instruments used for regional as well as national purposes.

218 Michael Keating and Liesbet Hooghe Politically, European integration has also served to enhance the salience of regions. Competences transferred to the EU include many matters in which regions have a direct interest. Some of these are matters for which regional governments are constitutionally responsible within the member state. Since it is states which are represented in the Council of Ministers and which have the responsibility to implement EU law, national governments have been able to use Europe to re-enter policy domains which they had surrendered to regions. There have been two types of reaction at the regional level. A rejectionist regionalism opposes European integration fearing a further loss of democratic control, more remote government and the triumph of market principles. This reaction was common in many regions in the 1970s and is still very visible in Scandinavia. A second type of regionalism seeks to use Europe as a source of political and economic resources, if necessary against the state itself, Europe being widely seen in the regions as a source of material support. Most obviously this involves economic development issues; it has also, however, been seen as a source of support for minority cultures and languages threatened within large states (Cardus 1991; de Witte 1992): hence regional interests have sought new mechanisms to get into the European policy game. More generally, Europe has provided a new arena for the expression of regional and minority nationalist aspirations. Some minority nationalist movements note that European integration has reduced the cost of national independence, and propose simply to join the list of member states; this is the case of the Scottish National Party and some Basque nationalists. Others want to replace the existing Union with a federation of regions and small nations, abolishing the existing states; this is the policy of the Welsh nationalist party Plaid Cymru and of many Basque nationalists. Others again are more pragmatic, seeing in Europe an arena in which their nationalist aspirations can be expressed and legitimatised, while seeking to exert influence at whatever points are available; this is the case of the Catalan governing party, Convergència i Unió (CiU). European integration and regional assertion are not the only factors which are transforming the European nation state. Other factors include the rise of neo-liberal ideology, the advance of markets and deregulation, and the strengthening of civil society in systems formerly dominated by strong states. The classic nation state provided the basis for a series of economic and political systems: it was the locus of sovereignty and ultimate authority and the basis for governing institutions; it was the arena for public policy-making; it was the framework for economic activity and ‘national economies’, and the basis of cultural and political identity; it was a system of representation and legitimisation of decisions, providing an arena within which the competing needs of economic competitiveness and social integration could be reconciled. These processes are increasingly divorced as economic change is globalised and escapes the control of states; policy-making retreats into complex networks which do not correspond to formal institutions; and new and rediscovered forms of identity emerge at the sub-national and even the supranational level. Perhaps the most important loss has been that of an arena where the needs of economic competitiveness and those of social integration can be reconciled and compromised. European integration and regionalism must be seen not merely in negative terms, as forces undermining the state, but also as attempts to create new political arenas at the supranational and sub-national level to try and recapture control of at least some of these processes. The shape of these arenas will condition the type of politics that is possible within them, hence a series of conflicts over the shape of the new Europe: the social versus the market vision; the unitary versus the federalist

Regions and the EU policy process 219 vision; and the role of regions. In the next section, we examine the channels by which regional interests have sought to influence Europe. Then we examine the ways in which the European Union has itself sought to use regions in pursuit of its own policy objectives. The result has been a new dynamic interplay of interests, this time at three levels, among the regions, the EU and the member states. This has spawned a considerable literature examining the ways in which regions can influence policy in the EU (Keating and Jones 1985; Morata 1987; Bullman and Eisel 1993; Petschen 1993; Bullman 1994; Jones and Keating 1995). In the next two sections, we examine the relationship from both ends: the efforts of the regions to gain access to Europe; and the efforts of the Commission to reach down to regional interests and co-opt them into the policy making and implementation process. CHANNELS OF ACCESS Formulating an interest The first problem facing regions in seeking access to European decision-making is formulating a regional interest. Regions, as emphasised above, are not merely actors but also political arenas, containing a plurality of interests. In some cases, such as the western German Länder, strong regional governments are able to formulate a regional interest, given legitimacy by democratic election. In others, such as the French regions, regional governments are institutionally weak and rivalled by powerful political figures rooted in the cities and departments as well as a territorial bureaucracy of the central state. Some states, of which the only large one is the UK, have no regional governments at all. A number of regions have a capacity to mobilise territorial lobbies encompassing both governmental and private actors. Despite the lack of elected institutions, Scotland has shown a consistent ability to mobilise a territorial lobby encompassing business trade unions, municipal governments, religious and other social leaders, and the deconcentrated arms of the central bureaucracy itself (Midwinter et al. 1991). In the historical Spanish regions of Catalonia, the Basque Country and Galicia, regional governments are able to draw upon a sense of historic identity to legitimise a regional interest, though with varied results. In some French regions, powerful notables are able to mobilise a lobby around themselves, despite the fragmentation of the system of political representation, with its three levels of sub-national government. In the case of the regions of England, there are neither regional governments nor the capacity to organise lobbies within the civil society. Italian regional governments have traditionally been institutionally weak, dominated by the national political parties and poorly linked to the civil society; this has undermined their ability to formulate a regional interest. Since the federal reform of 1993, the Belgian regions have had powerful executives accountable to directly elected assemblies, very much like the German Länder. The picture is complicated by the existence of two types of autonomous units: three regions responsible for a wide range of economic matters; and three language communities dealing with cultural matters. They do, however, largely overlap territorially. There are some interests common to regions within the EU. These include institutional matters, the design of partnerships in policy implementation and the general principle of subsidiarity and its interpretation. There are also common interests in inter-regional cooperation and cross-border initiatives. Yet regions are also in competition with each other, to attract public funding and private investment, and to shape EU policies to suit their particular

220 Michael Keating and Liesbet Hooghe interests, so there is a constant tension between promotion of regionalism in general, and the pursuit of regions’ individual concerns. There is a multiplicity of channels for the pursuit of these collective and individual matters, of varying efficacy depending on the subject to be pursued and the political context. There is not, and cannot be, a single mode of representation of ‘regional’ interests in the EU. Access via the national government The most important channel of influence is via national governments. Generally, the more effectively regional interests are integrated into the national policy-making system, the better they will be looked after in Brussels. Germany and Belgium have institutionalised regional involvement in European affairs but on rather different bases. Germany has taken a gradual and moderate path, while Belgium has changed radically over a short period of time. German regions have generally worked collectively, while Belgian regions usually proceed individually. German Länder share a regional observer, the Länderbeobachter, in the German delegation to the EU. For Belgium, the Walloon Region and the French Community each have an observer, while Flanders has not appointed one. Either way, this mechanism proved less effective as the Community extended its scope and Belgian and German regions began to demand an input into Treaty revisions. As a condition of the ratification of the Maastricht Treaty in the Bundesrat, the Länder obtained a provision that the Bundesrat would have to approve all further transfers of sovereignty, even those which do not impinge on Länder competences. In Belgium, treaty changes need not only the approval of the Senate, which is the federal chamber but, where regional competences are involved, of each regional and community assembly separately. The distinction between the collective and the individual approach rests upon fundamentally different premisses. The German approach accepts that regions are the third level in a multilayered European polity and that they are ultimately nested in a national arena. The Belgian approach minimises the national mould. Europe is seen as a polity with multiple actors at multiple levels who interact directly with European instititions on matters within their competences. Another mechanism for influence via national government is the UK system of administrative devolution. The territorial offices of central government in Scotland, Wales and Northern Ireland, serve the dual role of administering those territories on behalf of the central state, and of lobbying for them within central government. This principle extends to European affairs, where the territorial offices have a role in determining the British position in the Council of Ministers and may be included in the delegation. The weakness of the system is that the offices are not representative of their respective territories, so only lobby within the limits of UK government policy. Nor are they powerful actors within Whitehall or Brussels, so that there is always a danger of the territorial interest being traded off against other objectives which the UK government is pursuing. This system does not provide a platform for regions as a whole and the regions of England, lacking even the administrative decentralisation of the minority nations, are marginalised from European policy-making. France provides another model of influence via the national state, through its integrated bureaucracy which links local and national policy-making, and the cumulation of mandates, by which politicians may simultaneously hold national and local office. To some degree, this unitary system with territorial influence has been extended to the EU (Balme 1995). A powerful politician

Regions and the EU policy process 221 like Valéry Giscard d’Estaing, former president of the republic, member of the European Parliament and president of the regional council of Auvergne, is able to pull strings at various levels at the same time. This system is highly uneven in its incidence. While the presence of local politicians in the national parliament provides a powerful institutional defence for the system of local government in France, there is no powerful lobby for the defence of these institutional interests in Europe. In the regionalised states of Spain and Italy there are no general mechanisms to involve regions in the determination of national policy on European matters (Morata 1995; Desideri 1995). Regions there complain about this and have sought something on the German model. Individual regional interests may also be projected through national governments by partisan links. This is particularly important in southern Europe. Finding itself in a minority following the 1993 general elections, the Spanish socialist central government negotiated a pact with the Catalan CiU. This provides access to national policy-making and thence to Europe. Other regions, including those controlled by the socialists, were very resentful. In Belgium, regional interests have access to the federal government through party networks. The Maastricht Treaty provides another mechanism in its article 146. This allows a state to be represented by a minister of a sub-national government in the Council of Ministers. This clause was designed for the federal states of Germany and Belgium. It does not, it must be emphasised, allow regions to represent themselves at the Council of Ministers. A regional minister appearing there represents the state and there needs to be a prior agreement among the regions and the state as to what their interest is. In the German case, agreement is negotiated among the Länder through the Bundesrat, and one of their number is then to be entrusted with representing the common position. The Belgian regions, communities and federal government have laid down by special law detailed arrangements on federal-subnational representation and decision-making in Council of Ministers machinery. Each level represents the Belgian position and casts the vote in matters exclusively under its own jurisdiction, while both are involved in matters of joint competence, with one taking the lead. In contrast to the German collective approach, Belgian regions and communities minimise the need for prior agreement by taking turns in assuming the lead responsibility for the Councils on matters within their jurisdiction. There have been suggestions that this clause be used in Spain and the Basque government has been pursuing this line. The Catalans preferred to exercise a particularistic interest through their parliamentary pact with the governing Socialist party between 1993 and 1996. In their pact with the incoming government of the Partido Popular, in 1996, they stipulated the appointment of an observer from the autonomous communities in the Spanish permanent representation, and participation in determining the Spanish position in the Council, and in working groups. Direct access Recent years have seen a spectacular growth in direct links with the EU, where these take a variety of forms. Regional and local governments make frequent visits to Brussels, to lobby Commission officials, after engaging the services of consultants to help them make a case and find their way through the bureaucracy. Many have opened permanent offices in Brussels. In the ten years to 1995, the number of these grew from just two to over a hundred. Some represent individual

222 Michael Keating and Liesbet Hooghe regions, some represent consortia of regions, others represent municipal governments. Some represent the regional government itself, others are partnerships with the private sector, or formally private bodies with public support. Two represent transnational alliances, albeit of noncontiguous regions, Centre-Atlantique, which represents the French regions of Centre and PoitouCharentes and the Spanish region of Castile and Leon; and the Anglo-French Essex-Picardie. These offices are sometimes represented as lobbyists, or forms of direct representation in EU decision-making, yet the Commission is tied by regulations in deciding on matters like the allocation of regional funds, while political decision-making is in the hands of the Council of Ministers, representing national governments. The offices and the lobbying really serve two more subtle roles. In the first place, they provide information to regions on upcoming initiatives, allowing them to lobby their national governments; and they provide information and regional viewpoints to Commission officials, who are otherwise dependent on national governments for information. In the second place, they serve a symbolic role in projecting regions and regional politicians in the European arena and presenting them as participants in the policy process. This allows regional politicians to take credit for EU initiatives and particularly funding, which would have come in any case simply by the working of the relevant regulations. The open bureaucracy of the Commission encourages lobbying and visits, while the opacity of the political decision making process and the obscurity of the funding regulations allows a whole variety of actors to take credit for the outcomes. Regional lobbies are rarely powerful on their own in Brussels. Where they can work with a national government, they can achieve more. They may also be effective when linked with powerful sectoral interests, for example a major corporation based in the region, or a sector with links into the Commission directorates. The best examples of this are in Germany, where sectoral interests are often linked into the system of territorial government in the Länder. European-wide lobbies Several organisations lobby for regions as a whole at European level. The International Union of Local Authorities and the Council of Communes and Regions of Europe are both wider in scope than the Community and have been closely associated with the Council of Europe which they persuaded to establish a Permanent Conference of Local and Regional Authorities in 1957. In 1986, they opened a joint office to deal with the EC. In 1985, the Council (later Assembly) of European Regions was launched, with 107 members including eleven Swiss cantons and Austrian Länder. It has pressed for involvement of regions in European decision-making, for the principle of subsidiarity, and for institutional changes. Other regional organisations seeking to influence policy-making in Brussels are the Conference of Peripheral Maritime Regions; the Association of European Frontier Regions; Working Group of Traditional Industrial Regions; three Alpine groups and a number of transnational frontier organisations. Consultative mechanisms The establishment of formal rights of consultation with the Community owed a great deal to the pressure of the European Parliament which, in the course of the reforms of the Community regional fund, stressed the need for greater involvement of regions themselves.

Regions and the EU policy process 223 In 1988, the Commission established a Consultative Council of Regional and Local Authorities with consultative rights over the formulation and implementation of regional policies as well as the regional implications of other Community policies. Its forty-two members were appointed by the Commission on the joint nomination of the Assembly of European Regions, the International Union of Local Authorities and the Council of Regions and Communes of Europe. The Maastricht treaty replaced this with a stronger Committee of the Regions with formal rights of consultation on Commission proposals but no veto powers; it has the same status and powers as the Economic and Social Committee, with which it is organisationally linked. More ardent regionalists had hoped for a regionally-based second chamber of the European Parliament. Several factors weaken the Committee. Its membership is decided by national governments, some of which have exercised a strong control, for example in France and the UK. Others, including Belgium, Germany and Spain, have left the matter to regions themselves. The committee includes not just regions but municipal representatives, with different institutional interests. From the outset, it was highly politicised, not so much on a right-left basis as on a north-south one. The marginali-sation of northern European representatives, especially the German Länder, is likely to reduce its influence and to lead those regions to seek other outlets. Finally, the Committee has the task of representing regions as whole, which may limit it to institutional matters where a common interest can be discerned, though even here the regional-municipal division may cause problems. The Commission and the regions Traffic between regional interests and the EU is not all one way. The Commission has itself played an important role in mobilizing regional interests, establishing new networks and creating a dialogue among regions, states and itself. The main stimulus for this has been the EU’s regional policy, now subsumed under the structural funds. These now account for a third of the EU budget, less than agricultural spending but far more than any other item. Elsewhere (Hooghe and Keating 1994) we have explained the development of regional and structural policy as the product of two converging logics: on the one hand is a policy logic, whose guardian is the Commission; on the other hand is a political and distributive logic, located in the Council of Ministers and intergovernmental negotiations. The policy logic for an EU regional policy is similar to that for national regional policies of the 1960s and 1970s. It is a mechanism for rectifying the territorial disparities produced by market integration and for achieving allocative efficiency; it is a social compensation for losers in the process of economic restructuring; and it is a device to legitimise the European project in regions where support might otherwise be lacking. The political logic is the need to redistribute resources among member states. Initially, this meant compensating Britain for its disproportionately large net contribution to the Community budget in the 1970s. Later, the policy was extended to compensate the southern European countries for the effects of the single market programme. These different logics produced conflicts between the Commission and member states from the inauguration of the European Regional Development Fund in 1975 (Mawson et al. 1985). In order to gain the consent of member states, the ERDF was divided into fixed national quotas; all regions that were eligible under national regional policies were eligible for ERDF funding. Funds were administered by national governments, who almost invariably refused to treat them as additional to national spending but rather as a reimbursement to themselves for their own

224 Michael Keating and Liesbet Hooghe regional policy spending. Consequently, the policy was a fiction, a way of dressing up an interstate transfer mechanism as a European policy. Over the years, the Commission has sought to increase its own influence over the framing and implementation of the policy, to convert it to a genuine instrument of regional policy, and to ensure the spending is additional to national spending programmes. From the late 1980s, it also sought to co-opt regional interests as partners in designing and implementing programmes. This has produced a three-level contest for control of the policy instrument, among the Commission, member states and regions themselves. In 1988, there was a major reform, again guided by both political and policy logics. The political logic was provided by the need to compensate the countries of southern Europe and Ireland for the adoption of the single market programme measures in the period to 1993. The policy logic was the Commission’s desire to convert the ERDF and other structural funds into a genuine policy. The funds were doubled and the three main ones, the ERDF, the European Social Fund (ESF) and the Guidance Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) were brought together (Armstrong 1995). Five objectives were laid down, three of which are regional in nature. For the first time, the Commission was to draw up its own map of eligible areas, using Community-wide criteria. Funds were to be disbursed only to projects within approved Community Support Frameworks (CSFs), apart from 9 per cent, which was reserved for Community Initiatives sponsored by the Commission. CSFs were to be negotiated between the Commission and member states, with the involvement of regions themselves. Within these, programmes of action were to be framed and administered by partnerships involving Commission representatives, national governments, and representatives from the regions. Additionality was laid down as a general principle, so that spending would have to be over and above national spending. The whole policy was to be guided by the notion of subsidiarity, with the greatest possible involvement of regional and local interests and the social partners in the world of business, labour and voluntary groups. The regulations prescribed an integrated approach to regional development: as this links spatial policy to technology, environmental policy, education, public procurement and competition policy, it should serve to bring regions into contact with a range of EU policies and directorates. The Commission, in line with contemporary thinking on development policy, also sought to move from infrastructure to human capital, productive investment and indigenous development. This too implies a more active and participative role for regional actors of various sorts. This potentially provided for greatly enhanced regional involvement in policy making and for stronger direct links between the Commission and regional interests. To some extent, this has happened. Those states without regional structures have been obliged to create them, or at least a substitute for them, in order to be eligible for funds. This is the case in Greece, Ireland and even Sweden. There has been a great deal of political mobilisation around the funds. In some English regions, there have been moves to constitute lobbies in the absence of regional governments, in order to face the European challenge (Burch and Holliday 1993). The belief that there is a pot of gold in Brussels is one reason for the explosion of regional lobbying and offices in the EU capital. Regional actors have been brought into contact with Commission officials and its thinking on development policy has been diffused through the mechanism of partnership. Yet the effect of this should not be over-stated. There is no new territorial hierarchy emerging in which regions are independent actors. For one thing, the Commission itself does not have a

Regions and the EU policy process 225 consistent definition of what is a region. Its NUTS table (Nomenclature of Territorial Units for Statistics) consists of three levels, each of which is a mere aggregation of national administrative units. Nor does it limit itself to regional authorities, however defined. Sometimes its initiatives involve municipal governments, others are aimed at the private sector or local action groups within civil society. The Commission’s objective, following its policy logic, is to get programmes going, to spend the funds in the most effective way possible, and to involve whatever partners are appropriate for the task at hand. National governments have also found their way back into the act. While the Commission has succeeded in concentrating funds on the neediest regions, there is still a need to make sure that everyone gets something in order to keep national governments on-side. Even the new Nordic members, although net contributors to the EU budget, had to get a piece of the structural policy, so a new Objective 6 has been designed, aimed at areas of sparse population. While there are officially no national quotas, there is an understanding that Britain, for example, will get a large share of the funds for industrial areas, while France will do well in the rural category. The map of eligible areas is in practice negotiated between states and the Commission, a practice which was formalised in 1993, pressure being exerted by member states to include areas which fall outside the eligibility criteria. Community Support Frameworks (CSFs) are nationally based and negotiated bilaterally with the Commission. In the 1993 changes, it was made possible for states to submit a single document including their overall development plan and the individual applications for assistance, rather than having to have the former approved first. Partnership in the CSFs is decided by member states and this too was formalised in 1993, though the Commission has sought to make this as inclusive as possible. The result is that the increased regional activity stimulated by the structural funds has followed distinctly national lines. Where national government has taken a permissive stance or been unable to control regional activity, regions have become important actors. In other cases, strong states have largely retained their monopoly on links to the Commission and control of regional policy implementation. At one extreme are the Belgian regions, which deal directly with the Commission on the designation of eligible areas, the allocation of the funds, negotiation of the contracts and implementation. They are not, however, involved in negotiations on changes in the fund regulations, such as those brought about in 1993. The German Länder are also deeply involved, through the mechanisms of co-operative federalism. Individual Länder participate in the design and implementation of CSFs, through the Joint Tasks Framework Gemeinschaftsaufgabe (Anderson forthcoming). At the other extreme are Greece, Ireland and Portugal, which lack a regional tier of government. At the urging of the Commission, there have been some administrative changes, with some involvement of local actors, but there has not been a notable shift of power from central government (Laffan forthcoming; Ioakimidis forthcoming; Reese and Holmes 1995; Yannopoulos and Featherstone 1995). In France and the UK, there has, paradoxically, been some increased centralisation since the 1988 reforms, as the structural funds have become financially significant and politically more salient (Balme 1995; Keating and Jones 1995; Balme and Jouve forthcoming). The nine per cent of the structural funds budget available for Commission initiatives could potentially be an important instrument to establish links between the Commission and regions. Local, regional or group interests can lobby the Commission to launch an initiative aimed at them, independently of their national governments. For example, the Rechar

226 Michael Keating and Liesbet Hooghe initiative originated in the collaboration between Bruce Millan, Commissioner for Regional Policy, and a coalition of British local governments from coal-mining areas (McAleavey 1993). Another mechanism for the organisation of sub-national interests is networking. Recite (Regions and Cities of Europe), launched in 1991, funds thirty-seven networks covering a range of subjects, and with a variety of partners. Roc Nord is a network, through which the Danes share their expertise in economic and environmental planning with Crete. Quartiers en crise promotes exchanges among twenty-five cities on problems of social exclusion. In Dionysos, ten French, Italian, Spanish and Portuguese wine-growing regions are pooling their resources and organizing the transfer of technology to the least-developed regions. In addition to this special network programme, networks have emerged in the cohesion policy instrument. This ranges from extensive and relatively general networks, like that for the Objective 2 regions, to more specific ones as the one around the Rechar initiative. They leave Europe densely organised— with most local and nearly all regional authorities involved in several networks simultaneously. This organisational activity does not, however, cluster around clearly identifiable regional authorities. On the whole, the contacts, the partnership arrangements, and the Commission’s sectoral and spatial initiatives have succeeded in mobilizing local and regional interests. Yet it has been difficult for regional authorities to get a comprehensive overview of ongoing cohesion policy. Sub-national interests have been drawn into the European arena in diverse ways, and degree and form of participation have tended to follow distinctly national patterns; their influence similarly is still largely determined by their linkages into national government. Direct contact with the Commission is a supplement, not a substitute for this. CONCLUSION Regionalism and European integration have changed the nation state in important ways. It is difficult, however, to isolate these from other factors tending in the same direction—the internationalisation of markets; capital mobility; the rise of transnational corporations; and neo-liberal ideology. The new territorial politics is complex. We have not seen the rise of a homogeneous regional tier of government in the EU. There remain a variety of levels of territorial mobilisation: historic nations; large provincial regions; units in federal or quasifederal states; cities and city regions. Regions also differ in their social and political constitution. In some cases, the region can be identified with a structure of government; in others, civil society or private groups are more important in defining and carrying forward a regional interest. Nor have we seen the rise of a new territorial hierarchy. There has been no by-passing of the nation state in favour of a Europe of the regions. The nation state remains the primary actor in the EU. This does not mean, however, that policy-making in this field can be explained simply by inter-state bargaining. The intergovernmental perspective on EU policy-making presents national politics as a closed, domestic game, where the national interest is formulated before being taken to the EU, where a second game commences, characterised by intergovernmental bargaining (Moravcsik 1993). In fact, national politics are penetrated by European influences (Muller 1994), through law, bureaucratic contacts, political exchange, the role of the Commission in agenda-setting and to a greater or lesser extent according to the state, by

Regions and the EU policy process 227 regional influences. So we are witnessing both a Europeanisation and a regionalisation of national policy-making. Access and influence are very unevenly distributed. The regions that are best equipped institutionally and that have the best access to their national governments are advantaged in the new setting. They tend to be the most economically and technologically advanced. EU initiatives through the structural funds have attempted to offset these advantages, by concentrating development resources in the poorer regions and encouraging partnership and administrative modernisation, especially in southern Europe. As we have seen, these efforts have been at best partially successful. Some have looked to a stronger regional dimension to help overcome the EU’s democratic deficit. It could bring policy making closer to the people, encourage participation and allow more access to the decision making instances of the Union. Again, there has been at best partial progress here. The relations between regions and the EU remain opaque. REFERENCES Anderson, Jeffrey (1991) ‘Sceptical Reflections on a Europe of the Regions: Britain, Germany and the ERDF, Journal of Public Policy 10, 4:417–47. Anderson, Jeffrey (forthcoming) ‘Germany and the Structural Funds’, in Hooghe, L. (ed.), Cohesion Policy and European Integration: Building Multilevel Governance, Oxford: Oxford University Press. André, C, Drevet, J-F. and Landaburu, E. ‘Regional Consequences of the Internal Market’, Contemporary European Affairs 1, 1–2 (1989):205–214. Armstrong, W.H. (1995) ‘The Role and Evolution of European Community Regional Policy’, in Jones, B. and Keating, M. (eds), The European Union and the Regions, Oxford: Clarendon. Balme, R. (1995) ‘French Regionalization and European Integration: Territorial Adaptation and Change in a Unitary State’, in Jones, B. and Keating, M. (eds), The European Union and the Regions, Oxford: Clarendon. Begg, I. and Mayes, D. (1993) ‘Cohesion, Convergence and Economic and Monetary Union in Europe’, Regional Studies 27, 2:149–165. Bullman, U. and Eisel, D. (1993) ‘Europa der Regionen. Entwicklung und Perspectiven’, Aus Politik und Zeitgeschichte 21:3–15. Bullman, U. (1994) (ed.) Die Politik der dritten Ebene, Baden Baden: NOMOS. Burch, M. and Holliday, I. (1993) ‘Institutional Emergence: The Case of the North West Region of England’, Regional Politics and Policy 3, 2:29–50. Camagni, R. (1992) ‘Development Scenarios and Policy Guidelines for the Lagging Regions in the 1990s’, Regional Studies 26, 4:361–374. Cappelin, R. and Molle, W. (1988) ‘The Co-ordination Problem in Theory and Practice’, in Molle, W. and Cappellin, R. (eds), Regional Impact of Community Policies in Europe, Aldershot: Avebury. Cardús, S. (1991) ‘Identidad cultural, legitimidad política e interés económico’, in Construir Europa. Catalunya, Madrid: Encuentro. Cheshire, P., Camagni, R., Gaudemar, J-P. and Cuadrado Roura, J. (1991) ‘1957 to 1992: Moving toward a Europe of Regions and Regional Policy’, in Rod win, L. and Sazanami, H. (eds), Industrial Change and Regional Economic Transformation. The experience of Western Europe, London: Harper Collins. Commission des Communautés Européenes (1991) Les Régions dans les Années 90. Quatrièmerapport périodique sur la situation et revolution socio-économique des regions de la Communauté, Luxembourg: Office for Official Publications of the European Communities. Commission of the European Communities (1993) Community Stuctural Funds, 1994–99. Regulations and Commentary, Luxembourg: Office for Official Publications of the European Communities. De Rynck, Stefaan (forthcoming) ‘Europe and Cohesion Policy in the Flemish Region’, in Hooghe, L. (ed.), Cohesion Policy and European Integration: Building Multilevel Governance, Oxford: Oxford University Press.

