The 'Community Method': Obstinate or Obsolete (Palgrave Studies in European Union Politics)

Palgrave Studies in European Union Politics Series Editors: Michelle Egan, American University, USA, Neill Nugent, Manchester Metropolitan University, UK and William Paterson OBE, University of Aston, UK.

Following on the sustained success of the acclaimed European Union Series, which essentially publishes research-based textbooks, Palgrave Studies in European Union Politics publishes cuttingedge, research-driven monographs. The remit of the series is broadly defined, both in terms of subject and academic discipline. All topics of significance concerning the nature and operation of the European Union potentially fall within the scope of the series. The series is multidisciplinary to reflect the growing importance of the EU as a political, economic and social phenomenon.

Titles include: Ian Bache and Andrew Jordan (editors) THE EUROPEANIZATION OF BRITISH POLITICS Thierry Balzacq (editor) THE EXTERNAL DIMENSION OF EU JUSTICE AND HOME AFFAIRS Governance, Neighbours, Security Renaud Dehousse THE ‘COMMUNITY METHOD’ Obstinate or Obsolete? Kenneth Dyson and Angelos Sepos (editors) WHICH EUROPE? The Politics of Differentiated Integration Michelle Egan, Neill Nugent and William E. Paterson (editors) RESEARCH AGENDAS IN EU STUDIES Stalking the Elephant Kevin Featherstone and Dimitris Papadimitriou THE LIMITS OF EUROPEANIZATION Reform Capacity and Policy Conflict in Greece Stefan Gänzle and Allen G. Sens (editors) THE CHANGING POLITICS OF EUROPEAN SECURITY Europe Alone? Eva Gross THE EUROPEANIZATION OF NATIONAL FOREIGN POLICY Continuity and Change in European Crisis Management

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Editorial Board: Christopher Hill, Cambridge, UK, Simon Hix, London School of Economics, UK, Mark Pollack, Temple University, USA, Kalypso Nicolaïdis, Oxford, UK, Morten Egeberg, University of Oslo, Norway, Amy Verdun, University of Victoria, Canada, Claudio M. Radaelli, University of Exeter, UK, Frank Schimmelfennig, Swiss Federal Institute of Technology, Switzerland.

Adrienne Héritier and Martin Rhodes (editors) NEW MODES OF GOVERNANCE IN EUROPE Governing in the Shadow of Hierarchy Wolfram Kaiser, Brigitte Leucht and Michael Gehler TRANSNATIONAL NETWORKS IN REGIONAL INTEGRATION Governing Europe 1945–83 Hussein Kassim and Handley Stevens AIR TRANSPORT AND THE EUROPEAN UNION Europeanization and Its Limits

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Robert Kissack PURSUING EFFECTIVE MULTILATERALISM The European Union, International Organizations and the Politics of Decision Making Katie Verlin Laatikainen and Karen E. Smith (editors) THE EUROPEAN UNION AND THE UNITED NATIONS Intersecting Multilateralisms Esra LaGro and Knud Erik Jørgensen (editors) TURKEY AND THE EUROPEAN UNION Prospects for a Difficult Encounter Copyright material from www.palgraveconnect.com - licensed to The Royal Library - PalgraveConnect - 2011-04-28

Ingo Linsenmann, Christoph O. Meyer and Wolfgang T. Wessels (editors) ECONOMIC GOVERNMENT OF THE EU A Balance Sheet of New Modes of Policy Coordination Hartmut Mayer and Henri Vogt (editors) A RESPONSIBLE EUROPE? Ethical Foundations of EU External Affairs Philomena Murray (editor) EUROPE AND ASIA Regions in Flux Daniel Naurin and Helen Wallace (editors) UNVEILING THE COUNCIL OF THE EUROPEAN UNION Games Governments Play in Brussels David Phinnemore and Alex Warleigh-Lack REFLECTIONS ON EUROPEAN INTEGRATION 50 Years of the Treaty of Rome Sebastiaan Princen AGENDA-SETTING IN THE EUROPEAN UNION Emmanuelle Schön-Quinlivan REFORMING THE EUROPEAN COMMISSION Roger Scully and Richard Wyn Jones (editors) EUROPE, REGIONS AND EUROPEAN REGIONALISM Asle Toje AFTER THE POST-COLD WAR The European Union as a Small Power Richard G. Whitman (editor) NORMATIVE POWER EUROPE Empirical and Theoretical Perspectives Richard G. Whitman and Stefan Wolff (editors) THE EUROPEAN NEIGHBOURHOOD POLICY IN PERSPECTIVE Context, Implementation and Impact

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The ‘Community Method’ Obstinate or Obsolete?

Renaud Dehousse Jean Monnet Professor of EU Law and Politics and Director of the Centre d’études européennes, Sciences Po, France

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Edited by

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Introduction, conclusion, editorial matter and selection © Renaud Dehousse 2011 All remaining chapters © respective authors 2011 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission.

Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2011 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–58077–0 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data The ‘community method’ : obstinate or obsolete? / [edited by] Renaud Dehousse. p. cm. Includes index. ISBN 978–0–230–58077–0 (hardback) 1. Supranationalism – European Union countries. 2. Intergovernmental cooperation – European Union countries. 3. European Union countries – Economic policy. 4. European Union countries – Social policy. 5. Environmental policy – European Union countries. I. Dehousse, Renaud. JN30.C5715 2011 320.6094—dc22

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No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS.

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List of Tables

vii

List of Figures

viii

Preface

ix

Notes on Contributors

xi

Part I Introduction 1

The ‘Community Method’ at Sixty Renaud Dehousse

2

Is the Community Method Still Viable? Giandomenico Majone

Part II

3 16

The Community Method at Work

3

Law-Making in the Shadow of Judicial Politics Susanne K. Schmidt

43

4

The European Parliament and the Community Method Olivier Costa

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5

Conflict Resolution in the Council by Linkage of Commission Proposals Thomas König and Dirk Junge

Part III 6

7

8

76

Alternatives to the Community Method

The Political and Security Committee: A Case Study in ‘Supranational Intergovernmentalism’ Jolyon Howorth

91

Deviations from and Alternatives to the Community Method in Justice and Home Affairs Jörg Monar

118

Is the Open Method of Coordination an Alternative to the Community Method? Jonathan Zeitlin

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Contents

Part IV Revisiting the Debate on New Modes of Governance 9

In the Shadow of Hierarchy: Governance as a Tool of Government Laura Cram

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10 Social Europe: Why Hard Law Remains Important Philippe Pochet

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11

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The ‘Governance Turn’ Revisited Laurie Boussaguet, Renaud Dehousse and Sophie Jacquot

Conclusion: Obstinate or Obsolete? Renaud Dehousse

199

Bibliography

205

Index

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vi Contents

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Tables 67 69 81 82 85 87

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4.1 Involvement of the EP in legislative procedures 4.2 Adoption of legislative texts in codecision procedure 5.1 Characteristics and distribution of policy proposals in the DEU data set 5.2 Characteristics of policy proposals in the reduced DEU data set 5.3 The proposal-specific approach and the size of the win-set 5.4 Proposal linkage and the size of the unanimity win-set

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Figures 68 70

79 84 86

124

126 170 194 195 196

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4.1 Amendments tabled by the EP (1994–2005) 4.2 Impact of the enlargement on the length of legislative procedures 5.1 Spatial models of EU legislation and the conditions for agreement on legislative proposals in the Council – one-dimensional policy space 5.2 Determining the size of the unanimity win-set in the Council veto players – one-dimensional policy space 5.3 Issue linkage and the size of the unanimity win-set 7.1 Texts adopted by the JHA Council, 1 May 1999– 31 December 2007 (post-Amsterdam period): Number of binding and non-binding texts per policy field 7.2 Texts adopted by the JHA Council, 1 May 1999– 31 December 2006 (post-Amsterdam period): Total numbers in all categories 10.1 Social legislation 1975–2007 11.1 Number of Commission proposals 11.2 Number of legislative acts 1999–2009 11.3 Percentage of public votes 1999–2008

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For a number of years, Europe has been said to be in crisis. A decade of institutional debate has not provided European citizens with a clear sense of direction and the European Commission no longer has the prestige it had under Delors. National leaders seem to be more concerned with domestic issues and preventing the Union from intervening on their own turf rather than with identifying options which serve the interests of all countries. As a result, the European Union is slow to respond to the crises with which it is faced and the credibility of its responses is often called into question. Even when the EU manages to get its act together, national governments show ample evidence of their unwillingness to concede too much influence to the Brussels-based institutions. Consider, for instance, the response to the recent economic and financial crises: in Brussels or at the G20, it has been the leaders of the large European countries, rather than the Commission, taking centre stage. Key decisions have been made within the European Council, with its new president Herman Van Rompuy acting as a consensus builder among heads of state and governments. The solutions designed to respond to the Greek sovereign debt crisis also have a distinct intergovernmental quality. The new European Financial Stability Facility has been created outside the EU framework to keep it beyond the Commission’s control. A complex system of financial control has been designed to avoid the emergence of too strong a European regulator. On the international level, the big member states appear determined to retain the lead in talks with the United States, Brazil or China. In this rather gloomy context, it is of course tempting for supporters of the Community method to muse over a glorious past in which things were apparently simpler. Blessed with the permissive consensus of the masses, enlightened pro-European leaders could quietly agree to solutions that gradually brought about the ‘ever closer union among the peoples of Europe’ announced in the Treaty of Rome. Needless to say, this nostalgic reconstruction of the past ignores the many tensions that had to be overcome at the time. It reveals, however, the disarray in which pro-European elites now find themselves, unable to make sense of how the European project is to evolve in order to respond to the challenges of the twenty-first century. The idea of this book first emerged on the occasion of the celebrations for the fiftieth anniversary of the Treaty of Rome. Many of the official discourses delivered then referred to the grand compromise known as the ‘Community Method’ as a cornerstone of the integration process. Yet beyond rhetorical references to the spirit of the Founding Fathers, there was

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Preface

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Preface

no real attempt to explain whether the method in question was still relevant today, or indeed whether it could still be said that the actual operation of the EU corresponded to the initial blueprint. While there is no shortage of work describing the institutional setting of the European Union, there remain gaps in our knowledge of how the system actually functions. If the structure and the operation of each institution has been the focus of much research (see, for example, Hooghe 2001 or Joana and Smith 2002 on the Commission, Hayes-Renshaw and Wallace 2006 on the Council, Kreppel 2002 and Hix et al. 2007 on the European Parliament, Dehousse 1998 or Alter 2001 on the Court, to mention but a few), the interactions between these institutions have received significantly less attention. As a result, it is at times difficult to make sense of the dynamics of the system as a whole – resulting in a number of apparent paradoxes. Why is majority voting considered central, if the number of votes actually taken remains low? Why does the Commission strenuously defend its right of initiative, while at the same time promoting awareness that most of its proposals stem from suggestions made by the member states, acting individually or collectively? Why does the Parliament, after decades of struggling to establish its legislative authority, relies so much on expertise and informal contact with officials at various levels, instead of exerting political control over the various branches of the EU executive? These paradoxes lead to the need for a detailed examination of the place of the Community Method in the contemporary governance of the EU. The first discussions with some of the contributors to this volume took place in December 2007 at Sciences Po in Paris in the context of the CONNEX network of excellence funded by the EU’s FP 6 and directed by Professor Beate Kohler-Koch from Mannheim University. I would like to express my gratitude to Giuseppe Ciavarini-Azzi, Morten Egeberg, Emiliano Grossman, Hussein Kassim, Christian Joerges, Patrick Le Galès, Paolo Ponzano, Mark Thatcher and Helen Wallace for their contributions to the lively discussions that took place then. Moreover, I would like to thank all those who have assisted me with immense patience in the collective endeavour of putting together this book: Rebecca Johnson and Katharine Throssell in revising various chapters and Catherine Tanaka in preparing the manuscript for publication.

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Contributors

Olivier Costa is CNRS Research Fellow at the Institut d’études politiques de Bordeaux, and Professor of political science at the Université Libre de Bruxelles and at the College of Europe, Bruges, Belgium. Laura Cram is Reader in Politics in the Department of Government at the University of Strathclyde, United Kingdom. Renaud Dehousse is Jean Monnet Professor of EU Law and Politics and Director of the Centre d’études européennes at Sciences Po, Paris, France. Jolyon Howorth is Jean Monnet Professor of European Politics ad personam and Emeritus Professor of European Studies at the University of Bath, UK and Visiting Professor of Political Science and International Affairs at Yale University, United States. Sophie Jacquot is Research Fellow and Scientific Coordinator at the Centre d’études européennes, Sciences Po, Paris, France. Dirk Junge is a Ph.D. candidate in Political Science at the University of Mannheim, Germany. Thomas König is Professor of Political Science at the University of Mannheim, Germany. Giandomenico Majone is Emeritus Professor of Public Policy at the European University Institute, Florence, Italy. Jörg Monar is Professor at the Sussex European Institute, Brighton, UK and Professor and Director of Studies at the College of Europe, Bruges, Belgium. Philippe Pochet is the General Director of the European Trade Union Institute (ETUI), Brussels and Visiting Professor at the Université catholique de Louvain, Belgium.

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Laurie Boussaguet is Lecturer and Research Fellow at the Centre de Recherches Sociologiques sur le Droit et les Institutions Pénales (CESDIP) at the University of Versailles/Saint-Quentin en Yvelines, France.

Susanne K. Schmidt is Professor of Political Science at the University of Bremen, Germany. Jonathan Zeitlin is Professor of Public Policy and Governance in the Department of Political Science at the University of Amsterdam, Netherlands. xi

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Part I

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Introduction

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1 The ‘Community Method’ at Sixty

On 9 May 1950, the French Foreign Minister Robert Schuman, speaking under the gilded ceiling in the Salon de l’horloge in his Ministry, solemnly invited Germany and other European countries to join France in creating an independent authority that would regulate the markets for coal and steel. If this short address is today regarded as the start of European integration, this is not only because it signalled the beginning of Franco- German reconciliation, but also because it laid down the key elements of an original institutional setting that later came to be known as the ‘Community method’. The basic elements of the model are well-known: the transfer of legislative powers to the European level, the creation of a ‘supranational’ executive – the High Authority of the Coal and Steel Community, later replaced by the European Commission – the possibility of voting in order to adopt binding legislation, and the vesting of enforcement powers in a European Court of Justice. One of the most remarkable elements of this international regime has been its stability. Sixty years on, despite a significant enlargement in the number of member countries and several treaty revisions, it may be argued that the key features of the system have largely remained unchanged. The European Parliament has gradually acquired significant prerogatives, but there has been an attempt to prevent this evolution from altering the initial balance of power. Indeed, the need to preserve the essence of the Community method is often used as an argument against proposed changes. During the drafting of the Constitutional Treaty, for instance, a group of members of the European convention chose to present themselves as ‘friends of the Community method’. This model has come under increasing pressure since the Maastricht Treaty however. Its legitimacy has been the subject of heated discussion, both in academic circles and among ordinary citizens – on the occasion of the referenda organised on the draft treaty establishing a European Constitution for example. Governments have appeared increasingly reluctant to delegate power to the European level. The Commission itself has attempted to explore

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Renaud Dehousse

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new approaches to policy-making, later summarised in its 2001 White Paper on European Governance (European Commission 2001). Countless studies, often in the context of EU-funded research projects, have been devoted to the ‘New Modes of Governance’ (see e.g. Kohler- Koch and Rittberger 2006; Olsen 2008 and Treib et al. 2005). These studies often more or less implicitly regard the Community method as ‘an idea whose time has passed’, to use the words of former British Prime Minister John Major, echoed by many British think-tanks (Leonard 1999), or even as an instrument of ‘integration by stealth’, in those of Giandomenico Majone (2005). This chapter lays down the basic elements of the model and briefly reviews the reasons that led to its adoption in the 1950s and its subsequent expansion. It then reviews the various elements that are invoked to suggest that the Community method is now in crisis.

Understanding the model Although the originality of the European Union in the world of international organisations is widely recognised, the ‘Community method’ is still much misunderstood, even by its most zealous supporters – including those within the European Commission. The Schuman Declaration of 9 May 1950 sets out some of its essential features; others have emerged out of the daily interactions among the main players in European construction. The Commission described it in the following manner in its White Paper on European Governance presented in July 2001: The Community method guarantees both the diversity and effectiveness of the Union. It ensures the fair treatment of all Member States from the largest to the smallest. It provides a means to arbitrate between different interests by passing them through two successive filters: the general interest at the level of the Commission, and democratic representation, European and national, at the level of the Council and European Parliament, together the Union’s legislature. – The European Commission alone makes legislative and policy proposals. Its independence strengthens its ability to execute policy, act as the guardian of the Treaty and represent the Community in international negotiations. – Legislative and budgetary acts are adopted by the Council of Ministers (representing Member States) and the European Parliament (representing citizens). The use of qualified majority voting in the Council is an essential element in ensuring the effectiveness of this method. Execution of policy is entrusted to the Commission and national authorities. – The European Court of Justice guarantees respect for the rule of law. (European Commission 2001: 9–10)

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In a classical fashion, this definition emphasises the essential role played by the two ‘supranational’ institutions, the European Commission and the Court of Justice. There is nothing surprising about the fact that a key role is devolved to non-elected bodies if we bear in mind that European organisations were created by governments to regulate relations between their countries. At the time the question of the democratic legitimacy of the European system was simply not addressed (Wallace and Smith 1995). The Commission quite rightly stresses that the Community method is also based on the possibility of the Council making majority decisions. This detail is important, as it highlights an essential feature of the political system created by the European treaties, namely the fact that the states – and more precisely their governments – hold a central place in the system, which sets the European Union apart from a federal model, for example, where the links between the constituent parts and the central power are more tenuous. Taken as a whole, the elements listed above also emphasise the specificity of the European Union compared to more traditional organisations. The difference lies not so much in the scope of the competences transferred to the European institutions – the Council of Europe also has very wide-ranging powers – as in the way they are exercised. Not only does the European Commission play a central role in drawing up Community policies, it is also extremely rare to find a combination of majority voting and binding decisions in an international body. When a binding decision has to be adopted, unanimity or at least consensus is required in most international structures. The United Nations General Assembly votes of course, but on resolutions, or texts of a ‘political nature’ – a nice euphemism that boils down to saying that states are not bound to apply them. Conversely, accepting the possibility of being bound to execute decisions one opposes, as the member states did when they joined the European Union, amounts to nothing more or less than a transfer of sovereignty, be it partial or temporary. In the institutional system established by the Treaty of Rome, the Commission’s role is of an altogether different nature to that traditionally played by the secretariat of international organisations. Through its proposals, it acts as the impetus that leads the other institutions to achieve the objectives defined in the treaties. It has considerable tools at its disposal to do this. For a start, it has an almost complete monopoly on legislative initiative, since most of the decisions taken in this area require a proposal from the Commission that it can then amend throughout the legislative procedure. Unlike what happens in most national democracies, the European Parliament and the Council of Ministers (where representatives of the member states sit) cannot in principle take any initiative at this level. If they feel that a European law is necessary, they must ask the Commission to put forward a proposal in proper form. Moreover, these proposals may only be amended with the unanimous agreement of the member states; this enables the Commission to encourage the formation of a majority

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within the Council or Parliament by amending its proposals. In short, the Commission is, de facto if not de jure, the third branch of the European legislative body, alongside the Parliament and the Council. Finally, as guardian of the Treaties, it must ensure that the member states comply with their obligations. It has quasi-judicial powers in matters of competition policy and acts as prosecutor in the cases it chooses to bring before the Court of Justice. The ‘supranational’ power thus created is in fact often perceived as being quite different from the more familiar structure of a federal state or confederation. As early as 1953, Robert Schuman wrote that ‘the supranational is equidistant to, on the one hand, international individualism, which considers national sovereignty untouchable and only accepts contractual, occasional and revocable obligations as limitations of sovereignty, and on the other hand, the federalism of states that submit to a super state endowed with its own territorial sovereignty. The supranational institution, such as our Community, [...] does not have the characteristics of a state; but it holds and exercises some sovereign powers’ (Schuman 1953: 7, my translation). Why did the member states of the European Union choose to confer powers of an unprecedented scope, both on a national and an international level, on a non-elected body? The question is all the more pertinent as the powers in question are not simply the result of a bold interpretation of the treaties – most of them are expressly provided for in the documents signed by the European foreign ministers. Contrary to what might be thought, this decision was not necessarily the fruit of ideological commitment. Certainly, the preamble to the Treaty of Paris echoed the Schuman Declaration in describing the European Coal and Steel Community as the first step towards a federal Europe, but the signatories were far from won over to the federalist cause (Milward 1992). Even from the perspective of governments jealously guarding their prerogatives, the Community method presented many advantages (Moravcsik 1998). The Treaty of Rome can indeed be described as an imperfect contract, as it only defines the objectives to be reached, and the institutions and procedures put in place to achieve them, in general terms. Having experts who are in charge of monitoring technical and legal developments on a daily basis in an institution such as the European Commission can facilitate decision-making in technically complex areas. Moreover, being a neutral body, it is easier for the Commission to find a synthesis between the different national and sectoral interests concerned, which is likely to facilitate a compromise. Last but not least, this centralisation ensured that the legislative programme of the Community would not be simply dictated by the power relations between the member states or by electoral contingencies. This point was the subject of bitter debate at the Val Duchesse talks (1957), when the Treaty of Rome was drawn up (Küsters 1990). Fearing that they might be systematically in

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the minority due to the weight of the ‘big countries’ in the Council, the less populated countries insisted that all legislative procedures should start with a proposal from the Commission. The fact that unanimity was required to make any amendment to its proposals also prevented the majority from putting their particular interests above those of the minority. Thus, this obligatory passage through the Commission was the key that made the use of majority voting possible. As for implementing Community decisions, entrusting the task of supervision to an institution whose plurinational nature protects it from direct political pressures, helped establish the system’s credibility, making it more likely that each state would comply with joint decisions (Majone 1996: 70–1). Competition policy is a case in point. Contrary to the rule that applies to other European policies, which are implemented by national bodies, it was in fact the Commission that was entrusted with applying the general principles defined by the Treaty of Rome in matters of competition. This choice is easily explained given that not only would the alternative (leaving it to the member states to implement EU competition policies) have threatened the equality of conditions of competition within the Community – each state interpreting the rules according to its own practices – it would above all have been less credible, considering the tradition of economic interventionism in some countries and the complete lack of competition rules in others. This lack of credibility would have been bound to create an atmosphere of mutual distrust. Why should the Bundeskartellamt (the German anti-trust authority) be overzealous in applying European regulations and penalising German firms, if the same regulations were applied more loosely in other countries? In other words, in an international system where there is a lack of mutual trust between the member states, centralising supervision has the advantage of making the commitments undertaken at the Community level more credible, thereby facilitating the development of a rationale for cooperation between the member states. The use of voting, another form of relinquishing sovereignty, stems from considerations of a different order. In a system where the treaties often only define the objectives to be reached in general terms, the institutions are called upon to make a large number of common decisions. In this context, unanimity is restrictive as each participant has a right of veto. Majority decision, on the other hand, facilitates decision-making ... even when no vote is taken! Studies of the decision-making process show that actual votes are only held in 20% of the decisions for which a vote would have been allowed by the Treaty (Hayes-Renshaw et al. 2006 and below, Chapter 11). Yet the mere possibility of majority decision-making encourages the different protagonists to look for a compromise. Of course, this decision-making efficiency comes at a price, as there is a possibility that a government may find itself in the minority. But as long as no one is in the minority too often,

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The ‘Community Method’ at Sixty 7

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the advantages gained from decisions made in other areas make this a small price to pay. Besides, a certain number of safeguards were put in place to win over the most wary states. Even today, unanimity is still required in sensitive areas, notably as a result of the ‘red lines’ laid down by successive British governments in recent intergovernmental conferences to ensure that Britain would not be forced to accept what it might consider to be unacceptable choices in tax or social policy. What can we learn from this rapid overview of the so- called Community method? Two elements belie some of the more commonly held perceptions. First, the method in question must not be seen as the product of a hidden commitment to federalism. It owes a great deal to the utilitarian calculations of governments aware that in the context of interdependence in which they operate, it is necessary for them to define rules that will allow them to make a large number of collective decisions, whilst reducing the risk of free riding. Second, it is not only the small states that need the Community method. It owes its existence above all to a basic feature of international relations: states, whether big or small, do not have an innate trust in their partners, nor a spontaneous tendency to cooperate. It is often only when necessity dictates, that they choose the path of cooperation. Hence the need for institutions that can facilitate a convergence of views and ensure that common decisions are correctly applied. Former Commissioner Pascal Lamy nicely captured this when he, who described the Commission as a ‘distrust reduction mechanism’. However, for this to be possible the Commission must be organised appropriately so as to guarantee its independence. This is why member countries’ executives have insisted on retaining a role in the appointment of Commissioners, despite the growing grip of the European Parliament on the procedure (Gabel and Hix 2002). Similarly, the rule of collegiality – according to which all decisions are in principle made by or in the name of the college rather than by individual Commissioners – is meant to ensure an esprit de corps among Commission members. At the very least, it makes ‘capture’ of the Commission more difficult, since a substantial amount of the Commissioners’ collaborators’ time is spent following up dossiers handled by other members of the Commission (Joana and Smith 2002). These well-known structural elements are recalled here as they are essential to understanding the dynamics of European integration. Relationships between EU institutions are in fact often analysed from the perspective of a tension between institutions that embody two distinct types of interests: Community interests for the Commission and national interests for the Council, with growing rights of interference being afforded to the directlyelected Parliament. The multiplication of veto players (Tsebelis 2002) may be seen as a liability, since for over half a century it has prevented the emergence of a clearly identifiable leadership (Hayward 2008). But this tension can be seen in a more positive light, as the result of an attempt to devise a

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The ‘Community Method’ at Sixty 9

cooperation scheme in which interstate cooperation would develop without leading to the emergence of a strong central government or of a hegemonic regime dominated by a few countries. In many respect, this ambition is similar to the overarching goals of the framers of the US Federal Constitution of 1787 (Majone 2006).

Since the beginning of the 1990s, however, European integration seems to have entered a new phase. The environment in which European issues are tackled has changed considerably and this has not failed to impact on the functioning of the European political system. Without going into detail, we will touch here on four points that seem essential to understanding the problems that Europe is faced with today. First, the difficulties that surrounded the ratification of the Maastricht Treaty brought to light the fact that academic debates on the so- called ‘democratic deficit’ of the EU found an echo among the people. Opinion polls have unanimously confirmed the fact that the ‘permissive consensus’ that enabled the European venture to be launched (Linberg and Scheingold 1970) is now nothing but a memory. Waning support for integration dates back to the early 1990s, when public opinion began to grow uneasy about the increased influence of Europe in a range of areas, and to express fears over economic recession and rising unemployment. Even if on the whole the publics are still pro- Europe, they are now very wary of a political system they do not understand and that sometimes appears to threaten their way of life. This is above all reflected in declining support for integration, documented in the European Commission’s Eurobarometer polls. The level of positive opinions dropped from 65% in 1992 to an average of about 50% in the late 1990s. This disaffection with Europe is also expressed in the low turnout at the European elections. It reached an all-time low in 2009 with an EU average of just 43%, down from 45.5% in 2004. True, a similar decline has been recorded in domestic elections, but there is usually a 20% gap between national and European elections. Second, around the same time, national governments began to show signs of growing impatience with what they saw as an unlimited increase in the powers of the EU and therefore of the Commission. It is for this reason that recent years have seen an increasing number of counterweights to this power. The ‘pillar structure’ of the Maastricht Treaty, discussed in Chapters 6 and 7, was undoubtedly the first expression of this new tendency. While the member states accepted the necessity of common action in areas that are traditionally the preserve of the state, such as foreign policy, security and justice, they refused to allow the supranational institutions of the EU to adopt a role commensurate with the one they play in the first (economic) pillar.

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A model in crisis?

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In these areas, the only forms of action envisaged fall within the more traditional intergovernmental framework, the leadership being in principle exercised by the European Council. Typically, when the need for steadier steering was felt, it was met by setting up ad hoc structures. When European foreign policy was seen to be suffering from a severe lack of analytical and planning structures capable of inspiring a common vision of international issues, defining potential joint action and piloting its implementation, it was decided to set up a special policy unit placed under the authority of an autonomous individual, the High Representative for the Common Foreign and Security Policy (CFSP), whose powers were limited. A similar scenario has unfolded in matters of economic policy. Once again, the compromises of Maastricht proved unstable. To avoid any threat to the independence of the European Central Bank, a mere informal discussion forum (the ‘Eurogroup’) was set up for the finance ministers of the countries participating in the single currency, and was later strengthened by the creation of a more stable presidency. Once again, there was a clear desire to define a viable intergovernmental alternative to the transfer of powers to the Commission, characteristic of the Community method. Similarly, the creation of a stable president of the European Council, one of the main innovations of the Lisbon Treaty, must be seen as a deliberate attempt to create some sort of intergovernmental counterpart to the President of the Commission. The first months in office of Herman Van Rompuy suggest that he might indeed step into the initiative and mediation role traditionally devolved to the Commission. The same phenomenon can be observed at the level of policy instruments. The wave of harmonisation that marked the completion of the internal market has been succeeded by a new phase characterised by working methods that impose fewer constraints on national administrations: benchmarking, peer review and mutual monitoring. This approach, first adopted for monetary union, was subsequently applied to employment policy in what became known as the European Employment Strategy, defined at the Luxembourg ‘Jobs Summit’ of 1997. Three years later, a similar approach was sketched out for all the structural reforms destined to improve economic competitiveness and modernise welfare systems. The ambitions of the ‘Lisbon Strategy’ were broad – to make Europe ‘the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’ – but any transfer of additional powers to the European level was deliberately avoided. As described by Jonathan Zeitlin in Chapter 8, the ‘open method of coordination’ defined on that occasion consists above all in establishing procedural routines (the definition of guidelines and indicators, periodic monitoring of national policies, exchange of best practices) intended to promote mutual emulation and learning. Mutual emulation rather than Community control mechanisms is the key to success under this new strategy.

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The Commission is relegated to a secondary role whilst the heads of state and government assume a role of overall guidance and control (Dehousse 2004; de la Porte and Pochet 2002; Rodrigues 2002). This approach epitomises the new modes of governance at the EU level, which make extensive use of networks of various types and profess greater openness to civil society in public policy-making (see Chapter 11). Taken together, these moves reflect a desire to break with the broad delegation of powers that is distinctive of the Community method, and a clear propensity to favour what Helen Wallace (2000) has defined as ‘intensive transgovernmentalism’. The Commission, which for many symbolises the evils of the classical approach, rapidly perceived that the winds were changing. Already under the presidency of Jacques Delors, the Forward Studies Unit launched a research programme on ‘governance’ and shortly after his arrival in Brussels Romano Prodi decided to make the reform of European governance one of its main strategic priorities. The final result of this initiative, the Commission White Paper of July 2001 (European Commission 2001), revealed however, the institution’s basic ambiguity in relation to this issue, since it championed the use of new instruments, while at the same time strenuously defending the Community method (Georgakakis and de Lassalle 2007). Third, over the last two decades, a strong dose of parliamentarianism has been injected at the European level. With each Treaty reform, the European Parliament’s financial, legislative and supervisory powers have been strengthened. As a result, the Parliament has evolved from being a consultative assembly to a co-legislator in a growing number of areas. Equally importantly, it has acquired considerable influence in the appointment of the Commission. Although this ‘vote of approval’ concerns the college as a whole and not any individual Commissioner in particular, the Parliament has succeeded in influencing the distribution of portfolios within the Commission and even its composition. The difficulties surrounding the nomination of the Barroso Commission in October 2004 marked an important stage in this development; for the first time, the Parliament managed to oust two of the governments’ nominees (Eisbouts et al. 2005). The European Parliament’s increase in power has been achieved largely to the detriment of the Commission, which has been forced to accept a number of new demands in the exercise of its duties. When Romano Prodi took office in 1999 he had to pledge to take ‘utmost account’ of the desires and wishes of the Parliament in matters of political initiative. Since the coming into force of the Lisbon Treaty, the Parliament has given clear signs that it intends to fully exploit the wide range of powers that it now enjoys, rejecting for instance the SWIFT agreement with the US government on bank data transfers, or using its budgetary powers to invite itself into the negotiations on the status of the new external action service. In the past, the assembly has occasionally succumbed to the temptations of micro-management – when it

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The ‘Community Method’ at Sixty 11

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supported individual sanctions against certain European officials after the mad cow crisis, for example. For now, though, these are but occasional demonstrations of the European Parliament’s growing authority. For there to be a lasting shift in the centre of political gravity in the European Union, a stable and coherent parliamentary majority would be needed. As noted by Olivier Costa in Chapter 4, this does not seem to be the case yet, despite the apparent growth of party discipline in EP votes (Hix et al. 2005). Today, the European political system is an unprecedented hybrid, with the Commission weaker than before but without a real parliamentary system. Finally, enlargement was broadly seen as a major source of stress for the EU institutions. Going from 15 to 27 members, with the possibility of further enlargement, could only make an already complex institutional system even more unwieldy – and also less transparent. Moreover, the fine balance struck between the large and small states during the 1950s appeared to be threatened, as all the new members, with the notable exception of Poland, fell into the category of ‘medium’ or ‘small’ countries. This led to protracted discussions concerning both voting in the Council and the structure of the Commission (Magnette and Nicolaïdis 2004). These questions have been at the heart of the debates around Europe over the last 10 years. In Amsterdam and later in Nice, government representatives struggled to find answers to these different problems, without much success, as they later came to admit. The failure of the draft Constitutional Treaty left the Union to cope with the arrangements introduced by the Nice Treaty, which were widely regarded as insufficient to enable the Union to face up to the challenge of greater numbers (Tsebelis 2006) – hence the pressure for a ‘quick fix’ resulting in the Lisbon Treaty. It is too early to tell what the implications of Lisbon will be for EU governance. It is however clear that like many of its forerunners, this agreement was inspired by contrasting visions of the way the EU should develop (Dehousse 2005). On one hand, it extends the scope of the Community method to new areas, such as justice and home affairs, to provide for more majority voting and more co- decision. On the other hand however, the failure to reform the Commission, the creation of a stable president of the European Council or the maintenance of a separate status for the powerful office of High Representative for Foreign and Security Policy, half-way between the Commission and the Council, might all in various ways undermine the authority which the Commission is supposed to exert. That being said, there is no shortage of precedents to remind us that institutional arrangements may also evolve in reaction to exogenous factors. The successive crises the Union has undergone through in recent years, first in 2008 with the near-collapse of the banking system, and then more recently with the threats to the sovereign debt of several member states, are likely to alter the balance of power between the national governments and the

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The ‘Community Method’ at Sixty 13

European institutions. Some will see in this a confirmation of the need to delegate further authority to supranational bodies. Others will, on the contrary, read these developments as confirming that there is still too much diversity within the Union for centralised governance to be tolerated in a large number of areas. Be that as it may, the question of the relevance of the Community method will be with us for the foreseeable future.

The purpose of the volume is twofold. First, it aims to improve our understanding of the actual operation of the Community method, which remains fragmentary at best. Second, it discusses to what extent the EU of today can be considered to still operate according to this method. The contributions in Part I lay down the basic elements of the debate. In this chapter, the key features of the Community method and the various pressures that this model has been subjected to since the Maastricht Treaty were reviewed. It has been stressed that these pressures have led to the questioning of its ability to address the challenges that post-enlargement Europe must face. In Chapter 2, Giandomenico Majone draws up a critical analysis in which he stresses that attention must be given not only to the way in which decisions are made (the ‘how’ question), but also to the substance of policies that are adopted (the ‘what’ question). In his view, the two questions are closely linked and should lead us to reconsider the relevance of the Community method in a post- enlargement era. This is necessary, he argues, given that several suboptimal features of EU policies can be regarded as the result of the attempts from the 1990s onward, to extend the Community method beyond the limits of market integration for which it was initially conceived. Arguably, any assessment of the Community method must focus on the way in which the various wheels of the EU machinery interact. Part II is therefore devoted to a systematic exploration of inter-institutional relations. In Chapter 3, for instance, Susanne Schmidt argues that the Commission’s agenda-setting powers cannot be properly analysed by merely taking into account its interaction with the Council and the Parliament in legislative procedures. She shows that when used strategically, the Commission’s surveillance and the possibility of bringing a lawsuit before the Court of Justice have enabled the Commission to play a clear agenda-setting role and to build coalitions in the Council. Chapter 4 by Olivier Costa explores the way in which the European Parliament has gradually asserted its authority in relation to the Commission and the Council by rationalising its own activities and developing its bureaucratic procedures. Similarly, Thomas König and Dirk Junge argue in Chapter 5 that the high degree of consensus achieved in the Council owes much to the national delegations’ ability to establish links between various issues and to build

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Plan of the book

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Renaud Dehousse

package deals that enable the Council to address a wide variety of concerns. All three chapters thus highlight key elements of the complex power play which is at the heart of the Community method. Part III is devoted to a detailed analysis of the various schemes that have been conceived to foster cooperation between the member countries of the European Union outside the classical model, in reaction to the perceived risk of undue interference by the Commission. Two chapters examine the evolution of the intergovernmental structures established in the framework of foreign policy and of justice and home affairs. In Chapter 6, Jolyon Howorth discusses the patterns of cooperation that have developed between the representatives of member states (mostly ambassadors) in the Political and Security Committee, a key body established in 2001 by the Nice Treaty to prepare decisions to be adopted in relation to European security and defence policy (ESDP). He seeks to identify how the committee has succeeded in reconciling the divergent views across the national capitals concerning its objectives and rationale. Jörg Monar follows up in Chapter 7 with an overview of the gradual introduction of the Community method in the so-called ‘third pillar’ in the wake of the Maastricht Treaty. Focusing on this specific area, he analyzes the coexistence of traditional legislative instruments with lighter forms of governance, such as target-setting texts, peer review procedures and opt-outs of various kinds. Chapter 8 by Jonathan Zeitlin then discusses whether the ‘open method of coordination’ (OMC) set up by the European Council at its March 2000 meeting should be viewed as an alternative to the Community method. He argues that this not the case, and that the OMC must rather be considered as but one stage in a broader shift to forms of ‘experimentalist governance’ that is taking place in the EU. This brings us to a discussion on the new modes of governance that have been the focus of intense scholarly debate in the last decade. Part IV largely focuses on social policy, one of the areas in which experimentation with new techniques has been the greatest, in order to allow a degree of ‘Europeanisation’ while at the same time preserving a significant level of decentralisation. All the contributions somehow challenge the dichotomy between old and new modes of governance. In Chapter 9, Laura Cram focuses on the Commission, questioning whether it can be described as operating in the shadow of the authority of member states in relation to new modes of governance, the use of which it has greatly encouraged. She suggests that those instruments may also enable it to acquire greater influence in some areas. Philippe Pochet’s contribution in Chapter 10 challenges the dominant discourse according to which it is nearly impossible to adopt binding legislation that strengthens the level of social protection. According to Pochet, there is no shortage of evidence to show that the past decade has been characterised by a complex mix of hard and soft regulation.

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Finally, in Chapter 11 Laurie Boussaguet, Renaud Dehousse and Sophie Jacquot revisit the ‘governance turn’ of the second half of the 1990s. They pose the question of whether this should be seen as signalling a radical shift away from the Community method, replaced by less intrusive modes of governance or, rather more simply as an attempt to innovate in areas where member states were not prepared to relinquish too much power. On the basis of the findings presented in these chapters, the Conclusion then returns to the broader questions presented above. How has the Community method evolved in the 60 years following the launch of the first European Community? Has its obsolescence, predicted by many critics, come to pass?

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2 Is the Community Method Still Viable?

Concepts of efficiency The aim of this volume is to contribute to a more precise assessment of the ‘overall efficiency’ of the Community method. As is well known, there are different concepts of efficiency, even if attention is restricted to public policies. Albert Breton (1996) mentions three concepts which seem to be particularly relevant to our discussion. The first is the well-known concept of Pareto efficiency, according to which those choices or options are efficient for which there is no available alternative that is universally preferred in terms of the goals and preferences of the people involved. As a positive (rather than normative) statement, the efficiency principle says that if people (or states) are able to bargain together effectively and can effectively enforce their decisions, then the resulting outcome will tend to be efficient – at least for the parties to the bargain. The second concept of efficiency mentioned by Breton is ‘transactions cost’ efficiency – an application to political markets of transaction-cost economics. Interest here focuses on the efficiency of institutional responses to failures associated with logrolling, information failures, shirking and free riding, principal-agent problems, and so on. Among the possible responses to these and other political-market failures are reputation, trust, accountability, and especially (for Breton) intra- and inter-jurisdictional competition. In this connection, it may be interesting to quote what the Canadian economist has to say about the EU in his path-breaking Competitive Governments:

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Giandomenico Majone

‘I believe that the European Union is quite stable but that the stability has been acquired by the virtual suppression of inter- country competition through excessive policy harmonization. To prevent the occurrence of instability, competition is minimized through the excessive harmonization of a substantial fraction of social, economic, and other policies ... If one compares the degree of harmonization in Europe with that in Canada, the United States, and other federations, one is impressed by 16

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Is the Community Method Still Viable?

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A third relevant notion of efficiency has been called constitutional efficiency. The reference here is to Buchanan and Tullock’s distinction between a constitutional, or rule-making, stage and a policymaking stage as basic elements of the ‘calculus of consent’. According to this view, outcomes will be efficient if unanimity or near-unanimity governs collective decisions whenever the decisions affect vital interests of individual members of the group. Since the issue of voting rules is very often considered in relation to applications of the Community method, I refer to what I said about this in my Dilemmas of European Integration (2005). In Chapter 3 of this book I discuss some of the responses of the Prodi Commission – as presented in the White Paper on European Governance – to the growing signs of decline of the Community method, as well as to the feeling of alienation of many Europeans from the Union’s work. I consider first the proposed separation of powers and functions between the legislature (Council and EP) and the Commission as the sole executive, pointing out that the Community system is not based on the separation of powers but on the very different principle of representation of interests (Jacqué 1991). Rather than leading to a ‘reinvigorated Community method’, therefore, the adoption of the principle of separation of powers would actually amount to its rejection. In particular, it would make it impossible for the Commission to enjoy a monopoly of legislative initiative. On the basis of some interviews I conducted in Brussels in 2002–3, I concluded that if the Commission were forced to make a choice between this monopoly and separation of powers, it would opt to keep the strategically important power of agenda-setting rather than attempt to mimic the constitutional architecture of the member states. I then consider a second proposal made to ‘rejuvenate the Community method’: the generalisation of qualified majority voting (QMV) in the Council. The Commission argued that in a Union of 25 or more member states, governance would be impossible without extending majority voting to all areas of policymaking, including foreign affairs and security. The rule of unanimity is said to be not only inefficient but also unjust since it gives to any country, even a very small one, the option of imposing the status quo on the other members of the Union. Hence, the generalisation of QMV is a necessary condition for further advances in integration. But as was pointed out above, in the Community system of governance the nature of the prevailing interest determines the structure of decision-making. This means that each subject matter has its own decision-making procedure according to the nature of the interest receiving special protection under the treaties: a unanimous vote in the Council in policy areas of particular relevance to national sovereignty;

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the extent to which it is greater in Europe than in the federations’ (Breton 1996: 275–6).