228 Michael Keating and Liesbet Hooghe Desideri, C. (1995) ‘Italian Regions in the European Community’, in Jones, B. and Keating, M. (eds), The European Union and the Regions, Oxford: Clarendon. de Witte, B. (1992) ‘Surviving in Babel? Language Rights and European Integration’, Israel Yearbook on Human Rights 21:103–126. Fullarton, B. and Gillespie, A. (1988) ‘Transport and Telecommunications’, in Molle, W. and Cappelin, R. (eds) Regional Impact of Community Policies in Europe, Aldershot: Gower. Grote, J. (1992) ‘Diseconomies in Space: Traditional Sectoral Policies of the EC, the European Technology Community and their Effects of Regional Disparities’, Regional Politics and Policy 2. 1 and 2:14–46. Hooghe, L. (forthcoming) ‘Building a Europe with the Regions: the Role of the Commission’, in Hooghe, L. (ed.), Cohesion Policy and European Integration: Building Multilevel Governance, Oxford: Oxford University Press. Hooghe, L. (1995) ‘Belgian Federalism and European Integration’, Jones, B. and Keating, M. (eds), The European Union and the Regions, Oxford: Clarendon. Hooghe, L. and Keating, M. (1994) ‘The Politics of European Union Regional Policy’, Journal of European Public Policy 1, 3:367–393. Ioakimidis, P.K. (forthcoming) ‘EU Cohesion Policy in Greece: The Tension between Bureaucratic Centralism and Regionalism’, Hooghe, L. (ed.), Cohesion Policy and European Integration: Building Multilevel Governance, Oxford: Oxford University Press. Jones, B. and Keating, M. (eds) (1995) The European Union and the Regions, Oxford: Clarendon. Keating, M. (1988) State and Regional Nationalism. Territorial Politics and the European State, Hemel Hempstead: Harvester Wheatsheaf. Keating, M. (1995) ‘Regions and Regionalism in the European Union’, International Journal of Public Administration 18, 10. Keating, M. and Jones, B. (1985) (eds) Regions in the European Community, Oxford: Clarendon. Keeble, D., Offord, J., and Walker, S. (1988) Peripheral Regions in a Community of Twelve Member States, Luxembourg: Offices of Publications of the European Communities. Laffan, Brigid (forthcoming) ‘Ireland, A Region without Regions: The Odd Man Out?’, Hooghe, L. (ed.), Cohesion Policy and European Integration: Building Multilevel Governance, Oxford: Oxford University Press. Mackay, R.R. (1993) ‘A Europe of the Regions: A Role for Non-market Forces?’, Regional Studies 27, 5:419–431. Marks, G. (1992) ‘Structural Policy in the European Community’, in Sbragia, A. (ed.), Euro-Politics, Washington: Brookings. Marks, Gary (1993) ‘Structural Policy and Multi-level Governance in the European Community’, Cafruny, A., Rosenthal, G. (eds), The State of the European Community. The Maastricht Debates and Beyond, Boulder: University of Colorado Press: 391–410. Mawson, J., Martins, M. and Gibney, J. (1985) ‘The Development of European Community Regional Policy’, in Keating, M. and Jones, B. (eds), Regions in the European Community, Oxford: Clarendon. McAleavey, Paul (1993) ‘The Politics of European Regional Development Policy: The EC Commission’s Rechar Initiative and the Concept of Additionally’, Regional Politics and Policy 3, 2:88–107. Midwinter, A., Keating, M. and Mitchell, J. (1991) Politics and Public Policy in Scotland, London: Macmillan. Morata, F. (1987) Autonomia regional i Integració Europea, Barcelona: Generalitat de Catalunya. Molle, W., van Hoist, A. and Smit, H. (1980) Regional Disparity and Economic Development in the European Community, Farnborough: Saxon House. Morata, F. (1995) ‘Spanish Regions in the European Community’, in Jones, B. and Keating, M. (eds), The European Union and the Regions, Oxford: Clarendon. Moravcsik, Andrew (1993) ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’, Journal of Common Market Studies, 31, 4:473–524. Muller, Pierre (1994) ‘Les mutations des politiques publiques européennes’, Pouvoirs 69:63–76. Nevin, E.T. (1990) ‘Regional Policy’, in El-Agraa, A.M. (ed.) The Economics of the European Community, 3rd edn, New York: Philip Allan. Petschen, S. (1993) La Europa de las regiones, Barcelona: Generalitat de Catalunya. Putnam, R. (1993) Making Democracy Work, Civic Traditions in Modern Italy, Princeton: Princeton University Press.

Regions and the EU policy process 229 Reese, N. and Holmes, M. (1995) ‘Regions within a Region: The Paradox of the Republic of Ireland’, in Jones, B. and Keating, M. (eds), The European Union and the Regions, Oxford: Clarendon. Scharpf, F. (1994) ‘Community and Autonomy: Multi-Level Policy-Making in the European Union’, Journal of European Public Policy, 1, 2:219–242. Shackleton, Michael (1991) ‘The European Community between Three Ways of Life: A Cultural Analysis’, Journal of Common Market Studies, 24, 6:575–601. Steinle, W.J. (1992) ‘Regional Competitiveness and the Single European Market’, Regional Studies, 26, 4:307–318. Strijker, D. and de Veer, J. (1988) ‘Agriculture’, in Molle, W. and Cappellin, R. (eds), Regional Impact of Community Policies in Europe, Aldershot: Avebury. Tsoukalis, Loukas (1991) The New European Economy. The Politics and Economics of Integration, Oxford: Oxford University Press. Vickerman, R.W. (1992) The Single European Market. Prospects for Economic Integration, NewYork: St. Martin’s Press. Yannopoulos, G. and Featherstone, K. (1995) ‘The European Community and Greece: Integration and the Challenge to Centralism’, in Jones, B. and Keating, M. (eds) The European Union and the Regions, Oxford: Clarendon.

Part 4 A supranational state?

13 Enlarging the European Union Gerda Falkner

INTRODUCTION The process of EU enlargement has always been problematic for social scientists as well as for politicians. Indeed, integration theory has traditionally focused on the internal development of the EU rather than on its attraction for new member states (Church 1994:4). This is true for both of the mainstream theoretical approaches to European integration. Thus, neo-functionalists usually focused their analyses on functional spill-over, i.e. the process of internal extension of integration to ever more policy areas. Intergovernmentalists mainly concentrated on the series of ‘grand bargains’ on constitutional reform of the Union such as the Rome Treaties, the Single European Act, and the Maastricht Treaty on EU (for a critique on both mainstream approaches see e.g., Anderson 1995). Today, however, the accelerating process of widening and its implications for the EU policymaking process are inevitably of central interest. The 1950s and 1960s saw only the six original member states participating in the integration enterprise, the first doubling of participants occurred between 1973 and 1985. This number did not increase until the inclusion of some of the EFTA countries (Austria, Finland, and Sweden) ten years later. Yet within the next decade, the EU could actually double to thirty member states. In fact, the debate on further enlargements, to include Mediterranean as well as central and eastern European countries (CEEC), started well before the 1995 widening. Clearly, this major development deserves both empirical and theoretical investigation. The following section of this chapter, therefore, discusses the empirical paradox involved in EU enlargement: the obvious development of the original European Communities to a Union with important supranational features has by no means discouraged aspirant member states. Why is it that more and more states are willing to give up much of their otherwise cherished national sovereignty by joining this Union, knowing that even more sovereignty will be eroded over time? After this, we will analyse the internal implications of these developments. What does enlargement imply for the policy-making process and the other dimensions of Union development? Finally, we will examine the indispensable institutional and policy reforms to accommodate further widening, and the changes in the Union’s pre-accession strategy over time. THE EXTERNAL PERSPECTIVE: WHY JOIN A ROLLING MYSTERY TRAIN? Viewed from a distance and over time, the EU can be seen as the centre of a galaxy. For many years it seemed as if some of the surrounding groups of states moved quite independently and 233

234 Gerda Falkner sometimes in the opposite direction. They belonged to the communist (CEEC), authoritarian (Spain, Portugal, Greece) or neutral ‘third way’ world (Austria, Finland, Sweden, Switzerland). In the event, their trajectories have in many cases converged, and further ‘repositionings’ are likely. However, significant developments have also occurred within the Union itself, making it a ‘moving target’ for the outside world. Thus, over time, not only does the nature of the aspirant states change, but also the EC/EU itself has evolved into a different kind of political system to which new member states need to be accommodated. When the UK, Ireland, Denmark, and Norway applied for membership in 1961, the EEC was still in the first of three transitory phases during the introduction of its common market. When the negotiations were completed in 1972, 1 the EEC had reached its final stage and accomplished a Customs Union. Even if supranational features, explicitly provided for in the EEC Treaty (notably qualifiedmajority voting), had not yet come into play in the aftermath of the 1965/66 ‘crisis of the empty chair’ and the so-called Luxemburg Compromise, the European Court of Justice (ECJ) had meanwhile developed its doctrines of direct effect and supremacy of EC law (ECJ judgments Van Gend 1963; Costa/ENEL 1964). They significantly contributed to the supranational quality of the EC’s legal order—a factor not clearly envisaged by the founding fathers. While the main ambitions of the first additional member states, Great Britain, Ireland, and Denmark,2 had been economic (Laurent 1994:126), the subsequent three southern applicants, Greece (1975), Spain and Portugal (1977), desired membership for more overtly political reasons. These recently democratised states were included in the Communities, despite their comparatively less-developed capitalist economies, for the purpose of keeping them democratic and non-communist (Wallace 1989). Clearly, however, their specific economic interests subsequently influenced the further development of the Union; this mainly concerned the financing of new EC policies. Soon after joining the Union in 1981, Greece made the accession of Spain and Portugal (finally achieved on 1 January 1986) conditional upon the setting up of ‘Integrated Mediterranean Programmes’, whose task was to fight regional disparities within the EC (Nicholson and East 1987:201). And when the first major reform package of the Rome Treaties, the Single European Act, was negotiated 1985–6, the less-developed EC economies achieved a significant transfer of money via the structural funds, in order to cover the expected costs to them of the Internal Market. Similarly, the Cohesion Fund was introduced by the Maastricht Treaty, which set up a timetable for Economic and Monetary Union (EMU) among the EC members in 1992. The negotiations on this new ‘constitution’ for the EU (1991–2) were, even then, followed with lively interest by the majority of the EFT A member states3 who had to wait for another repositioning of the ‘moving target’ EC before membership negotiations were started with them. On the eve of the various EFTA applications, the EC’s decision had been to deepen significantly before widening later. Because the Internal Market Programme proved to be attractive to nonmembers as well, Commission President Delors, in early 1989, offered to the EFTAns a new kind of structured partnership, based on wider market integration as well as on common decisionmaking and administrative institutions. Thus, the establishment of the ‘European Economic Area’ (EEA) might dampen the immediate membership ambitions although, in the event, it did not meet the EFTA members’ expectations.4 Austria was first among the group to apply officially for membership in 1989 (Schneider 1994; Falkner 1995). When the end of the Soviet Union had significantly altered the broader

Enlarging the European Union 235 international arena and also partly influenced their national economies, Sweden, Finland, Switzerland, and Norway applied in 1991–2. Eventually, the EC decided that negotiations with the EFTA applicants could begin after the signing but before the actual implementation of the Maastricht Treaty. The Union’s internal difficulties—particularly economic recession, and the ratification problems of the Treaty on European Union (TEU)—seem to have made an externally-oriented initiative politically attractive and opportune. For some of the new members, the Union had again developed to a significant extent between their application and their final admittance to the club in January 1995. Again, deepening did not seem to make membership less attractive to aspirant member states. The post-Maastricht Union has an even more supranational character with features such as a Union citizenship, increased powers for the European Parliament (EP), and the blueprint for an independent European Central Bank to oversee EMU. Moreover, there is still little sign of a fatigue of the ‘moving target’! On the contrary: the speed of the ‘European galaxy’ is underlined by the fact that the TEU itself provides for a further revision of the Union’s de facto constitution (Article N.2), concerning, for example, the scope of the new co-decision procedure (Article 189b) and a hierarchy of legislative acts. It is little wonder that almost immediately after the signature of the TEU, debates on further reform restarted. They were fuelled during the EFTA-widening negotiations by the postponement, until the 1996 Intergovernmental Conference (IGC), of plans to adapt the working procedures of the Union with a view to increased membership. Meanwhile, a ‘reflection group’ with representatives of the member states, the European Parliament, and the Commission was set up to discuss details of the forthcoming IGC agenda. At the time of writing (December 1995) there is much disagreement on specific issues (see Westendorp 1995), but the significance and fundamental character of the reforms under consideration is clear. To allow for ‘more democracy, more efficiency, more solidarity and more transparency’ (ibid., point 2.a.) as well as ‘the changes necessary to accommodate all applicants for enlargement’ (ibid.: 4), the individual governments’ powers will obviously have to be further diminished in the interest of the efficiency of the Union’s policymaking process. Once again, the increasingly supranational and constantly changing character of the European integration enterprise seems not to harm prospective new members’ ambitions to jump on the moving train. Indeed, even more European countries are interested in joining—leaving Norway, Switzerland, 5 Iceland, and Liechtenstein as ‘deviant’ cases. Apart from the applications of Cyprus and Malta (both pending since 1990) and Turkey’s 1987 membership application set aside following an unfavourable Commission opinion in 1989 (see Redmond 1993), it is mainly the former members of the Eastern Bloc who are now interested in joining the Union. It is worth noting that up to 1988, the USSR and its eastern European allies did not even formally recognise the EC (Laursen 1993:222). Yet several ‘reform states’ decided very quickly after their transition to democracy that they are ready to relinquish much of their newly-gained political sovereignty in order to become Union members. By late 1995, Hungary, Poland, Romania, Slovakia, and Latvia had formally applied, it is expected that at least the Czech Republic, Slovenia, Bulgaria, Estonia and Lithuania will soon follow. Even the Ukraine has repeatedly expressed the wish to join. 6 All this is despite the fact that ‘the east Europeans…are seeking to join a Union substantially more integrated following the completion of the Single European Market and the Maastricht commitments…from a lower economic base than has been the case in previous enlargements’ (Preston 1995:459).

236 Gerda Falkner A further significant development is the recent increased stress on correct implementation of EC law. In its Francovich ruling 1991, the ECJ introduced liability of the member states for damage resulting from incorrect or non-implementation of Directives. Furthermore, the Maastricht Treaty provided for fines against governments which do not follow an ECJ ruling (Article 171 ECT). Closing the implementation gap and strengthening the fight against fraud is also one of the few issues where the UK will not try to block reforms during the 1996 IGC. Thus, the prospective members will have to accept not only more, but also more binding rules than former applicants faced at the time of their applications. The club that they wish to join is likely to have a much stricter set of club rules!7 Clearly, the fact that so many additional candidates want to take over such far-reaching duties is partly the result of much-debated economic and security considerations. However, there are also political aspects to be taken into account. Contradicting the suggestion that European integration is a zero-sum game (i.e. if the Union gains in political influence the member governments necessarily lose an equivalent amount), researchers have focused increasingly on European integration as a reaction to general economic and political trends, providing rather beneficial effects for national polities, in particular for governments and their administrations. The west European welfare states have reached a new stage of development, in which they can no longer independently meet increased welfare provision due to increased internationalisation of economies. Thus, joint management of regional and global interdependence becomes increasingly attractive.8 Also, the EU has been seen as providing the governments with a tactical advantage vis-à-vis other national actors. The Union can be viewed as an additional arena for action, allowing them to strategically employ both the European and the national environments in order to increase their action capacity in a ‘two-level-game’ (Putnam 1988) or ‘nested game’ (Tsebelis 1990). Thus, powerful interest groups at the national level can sometimes be circumvented via the EU channel. One well-known example of this phenomenon was that the Austrian membership application in part reflected the leading politicians’ impression that only with the EC internal market as a ‘whip in the window’ (Schneider 1990:102), could the existing structure of economic protectionism be dissolved, in the face of a variety of vested interests embedded in Austrian politics. Also, the ‘mantle of the EC adds legitimacy and credibility to Member States initiatives’ (Moravcsik 1993:515). This is probably even more relevant in most of the reform countries, whose governments still have to establish trust in the newly created pluralist political systems. If the belief in political traditions and a country’s own political elite is weak, being embedded in a larger political system may add significantly to the stability of the national political system by providing legitimacy (Rupp 1995:7). What appears as a general benefit to many if not all EU governments might, therefore, be a special membership incentive for the CEEC’s political leaders. However, while the Union’s attraction to even more prospective members is obvious, the former’s willingness to prepare for accommodating them is not so obvious. So far there is only consensus on the need (not the details) of internal reforms: ‘The next enlargement will be different from the previous ones because of the large number of applicant countries and the heterogeneity of their political, economic and social situations. To ensure that the next enlargement does not weaken or actually break up the Union, the changes needed to cope with the challenge involved must first be made’ (Westendorp 1995:4).

Enlarging the European Union 237 THE INTERNAL PERSPECTIVE: NECESSARILY SMALL OR SHALLOW? In their recent work on integration theory and enlargement, Miles et al. have stressed that ‘intergovernmentalism provides a more appropriate paradigm for the examination of enlargement’ than neo-functionalism (Miles et al. 1995:1; see also Miles and Redmond 1995). While acknowledging that neo-functionalism should not be wholly discarded, they state: ‘The central point governing the theory-enlargement relationship is a simple one: namely, further enlargement increases the diversity of national interests and ideological perspectives between member states and their respective elites. Successful spill-over requires prior programmatic agreement among governments which is more difficult to reach with a larger EU’ (ibid: 18). While it is obvious that, in general, an increase in numbers makes the search for compromise in the policy-making process more difficult, the specific structural conditions of a wider Union still play a decisive role and may significantly limit the single governments’ de facto potential for action. Without entering this discussion in detail, it is important to highlight several features which might compensate for intergovernmentalist tendencies in EU policy-making, even after a more than expected widening. By joining the EU, a country enters a new political arena which subsequently exercises significant influence on the definition of the country’s proper interests. For the sake of the wider enterprise as such, governments occasionally do sacrifice what seems to be, at the first glance, in its ‘national interest’ (in the narrow sense). This is specifically crucial in the area of institutional reform. To give one practical example, it is in principle against a small member state’s interest to allow for a reduction of unanimous voting or for a re-weighting of votes in the Council of Ministers. Both contribute to their over-representation in the EU policy-making process. De facto, however, one of the small countries, Austria, has already signalled its willingness to compromise in the IGC 1996, as the efficiency of the decision-making process (and thus the overall success of the integration enterprise) is considered more important to Austria in the end. Clearly, such Community-oriented behaviour is not always the norm, and in general some countries (or, more precisely, governments) are more ‘awkward partners’ than others (George 1990; 1991) in the sense of sharing common long-term goals. Over time, however, the Union’s time scale for major decisions is often longer than the lifespan of a national government. Thus, Britain could enter the Union after de Gaulle’s retreat; and the forthcoming IGC might bring about fundamental reforms under a new British government more favourable towards further European integration. As an additional argument in support of intergovernmental tendencies, Miles and Redmond suggest that governments tend to retreat into intergovernmentalism during economically more difficult phases: hence, intergovernmentalism might better explain current events (Miles and Redmond 1995:13). They suggest that, during the 1970s, integration was restricted by the onset of recession in the aftermath of the 1973 oil crisis. This seems, however, less plausible for the 1990s because truly independent national strategies—most notably tried in France during the early 1980s—have been widely discarded as viable options. Furthermore, internationalisation (e.g., of the financial markets, but also in many other areas of governance; Jachtenfuchs and Kohler-Koch 1995) has progressed to an extent hardly imaginable twenty years ago. This also discourages nationalist resurgence. Finally, even Miles and Redmond admit that ‘possibly neo-functionalism…may again become applicable in an EU of twenty or more in which majority voting has become a necessity to avoid stagnation’ (Miles and Redmond 1995:14). The debates preceding the 1996 IGC,

238 Gerda Falkner however, show that the further extension of majority voting is already a central issue, alongside several other procedural innovations to the policy-making process which could significantly ease functional spill-over (see below). It is more realistic to suggest, therefore, that the specific working conditions of a Union of fifteen-plus member states, rather than the size per se, will be decisive in terms of any revival of intergovernmentalism vis-à-vis more supranational characteristics.9 Also, looking at the US, there can be little doubt that a political system of between twenty and thirty members is workable. Regardless of the striking imbalances regarding size and population of the single states, the US manages the accommodation of diversity via a bicameral system, with equal representation in the Senate (two members per state dis-regarding unequal sizes) and proportional representation within the Congress. Within the EU, a comparable political system should be able to handle any foreseeable increase in membership without drastically reducing efficiency and policy innovation. Including the existing or more imminent associated countries, the Union would still have only about half the number of states as the US. Yet, there is so far no federal commitment comparable to the American approach, in terms of the absence of a veto power for single participants. Is such a ‘qualitative leap’, which would clearly facilitate further widening, realistic in the near future? Are the fifteen ready to move from an entity which is sui generis (i.e., unique in the sense of being located somewhere between the poles of traditional intergovernmental organisations and a federal state) to the ‘United States of Europe’? During the most recent accession negotiations, institutional and procedural changes to the policy-making process were kept to the absolute minimum because of opposition from some existing member states. ‘What was clearly downgraded in the EC assessment were the multiple dilemmas of this widening. The potential for tensions based on a new regional imbalance of North-South components in a larger Community were put aside. An EC with 5 large and 11 small and medium-sized states presented another distributional conflict’ (Laurent 1994:131). The latter problem was eventually addressed during the quarrel over the new blocking minority in spring 1994. In the so-called ‘Compromise of Ioannina’, Spain and Great Britain jointly prevented the automatic change of the blocking minority from twenty-three (EC12) to twenty-six votes (EC15). Nevertheless, there are some signs of possible reform. In the debate leading up to the IGC, both EU institutions and experts have presented quite far-reaching ideas and demands. Even if not adopted during this IGC, these reform models will stay on the Union’s agenda and will shape any further debate. Thus, the introduction of a classic two-chamber system, the reform and extension of the co-decision procedure, a reform of voting procedures in the Council, have been much debated (Falkner and Nentwich 1995) and are also central to the work of the Reflection Group. As regards decision-making on secondary legislation, ‘a majority maintains that the enlarged Union would appear to require the extension or even the generalisation of the qualified majority, for reasons of efficiency’ (Westendorp 1995:11). Formulae, intermediate between unanimity and qualified majority (‘extra strong majority’), are studied in depth. It even seems that, for the first time in EU history, the wish of a majority of the member states to deepen the Union might prevail over the status-quo oriented interests of a minority. One way of tackling the problem of different aspirations and perceptions concerning the further development of the Union could be the introduction of a so-called ‘let-out clause’. The European Parliament advocates proceeding without the minority if, at the IGC ’96, ‘despite broad agreement among a

Enlarging the European Union 239 majority of Member States and peoples of the European Union’ no unanimous decision can be reached. This could be made effective by ‘instruments to enable a Member state to leave the EU, subject to meeting certain criteria’ (Resolution 17. 5. 1995, PE 190.441, pt 17). Even the governmental representatives in the Reflection Group embarked on the study of a possible ‘crisis scenario’ for the IGC, including the introduction of ‘changes in the ratification process’ (Westendorp 1995:6). This debate might, however, be a ‘whip in the window’ only for the UK Tory government with its ‘entirely different conception of the united Europe’ (Greek Prime Minister Papandreou, see Europe 26 June 1994:1). If, in the event, unanimous agreement remains the relevant decision-mode in the IGC, expectations that the necessary unanimity on a major constitutional reform would be easily achieved might seem premature. Thus a pragmatic solution might result, despite the fact that at first glance, the ‘deepening first’ school of thought (which stresses that only an efficient and democratic Union can serve as viable pole of stability; see Wessels 1993) has so far prevailed in the ‘widening’ debate. Some intermediate approach, halfway to the ‘widening first’ approach (whose adherents stress the moral obligation to help and the need for stability in Europe, and prefer a pragmatic trial and error process instead of what they perceive as a doctrinal strategy for institutional reform) might seem useful. This would be nothing new: so far, the history of the EU has provided for incremental reform rather than for qualitative leaps. But is it realistic to think that some minor adaptations to the policy-making process could be enough, or would a CEEC-widening be more of a ‘quantitative leap’, necessitating a ‘qualitative leap’? A MINIMALIST MODEL? Closer analysis reveals that even in a scenario with only minimalist deepening prior to further widening, unavoidable reforms would be far-reaching. Concerning the institutional system, excessive size has to be prevented. Already, the Commission has expanded from a collegium of nine to one of twenty members; a minimum adaptation for a further enlarged Union might reduce the number of Commissioners for each large member state from two to one. It is also suggested that the new mini member states Malta and Cyprus should not have a Commissioner at all (Dinan 1995:15). Within the European Parliament, the number of members (626 for an EU of 15) can, for practical reasons, not increase much further, so that a reduction of current national members’ numbers seems necessary following enlargement. Concerning the internal procedures of the Union’s institutions, a key question is the costly use of many languages (Ungerer 1993:81f). Within an unchanged model of the Council of Ministers, further widening would at least challenge the present system for the presidency. Laurent (1994:137) suggests a troika consisting of Liechtenstein, Luxemburg, and Malta, followed by one of Poland, Portugal, and the Slovak Republic. As an innovative model, one could modify the UN Security Council’s permanent and non-permanent membership, or introduce a system of elected membership in a team presidency, with at any given time one big, some mediumsized or small, and sometimes also a mini state participating. Furthermore, a re-weighting of Council votes is being debated in order to eliminate two effects of automatic extrapolation of the present system to a Union of, say, twenty-eight members: first, a minority of 47 per cent of the European population could in principle constitute a qualified

240 Gerda Falkner majority and, second, the smaller states of eastern and central Europe acting as a group could form a blocking minority (Charlemagne 1995:65). But even with such innovations, efficient policy-making is hardly plausible in a Union of fifteen-plus member states without generalised majority voting. This, however, represents a major change. Without it, however, a large Union might find policy innovation difficult—even if techniques such as mutual recognition or the delegation of competences to ‘independent agencies’ (Scharpf 1994; Majone 1992) might partially replace political decision-making: in that case the larger Union may only consolidate the more or less accomplished tasks, like the internal market. Such a politically-minimalist version of Europe would, however, certainly contradict the ideals of many participating politicians and peoples. Even if some smaller reforms in the institutional field might technically still allow for the inclusion of the countries already queuing up (assuming that even less efficiency in decisionmaking is preferred to more profound innovation limiting single governments’ powers), at least two crucial policy questions remain to be tackled before admission of the CEEC seems possible: how can the current budgetary and structural policies be adapted? The financial issue touches the very core of European integration: ‘At the economic core of the integration model is a balance between attaining economic efficiency through competition and free trade on the one hand and mitigating the effects of rapid adjustment to economic change on the other’ (Smith and Wallace 1994:433). While the EFTA widening actually improved the Union’s budgetary performance and therefore its capacity to counteract unwelcome effects of increased competition, any of the likely further widenings will have adverse effects. The figures given so far are quite diverse and suffer from a lack of reliable data from the CEEC (Schneider 1995:275), however, the absolute net costs of including all ten interested CEEC in the year 2000, under the current schemes, might add up to 30 billion ECU. ‘This would be a share of 0.4 per cent of EU-GDP or 29 to 31 per cent of total budget expenditures of the EU in 2000. This would imply that each of the fifteen EU incumbents would have to increase their net payments by 0.4 per cent of their GDPs in order to finance the net transfers to the CEECs’ (Breuss 1995:13). The Commission report to the European Council of Madrid in December 1995, on possible reforms of EC policies with a view to enlargement, indicated that enlargement is seen as ‘costly but manageable’ (Financial Times 30 November 1995). In addition to indispensable policy reforms, the current member states ‘will have to make additional budgetary efforts’ (Europe 30 November 1995:6). The decision-making process will be far from easy: while a ‘Community’ that gives new entrants comparatively less structural fund support than existing members is hard to imagine, it is by no means evident that ‘older’ members would sacrifice current benefits in order to make a wider Union financially feasible. If functional arguments might be mobilised in the case of the Common Agricultural Policy’s reform (a more market and environment-oriented agricultural policy seems reasonable anyway), this is less obvious (so far) concerning the structural policies which have always been a vital pay-off to the less-developed EC members for opening up their markets. There are much broader questions than structural and policy issues, however. Thus, the question of diversity in structure and political ambitions has made the subject of differentiation within the project of European integration a major issue of the IGC1996 (and probably beyond).10 The concepts put forward are located on a continuum extending between the poles of unity on the one hand, and flexibility on the other. Under the most ‘unitarian’ solution all ‘common’ policies are conducted by all members of the Community jointly. Thus, no flexibility

Enlarging the European Union 241 in terms of participation in principle, or even in time, is allowed for. Departing from this original pattern of the European Economic Community, co-operation outside the Treaties has taken place between some of the member states for a long time already (e.g., European Monetary System, Schengen Agreement). In terms of primary EC law, however, the concept of a completely unitary Community has been finally abandoned at Maastricht, where opt-outs from political goals agreed on by the others were granted to the UK and Denmark. In terms of classifying flexible models of European integration, three criteria are useful: goals (are they shared by all member states or not?); speed of goal achievement (are some members given more time than others for reaching specific goals?); and independence for single members concerning opting-in or opting-out (is this allowed at any point of time or not? Is it possible for groups of member states only?). Within the extremely flexible option of a ‘Europe à la carte’ or ‘pick and choose Europe’, each member state decides individually in which policy area ‘on the menu’ it wants to participate, without in principle being concerned by effects on or costs of the others (no common goal, maximal flexibility for the single member state). A first step towards this strategy is the opt-out of the UK from the social policy innovations of the Maastricht Treaty. In its most far-reaching variant, this model would allow for national choices to be reversed at any given point in time, subject only to prior notification to the European partners (and not only in IGCs). In contrast, a ‘Europe of several speeds’ or ‘multiple tracks’ implies that all member states jointly decide which policies to pursue (common goals), but then allow for temporary derogations for those members which cannot or do not want to proceed at the same speed as others. EMU as provided for in the Maastricht Treaty is an example of such a strategy,11 and the same is true for the tradition of granting transitional periods to new member states. Between the two options of ‘pick and choose’ (maximum flexibility concerning goals and participants) and ‘Europe of several speeds’, a choice of variants is possible. Thus, a ‘hard core’ of EU member states (or ‘Kerneuropa’) implies that an inner circle of countries would participate in all policy areas which are included in the Treaties, while the other members which cannot or do not want to do so would constitute less involved layers ‘around’ them. The concept of ‘variable geometry’, on the other hand, is slightly more cohesive as all member states would have to participate in some European policies, but diverse groups of members could participate in further fields of European activity (without, however, as much flexibility for individual members as in the model of ‘pick and choose’). In a nutshell: ‘hard core’ means that some members participate in all policies, whereas ‘variable geometry’ implies that all members participate in some specific areas. Clearly, these concepts are not mutually exclusive. Politically, there is a mainstream preference for models of ‘variable geometry’ which nevertheless respect both the acquis communautaire and the integrity of European integration in terms of external representation and internal cohesion (Westendorp 1995:6). If this is the outcome of the IGC 1996, increased flexibility would be applied to areas of additional Union activities only. Thus, at least two of the typical features of the ‘classical Community method’ (Preston 1995) for enlargement might still prevail in the future: applicants have to accept the existing EU law in full, without any permanent derogations; and the formal accession negotiations focus on the practicalities of the applicants taking over the acquis. Under this scenario, however, current EU policies would have to be ‘managed’ by a much larger group than at present—which brings the necessity of a ‘qualitative leap’ in institutional reform back on to the agenda.

242 Gerda Falkner At the time of writing, the EU’s internal reforms are still in the making. Concerning its strategy vis-à-vis the new applicants, however, some guiding principles had to be developed in earlier periods. Compared to former widening exercises, it seems that the Union is trying to repeat its successful practices of the early 1990s. HANDLING THE TIDE: PAST AND PRESENT UNION STRATEGY Since the 1951 Paris Treaty on the European Coal and Steel Community (see Article 98), the EC had always been open for an expanded membership, subject only to the condition that applicants be ‘European’. Nevertheless, widening has never been a politically easy task. This is true for the handling of negotiations for membership by the Union as much as for the necessary adaptations in the new member states. In all cases, enlargement ‘defined as joining and truly adhering to the integrated conditions of the member states, has been a painfully slow and internally combative process’ (Laurent 1994:128; see Tovias 1995, on Spain). This is true despite the fact that since the first Mediterranean widening, the new entrants have regularly had prior bilateral trade agreements with the Union. Thus, the Greek Association Agreement with the EC was signed in 1961, with a provision for incorporation into the EC when the progress of its economy allowed Greece to fully assume the obligations involved. During the military regime of 1967–74, however, the Association Agreement was virtually suspended. Immediately after having been elected, civilian Prime Minister Karamanlis stated that Greece wanted to become an EC member, and in June 1975 the formal application was submitted. The European Commission opinion on Greek membership emphasised the economic problems that an accession might imply for Greece as well as for the EC, and suggested a preaccession period of unspecified duration. But the Council unanimously rejected this document, and opened negotiations on Greek accession in July 1976 (for details of this widening see Seers and Vaitsos 1986; Tsoukalis 1981). Also, Portugal and Spain had concluded bilateral trade agreements with the EC long before their accession, but the application of those agreements was again hampered by the authoritarian political circumstances in the two states. Their membership negotiations, officially started by October 1978 and February 1979 respectively, were the longest conducted by the EC so far. The major stumbling blocks were internal EC problems with the financing of new EC policies (‘Integrated Mediterranean Programmes’) and the long-term budget crisis. The UK insisted on rebates to offset its still disproportionate contributions, as well as on increased budgetary discipline, curtailment of agricultural spending seemed indispensable—and a general relaunch of the Communities desirable. Those issues could not be resolved until the 1984 Fontainebleau meeting of the European Council, when the official date was also set for Spanish and Portuguese accession. Before the recent EFTA widening, the EC had for the first time made the conclusion of an intergovernmental conference a necessary condition for further enlargement. The Union wanted to fully implement the Internal Market Programme and set the pace for EMU before accommodating new entrants. The negotiations on this third EC widening round were significantly eased by the fact that the EEA agreement had already transferred sizeable parts of the EC’s economic acquis into the EFTA states. Furthermore, there was a strong political will to include those wealthy and stable democracies, therefore, an innovative negotiation tactic was chosen: for the first time, only the General Affairs Council (and not the more

Enlarging the European Union 243 specialised Councils) negotiated with each of the four applicants (Granelli 1994). Despite the fact that the 1993–4 enlargement negotiations involved a large number of applicants, they were the least problematic and most rapid and the agreed transition periods are shorter than previously (Cameron 1995:33). It seems that what the Council had still rejected in the Greek case, i.e. longer pre-accession periods and an early rapprochement to the acquis communautaire, had meanwhile shown beneficial effects in the EFTA enlargement round (EFTA-EC free trade since 1970s; EEA since 1994)—and will thus be applied systematically in the future. Confronted with the changing geopolitical situation and increased interest in membership during the late 1980s, the Union initially reacted by concluding trade and co-operation agreements, and by organising the PHARE 12 programme for economic assistance.13 In August 1990, the Commission proposed moving to associated status with the so-called ‘Europe agreements’ (see Sedelmaier 1994). By late 1995, ten such treaties existed with Hungary, Poland, Czech and Slovak Republics, Bulgaria, Romania, Slovenia, Lithuania, Estonia and Latvia. Those agreements aim at gradually establishing free trade by asymmetric abolition of tariffs within ten years (the Union proceeds faster than its associates; for more detail, see Jaks 1993:242ff; Randzio-Plath and Friedmann 1994). Parallel to further economic aspects, such as restricted free movement of services and common competition rules, some political and cultural co-operation is also established through common institutions. But as the ‘Europe association’ formula, de facto, provided only very limited new opportunities both economically and politically and fell short of concise ideas on a sound European architecture, a certain ‘EEA effect’ (Smith and Wallace 1994:431f) was produced: disappointed associates head towards full membership even faster. Thus, the queue in front of the EU’s door gets longer and longer. In June 1994, the European Council decided at Corfu that Cyprus and Malta will be part of the next group to negotiate membership after the 1996 IGC. 14 After the European Council of Essen (December 1994), the German Presidency stated that accession of the CEEC was ‘no longer coming under challenge’ (Europe 15 December 1994:2). The Essen summit, though not agreeing on any timetable for accession to the Union, decided on what is called a comprehensive strategy for preparing the CEEC (including the Baltic states and Slovenia) for individually processed accessions. This includes, in addition to the current meetings of the individual Association Councils, enhanced ‘structured relations’ bringing together heads of state and government as well as ministers on a regular basis in order to debate multi-nationally matters of common interest within Community areas, especially those with a trans-European dimension. In addition, preparation for the Internal Market is at the heart of the pre-accession strategy. In its ‘White Paper on the preparation of associate countries of Central and Eastern Europe for the Community’s internal market’, presented to the Cannes European Council (June 1995), the Commission set out in detail indispensable legislative measures as well as technical and administrative structures. Even without joining the EEA as the EFTA applicants did, the CEEC will thus have to adopt much of the acquis communautaire well ahead of membership. Thus, the Union urges a process of re-direction of the CEEC towards the EU orbit, while the EU itself gains time for its proper repositioning with a view to accommodating even more members in its policy-making process and meeting the challenges of the years post-2000.

244 Gerda Falkner NOTES 1 This delay was due to the French veto of the British application in 1961, which brought all four membership applications to a temporary halt. 2 After a negative referendum, Norway did not become a member but stayed within the ‘non-supranational’ European Free Trade Area (EFTA). 3 On the EFTA applications and negotiations see Wallace 1991; Michalski and Wallace 1992; Luif 1994; Journal of Common Market Studies 1995/3. 4 This was mainly because the EC, contrary to initial expectations, did not give up its decision-making autonomy. This meant that only EC law, decided upon by the Union members exclusively, could (by unanimous decision) develop into EEA law. Furthermore, the judicial system initially agreed upon was declared incompatible with the Treaty of Rome by the EC Court of Justice, so that the proposed EEA Court had to be dropped. In short, the final say on the interpretation of EC (and, as the two are normally identical, de facto also EEA) law lies with the EC Court. The Union is thus clearly a somewhat hegemonial actor within the EEA. In economic terms, the EEA constitutes an improved free trade area (with exemptions such as agricultural goods), but no Customs Union (for further information see Schwok 1991). 5 The Swiss 1992 membership application was suspended after the negative referendum on the EEA. 6 The co-operation agreements signed with Russia and the Ukraine, in June 1994, do not—in contrast to the ‘Europe agreements’ with the above-mentioned states (see below)—contain any provisions mentioning possible future membership. 7 See Bradley 1993 for a debate of necessary reforms in implementation and control. 8 See Wessels’ ‘fusion thesis’ 1992 and Jachtenfuchs and Kohler-Koch 1995. 9 In the process which led up to the Copenhagen European Council (June 1993) the basic decision was that the Associated States, which so wished, should be welcome members. Thus neo-function-alist patterns seemed to prevail. Under purely intergovernmentalist assumptions, the fact that several member states had no particular interest in further widening and even faced the prospect of funding financial transfers should have prompted vetoes (at least as long as the necessary preconditions had not been met). In fact, a kind of ‘advocacy coalition’ (Sabatier and Jenkins-Smith 1993) consisting of pro-widening advocates in various national governments (notably Germany), pressure groups (ETUC, Round Table of Industrialists), EC institutions (Commission Task Force) etc., was successful in pushing for a prowidening decision in principle. However, the date and the precise terms were left open and were conditional on a further deepening of the Union. 10 The following draws on Falkner and Nentwich 1995. 11 However, the British and later the Danish were in the end allowed to opt-out in Protocols to the Treaty. 12 ‘Poland and Hungary: Assistance for Restructuring Economies’. 13 The GDR was treated as a special case when it entered the FRG on 3 October 1990 (for the course of events and an analysis of the background to the East German EC entry, see Kohler-Koch 1991). 14 This was mainly to satisfy those EU members whose interests lie in the south rather than the east of Europe. Furthermore, a ‘Mediterranean Agreement’ was signed in November 1995 with twelve neighbours of the Union, providing for the successive establishment of a free trade area until 2010. The Customs Union with Turkey was, after much debate, consented by the European Parliament in December 1995.

REFERENCES Anderson, J.J. (1995) ‘The State of the (European) Union. From the Single Market to Maastricht, from Singular Events to General Theories’, World Politics 47:441–465. Bradley, K.S.C. (1993) ‘The Increase of Effectiveness: Problems of Implementation (in the Light of a Possible Enlargement)’, in Wessels, W. and Engel, C. (eds) The European Union in the 1990s— ever closer and larger?, Bonn: Europa Union Verlag. Breuss, F. (1995) Costs and Benefits of EU’s Eastern European Enlargement, WIFO Working Papers (78), Vienna. Cameron, F. (1995) ‘Keynote Article: The European Union and the Fourth Enlargement’, in Nugent, N. (ed.) The European Union 1994, Oxford: Blackwell. ‘Charlemagne’ (1994) ‘L’Equillibre entre les Etats membres’, in Volume in Honour of Niels Ersboll, Bruxelles.

Enlarging the European Union 245 Church, C.H. (1994) ‘Theorizing the Expansion of Western Europe’, 1994 ESCA World CongressProceedings, (pages from manuscript). Dinan, D. (1995) ‘The Commission, Enlargement, and the IGC’, ECSA Newsletter, 2, 8:13–16. Europe, agence international pour la presse (daily), Luxembourg and Bruxelles. Falkner, G. (1995) ‘Österreich und die Europäische Integration’, in Sieder, R., Steinert, H., Tálos, E. et al. (eds) Österreich 1945–1995, Wien: Verlag für Gesellschaftskritik. Falkner, G., and Nentwich, M. (1995) ‘European Union: Democratic Perspectives after 1996’, Schriftenreihe des Forschungsinstituts für Europafragen, (13), Vienna: Service Fachverlag. George, S. (1990) An Awkward Partner: Britain in the European Communities, Oxford: Oxford University Press. George, S. (1991) Britain and European Integration since 1945, Oxford: Blackwell. Granelli, F. (2 December 1994) ‘The Accession Negotiations’, speech held at the UACES Conference, ‘The 1995 Enlargement of the EU: Austria, Sweden, Finland and Norway?’, London. Jachtenfuchs, M., and Kohler-Koch, B. (1995) ‘The Transformation of Governance in the European Union’ paper prepared for delivery at the Fourth Biennial International Conference of the European Community Studies Association, Charleston, South Carolina, May 11–14. Jaks, J. (1993) ‘The EC and Central and Eastern Europe’, in Andersen, S. and Eliassen, K. (eds) Making Policy in Europe. The Europeification of National Policy-making, London: Sage. Journal of Common Market Studies (1995), special issue on Enlargement of the European Union 33, 3. Kohler-Koch, B. (1991) ‘Die Politik der Integration der DDR in die EG’, in Kohler-Koch, B. (ed.) Die Osterweiterung der EG, Baden-Baden: Nomos. Laurent, P.-H. (1994) ‘Widening Europe: The Dilemmas of Community Success’, Annals (AAPSS), 531:124–140. Laursen, F. (1993) ‘The EC in Europe’s Future Economic and Political Architecture’, in Andersen, S. and Eliassen, K. (eds) Making Policy in Europe. The Europeification of National Policy-Making, London: Sage. Luif, P. (1994) ‘Die Beitrittswerber: Grundlegendes zu den Verhandlungen der EFTA-Staaten um Mitgliedschaft bei der EG/EU’, Österreichische Zeitschrift für Politikwissenschaft 23, 1:21–36. Majone, G. (1992) ‘Regulatory Federalism in the European Community’, Government and Policy 10: 299– 316. Michalski, A., and Wallace, H. (1992) The European Community: The Challenge of Enlargement, London: Royal Institute of International Affairs. Miles, L., and Redmond, J. (1995) Integration Theory and Enlargement, paper presented to the second PanEuropean Conference on International Relations, 13–16 September, Paris. Miles, L., Redmond, J., and Schwok, R. (1995) ‘Integration Theory and Enlargement of the European Union’, in Mazey, S. and Rhodes, C. (eds) The State of the Union vol. 3: Building a European Polity?, Boulder: Lynne Rienner/Longman. Moravcsik, A. (1993) ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’, Journal of Common Market Studies 31, 4:473–523. Nicholson, F., and East, R. (1987) From the Six to the Twelve: The Enlargement of the European Communities, Harlow: Longman. Preston, C. (1995) ‘Obstacles to EU Enlargement: The Classical Community Method and the Prospects for a Wider Europe’, Journal of Common Market Studies 33, 3:451–463. Putnam, R.D. (1988) ‘Diplomacy and Domestic Politics’, International Organization 42:427–661. Randzio-Plath, C., and Friedmann, B. (1994) Unternehmen Osteuropa—eine Herausforderung für die Europäische Gemeinschaft: Zur Notwendigkeit einer EG-Ostpolitik, Baden-Baden: Nomos. Redmond, J. (1993) The Next Mediterranean Enlargement of the European Community: Turkey, Cyprus and Malta?, Aldershot: Dartmouth. Rupp, M.A. (1995) The European Union and the Challenge of Eastern Enlargement, paper for the second Pan-European Conference in International Relations, 13–16 September, Paris. Sabatier, P.A., and Jenkins-Smith, H.C. (eds) (1993) Policy Change and Learning: An Advocacy Coalition Approach, Boulder, Co: Westview Press. Scharpf, F.W. (1994) ‘Community and Autonomy: Multi-level Policy-Making in the European Union’, Journal of European Public Policy, 1, 2:219–239. Schneider, H. (1990) ‘Alleingang nach Brüssel, Österreichs EG-Politik’, Europäische Schriften (66): Bonn. Schneider, H. (1994) ‘Gerader Weg zum klaren Ziel? Die Republik Österreich auf dem Weg in die Europäische Union’, Österreichische Zeitschrift für Politikwissenschaft 23, 1:5–21.

246 Gerda Falkner Schneider, M. (1995) ‘EU-Osterweiterung: Probleme, Lösungsansätze und Folgen im Agrarbereich’, in Staatssekretariat für Europäische Angelegenheiten (ed.) Europa 1996. Auswirkungen einer EUOsterweiterung, Wien: Verlag Österreich. Schwok, R. (1991) ‘EC-EFTA Relations’, in Hurwitz, L. and Lequesne, C. (eds) The State of the European Community, Boulder: Lynne Rienner/Longman. Sedelmaier, U. (1994) ‘The European Union’s Association Policy Towards Central Eastern Europe: Political and Economic Rationales in Conflict’, Working Papers in Contemporary European Studies 7, Sussex European Institute: University of Sussex. Seers, D., and Vaitsos, C. (eds) (1986) The Second Enlargement of the EEC. The Integration of Unequal Partners, Basingstoke: Macmillan. Smith, A., and Wallace, H. (1994) ‘The European Union: Towards a Policy for Europe’, International Affairs, 3:429–444. Tovias, A. (1995) ‘Spain in the European Community’, in Gillespie, R., Rodrigo, F. and Story, J. (eds) Democratic Spain: Reshaping External Relations in a Changing World, London: Routledge. Tsebelis, G. (1990) Nested Games: Rational Choice in Comparative Politics, Berkeley and Los Angeles: University of California Press. Tsoukalis, L. (1981) The European Community and the Mediterranean Enlargement, London: Allen and Unwin. Ungerer, W. (1993) ‘Institutional Consequences of Broadening and Deepening the Community: The Consequences for the Decision-Making Process’, Common Market Law Review, 30:71–83. Wallace, H. (1989) Widening and Deepening: The European Community and the New European Agenda, London: Royal Institute of International Affairs. Wallace, H. (ed.) (1991) The Wider Western Europe: Reshaping the EC, London: Pinter for RIIA. Wallace, H. (1993) Deepening and Widening: Problems of Legitimacy for the EC, in García, S. (ed.) European Identity and the Search for Legitimacy, London/New York: Pinter. Wessels, W. (1992) ‘Staat und (westeuropäische) Integration. Die Fusionsthese’, Politische Vierteljahresschrift, Sonderheft 23:36–61. Wessels, W. (1993) ‘Deepening Versus Widening? Debate on the Shape of EC-Europe in the Nineties’, in Wessels, W. and Engel, C. (eds) The European Union in the 1990s—Ever Closer and Larger?, Bonn: Europa Union Verlag. Westendorp, C. (1995) Progress Report from the Chairman of the Reflection Group on the 1996 Intergovernmental Conference (SN 509/1/95), 1 September 1995, Madrid.

CHRONOLOGY OF EU MEMBERSHIP AND APPLICATIONS 1951 1957 1961 1973 1975 1977 1981 1986 1987 1989 1990 1991 1992 1994 1995 1996

Paris Treaty establishing the European Coal and Steel Community signed Rome Treaties establishing the European Economic Community and the European Atomic Energy Community signed. Ireland, Denmark, Norway, and the United Kingdom applied for membership British, Danish and Irish accession (vote against membership in Norway) Greece applied for membership Spain and Portugal applied for membership Greek accession Accession of Spain and Portugal; signature of the Single European Act Turkey applied for membership (application set aside after negative Commission Opinion in 1989) Austria applied for membership Accession of former GDR; Cyprus and Malta applied for membership Sweden applied for membership Maastricht Treaty on European Union signed; agreement on the European Economic Area (EEA) signed Finland, Norway, and Switzerland applied for membership (Swiss application suspended after negative referendum on EEA) Hungary and Poland applied for membership; second negative referendum in Norway Austrian, Finish, Swedish accession. Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia applied for membership Czech Republic, Slovenia applied for membership

14 The EU as an international actor Michael Smith

INTRODUCTION From the beginning, the European Communities and now the EU have had to exist in a changing international context; indeed, many treatments of the history of European integration place great weight on the international dimension of both the foundation and the development of the phenomenon (Story 1993; Wallace, W. 1990; Pinder 1991a). The EU, as will be shown in more detail later in this chapter, is also a major presence in the contemporary global arena. It is thus not surprising that there should have been consistent and growing attention to the international ‘credentials’ of first the EC and then the EU. To state this position, though, is to beg a central question. Although the EU is a major component of the contemporary world arena, just what is its status, role and impact? At one end of the spectrum, there are those who can discern a progression in the EU towards full-fledged international ‘actorness’, comparable to that of the national states that comprise the major concentrations of power in world politics. But such views have to wrestle with the inconvenient fact that the EU is not a ‘state’ in the accepted international meaning of the term, although it undoubtedly demonstrates some ‘statelike’ features. Notwithstanding its ability to act in the economic and diplomatic fields, the EU does not yet possess a coherent security policy or even the beginnings of a European-level defence policy (Hill 1990, 1993, 1995; Smith 1994a). Thwarted in the search for an EU version of statehood, others have attempted to define the EU as a growing and increasingly structured ‘presence’ in the international arena, with its own forms of international behaviour and influence, and most significantly an important place in the foreign policies of other international actors, whether they be states or non-state groupings (Allen and Smith 1990). Thus, the EU cannot be avoided by national foreign policy makers, nor can it be bypassed by international organisations such as the United Nations. This approach has its undoubted advantages, not least that of finessing the issue of statehood, but it also begs major questions. Perhaps most importantly, it raises the issue of relations between the EU’s ‘presence’ and the persistence of the essentially national powers of the EU’s member states themselves (Hill 1995). Whatever the position taken on the EU’s claims to ‘actorness’ or ‘presence’ in the international arena, the analyst must take into account two crucial aspects of the EU’s international existence. First, the EU is not simply an ‘actor’ or a ‘presence’ but also a process; a set of complex institutions, roles and rules which structure the activities of the EU itself and those of other internationally significant groupings with which it comes into contact. Second, the EU as ‘actor’, 247

248 Michael Smith ‘presence’ and ‘process’ exists today in a world which has changed greatly, not to say fundamentally, since the foundation of the ECSC, the Treaty of Rome or even the Single European Act. These, then, are the two central questions which act as the focus for this chapter. First, what is the evidence that the EU is moving towards full-fledged ‘actorness’ in the international arena, adding new focus and impact to its established presence and processes? Second, what role does the EU play in the new Europe and the new world of the 1990s, and how does that role reflect the unique status of the EU? On the basis of the discussion of these two areas, the chapter also attempts to project the possible future development of the EU’s international role. The structure of the chapter reflects the agenda set out above. First, it deals with the foundations, both institutional and political, of the EU’s international role and impact. Second, it assesses the pattern of issues, interactions and relationships that constitute the substance of the EU’s international life; and finally, it evaluates the models available to describe and explain the EU’s international policy-making. THE FOUNDATIONS As already noted, the EU derives much of its international role and impact from the foundations on which it is built. Perhaps the most obvious, yet also problematical of these foundations, is the EU’s international ‘weight’. In particular, the fact that the EU accounts for a large proportion of the world’s economic activity and is the world’s champion trader, creates an inevitable focus on the extent to which, and the ways in which, the weight is translated into international outcomes. The difficulty, as Chris Hill has ably pointed out, is that there is a ‘capability-expectations gap’: to put it bluntly, the EU does not deliver consistently on the raw material given to it by the economic prosperity and muscle of the system it has developed. By implication, the conversion of muscle into meaningful action is deficient (Hill 1993). This theme will be developed further later in the chapter, but at this stage it leads directly into a discussion of the institutions and the politics of EU external policy-making. The EU’s international role rests explicitly on the constitutional base established in the treaties, but that base is neither comprehensive nor unambiguous. It is least unambiguous in the area of the Common Commercial Policy and the EU’s international trade policies. Article 113 of the Treaty of Rome gave the European Economic Community the responsibility for conducting the trade relations of the Community with the rest of the world, and from it has grown a complex web of both institutions and relationships. The need to manage the external trade relations of the Community, and to conduct relations with international partners, was a logical—indeed inevitable—outcome of the establishment of the Customs Union and the Common External Tariff, and the acquisition of international competence was thus one of the first items on the Commission’s agenda (Smith 1994b). During the 1950s, 1960s and 1970s, therefore, the EEC developed a complicated network of international agreements, and came to play an important role in the development of the world trading system. The Commission was recognised as the voice of the EEC in the conduct of international trade negotiations, and the enlargement of the Community during the 1970s further increased the range and scope of its international

The EU as an international actor 249 economic involvement. But this was a partial international role at best: the Community and the Commission had competence in trade negotiations, but even in this area there was a division of powers between the Commission and the Council of Ministers. When the Commission negotiated, it was on the basis of a mandate from the Council and with the close attention of what became known as the ‘113 Committee’ of national trade officials. Although other aspects of international economic relations such as monetary policy and investment were in many respects crucial to the development of the Community, they were not the subject of Community-level policy-making. Even the establishment of the European Monetary System in the late 1970s did not extend Community competence fully into this area, since the system was effectively operated by the central banks of the member states (Tsoukalis 1993). If the initial competence of the Community was limited in the field of international economic policy, it was almost non-existent in the field of what some would call ‘real’ foreign policy: the ‘high politics’ of diplomacy, defence and security. What emerged in this area during the 1970s was not a Community policy, but a series of mechanisms through which the national foreign policies of the EC’s members could be more closely coordinated. By the end of the 1970s, this had evolved into the framework known as European Political Co-operation (EPC), which effectively acted as a procedural device for the management of common interests. To be sure, EPC was backed up by facilities for the exchange of information and for the active co-ordination of diplomatic activity, either in national capitals or in the framework of international organisations such as the Conference on Security and Cooperation in Europe (CSCE). But the member states had not yielded any of their formal freedom of action to the Community, and they retained the right to pursue purely national policies at the same time as participating in the EPC mechanism (Allen, Rummel and Wessels 1982; Hill 1983). This meant that by the early 1980s, there was only a patchy and partial basis for the development of the EC’s international role. There were areas of intense and continuous activity, for example in the conduct of trade policy; there were areas of intense but temporary activity, such as those centred around the energy crises of the 1970s or the issue of economic sanctions as Soviet-American tensions waxed and waned; but in many areas including the politics of national security, the national policy mechanisms of EC members remained almost untouched (Allen, Rummel and Wessels 1982; Hill 1983). During the 1980s, however, there were important changes both in the international conditions and in the institutional base for EC international policy-making. At the international level, it became apparent more and more that the separation of ‘economic’ and ‘political’ or ‘security’ issues was artificial. Indeed, many of the most pressing international problems were intractable precisely because of the ways in which the economic, the political and the security elements were intertwined and interdependent. Not only this, but in the world political economy itself there was an increasing awareness of the issues arising from technological change and shifts in competitive advantage (Stubbs and Underhill 1994; Smith and Woolcock 1993). At the Community level, one response to the latter development was the Single Market Programme. It is possible to see the Commission White Paper of 1985 and the subsequent legislative programme simply as a process dealing with the internal economic activity of the EC, but it was apparent to many from the outset that this was also a programme designed to enhance the international presence and impact of the EC and its economic groupings. This implied a major increase in the international activity of the Community, not only to ensure that the single market