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QMV in matters where national interests have to be reconciled with the common interest; autonomous powers of decision to the Commission where supranational interests should prevail. That decision rules should be tailored to the nature of different interests deserving protection is also one of the main results of the modern theory of collective choice as developed by James Buchanan and Gordon Tullock. According to this theory, collective activity should not be organised through the application of the same decision rule to all subject matters. At the constitutional stage the individual member of a would-be polity can foresee that collective decisions in such areas as human or property rights might impose quite severe costs on them. For this reason, they may insist that collective decisions in the area of fundamental rights be taken by unanimity or near unanimity. It follows that whether a rational individual will support the shift of an activity from the private to the public sector (in the case of a member state of the EU, a shift from the national to the European level) will depend on the decision rule that is to prevail in collective choices concerning that activity. The important point which is too often forgotten by the advocates of generalised QMV, is that the rational choice of rules for collective decision-making depends not only on the time and resources needed to reach a collective decision (the direct costs of decision-making), but also on the costs which that decision may impose on the individual members of the polity – what Buchanan and Tullock call the ‘external costs’ of a collective decision. Under the unanimity rule these costs are zero, but the direct costs of decision-making may be quite high. Hence, there is a trade-off between the direct costs and the external costs caused by a measure to which an individual (or a member state) is opposed. Under unanimity any member of the group can block an agreement until a collective decision emerges which he or she feels is the best that can be obtained. At the other extreme, a dictator decides the issue for the entire community. Here decision-making costs might be close to zero, but the expected external costs for all other individuals are potentially quite high. The various possibilities can be represented by means of two curves. One curve – call it C – is the external- cost function representing the expected loss of utility from the victory of a collective decision to which a member of the group is opposed. The other curve D, the decision-making- cost function, represents the decision-time costs of reaching agreement, as a function of the size of the required majority: 100% in the case of unanimity, 85% or 80% in the case of a super majority, 50%+1 in case of a simple majority, etc. The total cost of collective decision-making is C+D, and the optimal decision rule is given by the size of the required majority at which the sum of external and decision-making costs is minimised. The reason why one decision rule cannot be optimal for all issues is that the two types of cost represented by the curves C and D, vary considerably from issue to issue (Buchanan and Tullock 1962: 63–91).

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In other words, when issues of basic human rights (or of national sovereignty in the case of the EU) are under discussion, decision-making costs pale in comparison with the external costs that a collective decision might impose on an individual or corporate member of the polity. In such cases, something close to unanimity is the optimal rule. Again, if minorities feel more strongly on particular issues than majorities, then any decision rule short of (near-)unanimity may lead to policies that will produce a net loss of aggregate welfare for the group. Constitutional protection of basic rights against majoritarian decisions embodies this logic of collective decisionmaking (Majone 2005: 53–6). So much for constitutional efficiency; I find the logic compelling, but it is a logic that those who favour the transfer of powers to the European level regardless of potential welfare losses, prefer to ignore. I will make use of the other two concepts of efficiency in later sections of this chapter. In the next few pages I consider the different, if related, concept of effectiveness.

Effectiveness, legitimacy and systemic stability It has been argued, correctly I believe, that it is ‘too much to expect the EU to meet the same level of legitimacy as its member states; it may not even be necessary for it to do so, provided it delivers a reasonable level of benefits in terms of efficiency’ (Shackleton 1998: 134). The problem is that an increasing number of Europeans feel that the Union is often unable to deliver a reasonable level of benefits even in terms of effectiveness, let alone efficiency. Voters are notoriously more interested in effectiveness than in efficiency. They want the government to deliver certain goods and services, and as long as the demands of the majority are reasonably satisfied, questions of efficiency stricto sensu are seldom, if ever, raised. Also, EU leaders prefer to talk in terms of effectiveness or ‘achievements’. The opening lines of the Commission’s White Paper on European Governance read: ‘European integration has delivered 50 years of economic prosperity, stability and peace. It has helped to raise standards of living, built an internal market and strengthened the Union’s voice in the world’ (Commission 2001: 9). One may be tempted to attribute this rosy view of the accomplishments of half a century of European integration to the congenital optimism of former Commission president Romano Prodi. Yet, the same triumphant tones recur in the speeches of EU leaders on all convenient occasions. Thus in the Berlin Declaration, issued on 25 March 2007 to celebrate the 50th anniversary of the signing of the Treaty of Rome, German Chancellor Angela Merkel repeated that ‘European integration has given us peace and prosperity. It has created a sense of community and overcome hostilities’. As recalled in the introduction, the same anniversary has been the occasion of celebrations in which many of the Union’s accomplishments were attributed, more specifically, ‘to the invention by the Founding Fathers of an original institutional setting, often referred to as the Community method’.

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Before one may attempt to empirically determine the causal role of the Community method in these accomplishments, however, it is necessary to test the validity of the official claims. In fact, it is not difficult to prove that many of the vaunted results – such as the White Paper’s ‘50 years of prosperity, stability and peace’ – are more in the nature of legitimating myths than of indisputable results to be attributed to the excellence of the institutional setting invented by the Founding Fathers. Like all myths, these Euro-myths also contain a grain of truth. To limit the discussion to the economic sphere where the influence of the Community method should be most visible, it is certainly true that since the end of World War II Europe has experienced unprecedented prosperity. The doubts concern not the reality of economic progress, but the causal influence of the integration process, and of the European institutions in particular, on economic development. If that causation cannot be clearly established then it must be concluded that the myth of 50 years of prosperity made possible by European integration rests on the post hoc, ergo propter hoc fallacy: inferring a causal connection from a mere sequence in time (Majone 2009). Let us examine some of the relevant evidence. Already in the mid-1960s the distinguished economist Gottfried Haberler argued that the elimination of the economic controls that had grown in Germany during the depression and the war released energies that led to spectacular increases in output and consumer satisfaction, and carried over into world trade and finance. Lifting exchange controls, eliminating quotas, and reducing tariffs, he wrote, ‘preceded and overlapped the regional reduction of trade barriers and regional integration in the European Common Market ... the quantitative effects on trade of worldwide integration and liberalisation have been much greater than those of the ... much advertised regional scheme’ (citation in Gillingham 2003: 41). Another well-known economist, Tibor Scitovsky, concluded from his calculations of the benefits of the Common Market that ‘the most striking feature of these estimates is their smallness. The one that is really important [is] the gain from increased specialisation ... which is less than one-twentieth of one per cent of the gross social product of the countries involved. This is ridiculously small’ (cited in Leibenstein 1980: 29–30). Taking economies of scale as well as other sources of gain from the Common Market into account, Bela Balassa estimated there was a 0.3% rise in the ratio of the annual increment of trade to that of GNP, which was probably accompanied by a 0.1% increase in the growth rate. Thus, by 1965 the cumulative effect of the Common Market’s establishment on the GNP of the member states would have barely reached half of 1% of GNP (Balassa 1967). In sum, it is true that between 1950 and 1970 Europe was the fastestgrowing region in the world, Japan aside. During this period European GNP grew on average by about 5.5% per annum, and industrial production by 7.1% (compared to a world rate of 5.9%), so that by the end of the period

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output per head in Europe was almost two and a half times greater than in 1950. After reporting these and other equally striking statistics, however, Paul Kennedy points out that ‘this growth was shared in all parts of the continent – in northwestern Europe’s industrial core, in the Mediterranean lands, in eastern Europe; even the sluggish British economy grew faster during this period than it had for decades’ (Kennedy 1987: 421). It follows that the early stages of the economic integration of the six original members of the European Economic Community could not have played a significant causal role in the impressive development of Europe during the first postwar decades. What is true, rather, is that development stagnated, or even regressed, after the launch of the two most important integrationist projects: the Single Market Programme and EMU. After the phase of very rapid catch-up with the United States in the post-war period, convergence in the levels of per capita income stopped at the beginning of the 1980s and has remained unchanged since, at around 70% of the US level. In other words: the customs union, the Single Market, a common trade policy, a supranational competition policy, extensive harmonisation of national laws and regulations, and finally, a centralised monetary policy, apparently made no difference as far as the economic performance of the EU was concerned. During the 1990s, growth of EU GDP was disappointing both in absolute terms and with regard to the US. ‘Overall growth slowed from the 1980s, which itself had slowed from the 1970s, in spite of the implementation of far-reaching reforms in both the macro- environment (consolidation of public finances and lower inflation, EMU) and micro- environment (Single Market Programme, Uruguay Round and to a certain extent labour market reform)’ (Sapir et al. 2004: 25). The desire to improve poor economic performance has driven EU policy over the last 30 years: from the Single Market Programme, which was meant to provide an answer to perceived ‘Eurosclerosis’ in the mid-1980s, to EMU in the 1990s, and the ‘Lisbon Strategy’ at the beginning of the new century. At the summit held in the Portuguese capital in March 2000, the EU Council announced two extremely ambitious objectives: by 2010 the EU should become the most competitive, knowledge- based economy in the world; in the same period it should grow at an annual average rate of 3%, so as to create 20 million new jobs. However, the latest data show that far from closing the gap and then overtaking the US economy, the EU as a whole continues to lag behind in terms of employment and productivity, and in most years also in terms of growth rates. Despite the cyclical upswing in 2006–7, per capita GDP has not improved, still hovering around 70% of American GDP, while the rate of growth of productivity in Europe has continued to decline since the mid-1990s. In recent years this rate has been about 0.5 to 1%, while in the US productivity growth has been about 2% per annum. In 2005, in particular, figures produced by the Conference Board (and reported by the Financial Times of 18 January 2006) showed productivity growth in

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the 15 old members of the EU of only 0.5%, compared with 1.8% in the US, and 1.9% in Japan. Annual growth in national output for every hour worked in the EU-15 averaged 1.4% between 1995 and 2005, compared to 2.4% in the US. According to some experts, the fact that the productivity gap with the US has persisted for the entire decade 1995–2005, that is to say, over a full business cycle, indicates that the erosion of European productivity levels is by now a structural problem – the result of insufficient technological innovation, and of labour markets not competitive enough to force companies to drive productivity higher. Far from being able to catch up, and then surpass, the American economy, the EU will find it increasingly difficult to maintain its present, unsatisfactory, comparative performance. After a new polity is established, Martin Lipset writes, ‘if the new system is unable to sustain the expectations of major groups (on the grounds of “effectiveness”) for a long enough period to develop legitimacy upon the new basis, a new crisis [after the crisis occurring during the transition to the new structure] may develop’ (Lipset 1963: 65). This is why unsatisfactory performance may in the end compromise the viability of the Community method, and even undermine the stability of the Union. Claims about the economic benefits of European integration went unchallenged in the past because of the veil of ignorance that shrouded European policies. While the implications of domestic policies are reasonably clear to the citizens affected by them, until recently most EU policies were too technical, and too remote from the daily problems of people, to seriously concern public opinion. True, the Common Agricultural Policy, and specific regulatory measures, have been discussed and criticised often enough, but controversies and contestations always remained confined within fairly narrow academic and political circles, or within particular interest groups. Monetary Union and Eastern Enlargement have changed all of this. Unlike most policy decisions taken in Brussels, the decisions taken by the ECB in Frankfurt are widely advertised, and their consequences – whether on home mortgages, on consumer credit, or on the availability of publiclyprovided services – have a direct impact on the welfare of all inhabitants of the Euro-zone, indeed of the entire EU. Similarly, the implications, true or presumed, of enlargement for jobs, wages, social standards, and organised crime have become part of the daily concerns of West European citizens. This is not only a new, but also an ominous development because it induces a growing demand for accountability by results – precisely the kind of accountability that is foreign to the political culture of the EU (Majone 2009). Poor performance, in particular poor economic performance, will pose more of a threat to the credibility and legitimacy of EU institutions than in the past. Legitimacy involves the capacity of a political system to engender and maintain the belief that its institutions are reasonably effective in resolving the major problems facing society. Conversely, a breakdown of effectiveness in the provision of a satisfactory level of economic

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growth will endanger even a legitimate polity’s stability. It is this connection between effectiveness, legitimacy, and systemic stability that makes the persistent poor performance of the EU – in terms of growth, productivity, and employment – so worrisome. Unless the EU can demonstrate (by deeds, not by words) that it adds value to what individual member states, or subset groups of member states, can achieve on their own it will be impossible to resolve the legitimacy crisis that is undermining the Union’s stability. In the two following sections I try to explain why neither the classical Community method nor the Monnet method of integration by stealth are likely to improve the effectiveness, let alone the efficiency, of EU policies.

The community method and the integration/democracy trade-off In the absence of popular support for the political integration of the continent, the founding fathers of communitarian Europe, and all integrationist leaders after them, were faced with a fundamental trade-off between democracy and integration – which they consistently resolved in favour of integration. The prime example is the Community method, which defines the role of the various European institutions and the modes of their interactions. As defined by the Commission’s White Paper on European Governance (Commission 2001: 12, see also the introduction), the classic Community method rests on three principles: The Commission’s independence, its monopoly on legislative proposals and the European Court of Justice (ECJ)’s role as guardian on the balance among European institutions, and of the rule of law. From a normative point of view, the most striking feature of this method is the monopoly of legislative and policy initiative enjoyed by the non-elected European Commission. It is therefore important to understand clearly what this monopoly implies. First, other European institutions cannot legislate in the absence of a prior proposal from the Commission. It is up to this institution to decide whether the Community should act and, if so, in what legal form, and what policy it should adopt, and what implementing procedures should be followed. Second, the Commission can amend its proposal at any time while it is under discussion in the Committee of Permanent Representatives or in the Council of Ministers, while the Council can amend the proposal only by unanimity. If the Council unanimously wishes to adopt a measure which differs from the Commission’s proposal, the latter can deprive the main Community legislator of its power of decision by withdrawing its own proposal. The Commission also proposes the legal basis for the measure under discussion, and this basis determines the required majority in the Council. This monopoly of legislative and policy initiative granted to a nonelected body represents such a blatant violation of fundamental democratic

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principles as to be unique in modern constitutional history, and fairly rare even in ancient history. The model is not Athens, but Sparta, where the popular assembly voted Yes or No on every proposal advanced by the Council of Elders, but had no right of proposing measures on its own account. If one also considers non- democratic polities in modern Europe, then there is the illustrious precedent of the French Constitution of 1799, under which Napoleon, as First Consul, enjoyed a monopoly of legislative initiative. On the other hand, even the Constitution of the German Empire of 1871 granted no right (let alone a monopoly) of legislative initiative to the executive headed by Bismarck; only the two legislative branches, Bundesrat and Reichstag, could initiate legislation, at least formally. Some years ago a sympathetic American observer wrote: ‘It is unimaginable that Americans would grant such political power as the Commission staff enjoys to a career bureaucracy. Not surprisingly, the people of Europe increasingly expect democratic accountability by Community political and bureaucratic leaders’ (Rosenthal 1990: 303). Significantly, these words were written a few years after the Single European Act greatly extended the European Community’s competences. It is of course true that in contemporary parliamentary systems most legislative proposals are introduced to parliament by the executive as draft legislation. Once legislators receive such proposals, however, they are free to change or reject them. This is not the case under the Community method, where as a rule the Council may modify Commission proposals only under the stringent requirement of unanimity. In parliamentary systems, moreover, the executive cannot preempt the right of initiative of parliamentary parties and of individual members of the legislature. For example, during the eighth session of the legislature of the German Federal Republic, (1976–80), the federal government introduced 322 bills, 52 bills were initiated by the federal states through the Bundesrat, but the Parliament (Bundestag) still managed to introduce 111 bills (Pilz and Ortwein 1995). It is sometimes argued, in justification of the method, that in making its proposals the Commission often responds to the discreet suggestions of some member states, or of the EP. But aside from the fact that the suggestions are accepted only if they match the political and policy priorities of the Brussels executive, or as part of a political exchange (logrolling, EU-style), the whole procedure adds to the lack of transparency and of clear-cut accountability of the European policymakers. How could the founding fathers, all sincere democrats, envisage such sweeping delegation of legislative and policymaking powers to a non-elected body? The answer seems to be that in the absence of popular support for the integrationist project, the founders faced a situation never contemplated by the federalists of the first post-war decade: the existence of a trade-off between democracy and integration. The implications of their choice in favour of integration did not appear as serious to them as they appear to

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us today because it was expected that the competences of the EEC would remain so narrow that the indirect legitimacy provided by the democratic character of the member states would suffice. Even Robert Schuman, father of the European Coal and Steel Community and ‘European saint’, thought that the competence of the supranational institutions should be limited to technical problems, without extending to functions involving the sovereignty of the member states (Milward 1992). Also at the national level, after all, certain technical tasks are delegated to ‘non-majoritarian institutions’ such as independent central banks and regulatory authorities. The relatively limited scope of the original plans explains why the debate about the democratic deficit started only some 30 years after the establishment of the Community. What was originally a marginal valuation – some sacrifice of democracy for the sake of a bit more (transaction- cost) efficiency – became with the continuous growth of EC/EU powers a serious violation of basic principles of parliamentary democracy. All European treaties emphasise the apolitical character of the Commission, and the complete independence of this institution ‘from any government or from any other body’ is a key element of the Community method. Up to a point, this insulation from the political process makes sense if we think of the Commission as the guardian of the treaties, or as an independent regulatory authority. This was indeed what the institution was intended to resemble originally. Over time, this independent institution has become a highly politicised body, taking decisions involving political judgment and a high level of discretion. In spite of this, the framework of political accountability remains weak. The dismissal of the entire Commission is a measure which the European Parliament is understandably very reluctant to use, while the multiplicity of functions assigned to the Brussels bureaucracy makes it very costly for the EP to force the resignation of the Commission in response to even extreme dissatisfaction with the performance of one particular function. Again, it is difficult for the EP to censure the Commission on a question of policy – as distinct from charges of incompetence and maladministration, as in the case of the Santer Commission – because of the absolute majority required, which is likely too tall of an order for any one party in the EP. After half a century of European integration it is time to ask whether the loss of democratic legitimacy entailed by the Commission’s monopoly of legislative initiative is still justified. The Commission, and especially its Legal Service, is of course fully aware of the strategic importance of agenda control, and looks for every possible occasion to expand the scope of the Community method. But this can only aggravate the democratic deficit and the accountability problem. Even in efficiency terms one can question the wisdom of extending the Commission’s control of the policy agenda to areas, such as justice and home affairs, where

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national governments enjoy a comparative advantage in terms of expertise and material resources. The principle of institutional balance is the third key element of the Community method. This principle – which is inherent in the logic of the Community as a system of interest representation – makes institutional innovation well-nigh impossible. As Jean Paul Jacqué has argued, it is impossible for Community institutions to achieve more than incremental adjustments: ‘For a significant evolution to take place it would be necessary that an institution renounce exercising its prerogatives to align its position with that of another institution. This is hardly conceivable since each institution is the representative of interests that it has a duty to protect’ (Jacqué 1991: 252, my translation). This inability to innovate is an important reason why the Community method is increasingly perceived as too rigid to accommodate the needs of an increasingly complex and diverse polity. The refusal of the Commission to delegate rule-making powers to the European agencies is a striking illustration of this rigidity (Majone 2005).

Integration by stealth The Community method cannot be considered in isolation from the broader institutional and policy-making context in which the method operates. Particularly significant in this respect is the relation with the socalled Monnet method of integration by stealth. The best short characterisation of this peculiar policy-making method has been provided by Pascal Lamy, former lieutenant of Jacques Delors and European Commissioner, and presently Director General of the World Trade Organization. In a conversation with the American chronicler of the Delors presidency, Lamy summarised the approach – while at the same time recognising its obsolescence – in the following terms: ‘Europe was built in a St Simonian way from the very beginning, this was Monnet’s approach. The people weren’t ready to agree to integration, so you had to get on without telling them too much about what was happening: Now St Simonianism is finished. It can’t work when you have to face democratic opinion’ (cited in Ross 1995: 194). While the Monnet method has to be distinguished from the Community method, the two traditional integration methods are closely connected. Clearly, the former presupposes a tight control of legislative and policy initiatives by a ‘St Simonian’ elite, and this is precisely what the Commission’s monopoly of agenda-setting guarantees. A true competition of policy ideas would open up the debate, making it impossible to pursue integration by stealth. Again, both methods are less concerned with ultimate goals than with procedures and institution building. It is very doubtful that Monnet had any kind of ultimate goal in mind, much less a pluralist political community of the type envisaged, for example, by Ernst Haas.

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Monnet’s closest associates seem to agree on the fact that for him the finality of European integration had become less and less significant; what mattered was the movement, the process – especially the creation of European institutions. True, in June 1955 Monnet had left the High Authority of the European Coal and Steel Community to set up the Action Committee for the United States of Europe, and thus he is often considered to have been a federalist. But as Max Kohnstamm later explained, Monnet used the expression ‘United States of Europe’ more as a tribute to the USA, a country he knew well and loved, than as a clear ideological commitment. In fact, the French leader and ‘father of Europe’ used several expressions more or less interchangeably: in addition to United States of Europe he also used ‘European entity’, ‘union’, ‘federation’, and ‘confederation’ (Kohnstamm 1989). In addition, Richard Mayne, a member of Monnet’s personal staff when the latter was President of the High Authority, believes that the French leader favoured new forms of relationship between states rather than a fullyfledged European federation (Mayne 1989). The lack of a serious interest in the finality of European integration and fascination with the process of institution building were even more pronounced in the case of Paul-Henry Spaak. According to the Belgian statesman, ‘everything which tends toward European organisations’ was good. In the words of Alan Milward: ‘Any form of integration, any form of common authority in Western Europe, had become the indispensable guarantee for post-war security, and he [Spaak] became increasingly indifferent to what that authority might be or do’ (Milward 1992: 324). A striking demonstration of this bias in favour of institution building, regardless of what the institution might actually accomplish, is Euratom – almost forgotten but still surviving in a permanent state of hibernation. The leading idea of the Monnet method is simply to implement, wherever possible, the strategy of the fait accompli – the accomplished fact which makes opposition and argument useless – especially by establishing institutions for tackling problems experienced by several countries (Marc 1989). Whether these institutions would eventually merge into a central political authority was not a question that particularly concerned either Monnet or his followers. No European leader, then or later, seemed to be worried about the longrun implications of the Monnet method – an approach which basically consists of trying to achieve several goals at the same time, and using the same policy instrument. More recently, it has been noticed that ‘quite often in the EU economic system, policy instruments are assigned two objectives at the same time: for example, fostering growth and improving cohesion’ (Sapir et al. 2004: 4). Economists and decision theorists know, however, that the attempt to pursue different objectives with the same instrument usually produces suboptimal outcomes. What is suggested here is that this unsound approach is not a peculiar feature of EU economic policy-making,

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but a structural flaw of the entire Monnet approach to European integration. Hence the recommendation of the Sapir Report to assign one objective to each policy instrument should be extended to all decisions taken at the European level: political objectives should be pursued using political instruments, economic objectives, using economic instruments. The assignment of policy instruments to two, or more, objectives is one important reason why both traditional methods (Community and Monnet) tend to be inefficient in the Pareto sense. What is perhaps less well understood is that when several objectives are pursued simultaneously, accountability is reduced to vanishing point. The reason is that failure to achieve one particular objective can always be justified by appealing to the remaining, allegedly even more urgent or important, objectives. Now, poor accountability is a form of transaction-cost inefficiency since it aggravates the informational asymmetry between policymakers and citizens. It will be recalled (see section 1) that transaction-cost efficiency has to do with the quality of institutional responses to political-market failures, of which information failures are among the most serious ones. Only a good accountability framework can correct, or at least mitigate, this particular market failure. The possibility of imposing sanctions on the agents is of course an essential component of a good accountability framework. The EP’s practical powerlessness to censure the Commission on a question of policy (see above) increases the overall accountability deficit – hence the transaction- cost inefficiency – of the system in which the Community method operates. In sum, both traditional integration methods tend to be inefficient in the Pareto as well as in the political transaction-costs sense. Even constitutional efficiency would be seriously compromised by a generalisation of QMV.

Mutation pressures Regardless of the past merits or demerits of the Community method and related integration strategies, the burning issue today is how these various approaches may perform in a radically new context. The EU with 27 or more members is qualitatively different from the old 15-member EU, not to mention the original EEC: not so much because of the larger number of members, but primarily because of the high level of heterogeneity in socioeconomic conditions and policy preferences (see below). This heterogeneity is such that the EU-27+ should be regarded as a mutant of the old Union, but this does not seem (yet) to be the general perception. Many, perhaps most, students of European integration apparently believe that the approaches that have been followed for half a century are still basically valid, and capable of evolving in response to changing problems and new priorities. I do not share this optimistic view; on the contrary I would argue that even approaches that were reasonably effective in promoting

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integration under the economic, social, and geopolitical conditions prevailing in the past (say, harmonisation), are in need of radical reform if they are to respond adequately to the mutation pressures of recent years. The world familiar to the founding fathers was vastly different from today’s world. The European economy during the period of reconstruction and recovery was built around the implementation of existing technologies, mass production, and an industrial structure dominated by large firms with stable markets and long-term employment (Sapir et al. 2004). Not surprisingly, the institutions and policies of that period no longer seem to be effective in the world of today, characterised by globalisation, flexibility, technological innovation, and an epochal shift from the production of goods to the provision of services. As a consequence, the EU is increasingly perceived as being unable to produce the public goods – especially a dynamic, competitive economy – that citizens expect as the pay- off of integration. The geopolitical changes have been no less dramatic. Western Europe has never seemed so close to being recast into a fully-fledged supranational federation as it did in the 1950s. Among the factors which could have made possible such a far-reaching transformation of the first European Communities were the Soviet threat – true or imagined – but, even more, the existence of the iron curtain, which for the first time since the collapse of the Roman limes, had seemed to give a well- defined and stable boundary to the European heartland. Behind the iron curtain, communitarian Europe formed an island of democracy, with borders as precisely drawn as the Atlantic and the Pacific coasts of the United States. A shared history and a common territory are generally considered essential preconditions for the formation of a sense of nationality. The clearly defined territory of the EEC could have favoured the development of a true European identity and, in time, even of something like a European nation. As Jean-Marie Guéhenno has pointed out, however, one of the unanticipated consequences of the collapse of the Soviet empire is the discovery that Europe can no longer become a nation, even a federal one. For this would require a definite boundary to the east, hence the permanent exclusion from the EU of the Russia of Tolstoy and Dostoevsky (Guéhenno 1993: 76–7). The current debate about the accession of Turkey only emphasises the paradoxical character of the dilemma – widening or deepening? – facing the Union. When the Paris and Rome Treaties were signed, nobody could have foreseen that the Soviet system would collapse before the end of the century, making it possible for the countries of Central and Eastern Europe to join the EU. However beneficial in so many respects, this particular mutation of the geopolitical environment has radically changed the nature of a fairly homogeneous association of mostly prosperous West European states. Today, socioeconomic conditions in the EU-27 are so heterogeneous that income inequality, as measured by the Gini coefficient, is greater in the

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Union than in the arch- capitalist USA. Average labour costs vary from €27,60 an hour in Germany to €5, or less, in Eastern Europe. One obvious consequence is that the model of a ‘social Europe’ strongly committed to furthering socioeconomic equality, or at least greater interstate cohesion, through income transfers is no longer credible. A second consequence is that the resulting heterogeneity of national policy preferences entails exponentially rising costs of uniform policies, and because of the importance of the services sector in the contemporary economy, even threatens the very notion of a Single European Market (see the following section). Geopolitically, Eastern enlargement has made the search for a common European interest even more elusive than it was in the old EU-15. Those new member states that feel threatened by a resurgent Russia look to the United States, not to the EU, for protection. Socioeconomic and geopolitical diversity undermines one of the basic, if implicit, tenets of the orthodox approach to European integration: the principle that integration can only be one way. This dogma of ‘orthogenetic evolution’ was enunciated with particular emphasis during the debate on the Maastricht Treaty. The perceived loss of unity of the Community legal order, allegedly caused by the restriction of the Community method to the first pillar, and the likely effect on the acquis communautaire of the many opt- outs and derogations contained in the Treaty, attracted much critical comment. One of the severest criticisms was expressed by Deirdre Curtin in a well-known article entitled ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (Curtin 1993). Professor Curtin concluded her analysis with pretty strong words: ‘The result of the Maastricht summit is an umbrella Union threatening to lead to constitutional chaos ... at the heart of all this chaos and fragmentation, the unique sui generis nature of the European Community, its true world-wide historical significance, is being destroyed. The whole future and credibility of the Communities as a cohesive legal unit which confers rights on individuals and which enters into their national legal systems as an integral part of those systems, is at stake’ (Curtin 1993: 67, emphasis in the original). The loss of legal unity – an indication of which was what Curtin called the ‘hijacking’ by the drafters of the Treaty of the acquis binding all member states to the same body of legal rules and principles – was said to be fatal because ‘built into the principle of an “ever closer union among the peoples of Europe” is the notion that integration should only be one way’ (ibid.; emphasis added). Those who, like Professor Curtin, believe that European integration must move along a straight line were naturally alarmed by the loss of unity symbolised by the pillar structure of the Maastricht Treaty. It is by now clear, however, that the differentiation or flexibility which appeared in several forms in the Treaty was no momentary aberration, but the clear beginnings

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The emasculation of the community method In November 2005, after two years of studies, discussions and consultations, the European Commission decided to withdraw its draft directive for the liberalisation of port services. Originally acclaimed as the most important liberalisation measure in the area of transport, the draft proposed to eliminate cargo-handling monopolies by allowing shipping companies to use their own staff to unload cargo, to set limits to permissible state aid in this sector, and generally to stimulate competition among the ports of the EU. Faced with the opposition of the EP and the trade unions, the Barroso Commission progressively softened many of the proposed measures, to the point of making the revised text, in the opinion of some analysts, practically useless. Finally, in one of its worst debacles in recent years, the Commission decided to withdraw even the weakened version of the directive, implicitly admitting that it considered itself politically too weak to face the combined opposition of the EP and the port workers, one of Europe’s most protected labour forces. Serious doubts about the Commission’s ability to set the policy agenda have also been raised by the saga of the Services Directive. The Directive on Services in the Internal Market finally approved by the European Parliament and the Council in December 2006, has been so weakened with respect to Commissioner Bolkestein’s original draft as to be practically irrelevant to the liberalisation of labour markets and of the professions. Hence the all-important services sector will continue to be largely regulated along national lines – as a number of observers had expected because of the heterogeneity of the present Union. Bolkestein’s idea was to get around the well-nigh impossible harmonisation of a bewildering variety of national regulations, by applying the country- of- origin principle – a form of mutual recognition which had already been used in the 1980s, for example, in the area of banking and financial services. Application of this principle would have guaranteed that, with the exception of environmental and safety standards, companies could apply their domestic labour law when providing services abroad. The original Bolkestein draft directive was in line, not only with the pro- competition philosophy of the treaties, but also with the doctrine of the ECJ, as stated in

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of an emergent strategy for achieving progress in politically sensitive areas, be it to the detriment of the system’s overall coherence (Craig and de Bùrca 2003). The heterogeneity that the EU-27 is facing today, however, is orders of magnitude greater than anything that confronted the old Community. Derogations, opt- outs, and options in directives may have been sufficient forms of flexibility in the past; what is needed today is nothing short of a radical recasting of existing institutional arrangements and traditional integration methods.

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the Cassis de Dijon judgment and further extended by the Commission to the free movement of people and services. In spite of this impeccable pedigree, the draft directive immediately sparked widespread concerns among Western European trade unions about lower wages, ‘social dumping’, and an influx of workers from the new member states of Eastern Europe – the same concerns that played a significant role in the rejection of the Constitutional Treaty by the French and Dutch voters in 2005. Faced with intense political opposition, the Commission prepared a softer version of the directive, seeking to address many of the concerns expressed by the EP. A compromise between the European People’s Party and the European Socialist Party made it possible for the EP to accept a revised version, from which, however, the country- of- origin principle had disappeared. At the same time, the watered- down version triggered a backlash from East European countries, which as low- cost countries would stand to benefit most from price competition among services providers. Although the services sector produces 70% of the GNP and more than 50% of the employment of the EU, it thus seems highly unlikely that there will be a Single European Market for services in the foreseeable future. Also the (first) OECD Economic Survey of the European Union, published on 20 September 2007, noted that the main weak spot in the EU’s internal market is the services sector. According to the Survey, differences in national laws make it hard for a service provider in one country to do business across Europe. The report is cautiously optimistic that the Services Directive will help create Europewide markets, but adds that the national governments need to stop protecting providers from outside competition – precisely the kind of protectionism which the home- country principle was supposed to oppose. Also energy policy continues to be set at the national level, as the Council of Energy Ministers made clear at the meeting of 14 March 2006, where it rejected the Commission strategy paper on a Community energy policy. Aside from the growing weakness of the Commission, the problem the traditional integration methods cannot solve is the heterogeneity of national policy preferences. The heterogeneity which exists in the EU-27 is such that it entails exponentially rising costs of harmonised policies: if countries have significantly different policy preferences, the regulations that maximise social welfare (i.e. that are Pareto efficient) will be different rather than harmonised. This is true even in the case of minimum harmonisation – unless the minimum European standard is so low as to be exceeded by all national standards, in which case it is simply irrelevant. Hence, even in areas of clear European competence, it will be increasingly difficult to use the classic Community method to harmonise or coordinate national policies in a legally binding way. At the same time, there are good reasons

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to doubt the effectiveness of new instruments such as the non- binding Open Method of Coordination (OMC). Despite the enthusiasm with which many academic analysts have greeted EU efforts to promote such ‘new modes of governance’ (see Chapter 11), so far the OMC has fallen far short of expectations, even in areas, like the European Employment Strategy and the Social Inclusion Programme, where it has been most highly developed and where, therefore, one might have expected it to have yielded the most significant results. Scholars who have studied the applications of the method in various member states have concluded that the OMC is used in areas where it is in harmony with domestic policy priorities, while it is practically ignored in areas where it conflicts with these priorities (Idema and Kelemen 2006; see, however, Chapter 7 for a more positive evaluation). Indeed, the OMC has failed to deliver precisely where it was supposed to be the main policy instrument, namely in connection with the so- called Lisbon Strategy for Growth. If the Strategy means anything today, it is as an attempt to coordinate, in a flexible, non-binding way, the economic policies of the member states. However, policy coordination is what has not happened, as was candidly admitted by Jean-Pierre Jouyet, then the French Minister for Europe, in an interview with Handelsblatt of 29/30 June 2007. Since the launch of the Lisbon Strategy, the governments of the major continental economies have each attempted to solve their structural problems in a different way. Germany, in particular, has been accused of improving its competitiveness at the expense of France, Italy and Spain – countries which have strong trade relations with Germany, and share the same currency. The result of this lack of coordination, it has been argued, is that these governments are playing a zero-sum, or even a negative-sum, game.

Multi-linear evolution One of the novel points in Joschka Fischer’s lecture at Berlin’s Humboldt University on 12 May 2000 – a lecture that according to informed observers was the catalyst that led to the calling of the Constitutional Convention – was the explicit acknowledgment of the serious, possibly irreversible, crisis of the Community method. The former German foreign minister concluded that this crisis meant that the federalist project could not be realised by trying to drive forward the integration process by means of policies designed by remote supranational institutions. The method itself, according to Fischer, is one of the problems confronting the Union today: in spite of its past successes, it has proved unable to achieve the political integration and democratisation of Europe. In fact, he added, whenever a group of member states decided to move forward along the integration path – as with monetary union or the Schengen agreement – they did so outside the framework of the Community method.

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Fischer’s conclusion: in an enlarged and necessarily more heterogeneous Union differentiation will be unavoidable. As we saw, Pascal Lamy is equally convinced of the obsolescence of the traditional integration methods since they ‘can’t work when you have to face democratic opinion’. What are the alternatives, then? Concerning differentiation, Fischer proposed that the member states willing to deepen their political integration sign a new treaty, the nucleus of a federal constitution. This coalition of the willing could become an ‘integration magnet’ able to eventually attract most, if not all, other member states. The irrevocable commitment to a federal union would be preceded by a period of enhanced intergovernmental cooperation in such areas as environmental protection, crime control, immigration and asylum, and of course foreign affairs and security. Consistent with his own views about the obsolescence of the Community method, Fischer assigns no significant role to the supranational institutions in the type of enhanced cooperation he envisages: policy initiation would be primarily the responsibility of the national governments. Also, the aims of the federalist avant-garde should be openly political: integration by stealth is also rejected. In spite of some original features, however, the proposal of the former German foreign minister does not really come to grips with the heterogeneity of the new Union. The problem is that he is unwilling to abandon the dogma that integration can only be one way – although the final goal may be approached at different speeds. The same can be said of other proposals advanced after the constitutional debacle of May-June 2005, for example, by the then French foreign minister Douste-Blazy, and by the Belgian prime minister Guy Verhofstadt. These and similar proposals still assume that, if it is not to dissolve in chaos, the process of European integration can move only in one direction: the laggards must eventually join the avant-garde, or else drop out of the Union. Because of their implicit belief in the unidirectional character of the integration process, all these models fail to deal with the heterogeneity of the present EU. But as was pointed out above, growing heterogeneity in socioeconomic and geopolitical conditions, and hence in policy preferences, makes it impossible to enact European rules that are both uniform and efficient. Efficiency (in the Pareto sense) is always relative to some specific set of actors whose individual preferences are taken into account. In the case of today’s EU, therefore, harmonised rules must be inefficient, that is, they reduce aggregate welfare. Hence the groping for forms of flexibility more or less consistent with the traditional integration philosophy. The aim of greater flexibility was given official recognition by the Amsterdam and Nice Treaties. Since the Treaty of Amsterdam the tendency had been to make the use of enhanced cooperation easier, in the hope that by encouraging the member states to work within, or as closely as possible to, the legal framework of the Union when cooperating among themselves,

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it would be possible to regulate diversity in such a way that any uses of the relevant provisions would adhere to the objectives of the Union. However, critics of a more flexible approach to integration, in the Commission and in some of the national capitals, insist that far from furthering the objectives of the Union, voluntary associations among some members would in fact undermine the EU’s constitutional foundations. It is true that the possibility of enhanced cooperation has never been used so far, but this is presumably due to the strict conditions imposed by the Amsterdam and Nice Treaties. If these conditions were relaxed at the same time that national preferences became more varied, then the temptation to form smaller, more homogeneous, groupings might become irresistible. While these critics fear the consequences of any departure from the dogma of straight-line development, the economic theory of clubs (Buchanan 1965; Mueller 1989) views the multiplication of voluntary associations in a complex society as a positive, welfare- enhancing development. A few definitions and concepts will suffice to present the key ideas of the theory. Pure public goods, such as national defence or environmental quality, are characterised by two key properties: first, it does not cost anything for an additional individual to enjoy the benefits of the public goods, once they are produced (joint supply property); and, second, it is difficult or impossible to exclude individuals from the enjoyment of such goods (non-excludability). A ‘club good’ is a public good from whose benefits particular individuals may be excluded – only the joint supply property holds. An association established to provide excludable public goods is a club. Two elements determine the optimal size of a club. One is the cost of producing the club good – in a large club this cost is shared over more members. The second element is the cost to each club member of a good which does not precisely meet its individual preferences. The latter cost is likely to increase with the growth of membership. Hence the optimal size is determined by the point at which the marginal benefit from the addition of one new member, that is, the reduction in the per capita cost of producing the good, equals the marginal cost caused by a mismatch between the characteristics of the good and the preferences of the other club members. If the preferences and the technologies for the provision of club goods are such that the number of clubs that can be formed in a society of a given size is large, then an efficient allocation of such excludable public goods through the voluntary association of individuals into clubs is possible. The important question is: what happens as the size (or complexity) of the society increases, perhaps as the result of the integration of previously separate polities? It can be shown that under plausible hypotheses the number of clubs tends to increase as well, since the greater diversity of needs and preferences makes it efficient to produce a broader range of club goods. Think now of a society composed not of individuals, but of independent states. Associations of independent states (alliances, leagues, confederations)

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are typically voluntary, and their members are exclusively entitled to enjoy certain benefits produced by the association, so that the economic theory of clubs is applicable also to this context. In fact, since exclusion is more easily implemented in such a context than at the national level (for constitutional and other reasons), many goods which are purely public at the national level become club goods at the international level (Majone 2005). The club goods in question could be collective security, policy coordination, technical standards, or tax harmonisation. In these and many other cases, countries which are not willing to share the costs are usually excluded from the benefits of interstate cooperation. Now, as an association of states expands, becoming more diverse in its preferences, the cost of uniformity in the provision of such goods can increase dramatically. Hence the theory predicts an increase in the number of voluntary associations, corresponding to the increased demand of club goods more precisely tailored to the different requirements of various groups of states. It will be noted that the model sketched here is inspired by a philosophy quite different from the unidirectional assumptions of enhanced cooperation. It is no longer a question of groups of states working closely together to further the objectives of the Union and protect its interests (Art. 43 EC: enhanced cooperation must be ‘aimed at furthering the objectives of the Union and of the Community, at protecting and serving their interests and at reinforcing their process of integration’). Rather, the prime reason for forming such voluntary associations is to produce public goods more closely tailored to the needs of the club members than would be possible under uniform EU-wide rules. Unlike ‘multi-speed’ or other modes of differentiated integration, the approach suggested by the theory of clubs does not distinguish between avant-garde and laggards: there is no hierarchical ranking of national preferences. Rather, the problem is to find efficient institutional arrangements – under some basic rules and policies freely accepted by everybody – tailored to the specific needs and preferences of various sets of countries, or of regions within countries. As a matter of fact, the EU has already been forced to experiment with forms of flexibility that are closer to the approach suggested here than to enhanced cooperation as defined by the treaties. Thus, as an unanticipated consequence of EMU, the euro area turned out to be, in some respects, a ‘club’ within the EU-15. The introduction of the common currency has split the Union in two, and according to some experts, into three camps: the current and future members of the euro-zone; the de jure (UK and Denmark) and de facto (Sweden) opt- outs; and future dropouts. Kenneth Rogoff, well-known Harvard economist and former chief economist at the International Monetary Fund, recently predicted that in the next five to ten years the Union may be further divided with the addition to the present opt- outs of future dropouts of the eurozone – countries with a large public debt, like Italy and Portugal, which according to Rogoff may

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be forced to abandon the common currency because adherence to the Maastricht parameters entails too high social and economic costs (Spiegel On Line, 20 December 2006). EMU was supposed to be the point of no return on the straight path to fully-fledged integration: ‘One Market, One Law, One Money’. However, the present fragmentation may be permanent since the opt- outs, having done quite well economically – show no intention of joining the monetary union. Schengen and neutrality are two additional fault lines within the present EU. Thus, the future, if any, of the Community method must be considered in the context of a likely multi-linear evolution of the system: a Union that is not only highly inhomogeneous, but also variously fragmented.