250 Michael Smith was effectively integrated with the international economic framework but also to defuse the often suspicious reactions of economic partners and rivals such as the United States or Japan (Redmond 1992; Hufbauer 1990; Ishikawa 1989). The Single Market Programme thus carried with it important implications for the international role of the Community and the Commission, arising from the increasing interpenetration of the domestic and the international economies, and from the established institutional base for Community action. Alongside this, though, went crucial developments in the area of ‘high politics’, which gave the Community and its members both the incentive and some of the instruments to develop policy in new domains. One such development, already noted, was the linkage between economic and security aims in the world arena, at its most obvious in the use of economic sanctions against (for example) the Iranians, the USSR and South Africa. In these cases, however much the member states might have wished to act on a national basis, they could not do so effectively because of the concentration of commercial policy powers at the Community level (Pijpers, Regelsberger and Wessels 1988; Allen and Pijpers 1984; Nuttall 1992). Another set of significant international policy developments arose from the further evolution of EPC. During the 1980s, a process which remained resolutely intergovernmental was given further definition and a more formal institutional framework. The London Report of 1981 established more effective mechanisms for crisis consultation and for continuity of co-ordination between successive presidencies of the Council of Ministers, and there were further refinements of the communications and information networks which had emerged in the 1970s. The process remained limited, though, by the fact that certain members of the Community did not want to be involved in security issues at the Community level, and by the conflicting pressures set up by crisis situations. In the case of the Falklands War of 1982, for example, the initial solidarity of the Community in imposing sanctions and working through the UN was eroded by the reluctance of the Irish and the Italians to remain committed as war approached; in the case of sanctions against South Africa, the British themselves were the key defectors and doubters (Pijpers, Regelsberger and Wessels 1988; Nuttall 1992). Nonetheless, the development of EPC during the early 1980s created growing pressures for further formalisation, without going so far as to incorporate the process fully into the Community framework. The result was Title III of the Single European Act, which for the first time created a treaty base—albeit an explicitly intergovernmental one—for the EPC mechanisms. The SEA formalised the ‘troika’ through which successive Council presidencies ensured continuity, and it established a permanent though small EPC secretariat. It even went so far as to introduce the word ‘security’ into the EPC framework, although there was a firm restriction to the ‘economic and political aspects’ of security issues (Pijpers, Regelsberger and Wessels 1988; Nuttall 1992). By the late 1980s, then, the framework for EC international policy consisted effectively of two strands: the Community strand as applied through the CCP and its instruments, and elaborated by the external impact of the Single Market; the intergovernmental strand as exemplified in Title III of the SEA and the EPC mechanisms. At the same time, there was an increasing consciousness of the artificiality of distinctions between ‘high’ and ‘low’ politics, or between economics and security. The lesson was borne in with unprecedented force by the events of 1989 in Europe, with the fall of the Berlin Wall and the subsequent more or less peaceful revolutions in central and eastern European countries. Not only this, but the interlinking of economic, political and security issues in the ‘new Europe’ seemed to create

The EU as an international actor 251 new roles and responsibilities for the Community in ways which approximated to ‘real’ foreign policy. Thus the Community and the Commission were given responsibility for co-ordinating western assistance to central and eastern Europe and then to Russia through the so-called G-24 grouping. For the advocates of Community foreign policy, the wind seemed set fair: the Community was a major participant and pole of attraction in the ‘new Europe’, and no single member of the EC could hope to play an independent foreign policy role (Wallace, W. 1990; Pinder 1991b; Allen and Smith, 1991–1992). It was in this context that the Maastricht Treaty on European Union attacked the issues of the ‘second pillar’ or foreign and security policy. Indeed, it was because of this context that the EC’s members felt the need to go beyond the limits of intergovernmental co-operation so far established and to develop new mechanisms for foreign policy co-ordination. Whilst the external commercial policy powers of the Community were hardly altered by the TEU, the provisions on a common foreign and security policy (CFSP) in the treaty broke new ground both in terms of substance and in terms of the organisational framework. The treaty declared the members’ determination to establish a common foreign and security policy, which would lead in time to a common defence policy and even to a common defence (by implication, a military community to stand alongside the economic one in the framework of the Union). The existing Western European Union was defined as the defence arm of the Union, with provision for a closer alliance of the two organisations and a definitive review of their relations in the 1996 IGC (Norgaard, Pedersen and Petersen 1993; Rummel 1992). To support this set of aims and intentions, the TEU established new procedures. The Commission was given a (non-exclusive) right of initiative in the CFSP field, whilst the intergovernmental character of the framework was preserved by the guiding role of the European Council and the continued location of the primary operational responsibilities with the Council of Ministers. For the first time, voting procedures including majority voting were introduced to the domain of foreign policy, although there were strong safeguards for national positions. The common diplomatic positions generated by the EPC mechanism were supplemented by potential ‘joint actions’ within agreed limits, raising a number of issues about resourcing and the role of the Commission in implementing foreign policy decisions (Norgaard, Pedersen and Petersen 1993; Rummel 1992; Laursen and Vanhoonacker 1992). Later parts of the chapter will deal with the practical impact of these CFSP provisions, but at this stage a review of the position reached in the TEU is in order. Three interim conclusions are apparent. In the first place, the longstanding foundations of the EC’s external policy powers in the field of trade and related areas continued to flourish, reinforced by the impact of the Single Market Programme and the intensification of international economic interdependence. At the same time as the TEU was adding new areas through the CFSP, the Commission, on behalf of the Community was negotiating the Uruguay Round of trade agreements under the GATT, one of the most complex and far-reaching sets of international negotiations since 1945; it had developed a complex web of international economic agreements, and a powerful set of economic weapons with which to pursue external policy objectives. Second, the ‘civilian power’ of the Community had been supplemented through intergovernmental channels by the increasingly ‘high politics’ of EPC and then the CFSP. Not only this, but in a number of cases it had been demonstrated that the Community and its

252 Michael Smith powers were essential to the successful pursuit of diplomatic objectives in the area of ‘high politics’. Both the SEA and the TEU had focused on the need for ‘consistency’ between the economic and the foreign policy activities of the Community and then the Union—a logical consequence of the increasing linkages between economics and security and the politicisation of economic issues. Finally, although this may appear to have been an inexorable advance towards the construction of an integrated Union foreign policy, and thus the achievement of full international ‘actorness’ on the part of the Union, there were a number of reasons to be cautious in making such judgements. The CFSP remained intergovernmental, albeit much more effectively institutionalised than the original EPC framework. Member states might recognise the logic of fuller EU responsibilities for foreign policy, but certainly in the case of the major members they would be reluctant to give up the core elements of sovereignty and national security. And perhaps above all, the fluid and potentially dangerous situation in the ‘new Europe’ would place severe strains on the co-ordination mechanisms available even under the TEU. Given this situation, it is appropriate to turn to the substance of EU international activities. THE SUBSTANCE OF POLICY Implicit in the preceding discussion has been the assumption that the EU is continuously and heavily involved in the international arena. Indeed, from this involvement arise many of the paradoxes of EU international action, including the ‘capability-expectations gap’ referred to in the previous section of the chapter. In order to arrive at a more precise description of the EU’s international connections, and to explore the ways in which they affect policy-making, this part of the chapter examines four aspects of the problem. First, it evaluates the agendas on which the EU’s international activities are focused. Second, it identifies the arenas within which the EU is involved. Third, it looks at the relationships that are central to the EU’s international existence. Finally, it reviews the levels at which EU actions are shaped and take place, and provides some brief examples of the implications of multilevel policy-making. Whilst these four aspects are separated here for analytical purposes, in reality they are often closely—indeed, inextricably— linked. The final section of the chapter will attempt to bring them together in an examination of modes of EU policy-making. Agendas The earlier discussion has touched on many points of one of the key features of the EU’s international activity: the fact that it is centred on a number of interconnected and often highly complex agendas. As the Community and then the Union have developed, the relevant agendas for EU attention and action have broadened and become more difficult to manage, raising the question of the Union’s capacity to handle all of the resulting issues at the European level. The longest-established agenda for action at the European level is that of trade and commercial relations. As the EU has evolved, it has spawned an extensive set of international trade and aid agreements, which some have described as a ‘pyramid of privilege’. The extent and complexity of this network reflect the centrality of the trade and aid agenda to the EU;

The EU as an international actor 253 after all, this was the original raison d’être of the EEC, and the focus of the earliest common policy efforts of the Community in the international field. Thus today, the Union finds itself deeply and continuously engaged in international trade negotiations, either on a bilateral basis, or on an inter-regional basis, or in the context of the General Agreement on Tariffs and Trade (GATT) and since 1995 the World Trade Organisation (WTO). At the same time, it deals with less developed countries, particularly those of the African, Caribbean and Pacific grouping (ACP) in the framework of the Lome Agreements. During the 1990s, a novel trade and aid agenda has emerged, centred on the development and stabilisation needs of the former Soviet bloc—both central and eastern Europe and the former Soviet Union itself (Edwards and Regelsberger 1990; Hine 1985; Pinder 1991b). Trade, aid and commercial agreements are thus at the core of the EU’s international agenda. As the growth of international interdependence and interpenetration has proceeded during the 1980s and 1990s, this traditional focus has been joined by another: the links between markets and regulatory structures both within and outside the EU. The Single Market Programme was launched in a different world from that of the Treaty of Rome or the CAP—a world in which the seemingly ‘domestic’ concerns of market regulation, standards setting and competition policies were becoming the stuff of international politics. As a result, over the past decade, the EC and then the EU have had to develop new structures and procedures to deal with such matters as public procurement and market access at the international level (Woolcock 1992; Harrison 1994). Much of the traditional and the novel in the economic sphere can be seen as the logical development of the original concept of the common market, with the need to act at the international level closely connected with the internal agenda of European integration. As noted earlier, though, there had also been a shift towards European-level action in the areas of diplomacy and security. This agenda was for a long time separated from the more central economic and commercial EU agendas, but as time has gone on it has become increasingly difficult to maintain the distance between matters of economic welfare and matters of national or European security. From the mid-1970s on, the Community and then the Union have had to wrestle with the ways in which the old ‘civilian’ agenda has not only been transformed in itself by the impact of interdependence but has also become intertwined with the ‘high politics’ of peace and security. This intertwining has become especially apparent in the aftermath of the collapse of the USSR; not only has the geopolitical division of Europe disappeared, but so also has the functional division in the EU between civilian and security agendas. Arenas The position is further complicated by the increasing linkages between the arenas in which the EU is involved. As suggested above, the Cold War division of Europe and the enforced separation of East and West gave a particular definition to the international activity of the EC. Not only was the Community seen as ‘civilian’, it was also ‘Western’ in its orientation, an integral part of the transatlantic system centred on NATO, the GATT, the Organisation for Economic Cooperation and Development (OECD) and other institutions. This set of strong institutional affiliations largely defined the arena of EC activity. Alongside it went the still strong links to former colonial possessions of the EC members, from which grew the agreements clustered around the Lomé system established in the 1970s. The EC’s arena of

254 Michael Smith action, its main reference point for any sort of international identity, was the Western system and in particular the economic structure built around the North Atlantic area (Allen and Smith 1991–92; Smith and Woolcock 1993; Story 1993). Just as the policy agenda for the EU has been transformed, so has the arena for its international actions. Whilst the long-established institutional arrangements have not disappeared, they are implanted in a radically changed context, and have been joined by a number of novel arrangements reflecting the needs of the post-Cold War world. Many of these new arrangements reflect the linkages between agendas already noted: for example, the influence of the Conference on Security and Cooperation in Europe (since 1995 the Organization for Security and Cooperation in Europe, the OSCE) with its focus on nonmilitary as well as military aspects of security, or the role of the European Bank for Reconstruction and Development in the political and economic stabilisation of the ‘new Europe’. The EU finds itself not only in a transformed world arena, but also in a newlyinstitutionalised and rapidly developing European order, and this is a challenge to international action (Allen and Smith 1991–1992; Smith and Woolcock 1993; Carlsnaes and Smith 1994). Relationships The challenge of the new, though, does not mean that all of the old has disappeared. In particular, certain relationships are central to the international policies of the EU. The most intense, highly developed and longest-established is that with the USA. Together, the EU and the USA account for nearly half of the world economy, and their relationship is both extensive and rich. It is one from which both parties benefit considerably, and in which the balance of economic advantage is relatively even. Not only this, but the EU/US relationship is implanted in the broader security relationship expressed through NATO and other institutions (Smith and Woolcock 1993; Peterson 1993; Featherstone and Ginsberg 1993; Frellesen and Ginsberg 1994). Given the intensity of the interdependence between the two partners, it is not at all surprising that there will be a continuous flow of disputes between them, particularly in areas of important trade or financial competition. Thus the relationship in the early 1990s has been beset by disputes over agricultural trade, over the openness of the single market to US financial and other institutions, and over politically symbolic high-technology projects such as the European Airbus. The point is that whilst challenging, such issues are conducted on the whole in the co-operative mode, with the intention of resolving differences and building new procedures. This aim is perhaps best expressed in the Transatlantic Declaration of November 1990, which has spawned a set of specialist working groups and other forms of co-operation on significant issues (Frellesen and Ginsberg 1994). In December 1995, US and EU leaders signed up to a New Transatlantic Agenda and Action Plan, designed to take this cooperation further still. The end of the Cold War has put a new complexion on important aspects of EU/US relations. On the one hand, it has found the EU anxious to develop new international roles in the development of the ‘new Europe’, often in areas where the US finds it difficult to respond. On the other, it has become apparent that the role of the EU in high politics and security has severe limitations; there are still areas and ways in which only the US has the capacity to act, particularly where this implies the rapid mobilisation of major military assets.

The EU as an international actor 255 Although the Maastricht agreements established the CFSP, and recognised the growing linkage between the EU and the Western European Union in the evolution of security policy, this did not and could not make it the equal of the USA in theatres of active military conflict (Smith and Woolcock 1994). The relationship between the EU and the USA has thus been and will continue to be a central policy concern: less comprehensive, but no less sensitive at times, has been the relationship with Japan. Here, the texture of the relationship is primarily that of economic interdependence and economic competition, with the Japanese enjoying a considerable credit balance in the areas of trade and financial services. Thus, the EU has found itself dealing with the Japanese on a succession of more or less serious trade disputes, most notably in the areas of automobiles and consumer electronics. Although there is an EU/ Japan Declaration modelled after the Transatlantic Declaration, the effective scope of collaboration between the two partners is significantly less ambitious and intensive. Partly this is a reflection of history, partly it reflects the relative distance and lack of complemen-tarity between the two entities; nonetheless, there is a growing need to organise the relations between the two (Ishikawa 1989; El-Agraa 1992). It has already been suggested that a key component of EU international activity in the 1990s is the need to deal with the ‘new Europe’. This is not simply a matter of coping with the fallout from the collapse of the USSR; the European landscape was in many ways being transformed before 1989, and the development of new networks of relations was a growing concern of the EC throughout the 1980s. Essentially, there are two main focuses to this activity. First, there is the intensification of relations with the former members of the European Free Trade Association (EFTA), first through the negotiation of the European Economic Area agreement (EEA) and then through the formal incorporation of Austria, Finland and Sweden. The details of this process can be found in Chapter 13, but it is important to register here the ways in which this led during the late 1980s and early 1990s to a new set of developments in EU external relations. Second there was the establishment and intensification of relations with the countries of the former Soviet bloc, either on the basis of ‘arms length’ relationships based on trade and assistance or (as in the case of the ‘Visegrad countries’) on the basis of increasingly close linkages and eventual membership of the Union itself (Pinder 1991b; Carlsnaes and Smith 1994; Wallace H. 1991). For the EU’s international activities and policies, the overall impact of these changes in agendas, arenas and relationships has been profound. Whilst the Cold War years were far from simple, they at least made it possible for EC leaders to focus on ‘civilian’ activities and to operate within a well-defined set of institutional and political arrangements. A combination of factors ranging from the Single Market Programme through the collapse of the USSR to the transformation of the global economy has made redundant a number of the longstanding assumptions on which the EC’s international role was founded. This has meant a series of unavoidable challenges both for EU policy-makers and for the EU’s institutions (Wallace, W. 1990; Keohane, Nye and Hoffmann 1993; Story 1993). Levels Not the least of these challenges has been that of dealing with the implications of multilevel politics and diplomacy. The EU has found in a number of contexts that it has to reconcile its own often limited capacity to act on the needs and demands of international institutions, major

256 Michael Smith political and trading partners, and not least its own member states and their governments. Two examples will suffice to demonstrate this set of interlocking dilemmas. First, in the area of traditional EC/EU action, there is the experience of the negotiations in the GATT Uruguay Round, which began in 1986 and came to a climax in the later part of 1993. Over a seven-year period, the EC and then the EU had to project its trade policy competence into new areas, meeting competition and conflicting demands from the USA, developing countries and a range of agricultural interests. At the same time, the Single Market Programme went from conception to completion, thus radically changing the perception of the EC as an international economic force. Not only this, but the divergent interests of EC members were underlined by the demands of the international negotiation process, and fed back into it, often with widespread and potentially damaging implications (Smith and Woolcock 1993; Smith 1994b). A second and very different example is provided by the EU’s involvement in the conflicts in former Yugoslavia. In this most dangerous of post-Cold War conflicts, the assumption at the outset was that the EU would have a special role and responsibility, not least because the USA proved unwilling to become directly engaged. A number of often tragic dilemmas ensued for the EU and its members. First, there was the problem of the recognition of Slovenia, Croatia and finally Bosnia-Herzegovina, in which the tensions between EU members were apparent throughout. Then, there was the problem of dealing with the escalation of the conflict, particularly in Bosnia—a conflict which exposed to the full the lack of military muscle behind the EU’s position, and the overlapping concerns and competences of the UN, the EU and other organisations such as the CSCE. Third, there was the issue of stabilisation and the creation of safe areas for the ravaged population of Bosnia—a task to which the EU was in many respects peripheral, and in which the interaction of the UN and NATO came to play a central part. Whilst playing a dogged and persistent diplomatic role, backed up by economic sanctions, the EU inevitably found it difficult if not impossible to go beyond exhortation and indirect pressure (Nuttall 1994). The conclusion here is not that the EU succeeded or failed in either the GATT context or former Yugoslavia. The point is to show the ways in which, during the 1990s, the EU has been faced with profoundly challenging tasks in the international field. The evolution both of the world economy and of the post-Cold War international order has created opportunities for a more expansive and ambitious EU role, but it has also raised questions about the extent to which the EU policy process is capable of defining and pursuing appropriate and effective international action (Allen and Smith 1991–1992). Those questions are the starting point for the next section. MODES OF INTERNATIONAL POLICY-MAKING IN THE EU From the preceding discussion, it should be clear that the EU has important roles to play in the contemporary international arena. Chris Hill (1993) has identified both a number of functions the EC and the EU have played in the international system up to the 1990s and a number of potential future roles or functions. In the past, the EC performed the roles of regional stabiliser in Western Europe; comanager of world trade; a principal voice for the developed world in relations with the less developed countries; and provider of a second western voice in international diplomacy. For the future, Hill discerns a number of conceivable roles: a replacement for the USSR in

The EU as an international actor 257 the global balance of power; a regional pacifier; a global intervenor; a mediator of conflicts; a bridge between the rich and the poor; and a joint supervisor of the world economy. But to list these past and possible future roles is to raise a number of questions, which Hill has encapsulated in the notion of the ‘capability-expectations gap’ (see above). They testify to the ways in which the EU has become part of the international landscape, but they tell us relatively little about the ways in which the EU can shape or pursue its policies within the broad framework of possibilities generated by the development both of the Union and of the international system. In this part of the chapter, it is suggested that one crucial element in the resolution of this problem is the study of modes of EU international policy-making. From the evidence produced so far, three such modes of policy can be identified and will be examined here: First, there is what can be termed Community policy-making: the development of the instruments and processes typical of the EC and of its role in the world political economy. Second, there is what can be described as Union policy-making: the policy processes generated by the interaction of member governments and European institutions in the context of the TEU and its practical application. Finally, there is the style of policy which can best be described as negotiated order: the response of both Community and Union to the multi-layered political and economic environment in which they are implanted, and the outcome of the complex exchange relationships in which the member states and other actors are involved. All three of these policy modes are affected and focused by a number of key dilemmas and assumptions, which have been ably evaluated by Hill and other analysts: they have to cope with the problem of competence and consistency within the EU, and the matching of institutional means to appropriate and agreed purposes; they must deal with the intersection of economic, political and security issues in the contemporary international arena; they confront the test of multi-layered policy-making and a multiplicity of policy actors which is characteristic of the contemporary European and international milieu; and finally, they face the need to account for the proliferation of institutions and instruments which is equally central to the management of international policies in the 1990s. Community policy-making The longest-established and most highly developed form of EU policy process in the international sphere is that of Community policy-making. This is the policy mode encapsulated in the Common Commercial Policy and other parts of the Treaty of Rome dealing with the negotiation and conclusion of international agreements. The key elements of this policy mode are thus the concept of Community competence expressed through the Commission, and the development of policy instruments at the European level. They reach their highest level of development in the Community’s role with respect to the GATT, and in the use of policy instruments such as antidumping regulations. More recently, they have been extended into areas such as the international regulation of competition and the international co-ordination of policies in such areas as

258 Michael Smith standards-setting or public procurement. In many ways, as it can be seen from these examples, the policy style is an external expression of internal Community powers and concerns. As such, it forms the core of the Community’s claims to international ‘actorness’. It might be thought that in this policy mode, the development of internal Community competence would inexorably be reflected in the extension of its exclusive international competence. In fact, and significantly for those who see the EU as an international actor in the making, there are distinct variations both in the coverage of the process and in the extent to which it can be halted or reversed. Two examples will illustrate the point. First, the negotiation and conclusion of international agreements by the Community through the Commission remains crucially dependent on agreement between the member states in the Council of Ministers. For GATT (now WTO) negotiations, they give the mandate to the Commission and it is they who finally conclude the agreements after the involvement of the European Parliament and the Commission. Second, and in a related area, it has been the view of the Court of Justice that even the trade policy powers of the Community exercised through the Commission are limited. To be specific, areas of trade negotiation going beyond traditional trade in goods are the joint responsibility of the Community and the member states (so-called ‘mixed agreements’). The Court’s opinion, delivered in November 1994, has yet to be fully tested, but it clearly implies a set of boundaries to the Common Commercial Policy which had not been suspected previously. Union policy-making Community policy-making is thus a crucial but incomplete model for the conduct of the EU’s international business. Alongside it there has developed what is termed here Union policy-making. The keynote of this mode of policy-making is the intensive and continuous co-ordination of national policies, rather than the application of agreed common policies. Central to its development is the evolution of EPC and then the establishment of the CFSP, but these are not the only examples. In this policy mode, the Commission is not the exclusive bearer of the Community mandate: rather, it is fully associated with the process and a vital source of information, advice and initiatives alongside the national governments. It is clear that this mode of international policy-making falls close to the intergovernmental mode of general EU policy-making; but there are important, not to say crucial, differences. In particular, the role of the Commission as an active and continuous participant, and a vital facilitator of action, is distinctive; indeed, in some areas such as the imposition of sanctions or the provision of humanitarian or technical assistance, the Commission and the Community can be the only possible implementers of policy. One dramatic example of this came in the Bosnian conflict, where during 1994 the EU installed an administrator to run the city of Mostar. This ‘pro-consul’ had wide-ranging powers, including that of derogating from the Bosnian Constitution. Whilst the administrator was put in place through the CFSP, the infrastructure for the office and the financial resources were to an important extent provided through the Commission and the Community budget. A complex form of words expresses the equally complex reality: the policy is implemented by ‘the member states of the EU working within the framework of the Union and in close association with the European Commission’. This appears to demonstrate that Union policy-making, far from marking a retreat to intergovernmentalism, marks a new departure and a creative way of bringing the various EU institutions and the member governments together. Other joint actions in South Africa and in

The EU as an international actor 259 Russia (in each case primarily the monitoring of elections) have been less dramatic but have raised the same issues and possibilities. International policy as negotiated order Such developments give support to a third mode of international policy-making in the EU; indeed, the three modes being examined here represent coexisting tendencies rather than competing and mutually exclusive models. Given the complex institutional relationships and processes of exchange between Community, member governments and other actors in the Union’s international policy process, it could be argued that the EU in its international activities constitutes an evolving negotiated order. Within the administrative, institutional and political structures established over the life of the Community and the EU, there is a constant, rule-governed process of negotiation between actors which produces policy positions and international policy outcomes. Process is as important as outcome, and it is thus inappropriate to apply to the EU the concepts of statehood or foreign policy which are typical of conventional international relations models and approaches (Allen and Smith 1990; Smith 1994a). It is important to note that this perspective on the international policy process in the EU coincides with new patterns of analysis for the global arena more generally, which stress precisely the multilevel, institutionalised and rule-governed behaviour to which attention has been drawn in this chapter. In the more strictly EU context, such an approach leads in a number of directions. First, it draws attention to the ways in which ‘Community policymaking’ as outlined above is itself a focus for negotiation and exchange between a number of actors. To give but one example, the new Commission installed in January 1995 had within it at least six Commissioners with substantial international policy responsibilities, and the process of allocating these responsibilities had been a source of considerable negotiation and conflict during the second half of 1994. Between 1992 and 1994, there had also been a running battle for ‘turf’ between the two Directorates-General with prime responsibility for external relations (DG1 and the newly-created DG1-A), and it could be predicted that this would increase after 1995. A second feature of EU international policy-making which is captured by a ‘negotiated order’ focus is that in many cases the EU’s international activities are undertaken in a multilevel negotiation context. The example of the GATT Uruguay Round cited earlier in this chapter is perhaps the most significant recent instance of the ways in which negotiations within the GATT, within the Commission, within and between the EU institutions and the member states all came together to provide a potent mix of overlapping and often irreconcilable claims. There are, though, many other instances of such relationships: the EU/US partnership, the attempts through negotiation to consolidate the post-Cold War European order, the negotiations attending the accession of new members. In this view, then, the EU’s international positions and actions are both the product of an institutionalised negotiation process and frequently part of such a process in the international arena. As such, they epitomise many features of the changing world political economy in the 1990s, but they also focus them in a very distinctive way. A key area of policy analysis for the remainder of the 1990s will be the ways in which this situation plays out for the post-Maastricht EU, in particular in the context of the ‘new Europe’.

260 Michael Smith CONCLUSION: TOWARDS AN EU FOREIGN POLICY? This chapter started by examining briefly the debates which have centred around the EU’s credentials as an international actor, and by suggesting the significance of the developments that have taken place in the EU’s international involvement. Often, the debates and the significance are placed into the context of a broader debate about statehood, foreign policy and the EU’s approximation to the conventional model of both. The argument in this chapter has tested both the substantive basis for claims about the EU’s international significance and the broader conceptual claims made by those who foresee the emergence of a ‘foreign policy’ conducted by the Union or its representatives. The general conclusions from the argument are threefold: First, that the EC and now the EU have long-established and material foundations for their presence and impact in the international arena. These foundations are the reflection of the economic and political weight of the EU, of its institutional capacity and of the ways in which it has enlarged its tasks and roles in the changing world arena. But they are not monolithic, nor do they suppress the claims or the prerogatives of the member states. Indeed, as the EU has entered new areas of activity, it has occasionally seemed to reach the limits of its capacity to lay claim to the new territory on which it finds itself. Second, that the substance of EU international policy betrays not only the value placed on the EU both by its members and by others as an international role-player, but also the limitations imposed by the ways in which the EU is constrained in its mobilisation of resources. Whilst this is particularly apparent in the area of international security policy, there is no shortage of other examples to illustrate the ‘capability-expectations gap’ in the EU’s international existence. Third, that one way of taking further an appreciation of the distinctive nature of EU international policy is to focus on modes of policy-making. There is no single mode of such policy-making, and therein lies part of the unique character of the European construction. There are elements of ‘Community policy-making’, of ‘Union policy-making’ and of ‘negotiated order’ in all aspects of the EU’s international policy. The challenge lies in interpreting the circumstances and the conditions in which they interact to produce distinctive mixes of policy. There is therefore no definitive answer to the question ‘does the EU have a foreign policy?’: rather there is a series of increasingly well-focused questions about the nature of EU international action and the foundations on which it is based, which will constitute a major research agenda for at least the remainder of the 1990s. REFERENCES Allen, D., Rummel, R. and Wessels, W. (1982) European Political Cooperation: Towards a Foreign Policy for Western Europe? London: Butterworth. Allen, D. and Pijpers, A. (1984) European Foreign Policy-Making and the Arab-Israeli Dispute, The Hague: Nijhoff. Allen, D. and Smith, M. (1990) ‘Western Europe’s presence in the contemporary international arena’, Review of International Studies 16 (1), January: 19–39. Allen, D. and Smith, M. (1991–92), ‘The European Community in the New Europe: bearing the burden of change’, International Journal 47 (1), Winter: 1–28.