Back to negative integration? In a once famous book on De Statu Imperii Germanici, published in 1667, Samuel von Pufendorf argued that any attempt to transform the Holy Roman Empire into a more cohesive polity, on the French or English model, was bound to fail. As an association of sovereign states, however, the Empire could perform a number of very useful tasks for its members. In fact, while nationalist historians of the 19th century considered the first Reich a monstrosity, modern scholarship has rediscovered the virtues of an institutional arrangement that, for all its limitations, fulfilled important functions and exerted a profound influence on the historical and political culture of Germany (Schilling 1989). Thus, contemporary historians find that the competition between the two main imperial courts (the Reichskammergericht, located first in Speyer and then in Wetzlar, and the Reichshofrat in Vienna), far from being dysfunctional, served the interests of different corporate groups. Also the imperial parliament (the (in)famous Immerwaehrender Reichstag) was an ideal venue for interest mediation among the territorial members of the empire. Again, the ‘Circles’ (Reichskreise) between the sovereign states and the empire, represented a useful intermediate level of policy-making on a number of important issues – at least in the case of Circles composed of small and medium-sized states. The example of the first German Reich suggests that in the case of sui generis polities, state-like ambitions, but also open- ended commitments – such as ‘ever closer union of the peoples of Europe’ – are counterproductive. Concerning such commitments one is reminded of Edward Carr’s dictum: ‘The conception of politics as an infinite process seems in the long run uncongenial or incomprehensible to the human mind’ (Carr 1964 [1939]: 89). Let us assume, then, that a customs union, like the Benelux one, plus some elements of a common market, at least for goods, are a realistic goal for a Union with 30 or more, highly heterogeneous, members. Within this CU+ various, possibly overlapping, subsets of countries (‘Clubs’ or ‘Circles’)

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would form, according to the preferences of their respective citizens. The question is: which role, if any, would traditional integration methods have in such a situation? It seems clear that the Monnet method of integration by stealth would lack any justification. According to the argument of the preceding pages, the abandonment of this particular integrationist strategy would represent a net gain in legitimacy, intellectual honesty, effectiveness, and efficiency. The viability of the Community method in the context assumed here requires more careful analysis. The Commission’s monopoly of legislative and policy initiative would no longer be justified – or even needed. This monopoly would be replaced by a competition of policy ideas and proposals coming from the other European institutions (including of course the EP), and from individual member states, or subset groups of states. Institutions like the Commission and the Court of Justice would still be needed in order to make sure that the rules freely accepted by all are in fact implemented, and for this purpose the Commission’s loss of the monopoly of agenda-setting would have to be compensated by a strengthened power to veto decisions contrary to the common rules. In fact, such a development would signify a return to the primacy of negative integration, in the original spirit of the Treaty of Rome. The proliferation of Community programmes of doubtful effectiveness has been abetted by the mistaken idea of the superiority of ‘positive’ over ‘negative’ integration (Majone 2005). The distinction between these two approaches goes back to the earliest studies of regional economic integration. The Treaty of Rome itself did not attach any normative connotation to the distinction. The common market was to be achieved by both methods, but in fact by greater reliance on negative law – witness the significance of such Articles as 12–17 (elimination of customs duties); 30–7 (elimination of quantitative restrictions to intra- Community trade); 48–73 (free movement of persons, services, and capital); and 85–94 (rules against distortion of competition). More recently, however, positive integration has often been identified with positive values like social protection and the correction of market failures, and negative integration with deregulation and the narrow interests of traders. In fact, economic and other special interests may find it convenient to support measures of positive integration, while fundamental rights and the diffuse interests of consumers are often better protected by means of negative integration. While the actual outcomes of positive integration are uncertain because of their dependence on implementation by national bureaucracies, the results of negative integration are clear- cut and generally accepted by the affected member states. This was illustrated by the decision of the ECJ against a German law protecting Volkswagen against hostile takeovers – an impressive demonstration of the power of negative integration, and a significant legal victory for the Commission which, in an effort to get rid of the law,

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had taken the German government to court in October 2004. This victory follows the Microsoft decision to surrender in its nine-year battle with the Commission over its dominance of the software market. Microsoft agreed to apply the decision globally, thus acknowledging that the Commission’s reach as a competition regulator extends beyond Europe. Comparing these victories with the total failure of the port services directive and the partial failure of the directive on general services, we can see that negative integration still works – not always (as shown by the failure to enforce competition in energy markets), but at least in some important cases. Under a negative-integration regime, most regulatory responsibilities would be left to the people who are most directly affected by a given problem, and who have to bear the costs of regulation. The tasks of the European institutions would primarily consist in monitoring closely the behaviour of national regulators to make sure that they do not abuse their autonomy for protectionist purposes, or to violate rights guaranteed by European law. Where the functional requirements of the CU+, or of international trade, require some type of harmonisation, this could be achieved by a variety of methods: ex-post harmonisation produced by regulatory competition (mutual recognition); statutory regulations developed and implemented by networks of independent European agencies; greater reliance on international standards; self regulation. Centralised, top-down harmonisation would become an instrument of last resort. In conclusion, the Community method will also be needed in the future, but its scope should be largely restricted to negative integration. Such a restriction would reduce the democratic deficit, but also enhance the (Pareto as well as transaction- cost) efficiency of the system. To repeat an important, but often overlooked point: if citizen preferences, levels of economic development, environmental conditions, etc., vary significantly across jurisdictions, then harmonised rules cannot be efficient. Moreover, an extensive body of both theoretical and empirical literature comes to the conclusion that harmonisation, particularly of social standards, is not necessary for international trade to be ‘fair’ or undistorted (Bhagwati and Hudec 1996; recall also Breton’s assessment cited in section 1). Interestingly, this was also the position of the Treaty of Rome (and of the Spaak Report which preceded it), which did not mandate that social policies be harmonised prior to, or concurrently with, trade liberalisation (Sapir 1996). The assumption was that a rapid amelioration of living standards throughout the Community would bring about an ex-post harmonisation of social conditions, and this expectation has proved to be largely correct, at least in the old EC/EU. Two final points. First, market integration is not an absolute value, but (supposedly) a means of increasing the welfare of the citizens of the Union. In some policy areas market integration has been sacrificed to social concerns or to political expediency. As a result, laws on minimum wages,

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collective bargaining, hiring and firing, duration of the working week, flexible labour contracts, qualifications, and a host of other factors, continue to differ among the member states. But if market integration is not an absolute value, then it follows that the necessity of positive integration should not be assumed, but must be determined in each particular case. One suspects that in the past too many harmonisation claims were driven by a political agenda rather than by genuine concerns about the integrity of the Single Market. Second, according to Jean-Marie Guéhenno (1993: 79): ‘It is not the institutions that create a sense of belonging, but a sense of belonging which makes institutional constraints acceptable’. To have thought otherwise is the original sin of the ‘European saints’ (Milward 1992) who invented what came to be called the Community method.

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Part II

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The Community Method at Work

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3 Law-Making in the Shadow of Judicial Politics

Introduction1 This chapter analyses a neglected aspect of the Community method: the interaction between legislative and judicial politics. In the classic understanding of the Community method as described in the introduction to this volume, the Commission’s role as an independent initiator and the Court’s mandate to control compliance with EU law are conceptualised as separate stages of integration. The implicit assumption is that the status quo position in EU legislation is set by the member states, from the perspective of liberal intergovernmentalism (Moravcsik 1993), or by an existing piece of European legislation. Often however, the judicial politics of the ECJ defines the default condition of non-agreement. Law-making takes place in the shadow of judicial politics. If the Commission manages to combine the different elements of the Community method (initiation, guardian of the Treaty, and independent court) in this innovative way, the Community method can be considerably strengthened. Weiler showed long ago that judicial politics is an alternative to legislation in the European Union (Weiler 1981; 1991). But despite the fact that the Court of Justice of the European Union (consisting of the Court of Justice (ECJ), the General Court, and specialised tribunals), is widely acknowledged to be an important motor for European integration, the impact of judicial politics has not been sufficiently taken into account. This chapter systematises the different ways in which the shadow of judicial politics can be cast over European legislation, which is always embedded in the context of the Treaty. Depending on how the interpretation of European law develops, the legislative process can be pressured into responding. The European Commission may actively foster such pressure. But judicial politics also evolves in response to private litigation, leading to a situation in which codification is needed for legal certainty. The argument presented here is that the relative neglect of judicial politics stems from the difference between the rule of law at the national and at the supranational levels. In the multi-level European system, common law is

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developed in response to cases situated in very different national contexts, making it difficult to foresee the implications of case law. The impact of judicial decision-making is thus potentially bigger than in domestic legal systems, leading to significant concerns about the legitimacy of judicial politics. The chapter begins with a discussion of whether the Court of Justice may be described as an activist court and what distinguishes judicial politics at the supranational level from the domestic level. After showing how judicial politics can be brought into the legislative process of the EU, several types of judicial shadows on the legislative process are identified and their characteristics are analysed on the basis of small case studies. The conclusion then argues that the characteristics of supranational case law should inspire caution regarding the role of supranational courts.

How to cast a shadow For judicial politics to impact the policy-making of the institutional triangle of the Commission, the Council of Ministers and the European Parliament, at least two preconditions have to be met. First, there must be instances of judicial politics. This influence will only be felt if there is an activist court that interprets the Treaty and secondary law in such a way that it can be seen as case law, adding to the legislation of the institutional triangle. Second, actors must use judicial politics strategically to influence legislation. In order to analyse the different possible shadows of judicial politics in the latter part of this chapter it is necessary to ask how judicial politics enters the EU’s legislative process. An activist court? As Joseph Weiler showed in his seminal work (Weiler 1981; 1991), the 1960s and 1970s brought considerable integration through the ECJ. While the Council was deadlocked, leading to the impression of a period of ‘Eurosclerosis’, the ECJ considerably furthered integration through its landmark rulings. The Court constitutionalised the Treaty in the 1960s by establishing its supremacy and direct effects. Together with the system of preliminary references from national courts, it was possible to create an integrated legal system, allowing the ECJ an effective overview of the compatibility of member states’ domestic laws with the Treaty (Alter 2001; Burley and Mattli 1993). While the ‘path breaking’ (Alter and Meunier-Aitsahalia 1994) decisions of the ECJ did not attract much attention for a considerable period of time (Stein 1981), the Maastricht Treaty marked a turning point. Awareness of the significant advances in integration via the Court reached its peak when the member states tried to delimit the implications of the Barber ruling (C-262/88) of the ECJ through a protocol to the Maastricht Treaty. In this ruling, the ECJ had argued that Art. 119 of the Treaty of Rome

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(now Art. 157 of the Treaty on the Functioning of the European Union) also applied to the equal treatment of women under private pension schemes. This was a ruling with enormous financial implications, which the member states tried to lessen through an amendment to the Treaty, the so- called ‘Barber protocol’. In the literature, this move is interpreted as a clear sign to the ECJ that member states were not willing to accept an activist court. Subsequently, the Court was perceived as practicing judicial self-restraint (Dehousse 1998: 164f, 148–56; Garrett et al. 1998: 166, 168). How should the Court be appraised in light of this? If the heyday of judicial activism is over, impact at the national level may be slight. According to the rule of law, legislative politics is bound by judicial interpretation. Particularly in political systems characterised by a strong constitutional court, as is the case in Germany, it is very common that court rulings overshadow the legislative process (Hassemer 2008). To grasp the specificity of the interaction between judicial and legislative politics at the European level, it is therefore necessary to analyse the distinguishing characteristics of the rule of law at the supranational level. We will discuss several features that seem crucially relevant here: the openness of the underlying legal texts; the specifics of legal decision-making; and the near impossibility to politically overturn case law given the characteristics of the political system of the European Union. The fact that the Court could constitutionalise the Treaty through the doctrines of direct effect and supremacy already shows the relative openness of the underlying legal texts. However, legal scholars often speak of the indeterminacy of law (Stone Sweet 2004: 32, 34, 38) including at the national level. Treaty articles cover general topics with comparatively few sentences, implying that their precise implications are open – to a point. Goldstein and Martin argue that governments may not be able to enter into international obligations without the ‘veil of ignorance’ over the precise future consequences of international regimes, lest domestic lobby groups mobilise against them (Goldstein and Martin 2000: 606). Similar arguments of incomplete contracting are made for national constitutions (Stone Sweet 2000: 44). In contrast, European secondary law is much more detailed, but it is full of compromises requiring interpretation (Everling 2000: 221). The extent to which national heterogeneity is reflected in compromises between primary and secondary law is distinctive at the European level. The multi-level character of the political system means that legal texts, the exact meaning of which are often indeterminate to varying degrees, are applied to different national situations. Moreover, each time these texts are interpreted with a view to specific national conditions, the consequences for other member states may be uncertain (Joerges 2005: 20). Given the frequent indeterminacy of legal texts, the Court benefits from a certain amount of freedom when interpreting European law. Stone Sweet

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calls this the ‘zone of discretion’ (Stone Sweet 2004: 26). Different legal methods exist to apply law to specific cases. It is only by using these methods that the Court can avoid being seen as arbitrary – and hence political – which would undermine the acceptance of its judgments and its legitimacy as an institution. When interpreting the Treaty, for instance, the ECJ generally uses a teleological method, in that it refers to the telos or aim of European law oriented towards furthering integration (Pescatore 1983). Next to methods, it is important to stress that courts decide specific cases and that case law is focused on the dispute at hand. Judicial policy-making thus progresses in a piecemeal and case-specific way – specific questions are resolved but courts are not supposed to provide a more general policy line. This is why case law is fragmentary, incomplete and ultimately unstable. Thus, in responding to national rules, which may be similar but which most likely differ in some – possibly decisive – ways, case law is likely to be in constant evolution. Moreover, courts have to deliver judgments. This is a major difference from the Council and the European Parliament, which can opt for nondecisions in contentious cases. At the same time, courts are often asked to resolve issues that are too contentious to be decided politically. Courts cannot refuse to rule unless there is a ‘political question’ doctrine which allows them to do so, as is the case with federal courts in the United States (Scharpf 1965). Given that they normally rely on simple majority voting among judges, courts are also well-positioned to manage contentious decisions, compared to the legislative arena (Bellamy 2008). Even if consensus is generally preferred, the chambers of the ECJ, which count three, five or thirteen judges in the grand chamber, may decide with the simple majority of their members.2 What is problematic, as Maduro emphasises, is that the delegation of contentious problems to the courts need not imply that they enjoy the necessary legitimacy for their decisions (Maduro 2007: 824). Again, this dilemma is not unique to the Court of Justice. The problem is magnified however, by the multi-level character of the EU. A national court is much better placed to assess the implications of a highly political question. This is hardly possible for a supranational court. There is less media debate on pending judgments, and what debate there is reflects particular national viewpoints. In a heterogeneous union of 27 member states, it is virtually impossible to assess what a ruling means in each national context – not least for a court which only in rare cases sits as a full court, with a judge from each member state. Finally, the specifics of the European political system are key to understanding the role of the Court. If courts have to interpret indeterminate law, while being delegated politically contentious decisions, as mentioned, there is at least the possibility of overruling their judgments in the national political system (Scharpf 2009: 183). Should courts stray too far from the societal consensus, legislation or even the constitution can be changed, implying an

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institutional balance between political actors and the judiciary. As Scharpf (2009) argues, this possibility of reining in the courts through legislative action constitutes the ultimate input-legitimacy alternative to the outputlegitimacy of court judgments. At the supranational level however, such input legitimacy is hard to provide. As mentioned, member states may agree on protocols to Treaty amendments or they can threaten a veto at intergovernmental conferences to gain concessions from the Commission concerning its Treaty interpretation and infringement procedures. In the context of the Lisbon Treaty, Austria successfully bargained for a five-year moratorium in the conflict about German medical students studying in Austria, reserving 75% of medical student places for Austrian students.3 Before, Austria had tried to curb the influx of German students, but the ECJ had ruled that the principles of non- discrimination and free movement prohibited Austria from treating German students any different from Austrian ones (C 147/03, Commission v. Austria). Austria would thus be forced to pay for part of German medical training (Scharpf 2008). It is only with a new ruling in 2010 (C-73/08) that the conflict attenuated as the ECJ argued in a similar Belgian case that the protection of public health could justify quotas for EU medical students. Why is it so difficult at the supranational level to show courts the limits of what is politically acceptable? Principal-agent theory explains why agents’ discretion rises according to the number of principals with heterogeneous preferences (Hammond 1996; Tsebelis and Garrett 2001). Therefore, the more the EU grows and the more heterogeneous it becomes, the greater the discretion of the ECJ. However, the ECJ cannot just rely on the increasing heterogeneity of member states’ policy preferences. In addition, member states have an interest in the institutional balance of the European Union. Governments may even turn against judgments furthering their policy interests because they know that an overly powerful court may violate their own preferences in the future (Moravcsik 1995). Whether member states will follow their more homogeneous institutional interests or their more heterogeneous policy interests is difficult to foresee, but the fact that bold judgments further some member states’ policy interests that cannot be fulfilled in any other way, gives the Court significant protection. Garrett et al. (1998) have argued that in times of political opposition, the Court’s ability to rely on a well-established legal interpretation is decisive. They find that the Court backs down in the face of political opposition when its legal interpretation is not supported. However, in cases where there are clear precedents the Court will even uphold contentious decisions that are strongly opposed by the member states (Garrett et al. 1998). Given the indeterminate nature of law, the Court has to follow a clear line of precedent in order to shield itself from the reproach of political judgments. This

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has led Stone Sweet to argue that case law is heavily path-dependent (Stone Sweet 2004: 35f). Garrett et al. (1998) thus assume that the Court is responsive to the political context from which it derives its ultimate political legitimacy. However, the more heterogeneous this context becomes, the more diffuse the signals will be. It is difficult for member states to alter the underlying law, even if they agree that the Court has violated the original political compromise with its interpretation. They either have to reach a unanimous decision on this point at an intergovernmental conference, or in the case of secondary law, obtain a qualified majority of over 70% of weighted votes – resembling the threshold for constitutional amendments at the national level. In addition, they are dependent on the Commission’s support to revise directives or regulations, since it has a monopoly on legislative initiative. Given the development of case law, legislative politics in the EU takes place on the basis of a changing default condition. To what extent member states still enjoy the autonomy of regulating their society and economy ultimately depends on whether, and how, the Court applies the Treaty to the national situation if asked. Thus, when negotiating on European secondary law, member states can only partly choose between Europeanising a policy or leaving it under national legislative prerogative. Often, the choice is rather between Europeanising a policy politically through decision-making in the Council and the European Parliament, or leaving it to the case law and interpretation of the Treaty through the ECJ.4 Although judicial politics matter, much depends on whether member states expect the ECJ to further their preferred policy, or whether they rely on compromise in the Council to realise their preferences. If the Court defines the default condition of decision-making in the Council through judicial politics, member states find themselves in a very different bargaining position than if this is not the case. In order to analyse this interaction between judicial and legislative politics further we will look at how judicial politics enters EU legislative bargaining. Bringing judicial politics into the EU’s legislative process Judicial politics can become relevant to the legislative process either in a proactive or a reactive way. A proactive connection exists if the Court is called upon to intervene parallel to or in advance of legislative initiatives, in order to strategically influence the default condition. A reactive linkage results when the development of case law parallel to legislation occurs unintentionally or when the Commission, member states or the European Parliament react to case law, codifying, amending or specifying it in certain ways. Judicial politics requires cases to be brought before the Court, which cannot act on its own motion. There are three main avenues for initiating case law. First, the Commission, as the guardian of the Treaty, can

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initiate infringement proceedings (Art. 258) whenever national law conflicts with European law. If the government concerned does not respond to the requests, a Court ruling follows.5 However, implementation litigation does not necessarily involve legislative measures. With the direct effect and supremacy of Community law, national rules can become obsolete in light of the Treaty. Second, the administrative powers of the Commission under EU competition law can strengthen the possible direct subordination of national regulations to EU law (Wilks 2010). National governments only have limited formal opportunities to influence the way the Commission handles its competition law powers, given that at the most they simply participate in advisory committees. Articles 101 and 102 prohibit cartels and the abuse of dominant positions by private actors. Articles 106 to 109 restrict the possibility of member states granting special rights or state aid to firms. With regard to the control of state aid, the Commission reports only biannually to representatives of member states (Blauberger 2009). With these rights, the Commission has the potential to seriously interfere with those parts of the national economy that are not predominantly governed by market principles. Unlike national competition law, there are few exemptions (Scharpf 2002). Moreover, EU competition law is interpreted very broadly. National restrictions almost always hamper the potential economic activity of other European nationals, making European law applicable. When exercising these rights, the Commission ultimately relies on the support of the Court of Justice or the General Court, which is responsible for direct actions against Community decisions. If the European Courts do not back the Commission’s interpretation of the reach of Union Law, the Commission cannot use these powers. A court that adopts a very cautious line (i.e. protecting the national sovereignty of member states) will not give the Commission much opportunity to use judicial politics as a lever. With such a court, integration will rely heavily on the legislative process and member states in the Council will feel little pressure through case law. However, a court that is more proactive in interpreting the Treaty and secondary law is a greater asset for the Commission. The Commission is therefore dependent on the ECJ. Moreover, it is not only the Commission that can initiate proceedings in the Court. Preliminary references from national courts are another important source of judicial activity in the EU. Private actors may complain to the Commission or start proceedings in domestic courts, and ask them to refer the case to Luxembourg if they deem that their rights under European law are being violated (Weiler 1994). That private actors can enforce European law implies that member states cannot gain much by putting the Commission under pressure not to initiate certain proceedings. There is always the possibility that a similar question

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will reach the Court at the initiative of a private actor, via the national legal system. Of these three possibilities – infringement proceedings, administrative decisions, and private enforcement – the first is the most decisive means for the interaction of legislative and judicial politics. This is due to the fact that the Commission can combine its agenda-setting with infringement procedures. Private actors, of course, may also pursue strategic goals by going to court (Conant 2002). However, for the legislative process to interact with case law, it is necessary for the Commission to step in.

Shadows of different shapes Judicial politics can influence EU legislation in several ways. At times, the Commission can actively use its powers to put pressure on the legislative process. A reactive role for the Commission is probably more common however: building legislative initiatives on the Court’s existing case law, seeking its codification. The recent examples of health services and sports legislation are discussed here. Finally, even when the Commission does not explicity aim to change the Court’s case law, the latter is an important factor in legislation as the services directive shows. There will be no further discussion here of cases where judicial politics fully replaces legislation, so that the Commission subsequently withdraws proposals (Pescatore 1983: 568). Pressuring the legislative process: Strategies of the Commission Given its executive capacities in competition law and its role as a guardian of the Treaty, the Commission does not have to wait passively for judicial politics but may actively foster case law in policy fields where it is interested in passing legislation. It can choose to pursue two main strategies (Schmidt 2000). The Commission may either aim for case law parallel to the legislative process, in the hope that member states will be eager to avoid judicial politics – a strategy that may be termed the ‘lesser evil’. Alternatively, the Commission may try to break down opposition in the Council by pushing for domestic changes in some of the member states using its executive means. This strategy is that of ‘divide-and- conquer’. An offer not to be refused: The strategy of the lesser evil

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The Commission can ensure the adoption of its proposals in the Council by threatening national governments with the use of its various powers. Agreement in the Council is thus a ‘lesser evil’, enabling governments to avoid a looming worst case scenario. Electricity liberalisation in the 1990s (directive 96/92/EC) may serve as an example of this (Schmidt 1998: 183–272). Despite the formal qualified majority rule, this case was one of de facto unanimity. France was firmly

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opposed to liberalisation and could not easily be outvoted, being the largest electricity exporter. In light of the deadlock, the Commission brought infringement proceedings before the Court in 1994, arguing that the import and export monopolies of five member states, including France, had to be abolished because of market freedoms (Slot 1994: 525). The threat resulting from these proceedings was not so much the effect of direct liberalisation but the danger that electricity monopolies as a whole could become subject to European competition law and market freedoms. Because the Court would rule on certain aspects of the existing electricity monopolies, the legality of established orders would be called into question. Given the long-term investments in the sector, this was highly undesirable. In addition, the Council could hardly overrule the Court’s verdict as a Treaty revision needs unanimous support, as we have seen. By credibly threatening litigation, the Commission could transform the previously rejected option of a common European policy into a second-best solution after the non- defendable status quo option. Thus, France began cooperating in the Council, leading to an agreement in 1996, just before the Court ruling set out the Treaty obligations of member states. Neither the Commission nor the national governments can predict the Court’s rulings on the scope of European law however. Thus, in its ruling on the import and export monopolies for gas and electricity of 23 October 1997, the Court sided with the member states against the Commission.6 Had the governments foreseen the caution of the ECJ, France would probably have only agreed to a less liberal regime. The Commission can only submit a proposal as a ‘lesser evil’ if it manages to change the default condition of the member states (or to present it as if it were changed) in such a way that the adoption of its proposal seems preferable. Since national governments can only alter the default condition (i.e. the Treaty base) unanimously, a minority of governments, or even a single one, can determine future policy in this case, just as the joint-decision trap predicts (Scharpf 1988). Several important policy decisions described in the literature can be understood as following the ‘lesser evil’ rationale, such as merger control, road haulage, or air-transport liberalisation (Schmidt 2004). Divide-and- conquer When using the ‘lesser evil’ strategy, the Commission alters the default condition of negotiations in the Council. Alternatively, the Commission can strengthen the chances of seeing its proposal adopted by forcing some member states to alter their domestic policies by using its competition law or infringement powers. This will change the ideal point of the member states concerned, and consequently they will be likely to back the Commission’s proposals. Once forced to reform, there is no reason not to support the Commission’s drive for general European legislation.

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The liberalisation of ground-handling in airports is a good example of this strategy. A large number of member states initially opposed liberalisation in this area, so there was a blocking minority against the Commission’s proposal. By using its competition law powers, the Commission initiated reforms in several member states. Following their domestic reforms, these countries no longer had a reason to object and the Council adopted the proposal (Schmidt 1998: 286–92). For the ‘divide-and- conquer’ strategy to succeed, the Commission must be able to not only provoke domestic reforms but to also win additional support in the Council. The difference between these two strategies lies in the fact that the ‘divideand- conquer’ approach is based on two phases of domestic reforms and subsequent Council negotiations respectively. The ‘lesser evil’ strategy, on the other hand, assumes that member states will react to a threat (an unplanned liberalisation through judicial politics), with the changed default condition making the adoption of the Commission’s proposal preferable. There are several examples of situations in which the Commission has used its executive powers under European competition law as a lever to change the policy position of different member states, in the context of European liberalisation policies in particular. Thatcher (2007) gives the example of coupling the clearance of state aid with the liberalisation or privatisation of Italian telecommunications policy, as well as the approval of international mergers of electricity providers and air-transport liberalisation (Thatcher 2007: 193, 216, 231). It would be necessary to closely follow the details of each instance, in order to understand how the pressure of the Commission on specific member states translates into support for legislative proposals in the Council.7 Games of chance are another example of this. Originally, the Commission wanted to include these games in the services directive after a 10-year transitional period. Both the EP and national sports ministers opposed this however, so they were excluded from the final directive. There have also been several Court rulings on gambling monopolies, mainly based on the freedom of services (see for example cases C-338/04, C-359/04 and C-360/04, Placanica). In April 2006, the Commission started infringement proceedings against seven member states (Denmark, Finland, Germany, Hungary, Italy, the Netherlands and Sweden) investigating restrictions on sports betting.8 Austria and France were added to the list in October 2006. The proceedings against Germany, Sweden, Greece and the Netherlands continued into early 2008.9 Preliminary proceedings (e.g. C-316/07, pending) are also adding pressure. In May 2010 Italy removed barriers to online gambling under pressure from the Commission.10 It is very likely that the different court cases and the legal uncertainty that they generate will eventually facilitate the adoption of a legislative proposal, which would have had little hope of success with no prior judicial politics. The discussions on electricity (and gas) liberalisation through the third liberalisation package, amending Directive 2003/54/EC, provide another

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recent example. As the incumbent network operators had been reluctant to open their networks to competitors, the Commission tabled plans for ‘ownership unbundling’, forcing operators to sell their networks. These plans were very contentious among member state governments, and Germany in particular lobbied fiercely against them. It tried to build a veto coalition in the Council with France, with support from Austria, Bulgaria, Greece, Luxembourg, Latvia and Slovakia, all proposing an alternative policy solution.11 In this situation the Commission managed to make a deal with Eon, the biggest German electricity supplier, committing Eon to sell its highvoltage electricity transmission network in exchange for dropping the cartel charges of abuse of dominant position though cross-subsidisation as well as exorbitant retail prices.12 The deal was a clear but unsuccessful attempt to undermine the strategy of the German government to build a veto coalition pushing for an alternative solution.13 Executive decisions of the Commission can thus have a significant impact on legislative politics. They should be subsumed under judicial politics since ultimately they can be upheld only if the Court of Justice shares the legal interpretation of the Commission. On the other hand, far-reaching interpretations of the Commission’s powers under European competition law would not be credible for private and public actors, should the Court practice judicial self-restraint. A legislative reaction to judicial politics A significant amount of case law develops without Commission influence, since preliminary references from national courts are as relevant as infringement proceedings initiated by the Commission. Those cases can, however, offer the Commission a ‘window of opportunity’ (Kingdon 1984) to initiate legislation in a policy field that was previously unregulated at the European level. Health services are a good example of such an instance, where internal market reasoning has become important through case law (Greer 2006; Martinsen and Vrangbaek 2008) making the adoption of legislation more likely in spite of member state opposition. Health services were originally included in the services directive, but removed due to opposition. A legislative proposal regulating the access to cross-border health care is in the making. The connection to judicial politics was very obvious in the parliamentary hearing of Ms. Androulla Vassiliou, Health Commissioner from 2008 to 2010. One of the questions posed was ‘How are you planning to proceed with a proposal on cross-border health care in order to codify the rulings of Court of Justice on patient mobility into acquis communautaire?’14 In the discussion, it was emphasised that ‘the proposal was needed soon to avoid policy being decided by the Court of Justice and lawyers rather than politicians’.15 The ECJ has applied the freedom of services principle to the highly regulated health sectors of member states in a series of judgments since the late

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1990s (Sauter 2009). This sector is particularly interesting because unlike many other instances of the ‘Eurolaw game’ (Rawlings 1993) (such as lotteries where large companies seek regulatory reform via the Court), in health politics individual complaints have resulted in judicial politics.16 In various rulings, the ECJ has established that patients have to be reimbursed for ambulatory treatment in other member states, at least up to the cost of the respective domestic service. For stationary services, with the exception of emergency treatment, an ex ante approval may be required. Member states cannot, however, simply refuse to reimburse hospital costs incurred in other member states (C- 444/05 Stamatelaki v. NPDD). A similar example, although of less political salience, is sports policy. If sports initially seemed outside the scope of the Treaty, the 1995 Bosman case (C- 415/93) led the ECJ to bring sports into internal market law by applying the free movement of workers to the transfer system in professional football. Several cases based on free movement and then on competition law followed (Barani 2005; Rincón 2007). As a consequence of judicial politics, moves for legislation in this area have become stronger. Compared to the evolving case law, legislation would provide more legal certainty for all (economic) actors involved. In 2008, the parliamentary committee for sports and culture thus stated: ‘As for providing more legal clarity on the application of European law to sports, the MEPs ask the Commission to draft clear guidelines on the application of Community competition and internal market law to sport’.17 In the meantime, the Commission’s attention seems to have focused less on the internal market, but more on the issues related to the new sports competence of Art. 165 of the Lisbon Treaty. Relying on the Court’s case law: The example of the services directive The interaction between legislative and judicial politics is a matter of degrees of intensity. At times, there is a strategic intentionality to exploit developments on one plane to achieve results on the other; in other cases there appears to be a continuum: legislative initiatives clearly build on earlier rulings, or incipient change in case law is taken up by the Commission. The services directive will be discussed here as an example of how the changing case law of the Court impacts legislation in a much more indirect way. If important elements of judicial policy-making in contentious cases such as the services directive can be tracked, they will shed light on its relevance. Secondary law for the single market is based on the four freedoms (goods, services, capital, and persons). The interaction between judicial and legislative policy-making has been fundamental in this context ever since the Cassis- de-Dijon judgment. Prior to Cassis, member states could rely on their host- country rules as long as there was no European harmonisation, so that in Council negotiations the choice was between the national status quo and a European rule. Since Cassis however, there is now the presumption that

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the single market already exists and that member states mutually recognise each others’ rules. The negotiating position of actors in legislative politics varies considerably depending on whether market freedoms are interpreted broadly (in the sense of a general obligation of mutual recognition) or more narrowly (allowing many exceptions for member states). Member states are in a weak position if mutual recognition receives a strong backing. If the Court allows many exceptions, their bargaining position is much stronger. This makes it necessary to begin our analysis of the services directive by looking at the Court’s case law in this area. Traditionally, the ECJ has interpreted the freedom to provide services much more restrictively than the free movement of goods (Davies 2007: 14; Roth 2002: 20). The Treaty (Art. 57) explicitly limits the freedom of services to activities pursued ‘temporarily’, ‘under the same conditions as are imposed by that State on its own nationals.’ The ECJ has followed a rather restrictive line on services even though it had already argued in Van Binsbergen (C-33/74), (before the Cassis ruling), that a limited mutual recognition of rules was necessary so that requirements on temporary activities were not prohibitive. A good example is the case law on the posting of workers. In Rush Portuguesa (C-113/89), the Court allowed France to subject workers posted under the services freedom to its minimum wage. This ruling led to the posted workers directive (96/71/EG). Recently however, the Court has emphasised the need to facilitate trans-border trade in services. Thus, in the 2003 Schnitzer case (C-215/01) the Court no longer stressed the temporary nature of services. In another ruling, the ECJ argued that ‘all services that are not offered on a stable and continuous basis from an established professional base in the Member State of destination constitute provision of services within the meaning of Article 49 EC’ (Hatzopoulos and Do 2006: 929, emphasis in original). This seems to imply that services may be offered either through an establishment, following the rules of the home country, or on a permanent basis from another member state, using the freedom of services principle. The ECJ has formally argued that permanent cross-border services need to obey the rules of the host country; now it seems to be changing this interpretation. Moreover, the number of court cases regarding the freedom of services has grown (Hatzopoulos and Do 2006: 923). It is against this background of a slowly changing interpretation of the freedom of services that the Commission launched its proposal for a services directive in early 2004. While services had been part of the original 1992 programme, their intra-EU trade was far behind their domestic economic relevance. The single-market programme only produced certain sector-specific directives, for financial services in particular. Given the restrictive case law of the Court, mutual recognition could not be taken as a basis for building

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the single market. Since sector-specific directives had proven so cumbersome, the draft services directive aimed to realise the single services market in all areas where specific legislative measures had not yet been taken. Thus, the Commission began by targeting roughly 50% of all economic activities of member states.18 The draft directive required member states to mutually recognise services regulated in other member states as equivalent to those regulated domestically. The possibility of imposing host- country rules (granted by the Court until this pint) was to be abolished, as were all excessive national regulatory requirements. Given the highly regulated nature of most services, the deregulatory potential of the directive was considerable – as was the protest that ensued – and subsequently led to the failure of the Constitutional Treaty in France and the Netherlands. Taking the Court rulings on the freedom of services as a starting point, the proposal was a significant radicalisation (De Witte 2007: 9f) of the incipient changes in the Court’s case law. This is similar to the strategy followed by the Commission after the Cassis judgment, in the run-up to the 1992 initiative (Alter and Meunier-Aitsahalia 1994). Given the extent of the protest, a compromise (Directive 2006/123/EC) could only be reached between the Social Democrats and the Christian Democrats in the European Parliament by abolishing the home-country rule (Nicolaïdis and Schmidt 2007). However, the principle returned through the back door, with a list of measures which member states may not require from service providers (e.g. ex ante certification). Moreover, the list of justifications for host-country requirements in Art. 16 III is much narrower than the ones the ECJ accepted, implying a ‘deregulatory shift’ (Davies 2007: 12, 18; de Witte 2007: 12). In this respect, it seems that some parts of the initially very liberal approach by the Commission survived intact, assisted by the enormous complexity of this directive. However, other legal commentators see the directive as a retreat behind the case law of the ECJ (Editorial Comments 2006). This raises the interesting question of how the Commission will react in the future, when the degree of integration offered by the case law of the Court seems more far-reaching than the possible results from the legislative process. The experience of the services directive may lead the Commission to refrain from codifying this acquis communautaire, which is based on case law. The legislative process for health services that was discussed above is also interesting in this respect. The debate surrounding the services directive and its influence on the failure of the Constitutional Treaty may be seen as a sign that integration through judicial politics is reaching the limits of legitimacy.

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56 Susanne K. Schmidt

Conclusion While the European Union can be analysed with the instruments used for other political systems, it has specific features not present at the national level. Among these is notably the greater independence of a supranational

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judiciary, implying that judicial politics partly become an alternative to legislative politics and thus need to be included in the analyses of the latter as the default condition. Given the limited mandate of the Court, this requirement does not apply to all policy-making in the Council, but mostly to single-market issues in the first pillar. As rulings of the European courts can come about at the initiative of the Commission or that of private actors, member states cannot control judicial politics. While the Court cannot rule arbitrarily and has to be sensitive to its own legitimacy, its leeway increases with the number of member states with heterogeneous preferences. Ever since the seminal works of Weiler on the ‘dual character of supranationality’ (Weiler 1981; 1991), we have known that European integration does not always depend on the Council, but may proceed even if negotiations with member states are deadlocked. But compared to EU legislation, not much attention is paid to the activities of the Court, either in public opinion, or in political science. This may explain why the strengthening of the Community method by the innovative coupling of its different stages of initiation and monitoring of compliance, has not received more attention. That both judicial and legislative policy-making developments can interact is due to the central role of the Commission. There are different ways for judicial politics to become important for legislation. The Commission can attempt to use its means of fostering judicial politics proactively as a lever on the Council’s decision-making. The liberalisation of formerly highly regulated sectors, like utilities or transport, have been discussed here in this respect. However, only part of the case law can be attributed to strategic action by the Commission. Much depends on individual litigation, where private actors use the preliminary procedure to enforce rights developed under European law. This evolving case law can result in the need for codification – as is currently the case with health services and sports. Moreover, when changes in the case law entail an incipient shift of competence towards the European level, as was the case with the services freedom, this is likely to impact legislation. In the negotiations on the services directive, the case law of the Court was the default condition, implying that actors interested in legislation had to assess the outcome of negotiations against the possible alternative realisation of their interests through judicial politics. Furthermore, the conflict surrounding the services directive shows how integration via judicial fiat increasingly violates what the population perceives as legitimate. Why is such an important feature of the EU polity relatively neglected? Unlike in the US, European political science does not pay much attention to courts (Bellamy 2008). While there is a bourgeoning literature on legislative EU policy-making (Hörl et al. 2005), there is nothing comparable on judicial politics. European legal scholars however, do observe the case law of the ECJ closely. Unlike political scientists, they are less interested in the conditions

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of legislative decision-making. Consequently, the fact that the Court can hardly be overruled is of less concern to them. The dominant view is that legislative bodies must be able to direct and ultimately legitimate the Court. The concern of legal scholars is therefore centred on those rulings where member states do not even have the possibility to counterbalance case law with legislation. Hence for instance their interest for the Laval (C-341/05), Viking (C- 438/05) and Rüffert (C-346/06) cases, which seriously constrain the ability of national unions to enforce existing collective agreements or to strike to obtain new ones. As labour relations are a purely domestic affair with no provision for EU competence, the governments of member states are entirely powerless to alter the case law retrospectively through legislation (Joerges and Rödl 2008) – even if they were able to overcome the jointdecision trap analysed by political scientists (Scharpf 1988). Finally, the development of judicial politics in the EU should lead us to caution regarding international courts. While they are predominantly discussed with a view to their power in curbing anarchy (Zangl 2006), the threat that they pose to democratic self- determination should not be forgotten.

Notes 1. I would like to thank the participants at the Connex Workshop Paris in November 2007, and particularly Renaud Dehousse, for their comments on this paper. A related German paper benefited from discussions at the Max Planck Institute for the Study of Societies in Cologne and the ZERP at Bremen University in late 2007/ early 2008. Moreover, I would like to thank Hanno Degner and Moritz Günnel for research assistance. The paper partly draws on research for the project A6 of the CRC 597 ‘Transformations of the State’, funded by the German Research Foundation, which is gratefully acknowledged. It was finalised in May 2008 and slightly updated in August 2010. 2. Art. 27 § 5 of the Rules of Procedure of the Court of Justice. See http://curia. europa.eu/jcms/upload/docs/application/pdf/2010- 04/rp.en.pdf [24 August 2010]. 3. http://www.spiegel.de/unispiegel/studium/0,1518,512303,00.html [24 August 2010]. 4. The reasoning for the European Parliament is different as it is faced with the choice of co- determining a European policy, having a European policy through the Court, or being faced with national prerogative. Most likely, it will rank its preferences in this order. 5. The Commission is not alone in its ability to enforce European law. Similarly, national governments may intervene (Article 259), but traditionally this has been of little relevance as governments hardly ever patrol each other. 6. Judgment of 23 October 1997, C-157/94, C-158/94, C-159/94 and C-160/94. 7. Rawlings shows how the litigation strategy of large stores in the late 1980s led to a changed domestic legislation of shop- opening hours in the UK (Rawlings 1993). 8. htt p://w w w.eurac tiv.com/en/spor ts/commission- investigates- nationalrestrictions-sports-betting/article-154029 [24 August 2010] Press release of the European Commission IP/06/436 http://europa.eu/rapid/searchAction.do [24 August 2010].

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9. Press releases of the European Commission IP/08/118, 119 and 330 http://europa. eu/rapid/searchAction.do [24 August 2010]. 10. http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/504&format=HT ML&aged=0&language=EN&guiLanguage=en [24 August 2010]. 11. http://www.euractiv.com/ndbtext/press/3rdoptionletter.pdf [24 August 2010]. 12. FT 28 February 2008, FAZ 29 February 2008. 13. FAZ 1 March 2008. Pollack and Slominsky 2011. 14. European Parliament Hearings. Answers to questionnaire for Commissioner Ms. Androulla Vassiliou. http://www.europarl.europa.eu/hearings/commission/2008/ questionnaires/specific_en.pdf [24 August 2010]. 15. Press release 1 April 2008, Committee on the Environment, Public Health and Food Safety. http://www.europarl.europa.eu/news/expert/infopress_page/ 064-25293- 092- 04-14-911-20080331IPR25292- 01- 04-2008-2008-false/default_ en.htm [24 August 2010]. 16. In addition, the Commission now pursues infringements, which may have a divide-and- conquer character. IP/07/1515; IP/08/1517; IP/09/1474; IP/09/1763; IP/10/505 [24 August 2010]. 17. MEPS adopted a report on future of EU sport policy, 3 April 2008. http://www. euractiv.com/en/sports/meps-adopt-report-future- eu-sport-policy/article-171228 [26 August 2010]. 18. See the report of the European industrial relations observatory: http://www. eurofound.europa.eu/eiro/2004/07/feature/eu0407206f.html [25 August 2010].

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4 The European Parliament and the Community Method

Over 50 years after it was introduced, the Community method is still proving its efficiency – at least from an operational viewpoint. Despite all the crises and transformations which have affected the European Union for the last 15 years (multiple treaty reforms, problems with ratification, failure of the Constitutional Treaty, etc.), the Community method remains Europe’s driving force – the algorithm which allows policies to be formulated and managed, even in a deteriorating political environment. The basic elements comprising this method are well-known: the transfer of legislative powers to a supranational organisation; the existence of a supranational executive body independent of the member states and responsible for safeguarding Community interests; the option of adopting certain standards without having to resort to unanimity; and the creation of a supranational law and a judicial body in charge of its enforcement. In some ways, legal authority has taken the place of political authority, the affirmation of which, on a supranational scale, was not initially conceivable and is still highly problematic. In concrete terms, since the 1950s, decision-making has relied on the ability of European institutions to reach a compromise between a supranational perception of the general interest, the member state representatives’ viewpoints and those of the populations to whom the standards would apply. In other words, the Community method is the art of adjusting the viewpoints of three different types of supranational elites: the members of the most integrated institutions (European Commission, European Parliament), those of the intergovernmental institutions (Council, European Council) and those of the diverse organisations revolving around the first two (interest groups, NGOs and civil society organisations). This architecture has proved its stability and has never seriously been called into question, despite the multiple reforms of the Union’s institutional framework. The principal evolution of the Community method concerns the gradual and persistent strengthening of the European Parliament (EP), which has compelled the Commission and Council to

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consider the views of its members. From an essentialist point of view, one could argue that the Community method no longer exists; it has been distorted by the growing influence of the EP, which tends to over-politicise the debate and shield it from the Founding Fathers’ rationality and expertise requirements. From a more practical perspective, however, there is little doubt that the Community method has evolved and that it represents today, as it did formerly, the most integrated form of the European decision-making process (as opposed to the intergovernmental method and to the ‘Open Method of Coordination’), regardless of the actors involved and of their respective powers. This chapter will develop this second perspective. Its aim is not to explain why the Community method has changed or offer an explanation of the EP’s increased influence, but to describe this change and assess its impact on the functioning of the Union.

The Community Method’s irresistible ‘parliamentarisation’ It is worth noting that all of the difficulties encountered by European integration have benefited the EP. Such was the case, initially, with the Community’s legitimacy crisis, which led to an increase in the EP’s influence and to an acknowledgement of its members’ ambitions to exercise more powers. In a way, the Community method’s ‘parliamentarisation’ was designed to be a means of safeguarding the latter against such alternatives as the renationalisation of European policies or the dismantling of the European Commission. Indeed, the bolstering of the EP’s powers satisfied both public opinion – which is very attached to the principles of representative democracy – and some of the most reticent member states about European integration, who perceived it as a way to limit the European Commission’s powers and autonomy. The EP has also benefited from civil society’s growing desire to participate in the Union’s policy-making. As the people’s elected representatives, the members of the EP have played an active role in the fierce debate between European institutions over whether or not to enter into dialogue with European civil society organisations. Lastly, the EP is the institution which has most successfully weathered the impact of the European Union’s successive enlargements. The Commission has become a sprawling institution in which conflicting competencies are proliferating and collegiality has declined. The Council is increasingly ailing from the requirement of unanimity – the full elimination of which is no longer on the agenda – and from very complex qualified majority voting rules, such as those defined by the Treaty of Nice. Conversely, the Union’s enlargement is paradoxically increasing EP cohesion. Europe’s broad range of political cultures, centres of interest, preferences, and viewpoints has expanded within the EP (as it has in other institutions); however, the increasing number of member states tends to

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further diminish the national factor in the Assembly’s deliberations. In fact, national delegations are becoming too small to ever hope to carry any weight in decision-making, and most of the national parties have abandoned their ambition to control the EP operations through this method. In addition, the main parliamentary groups have so skilfully anticipated the accession of Central and Eastern European countries that the new member state MEPs have massively joined the Assembly’s key political groups, rather than swell the ranks of the Eurosceptic groups, as some Union officials feared. Even if this has never been clearly stated, all discussions undertaken on the future of the Union have relied on two somewhat contradictory ideas. The first is that the institutional acquis communautaire must be consolidated and rationalised without being radically challenged. The system’s adaptations proposed over the last 50 years in countless reports, commissions and negotiating bodies, all agree that the Community method’s effectiveness must not be impaired and the search for greater efficiency or democracy must be marginally pursued. The debates of the last decade have not departed from this rule. The second idea common to all deliberations on the future of the Union’s institutional architecture is a reference, most often implicit, to the parliamentary model features shared by member states. Whenever it is envisaged to expand the political scope of the integration process, or to reduce the democratic deficit affecting it, institutional changes are explored which tend to make the Union’s regime more closely resemble a parliamentary regime – even when other solutions might be considered (Dehousse 1995). Since 1957, we have therefore been witnessing an ongoing parliamentarisation of the European Community/Union regime – and therefore of the Community method – which has taken the form of four main changes. The first specifically concerns the EP, which has adopted all the characteristic attributes of national parliaments: name, financial independence, physical and administrative internal structure, election method, members’ immunity and privileges, etc. (Costa 2001). Progress has continued in the same vein with the formulation of a Statute for Members of the EP, the creation of European parties and the partial unification of the European election procedure. The EP’s partisan structuring is also being ‘standardised’. Even if numerous constraints may account for the persistently frequent recourse to agreements between left- and right- centre groups in the EP, and if the Union’s institutional structure makes it impossible to apprehend EP relations with the Commission from a partisan perspective, the cleavage between the Left and Right is intensifying (Kreppel 2002) at least on the occasion of rollcall voting.1 The magnitude of this cleavage and, more importantly, how much weight it should be given, are both subjects of heated scientific debate (Hix et al. 2007). The main point of contention concerns whether or not the

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partisan cleavage can help the Union develop a better regulated structure, or if that is impossible or inadvisable. Second, the Communities’ ‘parliamentarisation’ has translated into a change in the normative system. Initially, in the 1970s, the EP was endowed with a substantial, though partial, budgetary power. This development occurred as part of an openly parliamentary approach based on the traditional link between taxation and representation. The EP’s legislative and foreign policy powers were also expanded, though more gradually, at first as practices evolved and inter-institutional agreements were signed, and later as new treaties were adopted. The MEPs’ ability to amend the Commission’s proposals and to establish a balance of power with the Council has improved, inasmuch as new decision-making procedures have been introduced and their scope enlarged. Now, the ordinary legislative procedure is based on ‘egalitarian’ codecision, which vests the EP and the Council with symmetrical powers. The Lisbon Treaty incorporates the main provisions of the Constitutional Treaty and marks a new stage in reinforcing the EP’s role. It expands the latter’s legislative and budgetary powers and, most importantly, for the first time explicitly recognises the transversal and general nature of its competence. Whereas Article 189 of the EC Treaty provided that the EP shall ‘exercise the powers conferred upon it by this Treaty,’ thus referring to a list of legislative, budgetary, monitoring and nominating powers, Article 14.1 of the Treaty on European Union (revised by the Treaty of Lisbon) provides that the EP ‘... shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.’ The EP is still not formally recognised as a sovereign assembly, but the transversal character of its powers, as well as the fact that it serves as a benchmark of representative democracy, suggest it. Third, the EU’s road to parliamentarisation is based on the emergence of an inter-institutional cooperation framework. The functioning of the Community/Union has long been characterised by the extensive independence of its three main institutions. Circumstances have evolved in such a way as to favour the introduction of the codecision procedure by the Treaty of Maastricht. At first, the Council refused to enter into direct dialogue with the EP, whether informally or within the ‘Conciliation Committee’ provided for by the codecision procedure. In retaliation, the MEPs chose to reject a draft directive in the third reading as soon as the new procedure entered into effect. This coup forced the Council to enter into an actual interinstitutional dialogue and to make the ‘Conciliation Committee’ a place for ongoing negotiations between the two branches of legislative authority. Other initiatives – such as the ‘better regulation strategy’ launched during the Lisbon Summit (2000) to simplify law-making in the EU – have also

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improved inter-institutional relations. A constructive dialogue also exists in budgetary matters. To avoid the deadlocks that marked the early 1980s, some inter-institutional agreements stipulated the terms for budget formulation and provided for expenditures to be projected on a pluri- annual basis. The fact that this inter-institutional dialogue exists is a key element of the EU’s parliamentarisation process. The political history of France and Great Britain reveals that parliamentarism originated from the emergence of an informal dialogue between the executive and legislative branches. In the EU, this dialogue intensified in preparation for the inclusion of Central and Eastern European countries. The threat of an institutional deadlock as a result of the 12 new members, induced Council leaders to advocate a ‘trialogue’ on legislative matters with the EP and the Commission – a topic which we will address below. The last change which lends credence to the parliamentarisation theory is the affirmation of the Commission’s governmental nature. As early as 1951, the High Authority could be compared in some respects to a government: it was responsible to the Assembly, carried out certain governmental duties (e.g. implementing standards and the budget; legislative initiatives) and its administrative organisation was similar to that of a government. The institutional practice and successive revisions of the EC Treaty reinforced the relevance of this parallel by modifying the nature of the relations between the EP and the Commission. Today, there is a ‘double investiture’ procedure of the latter by the former, the connotation of which is all the more parliamentarist given that the two institutions’ mandates have coincided since 1994. The Lisbon Treaty pushes the parliamentarisation envelope even further by incorporating the Constitutional Treaty’s provisions which provide that the European Council must take into account the results of the European Parliament’s elections in selecting a candidate to assume the post of Commission president, and that this candidate will henceforth be ‘elected’ by the EP – which actually changes nothing. Beyond these factual elements, a more diffuse parliamentarisation process can be noted since the Treaty of Maastricht, in the affirmation of the ‘political’ nature of European integration. The bolstering of parliamentary logic within the Union, which could once be interpreted as the outcome of merely applying parliamentary regime-inspired decision-making procedures to an original integration system, can no longer be so construed. This evolution should be perceived not as the product of some sort of mimetism phenomena or as ‘institutional engineering’ favouring the most efficient or well-tested methods of governance, but rather as the founding part of a broader process of normative integration, together with the adoption of a Charter of Fundamental Rights and the (admittedly aborted) process of constitutionalisation of the Union.

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As the work of the Convention on the Future of the European Union has shown, the parliamentary model is an integral part of the current debate on treaty reform. Since the Treaty of Maastricht, a marked increase in the number of ‘alternative’ democratisation mechanisms and standards has been seen (e.g. ombudsman, right of petition, access to documents, committees of inquiry, committees of experts, etc.; good governance standards, subsidiarity, accountability, participation, etc.; increased contacts with civil society), yet such mechanisms do not constitute a ‘system.’ They are the product of disparate logics and approaches and do not challenge the basic trend towards parliamentarisation described above. They merely make it even less transparent and underscore its limitations. The Lisbon Treaty intends to clarify things in this context as well, by devoting a heading to ‘Democratic Principles.’ Article 10 of the revised Treaty on European Union provides that ‘the functioning of the Union shall be founded on representative democracy’ and states the principle of citizens’ dual representation. ‘Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.’ This specific formulation gives credence to a parliamentarist interpretation of the Union, which is nonetheless tempered by a reassertion of the inter-governmental logic and by references to participative democracy mechanisms. The first is exemplified both in the nature of the Council and of the European Council, and in the reassessment of the national Parliaments’ role, thus outlining a dual-level parliamentarism (Costa 2007). Participative democracy is specifically mentioned in Article 10.3, which stipulates that ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Although the Lisbon Treaty does not spell out a specific principle legitimising the Union, references to the democratic model and to representation tend to dismiss the alternative forms of legitimisation suggested to date by making reference to notions of agency, governance, expert government, pluralism or neo- corporatism. Generally speaking, the Lisbon Treaty makes multiple references to democracy, turning it at once into a Union operating principle – one of its basic values and one of its internal, as well as external, goals of intervention. The ongoing parliamentarisation of the Union may be surprising in view of the reservations expressed by many national political leaders and the public about the deepening of European integration. There are two explanations for this phenomenon. First, it should be recalled that although Union parliamentarisation inspired reticence when the treaties were being revised, hostility was even more pronounced regarding the

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introduction of other legitimisation approaches. This refusal to step out of the parliamentary model – and, therefore, to challenge the Community method – was observed on numerous occasions, during both intergovernmental conferences and in the Convention on the Future of the European Union’s work sessions. Second, parliamentarism is not the exclusive domain of federalists; it must also serve as a reference matrix among opponents of further European integration. The latter perceive the reassessment of the EP’s powers as an instrument which can be used to limit the Commission’s power, and declare themselves in favour of a greater involvement of national parliaments in the running of the EU. Since the Treaty of Maastricht, we have therefore been witnessing an alternative parliamentarisation of the Union which reached a climax when the national parliaments were invited to participate in the Convention on the Future of the European Union.2

The EP’s growing influence on policy-making Enhancing the EP’s powers logically implies altering its relations with the Commission and the Council, and increasing its influence in the formulation and implementation of Union policies. The scope of such changes, however, is somewhat difficult to assess. For example, with respect to the nomination of the Commission, the challenge is to discover why European Council members decided, in 2004, to consider the European election results when choosing the Commission’s president. In doing so, were they yielding to pressure from the EP or simply interested in satisfying public opinion? Moreover, how should the impact of the modifications of the College’s composition (brought about inter alia by pressure from the EP), be assessed in terms of the relations between the two institutions? The same applies to the Assembly’s influence on legislative matters – how can it be evaluated? For many years, EP departments have been keeping tally of parliamentary amendments taken into account by the Council within the co- decision procedure in order to obtain an indication of the Assembly’s legislative influence. However, the Council has exploited this practice by systematically accepting technical amendments – notably those concerning wording issues – in order to yield flattering statistics. Yet it is obvious that accepting one hundred amendments of a technical nature can in no way compensate for rejecting a single one that proposes to substantially modify the intent of a regulation or of a directive. Furthermore, such acceptance was unilateral in most cases and it scarcely implied the existence of a dialogue between the Council and the EP. In the last few years, the EP’s influence has become more evident. Data on co- decision procedures have changed sharply since 2005. First, there is evidence that use of the co-decision procedure has become more common, the

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The European Parliament 67 Table 4.1 Involvement of the EP in legislative procedures

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

23 16 31 32 38 40 62 67 77 81 93 50 91 61 120

21 10 29 18 24 19 – – – – – 1 – – –

Assent procedure 13 9 3 11 8 11 9 14 12 13 14 24 8 0 0

Consultation

Total legislative procedures

181 153 147 139 211 161 102 153 112 124 144 86 54 59 57

238 188 210 200 281 231 173 234 201 218 251 161 153 120 177

Source: European Parliament/Observatory of European Institutions data.

corollary of which is the gradual disappearance of the cooperation procedure and the less frequent use of the consultation procedure (See Table 4.1). Since the mid-2000s, legislative co- decisions have represented about one third of the Assembly’s normative activities. With regard to in the EP’s legislative activities has also been noted. As the Assembly has been acquiring new legislative powers, its workload has been structured so that the committees and plenary could devote to such matters a maximum amount of time and energy. Figure 4.1 on the EP’s tabling and adoption of amendments shows a sharp rise in the number of amendments tabled and adopted since the mid-1990s – except in EP election years. The year 2005 marked an even higher jump in that respect, especially as concerns the first reading of the co- decision procedure. With regard to the EP’s internal operation, the average number of amendments tabled at first readings by MEPs is quite constant. This overall inflation can therefore be primarily explained by the increased number of MEPs with each new enlargement. Similarly, the ratio of amendments adopted as compared to amendments tabled has remained unchanged: whether during the 4th legislature (1994–9), the 5th (1999–2004), or in 2005 it stands at exactly 69%. This ratio stability and the high rate of adopted amendments attest to the highly streamlined way in which parliamentary work is organised. Unlike many other types of assemblies, the tabling of amendments in the EP does not constitute a pertinent stalling tactic. The rule of procedure

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Olivier Costa 9,000 8,000 7,000 6,000 5,000

3,000 2,000 1,000 0 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Total legislative amendments

Budget: 1st and 2nd reading

Other Figure 4.1 Amendments tabled by the EP (1994–2005) Source: EP/OEI data.

drastically limits this possibility by favouring compromise amendments (jointly tabled by several groups) and by giving the session chairperson the means to adopt the latter as a matter of priority. The amendment data furthermore show the impact MEPs can have on legislation. Far from being a mere recording chamber, the EP extensively amends texts submitted to it and has at its disposal the means to impose a certain number of its own amendments. As indicated, the Council’s strategy of massively accepting all technical amendments will distort any overall quantitative analysis of the parliamentary amendment success rate. Only a qualitative analysis of the texts would provide a means to assess EP influence. The EP’s growing power has taken a more unexpected form: an intensification of inter-institutional dialogue. The most striking change in the Union’s activities since the early 2000s consists of the stronger dialogue between institutions – mainly the EP and the Council – which has translated into an increasingly early adoption of texts at the end of first readings (Costa 2007b; Farell and Héritier 2004). Table 4.2 clearly illustrates this phenomenon: at the beginning of the 5th legislature (2000 and 2001), texts submitted to a codecision procedure were typically adopted at third reading or second reading (2002). However, since 2003, most of the texts have been passed at first reading. In 2005, of the 53 texts processed by co- decision, 34 were approved at that stage, and non eat third reading. For the record,

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The European Parliament 69 Table 4.2 Adoption of legislative texts in codecision procedure Codecision procedure texts adopted before 1 May 1999 (Treaty of Maastricht)

End 1st reading in Council End 2nd reading in EP End 2nd reading in Council End 3rd reading Total

1998

1999* Total

%

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

16

10

23

12

25

6

92

61

7 23

6 16

8 31

20 32

13 38

6 12

60 152

39 100

Texts adopted after 1 May 1999 (Treaty of Amsterdam) 1999* 2000 2001 2002 2003 2004 2005 2006 Total End 1st reading in Council End 2nd reading in EP End 2nd reading in Council End 3rd reading Total

%

5

12

21

16

32

41

34

16

177

35

7

18

17

22

19

14

6

2

105

21

12

12

9

23

27

23

13

3

122

24

5 29

19 61

20 67

15 76

15 93

14 92

53

7 28

95 499

19 100

the ratio of texts adopted at third reading at the end of the Conciliation Committee’s meeting was 39% during the 4th legislature (1994–9), and 19% in the 1999–2005 period. This indicates that the Union enlargement of 2005 caused a fundamental change in institutional dynamics and had a surprising effect. All conditions seemed to point to a worsening of inter-institutional relations due to the institutional impact of the entry of ten new member states, as well as to the effects of the French and Dutch rejection of the European Constitution and of the deteriorating relations between the EP and the Commission on the occasion of the latter’s confirmation. However, the institutions have never been as effective in carrying out legislative work. In fact, they are proving to be more capable than ever of reaching compromises on normative proposals. The quality of their dialogue and the implementation of negotiation routines in anticipation of the reforms contained in the Lisbon Treaty has enabled the majority of co-decision texts to be adopted at first reading and improved the effectiveness of the system’s overall decision-making process. The EP and the Council are now informally negotiating the EP’s amendments so as to identify possible areas of compromise; this allows the EP to

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1994 1995 1996 1997

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70

Olivier Costa 700 573

600

Days

476

459

500 400

331

532

457 333

456 376

331

300 200

0 Body of definitive legislation

Unanimous voting rule

Qualified majority voting rule

Before (Jan 2003–Apr 2004)

Codecision procedure

Consultation procedure

After (May 2004–Dec 2005)

Figure 4.2 Impact of the enlargement on the length of legislative procedures Note: Number of days between the submission acts to the Council and their adoption before/ after the enlargement.

Source: OEI.

have its amendments taken into account at the first reading in exchange for which it waives the right to retable at second readings amendments deemed unacceptable to the Council. In the event of a third reading, as the time limits provided for under the Treaty are very constraining, the Conciliation Committee has formed the habit of adopting the text on a fictional date in order to leave the two institutions as much time as possible to approve the compromise text and allow for any further changes. All of this affects the procedures’ duration, even when – logically enough – the decision time saved with instruments adopted under the codecision procedure is less obvious than with other procedures. This is illustrated in Figure 4.2. As can be seen, the degree of parliamentary involvement is the variable that has the strongest impact on legislative procedures. Rules adopted in co-decision are those for which the adoption process is longest. The EP’s increasing influence on the Union’s political system is the result of a combination of factors. The most important, of course, has been the build-up of the EP’s formal powers and, more specifically, the manner in which the Commission and the Council have acknowledged it. Based on the historic-institutionalist explanation for the increasing powers of the EP (which underscores the role played by the EP itself in gaining powers), it is difficult to understand why the Commission and the Council would have chosen to give special weight to cooperation with such a ‘threatening’ Assembly. The inter-governmental argument for the growth of the EP’s powers makes appeasing inter-institutional relations more logical. Should the member states agree to expand the EP’s powers, it would be normal for them to assume the consequences and envisage genuine collaboration with it.

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This perception of things should, however, be considered with caution, inasmuch as it is not in the member states’ direct interest to strengthen the powers of the EP – which tends to reduce those of the Council – and as the States most attached to the dogma of parliamentary sovereignty are far from constituting a majority. It is therefore necessary to adopt a ‘cognitivist’ viewpoint which contends that the EP played a key role in this process by promoting the idea that reducing the democratic deficit and reconciling the Union with its citizens can only be achieved by first increasing its ‘parliamentarisation.’ Inasmuch as the national political leaders all evolve in parliamentary regimes based on the principle of parliamentary sovereignty, members of the European Parliament have found a fertile intellectual terrain. It is worth noting how skilfully they implemented this strategy within the framework of the Convention on the Future of the European Union (Costa 2008). EP representatives systematically reinterpreted the Convention’s objectives according to their own by taking advantage of the need for simplification – the so-called ‘democratic deficit’ and citizens’ presumed expectations. They tirelessly sought to link the institutional debate to concepts promoting the extension of the EP’s powers. For example, in each of their positions, they associated the principle of the twofold legitimacy of the EU as a union of States and of citizens, to the objective of expanding the codecision procedure. In the same manner, they linked the imperative of publicising treaty reform negotiations to pleas in favour of alternatives to inter-governmental conferences; the objective of transparency to the improvement of the EP’s ability to control the Council; the imperative of efficiency to the extension of qualified majority voting within the Council; the goal of treaty simplification to the writing of a Constitution; and the aim of reducing the democratic deficit to an extension of the EP’s powers. National leaders ultimately accepted the EP demands and approved them in the Constitutional Treaty, and later in the Treaty of Lisbon. As Council members striving for coherence, they logically changed their attitude toward the EP and agreed to initiate constructive dialogue with the latter within the framework of the codecision procedure – something they had refused to do at the end of the 1990s. Another factor explaining the increase in the Parliament’s powers has been its capacity to effect institutional innovation. Of course, its ability to compel member state representatives to vest it with new powers is limited, other than under certain exceptional circumstances based on which it would be inadvisable to found a theory (Hix 2002). But, the EP is often able to maximise its influence in the decision-making process by rationalising its own way of functioning. MEPs have multiple resources at their disposal to justify an expansion of the Assembly’s powers: they are independent, as the Parliament cannot be dissolved; they have total freedom in organising their deliberations and setting their agenda, and enjoy considerable autonomy vis-à-vis national parties. To overcome the constraints affecting their deliberations and to strengthen their influence in the decision- making process,

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MEPs have often adapted the rules of their particular assembly, constantly streamlining its operations to an ever greater degree. The assembly is now characterised by a meticulous organisation of plenary sessions and of the EP’s working bodies. This process has translated into a constant strengthening of the Parliament’s hierarchical bodies and by a more frequent delegation of the legislative work and control powers to the parliamentary committees. It has also conferred a pivotal role on the political groups and their leaders to the detriment of opportunities for individual initiative on the part of the MEPs. The EP’s internal organisation issue is thus the subject of frequent and conflicting discussions between the MEPs in terms of their opinions concerning the role of the Parliament and its members, as well as their position within the EP – group leader or backbencher; member of a ‘large’ or ‘small’ group. Despite initial criticisms, the objective of ‘better regulation’ that the Commission had been seeking since 2001 is thus encountering an increasingly favourable response within the EP. The concern is not new: it has been a part of the ongoing efforts made by the Parliament’s leaders and the permanent members of the EP’s delegation to the Conciliation Committee. Since the entry into force of the Treaty of Maastricht, the latter have been militating in favour of reducing the number and length of parliamentary reports and amendments and improving their legal quality. In their annual reports, they opine that the MEPs should be able to focus on the major reports and produce texts less likely to be judged inadequate by the Council and by the Commission from a legal standpoint. These recommendations have had noticeable effects: the EP is producing fewer reports. The adoption of a growing number of texts as early as at the first reading of the codecision procedure eliminates the need to write second reports, which was commonplace under the preceding legislature (1999–2004). In the last few years, these efforts have continued with the ‘pre- cooking’ of texts within the framework of a trialogue between the EP, the Commission, and the Council prior to first readings. In such a context, even if the EP still has political requirements, its representatives have strongly asserted the need to produce legally coherent instruments, to defend viewpoints acceptable to the other parties, and to have a thorough technical knowledge of the issues. Generally speaking, the EP has gradually abandoned the power struggle and conflict strategy in order to promote a more diffuse and refined influential approach. The evolution of inter-institutional relations is also the product of changes that have occurred within the Council and the Commission. The prospect of the 2004 enlargement, combined with the political turmoil caused by European integration, led Council members to fear the worst. Panicked, they chose to establish closer relations with the EP’s representatives in order to define new decision-making methods and to avoid inter-institutional deadlocks as much as possible. The EP seized a long-awaited opportunity and played the dialogue (or trialogue) card in

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the legislative field, just as it had already done in the budgetary field. The various institutions’ leaders seem satisfied with this more accommodating way of functioning and have chosen to perpetuate it. This process has been furthered by the growing power of the Council Presidency – which compensates somewhat for the position dispersal caused by the enlargements – as well as by the growing leadership of the Commission President on the College. Lastly, the role played by European civil servants in this reconciliation process deserves to be mentioned. For many years, the three institutions’ General Secretariats have been advocating for a more constructive dialogue and for setting rules which would specify how the treaties should apply to legislative matters. Pressured by their respective administrative services, the representatives of these three institutions have agreed to more effectively acknowledge agenda requirements and to implement some forms of reverse chronological planning to allow for genuine legislative programming. Even the Commission seems to have made a point of increasing the speed with which its legislative proposals are sent to the Council: these time-frames have been reduced from an average of four days, a few years ago, to less than 24 hours today. Other issues have also been the subject of intense negotiations, whether concerning the definition of criteria which enables ‘critical’ texts and amendments requiring more thorough review to be distinguished from others, or providing the opportunity to better codify Union law by replacing multiple instruments dealing with an issue by a new one synthesising existing law.

Conclusion It would be unwise to paint an over-idealised picture of the recent changes in the Community method. The EP’s increased participation comes at a cost, has been criticised within the Council and the Commission, and has been widely debated within the EP, where these changes have been first and foremost challenged from the standpoint of democracy. Just as the backbenchers and small group leaders had formerly criticised the excessive influence of the members of the Conciliation Committee, MEPs who today participate in trialogue meetings with the Council and the Commission (committee chairmen, rapporteurs, coordinators, etc.) are accused of being unrepresentative and of selling out the institution’s interests for the sake of efficiency. Indeed, in order to reach ‘early agreements’, the parliamentary committees and plenary assembly have had to refrain from using their amendment rights and instead to rely upon the MEP’s negotiating abilities in discussions with the Council and the Commission. Numerous MEPs are also protesting against the practice of ‘package deal’ negotiations involving several texts with other institutions,3 and are calling for greater transparency. These

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recriminations specifically concern the ‘codification’ process, which the Commission describes as purely technical, but which certain MEPs would like to take up in order to fully re-examine some issues. Representatives of the Commission and of the Council are aware of these tensions. They do not hesitate to call into question the ability of their EP counterparts to persuade their institution to adopt the negotiated instruments. In order to confront these criticisms, in 2006 the EP initiated a functional reform process. In February 2007, the Conference of Presidents created a working party on EP reform to study changes which could be reviewed in plenary, parliamentary committee, and inter-parliamentary delegation. The objective was, on the one hand, to improve the Parliament’s functioning and efficiency and, on the other hand, to make the debates more lively and intelligible for the public. In January 2008, an initial series of changes was implemented. In order to clarify the legislative debates, rapporteurs now have more speaking time and have the last word in debate. In addition, each debate now includes a five-minute ‘catch-the- eye’ session to enable MEPs not on the pre-arranged speaking list to take part in the discussion. The plenary agenda is now organised in clear sections: major legislative items are grouped on Tuesdays, the week’s priority debates on Wednesday mornings, and Wednesday afternoons are devoted to items of timely political interest. In application of the reform of January 2008, the Conference of Presidents can also choose to authorise short speeches by political group leaders on key issues just before they are put to a vote. Lastly, when the hemicycle is not full, the President can now invite Members to participate in the debate from the front rows rather than from their assigned places in order to promote spontaneous interaction. The working group anticipates that other changes will further increase the visibility and transparency of the EP’s activities. Its leaders have also been striving to expand the political nature of the interinstitutional relations, as well as the EP’s external role. Its President’s opening address in the European Council meetings is now often based on an EP resolution or at least directed toward a specific topic, and it has lost its purely formal style. In the final analysis, the MEPs’ ambition remains unchanged: to preserve a balance between efficiency and democracy (Duprat 1996). The recent evolutions in inter-institutional relations show that the ongoing streamlining process is enhancing the Parliament’s influence (at the cost of restricting the members’ individual rights in favour of work done within committees and groups, and with a wider use of expert language). By the same token, this streamlining is reducing the transparency of parliamentary decisions and limiting their political scope. This issue becomes particularly sensitive in the case of the codecision procedure, since early agreements tend to keep the decision out of the hands of the plenary Assembly. Thus, the EP has become a stakeholder in the Community method. It exerts a growing influence on how the EU’s political system is being run, but often in a rather

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apolitical way, outside plenary sessions and public debate. As has long been observed, there is of a lack of synchronicity between the EP’s performance in the field of policy formulation and control on the one hand, and its ability to direct political debate and to spearhead the emergence of a polity, on the other.

1. The roll call is a voting method provided for under the EP’s internal Rules of Procedure, which consists of recording and publishing the electronic vote of each MEP participating in the poll. Specifically, the session’s minutes mention such nominative information group by group. They constitute an unparalleled resource for EP specialists who focus their research on the MEPs’ behaviours. Please refer to the European Parliament Research Group’s work directed by Simon Hix, at the London School of Economics. 2. The Convention was therefore composed of, among others, two representatives of the member states’ and applicant countries’ parliaments. 3. Discussed in Chapter 5.

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Notes

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5 Conflict Resolution in the Council by Linkage of Commission Proposals

Conflict resolution in the Council and member states’ voting behaviour In the literature on Council conflict resolution, several studies observe a remarkable high capacity of the Council to find solutions which are almost consensually supported by the member states (see e.g. Hayes-Renshaw and Wallace 1995; Hayes-Renshaw et al. 2006; Heisenberg 2005; Lewis 2000; Naurin and Wallace 2008; Westlake 1995). According to the voting records of the Council, member states almost always vote in favour of Commission proposals (Hayes-Renshaw et al. 2006: 7; Heisenberg 2005: 77; Mattila and Lane 2001: 44). Similarly, the most recent empirical studies on EU legislative decision-making reveal that Commission initiatives are continuously adopted, even if the member states pursue different interests in highly contested issues of a Commission proposal (Bueno de Mesquita and Stokman 1994; Junge and König 2007; König and Pöter 2001; Thomson et al. 2007). However, although these studies find contestation in the Council on a large number of issues, little is known about how the Council solves these conflicts. Even scholars who argue that informal norms govern the voting behaviour in the Council (e.g. Achen 2006; Heisenberg 2005, 2008; Lewis 2003, 2008) conceive Council decision-making as a black box in which norms prevent the member states from rejecting a proposal – even if they have an interest in the maintenance of the status quo. Above all, some of them conclude that member states are following a logic of appropriateness when voting for a Commission proposal, based on a communicative process in which norms can be justified and actors may overcome their interests (Risse 2000: 7). In this world, member states are supposed to search for ‘communicative consensus, a phrase which nicely fits the Council’s culture and is supported by the empirical record of consensus-based outcomes’ (Lewis 2008: 168). On closer inspection of the empirical foundation of these conclusions, scholars must nonetheless concede that the voting records can only provide a partial view on Council decision-making. A major shortcoming of these

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records is that they neither provide enough insight into the interests of the member states nor do they consider the strategies which the actors can employ for finding consensus in the Council (König and Junge 2009). For example, a very simple strategic explanation for Council consensus would be that the Commission anticipates the level of conflict in the Council and only initiates a proposal when it expects to garner the overall support of the member states. Another explanation considers that – under the shadow of a No-vote – some member states might be interested in the adoption of a controversial Commission proposal and make attempts to find a compromise solution. For example, they can propose a package deal and link the outcome of two or more Commission proposals which would be beneficial for all member states. In general, package dealing or linkage increases the size of the win-set and therefore the Council’s capacity to resolve conflicts. But although package dealing is a plausible and often quoted solution in the literature, it is another matter to find empirical support for this strategy in Council decision-making. In particular, when the claim is to open the black box of Council decision-making, the question is which proposals can be linked to resolve Council conflict and to what extent does their linkage provide additional insight into Council decision-making. In this chapter, we empirically determine the size of the win-set to investigate the capacity of the Council to resolve conflicts among the member states. Conventionally, this size is determined by the member states’ interests in the issues of a Commission proposal. However, this size can be expanded by proposal linkage, according to which several Commission initiatives are linked for finding a common solution. While the size of the win- set generally increases through proposal linkage, we empirically specify whether and to what extent proposal linkage can explain the Council’s capacity to resolve conflicts in everyday legislative decision-making. For this purpose, we determine the size of the unanimity win-set (as the set of alternatives which actors prefer unanimously against the status quo) and thereby specify the Council’s capacity to solve conflicts by linking proposals within different policy domains. We find that proposal linkage can explain the high capacity of the Council to resolve conflicts among the member states. However, this capacity of the Council is also constrained by domain-specific patterns of member states’ interests in Commission proposals. This suggests that member states have good reasons to selectively transfer the competencies for policy domains to the European level.

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Conflict Resolution in the Council

Decision-making and the size of the win-set Council decision-making has become a prominent topic in legislative research. One reason for its popularity is that the Council remains the central legislative body in the EU, which has become more important in the world with a growing legislative impact on an increasing number of

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citizens’ lives. Today, the EU embraces about 500 million citizens and deals with a wide range of policy issues of direct relevance to everyday life, such as agricultural, environmental, economic and trade politics. Another reason for the prominence of Council decision-making is the complex institutional framework that has recently been the subject of several reform attempts by member states. During the past three decades, a growing number of member states significantly revised the treaties almost every five years. In the context of these reforms, the voting rules for Council decision-making have become a major theme that is producing two lines of research: ●

●

Several scholars have modelled the outcome of Commission initiatives under different legislative procedures and debated the interpretation of some procedural provisions, in particular the Commission’s agendasetting and the Council’s amendment right (Crombez 1996; König and Pöter 2001; Steunenberg 1994; Steunenberg and Selck 2006; Tsebelis 1994); Others have studied the voting behaviour of the member states in the Council and discussed different reasons for their voting consensus (König and Junge 2008; Mattila 2004; Mattila and Lane 2001; Naurin and Wallace 2008).

In spite of their theoretical and methodological differences, these studies commonly address the interaction between formal institutional provisions and the interests of the actors involved in Council decision-making. Oftentimes, these studies offer a spatial representation of actors’ interests and assume that member states have an ideal notion of the outcome and decide on their support of a Commission proposal depending on their ideal position’s relative distance to the proposal and the status quo (Enelow and Hinich 1984; Hinich and Munger 1997; Hotelling 1929; Poole 2005). Hence, they also commonly use the concept of the win-set of the status quo, which contains all policy alternatives that are preferred to the status quo by the required number of actors. While the appeal of this spatial representation lies in the clarification of the preconditions of decision-making, its empirical application is not an easy task because Commission initiatives are decided under different procedures and Council voting rules (unanimity and qualified majority voting), involve a large number of inter-institutional actors, as well as member states with different interests in several contested issues. Under these conditions, the win-set of each actor is calculated by considering the actor-specific relative distance to the status quo and to the proposal, which is decisive for predicting the actor’s voting behaviour. When a sufficient number of actors are predicted to support a Commission proposal, the win-set can be calculated with respect to the formal voting provisions, that is, Council unanimity or qualified majority voting. To illustrate this methodology, Figure 5.1

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C = Council members SQ = Status quo P = Proposal

C1C2 SQ

C3C4 C5

P1

C6 C7 P2

P3

Individual win-sets

Dimension 1 Figure 5.1 Spatial models of EU legislation and the conditions for agreement on legislative proposals in the Council – one-dimensional policy space

shows a spatial representation of EU legislative decision-making, in which we focus on the voting behaviour of the member states and Council consensus (instead of concentrating on an inter-institutional analysis between the Commission, the Council and the European Parliament). The straight line in the middle of the Figure depicts members C1 to C7 with different ideal positions on a one- dimensional policy proposal. Above this line, the grey bars indicate the size of the unanimity and qualified majority (5 out of 7 votes) win-sets of the status quo, while the lower bars list the individual win- set of each actor: if the proposal is closer to the ideal position of an actor than to the status quo, this actor is predicted to support the proposal; otherwise, the actor will reject the proposal and prefer the maintenance of the status quo. Thus, the proposal P1 would be adopted under all voting rules, P2 only under qualified majority rule and P3 fails to find the required support under any voting rules of the Council. But even if we do not know the exact location of a proposal in this space, we can state the likelihood of the Council to find common

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Unanimity win-set of the status quo Qualified majority win-set of the status quo

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solutions: the larger the win-set is, the more policies can solve conflicts and reach agreement. Empirical studies on the Council’s voting record often criticise the findings of spatial analysis because it strongly focuses on the member states’ interests and their benefits from outcomes of the decision (see e.g. Hayes-Renshaw et al. 2006; Heisenberg 2005; Mattila and Lane 2001). Other authors take the few reported ‘No’ votes in the Council’s voting records as proof of the dominance of informal norms, consensus, ‘thick trust’, and reciprocity in the Council, and claim that they are more important than simple applications of the spatial model suggest (Lewis 2000, 2003, 2005). However, this criticism draws inferences from the phenomenon with regard to the explanatory power of spatial analysis without providing measures of member states’ interests. Furthermore, while the spatial representation only defines the preconditions of decision-making, the Council may use other means for solving conflicts even if member states care only for their benefits.

The DEU data: Member states’ interests in Commission proposals One of the few studies providing indicators on the member states’ interests in Commission proposals is the decision-making in the European Union study (DEU), which was designed to evaluate competing decisionmaking theories that predict the outcome of Commission proposals. For this purpose, an international team of researchers collected estimates on the interests of the 15 member states plus the Commission and the European Parliament for 66 Commission proposals, including the positions of each actor on each issue of a legislative proposal and the saliencies they attached to these issues (Thomson et al. 2006). The dataset also contains information on the location of the status quo and the outcome of the proposals, which were subject to either the codecision or consultation procedure and adopted by the Council under either unanimity or the qualified majority voting rule between January 1999 and December 2001. Proposals were only selected when they attracted some public awareness in the period under study. A second selection criterion was the existence of some controversy among the actors involved in decision-making on the proposal. Table 5.1 gives a brief overview of the data with respect to the distribution of cases across legislative procedures, Council voting rules, legislative instruments and policy domains. According to Table 5.1, most of the DEU cases were decided under the consultation procedure and about 65% of the proposals by qualified majority rule in the Council, which provides voting weights to the member states. Moreover, half of the DEU proposals were regulations, followed by a large number of directives, while the share of decisions was comparatively low. However, since no explanation for Council conflict refers to the type of

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Table 5.1 Characteristics and distribution of policy proposals in the DEU data set

QMV Unanimity Consultation QMV Unanimity Type Directive Regulation Decision Domain Agriculture Internal market Fishery ECOFIN JHA Common rules Other Total

Percentage

Number of issues Percentage

21 5 22 18 26 33 7 14 13

31.81 7.85 33.33 27.27 39.39 50 10.61 21.21 19.7

56 12 55 39 66 79 17 40 34

34.57 7.41 33.95 24.07 40.74 48.77 10.49 24.69 20.99

7 6 5 6

10.61 9.09 7.58 9.09

13 10 15 14

8.02 6.17 9.26 8.64

15 66

22.73 100

36 162

22.22 100

the legislative instrument, this distribution should not skew the findings. With respect to the policy domains of the proposals, it is noteworthy that the DEU study mostly covers the agricultural sector, internal market, fisheries, ECOFIN and justice and home affairs (JHA). Accordingly, the DEU data mainly allows us to draw inferences on these domains. In total, the DEU data set comprises information on 162 contested issues in 66 proposals. More specifically, we find that 21% of the proposals raised only one controversy, 38% had two controversial issues, and 41% of the proposals raised controversies on between three and six issues. The data includes missing values on actors’ policy positions for at least one actor on more than half of the 162 issues. For 18 of the 66 policy proposals we also have no information on the location of the status quo. While we can employ the imputation algorithm AMELIA to impute missing values for the missing policy positions of the actors, we have to drop all 18 proposals that have missing values on the location of the status quo (see also Steunenberg and Selck 2006). Table 5.2 gives an overview of the reduced data set. In spite of the sample reduction required by missing values, the relative proportion of cases in each subcategory remains approximately the same. In particular, no particular policies, procedures or Council voting rules have been excluded by dropping cases with missing values. Hence, we still find

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Codecision

Number of proposals

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Table 5.2 Characteristics of policy proposals in the reduced DEU data set

Percentage

QMV Unanimity Consultation QMV Unanimity Type Directive Regulation Decision Domain Agriculture Internal market Fishery ECOFIN JHA Common rules Other

14 5 18 11 20 23 5 11 11

29.17 10.42 37.5 22.92 41.67 47.92 10.42 22.92 22.92

35 12 42 17 47 50 9 29 28

33.02 11.32 39.62 16.04 44.34 47.17 8.49 27.36 26.42

6 5 2 2

12.5 10.42 4.17 4.17

11 8 3 4

10.38 7.55 2.83 3.77

11

22.92

23

21.7

Total

48

100

106

Codecision

Number of issues Percentage

100

enough cases in most subcategories to estimate the effects for each characteristic of EU legislative decision-making and to control for a possible bias on the overall estimation.

Conflict, decision-making, and proposal linkage in the Council The evaluation of competing views on Council decision-making is a difficult methodological task because we must accurately determine the winset of the Council. Theoretically, this win-set is determined by both the interests of the member states and the Council’s voting rule, but since we are interested in the puzzle of unanimous support of Commission initiatives in the Council implying complete resolution of conflicts, we can simplify our analysis and focus on the more restrictive unanimity win-set to evaluate proposal linkage. To make accurate inferences we consider all issues each Commission proposal and the saliencies for all actors involved, and we determine the size of the win-set as a measure of how easy it is for the Council to accommodate diverging interests under different strategies for resolving conflict.