The EU as an international actor 261 Carlsnaes, W. and Smith, S. (1994) European Foreign Policy: the EC and changing perspective in Europe, London: Sage. Edwards, G. and Regelsberger, E. (eds) (1990) Europe’s Global Links: The European Community and InterRegional Cooperation, London: Pinter. El-Agraa, A. (1992) ‘Japan’s reaction to the Single European Market’, in Redmond, J. (ed.) The External Relations of the European Community: the international response to 1992, London: Macmillan: 12–30. Featherstone, K. and Ginsberg, R. (1993) The United States and the European Community in the 1990s: Partners in Transition, London: Macmillan; New York: St Martin’s Press. Frellesen, T. and Ginsberg, R. (1994) EU-US Foreign Policy Cooperation in the 1990s: Elements of Partnership, Brussels: Centre for European Policy Studies. Harrison, G. (ed.) (1994) Europe and the United States: Competition and Cooperation in the 1990s, Armonk, New York: Sharpe. Hill, C. (ed.) (1983) National Foreign Policies and European Political Cooperation, London: George Allen and Unwin. Hill, C. (1990) ‘European foreign policy: power bloc, civilian model—or flop?’ in Rummel, R. (ed.) The Evolution of an International Actor: Western Europe’s new assertiveness, Boulder, CO: West view Press. Hill, C. (1993) ‘The capability-expectations gap, or conceptualising Europe’s international role’, Journal of Common Market Studies, 31(3), September: 305–328. Hill, C. (ed.) (1996) The Actors in European Political Cooperation, London: Routledge. Hine, R. (1985) The Political Economy of European Trade, Brighton: Harvester-Wheatsheaf. Hufbauer, G. (ed.) (1990) Europe 1992: An American Perspective, Washington, DC: Brookings Institution. Ishikawa, K. (1989) Japan and Europe 1992, London: Pinter/Royal Institute of International Affairs. Keohane, R., Nye, J. and Hoffmann, S. (eds) (1993) After the Cold War: International Institutions and State Strategies in Europe, 1989–1991, Cambridge, MA: Harvard University Press. Laursen, F. and Vanhoonacker, S. (eds) (1992) The Intergovernmental Conference on Political Union: Institutional Reforms, New Policies and International Identity of the European Community, Maastricht: European Institute of Public Administration. Norgaard, O., Pedersen, T. and Petersen, N. (eds) (1993) The European Community in World Politics, London: Pinter. Nuttall, S. (1992) European Political Cooperation, Oxford: Clarendon Press. Nuttall, S. (1994) ‘The EC and Yugoslavia—deus ex machina or machina sine deo?’ in Nugent,N. (ed.) The European Union 1993: Annual Review of Activities, Oxford: Blackwell: 11–26. Peterson, J. (1993) Europe and America in the 1990s: Prospects for Partnership, Aldershot: Edward Elgar. Pijpers, A., Regelsberger, E. and Wessels, W. (eds) (1988) European Political Cooperation in the 1980s: A Common Foreign Policy for Western Europe? Dordrecht: Nijhoff. Pinder, J. (1991a) European Community: The Building of a Union, Oxford: Oxford University Press. Pinder, J. (1991b) The European Community and Eastern Europe, London: Pinter/Royal Institute of International Affairs. Redmond, J. (ed.) (1992) The External Relations of the European Community: The International Response to 1992, London: Macmillan. Rummel, R. (ed.) (1992) Toward Political Union: Planning a Common Foreign and Security Policy in the European Community, Boulder, CO: Westview Press. Smith, M. (1994a) ‘The European Union, foreign economic policy and a changing world arena’, Journal of European Public Policy, 1(2), Autumn: 283–302. Smith, M. (1994b) ‘The Commission and external relations’, in Spence, D. and Edwards, G. (eds) The European Commission, London: Longmans. Smith, M. and Woolcock, S. (1993) The United States and the European Community in a Transformed World, London: Pinter/Royal Institute of International Affairs. Smith, M. and Woolcock, S. (1994) ‘Learning to co-operate: the Clinton administration and the European Union’, International Affairs, 70(3), July: 459–76. Story, J. (ed.) (1993) The New Europe: Politics, Government and Society Since 1945, Oxford: Blackwell.

262 Michael Smith Stubbs, R. and Underbill, G. (eds) (1994) Political Economy and the Changing Global Order, Toronto: McClelland and Stuart; London: Macmillan. Tsoukalis, L. (1993) The New European Economy, 2nd edn, Oxford: Oxford University Press. Wallace, H. (ed.) (1991) The Wider Western Europe: Reshaping the EC/EFTA Relationship, London: Pinter/ Royal Institute of International Affairs. Wallace, W. (1990) The Transformation of Western Europe, London: Pinter Royal Institute of International Affairs. Woolcock, S. (1992) Market Access Issues in EC/US Trade Relations: Trading Partners or Trading Blows?, London: Pinter/Royal Institute of International Affairs.

15 A European regulatory state? Giandomenico Majone

THE STATE IN MODERN POLITICAL ECONOMY The aim of this chapter is to show that it is analytically useful to think of the European Union (EU) as a ‘regulatory state’. Such a characterisation is not meant to be either a legal definition or an anticipation of future political developments towards statehood. As Friedrich Nietzsche once said, nothing that has a history can be defined, and conceptions of the state have changed repeatedly in the course of European history. Rather than proposing a new definition of the EU or discussing whether this sui generis system meets some minimal requirements of statehood, therefore, this chapter analyses the Union in terms familiar to students of the role of the state in advanced market economies. Now, modern politico-economic theories of the state distinguish three main forms of public intervention: redistribution, macro-economic stabilisation, and regulation. The redistribution function includes all transfers of resources from one social group to another, as well as the provision of ‘merit goods’, that is, goods such as elementary education or publicly financed medical care, that the government compels individuals to consume. The stabilisation function is concerned with the preservation of satisfactory levels of economic growth, employment, and price stability. It includes fiscal and monetary policy, labour market policy, and industrial policy. Finally, the regulatory function attempts to correct various forms of ‘market failure’: monopoly power, negative externalities, failures of information, or insufficient provision of public goods such as law and order or environmental protection. Naturally, all modern states engage in redistribution, in macro-economic stabilisation, and in regulation. However, the relative importance of these functions varies from country to country and, for the same country, in different historical periods. Thus, until recently most European countries attached greater political significance to redistribution and to economic stabilisation and development than to the correction of market failures through economic and social regulation. These priorities are reflected in labels like ‘welfare state’, which emphasises the redistributive function of the state, and ‘Keynesian state’, which emphasises the stabilisation function. On the other hand, American scholars often refer to the federal government as a ‘regulatory state’ (see, for example, Seidman and Gilmour 1986; Sunstein 1990; RoseAckerman 1992). This terminology—a neologism in Europe—indicates that in the United States the regulatory function has been historically more important than the other two

263

264 Giandomenico Majone functions. In fact, prior to F.D.Roosevelt’s New Deal and to the fiscal revolution that took place between the presidencies of Herbert Hoover (1929–1933) and Lyndon Johnson (1963– 1969), the US government played a very modest role both in redistribution and in macroeconomic stabilisation. Even after the New Deal, America remained a ‘welfare laggard’ by the standards of the European welfare states. In spite of this, or more likely because of this (Majone 1991), the US has played a pioneering role not only in economic but also in social regulation. It suffices to mention the Sherman Antitrust Act of 1890, which served as a model for the competition articles of the 1951 Paris Treaty establishing the European Coal and Steel Community, and of the 1957 Rome Treaty establishing the European Economic Community; the Clayton Act of 1914 with its provisions on mergers anticipating by some seventy-five years the first European regulation in this area; and the consumer protection legislation (Pure Food Act of 1906, Sherley Amendment of 1912) of the beginning of the century. Also in the 1960s and 1970s the US served as a model for European regulators in new fields of social regulation such as environmental protection, nuclear safety, consumer product safety, and the regulation of new technologies. Two factors explain, in part at least, the strikingly different development of public policy in Europe and the US. First, the early US regulatory state was a minimal state, a ‘state of parties and judges’ with a highly-developed party democracy that presumed the absence of a strong arm of national administration (Skowronek 1982). There was no ‘colbertist’ tradition as in France, no bureaucracy accustomed to intervene directly in the economy and to support domestic cartels, as in Germany; and the small size of the federal budget (like the small size of the EU budget, see below) prevented the development even of modest programmes of income redistribution or macro-economic stabilisation. On the other hand, the Commerce Clause of the US Constitution allowed the federal judiciary to create a single continent-wide market by regulating interstate commerce. There is here an obvious analogy with the role of the European Court of Justice under Articles 30 to 34 of the Rome Treaty. The second important factor is ideological. While in Europe broad popular support of the market economy developed only after the crisis of the welfare Keynesian state, in America the value of the market as an engine of economic and social progress has never been seriously challenged, except by politically-unimportant intellectual minorities. The definition of regulation given by Philip Selznick (1984:363) expresses very well this acceptance of the beneficent role of the market. According to Selznick, regulation is sustained and focused control exercised by a public agency over activities that are socially valued. Implicit in this definition is the idea that market activities can be ‘regulated’ only in societies that consider such activities worthwhile in themselves and hence in need of protection as well as control. On the other hand, the reference to sustained and focused control by a public agency suggests that regulation is not achieved simply by passing a law, but requires detailed knowledge of, and intimate involvement with, the regulated activity. This requirement will necessitate, sooner or later, the creation of specialised agencies entrusted with fact-finding, rule-making, and enforcement. Such a development is taking place in Europe now (Majone 1994a).

A European regulatory state? 265 THE QUANTITATIVE AND QUALITATIVE GROWTH OF EUROPEAN REGULATION Aside from competition rules and measures to ensure the free movement of goods, services, capital, and people among the member states, few regulatory policies are explicitly mentioned in the Treaty of Rome. Transport and energy policies, which could have given rise to significant regulatory activities, have remained until recently largely undeveloped. On the other hand, agriculture, fisheries, regional development, social programmes and foreign aid, which together account for more than 80 per cent of the EU budget, are mostly distributive or redistributive, rather than regulatory, policies (redistributive policies transfer resources from one group of individuals, regions or countries to another group, while distributive programmes such as public works or financial support for research and development, allocate public resources among different groups or activities). Despite its significant growth in recent years, the EU budget represents only 2.4 per cent of all the public-sector spending of the member states, and less than 1.3 per cent of the gross domestic product (GDP) of the Union. By comparison, around 50 per cent of the wealth produced in the member states is spent by the national and local governments. The EU budget is not only very small but also rigid: almost 70 per cent of total appropriations consists of compulsory expenditures for programmes such as the Guarantee Section of the European Agricultural Guidance and Guarantee Fund. Given such limited resources, how can one explain the apparently unstoppable growth of European regulation? Since the 1960s, the average number of directives and regulations produced each year has increased almost exponentially: twenty-five directives and 600 regulations by 1970; fifty directives and 1,000 regulations by 1975; eighty directives and 1,500 regulations per year since 1985. In comparative terms: in 1991 Brussels issued 1,564 directives and regulations as against 1,417 pieces of legislation (laws, ordinances, decrees) issued by Paris, so that by now the EU introduces into the corpus of French law more rules than the national authorities. Moreover, today only 20 to 25 per cent of the legal texts applicable in France are produced by the national parliament or government in complete autonomy, that is, without any previous consultation in Brussels (Conseil d’Etat 1992). It seems that Jacques Delors’s often quoted prediction that by 1998, 80 per cent of economic and social legislation applicable in the member states will be of European origin, while perhaps politically imprudent, did not lack solid empirical support. Reporting such statistics, the French Conseil d’Etat speaks of normative drift, ‘dérive normative’ and luxuriating legislation, ‘droit naturellement foisonnant’, doubting that any government could have foreseen, let alone wished, such a development. It also points out, however, that the same member states that deplore the ‘furie réglementaire’ of the Brussels authorities, are among the major causes of over-regulation. In fact, it is estimated that between 90 and 95 per cent of recent European directives are the result not of spontaneous initiatives of the Commission, but of demands coming from individual member states or the Council, the European Parliament, the Economic and Social Committee, regional governments, and various private and public interest groups. Complaints about over-regulation raise another puzzling question. Member states strive to preserve the greatest possible degree of sovereignty and policy-making autonomy, as shown for example by their stubborn resistance to supranationalism in the areas of taxation and macroeconomic policy making. Also, national governments seem to be firmly in control of every

266 Giandomenico Majone stage of policy-making: political initiative comes from the European Council; political mediation takes place in the framework of the Committee of Permanent Representatives of the Member States (Coreper); formal adoption is the prerogative of the Council of Ministers; implementation is in the hands of national administrations. Why, then, do the same countries which complain of over-regulation accept, indeed demand, many regulatory measures not foreseen by the founding treaties and not strictly necessary for the proper functioning of the single European market? Over the years, European regulations have grown not only in quantitative but also in qualitative terms. Thus, a number of directives in the area of social regulation— environmental protection, consumer protection, health and safety at the workplace— represent significant innovations with respect to the policies of most member states. Now, the possibility of genuine policy innovation needs explanation since according to the received view, European policies, in order to be accepted by the member states, have to represent a sort of least common denominator solution. Hence, it is argued, policy innovation at the European level is only possible when national preferences converge towards some new approach. At best, the Commission can hope ‘to generalize and diffuse solutions adopted in one or more Member States by introducing them throughout the Community. The solutions of these Member States normally set the framework for the Community solution’ (Rehbinder and Stewart 1985:213). In fact, there were exceptions to the rule of least-common-denominator solutions even before the Single European Act (SEA). By admission of the same authors, some earlier environmental directives represented significant policy innovations. Thus, the PCB Directive (76/769/EEC) ‘had no parallel in existing Member State regulations’, while the Directive on sulphur dioxide limit values (80/779/EEC) established, on a Community-wide basis, ambient air quality standards, which most member states did not previously employ as a control strategy (ibid.: 214). However, the most striking examples of regulatory innovation were made possible by the SEA with the introduction of qualified majority voting not only for internal market legislation but also for key areas of social regulation. Thus, some recent health and safety directives go beyond the regulatory philosophy and practice even of countries such as Germany and France, with quite high levels of protection (Eichener 1992; Majone 1993). In order to explain both the quantitative and the qualitative growth of European regulation it is useful to distinguish between regulatory origin—the initiation of new regulatory policies—and the choice of particular outcomes under existing regulation. These two stages are analysed separately in the following sections. A THEORY OF REGULATORY ORIGIN IN THE EU Neo-functionalists explained the development of European policies in terms of the ‘expansive logic of sectoral integration’ (Haas 1958). They assumed a process of functional ‘spill-overs’ in which the initial decisions of governments to delegate policy-making powers in a certain sector to a supranational institution inevitably creates pressures to expand the authority of that institution into neighbouring policy areas. As we know, this prediction has been falsified in many cases. For example, although the Rome Treaty has a whole section on social policy, this field remains, and probably will continue to remain, under the control of the member states (Majone 1993). In this connection, it is interesting to note that the much-cited annex on social policy of the Maastricht

A European regulatory state? 267 Treaty is only an intergovernmental agreement among the member states, with the exception of the United Kingdom. One problem with neo-functionalist and other early theories of European policymaking is their failure to distinguish between different policy types; in particular between regulatory and non-regulatory (e.g., distributive or redistributive) policies. However, it is increasingly recognised that such distinctions are essential for understanding the dynamics of different policy areas. Now, an important structural characteristic of regulatory policy-making is the limited influence of budgetary constraints on the activities of regulators. The size of non-regulatory, direct-expenditure programmes is constrained by budgetary appropriations and, ultimately, by the size of government tax revenues. In contrast, the real costs of regulatory programmes are borne directly by the firms, individuals, or governments that have to comply with them. Compared to these costs, the resources needed to produce the regulations are trivial. The distinction between regulatory policies and those involving the direct expenditure of public funds is particularly important in the European context, since not only the economic, but also the political and administrative costs of implementing European regulations are borne, directly or indirectly, by the member states. A theory of regulatory origin must also distinguish between the demand and the supply side of the ‘market’ for regulation. In the European context, the supply side is represented by the Commission, which has a virtual monopoly on policy proposals. We assume that the Commission, like any other bureaucratic organisation, attempts to maximise its own influence, and in particular the scope of its competences, subject to the budget constraint. Now, we saw in the preceding section that the EU budget is both small and rigid. By offering regulations, rather than proposing direct-expenditure programmes, the Commission can circumvent the budget constraint while at the same time expanding, sometimes quite significantly, its competences. The analysis of the demand side is considerably more complex since, as already mentioned, a variety of governmental and non-governmental actors may have an interest in specific European regulations. For example, multinational, export-oriented industries are interested in avoiding inconsistent regulations in various EU and non-EU countries; European regulation can eliminate or at least reduce this risk. This explains the support given by the European chemical industry to Directive 79/831/EEC on the classification, packaging, and labelling of dangerous substances. The same directive shows that European regulation can also be useful in strengthening an industry’s international bargaining position. In 1976 the US, without consulting their commercial partners, enacted the Toxic Substances Control Act (TSCA). The new regulation represented a serious threat for European exports of chemical products to the US market. A European response to TSCA was clearly needed, and an EC-wide system of testing new chemical substances could serve as a model for negotiating standardised requirements covering the major chemical markets. In fact, Directive 79/831 enabled the Community to speak with one voice in discussions with the US and other OECD countries, and strengthened the position of the European chemical industry in ensuring that the new US regulation did not create obstacles to its exports (Brickman et al. 1985). The rich empirical literature on organised interests in the EC offers many other examples of groups seeking regulation at the European rather than the national level, but we must turn now to the most important actors on the demand side, the member states themselves. An objection may be raised at this point: is it correct to place national governments on the same

268 Giandomenico Majone side as interest groups? After all, most regulations and directives have to be approved by the Council of Ministers, which is an intergovernmental body representing the interests of the national governments. Why not place the member states and the Commission on the same side of the demand and supply equation, as ‘co-producers’ of regulatory outputs? The answer is that although, in a formal sense, the Commission proposes and the Council disposes, in fact the legislation approved by the Council usually reflects the policy positions of the Commission. It is also important to recall that in many cases the Commission makes legislative proposals at the suggestion of particular national governments. Often the suggestion is to extend to the European level a particular national approach to a given regulatory problem. Such an extension would minimise the costs of adapting to new European legislation, and may even create competitive advantages for the national industry. Thus, the UK government put pressure on the Commission to liberalise the market for life and non-life insurance— where British firms enjoy a competitive advantage over continental insurers—by means of directives inspired by the British approach to insurance regulation. Member states are constantly engaged in such regulatory competition, but they are successful only when their approach corresponds to the policy preferences of the European Commission (Héritier et al. 1994). Note, however, that to demand European regulation in a given area is to assume that the Union is competent to legislate in that area. To complete the model we must therefore explain why the member states are willing to delegate to the supranational institutions regulatory powers extending well beyond the level required by the founding treaties or by the logic of functional spill-overs in an increasingly integrated market. The argument is that the rationale for supranational regulation is international regulatory failure rather than market failure (Gatsios and Seabright 1989). Market failures with international impacts, such as transboundary pollution, could be managed in a decentralised fashion, without delegating regulatory powers to a supranational authority, provided that national regulators were willing and able to take into account the international effects of their choices; that they had sufficient knowledge of one another’s intentions; that the cost of organizing and monitoring policy co-ordination were not too high; and especially provided they could trust each other to implement in good faith their joint agreements. International regulatory failure occurs when one or more of these conditions are not satisfied. Thus, it is usually difficult to observe whether or not intergovernmental regulatory agreements are honestly kept; this is because economic and social regulation is both complex and discretionary. Bargaining is a pervasive feature of regulatory enforcement since regulators lack information that only regulated firms have, and governments are reluctant to impose excessive costs on industry. When it is difficult to observe whether governments are making an honest effort to enforce a co-operative agreement, the agreement is not credible. Thus, one solution to the problem of international regulatory failure is to delegate regulatory tasks to a supranational authority with the power of monitoring implementation and imposing sanctions. Because the European Commission is involved in the regulation of a large number of firms throughout the Union, it has much more to gain by being tough in any individual case than a national regulator: weak enforcement would destroy its credibility in the eyes of more firms. Thus, it may be more willing to enforce sanctions than a member state would be (Gatsios and Seabright 1989:50).

A European regulatory state? 269 The technocratic, non-political nature of the Commission raises serious problems of legitimacy and democratic accountability to be discussed in the section on the democratic deficit. In the present context, however, the existence of an independent institution insulated from the electoral cycle and from party competition, is an additional advantage for the member states, which can delegate to it politically difficult decisions such as the refusal to grant subsidies to loss-making companies, the application of competition rules to the nationalised industries, the elimination of protectionist non-tariff barriers, or the strict implementation of environmental regulations during an economic recession. In sum, by agreeing to have their hands tied by European rules, member states can increase the international credibility of their policy commitments and, at the same time, reduce the power of redistributive coalitions and the level of rent-seeking at home. These strategic advantages, combined with the potential benefits of regulatory competition mentioned above, are sufficient to explain the willingness of the national governments to delegate important regulatory powers to the European level. In the next section we explore the dynamics of the post-delegation phase. REGULATORY DISCRETION AND POLICY INNOVATION A theory of regulatory origin, such as the one outlined in the preceding pages, purports to explain why certain policy-making powers are assigned to a particular institution or level of government, but cannot tell us much about the way such powers are used. Thus, to understand the qualitative growth of European regulation we must go on to analyse the dynamics of delegation and control: the extent to which political principals can limit the discretion of their bureaucratic agents. The thrust of much recent research on political-bureaucratic relations is that bureaucracy has a substantial degree of autonomy, and that direct political control is rather weak (Wilson 1980; Moe 1987, 1990; Majone 1994b). Oversight for purposes of serious policy control is time-consuming, costly, and difficult to do well under conditions of uncertainty and complexity. At any rate, legislators are concerned more with satisfying voters to increase the probability of re-election than with overseeing the bureaucracy. As a result, they do not typically invest their scarce resources in general policy control. Instead, they prefer to intervene quickly, inexpensively and in ad-hoc ways to protect particular clients in particular matters (Mayhew 1974); hence legislative oversight is un-co-ordinated and fragmented. Similarly, the literature on the budgetary process has cast doubts on the budget as an effective tool of control. As Wildavsky (1964) discovered, budgeting is decentralised and incremental, resulting in automatic increases that further insulate the bureaucracy from political control. Theories based on the principal-agent model give a more positive assessment of the possibility of political control of the bureaucracy. According to agency theory, political control is possible because elected politicians create bureaucracies. They design administrative institutions with incentive structures to facilitate control, and they monitor bureaucratic activities to offset information asymmetries. Thus, agency theory, like recent versions of intergovernmentalism (Moravcsik 1993), posits well-informed central decision-makers who systematically mould the preferences of bureaucratic agents and are capable of exercising rational political control (Wood and Waterman 1991:803). However, the process is considerably more complex than envisaged by these theories. In the delegation phase, political principals do have the freedom to select their agents and impose an

270 Giandomenico Majone incentive structure on their behaviour. Over time, however, bureaucrats accumulate job-specific expertise, and this ‘asset specificity’ (Williamson 1985) alters the original relationship. Now politicians must deal with agents they once selected, and in these dealings the bureaucrats have an advantage in technical and operational expertise. As a result, they are increasingly able to pursue their objective of greater autonomy. As Terry Moe writes: Once an agency is created, the political world becomes a different place. Agency bureaucrats are now political actors in their own right: they have career and institutional interests that may not be entirely congruent with their formal missions, and they have powerful resources—expertise and delegated authority—that might be employed toward these ‘selfish’ ends. They are now players whose interests and resources alter the political game. (Moe 1990:143)

This recent research on political-bureaucratic relations throws considerable light on the dynamics of delegation and control in the European context. Also for the representatives of the member states in the Council of Ministers, oversight for purposes of serious policy control is costly, time-consuming, and difficult to do well. Hence their unwillingness to invest scarce resources in such activities. For example, the so-called ‘comitology’ system is an attempt to control the Commission’s discretion in the execution of Council directives. ‘Regulatory’ and ‘management’ committees created under this system can block a Commission measure and transmit the case to the Council, which can overrule the Commission. Even in the case of such committees, however, the Commission is not only in the chair, but has a strong presumption in its favour (Ludlow 1991:107). According to the most detailed empirical study of the comitology system to date ‘Commission officials generally do not think that their committee significantly reduced the Commission’s freedom and even less that it has been set up to assure the Member States’s control’ (Institut für Europäische Politik 1989:9). According to the same study, the Council acts only rarely on the complex technical matters dealt with by the comitology committees, but when it does, its decisions mostly support the Commission’s original proposals (ibid.: 123). In fact, the Commission has reported overwhelming (98 per cent) acceptance of its proposals by the various regulatory committees (Eichener 1992). Also in the case of policy initiation, the formal procedure according to which Commission proposals are discussed in a working group comprising national experts, submitted to an advisory committee, and reviewed by Coreper, gives an impression of tight control that does not correspond to reality. What is known about the modus operandi of the advisory committees and working groups suggests that debates there follow substantive rather than national lines. A good deal of copinage technocratique develops between Commission officials and national experts interested in discovering pragmatic solutions rather than defending political positions (ibid.: 1992). By the time a Commission proposal reaches the Council of Ministers all the technical details have been worked out and modifications usually leave the essentials untouched. Although the Council with its working groups can monitor the activities of the Commission, it cannot compete with the expertise at the disposal of the Commission and its Directorates (Peters 1992:119). The offices of the Commission responsible for a particular policy area form the central node of a vast ‘issue network’ that includes, in addition to the experts from the national administrations, independent experts; academics; environmental, consumer and other publicinterest advocates; representatives of economic interests, professional organisations and subnational governments.