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Number of proposals

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In general, the larger this (unanimity) win- set is, the more likely it is to find a common solution, and the easier it is for the Council to solve conflicts between member states as measured by diverging ideal positions. While the size of the unanimity win-set indicates the conflict solving capacity of the Council and the likelihood for reaching agreement, the question is how this win-set is defined. For example, when member states decide on each Commission proposal separately, the win-set is limited to the number of issues of each proposal. However, when member states link issues across proposals, this set is enlarged by the number of issues in the additional proposal. For an analysis of the Council’s conflict solving capacity the question therefore is how this strategy of linking proposals affects the size of the winset and the number of solutions that can find unanimous agreement. Our analysis starts with the precondition of spatial analysis according to which actors base their decisions on their interests in the issues of a proposal and maximise their expected policy benefits on each Commission proposal separately (i.e. König 1997; König and Pöter 2001; Steunenberg and Selck 2006). To derive predictions on the size of the win-set, we calculate the proposal-specific (weighted) Euclidean distance between the extreme alternative solutions for each issue in the unanimity win-set, as illustrated in Figure 5.2. According to Figure 5.2, the unanimity win-set is restricted to the adoption of P1 and P2. According to the proposal-specific application of spatial analysis, any proposal further to the right would be vetoed by member state C1 because the status quo is located closer to its ideal position. By the same logic, any proposal that is located more to the left will be vetoed by all member states. If the proposal includes more than one issue, we determine the extreme alternatives in the unanimity win-set with respect to each issue and report the mean value of their (weighted) Euclidean distances. For closer inspection of the characteristics of the proposals that determine the size of the unanimity win-set, Table 5.3 includes information on the policy domain, number of proposals, the average number of issues across proposals in each domain, the level of conflict between member states as measured by the standard deviation (sol) of their positions in each domain (sd of positions on a scale between 0–100), the heterogeneity of the status quo (sd of status quo on a scale between 0–100) and the average size of the unanimity win-set. According to Table 5.3, the average number of issues per policy domain ranges between 1.5 in the domain of justice and home affairs and 2.64 in the domain of agriculture. Regarding the level of conflict between member states we observe that the heterogeneity of their ideal positions is highest in the agricultural and fisheries domain, followed by the internal market. In contrast, the heterogeneity of positions is much lower in the ECOFIN domain, common rules, and justice and home affairs. The status quo varies most in the ‘others’ category, justice and home affairs, ECOFIN and internal

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Conflict Resolution in the Council

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C = Council members SQ = Status quo P = Proposal

C1C2

C3C4 C5

C6 C7

SQ P1

P2

10 Size of the unanimity win-set

20

0

40

60

80

100

Dimension 1 Figure 5.2 Determining the size of the unanimity win-set in the Council veto players – one-dimensional policy space

market domain, followed by fisheries and agriculture, while there is quite a low variation in the field of common rules. Finally, we find that the average size of the unanimity win-set per issue ranges between 0 for justice and home affairs and 73.9 for ‘others’. This result suggests a large variation across policy domains with regard to both the size of the unanimity win-set as well as the actors’ interests in Commission proposals in each domain. For the evaluation of the proposal-specific decision-making approach, the low size of the unanimity win-set in the domains of justice and home affairs as well in ECOFIN reveals the domain-specific limitations for explaining Council consensus on Commission initiatives that usually propose a change of the status quo. Even though the variation of positions is found to be quite low in these domains, they offer the least options for trade of interests within the negotiations due to a comparatively low number of simultaneously negotiated

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Unanimity win-set of the status quo

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Table 5.3 The proposal-specific approach and the size of the win-set

Agriculture ECOFIN Fisheries Common rules Internal market JHA Others

Level of conflict Heterogeneity Average between of the status number member states quo (sd of of issues (sd of positions) location)

Average size of the unanimity win-set

11 5 6 2

2.64 1.6 1.83 2

22 5 23 3

20 31 20 11

54.8 10.2 21.9 25.1

11

2.55

18

30

56.1

2 11

1.5 2.09

5 16

32 37

0 73.09

issues and high number of single-issue negotiations which often excludes any change of the status quo. In contrast, the agricultural domain reveals an average value of 54 per issue, which means that about 54% of the alternatives on each issue are covered by the unanimity win-set. On closer inspection, the best predictor for a large unanimity win-set is the average number of issues per proposal, which is highest in the agricultural, internal market and ‘others’ categories (between 2.09 and 2.64). Unsurprisingly, the size of the win-set is related to the number of alternatives for trading interests within a proposal. However, the win-set in the agricultural, internal market and ‘others’ category is not only determined by a low level of interest conflict among the member states in these domains. The findings rather suggest that the Council has a higher capacity to solve conflicts in these domains because it is easier to rearrange issues and find common solutions. These findings also allow us to discuss some claims about the effect of norms on the voting behaviour of the member states. Several scholars have pointed to normative explanations for Council consensus, which should result from their embeddedness in distinct policy domains (i.e. Heisenberg 2005; Lewis 2000; Mattila and Lane 2001). While we find that domainspecific differences exist, they can almost completely be related to the distribution of member states’ interests and the size of the win-set. This allows for a more parsimonious explanation of member states’ support for Commission initiatives than that suggested by approaches based on informal norms. The basic idea of proposal linkage is that the proposals are arranged in a way that facilitates the trade of interests in order to increase support for Commission proposals. Such linkage might be facilitated by the Council’s organisation, which establishes a committee system with three stages of decision-making. This process of Council decision-making may help to

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Policy domain

Number of proposals

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accommodate interest conflicts among the member states and thus promote Council consensus. While proposal linkage usually increases the size of the unanimity win-set, and the Council’s capacity to solve conflicts, the question we ask here is to what extent this strategy works in practice to solve conflicts in different policy domains. Thus, we will determine whether and to what extent the Council can increase the room for common solutions as measured by the win-set, particularly in domains with a high risk of blockage according to our analysis in the previous section, and which characteristics are relevant to this end. In Figure 5.3, we illustrate our approach using two examples that combine two proposals with one issue. In Figure 5.3, we only modified the positions of member states C1 and C2 to compare the effects for the unanimity win-set. This minor modification reveals that the smaller win-set in the left column drastically increases in the example of the right column due to the modification of these two positions. As a result, P is predicted to be supported consensually only in the second example. This illustrates that issue linkage might be a necessary but not sufficient condition for explaining Council consensus. In this world, the member states do not decide initiative by initiative; rather, the Council

SQ C2 C1

C3

C5

SQ C2 C7

20 30 40 Dimension 1

C1

50

60

0

C3

10

C6 C5

C7

20 30 40 Dimension 1

50

60

50

60

55 C5

20

30

C7

SQC1

C4

C2

C6

C3

C5

20

30

C7

35

35

40

C3

50

C6

45

Dimension 2

55

C4

C2

45

50

SQC1

40

Dimension 2

C4

60

10

C6

60

0

C4

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0

10

40

Dimension 1

50

60

0

10

40

Dimension 1

Figure 5.3 Issue linkage and the size of the unanimity win-set

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tries to increase the room for common solutions by linking issues across Commission initiatives. For the evaluation of this linkage strategy, we calculate the changes in the size of the unanimity win-set by linking only two proposals. Table 5.4 reports the average size and increase of the unanimity win-set by policy domain, and lists further characteristics of the proposals that may explain the size of the effect. The results show that the linkage strategy tremendously increases the size of the win-set and the number of potential solutions to Council conflict. Still, we find significant differences regarding the effectiveness of linkage by policy domain. The absolute size of the unanimity win-set is much larger when linking proposals from the agricultural domain, internal market or the ‘others’ category. This indicates that the baseline capacity of the Council to resolve conflicts is significantly higher in these domains. The maximum size of the win-set even increases to a value of more than 100 in the ‘others’ category, which means that all proposals in this policy space can garner unanimous support from the member states when this strategy is applied (though possibly not simultaneously). Since the absolute size of the win-set is also determined by the number of issues and proposals, we take a closer look at the proposals for which the linkage strategy is most effective in facilitating agreement. For this purpose, we compare the values in the brackets to the increase of unanimity win-sets as related to a non-linkage solution. The increase is highest for proposals from ECOFIN, the General and JHA domains, which reveal difficulties in Council conflict resolution in the event of a non-linkage solution. This suggests that linkage can be particularly helpful in unblocking comparatively contested proposals in domains which would otherwise fail to receive the Table 5.4 Proposal linkage and the size of the unanimity win- set

Policy domain

Level of conflict Heterogeneity Number Average between of the status Average size of the of number member states quo (sd of unanimity win-set proposals of issues (sd of positions) location) (% increase)

Agriculture

11

2.64

22

20

96.2 (+76%)

ECOFIN

5

1.6

5

31

47.9 (+370%)

Fisheries

6

1.83

23

20

60.9 (+178%)

Common rules

2

2

3

11

81.3 (+224%)

Internal market

11

2.55

18

30

99.3 (+77%)

JHA

2

1.5

5

32

26.2 (+Inf%)

Others

11

2.09

16

37

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Conflict Resolution in the Council

113.9 (+54%)

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support of the member states. Hence, linkage provides a powerful strategy for the Council in difficult negotiations that can explain the resolution of conflicts in situations characterised by a high risk of gridlock.

The current debate on the reform of the EU’s institutional framework creates an empirical puzzle because member states regularly attempt to reform the Council’s voting rules, while the Council voting record reports that they frequently support Commission initiatives unanimously and may even vote for policy change despite conflicting interests and their power to veto the initiative. This puzzle also raises doubts on scholarly claims which suggest a logic of appropriateness, according to which informal norms prevent member states from blocking Commission initiatives. If member states always support Commission initiatives and follow a logic of appropriateness, the basic question is why they have struggled in the recent past to reform the institutional framework. On closer inspection, our analysis shows that other characteristics, such as the number of issues per proposal and the distribution of member states’ preferences can provide a more parsimonious explanation for the frequent success of solving conflicts in the Council. Following these insights, we have examined a linkage strategy, according to which two proposals are linked in order to increase the set of options on which agreement can be reached. Our empirical evaluation of linkage shows that this strategy can explain how mutual agreement can be reached even in situations which are characterised by a high level of interest conflict and threatened by Council legislative gridlock. Hence, linkage provides a powerful approach to explain member states’ support of Commission initiatives even if it only takes place on a limited scale between two proposals. The plausibility of linkage can also be derived from the Council’s committee system, which provides a process of interest coordination across three levels. While the working groups follow the proposal- specific approach and attempt to solve conflicts that arise within a Commission initiative, the COREPER and ministerial level establish forums in which more than one initiative is decided simultaneously. COREPER gathers initiatives across policy domains in a timely fashion, while the ministers usually vote on several proposals in their domain. In our view, both characteristics promote issue linkage across proposals and can therefore help in understanding Council consensus when a sufficient number of proposals are at stake.

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Conflict and decision-making in a contested Council

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Part III

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Alternatives to the Community Method

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6 Jolyon Howorth

Discussions regarding the functioning of the EU often posit two alternative models: an inter-governmental one, in which the emphasis is laid on how states’ interests are reconciled and national governments retain a central role; and a supra-national one, according to which a leadership role is granted to supra-national institutions such as the Commission or the European Parliament. The Community method provides a kind of tertium genus, since the Commission is supposed to be the policy initiator, but most decisions require a green light from national capitals. As has been discussed in Chapter 1, from the 1990s onward, inter-governmental alternatives to this model have multiplied, most notably in the field of foreign policy, where the reluctance to delegate powers to the EU was very strong. Since the launch of the European Security and Defence Policy (ESDP) in 1998/9, there has been intense speculation, both in the media and academia, as to the precise profile which such a project might eventually assume. The controversy surrounding ESDP has always been more intense than that of the policy area to which it is officially subordinated – the Common Foreign and Security Policy (CFSP), which dates from the Maastricht Treaty in 1992. One debate focused on the potential loss (or perversion?) of European identity if what had hitherto been a strictly ‘civilian power’ Europe were to take on military instruments (Manners 2002; Smith 2000; Telo 2006; Whitman 1998). Another debate focused on the extent to which the identity of the new policy instrument would be created in opposition to – or at least with close reference to – the United States and/or NATO (Cimbalo 2004; Howorth and Keeler 2003; Hunter 2000; Quinlan 2001). A third debate raged around the extent to which the assumption of defence responsibilities would alter the strictly intergovernmental nature of Pillar Two and lead inexorably towards greater federalism and even a ‘European army’ (Echikson 1999; EvansPritchard and Jones 2002; Salmon and Shepherd 2003; Weston 2001). In one of the earliest studies of the infant ESDP, I suggested that the institutional

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The Political and Security Committee: A Case Study in ‘Supranational Intergovernmentalism’

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framework already emerging might eventually be thought of as a form of ‘supranational inter-governmentalism’ (Howorth 2000). This chapter takes that concept a little further through an in-depth analysis of the workings of one key body in ESDP – the Political and Security Committee (PSC). What few analysts appreciated in the early years of these debates, and what all too few commentators appreciate even today, is that the specific profile of ESDP is by no means a fixed or pre-determined category. It is gradually emerging – and is continuing constantly to evolve – as a unique, unprecedented and vast range of military and civilian instruments geared to the post-modern challenge of international crisis management. It is very much a work in progress. To this extent, much of the earlier discussion, especially when essentially theory-based, remained purely speculative – and wrong. Most of it has already been overtaken by events. The emerging profile of ESDP has developed as a composite of the different strategic-cultural inputs of the EU’s many different member states. ESDP, which was launched by France and Britain, has not assumed the expeditionary, militaristic features which some feared would be the case given the martial and interventionist nature of those two countries’ approaches to international affairs. But neither has it emerged as a purely ‘soft’ humanitarian, United Nationsmandated peace-keeping organisation – as some assumed would be the case if the project were dominated by the more pacifistic aspirations of what probably amounts to a majority of the EU member states. Binary polarities have not framed the reality of ESDP. Each member state in the EU has its own unique and somewhat distinctive strategic culture, which reflects the specific ‘strategic cultural identity’ of the citizens of that state. For ESDP to acquire operational and political reality, it could only ever have been as a result of a process of pooling or merging those distinct national strategic cultures in a broader, consensual European strategic culture. The distinctive profile of ESDP as it has emerged to date is complex and far-ranging. It involves the mobilisation – in the cause of international crisis management, regional stabilisation, nation-building and post-conflict reconstruction – of a vast range of policy instruments: from sophisticated weaponry and robust policing capacity, to gender mainstreaming techniques and cultural assistance; from rapid-reaction ‘battle-groups’ and strategic transport aircraft, to judges, penitentiary officers and human rights experts; from state capacity-building resources to frontier-control expertise. This has slowly emerged as the unique footprint of ESDP as it has developed empirically in 21 overseas missions since 2003. The role, in this gestation, of the key policy-shaping instrument which has underpinned ESDP – the Political and Security Committee – has been noted by several scholars (Duke 2005; Juncos and Reynolds 2007; Meyer 2006). The PSC is a central Brussels-based body comprising one representative (of ambassadorial rank) from each of the 27 member states, plus one representative from the Commission. It meets at least twice weekly in formal mode1 and its

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members also meet in other informal groupings on a regular basis. This paper’s principal substantive argument is that the normative socialisation processes which inform the work of the PSC have succeeded to an appreciable extent in allowing a trans-European strategic culture to begin to stamp its imprint on one of the EU’s principal foreign-policy projects. A supranational culture, in short, is emerging from an inter-governmental process. The PSC has emerged, to a significant degree, as script-writer for ESDP. This chapter contributes to our understanding of three key aspects of the European integration process. One is the phenomenon of committee governance, which has hitherto been studied more in terms of its role and function within the policy-making process (Christiansen and Kirchner 2000; Hooghe 1999; Majone 1989) than in terms of its membership, internal workings and decision-making dynamics. The other is the phenomenon of policy- creation in the field of security and defence policy, which has hitherto been studied more in descriptive and narrative terms (Dumoulin et al. 2003; Howorth 2000; Salmon and Shepherd 2003) than in terms of the gradual generation, as a result of a complex iterative process between the member states and their Brussels-based institutions, of an inchoate European security culture or operational strategic identity. In addressing these two key phenomena, this chapter also contributes to a growing literature on institutional socialisation processes within the EU (Beyers and Dierickx 1998; Johnston 2001; Checkel 2003, 2005; Hooghe 2005; Lewis 2005; Quaglia et al. 2008) by offering detailed empirical evidence of the micro-processes involved in one specific body – the Political and Security Committee. This chapter follows a five-fold structure. First, it assesses the political and strategic reasoning behind the launch of the PSC in 2000 in a context marked by the proliferation of other institutional actors in foreign and security policy. It notes the divergent interpretations, in different national capitals, of the committee’s objectives and rationale. Secondly, it offers a socio-political profile of the committee’s individual members based on structured interviews and a questionnaire. These data reveal an intergovernmental body composed of national representatives who are deeply committed to the cause of European integration. Thirdly, it showcases some of the key issues in ESDP which the PSC has to grapple with and offers a number of case studies of decision-shaping in action, demonstrating the gradual emergence of the PSC as a crucial decision-maker and profile-former for ESDP and, to a certain extent, CFSP. Fourthly, it focuses in some detail on the strong socialisation processes which inform the debates and decisions of the committee. It scrutinises the working practices of the PSC and notes the ways in which they have evolved during the tenure of three distinct generations of ambassadors. It offers a case study in complex decision-making about ESDP operations and it evaluates the specific role of PSC in constructing the ‘security identity’ of ESDP. Finally, the paper hazards some conclusions as to the implications of its findings both for international relations

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The Political and Security Committee

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and European integration theory and for the empirical reality of ESDP now and in the future. The study, the first comprehensive analysis of the workings of this committee, is based on primary data derived from two inter- connected exercises. In the first place, structured and semi-structured face-to-face interviews (lasting between 45 minutes and 90 minutes) were conducted, between January and August 2007, with 27 of the 28 ambassadors to the PSC and with four deputy ambassadors. These interviews were in almost every case tape-recorded and subsequently transcribed. During the course of the interview, reference was made to the structured questionnaire designed by the European Commission’s FP6 IntUne project2 and specifically tailored for this policy area to include questions about the key options facing decisionmakers in CFSP/ESDP. In some cases, the questionnaires were filled out as an integral part of the interview; in others, the interviewee returned the questionnaire in their own time after the interview had been completed. Twenty questionnaires were completed, a number of interviewees having neglected (despite several reminders) to return their forms. In addition to the members of the PSC, interviews were also conducted with a further 40 officials or experts closely involved with decision-making in ESDP. These included senior officials from the General Secretariat of the European Council (10), European Commission officials (4), national officials from both MFAs and MODs in France, the UK, Germany, Poland and Russia (14) and experts from security and defence policy oriented think-tanks (12). A further 20 questionnaires were returned by these interviewees, thus allowing for comparative and contrastive analysis as between the responses of PSC members and those of the other actors in ESDP.

The sources of the PSC: Why yet another foreign-policy actor? At the time of the Saint Malo summit in December 1998, CFSP had been in operation for six years, ever since the ratification of the Treaty on European Union (TEU) in 1992 (Peterson and Sjursen 1998; Rummel 1992; Smith 1998). CFSP was the logical successor to European Political Cooperation (EPC) which had existed since the 1970s (Allen et al. 1982; Ifestos 1989; Nuttall 1992; Nuttall 2000). Prior to Saint Malo, in addition to the longstanding national institutions in each member state such as ministries of defence and foreign affairs, defence chiefs etc., there were already no fewer than nine European bodies with inputs to EU foreign and security policy. 3 The Saint Malo Declaration (Rutten 2001: 8–9), with its call for ‘appropriate structures’, instead of leading to rationalisation of these bodies, merely layered on several new ones, of which three have already established themselves as crucial to the definition of an ESDP identity or profile: the Political and Security Committee, the EU Military Committee and the EU Military Staff, all of which are roughly modelled on their NATO equivalents. With so many

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cooks in the kitchen, it is, in some ways, amazing that any broth is produced at all (Howorth and Menon 2009). And yet, decisions are taken, policy is made and ESDP has, over the last few years, gone rapidly from strength to strength (Howorth 2007). One of the key explanatory factors is the existence of the PSC. The Committee was designed to correct two weaknesses in the previous institutional arrangements for foreign and security policy-making. The first was the lack of continuity and permanency in the personnel involved in key organisms (the six-month presidency, and the regular rotation of ministers and other officials). The second was the shifting location of meetings, which tended to follow the six-monthly roster of each presidency, the circus moving on constantly from one capital city to another. This was particularly true of the meetings of the Political Committee (PoCo), the predecessor to the PSC. The PoCo (which had gradually emerged out of the EPC process) comprised the Political Directors of the member state Ministries of Foreign Affairs (MFAs). Prior to 2000, this body had traditionally met monthly, with a view to coordinating foreign and security policy at senior MFA level. As CFSP began to demand more and more of the Political Directors’ time, and as ESDP began to flood their agenda, it became apparent that what was required was a permanent body, based in Brussels, comprising ambassadors with a substantial (three to four year) term of office. Hence, the birth of the PSC. The Political and Security Committee: Treaty remit and working practice The Political and Security Committee (often referred to after its French acronym as COPS) was enshrined in the Treaty of Nice under Article 25: Without prejudice to Article 2074 of the Treaty establishing the European Community, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council at the request of the Council or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the responsibility of the Presidency and the Commission. Within the scope of this Title, this Committee shall exercise, under the responsibility of the Council, political control and strategic direction of crisis management operations. The Council may authorise the Committee, for the purpose and for the duration of a crisis management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation [ ... ]

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The Political and Security Committee

PSC as an institution was first convened on an interim basis in March 2000, becoming permanent in January 2001. The detailed remit for its activities

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was contained in Annex III to the Presidency Report on ESDP which was itself Annex VI to the Presidency Conclusions of the Nice European Council (Rutten 2001: 191–3). The 15 (later 25, then 27) permanent representatives with the rank of ambassador, meeting two to three times a week in Brussels embarked on the work of monitoring the international situation, contributing to the formulation of policies by drafting opinions for the Council and also overseeing the implementation of the agreed policies. From the outset, the committee was the subject of multiple political sensitivities. In particular, the national capitals, having agreed on its very necessity and indeed its inevitability, were nevertheless keen to ensure that it remained under strict MFA control. In a repetition of the discussions over seniority after the 1997 decision to create the post of High RepresentativeCFSP,5 the big debate during the Finnish presidency (June to December 1999) was over the level of representation of the ambassadors to the PSC. France, confident that the very existence of this committee would consecrate ‘l’Europe de la défense’, leaned towards ‘senior ambassadorial’ representation. Paris never doubted for a moment the Quai d’Orsay’s capacity to keep its own senior ambassador ‘on message’, and by the same token it saw in the PSC a golden opportunity for France to lead the debate on European security. France argued that, unless the PSC became a high-level body with genuine ability to influence policy, it would prove to be somewhat redundant. In addition, since the EU had selected the heavyweight Javier Solana for the post of HR- CFSP, France argued that it would be illogical to have him presiding over a lightweight PSC. The British preference for a lower level of seniority in the envoys to PSC (deputy political director) reflected in part a desire to keep this institution firmly under national control and in part a sense of unease about what seemed to be becoming the lionisation of EU institutions. In addition, the UK was preoccupied with US suspicions that the proposed new body would escape all control from NATO. The UK initially proposed that the permanent representatives to PSC should be ‘doublehatted’ with the permanent representatives to NATO – a proposal which was dismissed out of court in Paris (Interviews in Paris and London 1999). Eventually, the British trade- off in the run-up to the European Council in Helsinki (December 1999) was agreement to accept a relatively high-profile PSC in exchange for a genuine commitment, at Helsinki, to the elaboration of serious European military capacity. The wording of the Helsinki documents speaks of PSC as being made up of ‘senior/ambassadorial’ officials. In the event, member states sent a variety of different level envoys to constitute the first generation of PSC representatives (2000/1–2003/4), ranging from very senior and experienced ambassadors to mid- career diplomats. The large countries, France included, proved, in the event, most anxious to keep their representatives on a tight leash and tended to send more junior officials than some of the smaller countries eager to help develop CFSP/ ESDP and willing to engage a senior ambassador (Howorth 2007: 67–75).

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The sensitive issue of the division of labour between COREPER and PSC, both of whom found themselves legally responsible for preparing Council meetings (Duke 2005: 10–12), was partially resolved at the Seville European Council in June 2002 by the introduction of the distinction between the ‘internal’ and ‘external’ agendas of the General Affairs Committee (GAC), henceforth re-titled as the General Affairs and External Relations Council (GAERC). The former meeting is now essentially prepared by COREPER and the latter by PSC. Formally, COREPER II (comprising the permanent representatives of the member states) enjoys hierarchical superiority to the PSC and the latter’s decisions go via COREPER to the ministers sitting in the GAERC. If PSC ambassadors (as happens occasionally) cannot reach consensus on a particularly sensitive issue, then the dossier ‘goes up’ to COREPER for resolution. This happens roughly once a month. Although this is an improvement on the previous over-loaded agenda of the GAC, the situation remains unsatisfactory given the growing volume of business in the strictly security and defence field. The PSC thus theoretically deals with all aspects of the common foreign and security policy, although interviews with current and former ambassadors suggest that it works best in what is considered its ‘core business’ – the planning, preparation and oversight of operations, whether civilian or military. In this sense, it tends to spend most of its time on ESDP matters. A representative of the Commission is also present to ensure cross-pillar consistency and coherence and meetings are attended by four representatives of the Council Secretariat. The work of the committee is assisted by ‘European Correspondents’ based in the MFAs who form a liaison between the political directors and the representatives to PSC (Duke 2005: 20). The agenda is agreed by the rotating Presidency and by the Council Secretariat. Meetings are regularly attended by Robert Cooper, the Director- General of DG-E within the Council Secretariat, who is considered to be Javier Solana’s closest adviser. The wide-ranging remit of the committee generates, by all accounts, a vast amount of paperwork, thus intensifying the workload of its members. This pressure is somewhat alleviated by the assistance of the Politico-Military Working Party, comprising Brusselsbased officials from both MFAs and MODs and which convenes up to four times per week, dealing with both the diplomatic aspects and the technical details of planned operations, including relations with NATO. In addition, PSC agendas are prepared by a working group (sometimes referred to as the ‘Nicolaidis group’ after its first chairperson during the Greek Presidency in early 2003). This group fixes the most logical order for discussion of agenda items and indicates in advance where member states have concerns that they may wish to raise. Interviews with the ambassadors to PSC revealed a relatively widespread sense of dissatisfaction with the effectiveness of these preparatory committees. A large number of members deplored the fact that the committee itself spends too much of its precious time on ‘nuts and bolts’ issues, which should have been the subject of preparatory agreement in the

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subordinate working groups, but too often this is not the case. In the view of some of the interviewees, this goes back to the vexed question of seniority. For the most part, ‘Nicolaidis group’ members are junior diplomats who are hardly in a position to resolve tricky technical or political issues on their own. Several ambassadors insisted that this was deliberate policy on the part of a number of member states. For these critics, the solution would be to upgrade ‘Nicolaidis’ members to junior ambassador status, thereby allowing for greater decision-making at that level, leaving the PSC itself to tackle only the really thorny issues.

The PSC and its members: A socio-political profile The interviewees in this study were, in most cases, from the ‘third generation’ of PSC members. The period of service is generally three to four years. The ‘first generation’ sat from early 2000 to about 2002/3. The ‘second generation’ served from about 2002/3 until 2005/6. For the most part, current members of the Committee were appointed in 2005/6, although some – particularly several ambassadors from the 2004 accession states, who arrived as observers in 2003 in the run-up to accession and subsequently joined as full members, are still in post. Of the 28 members of PSC, only four (14%) are women. Members of the Committee tend to be mid- career to senior diplomats in their late forties and early fifties. The average age of those responding to the questionnaire is just short of 50 (the youngest being 38 and the oldest 61). While no accurate date is available on the age-profile of the two previous generations of PSC members, impressionistic evidence6 suggests that the age – and therefore the seniority – of PSC members is nudging upwards. Most have previously had at least one major overseas posting involving security and defence issues. All have spent at least three months living in another EU member state. All have a university degree, most commonly in Political Science, History or Law, the majority having also completed a Masters degree. Two have completed doctorates. Most speak three or four languages (the average number of languages spoken by the interviewees being 3.7). All speak at least English and French, the two working languages of the committee. It has been suggested that between 70% and 80% of PSC business is conducted in English and 20% to 30% in French (Meyer 2006: 126). Meetings under most Presidencies are conducted in English – with one or two ambassadors occasionally expressing themselves in French. However, whenever the Presidency of the EU (and therefore the chairmanship of the PSC) is held by France, Belgium or Luxembourg (11% of the member states), the pattern is reversed, business – and much of the accompanying paperwork – being conducted essentially in French, with the occasional ‘lapse’ into English on the part of an individual ambassador or two. Between them, by definition, the members of this key committee cover all the languages of the EU, plus Russian and Norwegian.

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The permanent affiliation of 27 of the Committee members is the Ministry of Foreign Affairs of their respective member states, the final member being a representative of the European Commission. All of them, again, almost by definition given the remit of this particular committee, engage in interaction with other EU actors or institutions at least once a week and 55% of them also engage with non-EU actors and institutions with the same frequency, the remainder for the most part fulfilling this function once a month. In other words, interaction with EU and international actors and institutions is the stock-in-trade of these committee members. They function permanently in an international, multilateral, intergovernmental context whose focus is foreign and security policy. Identity Evaluating the ‘identity’ of two dozen sophisticated, well-travelled, multilingual ambassadors is a sensitive task. Nothing in terms of age, educational background, length of service or experience of living abroad offers any clue to their own self- definition in terms of identity. Inevitably, these interviewees spend most of their careers living in ‘foreign’ countries (not necessarily EU countries), absorbing and learning to respond to other cultures, learning other languages, appreciating diversity. At the same time, they are professionally committed to serving and defending the interests of their respective member states (compare the old adage: ‘diplomats are people who are sent abroad to lie for their country’). It is therefore interesting to note that, while they have rather diverse feelings about their native town or village and even more diverse feelings about their region of origin – ranging from very attached (50%) to not at all attached (20%) – they have much more solidly anchored feelings about their own country and about the EU. It is hardly surprising that not one of them feels ‘little’ or ‘no attachment’ to their home country, but it is noteworthy that as many as 36% of them see themselves as only ‘fairly attached’ as opposed to ‘very attached’ (64%) to their own country. This no doubt helps to explain the fact that all of them confess to feeling ‘very attached’ (53%) or ‘fairly attached’ (47%) to the EU. Whether this is as a result of their personal preferences, their international life-style or their experience of working on the PSC, the data do not allow us to conclude. Commonsense would suggest it is a mix of all three. But, clearly, the ambassadors to the PSC feel strongly that the European project, to which their work is devoted, is an important and worthwhile cause. All of them believe that ESDP as a policy area is ‘important’ (50%) or ‘very important’ (50%) for the development of an EU identity. Interestingly enough, in answer to the question about their ‘primary association’, respondents gave rather different answers (probably owing to the potential ambiguity of the question). While 43% identified the European Council as their ‘primary association’, 25% saw this as being their national government or MFA, while 29% saw it as the PSC itself (the remaining one member, of course, seeing

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his ‘primary association’ as being the European Commission). Since all PSC members (except the Commission representative) are at one and the same time attached to the Council, to their national government via their respective MFA, and to the PSC, the diversity of priority is understandable. While a majority (64%) felt that the nature of their work had not changed over time, those 36% who did feel that it had changed were unanimously of the view that the EU level had become more important. In some ways, the most revealing answers were expressed over the ‘necessity’, ‘desirability’ and ‘likelihood’ of the development of an EU identity. Combining the two categories of ‘agreement’ and ‘agreement with reservation’, no fewer than 80% believed an EU identity to be necessary, while 86.6% believed it to be desirable and, somewhat astonishingly, the same percentage (86.6%) believed it to be likely (although only 7% felt it likely without reservation, whereas no fewer than 64% felt it to be desirable with reservation). One ambassador noted that he could not answer this question because, in his view, an EU identity ‘already exists’. The real question, he insisted, was on ‘how deep or large it is or should be’. Even allowing for a degree of latitude in different individuals’ interpretation of the precise meaning of the three terms in question, these figures suggest an extraordinarily high degree of belief in the intrinsic wisdom and virtue of the European integration project. This has bearing on the socialisation phenomena we shall shortly analyse. There is a strong sense among the members of the PSC that they are deeply involved in taking the EU forward. Representation PSC ambassadors are appointed, by their respective member states, to represent the interests of those same member states in the forging of a common foreign and security policy. In answer to the question as to whom they represent, there was no ambiguity. With the sole exception of the Commission representative, they all – unsurprisingly – saw themselves as representing ‘their country’. Given the data we have just analysed concerning identification with the EU, there is clearly a unanimous feeling, in the minds of PSC members, that national interests and European interests are entirely compatible. When asked about the most appropriate role they felt they played, answers were quite diverse. Allowing for multiple responses, the largest group (35%) believed that their role on the committee consisted of devising ‘politically feasible solutions’, while 26% saw themselves involved in seeking ‘technically feasible or efficient solutions’, a further 15% believed they essentially ‘provided input through their expertise’, with only 12% seeing that role as being ‘to support specific (presumably national) interests’ and a further 12% as ‘mediating different arguments’. Since this question allowed for multiple responses, this range of views is hardly surprising. Indeed, PSC members clearly feel that, depending on the issue, they will be likely to switch roles from case to case. If one interprets the categories ‘politically

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feasible solutions’, ‘mediation between different arguments’ and ‘support for specific interests’ as being essentially political roles, then we find that 59% of the responses fall into that box, while ‘technically feasible solutions’ and ‘expertise inputs’ could be interpreted as essentially technocratic roles (41%). This accurately reflects the primary purpose of the committee. The results correlate exactly with the answers to a later question about the relative importance of technical as opposed to political considerations. Here, the committee was split, with (unsurprisingly) 56% disagreeing that the technical should outweigh the political (albeit all ‘with reservations’), while 44% tended to agree (again, all of them ‘with reservations’). Similar findings emerged from the question about the legitimacy of the PSC as a body, with 44% seeing it as a body which ‘follows procedures established by the Treaty’, while a further 31% saw it as ‘representing legitimate interests’ and the remaining 31% valuing its ability to ‘provide feasible solutions’. In terms of the working style of the PSC, the answers were unequivocal. There was virtual unanimity behind the belief that the prevalent style of interaction in this committee is ‘consensus based’ and this was confirmed explicitly in the structured interviews by every ambassador – including the single individual whose questionnaire returned ‘evidence based’. This degree of unanimity contrasts somewhat with the results of the questionnaire among the broader policy community (Council Secretariat, Commission, ThinkTanks and national officials), where 73% nevertheless felt that ‘consensusseeking’ was the dominant mode, with 14% indicating ‘evidence based’, and 10% ‘chaotic and unstructured’. The PSC ambassadors were also relatively agreed on the prevalent attitude within the committee, 63% defining it as ‘cooperative and consensus-seeking’, the remaining 37% opting for ‘rational bargaining’. This reflects very nicely the subtle socialisation pressures of this particular committee: its members are in fact supposed to defend national positions; in reality, they succeed in doing this while actively seeking consensus. This phenomenon is analysed in more detail below. It is striking that all the members of the PSC chose one or other of these two responses, whereas in the broader policy community, small numbers returned ‘adversarial’ or even ‘inquisitorial’ as the prevalent attitude within their committee, or indeed failed to respond to this particular question. As to the prevalent source of conflict, opinions in the PSC were quite divided, 25% seeing the problem as ‘sectoral interests’, a further 25% opting for ‘political beliefs’, 13% seeing the main problem as ‘divergences vis-à-vis the USA’ (a rather low figure given the emphasis in the structured interviews on the difficulty of reaching agreement on a collective attitude towards the USA) and a further 12% seeing ‘territorial interests’ as the main problem. This diversity is no doubt explained by the huge range of issues dealt with by this committee. Interviewees were no doubt influenced in their choice of response by specific issues on which their particular member state had (perhaps recently) found itself defending an important national interest.

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Finally, under the heading of ‘Representation’, there were two questions about the extent to which the media covered the work carried out by the PSC and the way in which it was reported. The results were straightforward. There was virtual unanimity behind the fact that significant media coverage exists (the issues dealt with by the PSC are in the headlines almost on a daily basis), with only one member of the committee demurring. A clear majority (56%) felt that the reporting was, on balance, ‘positive’ (although significantly no member of the committee saw it as ‘very positive’). The remainder (44%) took refuge in ‘neutral’ as the manner of reporting. Nobody felt that media coverage was in any way negative – a remarkable finding given the controversy surrounding some of the ESDP operations in a number of EU member states. Scope of governance The questionnaire data also revealed important insights about the perception of PSC members concerning the comparative importance of a range of EU governance bodies, the constituencies whose views are most valued, the performance of democracy, the role of market and social protection agencies and the extent to which governments are aware of and respond to public opinion. Some of these questions were general and non-policy specific, and others were explicitly framed within the context of CFSP/ESDP. The answers to the former were less clear- cut in the case of PSC ambassadors than those to the latter. For instance, in response to a question about whether ‘more things should be left to the market’, 25% of interviewees either failed to reply or pronounced themselves indifferent (indifference being in fact an exceptionally rare value in these data). Of the remainder, opinion was strongly marked by disagreement (25%) or disagreement ‘with reservations’ (38%), only 12% or respondents agreeing – all of them ‘with reservations’ – with the proposition that ‘more things should be left to the market’, and none of them expressing outright agreement. For these diplomats and servants of the public sphere, market forces should clearly be kept in their place. One area which they did see as appropriate for such forces was competitiveness in the economy, only 19% expressing disagreement (albeit ‘with reservations’) with the proposition that ‘it is essential that the EU makes the European economy more competitive in world markets’, while 75% agreed with the proposition, 44% of them strongly and 31% ‘with reservations’. Only one committee member declared himself to be indifferent on this issue. However, the non-partisan nature of the PSC revealed itself in the answers to the question as to whether the EU should provide ‘better social protection for its citizens’. The widespread support for economic competitiveness proved to be entirely compatible with a belief in greater social protection, which was supported by 69% of respondents (a large majority of these expressing some measure of reservation) while 31% of members disagreed

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– but only one of them ‘strongly’. What these findings suggest is that, in a policy area relatively unrelated to their professional expertise, these unambiguously pro-EU ambassadors felt that the Union should both promote more economic competition and ensure greater social protection. Interestingly enough, there is absolutely no correlation whatever between specific groups of member states or individuals (more Atlanticist ones, more recent accession states, large or small ones or whatever) and the expression of these mild political positions. As to the EU bodies which play a fundamental role in the overall EU process, there was no equivocation in the views of these foreign and security policy officials. They were unanimous (100%) in seeing both the European Council and the PSC itself as playing a fundamental role, while 50% of them also thought that Council working groups were crucial. Interestingly, given the growing role played by the European Commission in ESDP operations, only 25% of them saw the Commission as playing a fundamental role, the same percentage as felt this to be the case with Coreper, a body with which the PSC has a tense relationship. The European Parliament was felt to play a fundamental role by only 13% of respondents, while very few saw such a role as being played by Commission working groups, civil society or academics (6% for each category). None of the ambassadors considered that any major role should be played by business (indicating that their reading of the question was specific to their policy-area rather than general). These figures also reveal a degree of variance as against the responses to the questionnaire from other expert groups (Council Secretariat, Commission, think-tanks and national officials). Among this broader constituency, while there was a similar level of recognition of the fundamental importance of the Council and the PSC (almost 87% and 83% respectively), 33% felt that the Commission played such a role, while only 13% felt this to be the case for the European Parliament and Coreper, only 6% seeing a major role for civil society and a mere 3% for academics. On the other hand, 6% of the larger group saw a fundamental role for EU level business. In response to the question about which bodies had increased their role, almost 70% put the PSC itself in prime position (they, after all, are in an excellent position to testify!), with 25% detecting an increasing role both for the Council and for the European Parliament, and 12% for civil society. These figures are corroborated by the responses of the broader constituency, the largest percentage of which (40%) also saw the PSC as having increased its role the most, while the figures for the Council (26%) and the Parliament (23%) dwarfed those for civil society (10%). There is little mystery behind these results. ESDP is a policy area massively dominated by the Council and, within the Council, by the PSC. It should be noted that ‘member states’ was not included in the questionnaire as a possible category playing a ‘fundamental’ or ‘greater’ role – but then none of the respondents inserted this in response to the optional category ‘others’. When asked which bodies should

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play a greater role, the relatively poor earlier scores of the Commission and of academics were somewhat rectified, these being the two categories where significant numbers of respondents (19% for each) felt that something was amiss. Other categories which elicited responses were the Council, Council working groups, the EP, Coreper and civil society (6% each). Significantly the largest group (31%) felt that no group at all needed even greater influence. By contrast, among the broader community of experts, 20% felt that the Parliament should have a greater role, 17% the Commission and 13% academics. While the relative faith expressed in the academic community is heartening in the context of the IntUne project, this researcher also wondered whether the responses in this area did not contain at least some measure of goodwill gesturing, even though those who mentioned academe as being an appropriate candidate for a greater role justified it by stating that the university is the repository of independent and scientific advice. Similar results were recorded in response to the question as to whose views were most valued. Not surprisingly, given that, for this question, ‘national governments’ figured as a possibility, there was virtual unanimity (94%) in seeing the member states as the main source of valid opinion. Thereafter, there was strong appreciation for military and defence bodies (75%), for think-tanks (63%) and for global organisations and civil society (38% each), with the EP (19%) and academia (13%) trailing. None of the PSC members admitted to paying any attention whatsoever to either industry or trade unions. There are no surprises in these results. Moreover, they reflect quite closely the corresponding responses of the broader expert community which established the following pecking order in terms of views valued: national governments (83%), think-tanks (73%), military and defence bodies (67%), global organisations (40%), civil society (33%), the EP and academics (23% each) while some 6% recognised value in the views of business. Satisfaction with performance seemed relatively strong. 75% of ambassadors found themselves to be satisfied with the EU’s problem-solving capacity in their policy area, but 69% qualified this with the adverb ‘fairly’. 25% on the other hand felt themselves to be ‘not very satisfied’. The levels of satisfaction with the workings of democracy in their home countries were even stronger, with only 12% declaring themselves ‘not very satisfied’ while 88% felt satisfied, 25% being ‘very satisfied’. Satisfaction with democracy in the EU was (somewhat surprisingly given the media and academic literature about an alleged ‘democratic deficit’ in the Union) even higher, none of the respondents declaring him or herself either ‘not at all satisfied’ or ‘not very satisfied’. 100% of the respondents felt happy with the workings of democracy at the EU level, albeit only 6% of them being ‘very satisfied’, the remainder taking refuge in the rather bland concept of ‘fairly satisfied’. It is not clear what the analyst is to make of this, other than to formulate the hypothesis that, as government officials representing their member states in an EU institutional setting, there was an inherent reluctance to criticise either level of

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democratic governance. This hypothesis is borne out by the results from the broader constituency of experts where much higher levels of dissatisfaction were recorded: 37% with EU problem-solving, 27% with the workings of democracy in their home country and 20% with democracy in the EU itself. Ambassadors also opted for ‘democratic correctness’ concerning the question of whether it was important for governments to know what the public wants in this policy area. 69% thought it ‘important’ (56%) or ‘very important’ (13%), only 31% expressing a neutral view and nobody feeling it was unimportant. However, they were less convinced that governments were in touch with public opinion, 50% of them feeling that the reliability of politicians’ knowledge of what the public wants was ‘mostly good’ (nobody opting for ‘important’), while another 50% took refuge in neutral agnosticism. On the other hand, none of them felt that politicians’ understanding of the public’s wishes was poor. Far higher percentages of the broader community of experts expressed some degree of scepticism about the connection between policy and opinion, 40% being unconvinced that it was even necessary to pay attention to public opinion in this policy area and only 36% being of the opinion that politicians were in touch with the public mood, the remainder being split between those who felt unconvinced (17%) and those who expressed agnosticism (37%).

The PSC and European Security and Defence Policy (ESDP) Six questions focused on some of the major issues facing ESDP as a policy area. The first dealt with the extent to which PSC ambassadors felt that specific issues were important for good policy-making in CFSP/ESDP. Two categories above all vied for pole position. 28% saw ‘inter-agency coherence’ as an important objective, with 25% opting for ‘strategic vision’. However, when factoring in first, second and third choice preferences, these rankings are reversed, with 56% of respondents placing ‘strategic vision’ in first place while only 12% put ‘inter-agency coherence’ in the top slot. What this tells us is that ambassadors are agreed that both objectives need further attention. Strategic vision, the structured interviews reveal, is believed to be an absolute necessity (the EU has to have a clearer view of what it wishes to achieve in this policy area and how it intends to achieve it). But interagency cohesion has also proven to be a major problem in the operational realities of overseas missions. Again, the face-to-face interviews revealed considerable concern about this issue – as indeed has a mass of academic and policy-based literature on ESDP. However, the general feeling among all interviewees (as strongly felt among the broader community as it was among the ambassadors) is that things are getting better. Lessons learned on the ground in the Balkans, in Indonesia, in Palestine, Africa and Ukraine/ Moldova have been acted upon, joint Council/Commission working groups

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have been established, and the role of the Commission in ESDP operations is less and less contentious. There is no doubt still a long way to go, and the fact that respondents highlighted this issue reveals a genuine problem which needs to be further addressed. All this is entirely consistent with the underlying hypothesis behind this study: that the PSC is proving to be instrumental in defining an ESDP ‘identity’. A further 21% of PSC members saw ‘response to crises’ as a key issue, indicating that the EU’s emerging profile is one in which civilian and military capacity can be held in readiness in order to respond rapidly to crises as and when they arise. It is significant that this issue (rather than inter-agency coherence) was the second highest category (after strategic vision) receiving first ranking – among 25% of respondents. These results contrast somewhat with the responses of the broader policy community, where the overall priorities were seen as ‘response to crises’ (28%), ‘strategic vision’ (22%) and ‘inter-agency coherence’ (19%). However, when factoring in first choices, ‘strategic vision’ again emerges as the clear front-runner (45%), followed by ‘response to crises’ (28%) and – as a poor third – ‘inter-agency coherence’ (10%). While the respective rankings of the first and second choices are consistent with the views of the PSC ambassadors, the relative downgrading of ‘inter-agency coherence’ among the broader policy community highlights the fact that, for those directly responsible for the oversight and political control of ESDP missions, inter-agency coherence remains an important problem. Other issues which were seen as important included ‘accountability’ (10% of PSC respondents but with none of them placing this in first position); ‘military capability’ (9%, again with none placing this in first place – an interesting reflection of the fact that ESDP has increasingly shifted away from emphasis on military missions and is more focused on civilianmilitary synergies); and ‘historical necessity’ (2% – albeit in this case seen as of primary importance, reflecting the view that ESDP is impelled by shifts in geostrategic tectonic plates rather than by the preferences of political leaders or member states). Interestingly a further 2% of respondents felt that ‘military autonomy’ was key, while another 2% insisted on the importance of ‘alliance backing’. This neat dichotomy reflects both the reality of an Atlanticist/Europeanist tension within the committee, but also the fact that this is no longer perceived as a central problem area (none of those responding in these two categories saw it as their first choice). Finally, no member of the committee felt that ‘transparency’ in ESDP was a problem area at all. This is interesting only insofar as several members in a later question thought it essential ‘to explain ESDP properly to the citizens’. The respective results from the broader policy community are not dissimilar, ‘military capacity’ (12%) and ‘accountability’ (9%) swapping places as compared with the PSC results, but still within the same ballpark; ‘historical necessity’ and ‘alliance backing’ both weighing in with 5% each; while ‘military autonomy’ slipped

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to bottom ranking with only 2% (all of them placing it in third position). Again, no respondent saw ‘transparency’ as of any significance. Another question focused on the major challenges for the future of ESDP. Here the results contrast in interesting ways with the answers on good policy-making. In first place comes the ‘development of civil-military tools’ (20%), followed closely by three other issues – ‘EUisation of strategic vision’, the ‘creation of the Foreign Minister position’, and the ‘resolution of tensions between ESDP and NATO’ (16% each). Again, these findings reveal the extent to which the PSC is helping define an ESDP identity. Interestingly, the resolution of inter-agency turf battles drops to 8% as a priority for the future, which is the same score as that given to ‘explaining ESDP to the citizens’ – a feature which appears to be perceived as an issue for the future if not a problem for the present. 6% of respondents saw the development of the European Defence Agency as a future priority, while insignificant percentages backed the Neighbourhood Policy (4%), increasing military capacity (2%) and rationalisation of defence spending (2%). Opinion among the broader community of experts reflected a much more balanced spread. While these respondents opted for the same top four issues, albeit in a slightly different order (civil-military tools and EUisation of vision at 16% each, the foreign minister post at 15% and the resolution of ESDP/NATO tensions at 14%), they felt more strongly about developing military capacity (8%), while the same figure (8%) backed the resolution of turf battles (identical to the PSC ambassadors – as was the score for the defence agency, 5%). Comparable numbers of the broader community also attached importance to the rationalisation of spending (7%), explanations to the citizens and the neighbourhood policy (5% each). Finally, while none of the PSC ambassadors attached any importance to ‘involvement of the EP’, ‘the struggle against terrorism’ or ‘aid and development’, the latter two were backed by the broader community but only to the tune of 2% each, while again nobody wanted greater involvement for the EP (a fact which contrasts starkly with the support for that institution in response to questions on good governance – see above). When asked about the involvement of different actors in ESDP, there was almost unanimous support for the view that opportunities for EU policyshaping in this area had increased at the level of European institutions (96%), among national defence ministers (96%) and among think-tanks (81%), while 44% even believed that opportunities to influence ESDP now exist for European citizens. The scores on this question for the broader policy community were almost exactly the same; 96% of ambassadors were also of the view that the efficiency of ESDP has increased in recent years and the same percentage believed that inter-agency cohesion has also increased (which is consistent with the views expressed above about turf battles). These were higher figures than among the broader policy community where the respective scores were 87% and 73%.

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Finally, when asked about the future role of the European Commission in this policy area – which has been a contentious issue in recent years – the results were revealing. Almost 40% felt that the Commission’s role should essentially be confined to implementing decisions taken by the Council, with a further 23% valuing the Commission’s role as a source of funding for ESDP, 15% seeing it as a source of consultation and advice, a further 15% being prepared to accept a Commission role in policy initiation, and virtually nobody was prepared to give it a role in external representation (3%) or in partnership (3%). This contrasted markedly with the greater spread of views among the broader policy community where the scores were: implementation of Council decisions (29%), funding (26%), consultation and advice (21%), policy initiation (14%) and even external representation (10%).

Socialisation and the quest for consensus: The PSC as a unique case? The political and strategic conclusions from the structured and semistructured interviews with PSC ambassadors will be the subject of a separate academic study. However, a brief glimpse into the substantive findings from the interviews is in order. I shall make an initial (and rather cursory) attempt to situate these findings in the context of recent socialisation theory. Jeffrey Checkel (2005) has set down some basic prerequisites for socialisation processes to work and has theorised the distinctions between three different types of process: strategic calculation, role playing and normative suasion. He suggests that when actors move from conscious strategic calculation to conscious role playing within an institutional setting, ‘Type I’ socialisation has taken place. When they go beyond role playing and accept the collective norms of the group as ‘the right thing to do’, they have exhibited features of ‘Type II’ internalisation. He also lays out some thoughts about optimum ‘scope conditions’ under which socialisation is likely to occur. In particular, he identifies several key conditions: when individuals are in settings where contact is long and sustained, as well as intense; and those with prior experience in international bodies or settings tend to accept socialisation more readily and more speedily. These conditions do tend to apply very directly in the case of the ambassadors to the PSC. Liesbet Hooghe (2005), on the other hand, has argued that, even in the case of a supranational body such as the European Commission, socialisation is less the result of interaction within the institution than the consequence of subtle forms of prior national socialisation. My findings suggest that there is a real difference between the Commission actors she studied and the ambassadors I have studied. How influential is this ‘linchpin’, this ‘work-horse’ in forging a consensual European strategic culture, a type of ‘ESDP identity’? Christoph Meyer produced the first scholarly analysis of the workings of the Committee (Meyer 2006: chapter 5). His research set out to establish to what extent the

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working of the PSC ‘has set in motion dynamics of social influence that can mould a group of national officials into a socially cohesive policy community with shared objectives and increasingly shared attitudes concerning the use of force’ (Meyer 2006: 112). Employing recent research methods in the field of social psychology, he examined the extent to which two dynamics are at work: ‘compliance or normative pressures, which make group members conform in public to dominant attitudes or views; and personal acceptance of these group norms through informational influence based on better arguments or superior expertise of in-group persuaders’ (Meyer 2006: 117). His conclusions were based on considerations of group characteristics, discursive dynamics and capacity to persuade. First, the PSC ambassadors have felt themselves to be pioneers in a very important policy area and, given that their remit was to seek consensus, their propensity to compete with one another has been kept in check. The frequency of their meetings in various official formats rose from an average of ten per month in 2001 to an average of over 15 per month in 2005. Meyer concluded that PSC constitutes ‘an unusually cohesive committee with a club atmosphere, high levels of personal trust and a shared “esprit de corps” driven by a common commitment to pioneer cooperation in a new, labour-intensive and particularly sensitive policy-field’ (Meyer 2006: 124). In terms of discursive dynamics, the tendency of newly-appointed ambassadors in their early meetings simply to read out instructions from the national capital rapidly fades and is soon replaced by a consensus- seeking discursive approach which even results in envoys from major countries shifting their initial stance in the greater cause of forging an EU policy. Although both Paris and London are keen to ‘tele-guide’ their envoys, they are also keen to ensure that ESDP be made to work. Thus, the language and codes through which the meetings are conducted were rapidly established in a form, which actively promotes group cohesion. Finally, individual ambassadors, for a wide variety of reasons – seniority, longevity on the committee, personal charm, in-depth knowledge, relevance of their country to the issue under discussions (the Baltic states and Poland have been instrumental in taking forward policy towards Russia) – have found that they have considerable potential to influence the group by the strength of their argument, so long as it is couched within a collectively recognised normative framework. Meyer’s conclusion was tentative but unequivocal: The PSC:

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has developed into a multiplier of social influence, both through informational influence as well as peer pressure. It has managed to manufacture consent and broker compromises even in areas where national strategic norms would initially indicate incompatibility. [It] remains one of the most important ideational transmission belts of a gradual

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110 Jolyon Howorth

My interviews with the members of the PSC reveal a unanimous sense that, above all, the Committee seeks to achieve consensus. All ambassadors felt strongly that the PSC is a forum in which consensus can usually be achieved. Ambassadors were asked to think of an example of an initiative taken by PSC which had been illustrative of the search for this consensus, if possible showing how an initial tour de table had revealed a wide diversity of viewpoints, whereas further discussion, and several iterations between Brussels and the national capitals, had succeeded in narrowing the gaps or even in achieving unanimity. The answers varied widely, no doubt reflecting the time-pressured nature of an interview. But that very variety illustrated the point. Between them, the ambassadors cited missions as diverse as the Aceh monitoring mission, the EUFOR- Congo military mission, the Ukraine-Moldova border mission, the rule of law mission in Iraq, the Afghanistan police mission and one or two others. The point is that, in most cases, the starting positions of EU member states are at variance. But the process involved in decision- making via the PSC most often ends up with a broad consensus or even unanimity. There was, naturally, a range of opinion as to how deep or serious the consensus actually was. But none disputed that consensus emerged, or that the quest for consensus was the basic stock-in-trade of the PSC members. All members of the committee stress its ‘club-like’ atmosphere and insist that a significant measure of socialisation ensures that the dominant mode of interaction is consensus-seeking rather than bargaining around fixed national positions. The vibrant (albeit, to date, brief) history of ESDP shows that a viable consensus normally emerges. The degree of socialisation which functions in the committee is a major factor in generating compromise. The members know one another extremely well. Their average tenure is around three years. When, for example, the French ambassador lays out his country’s position on, say, the EU mission in Afghanistan, the others know immediately how to read that position, how to react to it and how to work with it and around it to achieve consensus. The key element is a deeply-rooted sense of mutual trust. The following is taken from the transcript of an interview with an ambassador who had been in post for just over two years. It is reproduced here because it encapsulates very articulately and very concisely the importance of mutual trust:

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Europeanisation of national foreign, security and defence policies. (Meyer 2006: 136–7)

I think we all have a trust in each other that whatever compromise is possible we will find it. [ ... ] We often take some minutes off in the meeting when somebody needs to call home and say ‘Hey, this might be a possible compromise line, couldn’t we follow that?’ And so, even if you have

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Several ambassadors stressed that it is often sufficient for one of the group to be replaced by their deputy for the trust-based group dynamics to break down and for consensus to be more difficult to achieve. In many instances, the majority of member states are unlikely to have a very strongly held national position on a given proposal (say, to mount an ESDP mission in Indonesia or in Congo). In that case, they see it as their duty and role to help – wherever and if possible – those who do have strongly held positions to reconcile their differences. Here we encounter very strong evidence of the switch from strategic calculation to role playing which Checkel sees as fundamental to Type I socialisation. For those states which do have strongly held (or felt) positions, the object of the PSC exercise is to try, through an astute mix of personal persuasion, subtle ‘pitch’ and reasonable bargaining, to find a way of persuading those holding a different line to shift their position. And, when the proceedings reach an impasse because an ambassador has received strict instructions from his or her MFA Political Director to defend a given ‘red line’, then a telephone conversation to the national capital can often be sufficient to get the discussion moving forward again. But the quality of the arguments deployed is also crucial. Another quotation illustrates this point: There is something which struck me when I first came and it was rather unexpected. You have to defend your case very well. The argument counts. The rational discourse is very important, because there is a clear dynamic. If you just have a certain position and you say ‘Ah, but my minister wants this, and that is that [ ... ]’. That, obviously, is not convincing. So you have to prepare your case and you have to present it well and then sometimes a certain dynamic[s] come into play. Because countries come in which don’t necessarily have any interest in the case, and say: ‘Yes, this seems a very good argument, a sensible line to follow’ and then you see that a general mood arises. And then it is very difficult if you are against it. If a wave of consensus starts and you are the only obstacle, then you have to have exceptionally good arguments to turn the tide. Sometimes, colleagues have to say: ‘I just can’t, because my minister is not willing to move’. That happens. But that is not a very comfortable position to be in and nobody likes to say: ‘Yes I understand everybody else, and I would love to agree but I simply have to call home’. Then everybody will agree

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instructions where you have to cross your own red lines, you can then get back to capitals. It is really true that there is a trust among colleagues that they try to find wherever a common basis is possible. It would be a different thing altogether if you always met 26 different colleagues. You simply would not have that crucial element of personal trust that everybody is doing their utmost, whatever is possible to find the best compromise. That is the main element which helps.

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Here we see the crucial importance of the normative suasion which Checkel identifies as the first sign of a shift towards Type II socialisation. That national capitals are prepared thus to compromise is so for several reasons. These reasons give us insight into the scope conditions which allow socialisation in this particular committee to take place. First, although member states retain their long-standing autonomy in national foreign-policy making (the UK Foreign and Commonwealth Office, the German Auswaertiges Amt or the French Quai d’Orsay are no more likely to suddenly throw in the national towel and accept wholesale Europeanisation of foreign and security policy than are the Lithuanian or Maltese Foreign Ministries), they all know that they have a strong vested interest in making CFSP and ESDP work. In these policy areas above all, there is recognition that, most often, the whole will prove to be greater than the sum of the parts. Secondly, there is a strong collective desire to achieve results. Having established the PSC in order to achieve consensus in foreign and security policy, the member states all seriously want the process to be a success. For this reason, it is rare for a proposal to come to the PSC which is clearly going to run up against strongly entrenched national interest on the part of one or more member states. What the PSC is in effect doing is writing on a blank sheet of paper the limits of the possible in CFSP/ESDP (and, by the same token, the profile of the impossible). It is, in a sense, creating an entire policy area from scratch. It is a kind of script-writer for the ESDP story. Debates thus tend to turn around proposals that have a realistic chance of success. In this context, knowing intimately the sense of the prevalent collective mindset, ambassadors will sometimes pitch their initial bargaining positions slightly closer to what they feel would be a consensual position than might have been the case in, say, the PoCo. Thereafter, as they feel their way through the ensuing discussion, they know rapidly what margin of manoeuvre exists and are in a good position to contact the national capital with a suggestion as to how best to progress business. Thus, while the ambassadors are involved in a constant European learning process through daily interaction with their peers, they also perform a second suasion or didactic function with respect to their national capitals, communicating the sense of collective European opinion in the PSC and suggesting ways in which national positions can be modified in order to achieve collective results:

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to let him/her call home. Very, very often, I would say, it is also the case that the colleague will come back and say: ‘Yes, OK we agree!’ Because if there is a very strong sense of consensus, if common sense suggests that such and such is a good compromise, so let’s go for that, unless it is some absolutely essential policy point for a minister, then colleagues can and do convince their capitals. So argument counts and you can create a certain wave where opinions go.

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With our regular meetings, we have a really good feeling of what the mood is in the national capitals. This helps them in the decision-shaping process at home. There are a lot of policy fields where our policy is defined along national lines. And there are a lot of others where we really have no national interest, where we just ask ourselves: is the best option A, B, C or D? When we can see that the mood in PSC is moving towards ‘B’, we can argue at home, ‘OK let’s go with B ... This is obviously the majority mood here’. And one can convince one’s own capital readily easily, as long as there is no direct national core interest at stake. Timing is also important. The fact that the PSC is, in some ways, ahead of the game, allows the ambassadors to avoid their minister being caught off guard by a tricky question from a journalist: We can streamline things at an early stage. Because once you have ten foreign ministers and three have publicly said we would like A and three have gone for B and three are backing C and one has said D, then to bring them back to a common position is very difficult. So early warning is very important – early signalling. They had better not take too early a public position. To be able to inform the capital that the mood seems to be behind B, that helps. Ministers sometimes come up with a position simply because some journalist happens to ask them a question – and then it is difficult to back-track. So that is also one of the functions we can fulfil [ ... ] In this way, although the PSC ambassadors remain under the hierarchical control of their respective Ministry of Foreign Affairs, their capacity to influence thinking and opinion both at home and in Brussels is considerable. A number of them explicitly made the point that they see themselves rather as ‘two-way ambassadors’, facilitating consensus-seeking in both directions. They are involved in a constant, albeit inchoate, process of generating a specifically European strategic culture which amounts to much more than the lowest common denominator of the EU’s member states. This poses the question of leadership. Traditionally, all international actors, and especially powerful actors, have developed a hierarchical relationship between policy-making institutions and central leadership. The former may offer divergent and even at times contradictory advice; but the leader – usually the head of state or government – arbitrates, decides and leads. Nowhere is this process clearer than in countries such as the United States, France and the UK. Over the centuries, this has been the sine qua non of international great power impact. And yet, the EU is, in a very real sense, leaderless (Menon 2007). It is, in many ways, the exact opposite of a great power such as the USA. Ultimate decision-making power rests in the hands of the intergovernmental European Council, represented by its

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heads of state and government. The EU is hugely constrained by the requirement that its security (and even more so its defence) policies be the object of unanimous agreement between 27 sovereign entities. In this sense, it is – almost inevitably – lacking in strategic thrust or ‘heroic’ objectives. US analysts who, detecting intentions from outcomes, have sensed in ESDP an attempt to balance against the US, have seriously misunderstood the processes involved in security and defence policy-making in the EU (Howorth and Menon 2009). But to the extent to which the definition of a ‘new way of doing IR’ is being forged, it is primarily within the PSC that this gestation can be perceived. Finally, it is appropriate to consider some of the differences between PSC ambassadors and the Commission officials studied by Liesbet Hooghe (2005). First, the Commission officials are in post for very long periods, often for a lifetime and socialisation processes take place very much more slowly than among PSC ambassadors who have a three to four year period to achieve results. Although both sets of officials are to some extent subject to both self-selection and selective recruitment processes (which pre- condition them to function well in their respective institutions), pressures of ‘utility maximisation’ – concern for one’s own career and material rewards – work in quite different ways among the two groups. Above all, the Commission officials are preoccupied with the working style of the Commission and eager to merge their previous professional baggage with the new environment. But they are not primarily driven by the need to devise successful policy options. It is here that utility maximisation and socialisation tend to merge in the case of the PSC ambassadors. Their professional success as PSC ambassadors stems directly from their ability to write the ESDP script – to come up with policies, missions and operations for the EU which will allow it to demonstrate both its usefulness and its importance. This also differentiates the PSC from, say Coreper, where there are many more national red-lines to be defended.

Conclusions: Measuring convergence and divergence In conclusion, several brief remarks. First, one should not overstate the success rate of the PSC in forging consensus. There are three areas where members of the committee felt that the achievement of consensus remains very difficult. The first is what might be called ‘America policy’ – the formulation of a collective response to US diplomacy and strategy around the world. The Iraq war is the classic example of the capacity of transatlantic relations to divide Europeans among themselves. During the Iraq crisis of 2002–3, for instance, the PSC, notwithstanding the text of article 25 of the Treaty stating that it should contribute to the definition of policies by ‘delivering opinions to the Council’, was kept entirely at arm’s length from what was certainly the most significant foreign and security policy issue of the entire

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five year period following Saint Malo. Many PSC ambassadors received ‘very strict instructions’ (Interviews in Brussels June 2004) from their respective MFAs that Iraq was to be kept rigorously off the agenda. This stark reality speaks volumes about the relative salience of national security policies as opposed to European policy on security when push really comes to shove. The ability of the US to dispense patronage, to twist national arms and to sow the seeds of division remains very considerable. However, a dominant view among PSC ambassadors is that the traditional division of EU member states into ‘Atlanticists’ and ‘Europeanists’ – a dichotomy much favoured by academics – is no longer accurate or, at the very least, is far too simplistic. Many ambassadors insist that there is no such automatic grouping, and that the way in which different member states will line up on an issue dominated by US policy considerations is essentially issue-specific. Thus the EU-27 would not line up in the same way on the proposed missile- defence scheme as they might on US policy towards Iran, or on US attitudes towards Cuba. The chances are that, on any really contentious issue involving the US, they will break up into opposing groups and that consensus will prove difficult to establish. But all were agreed that simplistic or caricatural designations of various member states as ‘Atlanticist’ or ‘Europeanist’ no longer wash. To some extent, this is actually the consequence of the Iraq crisis, when lessons were drawn in several national capitals about the divisive effect of taking too stark a national position. Thus, neither the traditional UK position of relatively automatic alignment, nor the perceived French position of systematic opposition has any chance of commanding consensus within the EU (or indeed within the PSC). EU diplomats are learning how to couch national responses in such a way as to make them appear to be European responses – the better to attract support within the PSC and the EU. Time will tell how this develops, but there is widespread agreement that, although reaching agreement on ‘America policy’ is always tricky, the lines of division which ran through the EU in 2002–3 no longer hold. EU member states are learning how to react to one another in more subtle ways. The second difficult policy area is ‘Russia policy’. Since 2004 and the last big round of enlargement to former Soviet bloc countries, there have been at least three separate groups of countries in the EU with regard to ‘Russia policy’: those, predominantly but not exclusively from the former Soviet bloc, who are overtly confrontational with Moscow; those predominantly but not exclusively from Western Europe, who are convinced that a pact with Russia (delivering guaranteed oil/gas supplies) is a strategic necessity and are therefore prepared to turn a blind eye to most internal developments in Russia; and those who strive to marry pragmatism with principle. This picture, however, is already changing somewhat as events in Russia as well as discussions within the PSC demonstrate the limits of the possible with respect to ‘Russia policy’. The elements of convergence towards a pragmatic policy towards

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Russia are slowly emerging, both as the new accession states learn empirically that some of their more impulsive suggestions about confronting Russia will never find consensus and as some of the ‘least principled’ member states are forced to face up to the realities of human rights and democracy violations in Russia. There were already, prior to the Georgian crisis in summer 2008, signs that both poles were converging on the centre. The Georgian crisis accelerated that trend. Renewed interviews with several ambassadors to the PSC in September and October 2008 produced significant findings. At meetings of the Committee, as well as at the various meetings of the European Council and the General Affairs Council, an astonishing degree of unity apparently emerged. Interviewees testified that all those involved had themselves been surprised by the degree of EU unity which formed around the need to develop a common, robust and subtle strategic policy towards Moscow. The future will tell whether this development consolidates or whether Russia will succeed once again in dividing the Europeans among themselves. But the role of the PSC in preparing the groundwork for the emergence of a united approach in summer 2008 cannot be underestimated. Finally, on the Middle East, assessment of the collective mindset within the Committee varies somewhat. Some of the ambassadors insist that – especially when compared with the situation 10 or even five years ago – there is little substantial difference between the positions of all 27 national capitals. Others continue to feel that there are still real differences between distinct groups of member states – particularly over issues of ‘toughness’ towards Israel or ‘indulgence’ towards the Palestinian Authority. Yet others insist that these two assessments are by no means contradictory. While every EU member state, they argue, accepts the same bases for ‘final status’ (two states living side by side in stability and harmony, an end to Jewish settlements, an end to suicide missions and a just solution to the problem of refugee return), they can differ over the most appropriate tone for a statement of regret about a particularly muscular Israeli intervention, or over the most acceptable way of interacting with Hamas, or over the most realistic timetable for the further implementation of the Road Map.7 It has been suggested that the fact that the EU did not decide on an ESDP mission (as opposed to a UN mission) in the aftermath of the war in Southern Lebanon in 2006, demonstrates the very real limits to the consensual potential of European foreign and security policy, and that ESDP may in fact already have reached its peak (Podrazic 2007). But ESDP does not aspire to take out a patent or to establish a monopoly on crisis management missions. It is content to help out (the UN, NATO) wherever and whenever it can. That is also an important part of defining the identity of ESDP. These difficult policy areas apart, however, the PSC has demonstrated, in its brief existence, a remarkable capacity to develop initiatives, to mount overseas missions and to manage operations which help define the parameters of an entire new policy area. They have, in short, used intergovernmental

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procedures to achieve supranational outcomes. In so doing, they have come closer to the ethos of the Community method than their conceptors initially intended.

1. During the German presidency in the first semester of 2007, for instance, the PSC met in formal mode on 51 occasions. Allowing for vacations and other days when the committee cannot hold its regular meetings, this averages about 2.5 meetings a week. 2. This research was funded by a grant from the INTUNE project (Integrated and United: A quest for Citizenship in an ever closer Europe) financed by the Sixth Framework Programme of the European Union, Priority 7, Citizens and Governance in a Knowledge Based Society (CIT3- CT-2005-513421). For the project itself, see www.intune.it 3. Namely: European Council; General Affairs Council; Coreper; Political Committee; Council Secretariat; rotating EU Presidency; European Commission; European Parliament; High Representative for the CFSP. 4. This article refers to the establishment of COREPER and the disclaimer effectively ducks the issue of potential turf battles between COPS and COREPER. 5. After the decision was taken, at Amsterdam in June 1997, to create the post of HR- CFSP, member states quarrelled for 18 months over the level of seniority of the individual to be appointed. In the event, Javier Solana appeared as an appropriate and consensual appointee because of his effective, but discreet role as NATO Secretary General, particularly during the Kosovo crisis of 1999. 6. The author interviewed several members of the two previous generations of PSC ambassadors over the period 2000 to 2004/5 and it is his impression that the current generation is slightly older and more senior. 7. In July 2007, 10 EU foreign ministers – from the Mediterranean countries – issued a joint letter to Tony Blair (in his capacity as newly appointed envoy of the Quartet) arguing that ‘the Road Map is dead’.

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Notes

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7 Jörg Monar

Introduction Although only formally introduced by the Treaty of Maastricht in 1993, the domain of EU justice and home affairs (JHA) has become the most rapidly expanding EU policy-making domain of this decade. Since the Treaty of Amsterdam came into force in 1999 – regrouping the JHA fields under the fundamental treaty objective of creating an ‘area of freedom, security and justice’ (AFSJ)1 – the JHA Council has adopted well over a hundred new texts every year, with 164 in 2007 alone.2 Over the same period, a range of new JHA-related institutions and structures – Eurojust and Frontex being the most prominent examples – have been created. Moreover, the budget available for JHA measures has increased more than tenfold and no other policy domain has seen such proliferation of multi-annual action plans – the most notable example being the Action Plan on Combating Terrorism, with over 200 individual measures. Being both a relatively ‘new’ policy domain and one which has its main points of origin in two inter-governmental cooperation frameworks – the TREVI cooperation of the 1970s and the Schengen cooperation of the 1980s – the JHA domain has provided fertile ground for the use of ‘alternatives’ to the Community method. In this chapter we will explore to what extent such alternatives (or deviations) have actually materialised, which form they have taken and whether they can be regarded as effective alternatives to the Community method in terms of their performance. In order to distinguish the ‘alternatives’ from the Community method in the JHA domain however, we first have to define our terms. We regard the following as the five primary constitutive elements of the Community method: (A) the definition of ‘common’ objectives in the treaties, with the goal of deepening cooperation or even ‘common policies’; (B) the transfer of legislative powers to the EC/EU as primary instruments to achieve

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these objectives; (C) the binding effect of such legislation on all member states once adopted through the treaty- defined procedures, which may involve majority voting and codecision by the EP; (D) the conferral of certain ‘supranational’ executive powers on the Commission (especially the exclusive right of initiative, the ‘guardian of the treaties’ function and delegated implementation powers); (E) the existence of binding enforcement procedures against both member states and EU institutions through actions before the ECJ. As a result of these five constitutive elements, the Community method has traditionally had a double bias. First, it is biased in favour of ‘integration’3 rather than mere ‘cooperation’ between the member states (in line with the ‘ever closer Union’ rationale of the EC Treaty), and second, it is biased in favour of legislative action as this constitutes its most powerful and specific instrument. This ‘integration’ bias has encountered major problems in the area of JHA. These issues – especially when they concern internal security – touch upon core elements of the State’s role, reason of being and traditional prerogatives of power (‘pouvoirs régaliens de l’état’) and are also highly sensitive with regard to national sovereignty. Given this, most member states (Barbe 2002) have been wary of any ‘integration’ on JHA issues that involve the transfer of powers to the European level and ‘hard’ EU constraints imposed on national instruments and policies. The same applies to JHA issues which may be less sovereignty sensitive but more politically charged on a domestic level, such as immigration management. Rather than seeking any form of ‘integration’ of their systems and policies, member states have therefore opted for gradually increasing interaction and synergy between their national systems, while wherever possible limiting legislation and common structures which may interfere with national control over JHA instruments. The ‘legislative’ bias has also encountered some specific problems in the JHA domain. Not only is legislative action almost automatically suspected of serving an ‘integrationist’ agenda by some member states (the Commission’s strong emphasis on more legislation in the JHA domain has done nothing to reduce these suspicions), but in many cases legislative action is not the most appropriate governance response to challenges in the JHA domain, even from a purely practical perspective. Operational cooperation between law enforcement authorities, intelligence sharing and analysis, as well as spreading best practices and trust between judges, prosecutors and police officers – to give only a few examples – are all important parts of the construction of the AFSJ and are all in need of a host of other measures in addition to legislation, to make effective progress. The JHA domain can therefore be regarded as a difficult territory for the Community method, and a brief study of the history of its emergence shows that it has indeed had to struggle to establish itself in this area.

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Because of the above-mentioned problems, it took the Community method a long time to make its appearance in JHA cooperation between the member states. Today’s AFSJ developed out of two systems of intergovernmental cooperation (TREVI 1975–93 and Schengen since 1985) from which both the Community method and each of its constitutive elements were formally excluded. The separation from the Community method went as far as the Commission even being initially excluded from participating in TREVI meetings as a simple observer (de Lobkowicz 2002). Even when JHA cooperation was first introduced by the Treaty of Maastricht in 1993, this was done in the form of a separate ‘inter- governmental’ Title VI of the TEU which allowed cooperation in this area to remain outside the EC Treaty realm of the Community method, although some of the above-mentioned constitutive elements made their appearance in the JHA domain. An initial – although ill-suited – set of legal instruments with defined decision-making procedures was introduced and the Commission obtained a non- exclusive right of initiative for the first time. The period of the (Maastricht) ‘old third pillar’ (1993-9) provided a testing ground for alternatives to the Community method. Most of the alternative governance features identifiable today, such as extensive use of non-binding targeting texts, non-legislative convergence support measures and special agencies (see below), emerged during this period. Yet there were many deficits of the Maastricht Title VI TEU provisions: lack of defined common objectives, suitable legal instruments and enforcement procedures, low decision-making capacity, as well as the absence of any mandatory role for Parliament and the ECJ. These drawbacks strengthened the case for the application of the Community method, which then made its partial entry into the JHA domain with the Treaty of Amsterdam reforms in 1999. As a result of these reforms, followed by the passage to codecision in most of the Title IV TEC fields from 1 January 2005 onwards,4 all of the constituent elements of the Community method are now to be found in the fields of asylum, migration, civil law cooperation and border controls. Moreover, their extension to the remaining ‘third pillar’ in the fields of police and judicial cooperation in criminal matters was decided in the Lisbon Treaty. Yet what might appear to be the final triumphant entry of the Community method into the JHA domain – particularly compared with the initial situation – in fact masks a complex coexistence of elements of the traditional Community method, deviations from it, and what can be regarded as ‘alternatives’ to it.

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The slow emergence of the Community method in the JHA domain

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The hybrid legal status of JHA

One of the major deviations from the Community method in the ‘communitarised’ areas of Title IV TEC, are the ‘opt-out’ arrangements granted to the UK, Ireland and Denmark. Opt- outs have been granted to these three countries on the basis of Protocols added to the EU and the EC Treaties by the Treaty of Amsterdam, and largely confirmed by the Treaty of Lisbon. Protocol No. 3 guaranteed the United Kingdom the continuation of its right to exercise controls on persons at its borders with other member states and granted the UK and Ireland a derogation from the Schengen acquis to continue the special arrangements between them for maintaining the ‘Common travel area’. As a result, Ireland and the UK were exempt from the substantial Schengen acquis relating to the Schengen border control system. In particular they did not participate in the abolition of controls on persons at internal borders, arguably one of the most important principles of the AFSJ. Protocol No. 4 granted the two countries a complete ‘opt-out’ (the term is not used because of its negative political connotations) from the communitarised fields under Title IV EC. Finally, Protocol No. 5 granted Denmark a similar opt- out from Title IV EC to that for Ireland and the UK, but with specific provisions on optingin possibilities (see below) which took into account the special position of Denmark as a Schengen member not wishing to be bound by ‘communitarised’ Schengen measures. Of all the opt- outs, the Danish one was the most peculiar – being the result of a political commitment entered into by the Danish Government prior to the 1993 second referendum on the Maastricht Treaty to participate in the JHA domain only at an inter-governmental level. As a result of the three Protocols, these three member states were in principle able to remain completely outside the ‘first pillar’ of the AFSJ. Yet such complete self- exclusion could obviously prevent the three countries from participating in measures of benefit to them, hence the various ‘opting-in’ clauses agreed upon in Amsterdam. Article 3 of Protocol No. 4 thus gave Ireland and the UK the possibility of opting in, as regards any measure proposed under Title IV TEC, at the latest three months after it has been proposed. Even if they decided not to opt in at this stage, they could do so later by virtue of Article 4, subject to the approval of the Commission. In addition, Article 8 of the same Protocol granted Ireland the possibility of opting out of the Protocol – a sort of ‘optout from the opt- out’ – if it no longer wished to be covered by it. Both Ireland and the UK therefore had an opt- out status from Title IV TEC which was combined with a selective opt-in option. Both countries already made

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The JHA ‘opt-out’ arrangements

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ample use of this possibility, for instance, by opting into most measures on asylum and illegal immigration to date but not those concerning borders, visas and legal migration. Denmark was also given an opt-in option, but the Danish case was more complicated because its status as a Schengen member put it under pressure to adopt all Schengen-related measures. Article 5 of Protocol No. 5 dealt with this problem by allowing Denmark six months to decide whether it would implement any Council decision building on the Schengen acquis in its national law. Denmark’s decision however, only created an obligation under international law between Denmark and the other member states. This was one of the most peculiar arrangements in the whole EU legal system because it effectively gave Denmark an opt- out from the specific obligations of the EC legal order in spite of the fact that the measures in question were EC legal acts, which raised questions of constitutional consistency (Thym 2004). The special arrangements for Denmark were completed by an opt- out from the opt-out, similar to the Irish one, in case Denmark no longer wished to avail itself of its Protocol. In the Treaty of Lisbon, the existing opt- out and opt-in possibilities for the three member states are not only fully maintained but even extended – with a number of procedural changes and slight variations5 – to the ‘third-pillar’ fields of police and judicial cooperation in criminal matters. This concession to the three ‘opt- outs’ had to be made in order for them to accept the ‘communitarisation’ (in all but name) of the Title VI EU fields within the framework of new Title V TFEU, with the introduction of qualified majority voting and codecision by the European Parliament. The ‘opting-in’ possibilities provide the ‘opt- outs’ in practice with a very high degree of flexibility. Not only can they decide to ‘opt-in’ during the decision-making stage but also later, after the other member states have adopted the measure. While their votes are not counted if they have not decided to ‘opt-in’ before the formal adoption in the Council, they fully count in case of a declared opt-in. In any case they participate in all the Council deliberations irrespective of any opt-in decision. In practice this ‘pick-and- choose’ option has been used extensively, with the United Kingdom and Ireland having opted into most proposals concerning asylum, illegal immigration and civil law, but only a very few concerning visas, borders, and legal migration (Peers 2004). The optional participation in JHA measures for the respective member states actually suspends the principle of legislative measures applying to all member states, which as we have seen above, constitutes a fundamental element of the Community method. The JHA ‘opt-outs’ are in fact essentially ‘opt- outs’ from the procedural and legal constraints imposed by the Community method, with the special British and Irish position on internal border controls as an important additional factor. The ‘opt-outs’ can be regarded as a deviation from the Community method but also in a certain sense as a cost of this method, given that its actual (or perceived) constraints

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have led some member states to prefer to stay out of aspects of emerging JHA common policies, thereby causing differentiation and fragmentation within the AFSJ.

The legal and procedural context of the ‘third pillar’ was often presented as the inter-governmental JHA counterpart to the ‘communitarised’ JHA fields of Title IV TEC, and the ‘third pillar’ was indeed conceived as a protective device against the ‘integration bias’ of the Community method. But rather than constituting a clear- cut alternative, the post-Amsterdam ‘third pillar’ appeared to be a hybrid, combining elements characteristic of intergovernmental cooperation – such as the absence of effective treaty infringement procedures and a non- exclusive right of initiative of the Commission – with elements characteristic of the Community method. The latter included the definition of common objectives in the Treaty (Articles 29–31 TEU), the definition of legislative legal instruments to achieve these objectives (Article 34 TEU), mandatory consultation of the Parliament (Article 39 TEU) and judicial control by the ECJ (Article 35 TEU). The legal effect of framework decisions under Article 34(2)(b) was brought quite close to that of EC directives by the application of the principle of conforming interpretation to the former in the Court’s Pupino judgment.6 The field of European criminal law – for which explicit EU competences were only provided within the ‘third pillar’ (Article 31 TEU) – was at least partially opened to the Community method by the Court’s 2005 landmark judgment regarding the annulment of Framework Decision 2003/80 on the protection of the environment through criminal law7 in which the Court established that criminal law measures may be based on a ‘first pillar’ legal basis if and insofar as this ‘is necessary in order to ensure the effectiveness of Community law’.8 Finally, the hybrid nature of the ‘third pillar’ has also been increased through a quite significant use of legally binding instruments in the ‘third-pillar’ fields – especially in judicial cooperation in criminal matters – which has reversed the heavy pre-Amsterdam reliance of the Council on non-binding texts and has brought the ‘third pillar’ closer to the ‘legislative bias’ of the Community method. In fact, the total number of binding legal texts adopted in the fields of police and judicial cooperation in criminal matters as well as Title VI TEU horizontal matters, is similar and in some cases even higher than the number adopted in the ‘communitarised’ fields of asylum, immigration, frontiers and visa policy matters (see Figure 7.1). Aside from its different legal base and framework, the ‘third-pillar alternative’ could be distinguished in practice from the application of the Community method in ‘communitarised’ areas on a number of points. Primarily these included the exclusion of any possibility of majority voting in the Council and of codecision by the European Parliament, the absence

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The hybrid nature of the post-Amsterdam ‘third pillar’

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124 Jörg Monar 140 120 100 80

EU VI an d

ue

EC IV s ue

ss .i iz H or Non-binding = Target setting + coordination support

Figure 7.1 Texts adopted by the JHA Council, 1 May 1999–31 December 2007 (postAmsterdam period): Numbers of binding and non-binding texts per policy field9

of formal treaty infringement procedures and a weaker position of the European Commission regarding both policy-initiation and supervision of implementation. These were certainly substantial differences and to a certain extent justified regarding the ‘third pillar’ as an ‘alternative’, but some of these differences could also be regarded as mere ‘deviations’ from the Community method. Given its hybrid nature, the post-Amsterdam ‘third pillar’ could be considered a transitional stage in a process of a growing ‘communitarisation’ of the JHA domain. Whereas the pre-Amsterdam ‘third pillar’ could still be regarded as a fully-fledged inter-governmental alternative to the Community method for this domain, the Amsterdam reforms not only ‘communitarised’ a substantial part of what then became the AFSJ but also introduced elements from it to the remaining, thinned- out ‘third pillar’. The Treaty of Lisbon can therefore be seen as bringing this process almost to completion with the formal abolition of the ‘pillar divide’ and the related extension of all constituent elements of the Community method to police and judicial cooperation in criminal matters. The word almost is fully justified in that even under the Lisbon Treaty, the former ‘third-pillar’ areas retain some procedural features which constitute major deviations from the Community method – such as a non- exclusive right of initiative of the Commission10 and the possibility for individual member states to use what has become known as the ‘emergency brake’ to prevent certain criminal law measures from being adopted by qualified majority.11 The latter especially, a sort of small renaissance of the 1966 Luxembourg compromise, can be seen as another ‘cost’ item on the balance sheet of

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Binding = Tight regulation + framework regulation

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the overall triumphant progress of the Community method in the JHA domain.

Aside from this hybrid nature – significantly eroded by the Lisbon Treaty – there are at least three quite prominent instruments in the JHA domain which are not part of the traditional Community method and can to some extent be regarded as ‘alternative’ features, although in fact they all coexist with the Community method. These include the extensive use of nonbinding target-setting instruments, as well as of a wide range of convergence support measures and special institutional structures. The extensive use of non-binding target-setting instruments The use of non-binding target-setting texts has proliferated in the JHA domain and can be taken as an indication of preference for ‘lighter’ forms of governance, which aim for progress through cooperation targets, rather than ‘hard’ legislative action. One can broadly distinguish between two sub- categories of instruments. The first are the functional target-setting texts. This group includes Council ‘Resolutions’, ‘Recommendations’ and ‘Conclusions’ as well as ‘Guidelines’ and ‘Best Practice Manuals’. It focuses on the setting of targets for improving the functioning of often fairly specific aspects of cross- border cooperation between the member states. Typical examples are the Council Recommendation of 30 March 2004 regarding guidelines for taking samples of seized drugs12 and the Council Resolution of 4 December 2006 on ‘handbook’ recommendations for international police cooperation and measures to prevent and control violence and disturbances in connection with football matches with an international dimension.13 Targets or guidelines in this subcategory are often quite detailed and can sometimes resemble legislative texts in the density of their provisions. The second subcategory consists of programme target-setting, and comprises ‘Action Plans’, ‘Programmes’ and ‘Strategies’ which define common measures – whether legislative or operational – which the member states are planning to adopt, often in combination with specific deadlines, in a multi-annual perspective. The extensive use of such programming documents is one of the most characteristic features of EU governance in the JHA domain. The development of the AFSJ as a whole is governed by one such programming document. Thus the ‘Tampere Programme’, which ran from 1999 to 2004, was followed by the Hague Programme (2005) and then by the Stockholm Programme (2009). But the Council has also adopted a whole range of similar documents for major fields of the AFSJ – often with a cross-pillar dimension – containing broad descriptions of objectives to be achieved and individual measures to be adopted in view of those objectives.

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Alternatives to the Community Method

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The most detailed of these is the repeatedly amended EU Action Plan on Combating Terrorism14 which comprises over 200 measures extending to all three ‘pillars’ of the EU. Other examples are the 2002 Council Plan for the management of external borders,15 the 2005 to 2008 EU Action Plan on Drugs16 and the 2005 EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings.17 What is common to all types of target-setting in the JHA domain – both functional and programming – is that they do not take the form of legislative acts. Whereas some of the instruments in this category – especially the recommendations, resolutions and conclusions – may entail an indirect legal effect, for instance as a preliminary to a subsequently binding instrument or a source of interpretation for provisions of binding instruments, such effects are highly dependent on the individual case and can certainly not be the basis for generalisation. Yet in spite of the absence of legally binding forces, there is a relatively high degree of rigidity in most of the JHA target-setting texts in the sense that they prescribe – often in minute detail – a line of action the member states and the institutions are expected to follow. The statistics of the Council texts adopted from 1 May 1999 to 31 December 2007 reveal that with 257 texts out of 1,036 (24.8%), target-setting instruments form the most frequently used category of governance instruments in the JHA domain and have been used roughly as frequently as tight regulatory instruments (see Figure 7.2).