A European regulatory state? 271 Commission officials engage in extensive discussions with all these actors but remain free to choose whose ideas and proposals to adopt. The variety of policy positions, which is typically much greater than at the national level, increases the freedom of choice for European officials. It may even happen that national experts find the Commission a more receptive forum for new ideas than their own administration. An important piece of health and safety regulation, Directive 89/392/EEC, (‘machinery directive’) offers a striking example of this. The crucially important technical annex of the directive was drafted by a British labour expert who originally had sought to reform the British approach to safety at the workplace. Having failed to persuade the policy-makers of his own country, he brought his innovative ideas to Brussels, where they were welcomed by Commission officials and eventually become European law (Eichener 1992:52). The existence of large margins of regulatory discretion is a necessary but not a sufficient condition for genuine policy innovation. We must also consider the capacity of Commission officials to play the role of policy entrepreneurs. Kingdon (1984) describes policy entrepreneurs as constantly on the look out for windows of opportunity through which to push their preferred ideas. Policy windows open on those relatively infrequent occasions when three usually separate process streams—problems, politics, and policy ideas—come together. Policy entrepreneurs concerned about a particular problem search for solutions in the stream of policy ideas to couple to their problem, then try to take advantage of political receptivity at certain points in time to push the package of problem and solution. A successful policy entrepreneur possesses three basic qualities: first, he must be taken seriously either as an expert, as a leader of a powerful interest group, or as an authoritative decision-maker; second, he must be known for his political connections or negotiating skills; third, and probably most important, successful entrepreneurs are persistent (Kingdon 1984:189–190). Because of the way they are recruited, the structure of their career incentives, and the crucial role of the Commission in policy initiation, Commission officials often display the qualities of a successful policy entrepreneur to a degree unmatched by national civil servants. In particular, the Commission exhibits the virtue of persistence to an extraordinary degree. Most important policy innovations in the EC have been achieved after many years during which the Commission persisted in its attempts to ‘soften up’ the opposition of the member states, while waiting for a window of opportunity to open. A textbook example is the case of the Merger Control Regulation approved by the Council on 21 December 1989, after more than twenty years of political wrangling. As far back as 1965, the Commission argued that the Treaty of Rome was seriously deficient without the power to control mergers. The following year it asked a group of experts to study the problem of concentrations in the Common Market. The majority of the group held that article 85 of the Rome Treaty could be applied to ‘monopolizing’ mergers, but the Commission chose to follow the contrary opinion of the minority. It did, however, accept the majority view concerning the applicability of article 86 to mergers involving one company already in a dominant position in the Common Market. The European Court of Justice followed the Commission’s interpretation in the Continental Can case (1973). At the beginning of 1974 the European Parliament and the Economic and Social Committee approved by large majorities a proposal for a merger control regulation, but the member states were not yet prepared to grant the Commission the powers it requested. A long period of inaction followed. The process was again set in motion by the ground-

272 Giandomenico Majone breaking Philip Morris judgment of 17 November 1987 in which the Court of Justice held, against the then prevalent legal opinion, that article 85 does apply to the acquisition by one company of an equity interest in a competitor where the effect is to restrict or distort competition. The Commission warmly endorsed the Court’s decision. It was clear that another important step, after Continental Can, had been taken on the road towards the control of merger activities with a ‘Community dimension’. In the meanwhile, the ‘Europe 1992’ programme for the completion of the internal market had stimulated waves of mergers; this development opened the window of opportunity the Commission had been waiting for so long. Centralised merger control of Community-wide mergers could now be presented as essential for success in completing the internal market. Finally, the convergence of Kingdon’s three streams of problems, politics, and policy ideas produced the 1989 Merger Control Regulation. Another strategy used by policy entrepreneurs is to introduce a new dimension to the policy debate. By changing the nature of the debate, an entrepreneur may be able to break up existing equilibria and create new and more profitable policy outcomes. The successful entrepreneur, according to Riker (1986:64) ‘probes until he finds some new alternative, some new dimension that strikes a spark in the preferences of others’. An example of this strategy is the Commission’s advocacy of the concept of ‘working environment’. This concept opens up the possibility of regulatory interventions in areas traditionally considered to be outside the field of health and safety at work, such as stress and fatigue. The above-mentioned Machinery Directive and also Directive 90/270 on health and safety for work with display screen equipment, are inspired by this regulatory philosophy. In view of the oft-repeated assertion that European policy-making is under the control of the most powerful member states, it should be pointed out that these directives extend to the European level the approach of two small countries—Denmark and the Netherlands, which first introduced the concept of working environment into their legislation—and which were opposed by Germany in order to preserve the power and traditional approach of national regulatory bodies (Feldhoff 1992; Eichener 1992). THE DEMOCRATIC DEFICIT AND ALL THAT Concerns over the insufficient democratic accountability of European policy-making processes are even more widespread than concerns over the alleged centralist and over-regulatory bias of EU legislators. According to the critics, this democratic deficit has three main sources. First, the European executive (Council of Ministers and Commission) rather than the European Parliament is responsible for legislation, in flagrant violation of the principle of division of powers. Second, within the executive, the bureaucratic branch (the Commission) is unusually strong with respect to the political branch (the Council), the members of which are ultimately subject to the control of the national parliaments. Finally, because of the supremacy of European law over national law, the governments of the member states, meeting in the Council, can control their own parliament, rather than being controlled by them. A full discussion of these issues is beyond the scope of this chapter. More modestly, I will attempt to show that the model of the EU as a regulatory state helps to clarify at least some aspects of the general problem. For example, the most frequently suggested solution is to make the European Parliament into a real legislative and monitoring body. There are, however, good

A European regulatory state? 273 theoretical and empirical reasons to doubt that such a development, however desirable in itself, would be sufficient to ensure the accountability of European regulators. Even at the national level, the capacity of parliaments to effectively monitor policy-making is increasingly questioned. Thus, the difficulty of controlling the nationalised industries has shown that the traditional mode of accountability through ministers who answer to parliament is often a bit of a myth (Majone 1994c). As we saw in the preceding section, legislative oversight for purposes of serious policy control is time-consuming, costly, and difficult to do well under conditions of uncertainty and complexity. Hence, legislators do not usually invest their scarce resources in general policy control, but prefer to intervene in ad-hoc ways to protect particular clients in particular circumstances. As a result, legislative oversight tends to be fragmented and unco-ordinated. Partly for these reasons, legislatures have been increasingly willing to delegate important policy-making powers to politically independent agencies. The paradoxical implication is that in areas such as monetary policy or economic and social regulation, the model of the expert agency may provide greater accountability than the old parliament-based system. Perhaps the most striking indication of this change in the philosophy of democratic accountability is the ready acceptance by all European governments and political parties of the idea of an independent central bank. According to the Maastricht Treaty, the future European Central Bank (ECB) will have sweeping statutory powers: it can make regulations that are binding in their entirety and become European and member states’ law, without the involvement of the European Council or of national parliaments. Moreover, since the governors of the central banks of the member states are members of the ECB Council, they too must be insulated from domestic political influences, and can no longer be players in the old game of pumping up the economy just before an election. In short, in the European monetary union, issues of macro-economic management that have been the lifeblood of Western politics, determined the rise and fall of governments, and affected the fate of national economies, are to be decided by politically independent experts (Nicoll 1993:28). Independent central banks are a species of the genus of non-majoritarian institutions, that is, public institutions which, like the courts of justice, are not directly accountable either to the voters or to elected politicians. The most characteristic institutions of the regulatory state—the independent regulatory agencies or commissions—belong to the same genus. Such bodies have a long tradition in the US, the first regulatory state, but are a much more recent phenomenon in Europe (Majone 1994a). Because the phenomenon is so new, the current debate on the democratic deficit of European institutions misses the point that the accountability of nonmajoritarian institutions is a serious problem not just for the EU, but for the national governments as well. If the problem is more visible at the European level, this is because regulation is relatively more important there than at the national level. However, as was mentioned in the opening section, regulation is not achieved simply by passing a law but requires detailed knowledge of, and an intimate involvement with, the regulated activity. This necessitates, sooner or later, the creation of expert agencies entrusted with fact-finding, rule-making and enforcement. Hence, as the member states establish their own regulatory institutions, often in response to European legislation, they face the same issue of political legitimacy that confronts EU regulators. The common challenge, then, is how to reconcile independence and expertise with accountability. The guiding principle of any reasonable solution must be that agency

274 Giandomenico Majone independence and political accountability can be complementary and mutually reinforcing rather than antithetical values. To assume otherwise is to accept the conventional view of control as ‘self-conscious oversight, on the basis of authority, by defined individuals or offices endowed with formal rights or duties to inquire, call for changes in behaviour and (in some cases) to punish’ (Hood 1991:347). For highly technical and discretionary activities such as regulation, a more appropriate notion of control is one which Christopher Hood calls ‘interpolate balance’: a view of control that takes as its starting point a need to identify self-policing mechanisms which are already present in the system, and can contemplate a network of complementary and overlapping checking mechanisms instead of assuming that control is necessarily to be exercised from any fixed place in the system (ibid.: 354–355). In fact, the US experience shows that regulators can be monitored and kept politically accountable only by a combination of control instruments: clearly defined statutory objectives, procedural constraints (such as the US Administrative Procedures Act), judicial review, professional standards, monitoring by interest groups, even inter-agency rivalry. When such a system works properly no one controls an independent agency yet the agency is ‘under control’ (Moe 1987). THE FUTURE OF REGULATORY FEDERALISM IN EUROPE If it is analytically useful to think about the EU in functional terms, as I have done so far, it is also helpful to think about the Union in federal terms—as long as one does not confuse the federal principle with the structure of a particular federal state such as the US or Germany. As Alberta Sbragia has argued, the essence of federalism is to be found not in a particular set of institutions but in the balancing of territorial and functional interests within a multi-level political system (Sbragia 1993). The difficulty of balancing territorial and functional claims is illustrated by the dilemma of regulatory federalism (Noll 1990). National or regional governments may be more attuned to individual preferences, but they are unlikely to make a clear separation between providing public goods for their citizens and engaging in policies designed to advantage the jurisdiction at the expense of its neighbours. Centralisation of regulatory authority at a higher level of government can correct such policy externalities, and perhaps also capture economies of scale in policymaking. But its cost is the homogenisation of regulation across jurisdictions that may be dissimilar with respect to underlying preferences or needs. In fact, as we saw above, a striking feature of the historical development of the Community has been the progressive centralisation of regulatory policy-making. The suspicion that national governments could use regulation strategically, to pursue their own advantage rather than the jointly agreed objectives, has often led to more centralisation and greater uniformity of norms than was justified by efficiency considerations. Pleas for more decentralisation and greater normative flexibility could plausibly be dismissed as an open invitation to grant further discretionary powers to the member states, thereby placing market integration in jeopardy. But centralisation, even if justified historically, is not the only possible solution of the dilemma of regulatory federalism in the EU. Another solution, more in tune with the subsidiarity principle, is to grant greater independence to national, sub-national and supranational regulators, so that their commitment to a set of objectives decided at the

A European regulatory state? 275 European level is not compromised by domestic political considerations. Independence changes the motivation of regulators whose reputation now depends more on their ability to achieve the objectives assigned to their agencies than on their political skills. With independence and expertise, a problem-solving style of policy-making tends to replace the more traditional bargaining style. And, as was argued in the preceding section, more independence may imply more, rather than less, accountability. Today, the independence of central banks enjoys widespread political support, but the recent rise of independent regulatory agencies throughout Europe (Majone 1994a) shows that the perceived advantages of independence—professionalism, accountability by results, freedom from party political influence, greater policy continuity—are not confined to central banks. It is true, however, that government departments still preserve important regulatory powers, so that the operations of agencies often are dependent on prior decisions of political executives. This situation compromises the international credibility of national regulators. Credibility can be developed through team work. Although people may be weak on their own, they can build resolve by forming a group, and the same is true of organisations. A regulatory agency which sees itself as part of an international network of institutions pursuing similar objectives and facing analogous problems, rather than as a new and often marginal addition to a huge national bureaucracy, is more motivated to resist political pressures. This is because the regulator has an incentive to maintain his or her reputation in the eyes of fellow regulators in other countries. A politically motivated decision would compromise his/her international credibility and make co-operation more difficult to achieve in the future. The European Commission should take the lead in facilitating and co-ordinating the work of transnational regulatory networks, and in ensuring that their activities are consistent with European objectives. Aside from the system of European central banks, the network model is perhaps easiest to visualise in the field of competition. An over-worked and under-staffed DG IV—the Commission’s Directorate General responsible for competition policy—has already advocated a move towards a decentralised system of enforcement via proceedings before national courts. However, it has been rightly pointed out that it would make more sense to transfer responsibility for enforcement to the national competition authorities than to national courts and private litigants. These authorities perform a role which is analogous to that of DG IV, and they possess the kind of experience and expertise which courts of ordinary jurisdiction often lack. Moreover, there already exist direct links between Commission inspectors and national competition authorities as regards any investigations carried out by the Commission. In fact, under Regulation 17, the relevant national competition authority must be associated with inquiries and investigations, and its officials must be present if a search of premises is carried out (Harding 1994:7–9). There is no reason why the network model could not be extended to other areas of economic and social regulation. In fact, at an informal meeting of the Council of Ministers of the Environment in October 1991, it was agreed that member states should establish an informal network of national enforcement officers concerned with environmental law. The recent creation of a number of European agencies (mostly in the field of social regulation) may be seen as a further move in this direction. However, the logic of the model implies that not only national regulators but also their counterparts in the Commission should be independent. Although European commissioners are not supposed to pursue national interests, usually they are politicians who, after leaving Brussels, will continue their careers at home; this makes national

276 Giandomenico Majone pressures often difficult to resist. In a number of well-publicised cases, such pressures have produced flawed or at least inconsistent decisions. Again, competition policy, including the control of mergers and of anti-competitive state aid, provides the clearest examples. Several analysts have argued that Europe will never have a coherent competition policy without a cartel office independent from both the national governments and the Commission. Commissioners would still be able to reverse an independent agency’s decisions, as the German government does in the case of some Bundeskartellamt’s rulings, but the political costs of doing so would be high, and the interference plain for all to see. Thus, the European regulatory state of the future may be less a state in the traditional sense than a web of networks of national and supranational regulatory institutions held together by shared values and objectives, and by a common style of policy-making. REFERENCES Brickman, Ronald, Jasanoff, Sheila and Ilgen, Thomas (1985) Controlling Chemicals, Ithaca, N.Y.: Cornell University Press. Conseil d’Etat (1992) Rapport Public 1992, Paris: La Documentation Française, Etudes et Documents, 44. Eichener, Volkner (1992) Social Dumping or Innovative Regulation?, Florence: European University Institute, Working Paper SPS, 92/28. Feldhoff, Kerstin (1992) Grundzüge des Europäischen Arbeitsumweltrechts, mimeo, Bochum: Ruhr Universität. Gatsios, Kristos and Seabright, Paul (1989) ‘Regulation in the European Community’, Oxford Review of Economic Policy, 5, 2, 37–60. Haas, Ernst (1958) The Uniting of Europe: Political, Social and Economic Forces, 1950–1957, Stanford, Cal: Stanford University Press. Harding, Christopher (1994) ‘The Relationship of the Community and State on the Enforcement of Community Law and Policy’, paper presented at the E.S.R.C./C.O.S.T. A7 Conference on The Evolution of Rules for a Single European Market, Exeter, 8–11 September 1994. Héritier, Adrienne, Mingers, Susanne, Knill, Christoph, and Beck, Martina (1994) Die Veränderung von Staatlichkeit in Europa, Opladen: Leske and Budrich. Hood, Christopher (1991) ‘Concepts of Control over Public Bureaucracies: “Comptrol” and “Interpolate Balance”’, in Franz-Xaver Kaufmann (ed.), The Public Sector, Berlin and New York: Walter de Gruyter, 347–366. Institut für Europäische Politik (1989) ‘Comitology’: Characteristics, Performance and Options, Bonn: Preliminary Final Report. Kingdon, John W. (1984) Agendas, Alternatives and Public Policy, Boston: Little, Brown. Ludlow, Paul (1991) ‘The European Commission’, in Keohane, R. and Hoffman, S. (eds.) The New European Community: Decisionmaking and Institutional Change, Boulder, Co: Westview Press, 85–132. Majone, Giandomenico (1991) ‘Cross-National Sources of Regulatory Policy-making in Europe and the United States’, Journal of Public Policy, 11:1, 79–106. Majone, Giandomenico (1993) ‘The European Community between Social Policy and Social Regulation’, Journal of Common Market Studies, 31, 2:153–170. Majone, Giandomenico (1994a) ‘The Rise of the Regulatory State in Europe’, West European Politics, 17, 3, 78–102. Majone, Giandomenico (1994b) ‘Controlling Regulatory Bureaucracies: Lessons from the American Experience’, in Derlien, H.U., Gerhardt, U. and Scharpf, F.W.S. (eds) Systemrationalität und Partialinteresse, Baden-Baden: Nomos, 291–314. Majone, Giandomenico (1994c) ‘Paradoxes of Privatization and Deregulation’, Journal of European Public Policy, 1, 1, 53–69. Mayhew, David R. (1974) Congress: The Electoral Connection, New Haven, Ct: Yale University Press.

A European regulatory state? 277 Moe, Terry M. (1987) ‘Interest, Institutions and Positive Theory: The Politics of the NLRB’, Studies in American Political Development, 2, 236–299. Moe, Terry M. (1990) ‘The Politics of Structural Choice: Toward a Theory of Public Bureaucracy’, in Williamson, O.E. (ed.) Organization Theory from Chester Barnard to the Present, Oxford: Oxford University Press, 116–153. Moravcsik, Andrew (1993) ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’, Journal of Common Market Studies, 31, 4, 473–524. Nicoll, William (1993) ‘Maastricht Revisited: A Critical Analysis of the Treaty on European Union’, in Cafruny, A.W. and Rosenthal, G.G. (eds) The State of the European Community, vol. 2, Boulder, Co.; Lynn Rienner Publishers, 19–34. Noll, Roger (1990) ‘Regulatory Policy in a Federal System’, paper presented at the Conference on Regulatory Federalism, Florence, European University Institute. Peters, Guy, B. (1992) ‘Bureaucratic Politics and the Institutions of the European Community’, in Sbragia, Alberta M. (ed.), Europolitics, Washington, D.C.: The Brookings Institution. Rehbinder, Eckhardt and Stewart, Richard (1985) Environmental Protection Policy, Berlin: de Gruyter. Riker, William (1986) The Art of Political Manipulation, New Haven, Ct: Yale University Press. Rose-Ackerman, Susan, 1992: Rethinking the Progressive Agenda, New York: The Free Press. Sbragia, Alberta M. (1993) ‘The European Community: A Balancing Act’, Publius, 23, 23–38. Seidman, Harold, Gilmour, Robert, (1986) Politics, Position and Power: From the Positive to the Regulatory State, 4th edn, Oxford: Oxford University Press. Selznick, Philip (1985) ‘Focusing Organizational Research on Regulation’, in Noll, R.G. (ed.) Regulatory Policy and the Social Sciences, Berkeley and Los Angeles: University of California Press, 363–367. Skowronek, Stephen (1982) Building A New American State, Cambridge: Cambridge University Press. Sunstein, Cass (1990) After the Rights Revolution, Cambridge, Ma: Harvard University Press. Wildavsky, Aaron (1964) The Budgetary Process, Boston: Little, Brown. Wilson, James Q. (ed.) (1980) The Politics of Regulation, New York: Basic Books. Williamson, Oliver E. (1985) The Economic Institutions of Capitalism, New York: The Free Press. Wood, Dan B. and Waterman, R.W. (1991) ‘The Dynamics of Political Control in the Bureaucracy’, American Political Science Review, 85, 801–828.

16 Eroding EU policies Implementation gaps, cheating and re-steering Jeremy Richardson

People now appear to think that implementation should be easy; they are, therefore, upset when expected events do not occur or turn out badly. We would consider our effort a success if people began with the understanding that implementation, under the best of circumstances, is exceedingly difficult. They would, therefore, be pleasantly surprised when a few good things really happen. (Pressman and Wildavsky 1973:xii–xiii, reflecting on the lessons of the Economic Development Administration’s employment programme for Oakland, California) There is also massive fraud which, a House of Lords Committee has argued, is increasing and could account for 7–10 per cent of the total European Union (EU) budget, much of it from CAP. The basic strategems are quite simple and certainly well within the scope of any reasonably well-run criminal organization. (Wyn Grant 1995:2, reviewing the limits to the reform of the Common Agricultural Policy (CAP))

INTRODUCTION: IF IMPLEMENTATION WORKS—CLAP! As is very evident from the rest of this volume, the EU policy process is a very productive process in terms of legislative output. For example, it has been estimated that 80 per cent of EC social and economic policy will soon be determined at the European level. Despite demands for the ‘repatriation’ of some existing European laws and for Euro-level deregulation, there is reason to believe that the process of integration is like any other process by which a corpus of public policy is developed; there is some kind of ratchet effect which makes it quite difficult to reverse public policies once they are in place. However, this is not to suggest that there are not other ways of defeating the aims and objectives enshrined in EU policies should member states, implementing agencies and interest groups so wish. Public policies may be ‘peace treaties’ agreed between competing member states, interests and institutions at the time the policies are adopted, but the signatories to the peace treaties often find ways of not complying with what they have agreed. It is clear that some member states ‘negotiate’ knowing full well that they will be less than energetic at the implemention stage. Therefore, it is not surprising that many of these late-night peace treaties come ‘unstitched’ when they come to be implemented in fifteen different member states, all with different administrative structures, legal traditions, and cultural attitudes. Moreover, there are often extremely long time-lags between an EU decision to adopt a particular policy or programme and its translation into even national law, let alone translation into actual policy delivery. Even

278

Eroding EU policies 279 when a policy is in the form of a regulation, rather than a Directive (and, therefore, is directly applicable without the need for further national legislation), there is no guarantee that the policy will be implemented in reality. Thus, when we talk of the EU implementation process, we need to be careful to note that ‘implementation’ can be used in two rather different senses. Quite often the EU institutions themselves refer to ‘implementation’ in the sense of the translation of EU laws into national laws. For example, it is possible to calculate how many of the member states, at any given point in time, have adopted national water laws to implement the EU Drinking Water Directive, first passed in 1980. But the translation of a European Directive into national law may mean absolutely nothing at all in terms of actual action, mobilisation of resources and, above all, the changed behaviour of those who are responsible for policy delivery. As Pressman and Wildavsky found when they studied the US Federal programme for job creation in Oakland, California, cited above, there can be an enormous mismatch between what the policy set out to do (and what the policy-makers claim it as actually doing) and what is happening on the ground. Hence, they subtitled their classic study of the implementation process ‘How Great Expectations in Washington Are Dashed in Oakland; or Why it’s Amazing that Federal Programs Work at All’ (Pressman and Wildavsky 1973). Why do implementation theorists take such a pessimistic view of the world? The main reason lies in the inherent nature of the implementation process itself. As Pressman and Wildavsky described it, ‘implementation may be viewed as a process of interaction between the setting of goals and actions geared to achieve them’ and they defined implementation as ‘the ability to forge subsequent links in the causal chain so as to obtain the desired results’ (Pressman and Wildavsky 1973:xv). In practice, so many conditions need to be met for successful implementation to take place that it is easy to understand Pressman and Wildavsky’s suggestions that far from being surprised that public policies do not work, we should be surprised when they do. One obvious reason for implementation failure—or, as is often the case in the EU of non-implementation—is suggested by the Pressman and Wildavsky study. They introduced the common-sense notions of ‘decision-points’ and ‘clearances’ to help explain why Washington’s high hopes were dashed in Oakland. A decision-point is reached when ‘an act of agreement has to be registered for the programme to continue…. Each instance in which a separate participant is required to give his consent is called a clearance’ (Pressman and Wildavsky 1973:xvi). Simply by adding the number of necessary clearances involved in decision-points throughout the history of a public programme indicates the size of the implementation problem to be addressed. Imagine, therefore, translating this perfectly reasonable approach to the extremely long chain of ‘command’ between the Council of Ministers agreeing to a proposal in Brussels and the proposal being actually implemented throughout the whole of the EU across the fifteen member states, some of whom themselves have a federal structure? One simple recent example illustrates the problem perfectly. In the autumn of 1995, a new Directive on ship safety was announced. The Directive was aimed at ‘guaranteeing that all equipment for vessels sold in the EU conforms to common standards of safety, reliability and performance, so as to reduce the risk of maritime tragedies, by the enforcement of international standards for ship safety, pollution prevention, and on-board-ship living and working conditions. This is in respect of ships using EU ports and sailing in the waters under the jurisdiction of the Member States’ (OJ 157:1995). Some hopes! One would need both a computer and a crystal ball to be able to estimate the number of ‘decision-points’

280 Jeremy Richardson and ‘clearances’ before the Directive actually affected the living and working conditions on any given ship within the EU. Just as policy-making is never completely rational within the EU (or indeed in any organisation, public or private)—at best, it is what Herbert Simon termed ‘bounded rationality’ (Simon 1957)—then so ‘perfect implementation’ is similarly unachievable. But can a policy system such as the EU even attain the equivalent of Simon’s ‘bounded rationality’ in the implementation of policy? The concept of ‘perfect implementation’ was suggested by Hood some twenty years ago in his study of the limits of administration (Hood 1976). In a long list of factors which could prevent the achievement of perfect implementation, Hood identified one factor of particular relevance to the EU, bearing in mind the continued importance of intergovernmentalism and the emergence of a highly organised European interest group system. He suggested that ‘the limits of what is politically acceptable to dominant groups typically “distort” policy programmes in a number of familiar ways’ (Hood 1976:9). The term ‘acceptable’ is important. In the EU case there is often a considerable lack of consensus both over policy content and policy processes. Even though this conflict is usually resolved by resort to a compromise solution, the EU lacks some of the necessary attributes, as a political system, to ensure that the ‘acceptance’ of these compromises is carried out beyond the Euro-level arena in which they are reached. Drawing upon Hood’s work and that of others such as Pressman and Wildavsky, Gunn produced a useful ‘checklist’ of attributes—or preconditions—for successful implementation. Whilst his list is by no means exhaustive, it is a sober reminder of just how far European integration would need to go for decisions in Brussels to stand a consistently high chance of actually being implemented in Bologna, Birmingham and Bordeaux. He identifies ten basic preconditions, as follows: (Gunn 1978; reproduced in Hogwood and Gunn 1984:196–218). 1 The circumstances external to the implementing agencies do not impose crippling constraints For example, physical obstacles may arise (drought or disease), or political opposition. Typical examples would be variations in EU agricultural subsidies due to unusual weather patterns, missed targets for reduced ozone depletion due to similar causes, or strong opposition from fishermen to quota reductions. 2 That adequate time and sufficient resources are made available to the programme Policies which are politically and physically feasible may fail because too much is expected too soon or because insufficient resources are provided. Failure to provide resources is, typically, an EU problem. As Majone argues (Majone 1994), the EU resorts to regulation simply because it lacks the resources to deliver programmes. It uses regulation instead of money as a resource, leaving the member states to pick up the bill. A typical example is the Commission’s 1996 proposal to lower the lead content in drinking water by 80 per cent. This will require an expenditure by the member states (and water consumers) of 50 billion ECU over the next fifteen years (COM (94) 612). There is no guarantee that all of the member states will be able and/or willing to find these huge sums. 3 That the required combination of resources is actually available Not only must the total amount of resources be available but also the necessary combination of resources must be available at each stage of the implementation process. ‘Bottlenecks’ may occur at particular stages. For example, EU packaging laws may meet obstacles if, say, the collection

Eroding EU policies 281 systems for recycling packaging materials are inadequate, even if other resources, such as recycling plants, are in place. One difficulty within the EU is that even when it does provide funding rather than simply resorting to regulation, successful implementation may depend on additional funding being supplied by national, regional, or local governments. For example, in its 1992 Report, the Court of Auditors found that numerous water purification stations had been built in rural villages and towns with Structural Fund support. However, many of the stations were non-operational because local authorities had insufficient funds to maintain them (Court of Auditors 1992). 4 That the policy to be implemented is based upon a valid theory of cause and effect As Gunn suggests, some policies are ineffective, not because they are badly implemented, but because they are bad policies—a policy ‘may be based upon an inadequate understanding of a problem to be solved, its causes and cure’. This cause of implementation failure may be especially relevant for the EU because EU level policy-makers face the difficult task of formulating policy which can be made to work in fifteen very different member states. This is why Commission officials place such heavy emphasis on consultation of interest groups, independent experts, epistemic communities, and officials from national and regional governments. There is huge variation in the nature of policy problems across the Community: for example, a set of regulations governing the operation of financial services in Britain may be quite inappropriate for regulating financial services in Germany, which has a very different structure for its financial services industry. In the environmental field, the crux of the British Government’s objection to the type of policy instruments used in some European environmental legislation is that they are designed for continental European conditions, whereas an island like Britain has the opportunity to use different policy instruments. Thus, Scharpf suggests that there are inherent features in the EC decision-making system (which are shared with federal states like Germany) which make it difficult for optimum decisions being taken in the Council of Ministers. The EC/EU is in what he terms a ‘decision trap’ which produces a bargaining style which leads to sub-optimal decisions (Scharpf 1988:242). It is not surprising that sub-optimal decisions eventually cause implementation problems at member state level. 5 That the relationship between cause and effect is direct and that there are few, if any, intervening links The more links in the chain, the greater the risk that one of them will fail. If we take EU anti-sex discrimination policy as an example, the actual number of links between the European level policy and any one factory or office is enormous, with lots of opportunities for the policy to be ‘eroded’ either intentionally or unintentionally. Alongside bad policy design, the ‘length of the chain’ problem is one of the key factors in causing the erosion of EU policies. The EU implementation process is a huge example of the party game ‘Chinese whispers’, where each player whispers the original message to his or her partner down the line. By the time the message reaches the end of the line, it can be totally distorted. 6 That dependency relationships are minimal One of the indicators for perfect administration (cf. Hood) is the existence of a single implementing agency which does not depend on other agencies for success. Again, the EU fails badly on this score, with a few exceptions such as competition policy where the Commission has direct powers and can even raid the premises of suspect organisations. Generally, the member states have their own implementing agencies, e.g.,

282 Jeremy Richardson for health and safety, with long traditions and objectives of their own. Indeed, one of the classic problems in public administration is the difficulty that governments have in controlling their own agencies, which develop organisational ideologies, ‘go native’, or are ‘captured’ by those whom they are supposed to regulate. This is true for all states, and has been especially the case in federal systems such as the USA, with a more complex range of regulatory structures than in a unitary state. The analogy with the EU is clear. 7 That there is understanding of and agreement on objectives ‘Perfect implementation would require that there should be complete understanding of and agreement on the objectives to be achieved, and that these conditions should persist throughout the implementation process’ (Hogwood and Gunn 1984:204). Even at the policy decision point (for example when the Council of Ministers approves a Directive) this is often not the case within the EU. Moreover, as Mazey demonstrates elsewhere in the volume, there is fundamental disagreement over what the EU is supposed to be and this is carried through into a series of complex ‘policy fights’ over specific policy issues. Low politics regulatory issues which at the national level would be ‘processed’ in the private world of tightly drawn policy communities, can be easily turned into high politics issues within the EU. It is not surprising that the ‘losers’ in a policy fight are less than enthusiastic when it comes to implementing the policy in situations far distant from the original decision point. Implementers will either ignore the policy completely (non-implementation) or resort to a ‘tick the boxes implementation style’, i.e. complete the appropriate monitoring forms in the manner ‘expected’ by the supervising body, safe in the knowledge that it lacks the resources to check systematically whether what is on the completed form bears any relationship to reality. The risk of being found out and punished is probably quite small and is worth taking. This is why so many ‘seams’ have persisted for so long in the EU. Indeed, a ‘tick the boxes implementation style’ can be more than a way of simply avoiding implementation—it can be turned into a good profit! Wyn Grant points out that the complexity of CAP, for example, ‘gives individual farmers of little sophistication opportunities to claim subsidies by coming out of one door and entering another’ (Grant 1995:2). He cites the Court of Auditors Report in 1994 which found that in Ireland, many small producers who received the compensation for definitive discontinuation of milk production, ‘converted’ their few dairy cows into breeding cattle and thus received both their discontinuation compensation and the premium for suckler cows, plus, where appropriate, the premium for male bovines (Court of Auditors 1994:40). An earlier Court of Auditors Report had noted examples of the environmental clauses of EC—funded projects simply not being applied—either because the contractors were unaware of them or because it was their opinion that the relevant national laws were sufficient (Court of Auditors 1992). The question of policy objectives is also problematic in the EU for other reasons. Most bureaucracies are compartmentalised and, as a result, suffer from co-ordination problems. The Commission, however, suffers from this to an unusual degree and is a classic case of Pressman and Wildavsky’s observation that ‘an agency that appears to be a single organisation with a single will turns out to be several suborganisations with different wills’ (Pressman and Wildavsky 1973:92). Commission watchers are replete with stories about one DG not knowing what the other is doing. The result is that ‘the Commission’ is seen to be pursuing quite contradictory policies. There may be agreement on objectives amongst the actors in policy area A (and, indeed, the implementation process could meet many of the conditions for ‘perfect