300 257

256 250

212 200

184

150 100

87 40

50 0 Tight regulation

Framework regulation

Target setting

Convergence Administrative, support financial and procedural matters

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External governance

Total 1999–2007: 1036

Figure 7.2 Texts adopted by the JHA Council, 1 May 1999–31 December 2006 (postAmsterdam period): Total numbers in all categories

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As a large number of these regulatory instruments deal with technical matters – such as specifications and rules applying to information exchange systems (the SIS, for instance) – their relative importance for the construction of the AFSJ can be considered even greater. The political preference for ‘lighter’ forms of governance and coordinating and cooperative instruments can be regarded as the main reasons for this, but the strong operational dimension of the JHA domain is also a contributing factor, as binding texts are often seen to be too inflexible for rapidly evolving operational needs as well as potentially too invasive into national structures, priorities and practices. The differences with regard to the Community method as defined above are obvious here in the lack of legally binding force, the absence of enforcement procedures and any mandatory control by the Parliament and the Court, and the fact that these target-setting measures were often initiated by member states rather than the Commission. Yet this does not mean that they are incompatible with the Community method, and target-setting instruments are also used in ‘communitarised’ fields – such as, for instance, border control measures – although overall to a lesser extent than in the ‘third pillar’ area. The extensive use of convergence support measures Preference has so far been given to coordination of and cooperation between the relevant national structures rather than to their integration. Consequently, a significant number of measures have been adopted in the JHA domain to support such coordination through evaluation mechanisms and reports. The texts adopted in this framework do not set out any rules or even guidelines to be complied with, but rather identify performance or implementation weaknesses at the European and the national level, and areas where the need for further action is felt; or they simply provide situation assessments on the basis of which action can be taken. They comprise, for instance, the regular (classified) evaluation reports on the implementation of the Schengen rules by current Schengen member states (so-called ‘Schengen evaluations’), the collective evaluation reports on the state of preparedness of candidate countries for implementing the JHA acquis (Council, 2006) and evaluation reports on specific issues such as, for instance, on the exchange of information and intelligence between Europol and the member states and between the member states respectively.18 Also within this category fall situation or monitoring reports and threat assessments regarding specific forms of crime19 or illegal immigration, and facilitation reports on data protection issues and information studies. Although all these texts do not entail any legal consequences – a negative evaluation report cannot legally ‘force’ a member state to act on its own weaknesses – they contribute to varying degrees to a convergence between the national systems within the cooperative and coordinated space that

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the AFSJ constitutes. They do so by ‘encouraging’ member states to address identified weaknesses through the peer pressure resulting from a negative report, and by contributing to a common perception of problems and needs for action through common situation assessments. Reports can also serve as an instrument of ‘collective discipline’, reminding national governments and authorities collectively that they need to make additional efforts to meet agreed objectives.20 These convergence support measures are clearly less prescriptive than the above-mentioned target-setting instruments, but compliance is not a purely voluntary matter either as all member states submit to these rule-based procedures and reports. Moreover, situation assessments are oriented towards more convergence in the implementation of agreed measures and provide a better basis for further identifying common measures that might be needed to achieve agreed objectives. Numbering 212 out of 1,036 texts (20.5%) for the 1999 to 2007 period (see Figure 7.2) convergence support measures account for the third largest group of texts adopted by the Council. They clearly do not fall within the scope of the constitutive elements of the Community method as identified earlier. They not only lack any binding legal effect but are also outside of any formal control by the European Parliament and the Court. Again the political preference for ‘lighter’ forms of governance and coordinating and cooperative instruments can be regarded as the main reason for the extensive use of this category of instruments. A slightly cynical view would be that national governments obviously prefer to be reminded that they are failing to respect certain obligations by evaluation reports rather than face possible sanctions in a tight regulatory context. Yet the strong operational dimension of the JHA domain is also of some importance in this context as it is often only through detailed reports or situation assessments ‘on the ground’ that certain deficits of operational cooperation and coordination and/or needs for new forms of operational coordination and cooperation can be identified. In this sense, there is a JHA specificity in the extensive use of these convergence support measures. Although not falling within the scope of the Community method they can very well be complementary to it; indeed, convergence support measures are also used in the ‘communitarised’ JHA fields of Title IV TEC.21 The extensive use of special institutional structures

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Since the 1990s, the JHA domain has been marked by a massive process of institutionalisation: not only has it led to the establishment of more than 30 specialised Council committees and working parties within the decisionmaking hierarchy of the JHA Council, and the establishment of two fullyfledged directorate-generals in the Council and Commission, but it has also been populated by an increasing number of institutional structures specific to this area of EU policy-making (Monar 2002). These include the special

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agencies Europol (The Hague), Eurojust (The Hague) and Frontex (Warsaw), which all have information exchange and analysis as well as coordination functions; the office of the EU Counter-Terrorism Coordinator (CTC) in the General Secretariat of the Council; the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA, Lisbon); the European Monitoring Centre for Racism and Xenophobia (transformed in 2007 into the EU Agency for Fundamental Rights in Vienna); and the European Police College (CEPOL, Bramshill). All these structures contribute, to varying degrees, to the facilitation of cooperation and coordination between national authorities, convergence between practices and the preparation of EU decision-making on JHA measures and programming. Although none of these structures have a formal regulatory function they nevertheless make a significant contribution to cooperation and coordination. Through its assessments of serious cross-border crime in the EU as a whole, Europol not only contributes to a common assessment of major internal security risks but also to the identification of cross-border crime networks and related targets in several member states. Europol also provides analytical and technical support for coordinated operational activities in response to these targets, and contributes to the work of joint investigation teams (JITs). 22 Eurojust not only facilitates cross- border interaction between national prosecution authorities, but can also request that these authorities initiate prosecution, coordinate prosecution activities across borders, help avoid conflicts of jurisdiction, push for the setting-up of JITs and identify, facilitate and monitor the application of the European Arrest Warrant and promote best practices in cooperation between prosecutors. 23 In the case of Frontex, the youngest of the EU’s special agencies, the coordination role is even more pronounced. Based on integrated external border risk assessments and demands formulated by national authorities, Frontex sets up and coordinates joint operations of member states on external border control and security matters, and initiates pilot projects on testing new aspects and techniques of border management. It also plays an important role in defining common training standards and spreading best practices in external border management,24 thereby also playing a role in terms of target-setting in the operational context. Although the EU Counter-Terrorism Coordinator has not been vested with any ‘hard’ coordination powers, he/she fulfils an important role in the monitoring of the implementation of the EU Action Plan on Combating Terrorism and the identification of weaknesses in both the implementation of the Plan and interaction between national authorities (CTC 2008). Finally, the European Police College also contributes to the approximation of standards and practices in a cross- border policing context, through training courses aimed at the transfer of advanced policing techniques and best practices, the development of common curricula, and surveys of national policing practices (see e.g. European Police College 2008).

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The extensive use of such special institutional structures within the AFSJ appears to work as an alternative to the Community method to some extent. Because of the sensitivity of all operational law enforcement aspects from a national sovereignty and executive control point of view, member states have been wary of entrusting the ‘supranational’ Commission with any implementation powers in this respect. Both the information exchange and analysis, which is in many respects still limited, as well as coordination functions that member states have been willing to entrust to the EU level have therefore instead been conferred upon a range of special structures which remain firmly under the control of member states – staffed mainly by personnel delegated from national authorities, governed by boards controlled by national representatives and heavily dependent on national authorities for information supply. Once again, this ‘alternative’ is by no means incompatible with the Community Method. With the establishment of Frontex in 2005, the type of operational support agency which first emerged in the context of the ‘inter-governmental’ pre-Amsterdam ‘third pillar’ with Europol, has also made its first appearance in the ‘communitarised’ fields, so that in this case too the Community method now coexists with a governance feature falling outside of its traditional core elements.

Overall assessment Although the area of justice and home affairs has been a rich testing ground for the proliferation of alternatives to, and deviations from the Community method since the early 1990s, the Community method has increasingly gained ground. Now that the Lisbon Treaty has come into force, it has become the predominant method of governance for the further construction of the AFSJ. The ascendancy of the Community method finds some justification in the undeniable lack of effectiveness of the alternatives. The ‘thirdpillar’ has been rightly associated with slow, lowest common denominator decision-making as well as major implementation deficits. 25 There has been a growing gap between the proliferation of agreed objectives in programming documents and the actual achievement rate. The strategic Hague Programme itself is a case in point; its framework objectives are broadly adhered to and are to a considerable extent defining the Commission’s and the Council’s agenda. Yet some objectives are only vaguely defined, deadlines are often missed and the overall implementation deficit at the EU level is considerable. In its July 2008 report on the implementation of the Hague Programme, the Commission stated that at the end of 2007 only 38% of the AFSJ measures programmed had been adopted in accordance with the original deadlines – a state of affairs that the Commission diplomatically described as ‘rather unsatisfactory’ (Commission 2008: 2–3). In addition, many of the instruments that were eventually adopted were

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implemented at the national level only with considerable delays, especially in the ‘third-pillar’ context, where effective infringement procedures were missing.26 The monitoring and peer- evaluation mechanisms often have a ‘window- dressing’ side to them, which reduces their effectiveness,27 and even when deficits are identified they do not often lead the member states to take rapid remedial action. The special institutional structures continue to be very much dependent on the cooperation of national authorities, which is to a considerable extent still voluntary and not always forthcoming. The absence of any codecision rights of the European Parliament – for which the often limited scrutiny possibilities of national parliaments cannot effectively compensate – in combination with the reduced possibilities of judicial control by the Court, also raise questions about the legitimacy of the alternatives. Yet the alternatives also have a positive side to them. Much of the expansion of the JHA domain in the EU during the last decade would very likely not have taken place without them. Member states would certainly have been much more reluctant to agree on an increasing number of common objectives and engage in a wide range of new cooperation areas and mechanisms (even in such sensitive fields as criminal justice and police cooperation) if they had been subject to the more hierarchical and rigid features of the Community method such as judicial enforcement procedures, an exclusive right of initiative, the stronger executive role of the Commission and moves towards qualified majority voting. In spite of the shortfalls in both substance and implementation, the ‘alternatives’ have provided opportunities for real progress in terms of the widening of coverage and new mechanisms (for instance regarding the role of the special institutional structures) and a variety of flexible measures to support increasing convergence between national priorities and practices (for instance through joint risk assessments, best practice transfers and the development of common curricula). They have also at least partly provided ‘lighter’ and highly flexible instruments that are better adapted to the strong operational dimension of the AFSJ. It should also not be overlooked that the progress of the Community method has come at a considerable cost in terms of both differentiation within the AFSJ through the opt- out ‘deviations’ and additional procedural complexity (culminating in the Lisbon Treaty ‘emergency brakes’). The Commission has repeatedly taken the view (not without a certain degree of institutional self-interest, one may assume) that the complete extension of the Community method to all JHA fields is the answer to all of the current problems with the construction of the AFSJ (Commission 2006: 14). Yet apart from the fact that, as indicated above, some of the progress in the JHA domain would very likely not have taken place without the ‘alternatives’ there is also the question how much each successive extension of the Community method is worth in terms of further differentiation and complexity – a question which in some EU circles naturally falls under an

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almost ideological taboo. In should also be underlined that serious implementation problems at the EU level are not only to be found in the ‘thirdpillar’ fields but also in some of the ‘communitarised’ fields, EU asylum and visa policies being the primary examples,28 so that the Community method clearly cannot be regarded as a panacea for all the AFSJ’s ills. The progress of the Community method also needs to be qualified by the fact that today it actually coexists with the ‘alternative’ governance features of the extensive use of non-binding target-setting instruments, convergence support measures and specialised institutional structures. All three of these can be regarded as real ‘alternative’ features in the sense that they are governance phenomena which all fall largely outside the governance perimeter defined by the five constitutive elements of the Community method identified at the outset. Yet all of them currently coexist to varying degrees with the Community method in the domains communitarised by the Amsterdam and Lisbon treaties. The latter even codifies the use of peer review procedures for the first time.29 One could say that these ‘alternative’ features can both complement the Community method in fields (such as cross-border law enforcement operations) to which its instruments and procedures appear at the very least not ideally suited, and replace it where member states are not willing (or not yet willing) to accept its more ‘integrationist’ and ‘legislative’ orientation for political reasons. In a Union struggling to cope with the governance challenges caused by the tensions between enlargement-related diversity and ever-increasing internal complexity on one hand and a rapidly widening JHA agenda on the other, the constructive coexistence of the Community method with these and potentially other ‘alternatives’ appears not only as a reflection of reality but also as a pragmatic and sustainable way forward for the further construction of the AFSJ.

Notes 1. Article 2 TEU. 2. Information provided by the DGH General Secretariat of the Council. 3. The term ‘integration’ is used here along the lines of the definition of economic integration developed in B. Baelassa (1961) with the very basic meaning of a process oriented towards the creation of a single new system through the merging of several separately existing ones as opposed to ‘cooperation’ as a process in which these systems interact but remain essentially separate. 4. Decided by Council Decision of 22 December 2004 (2004/927/EC), OJ L 396 of 31 December 2004, the codecision procedure with qualified majority voting has applied since 1 January 2005 to all communitarised JHA areas under Title IV TEC with the exception of measures relating to legal immigration and to family law, to which the unanimity requirement continues to apply. 5. The Danish ‘opt- out’, for instance, will not apply to the laying down of the conditions and limitations under which national law enforcement authorities may operate in the territory of another member state (Article 89 TFEU) – the unanimity requirement in the Council and the mere consultation of the European

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6.

7. 8. 9.

10. 11.

12. 13. 14. 15. 16. 17. 18. 19.

20.

21.

22. 23. 24.

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Parliament on these measures apparently being considered sufficiently ‘intergovernmental’ by the Danish Government to relinquish the ‘opt- out’ on this issue. In this judgement (Case C-105/03 Pupino [2005] ECR I-5285) the Court held that that ‘the principle of conforming interpretation is binding in relation to framework decisions adopted in the context of Title VI TEU’ and that ‘when applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues’. In this, the Court went a long way to align the legal effects of Title VI TEU framework legislation with those of the arguably more ‘integrative’ context of similar EC legislation. Case C 176/03, Commission v. Council [2005] ECR I-7879. Ibid., para 52. For the implications regarding the applicability of the Community method to criminal law see K. Apps (2006) and Spinellis (2006). Categories and calculations by the author based on figures and lists obtained from the General Secretariat of the Council of the EU. For the methodology used see J. Monar (2006). According to Article 76 TFEU legislative initiatives in these fields can also be brought by a quarter of the member states. With regard to the adoption of directives establishing minimum rules regarding criminal procedure (Article 82(3) TFEU) and the establishment of minimum rules concerning the definition of criminal offences (Article 83(3) TFEU), the Treaty of Lisbon provides that a member state which considers that the draft directive act could ‘affect fundamental aspects of its criminal justice system’ may request a suspension of the ordinary legislative procedure and the referral of this act to the European Council. If the European Council does not reach a ‘consensus’ within four months, a group of at least nine member states will be authorised to proceed with the measure in question in the form of an ‘enhanced cooperation’. OJ No. C 86 of 6 April 2004. OJ C 322 of 29 December 2006. Council document no. 7233/07 of 9 March 2007. Council document no. 10019/02 of 14 June 2002. OJ No. C 168 of 8 July 2005 (based on the EU 2005 to 2012 ‘Drugs Strategy’). OJ No. C 311 of 9 December 2005. For a rare (and not completely declassified) example see Council (2006b). Such as the annual Europol threat assessment report on organised crime (OCTA) which exists in a full version which is classified and an abridged version which is public. See Europol (2008a). An example are the regular reports of the EU Anti-Terrorism Coordinator on the implementation of the EU Action Plan to Combat Terrorism, which identifies major deficits in the implementation of legislative acts, in information supply and coordination. See, for instance, the report of November 2006, Council document no. 15266/1/06 of 24 November 2006. Examples are the ‘annual’ and ‘tailored’ risk assessments regarding ‘communitarised’ external border control and surveillance issues carried out by the Frontex external border management agency. See Frontex (2008), pp. 39–50. See Europol (2008b). Examples are given in Eurojust (2008). See Frontex (2008).

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25. The Commission made this point forcefully in its June 2006 Communication when advocating the use of the Article 42 TEU ‘passerelle’ for the ‘communitarisation’ of the ‘third-pillar’ fields (Commission 2006). 26. A major example is a range of legislative counter-terrorism measures, like the Framework Decision on Combating Terrorism, which should all have been fully implemented by June 2004 but were still not by all member states in 2008 (CTC 2008: 2–4). 27. In 2003, with regard to the peer review of maritime border control standards the Commission stated in unusually blunt terms that, ‘These assessments are couched in courteous, diplomatic terms, and the procedure is basically a peer review of the relevant administrative bodies, so that what the outside observer sees is an exchange of compliments allowing the Member State being visited basically to look good (window- dressing).’ (Council document no. 11490/1/03 of 19 September 2003: 6). 28. The Commission, normally a defender of the better record of the ‘communitarised’ fields, admitted as much when it referred to the ‘mixed results’ in these two fields in its 2008 Hague Programme implementation report; see Commission (2008): 5–7. 29. Article 70 TFEU provides for the possibility of measures whereby member states are to ‘conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States’ authorities’.

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8 Jonathan Zeitlin

The OMC and the Community method The Open Method of Coordination (OMC) was launched at the extraordinary European Council in March 2000 as a broadly applicable new governance instrument designed to assist the Union in achieving the ambitious goals of the Lisbon Strategy through iterative benchmarking of national progress towards common European objectives and organised mutual learning. This new method built directly on the experience of new Treaty-based processes introduced for the coordination of member state policies during the 1990s, notably the Broad Economic Policy Guidelines (BEPGs), created to coordinate macro- economic policies, and the European Employment Strategy (EES), launched in the wake of the Amsterdam Treaty.1 The OMC was defined, by the Portuguese Presidency at Lisbon and afterwards, as an ensemble of four interdependent procedural elements closely modelled on the EES: ●

●

●

●

Fixing guidelines for the Union combined with specific timetables for achieving the goals which they set in the short, medium and long term; establishing, where appropriate, quantitative and qualitative indicators and benchmarks against the best in the world and tailored to the needs of different Member States and sectors as a means of comparing best practices; translating these European guidelines into national and regional policies by setting specific targets and adopting measures, taking into account national and regional differences; periodic monitoring, evaluation and peer review organized as mutual learning processes. (European Council 2000: §37; cf. also Council 2000a)

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The Lisbon European Council authorised the application of the OMC to a wide range of policy areas including Research and Development (R&D)/ innovation, information society/eEurope, enterprise promotion, structural economic reform, social inclusion, and education and training. In the years following Lisbon, OMCs were introduced to a number of further policy fields, including pensions, health and long-term care, youth policy, better regulation, and most recently, culture. Proposals were also advanced by the Commission and others to extend the OMC to a host of other policy areas, such as immigration, asylum, occupational health and safety, environmental protection, disability, and fundamental rights. In addition, following recommendations from the Commission’s High Level Group on Industrial Relations (2002), the European social partners have drawn inspiration from the OMC for the monitoring and follow-up of non-binding framework agreements and guidelines at both cross-industry and sectoral levels. Significantly, however, many of these new OMC processes did not include the full four-stage governance architecture defined at Lisbon, but only fragmentary elements, such as European Action Plans, objectives, targets, scoreboards, indicators, peer review, or exchange of good practices.2 The OMC was explicitly conceived by its architects as a new approach to EU governance: a ‘third way’ for EU governance between regulatory competition and harmonisation, capable of opening a sustainable path for the Union between fragmentation and a European superstate (Larsson 2000; Rodrigues 2001; Telò 2002). Many academic and political commentators embraced the OMC as a suitable instrument for identifying and pursuing common European concerns while respecting legitimate national diversity; it commits member states to work together in reaching shared objectives and performance targets without seeking to homogenise their inherited policy regimes and institutional arrangements (Hemerijck and Berghman 2004). Likewise, many viewed the OMC as a promising mechanism for promoting experimental learning and deliberative problem solving across the EU because it systematically and continuously obliges member states to pool information, compare themselves to one another, and reassess current policies against their relative performance (Cohen and Sabel 2003; Zeitlin 2005c). For all these reasons, during the years immediately following the Lisbon Summit, the OMC rapidly became the governance instrument of choice for EU policy-making in complex, domestically sensitive areas where the Treaty base for Community action is weak, where inaction is politically unacceptable, and where diversity among Member States precludes harmonisation. The OMC’s rapid diffusion led to widely voiced concerns that such ‘soft law’ procedures could represent a threat to the ‘Community method’ of European integration based on binding legislation initiated by the Commission, enacted by the Council and the Parliament, and enforced

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by the Court of Justice. In its White Paper on European governance, for instance, the Commission stressed that ‘the use of the OMC must not upset the institutional balance nor dilute the achievement of the common objectives in the Treaty. In particular, it should not exclude the European Parliament from a European policy process’ (European Commission 2001: 22). It has equally been considered a threat to the alternative method of EU social legislation, introduced by the Treaty of Maastricht, whereby European social partners negotiate framework agreements on issues proposed by the Commission, which are then approved as legally binding Council directives and implemented by the Member States either through transposition into domestic legislation or (more rarely) through encompassing collective agreements at the national level. The assumption here is that the OMC’s availability as a ‘soft law’ option may displace the use of ‘hard law’ instruments even where the EU already possesses legislative powers. Such concerns have led to repeated demands by the Commission, the European Parliament, the Convention on the Future of Europe, and others that the OMC should not be used when legislative action under the Community method is possible. 3 But this objection misses the mark both empirically and conceptually. The OMC was never intended to serve as the sole governance instrument for the pursuit of the Lisbon Strategy, but was always supposed to be combined with the full set of EU policy tools, including legislation, social dialogue, Community action programs, and the structural funds. Empirically, there is little evidence that the OMC has in fact displaced EU legislation. Thus the Commission’s proposals to use the OMC to monitor and supplement existing European legislation in immigration and asylum policy were rejected by the Council – not because member states considered them too soft, but rather because they found an open- ended public evaluation of their comparative performance in this politically sensitive area too intrusive (Caviedes 2004). Even in the highly charged social policy field, where the OMC on Social Protection and Social Inclusion (OMC/SPSI) has become the guiding framework for EU policy-making, there is no sign, as Pochet’s chapter in this volume shows, of any decline over the past decade in the number or significance of new directives enacted. Nor do we observe a clear practical separation between the OMC and other Community governance instruments. Often, there is ‘an integral continuity’ between the legally binding norms embodied in EU framework directives (whether enacted through the ‘classic’ Community method of legislation or through the social dialogue procedure) and the ‘soft’ commitments of the EES guidelines, as in the regulation of part-time work or private pensions (Davies and Freedland 2004; Kilpatrick 2006; Natali 2004). Many directives also include non-mandatory provisions, which are frequently transposed into national law, as in the cases of part-time work, parental leave, gender equality, disability rights, and occupational pensions (Falkner et al. 2005). National plans for the use of the structural and cohesion funds

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are increasingly closely integrated with the objectives of OMC processes in employment and social protection/inclusion as well as with those of the Lisbon Strategy more generally (European Commission 2007, 2008: 96–8; Kilpatrick 2006; Trubek et al. 2006). Furthermore, EU budget lines and Community Action Programmes on employment and social inclusion (now unified as the Programme on Employment and Social Solidarity – PROGRESS) have likewise played a critical role in supporting horizontal networking and participation of civil society and subnational actors in the EES and the OMC/SPSI (Zeitlin 2005b). At a still deeper level, ‘hard law’ directives themselves increasingly incorporate provisions for implementation, monitoring, evaluation, peer review, and periodic revision through ‘soft law’ OMC- style procedures. A prominent case in point is the Water Framework Directive (WFD) and its Common Implementation Strategy (CIS). Adopted in 2000 after years of intense negotiation, the WFD replaces seven detailed directives with a single broad, integrative regulatory framework. This aims to improve water quality and sustainability across the EU through integrated management of river basins, while requiring member states to achieve ‘good status of water quality’ by 2015 – an explicitly open- ended and multi- dimensional concept. Central to the practical implementation of the WFD is a new institution not formally envisaged in the directive itself: the CIS – an ‘informal’ forum for ‘open cooperation’ and information sharing created to help member states achieve good water status and avoid regulatory conflicts arising from incompatible national practices. The CIS operates through three nested levels of organisation, involving expert working groups overseen by national Water Directors, the Commission, and the Council Presidency, with broad participation from industry and environmental stakeholders. Its primary outputs are non-binding, technical guidance documents, such as indicators and values for measuring and defining ‘good’ water status, which are subject to ongoing review and update. Member states, however, are also obliged to submit regular reports to the Commission on the implementation of the directive, including both water management plans and programs for monitoring water status. The Commission, in turn, produces its own regular implementation progress reports, including reviews of EU water status, surveys of member state water management plans, and proposals for future improvement – all of which draw on scoreboards based on benchmarks developed through the CIS. These implementation activities feed directly and indirectly into revisions of the WFD, both in the form of legislative proposals for new daughter directives and the transformation, in some cases, of technical guidance documents into legally binding requirements by the Commission acting under comitology procedures.4 The WFD/CIS is only one instance of a new architecture of experimentalist governance in the EU, based on recursive processes of framework rulemaking and revision through networked deliberation among European and

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national actors, which is transforming the Community method in practice, if not (yet) in theory. In this architecture, framework goals (such as ‘good water status’, full employment, a unified energy grid, non-discrimination) and measures for gauging their achievement are established by joint action of the member states and EU institutions. Lower-level units (such as national ministries or regulatory authorities and the actors with whom they collaborate) are given the freedom to advance these ends as they see fit. But in return for this autonomy, they must report regularly on their performance and participate in a peer review in which their results are compared with those of others pursuing different means to the same general ends. The framework goals, performance measures, and decision-making procedures are themselves periodically revised by the actors, including new participants whose views come to be seen as indispensable to full and fair deliberation. Though this architecture cannot be read off from Treaty provisions or (most) textbook accounts of the formal operation of EU institutions,5 it has nonetheless diffused rapidly over the past decade through a variety of organisational forms such as fora, councils of regulators, networked agencies, and OMCs across a wide range of policy domains. Well- documented examples of this experimentalist architecture in the EU now include telecommunications, energy, data privacy, drug authorisation, occupational health and safety, environmental protection, food safety, maritime safety, financial services, competition policy, state aid, anti- discrimination policy, fundamental rights, justice and home affairs, and external relations (Sabel and Zeitlin 2008, 2009). From this perspective, the Community method should not be seen as a distinctive mode of governance, based on hierarchical authority and ‘command-and- control’ regulation, but rather as a procedure for enacting European legislation which, as the Water Framework Directive illustrates, can take experimentalist as well as conventional forms.

The OMC in action6 The most widespread critique of the OMC, however, has focused less on the potential threat to the Community method than on its limited practical effectiveness and alleged lack of substantive impact on policy-making in the member states. Despite the explosion of research on the OMC in recent years,7 much of the debate over its effectiveness continues to suffer from a serious empirical deficit, relying on a limited range of often outdated evidence onto which authors project their own theoretical and normative assumptions.8 Thus, many of the most critical assessments of the OMC are not based on original first-hand research on the method in action (e.g. Citi and Rhodes 2007; Hatzopolous 2007; Moravcsik 2005; Radaelli 2003).9 The 2004–5 mid-term review of the Lisbon Strategy, which reached harsh conclusions on the ineffectiveness of the OMC in promoting domestic reforms in EU member states, was also a surprisingly non-evidence-based process.

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Thus, the Report of the 2004 High Level Group chaired by Wim Kok did not systematically review the available evidence on the performance of OMC processes, such as the extensive mid-term review of the EES in 2002, or the report of the 2003 Employment Task Force (also chaired by Kok), both of which reached more positive assessments. Similarly, the European Commission’s (2005) Lisbon New Start communication appears to have neglected both internal and external evidence on the successes and failures of different OMC processes, such as an independent evaluation of the eEurope program and other information society initiatives, which concluded that the OMC in these areas ‘cannot yet be said to be a success or failure’, because it ‘simply has not been fully implemented’ (Tavistock Institute et al. 2005). Empirical assessment of the OMC is extremely challenging for a number of interrelated reasons which include: the variety of distinct processes with different institutional characteristics subsumed under the OMC rubric; their relative newness and the frequency of procedural changes to even the most highly institutionalised processes, such as those for employment and social inclusion; and the horizontal and vertical complexity of OMC processes, which typically cut across sectoral policy domains and involve multiple levels of governance (European, national, subnational) in 27 member states (15 before 2004). Most fundamental, however, are the methodological difficulties of assessing the causal impact of an iterative process based on collaboration between EU institutions and member states, without legally binding sanctions. Thus, member state representatives continuously participate in the definition of OMC objectives, guidelines, targets, and indicators, allowing ‘uploading’ of domestic concepts and preferences which blur the causal boundary between the national and European levels. The OMC processes do not necessarily result in new legislation or justiciable obligations, rendering the concept of member state ‘compliance’ problematic. Member states may often have political reasons for playing up or down OMC influences on domestic policy, from strategies of blame avoidance and credit claiming at home to self-presentation as a ‘good European’ or a defender of the national interest in Brussels. Nor is it easy to isolate the influence of the OMC on national policy from those of other EU-level processes (such as the Stability and Growth Pact, European court decisions, or the structural funds), other international organisations (such as the Organization for Economic Cooperation and Development, the World Bank, or the International Monetary Fund), and domestic political changes (such as shifts in government). In each of these respects, the OMC encapsulates in extreme form the broader methodological problems involved in studying the impact of ‘Europeanisation’ on domestic policy and politics.10 These difficulties are not merely theoretical. Researchers studying the same national and sectoral cases often disagree about the magnitude and significance of the OMC’s influence. A noteworthy example is the impact of

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●

●

●

contextualised process tracing, in order to identify and assess the practical influence of the OMC (alongside other factors) on domestic actors, debates, procedures, and policies in specific contexts (national, sectoral, temporal); careful triangulation of documentary and interview evidence within and between studies, in order to multiply points of observation and offset sources of bias;11 systematic comparison of research findings across countries, policy domains, and time periods, in order to identify and explain both general tendencies and dimensions of variation.

Yet many of the sources of controversy about the OMC’s national influence are conceptual as well as empirical. Researchers disagree not only about the magnitude of the OMC’s impact in different countries and policy fields, but also about what types of influence should count as significant, and through what causal mechanisms they might be generated. Thus, for example, Citi and Rhodes (2007) propose a comparative assessment of OMC processes in terms of their ex ante capacity for securing policy convergence across EU member states. Analysts of the OMC as a new form of experimentalist governance argue instead that it is more properly assessed as a mechanism for promoting convergence of performance, through comparisons of experience in implementing alternative approaches to reaching common objectives in different national contexts (Sabel and Zeitlin 2008; Zeitlin 2005c). Similarly, many critics of the OMC’s capacity to promote cross-national learning consider the method a failure because peer review and exchange of good practices rarely result in direct transfer of identical policies and programs from one country to another (Casey and Gold 2005; Kerber and Eckhardt 2007; Schludi 2003). Proponents of ‘contextualised benchmarking’ argue conversely that successful borrowing from abroad typically requires extensive adaptation of foreign models and practices to fit local circumstances, while cross-national learning induced by such processes often takes an analogic rather than a directly mimetic form (Hemerijck 2007; Sabel 2004, 2005; van Gerven and Beckers 2009; Visser 2009; Zeitlin 2003, 2005c). Many critics of the OMC take substantive policy change, especially as reflected in new legislation, as the main criterion for assessing its domestic

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the European Employment Strategy (EES) in Germany, where some researchers see only ‘surface integration’ (Büchs and Friedrich 2005), while others find deeper cognitive and practical influences on the design of key measures such as the Hartz labour-market reform legislation, as well as on the strategies pursued by employers and other non-state actors (Heidenreich and Bischoff 2008; Preunkert and Zirra 2009; Zohlnhöfer and Ostheim 2005). Thorny as these methodological problems are, they can be mitigated through a combination of research strategies:

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influence (e.g. Citi and Rhodes 2007; Kröger 2007; Moravcsik 2005). Judged solely on this basis, as they insist, it is hard to show that the OMC has had a major impact outside certain restricted cases, and even in those it is only one of several factors. But if we consider other types of impact, including not only procedural changes in governance and policy-making processes, but also cognitive and discursive shifts, along with changes in issue salience and political agendas, then we may identify deeper and more numerous influences. Despite these methodological challenges, there is now a substantial body of empirical research on the operations of the OMC at national and subnational levels, drawing on a wide range of official and unofficial sources. Most of this research focuses on employment and social protection/inclusion (SPSI) as the oldest, most fully developed, and best institutionalised OMC processes.12 Although the findings of this research remain controversial and subject to multiple interpretations, my reading of the available evidence supports the view that the OMC in these policy fields should be considered a qualified success in a number of important respects.13 The first of these concerns is substantive policy change. Thus, these OMC processes have helped to raise the salience and ambition of national employment and social inclusion policies in many member states. They have contributed to changes in national policy thinking (cognitive shifts) by incorporating into domestic debates EU concepts and categories (such as a comprehensive approach to fighting unemployment, raising the employment rate, making work pay, flexicurity, active aging, sustainable social protection, and active inclusion); exposing policy makers to new approaches (often inspired by foreign examples); and pressing them to reconsider long-established but increasingly counter-productive policies (such as early retirement). These OMC processes have likewise contributed to changes in national policy agendas (political shifts) by placing new issues on the domestic political agenda (such as activation, prevention, lifelong learning, gender mainstreaming, social exclusion, and child poverty) and/or increasing the salience of efforts to tackle long recognised national problems (like pension reform, early exit from the labour market, child care provision, gender segregation, and integration of immigrants). There is also evidence from both official reports and interviews that OMC objectives, guidelines, targets, and recommendations have contributed to changes in specific national policies (programmatic shifts) in areas such as activation/prevention, tax-benefit reforms, active aging/ lifelong learning, gender equality, child care, immigrant integration, social assistance, and pension reform. Yet given the active role of member states in shaping the development of OMC processes, their relationship to national policy-making should be understood as a two-way interaction rather than a one-way causal impact. Another form of positive influence on the part of the OMC concerns procedural shifts in governance and policy-making arrangements. Here there is

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abundant evidence that the EES and the OMC/SPSI have contributed in most member states to better horizontal coordination and cross-sectoral integration of interdependent policy areas through the creation of new formal coordination bodies and inter-ministerial working groups. A second widespread procedural influence of the OMC on national social and employment policy-making concerns improvements in national steering and statistical capacities. One side of this process involves the strengthening of national arrangements for data collection and analysis through the implementation of better and more Europeanised survey instruments, information systems, and statistical indicators. Another side of the OMC’s influence on national steering capacity concerns the creation of new bodies and systems for monitoring and evaluating the implementation of social and employment policies. Enhanced vertical coordination more generally constitutes a third major procedural influence of the OMC. Both in employment and in social inclusion, OMC processes have resulted in the establishment of new formal and informal structures for closer coordination between national, regional, and in some cases local governments. Not only has the OMC spurred moves toward the creation of Local and Regional Action Plans for employment and social inclusion in a number of countries, but it increasingly serves as a cognitive and organisational template for reconceiving the governance of vertical relationships between national/federal governments and regional/ local authorities in the context of widespread trends towards the decentralisation of administrative and policy-making competences in these fields. A fourth major procedural influence of the OMC concerns increased involvement of non-state actors in domestic social and employment policy-making. Thus in many countries, the EES and OMC/SPSI have led to the creation or reinforcement of consultative and participatory structures for the involvement of social partners and civil society organisations in policy formation, implementation, monitoring, and evaluation at national and (in some cases) subnational levels.14 Here too, however, OMC processes are not the only cause of these shifts in governance arrangements, and the degree of involvement of non-state/subnational actors in particular also depends both on domestic institutional configurations and the actors’ own strategies. A third form of positive influence exerted by the OMC concerns mutual learning. At the time of the EES five-year review in 2002, it was difficult to find extensive evidence of mutual learning in the national evaluation reports and interviews with participating actors (Casey and Gold 2005; de la Porte and Pochet 2004: 73–4; compare the conceptual critique of the ‘naïve individualistic concept of learning’ deployed by the latter in Nedergaard, 2006a: 320). Six years later, the picture is radically different, as mutual learning is now among the most widely attested findings about the OMC’s national influence emerging from official evaluation reports, academic surveys, and case studies. Thus for example, in a recent evaluation of the Integrated Guidelines for Growth and Jobs conducted for the

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Directorate- General for Economic and Financial Affairs (DG ECFIN), 70% of interviewees reported some mutual learning (Euréval/Rambøll 2008b: 26–8). Similarly, in a qualitative study of the EES based on interviews with national employment policy actors in 28 European countries (including Turkey), ‘almost all respondents in all countries’ paid tribute to its contribution to mutual learning though interviewees from southern Europe, and the new member states were more forthcoming about their experiences in this regard than those from some old member states such as France, Luxembourg, Germany, and Italy (OPTEM 2007: 70–2). In the mid-term evaluation of the social OMCs, ‘many Member States’ likewise emphasised that ‘mutual learning and policy exchange lies at the very heart of the OMC’ (European Commission 2006: 27–31).15 However, what kinds of mutual learning have actually occurred, and through which causal pathways? The OMC’s strongest impact on crossnational learning has come through a series of indirect or higher- order effects, which may be termed heuristic, capacity-building, and reflexive or maieutic, respectively (Ferrera and Sacchi 2005; Ferrera et al. 2005; Zeitlin 2005b: 470–2). Heuristically, as we have already noted, both the EES and the social OMCs have contributed to increased awareness of policies, practices, and performance in other Member States; to the identification of common challenges and development of shared problem diagnoses; and to the identification of promising policy approaches, even if these remain subject to continuing controversy and debate. These processes have also stimulated policy learning from other EU Member States outside the formal framework of the OMC itself, involving not only government officials but also NGOs and other non-state actors. In terms of capacity-building, key learning effects associated with the OMC include the development of common European indicators and statistical databases such as the Income, Social Inclusion and Living Conditions (EU- SILC); improvements in the quality and comparability of national statistics; and some elaboration of regionally disaggregated indicators and statistical data for both employment and social inclusion. The construction of these common indicators and databases has resulted not only in the strengthening of national (and in some cases also subnational) statistical capabilities, but also in a European-wide debate, involving NGOs as well as administrators and academic experts, about how best to achieve comparability across member states while respecting legitimate differences in domestic priorities and institutional practices.16 In maieutic or reflexive terms, the OMC processes in employment and social protection/inclusion have pushed member states to rethink established approaches and practices as a consequence of the obligation to compare national progress towards common European objectives and targets to that of other countries on the one hand, and to reevaluate the effectiveness of their own policies in reaching these goals on the other.

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The OMC’s effects remain weaker in terms of direct or first-order learning. There are still few examples of direct policy transfer from one country to another, since national reforms typically draw analogical inspiration rather than detailed blueprints from the experience of other member states, while selectively borrowing, adapting, and recombining elements of foreign programs and practices to fit their own local contexts. Thus the same interviewees who praise the benefits of mutual learning are no less insistent that ‘other countries’ experiences cannot simply be transferred ‘exactly as they are’ without taking the target country’s specific situation and level of development into account’ (OPTEM 2007: 70; cf. Euréval/Rambøll Management 2008b: 27). As discussed earlier, this behaviour is a natural and appropriate response to the reflexive learning through ‘contextualised benchmarking’ which the OMC is designed to promote, in contrast to the ‘one-size-fitsall’ reform models pushed by ‘expertocratic’ bodies like the Organization for Economic Co- operation and Development (OECD), the International Monetary Fund (IMF), and the World Bank.17 In terms of identifying what works and what does not work in specific policy areas, such as labour-market activation and reducing child poverty, there has been significant progress at the EU level, mainly through the Mutual Learning Programs associated with the EES and the OMC/SPSI, which have been upgraded significantly over the past five years (EMCO 2006; SPC 2007). But despite the growth of horizontal networking among non-state and subnational actors, there are still few examples of bottom-up learning from innovative local practices through the OMC, largely because of continuing limitations on participation in national social and employment policy-making in many member states (Zeitlin 2005b: 473–5). Yet the flow of creative ideas visible in the reports of European roundtables, networking conferences, transnational exchange projects, and ‘shadow peer reviews’, conducted by NGO federations, provides abundant evidence of the OMC’s incompletely tapped potential to stimulate such cross-national learning from below on focused themes such as combating homelessness or mainstreaming social inclusion (EAPN-EUROCITIES 2003; FEANTSA 2007; O’Kelley 2006). Both the Employment Committee (EMCO) and the Social Protection Committee (SPC) have conducted external evaluations and internal debates in recent years on how to improve mutual learning within the OMC. A number of core principles and procedural innovations have emerged from these deliberations, some of which have already been implemented. Thus, peer review/mutual surveillance of national plans and strategy reports within both committees now concentrates on key transversal themes such as flexicurity and active inclusion (selected each year in line with European priorities) in order to foster a more open and focused policy debate. Both groups are also committed to developing a more context and processoriented approach to peer review of both good and bad practices; stronger

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analytical frameworks for understanding the relationship between policies and outcomes; and better linkages between EU and national debates through improved dissemination of results, wider stakeholder participation, and development of transnational ‘learning networks’ (Bischoff 2008; EMCO 2006; SPC 2007).18 Despite these achievements, empirical research also shows that the OMC processes in employment and social protection/inclusion have suffered from significant weaknesses. Chief among these were a lack of openness and transparency, with bureaucratic actors playing a dominant role at both EU and national levels; weak integration into national policy-making, with National Action Plans (NAPs) serving more as reports to the EU than as operational policy steering documents; and as noted above, limited bottom-up or horizontal policy learning, with few examples of upwards knowledge transfer and cross-national diffusion of innovative local practices. Yet most of these observed shortcomings arguably stemmed not from any intrinsic weaknesses of the OMC per se, but rather from procedural limitations of specific OMC processes.

Conclusion Ten years after the launching of the OMC, there is still much debate regarding both its nature and its effectiveness. This chapter has argued that it should not be viewed as an alternative to the Community method, but rather as a way to supplement it in areas where member states were not willing to accept more intrusive forms of action or where a degree of diversity in the pursuit of common concerns was deemed necessary. Indeed, in the Lisbon Strategy, it was supposed to be combined with the whole range of EU policy tools, legislation included. Furthermore, although the assessment of the effectiveness of OMC mechanisms is a demanding task, their influence can be felt in more ways than the recurrent criticisms to which they have been subjected might lead one to believe. Like any governance tool, they have their weaknesses. A potentially fruitful strategy for improving their effectiveness would be to apply to their own procedures the key elements of the method itself: benchmarking, peer review, monitoring, evaluation, and iterative redesign. Ongoing initiatives within the EES and the OMC/SPSI over the past few years provide evidence of the practical viability of this reflexive reform strategy, such as the strengthening of mutual learning and peer review programs on the one hand, and proposals by EU institutions for greater openness, stakeholder participation, and ‘mainstreaming’ of OMCs into domestic policy-making on the other.19 In this way, the recursive processes of framework rule-making and revision characteristic of the EU’s new architecture of experimentalist governance may prove capable not only of renewing the Community method, but also of correcting defects and overcoming blockages in its own institutional arrangements.

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1. For a fuller account of the origins of the OMC, see Zeitlin (2007). 2. For an overview of the diffusion of OMCs after Lisbon, see Zeitlin (2005a). 3. See for example European Commission (2001); European Convention (2003); European Parliament (2007). On the debate over the OMC at the Convention, see de Búrca and Zeitlin (2003); Zeitlin (2005c: 236–41). For a broader discussion of the hard law-soft law debate, see Trubek and Trubek (2005). 4. For fuller discussions of the WFD/CIS, see Scott and Holder (2006); Trubek and Trubek (2007); Sabel and Zeitlin (2008: 309–10, 315). 5. For a recent exception, see Craig and de Búrca (2007), ch. 5. 6. This section draws on Zeitlin (2009). 7. For a selective bibliography, see the University of Wisconsin-Madison’s online Research Forum on the OMC, http://eucenter.wisc.edu/OMC/index.htm. For an overview of the initial debate with extensive references, see Zeitlin (2005a). 8. See for example Casey and Gold (2005), who present a highly critical account of the OMC’s capacity to promote cross-national policy learning based exclusively on the first round of employment peer reviews conducted in 1999–2001; or Lodge (2007), whose critique of the OMC/pensions for its lack of common indicators appeared after these had been agreed by the SPC. 9. A partial exception is Idema and Kelemen (2006), which draws on a small-scale study of the Social Inclusion OMC in the Netherlands. 10. For a comprehensive review of the Europeanisation literature, see Graziano and Vink (2007). 11. Such biases are visible not only in interviews, but also in survey responses, where public officials and NGO representatives systematically disagree about the extent of the latter’s participation in domestic OMC processes: see for example OPTEM (2007) on the EES and O’Kelley (2007) on social inclusion. These disagreements are not purely empirical, but also reflect different normative expectations on the part of the actors. 12. For synthetic overviews, see Zeitlin and Pochet (2005); Heidenreich and Zeitlin (2009). 13. For a fuller assessment, with detailed examples and extensive references, see Zeitlin (2005b, 2009). 14. This influence has been strongest in social inclusion, where ‘mobilisation of all the relevant bodies’ figures prominently among the EU’s common objectives. 15. See also Nedergaard (2006b), based on a survey of members of the EU Employment, Social Protection, and Economic Policy Committees. 16. For detailed case studies of the conceptual challenges and practical work involved in creating common indicators for poverty, homelessness, and pensions, see Nivière (2005); Brousse (2005). See also the regular reports of the Employment Committee (EMCO) and the Social Protection Committee (SPC) indicators groups, available on the DG EMPL website. 17. Both the OECD and the World Bank have moved a long way in recent years towards acknowledging the need for a more contextualised approach to national policy reforms: see for example OECD (2005); Rodrik (2006). 18. The main issue which remains controversial is the participation of non-state actors in peer reviews, which is supported by the Commission and the leadership of the OMC committees, but opposed by some Member States. 19. For a fuller discussion of this reflexive reform strategy, see Zeitlin (2005b: 483–93); Sabel and Zeitlin (2008: 49–52).