Eroding EU policies 283 implementation’), but the policy actors in policy area B may be equally united and effective in pursuing policy goals totally inconsistent with those adopted by A. One classic example uncovered by the Court of Auditors was the lack of co-ordination between DG XI (responsible for the environment) and DG XVI (responsible for regional policy). The Court was particularly critical of the lack of consideration given to the environmental impact of EC structural fund policies by EC, national and regional authorities. It attributed this to the fragmented nature of the policy-making processes (at all levels) and the inadequate environmental monitoring of Structural Fund expenditure by the Commission. The Court’s checks found that reform of the Funds had not prompted any appreciable progress at the national level in procedures designed to give more attention to environmental problems in the drafting of regional programmes. These were prepared by the departments responsible for regional development, agriculture and employment, each in its own field. In most cases, departments responsible for the environment were not consulted and in many instances regional and national authorities were ignorant of EC environmental provisions. In various regions, the Court itself had to supply departments responsible for the preparation of regional programmes with details of community law regarding the protection of the environment. The Court found examples of EC initiatives to encourage regional development which were quite contradictory to the goals of EC environmental policy. For example, work carried out in the port of Salonica (financed by the EC) entailed deepening one of the docks and draining the surrounding area. The three to four million cubic metres of excavated, polluted mud was poured into the bay, thus contributing to the destruction of already badly damaged flora and fauna (Court of Auditors 1992). Lack of coordination can also be caused by genuine misundersatndings. As Dunsire suggests, clusters of activities can be seen as ‘orders of comprehension’ separated by their characteristic ‘universe of discourse’ (Dunsire 1978:161). If there are big gaps between these different universes, a ‘dialogue of the deaf can result—not uncommon in the EU it seems! 8 That tasks are fully specified in the correct sequence Within organisations such as firms or hospitals, the process of network planning and control specifies in considerable detail the sequence of tasks to be performed by each participant. A typical example would be the precise planning and specification developed by fast food chains such as McDonald’s. However, the chances of the EU developing such dirigiste control mechanisms are low, unless it is also providing the funding. In such cases, for example under the Human Capital and Mobility Programme (HCM) funded by DG XII, quite ‘dirigiste’ process planning is in place, with complex and detailed rules specifying what has to be done when and by whom. Failure to comply can result in discontinuation of funding. This detailed specification and monitoring of the implementation process is possible because several of the essential conditions for successful implementation are being met. For example, policy-makers and policy implementers are sharing the same objective, the Commission is providing lots of money, sanctions against non-compliance are available, and the length of the implementation chain is quite short as individual university departments deal directly with DG XII officials, by-passing other layers of government. A contrasting case is reported by Lefevere who cites the example of the Environmental Impact Assessment Directive which is currently causing great difficulties for member states because it fails to specify how the assessment shall be recorded (Lefevere 1995:20). 9 There is perfect communication and co-ordination As Hood suggested, perfect communication would require a unitary administrative system ‘like a huge army with a single line

284 Jeremy Richardson of authority’ (Hood 1976). Again, it is difficult to see the EU even approaching a situation where communication from the centre reaches the periphery effectively; the size of the task is enormous. For example, in 1995 CELEX, the data base containing the complete body of EU law in force, such as Union legislation, case-law, preparatory acts, parliamentary questions and national provisions which implement directives, was made available on CD-ROM. The CD-ROM contained no less than 130,000 documents. Even knowing the law does not necessarily solve the problem. As Lefevere suggests, one of the commonest complaints from member states is about the vagueness of Directives. He blames the Council rather than the Commission for these defects (Lefevere 1995:20). As we noted in (8) above, one of the reasons for non-implementation of EC laws, found by the Court of Auditors, was simple ignorance of the law on the part of contractors, for example. There is now a private sector boom in expensive seminars and conferences explaining what EC law is in particular sectors. 10 That those in authority can demand and obtain perfect compliance Under ‘perfect implementation’, Hood suggests, there would be no resistance to commands at any point in the administrative system (Hood 1976). Clearly, an organisation such as the EU which depends upon the pooling of sovereignty in order to survive is often not a position to demand and obtain compliance, except in those areas—such as competition policy—where the member states have collectively decided that a degree of dirigisme is essential if a policy is to work at all. However, there is an increasing number of cases where the European Court of Justice (ECJ) does actually demand and get compliance, even prior to the institution of the possibility of fines on member states under the TEU. The environmental field is a spectacular example, with almost every member state being brought before the ECJ for failure to properly implement certain aspects of EC environmental law. This has undoubtedly caused member states to take the implementation of environmental law more seriously. In the British case, for example, Haigh argues that the 1980 Drinking Water Directive (80/77/EEC) has had a major impact on water policy and particularly investment in the water industry (Haigh 1995:4.4–10). The UK Government has admitted that compliance with European directives has played a major role in deciding the composition of the substantial investment programme of £30 billion which the water companies are in the process of completing (Maclean quoted by Maloney and Richardson 1995:145). The water policy example is in fact a good illustration of the chameleon-like nature of the EU policy process. Amidst what we have suggested is a plethora of implementation problems sufficient to cause surprise when EU policies do work, we see an example of the EU being able to force member states to address the implementation deficit. Thus, as Haigh notes, at the time Britain was being brought before the European Court of Justice by the Commission (the Court eventually found the British Government to be in breech of its obligations under the 1980 Drinking Water Directive). The Commission was generally tightening up on the implementation of the Directive and was bringing actions in the ECJ against France, Belgium and West Germany and had started infringement proceedings against Luxembourg, Italy, Spain, Ireland and the Netherlands (Haigh 1995:44–49). There are many similar developments in other policy areas—such as equal rights for men and women—where member states failing to implement EU have found themselves having to make major adjustments to national policies as a result of enforcement action. For example, in 1995 the British Government had to change the rules governing the issue of free medical prescriptions. Hitherto women received free prescriptions on reaching the age of 60 but men had to wait

Eroding EU policies 285 until they reached the age of 65. As a result of the British courts’ ruling on the interpretation of European law, the Government had to introduce free prescriptions for men reaching the age of 60. It should not be thought, however, that it is only actual legal action that is helping to increase compliance rates. Increasingly, policy implementors are conscious of possible action. As a result, EC/EU law acquires more status and authority and may, therefore, induce a better implementation record. The actions of the Court and the Commission in gradually increasing the sanctions aspects of EU law is a major development: for example, in early 1996 it was reported that an EU Directive was making it increasingly difficult for governments and stock exchanges to prevent competition across their borders. Some of the stock exchanges were, however, ready to exploit the new market opportunities presented by the Directive (see the Financial Times 16 February 1995 ‘New Rules, New Rivals, New Order’). This reminds us that Euro-legislation creates winners as well as losers. As we suggested in the case of the Human Capital and Mobility Programme, university researchers have been enthusiastic implementers of the programme because it delivers much-needed resources in times of national resource squeezes. However, winning in the ‘implementation game’ (Bardach 1977) may bring less direct, though equally important benefits. Simply because there are interests who benefit from implementation success, rather than failure, the picture of the EU implementation process is rather more complex than the range of common implementation constraints listed by Gunn would suggest. Hence, we see in the EU implementation process the implementation equivalent of what Héritier terms a ‘regulatory patchwork’ (Héritier 1996) at the EU level, caused by the individual member states trying to impose their own regulations at the Euro-level. We term the implementation equivalent of this patchwork ‘variegated implementation’. Thus, rather like the Curate who, when asked how his boiled egg tasted, replied (after much thought) ‘good—in parts’, so, the EU implementation record is, in fact, not all bad. Indeed, as Wincott suggests in this volume, ‘the development of the legal structure of the Community has been largely an attempt to improve the effectiveness of Community law, and by comparison with international organisations, community implementation is remarkably effective’ (emphasis added by the author). We now turn to a brief review of the rather ‘dappled’ and ‘chequered’ character of EU implementation processes and to the steady emergence of attempts to close the implementation gap. Thus, the EU policy system is an organic system, capable of learning and of ‘re-steering’ when necessary. VARIEGATED IMPLEMENTATION Héritier’s notion of regulatory patchwork is suggestive of a partial explanation of why the implementation record in the EU is so varied. For example, in our brief review so far we have cited two completely contrasting examples of implementation—the Court of Auditors report on the blatant misuse of CAP by Irish farmers (one hastens to add, a problem common to all of the member states) and the enormous expenditure by UK water companies in their attempts to comply finally with European water legislation and avoid further adverse judgments from the ECJ. In essence, the EU is trying to weld fifteen different ‘regulatory styles’ into a European system of regulation. It is not surprising that the regulatory patchwork that results does not ‘fit’ the regulatory and implementation systems of each of the member states. Thus, if the German Government secures what Héritier calls a ‘home run’, say in the field of environmental policy, one

286 Jeremy Richardson can imagine that member states having quite different systems of regulation encounter difficulties in implementing what is a ‘German model’. Conscientious compliance and wilful non-compliance Because of these divergent national ‘policy styles’, even in cases where there is a genuine and conscientious attempt to implement European laws, practical problems may well arise because the new Euro-regulation is ‘alien’ to embedded administrative practices and ‘styles’. Siedentopf and Hauschild suggested that administrative styles ‘within the member states varied from the “legalistic” to the “pragmatic”’. The legalistic style was defined as having strict respect for formal rules while avoiding pragmatic interpretations, whereas the pragmatic style was defined as adaptation to a situation and a high degree of informal cooperation and interaction’ (Siedentopf and Hauschild 1988:63). They identified the Federal Republic of Germany, Greece and Italy as having a legalistic style, but saw a tendency towards a pragmatic style prevailing in Denmark, France, Luxembourg and the Netherlands (Siedentopf and Hauschild 1988:64). This classification refers to ‘ways of doing things’ in the different member states. However, it leaves open the question of whether states differ in their attitudes on whether to do things. Here, quite different categories can emerge and this may be a more important factor than the ‘fit’ of national administrative and regulatory styles to EU regulations. In the same cross-national study, Ionescu noted that ‘member states which negotiate vigorously before a decision is made, whether a directive or a regulation, apply the decision more strictly than the member states whose delegates have been more conciliatory and more accommodating in the preceding negotiations’ (Ionescu 1988:204). Mazey and Richardson also noted that interest groups from those countries which take implementation more seriously also tended to be more active in lobbying at the European level. They had some expectation that EU policies were ‘for real’ in their countries (Mazey and Richardson 1993). Britain, generally seen as an ‘awkward partner’ (George 1984 and 1996), because it causes difficulties in the negotiation process, actually has a comparatively good record in implementing European laws in both senses of the term implementation (i.e. translation of directives into national laws and trying to conscientiously implement the policies in practice). Notwithstanding deliberate attempts not to implement some European laws cited above (see also further examples cited below), Britain is not the awkward partner (George 1996). That ‘honour’ goes to countries such as Italy, France, Belgium and Greece (see Mendrinou 1996:6 and Fig. 1). The British case, therefore, is a good illustration of the two dimensional aspect of the ‘variegated implementation’ of EU policies. There are cross-national differences but there are also major variations within member states. Their record may be ‘good’ in one policy area and ‘bad’ in another depending on whether they subscribe to the original objectives of the policy and on how many of the types of constraints suggested by Gunn are present for any one implementation process. Hence, implementation is inevitably going to be patchy across the Union, as other ‘federal’ systems have discovered. For example, Kettl’s study of the implementation process in the US identified what to the Europeans has also become a central problem. He suggested that ‘the central problem of American intergovernmental relations is the task of achieving national goals through the instrument of state and local governments. It is a challenge of providing adequate centralised control to achieve national goals while

Eroding EU policies 287 maintaining the integrity of the sub-governments and allowing the flexibility needed to administer programmes in the field’ (Kettl 1979, emphasis added). This is precisely the central problem raised by the concept of subsidarity. If in doubt—cheat Simply because the EU is a club of sovereign states, flexibility is often built into European legislation in order to construct a winning coalition for change during the policy formulation process. For example, Weiler attributes some implementation problems to the complex deals that are reached under unanimity voting (Weiler 1988:353). This produces the European equivalent of US ‘pork barrel’ legislation which is bound to cause implementation problems. With the extension of Qualified Majority Voting (QMV), we should not be surprised that the outright ‘losers’ in policy fights in Brussels might intensify their efforts to erode the ‘agreed’ policy at the implementation stage. The policy game can be continued in other ‘venues’. Mendrinou quotes Weiler and others as referring to member states’ non-compliance in terms of the paradox or pathology of non-compliance (Mendrinou 1996:4). However the paradox is easy to explain if one assumes rational action by member states who wish to reap the benefits of appearing to be good Europeans yet knowing all about the possibilities for policy erosion away from the high politics venues. Hence, there are plenty of examples of wilful non-compliance and of the exploitation of ambiguous situations, under the motto ‘if in doubt—cheat’; at worst, cheating is found out, and compliance may then become necessary. However, at best, cheating buys a valuable resource—time. This enables implementation costs to be spread over a longer period and, indeed, is recognised in the derogation principle whereby states are officially given more time to comply. Again, EU environmental policy provides some illustrative examples. In its 1979 response to the Bathing Water Directive, Britain designated only twenty-seven beaches for compliance with the Directive, compared with 8,000 in the rest of the EC. It did this simply by deciding that bathing waters with fewer than 500 people in the water (per mile) at any one time were not ‘bathing waters’ under the Directive. Even those with up to 1,500 people per mile of bathing water were ‘negotiable’ and so it excluded Blackpool, one of Britain’s largest seaside holiday resorts! Yet Britain was by no means alone in resorting to cheating when faced with the huge costs of compliance. For example, the Consumers’ Association found that many Mediterranean beaches, including one flying the EU’s prestigious ‘Blue Flag’ signifying very clean water, were actually polluted with raw sewage. The Association described the official EU figures as ‘farcical,’ because of the EU’s reliance on data supplied by national governments. Thus, although Britain came close to the bottom of the European bathing water statistics this was probably an artefact of the data. For example, France, Germany, Greece, Italy and the Netherlands failed to test all beaches often enough to make the results valid. Others—Italy and Greece—admitted to EC officials that they ignored the results of the tests after rainfall (see Water Bulletin 17 June 1994 and 18 August 1994). We therefore need to treat compliance data with extreme caution. As the Commission itself reported in the case of bathing waters, trends were difficult to establish because of the sharp increase in the number of points (beaches) insufficiently sampled (EUR, 15976, EN: 15). This sharp increase in the number of cases where it was deemed that insufficient samples had been taken was simply because the Commission had paid special attention to the ways in which the member states conducted

288 Jeremy Richardson their sampling of bathing waters (EUR, 15976, EN: 16). Basically, the figures hitherto reported were about as reliable as fiction. Surprisingly, the Dutch, generally thought to be ‘good Europeans’ (see Mendrinou 1996:6:8) were discovered to have been operating inadequate sampling techniques. As the Commission noted for the Netherlands, ‘the sea water bathing areas are generally of high quality when only the areas sampled sufficiently are taken into consideration. However, this conclusion cannot be applied to all identified bathing areas because a large amount of data is missing’ (EUR, 15976 EN: 97). Thus, as in the British case, the Dutch are an example of a normally ‘compliant’ nation choosing to cheat when it is deemed to be necessary. As Menindrou notes, ‘certain states with relatively good records, such as Germany and the Netherlands, are increasingly becoming problem states’ (Mendrinou, 1996:4). ATTEMPTS TO ‘RE-STEER’ IMPLEMENTATION The Commission’s response to problems arising from the compliance data on the Bathing Waters Directive illustrates a trend within the EU implementation process. Both the Commission and the Court have become increasingly conscious of the need to address the implementation deficit. The Commission President, Jacques Santer, announcing the Commission’s 1996 legislative programme, pointed out that the number of legislative proposals had dropped from sixty-one in 1990 to twenty-five in 1995, with twenty-one forecast for 1996. This was reported as reflecting his wish ‘to refocus the Commission’s activity and to enforce legislation rather than drafting it’ (see COM (95) 512 fin (1996 Work Programme). If, as seems the case, the process of European integration is in a quiescent period, we can expect agencies such as the Commission to find work, if its role as policy entrepreneur is restricted. Also, as Wincott’s chapter in this volume demonstrates, the ECJ has been a very active agency in first of all establishing the supremacy of EC law and subsequently being an enthusiastic enforcer of that law. Threat of Court action is real enough to begin to induce in implementers a fear that cheating (or to be more polite, ‘implementation slippage’) will be found out. At least four developments may lead to an improved implementation record in the future. Increased monitoring and sanctions The US case is instructive in terms of the difficulty of implementing policies in decentralised, devolved, or federal systems. Kettl’s study of community development programmes concluded that the key question was not ‘could the cities be trusted’ (to implement national programmes) but ‘with what can they be trusted?’ (Kettl 1979). Fine political judgements are called for in order to get the decentralisation/centralisation balance right, but, as Montjoy and O’Toole suggest, public policies need to take account of the fact that intra-organisational implementation problems may be both pervasive and somewhat predictable (Montjoy and O’Toole 1979:473). Their tentative solution was to recommend programmes which establish a specific mandate (by which they mean mandates which give less room for interpretation) and provide sufficient resources for the implementing agency—actually the reverse of what usually happens in the EU. Indeed, the current trend is for the Commission to propose general framework laws, consistent with the new

Eroding EU policies 289 vogue for subsidiarity. The difficulty with this new approach is that member states—even those classified as ‘compliant’ such as Britain (see Mendrinou 1996:6) have demonstrated their inventiveness in ‘interpreting’ legislation to their own advantage. Thus, one of the most inventive ‘dodges’ from a compliant state was the British Government’s redefinition of the coastline on the Humber estuary in order to avoid EU regulations governing discharge of sewage. Quite simply, the Government moved the boundary so that the Humber estuary, to which the Urban Waste Water Treatment Directive would have applied, became coastal waters, to which it did not. The move was eventually ruled unlawful by the British High Court. As suggested earlier, the agricultural sector is a nightmare in terms of implementation problems, again illustrating the need for more effective re-steering from the Euro-level. Wyn Grant cites the Court of Auditors’ 1994 Report which reviewed the implementation of the milk quota system. The Report concuded that ‘the lack of checks or the lack of strictness in the supervision and control exercised by the competent agencies of these member states strips the quota system of all its effectiveness’ (Court of Auditors 1994:37). It is not surprising, therefore, that more effective community law is ‘now regarded as a top priority, perhaps ranking alongside the creation of new legislation now that the single market initiative is in place’ (Seville 1995:21). Indeed, as she pointed out, implementation even merited its own declaration in the Treaty of European Union (TEU), ‘which called on the Commission to use its powers to ensure that member states fulfil their obligations’ (Seville 1995:21). As she notes, the Commission already had powers to secure enforcement (under Article 155EC and Article 169); the enforcement style being a mixture of persuasion and punishment (fines can now be imposed on member states under certain circumstances). For example, the Irish Government was threatened with a £100 million fine in early 1996 for a string of irregularities in the Irish meat market in 1991; Italy had suffered a Ecu 1 billion fine in 1993 for ignoring the EU’s milk quota regime for ten years (Financial Times, 6 February 1996). Seville also emphasises the important role of the ECJ in the general ‘tightening up’ which is so clearly underway. As we have suggested earlier, the Court’s actions and the possibility of Court actions has been an important trend. It is now re-enforced by the acquisition of the right of individuals to claim damages from a member state for failure to implement a directive (Seville 1995:22). For example, the UK Government is currently (March 1996) facing the possibility of having to pay damages to Spanish fishermen banned from British waters in 1989, and the German Government may have to compensate a French brewery prevented from exporting beer to Germany. Thus, member states do face a new, powerful sanction, under certain circumstances. The EU is entering a phase common in situations where implementation failure eventually becomes so evident that a process of what Lundquist terms ‘re-steering’ has to take place (Lundquist 1972:33). Essentially, policy-makers begin to take action to encourage or force implementers to behave in ways more likely to achieve the set policy objectives. There is much evidence that the EU is now in this phase of its development as a political system, albeit at a time when a counter-trend, namely subsidiarity, has also gained good currency. For example, Lefevere, reviewing trends in the implementation of EU environmental legislation, suggests that ‘after the 1992 internal market programme, the Commission broadened its investigation of member states’ compliance with EC legislation. Instead of only looking at whether the member states reported on the national measures adopted to implement the directive, the Commission started checking whether national legislation had actually implemented the directive completely and correctly, and, more recently, whether the member state actually reached the

290 Jeremy Richardson goals or quality standards stipulated in the directive’ (Lefevere 1995:19). This reflects the Commission’s recognition of the two senses of ‘implementation’ which we outlined at the outset of this chapter and its realisation that keeping score of the (increasingly high) rate at which Directives are translated into national law tells them little about implementation in the proper sense of the term. When the Commission is aware of sectors where the implementation (proper) record is poor, it tends to look for ways of re-steering the policy in order to secure more effective implementation. As the Commission’s own anuual monitoring Reports indicate, there are big sectoral variations in the degree to which implementation is effective. (Indeed, Mendrinou’s analysis suggests that the variations between sectors are greater than the variations between states. Mendrinou, 1996:9). In those areas where the record is worse, the Commission is naturally more active in its re-steering efforts. Seville cites the example of the recognition of qualifications, where the Commission has exhibited enthusiasm for judicial activism, and suggests that this ‘may to some extent be explained by the worrying extent of misimplementation and misapplication of directives in this area’ (Seville, 1995:22). Mendrinou also suggests that the Commission has its own priorities and that ‘core’ policy areas are subject to a more rigorous approach to monitoring by the Commission (Mendrinou 1996:9). A more rigorous approach does not necessarily mean sanctions, however. The Commission is a ‘learning’ institution, aware of its own political environment and of changes in climates of opinion. Thus, Seville notes that currently, the Commission presents its agenda in a more constructive and conciliatory manner but that sanctions are in the backround. Hence, she concludes that, ‘the velvet glove must continue to conceal the mailed fist’ (Seville 1995:22). The implication is that mixed instruments must be used in the re-steering process, a view consistent with implementation theory. The Commission is able to be flexible in its own attempts to secure more effective implementation against the backround of judicial activism; for example, Mendrinou suggests that the Commission attaches significance to the Court’s expected decisions when deciding whether to pursue a case or not (Mendrinou 1996:9). Whether by design or accident, the two instiutions have done much to raise the importance of obeying European law, even though an enormous amount still needs to be done. The Commission can be tough or tender as necessary, knowing that all actors are aware of the Court’s potential. However, as implementation theory suggests, one of the most favourable conditions for successful implementation is where policy-makers and implementers develop a co-operative relationship, the Commission is fully aware of this and is developing policy instruments less reliant on judicial activism. For example, its 1994 Report pointed out that ‘alongside the formal stages in the procedure laid down by the Treaty, the Commission presses ahead with its policy awareness and regular contact with the authorites in member states. For these purposes it organises bilateral meetings from time to time, known as “package meetings”, at which a set of infringement cases are discussed’ (European Commission 1995b:1c). In the especially problematic environmental field, it has set up ad-hoc dialogue groups, the Consultative Forum on the Environment, The Environmental Policy Review Group, and the Community Network for Environmental Law (European Commission 1995b:59). However, despite this consensual approach to improving implementation, it also seems prepared to use new instruments likely to find less favour with the member states: for example, it is ‘considering an instrument to facilitate public involvement in the application of Community law via direct access to justice, so that the

Eroding EU policies 291 citizen can feel that he (sic) has a role to play in environmental matters’ (European Commission 1995b:65). Here we see one of the key resources which the Commission has in trying to get a more effective grip on the implementation process—namely ‘whistle blowing’ by individuals and organisations in the member states. Complaints to the Commission are still the main source on which it depends for material in monitoring the application of Community law (European Commission 1995b:1d). In fact this is not a very reliable monitoring system. Variations in the incidence of complaints between sectors and countries may not be related to actual variations in the implementation gap, but reflect differences in interest group mobilisation. Those countries with highly organised environmental groups (the UK for example) are likely to produce more complaints than those who lack such developed representational structures. Similarly, those countries with reliable and transparent implementation data are likely to generate more complaints than those countries which make little effort to gather data or do not publish it when they do. (Again, Britain is a case of the former, in the water sector, for example.) Implementation advocacy coalitions and implementation networks As Bardach suggested (Bardach 1977) it is possible to see the implementation process as a game (see also Mendrinou 1996:13–16). Like any game it has winners and losers; if we assume rational action, actors will calculate their strategies in the implementation game in order to maximise benefits. This is one reason why every member state cheats to some degree. Britain is a perfect example of this phenomenon, having been brought before the ECJ for non-implementation, yet taking a very strong line that EU laws should be properly enforced across the Union in order for a ‘level playing field’ to be created for the single market. In fact, the single market is probably the best example of the emergence of an advocacy coalition pressing for a tougher stance on implementation. For example, the socalled Sutherland Report (the Report to the EU Commission by the High Level Group on the Operation of the Internal Market, published in 1992) placed great emphasis on the need for more effective implementation of the single market measures if the goals of the Single Market Project were to be actually realised. This has given considerable authority to those interests who wish to see the single market as a reality rather than just symbolic action. The emergence of potentially powerful advocacy coalitions in favour of more effective implementation can assist the Commission and the Court in their efforts to secure better compliance. That some of these powerful actors are also part of the advocacy coalition trying to curb the Commission’s role as policy entrepreneur and to curb judicial activism merely illustrates the truth of the suggestion that the EU policy process, including the implementation process, is characterised by a series of nested games (see Chapter 1 in this volume). Thus, the British Government is the leader of the ‘curb the Commission and the Court’ coalition yet it is also one of the most active member states in trying to ensure that the implementaion deficit is addressed. The Department of Trade and Industry, for instance, has set up a Single Market Compliance Unit to monitor compliance with single market legislation by other member states. This initiative appears to be business driven and reflects a more general business desire to see the single market properly in place. The main Euro-level federation representing business, the Union of Industrial and Employers’ Confederations in Europe (UNICE), in its submission to the new Commisson in 1995, argued that ‘European competitiveness stands to make major gains from a Single Market brought about by the

292 Jeremy Richardson effective and uniform implementation of EU directives’ (UNICE 1995a:XII). It asked for the Commission to ensure that ‘there is strict control over the correct transposition of EU directives into law and then proper and uniform implementation in all the areas covered, especially directives which remove technical barriers and those which liberalise public purchasing’ (UNICE 1995b:XII). Effective enforcement is not just a business issue, however. Environmentalists are equally enthusiastic about the proper implementation of the EU’s environmental laws (something the business lobby would not support), knowing that this sector represents one of the most spectacular examples of an implementation deficit. Thus, WWF and five other environmental organisations (FOE, Climate Network Europe, European Environmental Bureau, Greenpeace International), listed better enforcement as one of its key demands to the 1996 IGC. They also called for strengthened powers for the ECJ to impose financial sanctions on member states for failure to fulfil the objectives of the EU’s environmental legislation, and the strengthening of individual rights to bring actions to enforce against non-compliance (WWF et al. 1995:4). Other groups such as women’s organisations are also vociferous in their demands that EU legislation should actually be applied (Mazey 1995). The difficulty for the Commission and the Court is that organisations such as the business lobby and the environmentalists want to pick and choose which laws should be strictly enforced. (For example, the business lobby is also strongly in favour of deregulation and subsidiarity in those areas that would not undermine the Single Market Project.) In practice, therefore, the Commission has to look for stakeholders in each policy area where it wishes to improve implementation and mobilise these interests in various kinds of implementation networks. Thus, the Equal Opportunities Unit of the Commission draws on the collective expertise of The Network of Experts on the Implementation of the Equality Directive, which in 1992 produced a detailed report on indirect and direct discrimination on grounds of pregnancy/maternity. (The report produced a depressing picture of non-implementation or ineffective implementation. See V/6008/93-EN.) Setting aside the more high politics issues in favour of getting on with the job of making policies work has a common sense appeal and we can expect to see the proliferation of such networks (and an extension of the Commission’s practice of setting up fora to bring together national regulatory agencies). Scharpf sees an important shift in the Commission’s style in relation to harmonisation, for example. Thus, he argues that the Commission’s new aim ‘is to take the greatest possible advantage of corporatist, quasi-governmental or subnational processes of norm formation, concretisation and enforcement’ (Scharpf 1994:236). The shift is towards less conflict-prone co-ordination techniques, reflecting, he believes, a desire to reduce the need for consensus in the Council of Ministers However, as we suggested above, the slippery concept of subsidiarity threatens to upset the trend to get to grips with what Mendrinou described as systemic non-compliance (Mendrinou 1996:2). The whole subsidiarity concept is riven with complexities, allowing different policy actors to interpret its meaning almost at will. (For a discussion see Partan 1995.) Its relevance to our discussion is that the Commission now has to be careful to take note of the subsidiarity principle when drafting new legislation. In practice, this means that new Directives are likely to be more general, ‘framework laws’, leaving member states greater discretion in how they actually implement the laws and in how they go about achieving the objectives enshrined in the law. Very detailed policy instruments are now out of fashion, increasing the scope of the member states’ discretion to implement EU policies more in line with national administrative

Eroding EU policies 293 styles and traditions. The philosophy behind this new approach is that it will lead to more effective implementation and will cause much less hostility to the EU as a ‘nanny’ state. There is, of course, a perfectly respectable argument for decentralisation and flexibility as a means of improving implementation. Indeed, Scharpf argues that if European integration depends on policy co-ordination (as, surely, it does), ‘there is a need for co-ordination techniques which impose minimal constraints on the autonomous problem solving capacities of the member states’. However, he adds the crucial caveat that ‘these, in turn, depend on the willingness of member states to pursue their own policy goals in ways which impose minimal constraints on free movement within the European market’(Scharpf 1994:219). This is a perfectly laudable aim and Scharpf cites examples of cases of technical interdependence where compromises have been reached between the technically optimum solutions and the constraint of avoiding too great a sacrifice in national autonomy. However, cynics familiar with the horror stories of the EU’s implementation record to date might be forgiven for seeing subsidiarity as Euro-jargon for an extended licence to cheat. Rather than improved implementation, we are likely to uncover mass graves for EU policies, rather than the mere skeletons in the cupboard that have been discovered so far! REFERENCES Bardach, E. (1977) The Implementation Game, Cambridge, Mass: MIT Press. Court of Auditors (1992) ‘Special Report no. 3/92 Concerning the Environment Together with the Commission’s Replies’, Official Journal, 92/C245/Vol. 35. Court of Auditors (1994) ‘Special Report 4/93 on the Implementation of the Quota System Intended to Control Milk Production’, 03, 94/C12/Vol. 37. Dunsire, A. (1978) Implementation in a Bureaucracy, Oxford: Martin Robertson. European Commission (1995a) Quality of Bathing Water 1994, EUR 15976 EN, Brussels. European Commission (1995b) Twelfth Annual Report on Monitoring the Application of Community Law (1994), COM(95) 500. Final. Brussels. George, Stephen (1984) An Awkward Partner: Britain and the European Community, Oxford: Oxford University Press. George, Stephen (1996) ‘The Approach of the British Government to the 1996 Intergovernmental Conference of the European Union’, Journal of European Public Policy, Vol. 3, no. 1, pp 45–62. Grant, Wyn (1995) ‘The Limits of Common Agricultural Policy Reform and the Option of Denationalization’, Journal of European Public Policy, Vol. 2, no. 1, pp. 1–18. Gunn, Lewis (1978) ‘Why is Implementation so Difficult?’, Management Services in Government, 33, p. 169–176. Haigh, Nigel (1995) Manual of Environmental Policy: The EC and Britain, London: Catermill Publishing. Héritier, Adrienne (1996) ‘The Accommodation of Diversity in European Policy-Making and its Outcomes: Regulatory Policy as Patchwork’, Journal of European Public Policy, Vol 3, no 3, pp. 149–167. Hogwood, Brian, W. and Gunn, Lewis, A. (1984) Policy Analysis for the Real World, Oxford: Oxford University Press. Hood, Christopher (1976) The Limits of Administration, London, Wiley. Ionescu, Ghita (1988) ‘The Application of Law and the Community Perspective’ in Siedentopf and Ziller (1988) Making European Policies, pp. 202–208. Kettl, Donald, F. (1979) ‘Can the Cities be Trusted?’, Political Science Quarterly, Vol. 94, no. 3, pp. 437– 451, 609. Lefevere, Jorgen (1995) ‘Laying Down the Law to Europe’s Draftsmen’, European Brief, Vol. 2, no. 5, pp. 19–20. Lundquist, Lennart (1972) ‘The Control Process: Steering and Review in Large Organizations’, Scandinavian Political Studies, vol 7, no. 5.

294 Jeremy Richardson Majone, Giandomenico (1994) ‘The Rise of the Regulatory State in Europe’, West European Politics, Vol. 17, no. 3, pp. 77–101. Maloney, William and Richardson, Jeremy (1995) Managing Policy Change. The Politics of Water, Edinburgh: Edinburgh University Press. Mazey, Sonia (1995) ‘The Development of EU Equality Policies: Bureaucratic Expansion on Behalf of Women?, Public Administration Vol. 73, no. 4, pp. 591–609. Mazey, Sonia and Richardson, Jeremy (1993) (eds) Lobbying in the European Community, Oxford: Oxford University Press. Mendrinou, Maria (1996) ‘Non-Compliance and the European Commission’s Role in Integration’, Journal of European Public Policy, Vol. 3, no. 1, 1–22. Montjoy, R.S. and O’Toole, L.J. (1979) ‘Toward a Theory of Policy Implementation, an Organizational Perspective’, Public Administration Review, Vol. 39, no. 5, pp. 465–476. Partan, Daniel, G. (1995) ‘The “Justiciability” of Subsidiarity’, in Rhodes, Carolyn, and Mazey, Sonia (eds) The State of the European Union, Vol. 3, Building a European Polity?, Boulder: Lynne Ryner/Longman, 63–80. Pressman, Jeffrey L. and Wildavsky, Aaron, B. (1973) Implementation, Berkeley: California University Press. Scharpf, Fritz (1988) ‘The Joint Decision-Trap: Lessons from German Federalism and European Integration’, Public Administration, Vol. 66, no. 3, 239–278. Scharpf, Fritz (1994) ‘Community and Autonomy: Multi-Level Policy-Making in the European Union’, Journal of European Public Policy, 1, 2, 219–242. Seville, Catherine (1995) ‘Making Sure Europe Obeys its Own Law’, European Brief, Feb/March 1995, 21– 2. Siedentopf, Heinrich and Ziller, Jacques (1988) (eds) Making European Policies Work, Vol. I, Comparative Synthesis, London: Sage. Siedentopf, Heinrich and Hauschild, Christoph (1988) ‘Implementation of Community Legislation by the Member States: A Comparative Analysis’, in Siedentopf and Ziller (1988) Making European Policies Work, pp. 1087. Simon, Herbert (1957) Administrative Behaviour (2nd edn) London: Macmillan. UNICE (1995a) UNICE’s Memorandum to the New Commission, Brussels: UNICE. UNICE (1995b) Preliminary UNICE Contribution to Preparation of the 1996IGC, Brussels: UNICE. Weiler, J. (1988) ‘The White Paper and the Application of Community law’, in Bieber, R., Dehousse, J., Pinder, J., and Weiler, J. (1992) (eds) One European Market? Baden-Baden: Nomos. World Wide Fund for Nature (and others) (1995) Greening the Treaty II, Brussels, WWF.

Index

Note: Page numbers in italic type refer to tables Page numbers followed by ‘n’ refer to notes absolute majorities 114–15 accountability 36, 81, 91, 130, 142, 187, 196, 273 acid rain 69, 73 Adenauer, K. 28, 29, 154 Adler, E. 11 administrative devolution 220 administrative mismatch 153 advocacy coalition 4, 17–18, 21, 26, 27–8, 72, 213, 244n Advocate-General: role 182 African, Caribbean and Pacific grouping (ACP) 253 agenda: institutional 63; nature 63; systemic 63 agenda-setting 16, 17, 61–74, 80; implementation stage 71 agriculture 63, 64, 151, 162 see also Common Agricultural Policy (CAP) airbus 254 allegiance: pledge 65 Alter, K. 176 animal testing 106 Antici group 141 Association of European Frontier Regions 222 Austria 234, 236, 237 authority-legitimacy transfers 45–6 Barcelona 217 Bardach, E. 291 Basque: nationalists 218 Bathing Water Directive 287, 288 Baumgartner, F.R. 19 Belgium 120, 154, 220 Benelux 35 Benson, J.K. 9 Berlin Wall: fall 250 Beumer, B. 100

bicameral system 238 Blackpool 287 Blue Flag 287 Blum, L. 28 Blumler, J. 189 Bogdanor, V. 197 boilers: hot water 105, 108 Bosnian conflict 258 Bretton Woods system 33 Briand, A. 28 Britain 9, 30, 32, 121, 140, 157, 158, 225, 284; Civil Service 208; Conservatives 194, 198; Equal Opportunities Commission 178; European Union policy 156; Green Party 194; Liberal Democrats 194 British Rail 151 Brugmans, H. 28 Brussels 68, 72, 74, 129, 133, 143, 149, 206, 207 budget deficit 217 Bulmer, S. 50, 212 Bundesbank 8 bureaucracy 10, 65, 67, 77–91, 269 Burley, A-M. 171, 180 capability-expectations gap 248, 252, 256 Caporaso, J. 32, 49, 51, 53, 54, 212 Cassis de Dijon judgment (1979) 176 Catalonia 217, 219 CD-ROM 284 CELEX data base 284 Central and Eastern European Countries (CEEC) 233, 234, 235, 239, 240, 243 CFCs 16 chemical industry 267 Chirac, J. 154 Christoph, J. 69 Churchill, Sir Winston 28, 30 citizens ix civil service 67 Clayton Act (1914) 264 co-decision: legislation adopted and published by February (1995) 111; procedure 109–11

295

296 Index co-operation procedure: acceptance of EP amendments 102; first reading 99, 111–12; qualitative assessment 101–3; second reading 109, 113–14 co-ordinating capacity 163–4 co-ordination: instruments 154–61 coal and steel policy 47 coal-mining 226 coalition building 152 Cohen, M. et al. 12 Cold War 27, 31, 253, 254, 255 collegiality 85–90 comitology 88, 89, 99, 116–17, 121, 122 Committee of Permanent Representatives (Coreper) 115, 119, 129, 135–7, 266, 270 Committee of the Regions 84 Committee of Three 135 Common Agricultural Policy (CAP) 31, 37, 47, 79, 161, 240, 278, 282, 285 Common External Tariff 38n, 79 Common Fisheries Policy 164 Common Foreign and Security Policy (CFSP) 129 Commonwealth 30 community law and national law 174 Community Support Frameworks (CSFs) 225 computer programs: legal protection 108 concentric circles 37 Conference of Peripheral Maritime Regions 222 constituency mobilization strategy 204 Continental Can case (1973) 179 Copenhagen 89; European Council (1993) 244 Corbett, R. 131 cosmetics 106 Coudenhove-Kalergi, R. 40 Council of Europe (1949) 29 Council of Ministers (CM) 4, 10, 11, 24, 32, 127–45, 201 Court of Auditors Report (1994) 283 Court of Justice see European Court of Justice credit institutions 117 Cresson, E. 162, 202 Crocodile Club 34 Curtice, J. 189 Cyprus 235, 236 dangerous substances 113 de Gaulle, General Charles 31–2, 79, 128, 154 de Giovanni, B. 116 de Rougemont, D. 28 decentralisation 216 decision: situations 12 decision-making procedures 152 defence policy 247 Defrenne case (1971 & 1976) 177–8 Dehousse, R. 34 Delors I and II packages 84 Delors, J. 34, 35, 62, 80, 87, 89, 234, 265

democratic deficit 36, 131, 197, 272–4 Denmark 131, 189; referendum 142, 198 d’Estaing, V.G. 33, 135, 137, 154, 221 Deutsch, K. 41 Dinan, D. 202 Director(ate) General (DG) 63, 65, 82, 85, 275; IV, VI, XI, XII, XVI, 65 disorderly issue network concept 8–9 domestic politics approach 51, 52 drinking water 206, 279, 280, 284 Dyson, K. 8 East Asia 26 East Germany 244N, 246 economic policy 47 education 36, 191, 200, 224 EEC Treaty (1986) see Single European Act (SEA) Eijk, C. van der 192, 193, 194 elections 187–98; direct 33; national 189; and national election voting differences (1989–94) 194; process 188–95; results 193–5 empirical research 6 enlargement ix, 32, 90, 129, 233–43 Environmental Committee 119–22 environmental policy 65, 69 epistemic communities 13–6, 18, 21, 72, 85 equal pay 177 Essen European Council 243n ethno-regionalist groups 68 EURATOM 24, 30 Euro-Quango 65, 89 Euro-sceptics x, 191 European, The 140 European Agency for the Evaluation of Medicinal Products 89 European Atomic Energy Community (EURATOM) 24, 30 European Central Bank (ECB) 273 European Coal and Steel Community (ECSC) 24, 30, 40, 43, 127 European Commission 4, 10, 24, 77, 82, 90–1 European Community (EC) (1945–65) 27–32 European Council 137–9; Presidency 139–42; relations 99–101 European Court of Justice (ECJ) 4, 11, 24, 26, 34, 50– 1, 53, 77, 130, 170–83, 234, 284; constitutional role 171–5 European Economic Community (EEC) 24 European Economic and Social Committee 25 European Environmental Agency 65, 89 European Free Trade Association (EFTA) 47, 233, 234, 240 European Monetary Union (EMU) 8, 9, 26, 241 European Monitoring Centre for Drugs and Drug Addiction 89 European Parliament (EP) 4, 26, 66, 77, 88, 96; Legal Affairs Committee 113–14

Index 297 European Political Co-operation (EPC) 32, 133, 249 European Political Community (EPC) 29 European Regional Development Fund (ERDF) 33, 98, 138, 223–4 European Round Table (ERT) 204, 212 European Social Fund (ESF) 98, 224 European Union of Federalists (UEF) (1946) 28 exchange rates 217 exchange relationship 7 Falklands War (1982) 145N, 250 federalism 26, 27, 40–1; post-war, 27–9 feminism 177 Financial Times 163 firearms: possession 107 Fitzmaurice, J. 100 fluid participation 12 foodstuffs: hygiene 104;radioactivity 99 foreign aid 84 Fouchet Plan 31, 154 Fountainbleau European Council (1984) 242 Fox, A. 189 fragmentation 65–6, 69 France 121, 132, 140, 202;Foreign Office 155 Franco-German conciliation 31 Franklin, M. 192, 193, 194 free movement of goods policy 176–7 Friends of the Earth 10 Front National 190 functional/sectoral spill-over 47, 48 functionalism 41–3, 55n garbage can model 12, 16, 70 gender equality 177–8 General Affairs Council 129, 134 General Agreement on Tariffs and Trade (GATT): Kennedy Round (1962–67) 31; Uruguay Round (1993) 135, 251, 253, 255, 259 generic network model 17 Genscher-Colombo initiative (1981) 130, 145N geographical spill-over 47 Germany 35, 117–18, 131, 155, 156, 159; Länder 36, 217, 219, 220, 225; Transport Ministry 153; unification 35 see also East Germany; West Germany governance: non-hierarchical 86–7 Grad v. Finanzamt Traunstein (1970) 172 Grant, J. 204 Grant, W. 203, 278, 282, 289 Greece 121, 156, 188, 242 Green Cowles, M. 51, 204, 212 Greenpeace 10, 213, 292 Greenwood, J. 211 gross national product (GNP) 265 Guigou, E. 37 Gulf War (1991) 133, 134 Gunn, L. 280, 281, 282

Haas, E. 41, 43, 44, 45, 46, 47, 52, 127, 128, 133 Haas, P. 11, 12, 14, 15, 16 Hague European Congress (1948) 28 Haigh, N. 284 Hallstein, W. 31, 40, 48, 79 Hartley, T. 182 Hauschild, C. 286 health and safety 83, 98, 103, 107, 108, 271, 272 Heclo, H. 6, 8, 9 Heinz, J.P. et al. 8, 213 Henderson, P.D. 15 Héritier, A. 208, 285 high politics see politics: high Hill, C. 248, 256 Hix, S. 5 Hoffmann, S. 5, 48–9 Hogwood, B.W. 280, 282 Hood, C. 274, 283 Hoover, H. 264 human rights 173–4 Humber estuary 289 Hurd, D. 140–1 immigration: mass 36 implementation: variegated 285–8 Institutional Affairs Committee 116 institutional leadership: functions 148–9 Integrated Mediterranean Programme 79 integration 28; and law 50–1; process 25, 26, 27 integration theory: (1970s) 49–51; evolution 40–9 inter-institutional dialogue 98 interdependence/regime theory 50 interest groups ix, 5, 12, 18, 53, 68, 200–14; transnational 26 interest rates 217 intergovernmental approach 48–9 Intergovernmental Conference (IGC): (1996) 36, 78, 81, 89, 124, 134, 240, 243, 292; (1985) 34 international organisations: study 50 international policy 259 interpolate balance 274 interviews: extended 201 Ioannina Compromise (1994) 132, 144 Ionescu, G. 286 Ireland see Northern Ireland Isoglucose ruling (1980) 97 issue networks 8, 9 Italy 35, 121, 157, 158, 159 Japan 26, 255 Jenkins, R. 33, 138 jewellery industry 115 Johnson, L. 264 Jones, B.D. 19 Jones, C.O. 74n Jordan, G. 6, 7, 9

298 Index Josselin, D. 213 Judge, D. 7 Justice and Home Affairs 129 K4 Committee 130, 136 Kangaroo Group 34 Keeler, J. 32, 49, 51, 53, 54, 212 Kettl, D.F. 286, 288 Keynesian state 263 Kingdon, J.W. 3, 4, 12, 16, 17, 31, 209, 271, 272 Kirchner, E. 203, 204, 205 Kohl, H.;x, 35, 154 Koudenhove-Kalergi, Count 28 Kuhn, T. 72 labour unions 68 Laumann, E.O. (Heinz, J.P. et al.) 8, 213 Laurent, P.H. 239 law: community and national 174; direct effect 171–3 Lax, D. 13 Lefevere, J. 283, 284, 289 Lickert scale 201 Lindberg, L. 45 Lisbon 89 lobby: regional 223, 224 lobbying 162, 202, 203; behavioural norms 207–8; professional consultancy 206, 207 Lobe, P. 28 Lodge, J. 96 Lomé Agreements 253 London 68, 89 London Report (1981) 250 low politics 35, 49, 211, 250, 282 Ludlow, P. 144 Luxembourg 140, 156 Luxembourg Compromise (1966) 31, 32, 128, 130, 131, 132, 154, 234 Maastricht Treaty (1991) see Treaty of European Union McDonald’s 283 McKersie, R. 13 McLaughlin, A. 204, 211 macro-theories 53, 54 Madrid European Council (1995) 240 Majone, G. 34, 280 Major, J. 24, 164 Malta 235, 236 management: middle 6 Mancini, G. 175, 180 Marc, A. 28 March, J. (Cohen, M. et al.) 12 Marsh, D. 7, 10 Mattli, W. 171, 180 Mazey, S. 25, 210, 282, 286 mechanical coupling devices 117

medical prescriptions 284 Mediterranean Agreement (1995) 244n membership and applications: chronology 246 Mendrinou, M. 287, 288, 290, 292 merger regulation 178–80 Merger Treaty (1965) 135 Meunier-Aitsahalia, S. 176 Miles, L. 237 military security 48 Millan, B. 226 Mitrany, D. 41–4 Mitterrand, F. 35, 154 Moe, T. 270 monitoring procedure 99 Monnet, J. 24, 26, 27, 29, 30, 31, 40, 43, 79 Montjoy, R.S. 288 Moravcsik, A. 51–2, 211, 212, 236 motor vehicle emissions 113, 114 multi-dimensional international game 15 nation state 3, 18, 50 national sovereignty 28; erosion ix, 3, 18–19 nationalism 41, 42, 43 negotiation: logic 201, 202 Nelson, R.L. (Heinz, J.P. et al.) 8, 213 neo-functionalism 43–4, 47–8 nested games 5, 203, 207, 209, 212, 213, 236, 291 Netherlands 154, 157, 158 network of institutions: international 275 networks: types 9 Nietzsche, F. 263 Nomenclature of Territorial Units for Statistics (NUTS) 225 Northern Ireland 140, 156, 158, 159, 191, 220, 282, 285, 289 Norway: referendum 244n Nugent, N. 96 Nuttall, S. 133 oil crisis 48, 237, 249 Olsen, J.P. (Cohen, M. et al.) 12 One Hundred and Thirteen Committee 136, 145n Oppenhuis, E. (Eijk C. van der) 192, 193, 194 Organisation for Economic Cooperation and Development (OECD) 253 Organisation for European Economic Co-operation (OEEC) 127 O’Toole, L.J. 288 Pan-Europa movement (1923) 28 Pareto boundary 10 Paris Summits (1972 and 1974) 134 Paris Treaty (1951) see Treaty of Paris parliamentary amendments 101 parliamentary rapporteur 112, 114, 115, 120, 123 perfect implementation 280

Index 299 Permanent Conference of Local and Regional Authorities (1957) 222 Permanent Representation 159, 160 Pescatore, P. 172 Peterson, J. 210 PHARE 243 Philip, B. 205 Philip Morris case 179 Pierson, P.D. 62 Pinheiro, J. de D. 141 Plaid Cymru 218 plurality voting 188 policy: actors 3; ‘community’ 6, 7, 9, 17; entrepreneur 51, 63, 64, 69, 70, 72, 73, 150, 151, 271; networks 4, 9, 11, 12; process; stages 5; streams 4 policy-making 3–21, 33, 61, 67, 77; community 201, 257–8; environmental 16; sectorisation 6; union 258–9 political spill-over 46–7 political/constitutional co-operation 42 political/constitutional issues 43 politics: actors 19, 20, 44, 45, 71; domestic approach 51, 52; élites 45, 46; high 49, 131, 211, 249, 250, 253, 282; parties 67 Pompidou, G. 154, 161 Portugal 121, 141, 156 postal survey 201 power 8–9; distribution 200 pregnancy/maternity discrimination 107, 292 Pressman, J.L. 278, 279, 280 pressure groups 11, 205 prime ministers 62 problematic preferences 12 proportional representation 188 protectionism 83 proto-federalism 68–9 Puchala, D. 50 punctuated equilibria 63 Putnam, R.D. 10, 15 qualified majority voting (QMV) 33, 37, 128, 132, 142, 203, 212, 287 Raiffa, H. 13 rational actor model 12 recession: world 48 (1974) 32 Rechar initiative 226 recreational craft 112, 116, 117 redistribution 263, 267 Redmond, J. 237 Reflection Group (1995) 90, 134, 143, 144 Regional Affairs 65 regions 216–27; Committee of 84; and European integration 217–19; policy 79; politics 48 regulation 263–76 regulatory policy 82

Reif, K. 189 Rein, H. 210, 211 resistance movements 28, 40 Reynaud, P. 28 Rhodes, R.A.W. 7, 9, 10 Richardson, J. 6, 7, 9, 25, 286 Rome Treaty (1957) see Treaty of Rome Roosevelt, F.D. 263 Ruhr 29 Rules of Procedure 97 Russell, B. 28 Sabatier, P. 4, 17, 18 Salisbury, R.H. (Heinz, J.P. et al.) 8, 213 Salonica 283 sanctions 250 Sandholtz, W. 5, 53, 212, 213 Santer, J. 88, 288 Sasse, C. 128, 130, 132, 135 sausage meat content 151 Sbragia, A. 274 Scharpf, F.W. 71, 72, 73, 281, 292, 293 Schattschneider, E.E. 4 Scheingold, S. 45 Schimdt, H. 138 Schmitt, H. 189 Schön, D. 210, 211 Schuman Plan (1950) 27 Schuman, R. 29, 31, 43 science: national styles 72 Scotland 68, 217, 219; National Party 218 Sebenius, J.K. 12, 13 14 Secretariat-General 85, 86 security policy 247 selected common positions 103 Selznick, P. 148, 264 Seville, C. 289, 290 sex discrimination 177, 281 see also pregnancy/ maternity discrimination Sherman Antitrust Act (1890) 264 ship safety 279 Sidjanski, D. 203 Siedentopf, H. 286 Simon, H. 280 Single European Act (SEA) (1986) 25, 33, 78, 96, 128, 211; Article 6 prohibition of discrimination on nationality 98; Articles 75(1) and 84(2) transport policy 98; Articles 103(5), 104a(2), 104b(2), 105a(2) economic and monetary union 98; Article 118a(2) workers’ health and safety 98; Article 125 European Social Fund 98; Article 127(4) vocational training 98; Article 129d Trans-European Networks 98; Article 130e European Regional Development Fund 98; Article 130s(l) environmental policy 98; Article 130w development co-operation 98 Single European Market 26, 33

300 Index social chapter 36, 83 Social Charter 189 social construction issue 64 social issues 61 Soviet Union ix, 35, 253, 255; communism 26 Spaak Committee (1956) 30 Spain 132, 156, 159, 195, 221 Special Committee for Agriculture 136, 137 Spence, D. 203 Spinelli, A. 28, 34, 40, 137 stabilisation: macro-economic 263 stakeholders 4, 10, 18, 20, 201 Stein, E. 50, 171 Streseman, G. 28 subsidiarity 26, 68, 74n, 224, 274, 292 sulphur dioxide 266 Sunday trading 176, 177, 181 supranational institutions: role 44–8 supremacy: principle 173–4 Sutherland Report (1992) 291 sweeteners 115; proposals 106 system imbalances 71 ‘systemic agenda’ 69, 71 ‘systemic power concentrations’ 15 tariffs: removal 31 Tati, J. 8 Teasdale, A. 130 technical/functional co-operation/issues 42, 43 television 143 Thatcher, M. x, 11, 34, 130, 131, 133–2, 145n, 155, 196, 212 Three Wise Men 137, 138 timeshare 112, 113, 119 Tindemans Report (1976) 138 trade policy 249 trade unions 204 transactionalism/communication school 41 transport policy 47, 113 Treaty of European Union (1991) 3, 24, 25, 35, 36, 78; Article (3b) 36, 89; Article (189b[6]) 123; Article (189b) 109 Treaty of Paris (1951): Article (98) 30, 38n, 242 Treaty of Rome (1957) 38n, 47, 79, 129; Article (85), 271; Articles (119) 177; Articles (169; 170, 177), 174; Articles (235) 142 troika 140, 141, 164, 239 Truman, D. 204 Tsebelis, G. 5, 20, 66, 128, 203

Turkey 235 turnout: effects of contextual factors 793; election 187, 189, 792; variations, 191–3 uncertainty concept 12–13 unemployment 32 unionisation 191 United Europe Movement (1947) 28 United States of America (USA) 9, 26, 66, 238, 254, 263–4; policy-making 17; public policy 264 Van den Bos, Jan M. 158, 159 Van Gend case (1963) 172 van Zeeland, P. 28 variable geometry 37, 241 veterinary medicines 104, 107 vocational training 36, 98 von Kyaw, D. 137 voting: behaviour study 190–1; issue 130–4 Wales 68, 176, 220 see also Plaid Cymru Wallace, H. 50, 128 Walloon Region (Belgium) 220 Walton, R. 13 Washington 8, 279 waste packaging 120 Weaver, R.K. 62 Webb, C. 50 Weber, M. 87 Weiler, J. 50, 180, 181, 287 welfare state 263, 264 Werner Plan (1971) 33 Wessels, W. 127, 131 West Germany 29 Westendorp, C. 236 Westlake, M. 96, 99, 124 White Paper (1985) 83, 98 Whitehall 6, 203 Wildavsky, A. 6, 278, 279, 280 wine-growing regions 226 women’s organisations 292 World War I 28 World War II 27, 28, 40 Worldwide Fund for Nature 292 Yugoslavia 133, 134, 141, 256 Zysman, J. 51, 212, 213