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Notes

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Part IV

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Revisiting the Debate on New Modes of Governance

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9 In the Shadow of Hierarchy: Governance as a Tool of Government

The results of institutional change cannot be evaluated with reference to discrete, isolated decisions, but must be assessed in terms of sequences of interdependent decisions taken by a variety of actors over time. This assumption of continuing relationships introduces a temporal dimension that is absent in one time choice situations usually considered in policy analysis. (Majone 1989: 98)

Introduction Any understanding of the extent to which the emergence of new forms of governance has taken place, and of the significance of these developments for the balance of power in the EU policy process, requires some understanding of what the old methods were, the relative roles of the actors involved, and the context in which current practices developed. In short, it requires the understanding of how policy was developed under the Community method. Drawing on the example of EU social policy, it is argued that the Commission has always operated in ‘the shadow of hierarchy’ (Scharpf 1994), with member states able to limit the available capacity of formal competences.1 Forced to consult when it was unable to legislate, or to utilise soft law when binding legislation was precluded, the Directorate- General for Employment, Social Affairs and Equal Opportunities (DG EMPL), in common with other ‘Cinderella’ directorates such as DG Environment, developed an extensive armoury of ‘weapons of the weak’. This ‘consultation as a surrogate for action’ model has over time become ‘civil dialogue’, before being mainstreamed throughout the Commission and codified in the Treaty of Lisbon. Meanwhile, the Commission has encouraged and capitalised on the enthusiasm for ‘new modes of governance’ and has actively promoted a narrative or ‘fiction’ (Morgan 1989) concerning their purported association with improved democracy and legitimacy. In consequence, a

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significant number of actors who have an interest in expanding the ‘fiction’ are now mobilised, and expectations of the EU have been fundamentally altered.2 In this way, the Commission has managed to create a central role for itself in the previously untouchable policy space of the member states while also generating a constituency of support for further action in these areas. The Commission has made good use of ‘governance’ as an instrument of ‘government’. The rise of new modes of governance has variously been associated with several shifts: a shift away from the traditional ‘Community method’ – or from traditional regulatory approaches – to a more flexible ‘open method’; a shift from ‘hard law’ to ‘soft law’; and a shift in the balance of power away from supranational ‘top-down’ edicts towards shared solutions reached through participation with a range of actors from different policy levels within the inter-governmental domain.3 For example, ‘... the move from topdown, uniform rules to more flexible and participatory approaches can best be seen in areas like the European Employment Strategy (EES), also known as the Luxembourg process, which departs radically from traditional regulatory approaches’ (Mosher and Trubek 2003: 63). In some cases, analysis of this shift has also been accompanied by a rather strong normative element in support of such new approaches to governance in the EU – even ‘going so far as suggesting that they represent the leading edge of a thoroughly modern form of deliberative problem-solving ...’ (Caporaso and Wittenbrinck (2006: 476), or as Idema and Kelemen (2006: 11) note, being presented as ‘well suited to addressing “democratic deficit” concerns’. Similarly, it has been pointed out that the rise in profile of ‘civil society’ involvement in the policy process has been accorded a strong degree of support as a democratising and legitimising force (Smismans 2003: 5). There is considerable academic debate concerning the relationship between governance and democracy: for example, ‘this shift from “government” to “governance” is associated with the consolidation of new technologies of government, on the one hand, and with profound restructuring of the parameters of political democracy on the other, leading to a substantial democratic deficit’ (Swyngedouw 2005: 1991). Yet, in the EU context, the ‘new modes of governance’ based on ‘voluntarism, subsidiarity, flexibility, participation, policy integration, and multi-level integration’ (Borras and Jacobsson 2004: 189) have been widely portrayed – not least by the Commission – as ushering in a new (improved) era in the EU policy process.4 The relationship between governance and government is always problematic (Pierre and Peters 2000). Indeed, Jordan et al. (2005: 493), drawing on Majone (1996), have argued that ‘governance may generate a need for new forms of government’. In the EU context, this debate is also complicated by the ambiguous role of the EU institutions vis- à-vis the member state governments. Extensive debates have discussed the system in the EU as one of ‘governance with government’ (Sbragia 2002), ‘government without statehood’

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(Wallace 1996), and ‘statehood without government’ (Shore 2006). This chapter aims to contribute to this discussion by highlighting the way in which the development of various forms of participation has been encouraged by the Commission, first in the area of social policy, then more generally as an instrument of ‘good governance’. The tradition of encouraging voluntaristic participation and the involvement of civil society in the policy process was a long-standing method for a DG which had always operated with limited competence. The key difference is that in the past, these techniques were employed by the Commission to compensate for its political weakness; today, however, the involvement of a large number of actors through new policy methods is increasingly depicted as a ‘good practice’ to be followed in all policy areas. The longer term implications of this shift need to be analyzed. As more actors feel entitled to demand greater input into the policy processes of the EU, what is required of the EU institutions before consent to the functioning of the system is conceded, whether tacit or overt, is likely to become ever more complex. Thus, what is today a ‘fiction’ may have significant implications for the integration process over the long term by ‘inventing the people’ for the EU (Cram 2006b; Morgan 1989).

Governance as an instrument of government The starting point for the study of EU social policy must thus be the very limited legal basis for action bestowed by the founding Treaties (Hantrais 1995; Teague 1989). Member states can be said to constitute the ‘hierarchy’ which has traditionally limited the involvement of the Commission in sensitive policy areas such as employment, social protection, pensions and health care. However, within this constrained environment, the Commission has not simply applied itself to the areas of equal opportunities in the work place or health and safety policy where it was given stronger grounds for action; instead, the Commission has consistently sought to use the limited means available to it in order to expand its room for manoeuvre. (Cram 1993, 1994; Leibfried and Pierson 1995; Majone 1992). Institutionally driven creativity in the face of member state opposition has always been at the heart of the development of EU social policy. The introduction of new modes of governance can be seen as part of this process. Rather than marking a shift away from supranational influence in the area of social policy, the Open Method of Coordination (OMC) has, in fact, provided a unique opportunity for the Commission to participate in the hitherto forbidden policy space of member states. Indeed, far from undermining the Commission’s supranational role in social policy, ‘the OMC has allowed the Commission to take initiatives and to expand cooperation to new areas belonging to the legal competencies of the member states; hence, it has been able to bypass the subsidiarity principle. It is thus not obvious that the OMC has weakened the Commission’ (Borras and Jacobsson 2004: 198).

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1. The ability to select appropriate policy instruments in response to the emergence of policy windows and to package policies in ways least likely to engender the opposition of member states by rationalising interventions in terms of popular rhetoric or previous Council commitments: ‘demonstrating that there is a problem which can be attacked by one’s favourite instrument is a very real preoccupation of participants in the policy process’ (Majone 1989: 117). In similar vein, Mosher and Trubek (2003: 41) have noted how, in relation to the introduction of the EES and in response to the new policy window (created by the employment crisis in Europe during a period of slow economic growth and exacerbated by the commitment of member states to the ‘stability and growth pact’), ‘deft lobbying and manoeuvering by the Commission put subtle pressure on member states to use the EU to respond to the crisis’. Creative interpretation of its delegated powers has also allowed the Commission to create precedents for its role in a particular policy area in much the same way as it has been argued that the Commission has sought to increase its standing within the EES ‘by establishing and conscientiously upholding a fictitious sole right of initiative within the field of employment policy’ (Deganis 2006: 21). 2. The Commission has also engaged in what Majone (1992: 6–7), building on Kingdon (1984), has called a ‘softening- up process’: paving the way for the Commission’s preferred course of action should a ‘policy window’ open up (Cram 1997: 37–8), creating a precedent for action in a particular field by funding small-scale action programmes, creating committees or observatories and initiating research. It should be noted that the European Employment Observatory was created in 1982 with the aim of developing a ‘network between member states and the Commission to exchange information through the provision of comparative data and research on employment policies and labour market trends’ – a direct predecessor to the EES. 3. Facilitating the emergence of a policy window. From its early days, the Commission has sought to create a constituency of support for its actions in areas where it lacked legal competence. Particularly in areas where its powers were limited, the involvement of a broad range of actors was used to identify salient issues and to generate grounds to push for the extension of the Commission’s competence (Cram 1993, 1997). Indeed, playing the role of ‘catalyst to collective action’ (Cram 1994, 1997) in the area of social policy, DG EMPL was not averse to creating a relevant group at the European level when one could not be found. By encouraging groups to voice the need for new policies at the EU level, the Commission also sought to create opportunities for future action.

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Acting as a ‘purposeful- opportunist’5 (Cram 1993, 1997) in the area of EU social policy, the Commission has developed a number of key skills over time:

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Advocates of EU social policy hope that OMC – even where it fails to produce concrete effects in the short run – may prepare the ground for more codified, legally binding initiatives in the long run ... For advocates of European social policy focusing on the long[ue] durée, the immediate effectiveness of the OMC is secondary. The OMC will be a success simply if it contributes to the development of a ‘coordination reflex’ that helps move social policy from the periphery of EU policymaking to the core and sets the stage for more ambitious initiatives in the future. (Idema and Kelemen 2006: 118) In the area of EU social policy, the relationship between the key actors remains broadly the same. Member states retain the upper hand and the Commission is forced to act with institutional creativity to carve out a role for itself. The methods employed by the Commission and its attempts to draw a wider range of actors into the policy process also remain broadly the same. The Commission has continued to play a role in ‘steering’ or ‘governing’ the direction of EU social policy, which increasingly serves as a model for the spread of ‘new modes of governance’ to other sensitive areas of EU policymaking. However, the context in which these actors operate and these methods are employed has altered dramatically. The methods elaborated above traditionally formed part of what Majone (2005) described as ‘integration by stealth’ or what Margaret Thatcher decried at the 1990 Conservative Party Conference as ‘socialism through the back Delors’. What has changed is how the activities and methods of the Commission, acting both ‘in the shadow of hierarchy’ and as an important element of the EU institutional hierarchy, have shifted the perception of how EU social policy is made from one of ‘integration by stealth’ to an example of ‘good governance’ through ‘civil dialogue’.

Between the Community method and new modes of governance Developing the ‘weapons of the weak’

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Idema and Kelemen’s interpretation of the application of the Open Method of Coordination to the field of EU social policy fits rather neatly with the analysis presented above:

The Community method affords the Commission a privileged position within the EU policy process, particularly in relation to its ‘sole right of initiative’. In practice, however, the Commission has always acted ‘in the shadow of hierarchy’ (Scharpf 1994). Even between 1995-8, in the days before ‘new modes of governance’ came into vogue, only 5% of proposals could be viewed as ‘genuine “own-initiative” proposals’ (Devuyst 1999: 28). In the area of social policy, the lack of a clear Treaty basis only compounded

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the difficulty for the Commission, although it always sought to adopt an expansive interpretation of its role: ‘the comparative lack of precision in the Treaty forces the Commission to interpret certain of the articles ... it is not the Commission’s intention that the interpretation shall be restrictive; it cannot conceive that the Community has not got a social purpose’ (Commission 1959: 107). However, despite the Commission’s best efforts, the history of EU social policy is one of Commission ambition thwarted by member state resistance. Attempts to legislate in the field of social protection, for example, resulted in soft law provisions, the Poverty Programme and a series of related Observatories and networks. In the absence of a right to legislate, DG EMPL consulted; where no group was available for consultation, DG EMPL created one. In this context, the proliferation of groups and of the alternative policy instruments, which facilitated the involvement of these groups in the policy process and are increasingly rationalised as evidence of ‘good governance’, can be seen to have developed ‘in the shadow of hierarchy’ – not despite but because of the lack of formal legislative powers available to DG EMPL. Thus, unable to pursue its preferred legislative approach in the area of social policy, DG EMPL instigated the creation of a number of organisations and networks such as the European Anti-Poverty Network (EAPN), the European Women’s Lobby (EWL), the European Disability Forum (EDF), the European Federation of National Organisations Working with the Homeless (FEANTSA), and the EU Migrants Forum – some of which have subsequently become important actors within the Social Platform. In 1995, the Social Platform was created and funded by the Commission to act as an interlocutor between the social actors and the Commission at the Social Policy Forum. However, the origins of the cooperation between the members of the Platform had it roots in the consultation process which emerged in response to the 1993 issue of a Green Paper entitled ‘European Social Policy: Options for the Union’ (Commission 1993). The various organisations – many of which were heavily dependent on the Commission for their emergence and continued existence – such as EAPN, FEANTSA, the Migrants’ Forum, EWL and the Disability Forum, discovered that working together strengthened their voice in negotiations. Although the Social Platform became an independent legal entity in 2001, it continues to be funded by a grant from the European Commission to support its running costs. From its first intervention in the 1996 Social Policy Forum, the Social Platform sought to expand the notion of NGO participation at the EU level: ‘NGOs in the social sector are playing a vital role in expressing, revealing and considering people’s needs – and particularly the needs of the most vulnerable members of society – and guaranteeing rights. They are contributing to solidarity among citizens, to the acceptance of responsibility and, therefore, to democracy’ (Commission 1997: 15). The Forum was considered by the Commission and NGOs to have been a great success and it was said

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to ‘have acted as the starting point for what is known as the European “civil dialogue” – a relatively new concept with its immediate roots in the 1992 Maastricht Treaty and the Commission’s 1993 Green Paper on social policy’ (Commission 1998: 4). The Social Platform continued its joint endeavours and ‘led the way in demanding a Treaty Article, which would provide “a legal underpinning to civil dialogue and would guarantee it is no longer be a question of grace and favour” ’ (sic) (Beger 2004: 5). A German legal challenge in 1994 revealed that, in permissible terms, DG EMPL should never have funded the Poverty programme. In 1997, a further budget debacle also revealed that it might not have had legal competence to fund organisations such as EAPN, whose members emerged from the poverty programme, EWL, FEANTSA, the Migrant’s Forum, and the Disability Forum – some of which went on to become key members of the Social Platform. Nevertheless, a weak DG used small pockets of (perhaps illegitimate) money to catalyze organisations and activities at the EU level. These organisations, when threatened with the loss of their financial support, immediately mobilised to argue for its reinstatement. Paradoxically, the competence of the Commission was enhanced by the challenges. In the meantime, these organisations, along with many others, went on to develop and propound a shared discourse concerning the role of NGOs in the civil dialogue as well as the place of the civil dialogue in promoting democracy and participation. The mainstreaming of a legitimating ‘fiction’ Although the case of DG EMPL is the focus here, the process observed is not unique to the area of social policy. DG Environment, for example, has a long history of involving relevant actors, particularly when it enjoyed no legal basis for action prior to the SEA: ‘the environment NGOs were probably the most advanced in terms of civil dialogue’. Recognised in a Council regulation and enjoying since many years a solid base of core funding, they held regular consultations with the Environment Directorate-General and Commissioner, and were also regularly consulted in over 50 Commission Committees of Experts (Beger 2004: 4). Indeed, the creation of the European Environment Bureau (EEB) which continues to be heavily funded by the Commission (€929,954 of its €1,869,736 income in 2005) occurred in 1974, when the European Commission started its coordinating role in environmental policies (EEB 2005). The Commission did not, however, have much of a mandate until the Single Act in 1987 (EEB 2004). Similarly, other ‘Cinderella’ sectors, such as development and human rights, have well developed traditions of civil dialogue between NGOs and the Commission, although they are not always well-structured. However, DG EMPL has undoubtedly played an important role in the institutionalisation of a formal structure for civil dialogue, in particular through its role in the establishment of the Social Platform in 1995. The

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Social Platform played an important role in the ‘mainstreaming’ of the civil dialogue model throughout the Commission: ‘... the Platform has played a significant role in the development of a dialogue between the Directorate General for Trade and NGOs concerning trade issues, and the World Trade Organisation (WTO), in particular. A structured dialogue has now been established between civil society and DG TRADE, with regular meetings at which the Platform is represented, and specific “issues groups” where NGO experts – including Platform members – discuss technical aspects of trade policy with the Commission’ (Platform of European Social NGOs 2000: 10). This structured dialogue in Trade DG, as well as the relationship between DG EMPL and the Social Platform, continues to inform other attempts at civil dialogue as is evidenced in the Annex to the recent Green Paper on the role of Civil Society in Drugs Policy in the European Union (Commission 2006). By the mid 1990s, the appearance of the various ‘opt- outs’ in the Maastricht Treaty and the narrow approval of the Treaty in the French referendum had left both the Commission and the member states troubled about the role that the EU institutions ought to play and how they were being perceived at the national level. One of the solutions grasped by the Commission was the notion of ‘civil dialogue’ as a means of improving the so- called ‘democraticdeficit’ at the EU level. Following the collapse of the Santer Commission in 1999, Prodi, as incoming President, announced that one of the major commitments of the 2000–5 Commission programme would be ‘promoting new forms of governance’ (Prodi 2000). Prodi’s commitment that the White Paper on European Governance would ‘propose a new division of labour between the Commission, the other institutions, the Member States and civil society’ was immediately welcomed by the Social Platform and other NGOs (Platform of European Social NGOs 2001). The most explicit link between the involvement of civil society at the EU level and the enhancement of participatory democracy by the Commission came in the form of this White Paper on European Governance (Commission 2001) in which the Commission specifically recognised that the legitimacy of the Union today ‘depends on involvement and participation’ (ibid.: 11). The Commission argued that ‘Five principles underpin good governance and the changes proposed in this White Paper: openness, participation, accountability, effectiveness and coherence. Each principle is important for establishing more democratic governance’ (ibid.: 10). Meanwhile, ‘Democracy depends on people being able to take part in public debate’ (ibid.: 11); ‘Providing more information and more effective communication are a pre- condition for generating a sense of belonging to Europe’ (ibid.:11). Civil society, the Commission continued, ‘increasingly sees Europe as offering a good platform to change policy orientations and society. This offers a real potential to broaden the debate on Europe’s role. It is a chance to get citizens more actively involved in achieving the Union’s objectives and to offer them a

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structured channel for feedback, criticism and protest’ (ibid.: 15). At the same time, the Economic and Social Council (ECOSOC), seeking to revitalise its role in the EU policy process, sought to emphasise ‘The role and contribution of civil society organisations in the building of Europe’ (OJ C329 17 November 1999: 30). The Council was rewarded with a change in Article 257 of the Treaty of Nice, recognising it as a representative of the ‘social components of organised civil society’. Through this process, the concept and method of ‘civil dialogue’ became increasingly mainstreamed throughout the Commission and so, too, did its legitimating ‘fiction’. In its 1999–2000 annual report, for example, the demands of the Social Platform in relation to the civil dialogue appear relatively modest: ‘The Platform campaigns for the creation of a “right of consultation” for organised civil society, as well as for the strengthening of the existing dialogue between social NGOs and the European Commission, Parliament, Council, and other Institutions’ (Platform of European Social NGOs 2000: 7). By 23 April 2004, in its ‘Statement of Values and Objectives’, the Social Platform articulates one of its core objectives as being ‘the promotion of participatory democracy’ (Platform of European Social NGOs 2004: 1). Member states, even prior to the Irish ‘no’ vote in response to the Treaty of Nice (2000), had also recognised the dwindling public satisfaction with the institutions of the EU; this was expected to be exacerbated by the impending enlargement of the Union. To this end, the Nice Summit undertook to launch a debate on the ‘Future of Europe’: ‘the Conference recognises the need to improve and to monitor the democratic legitimacy and transparency of the Union and its institutions, in order to bring them closer to the citizens of the Member States’ (Treaty of Nice (2000) Declaration 23, point 6 on the future of the Union). For the first time, the ‘civil dialogue’ was utilised in preparation for an IGC: ‘In order for the debate to be broadly based and involve all citizens, a Forum will be opened for organisations representing civil society (the social partners, the business world, non-governmental organisations, academia, etc.)’ (Laeken Declaration 15 December 2001: 5). The Civil Society Contact Group (CSCG) was established to assemble the voices of the various NGO sectors and to coordinate their contribution to the Convention charged with drafting the Constitutional Treaty. Its membership includes: European NGO Confederation for Relief and Development (CONCORD), representing development NGOs; Green 10, representing environmental NGOs; Human Rights and Democracy Network (HRDN), representing human rights NGOs; European Forum for the Arts and Heritage (EFAH/FEAP), representing culture NGOs; European Public Health Alliance, (EPHA), representing public health NGOs; European Women’s Lobby (EWL), representing gender equality NGOs; and the Social Platform, representing social NGOs. The roots of cooperation for these organisations came in part from their earlier joint action in relation to the Commission’s suspension of

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budget lines in 1997; however, within this grouping, ‘leadership has come from the Platform’ (Jarre 2005). The high-point for those promoting civil dialogue as a means of improving the democratic legitimacy of the Union came when the Treaty Establishing a Constitution for Europe (October 2004) included Article 1–47 entitled ‘The Principle of Participatory Democracy’, which explicitly mentioned (point 2) the importance of civil dialogue in this context: ‘The union institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.’

Civil dialogue, participation and democracy Whoever decides what the game is about decides also who can get into the game. (Schattschneider 1960: 102) The relationship between civil society participation (or ‘civil dialogue’) and democracy is, of course, less straightforward than the Commission rhetoric implies. The institution of ‘civil dialogue’, ‘inclusion’ in new modes of governance, or allowing the ‘voice of the people’ to be heard, is rhetorically appealing and difficult for member states to oppose without appearing undemocratic. Indeed, civil dialogue provides a useful complement to a robust system of representative democracy. Problems occur, however, when civil dialogue is used as a proxy for democracy (or worse, as a fig leaf) to cover the essentially illegitimate and undemocratic practices that Majone (2005) referred to as ‘integration by stealth’. The Commission is not an elected body and the ‘civil society’ groups with which it engages are largely what Kohler-Koch (2007: 255) has referred to as ‘engineered’ civil society: effectively, Brussels- based NGOs with little grassroots connection, largely instigated or funded by the Commission (Mahoney 2004) with little interest in curbing the expansion of EU Commission competence. Over time, the Commission has managed, in Schattschneider’s (1960: 34–5) terms, to play a key role in shaping both the rules of the game and in determining who can play. In this relationship, there is little space for the ‘contentious politics’ (Immig and Tarrow 2001; Kopecky and Mudde 2003) normally associated with a healthy democracy. As Schattschneider (1960) also noted: ‘the flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent’. This flaw is further compounded when the heavenly chorus only knows the tune to ‘Ode to Joy’. When the Constitutional Treaty failed to be ratified, the retention of the clause on ‘participatory democracy’ became a campaigning issue for the Civil Society Contact Group (CSCG). Thus, ‘The principle of participatory democracy (1–47) underlies all our activities. It is important that this becomes a treaty provision. It would support the endeavours of a variety of

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actors who aim to strengthen democracy in the EU’ (CSCG 2007, emphasis in the original). In the Treaty of Lisbon, the term ‘participatory democracy’ no longer appears as a title. Although the specific provisions of the proposed Article 1: 47 remain, the general heading under which they appear is ‘Title II, Provisions on Democratic Principles’. This notwithstanding, Fintan Farrell (2007), then president of the Social Platform, quickly announced that ‘The article of the new Treaty on participatory democracy should not remain just a void article and we social NGOs call for its immediate implementation by the Portuguese presidency.’ Meanwhile, the Social Platform’s Work Programme for 2008 identified one of the strategic objectives for the 2006–10 period as ‘reinforcing participatory democracy’ and specifically ‘by making proposals for the implementation of new articles, in particular the article on participatory democracy’ (Platform of European Social NGOs 2007). In the CSCG response to the White Paper on Communication, entitled ‘Civil Dialogue: Making it Work Better’, it is noted that ‘civil dialogue is not about mere communication: it is about participation and should lead to concrete outcomes’ (CSCG 2006: 1). Moreover, ‘the role and contribution of civil society organisations (and in particular NGOs) to the EU policy process has grown hugely over the last decade. Its value is increasingly recognised by the EU institutions, both in terms of the specific expertise introduced into the policy process and as a contribution to tackling the so- called “democratic- deficit” through the development of more participatory forms of governance.’ (CSCG 2006: 2). Responding to criticisms that European NGOs are not representative of civil society at the national level, the Social Platform declared the objective of ‘shaping an effective civil dialogue at national and European level’ as its annual theme for 2008. This included an exploration of what conditions are required ‘for an effective civil dialogue and to engage at the European level’. In this way, the institutionalisation of the ‘fiction’ continues and spreads beyond the European NGO- Commission nexus in which it developed, to impact upon a wider range of civil society interests at the national level. In practice, the impact of civil society participation at the EU level is limited. The EU continues to resemble Deutsch’s description of a ‘universal state’ functioning in a ‘layer- cake pattern, with a high degree of cultural assimilation and participation in extended social communication among the top layers of society; a lesser degree on the intermediate levels; and, little or no assimilation or participation among the mass of the population at the bottom’ (Deutsch 1953: 170). Furthermore, there is no universal consensus that the ‘democratic deficit’ is a problem for the functioning of the EU (see Moravscik 2002, 2004, 2005 and Majone 2005). Many observers have argued that the involvement of civil society falls far short of the standards which might be expected in terms of who participates (Magnette 2003), how civil society participation is conceived and works in practice

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(Armstrong 2002, 2006), the motives behind the recent focus on civil society (Smismans 2003), and the implications of misconceived doctrines for practice (Smismans 2003). Thus, civil society involvement falls far short of delivering ‘participatory democracy’ (Huller and Kohler-Koch 2007). This notwithstanding, there is now a range of actors seeking to ‘breathe life’ into the new Treaty provisions and this may, in itself, have long-term implications for the process of European integration. As Morgan (1989: 14) argued, referring to the ‘invention’ of the American people: ‘The political world of make-believe mingles with the real world in strange ways, for the makebelieve world may often mold the real one.’

Inventing the people: The enhabitation of the EU The community which permits a common history to be experienced as common is a community of complementary habits and facilities of communication. It requires, so to speak, equipment for a job. This job consists in the storage, recall, transmission, recombination, and reapplication of relatively wide ranges of information; and the ‘equipment’ consists in such learned memories, symbols, habits, operating preferences, and facilities as will in fact be sufficiently complementary to permit the performance of these functions. A larger group of persons linked by such complementary habits and facilities of communication we may call a people. (Deutsch 1953/66:84, emphasis added) A people rarely emerges entirely of its own volition; as Weber (1977: 486) has argued, the transformation of ‘peasants into Frenchmen’ emerged only through the expansion of universal education, military service and improved communications. The role of the state in fostering an environment conducive to association should not be underestimated. De Tocqueville ([1835–40] 2003: 604) reminds us of the potential long-term implications of fostering associative behaviour: By chance men share an interest in a certain matter; maybe the management of a common enterprise or the conclusion of an industrial operation; they meet and join together, gradually familiarizing themselves thus with the idea of association. The more the number of these minor communal matters increases, the more men acquire, even unknowingly, the capacity to pursue major ones in common. Civil associations, therefore, pave the way for political associations; on the other hand, political associations develop and improve in some strange way civil associations.

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In similar vein, Skocpol (2003: 40) argues that ‘the early US state [in short] created favourable conditions for associations, social movements, and mass-

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mobilising parties – all of which, in turn, continuously roiled and transformed national politics and government.’ There is a powerful argument from scholars of nationalism that states generally precede nations (Keating 1988), that national states frequently emerge from multiple centres (Breuilly 1982), and that nationalism does not simply emerge but is actively created: ‘It is nationalism which engenders nations, and not the other way round’(Gellner 1983: 55). From this perspective, the role of popular ‘fictions’ in ‘inventing the people’ may be of significant interest to scholars of the EU. In 1882, Renan (1990: 19) wrote that the very existence of a nation ‘is a daily plebiscite’. Nationalism is thus a less romanticised notion of emotional attachment to a homeland or culture than a choice, or act of will – even a calculated decision concerning the costs and benefits of affiliation. Renan (1990: 11) also emphasised the importance of the collective forgetting of inconvenient pasts for the maintenance of contemporary national identities. To describe the citizens of the EU as a ‘people’ might seem farfetched. However, processes of collective forgetting, in which disparate histories (even warfare) are glossed over, are not uncommon in the creation of nations. It is, of course, notable that one of the last minute amendments to the preamble to the proposed Constitution for Europe (CIG 81/04, 16 June 2004) referred to a Europe ‘reunited after bitter experiences’ (emphasis added) suggesting a common historical legacy. In similar vein, Billig (1995: 38) argues that ‘the nation which celebrates its antiquity, forgets its historical recency’. Of course, part of the raison d’être of the EU was to create lasting habits of peaceful cooperation between previously warring nations and to tie Germany irrevocably into a union with its European neighbours. In many respects, the collective forgetting of these relatively recent past hostilities has been highly successful. To some extent, this collective forgetting takes place through the normalisation or domestication of previously unfamiliar practices. Thus, as patterns of behaviour shift, what at first appears ‘new’ gradually becomes unremarkable. Billig (1995: 42), building on Bourdieu’s concept of the habitus, calls the process of collective forgetting enhabitation and argues that this constitutes a key aspect of nationalism: ‘Patterns of social life become habitual or routine, and in so doing embody the past. One might describe this process of routine-formation as enhabitation: thoughts, reactions and symbols become turned into routine habits and, thus, they become enhabited. The result is that the past is enhabited in the present in a dialectic of forgotten remembrance’ (Billig 1995: 42). As Edelman ([1967] 1985: 195) has argued, ‘the study of the construction of meaning must focus upon the interpretations of the subjects more than upon the observation of objects’. The symbolic impact of the linking of civil society involvement, the role of the EU institutions and the delivery of participatory democracy should not be underestimated. There is little

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doubt that the ‘fiction’ being promoted by the Commission, ECOSOC and its interlocutors was initially based on basic self-interest. However, as is demonstrated by the codification of this ‘fiction’ in the Treaty of Lisbon, the actions of the self-interested may also have lasting consequences. As Deutsch (1953: 171) argued in relation to universal states, ‘unifying memories or traditions were not mere disembodied thoughts: they were carried and disseminated by the institutions of organized churches and monastic orders ...’ For churches and monastic orders, we might today read organised civil society. The institutionally engineered ‘civil dialogue’, developed ‘in the shadow of hierarchy’, might thus be said to constitute part of Deutsch’s ‘equipment for the job’ – helping to create shared patterns of communication, shared understandings of the relationship between the EU and the public and, perhaps most importantly, mobilising actors with an interest in expanding the ‘fiction’ and ‘communicating Europe’.

Conclusion New modes of governance, such as the OMC, are applied where EU level action enjoys the least legitimacy in terms of the powers delegated in Treaties (Héritier 2002; Szyszczak 2006). Thus, the application of new methods, such as the open method of coordination, does not imply a shift away from the traditional ‘Community method’ but a shift away from inaction at the EU level to action in sensitive areas. Even limited involvement of the EU institutions in a new policy area lends legitimacy for future action whether at a popular level – in terms of generating a wider constituency of support from actors with a stake in the continuation of the task, by normalising EU activity in the given area – or ‘softening up’ the policy area and potentially facilitating the expansion of the activity or method to other (hitherto ‘illegitimate’) areas for EU action. Meanwhile, the rise of discourses (often encouraged and mainstreamed by the Commission) concerning the role of ‘civil society’ that contribute to participatory democracy or to the development of a ‘European Public Space’ have created a context in which the incorporation of a wide number of actors through new policy methods is increasingly viewed as a model of ‘good governance’. The balance of power in EU social policy has insignificantly changed. Member states continue to dominate and limit the delegation of power in areas of policy considered to be of national importance. Operating both ‘in the shadow of hierarchy’ (Scharpf 1994) and as a part of the EU’s institutional hierarchy, the Commission continues to operate as a ‘purposeful opportunist’. Its practice of catalysing collective action in order to generate a constituency of support, packaging issues and suggesting processes (which allows for an extension of its role while engendering least opposition), and ‘softening up’ policy areas for future action, has also insignificantly changed. What has changed, however, is the accompanying rhetoric,

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encouraged and promoted by the Commission along with others, which now allows the Commission to package these activities in terms of democracy, legitimacy and good governance. In short, the Commission has made good use of ‘governance’ as an instrument of government. The involvement and influence of civil society groups and the institutionalisation of the ‘fiction’ of the relationship between civil society and ‘participatory democracy’ has, meanwhile, risen in inverse proportion to the perceived legitimacy of the institutions of the European Union. Beginning as a ‘weapon of the weak’ in DGs lacking legal competence to act, the ‘consultation as a surrogate for action’ model has gradually become ‘civil dialogue’ and has been mainstreamed throughout the Commission. As the member states sought to establish what the ‘Future for Europe’ ought to be, they, too, adopted this method and it has subsequently been codified in the Treaty of Lisbon. In the short term, the civil dialogue, as a means of delivering enhanced democracy in the EU, will disappoint at best. At worst, it may actually undermine democracy in the EU. Over the long term, the process of engaging with civil society may nevertheless continue to have important implications for European integration. As Deutsch put it: ‘Experience and complementarity may then continue to reproduce each other, like the proverbial chicken and the egg, in a syndrome of ethnic learning, that is a historical process of social learning in which individuals, usually over several generations, learn to become a people’ (Deutsch 1953/66: 174, emphasis added).

Notes 1. See Pollack (1997) for details of the range of ex-post and ex ante control mechanisms utilised by member states to oversee the activities of the Commission. 2. For a more detailed exploration of the nature of this ‘fiction’ and its institutionalisation, see Cram (2006). 3. See Chapter 11. 4. For example, see Commission (2001). 5. The organisational strategy of ‘purposeful opportunism’ is drawn from that elaborated by Klein and O’Higgins (1985). ‘Purposeful opportunism’ refers to the activities of an organisation which has a notion of its overall objectives and aims but is flexible as to the means of achieving them.

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10 Social Europe: Why Hard Law Remains Important

Introduction1 Social and employment policies have often been used as evidence of a turn towards new forms of soft governance. Many authors have tried to distinguish different degrees to which EU policies are binding (Falkner et al. 2005; Trubek and Trubek 2005). The origin of this perspective lies in the increasing complexity of both the European Union and social reality itself, and thus the inadequacy of traditional top- down regulatory mechanisms in dealing with this complexity. More subtle ‘new modes of governance’ are required to be able to respond to these multi-level and multi-faceted challenges. The OMC (open method of coordination) is frequently characterised as the ‘new mode of governance’ par excellence in a multi-level European Union. It demonstrates both overlapping competencies assigned to multiple levels of government and interactions between political actors across those levels (Marks et al. 1996). New modes of governance can be referred to as ‘the range of innovation and transformation that has been and continues to occur in the instruments, methods, modes and systems of governance in contemporary polities and economies, and especially within the European Union (EU) and its Member States (both current and prospective)’ (www.newgov.org). In contrast with ‘traditional’ modes of governance, they ‘(a) include private actors in policy formulation, and/or (b) while being based on public actors, (c) are only marginally based on legislation (these are hierarchical insofar as they are subject to a majority decision) or that are not based on legislation at all’ (Heritier 2002: 1). The distinctiveness of this analytical approach is its focus on the meso and micro levels of policy-making. The analysis that has come to dominate over the last 10 years is that European law (directive or regulation) is no longer adapted to the diversity of national systems nor to the uncertainty underlying economic and social change. This leads to academic analysis focusing mainly on the modernisation of national systems and the implementation of instruments that are intended to better reflect ‘soft law’. Learning, evaluation, comparison, and

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imitation are just some of the words in the new vocabulary of social Europe (see amongst others de la Porte and Pochet 2002; Zeitlin and Pochet 2005). Furthermore, critical analysis of this law also emphasises its limited ability to modify behaviour, as demonstrated for instance by the persistent difference in remuneration between men and women despite an increasing legislative arsenal (Rubery et al. 2003). Goetschy (2006: 63–4) has argued that ‘[t]he move from a formerly predominantly legal perspective (headway is of course still being made on that ground, but more slowly) to a perspective of European governance of national social and employment policies may result from a feeling that the limit of what is legally necessary or desirable – or even politically feasible – has been reached (the 2000– 5 Community agenda is explicit on this point) [ ... ].’ Similarly, Hemerijck (2004: 122) maintains that ‘[a]s an alternative to “hard law”, i.e. to legalistic regulations and directives, these “soft law” instruments have become preferable to and more effective than “watered down” directives.’ The common wisdom in the academic community is that there are fewer and fewer social directives and those that are adopted have minimal content. As a result, the OMC was considered by many – even those not supportive of such an approach – as the possible answer to the lack of political support for EU social regulations. This chapter challenges this view using both quantitative and qualitative arguments. First, there was no decrease in the number of social directives in the decades leading up to 2004, and second these directives are no less ambitious than those adopted in the 1990s. This chapter is divided into three parts. The first section briefly presents the different stages of EU social policy. The second section presents a quantitative overview of recent developments and the third section analyses four legal instruments (three directives and one regulation) adopted in recent years, and looks at the context in which they were implemented. Through this combination of qualitative and quantitative elements we hope to shed useful light on the relative importance of hard law in EU social policy.

The context: A glance at the history of EU social policy The history of European social policy is more a story of failure than of great success. Since the beginning of the European Community, there have been at least five different stages in social policy, each with its own priorities, underlying logics and particular fields of interest (free movement of workers, social legislation or employment coordination for example). Bea Cantillon (2004: 6) has noted that initial ambitions were limited, ‘Contrary to the US, the EEC chose in 1957 to leave the social policy to the national welfare states. This decision was taken on the basis of the Olhin report, which had been commissioned by the ILO, and which concluded that social policy differences between countries were sustainable, so the harmonisation of welfare

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states was deemed unnecessary.’ As Peter Hall (2001) argues, it was probably the only moment when a harmonisation process was possible. Such a path would have led to a radically different configuration of European integration. Many subsequent developments are the result of these initial choices. In the wake of this initial decision, different attempts were nevertheless made to develop the social dimension of economic integration. The first step, in the early 1960s, was limited to the free movement of workers. The rationale was not to harmonise different national policies but to give the same rights to Community and national workers in each member state. This included providing the possibility of cumulating benefits (e.g. pensions) acquired in different places (Pakaslahti and Pochet 2003). The European Social Fund (ESF) was also created in order to retrain workers affected by economic change, due in part to integration. In the 1970s, the Community tried, in the words of the Treaty of Rome, to define a way ‘to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained.’ Several directives were adopted in a context of economic downturn and militant mobilisation at the national level. These involved equality between men and women, health and safety in the workplace, and certain aspects of labour law. The first European Social Programme was adopted in 1974 and can be considered the social side of the Werner Plan for a monetary union in 1980 and the creation of a political union at the same date (Magnusson and Stråth 2001). Finally, a number of directives relating to collective rights were adopted (collective redundancy, transfer of undertakings, insolvency, etc.). What is generally considered the ‘golden age’ of EU social policy corresponds (at the national level) to the crisis of Keynesian economic management and the end of welfare state expansion. The end of the 1970s was thus a turning point. The Thatcher and Reagan governments were evidence of a neo-liberal turn, which led to a pause in social regulation at the European level and a process of deregulation at the national level. A number of different proposals (the Vredeling directive on information/participation in multinational companies, reduction of working time, regulation of atypical contracts) failed to be adopted at the EU level. The Single European Act (1985) expanded the Community’s social competencies, allowing for the adoption of health and safety measures by qualified majority (which was to permit considerable development in this domain). It also contained a rather vague provision on social dialogue which launched a dynamic of non-binding agreements (joint opinions) between the European social partners (European Trade Union Confederation, UNICE and CEEP for private and public employers respectively) (see Didry and Mias 2005).

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In an unfavourable political environment, it proved impossible to maintain the goal of harmonising and improving social protection as established by the EU Treaty. Instead, a debate over global competition (from the US and Japan on one hand and from developing countries like Brazil, Taiwan, and South Korea on the other) fuelled controversies concerning social deregulation, social dumping and races to the bottom. Thus, the end of the 1980s and the beginning of the 1990s were characterised by a strategy of defining minimum norms below which one should not descend in a period of triumphant neo-liberalism and globalisation of the markets. This is the true meaning of the Community Charter of the Fundamental Social Rights of Workers adopted in 1989 and the action programme that accompanied it (Jonckheer and Pochet 1990). The basic idea was to develop a set of minimum legal regulations at the European level. At the same time, the development of social dialogue led to the signature of the Social Agreement between the European social partners (Dolvick 1997). This agreement was introduced in the form of a protocol added to the Maastricht Treaty, due to the opposition of the conservative British government. It empowered the social partners to sign collective agreements that could be extended erga omnes by a Council directive or voluntary collective agreement implemented by their national affiliates. The strategic idea was to mirror the national situation in most member states where social partners can autonomously regulate aspects of labour relations. After the victory of New Labour in the UK and the Socialist Party in France, an Employment Title was included in the Amsterdam Treaty (tentatively modelled on the EMU procedures) and qualified majority voting was introduced in several social areas through the incorporation of the social protocol into the Treaty (Jenson and Pochet 2006; van Riel and van der Meer 2002). The resort to the open method of coordination is thus the fifth stage in the definition of the European social dimension. In a nutshell, the OMC is a flexible means of working towards shared European objectives via national plans, which are assessed in accordance with common criteria (indicators), following (in some but not all cases) guidelines and/or targets decided jointly by national ministers at the European level. In the absence of legal obligation, peer pressure and the force of public opinion represent the best means of ensuring that national governments adhere to their European commitments. The exchange of good practices is supposed to improve knowledge and contribute to the learning process in order to improve public policies. This is an attempt to make official declarations adopted by ministers at the European level morally ‘binding’ at the national level, through the implementation of a set of complex procedures. The European Parliament and the Court of Justice play a minor role within this framework. The OMC has already been applied economic coordination (the Broad Economic Policy Guidelines), employment (the Luxembourg Process or European Employment Strategy), poverty and social exclusion, pensions and health

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care (for a general overview, see Dehousse 2004). The main objective is no longer to create a set of European rules distinct from national regulations but to favour an interaction between different levels of governance. 2 The OMC seized on the idea of diversity as an opportunity to improve national standards and converge to the best results. In the absence of legally binding powers, this convergence should be achieved by learning. With this new multi-level arrangement, European bodies have created a new form of intervention aiming to converge on common ideas, visions, conceptions, knowledge and norms of action, rather than to harmonise institutions or legislation, in order to have policy goals moving towards ‘a common political vision’.

A quantitative analysis What impact did this evolution have on EU normative production? In this section, we empirically verify the standard story of the development of EU social policy by reviewing data on the number of directives/ regulations adopted each year. Given the new approach to governance, it might seem reasonable to expect a decrease in directives from 1997, when the European Employment Strategy was adopted and the need for a soft-law approach was justified by the alleged difficulty – if not the impossibility – of continuing along the path of hard law. 7 6 6 5 5 4 4

4

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170 Philippe Pochet

1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

0

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Figure 10.1

H&S dir.

Social legislation 1975–2007

Source: Observatoire social européen, Internal database, 2008.

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In their book on the implementation of social policy, which covers four EU directives and two collective agreements adopted in the 1990s, Falkner and her colleagues (2005) were the first to show that the number of EU hard-law regulations had not declined but had remained stable. Their data stops in 2002 however, and they do not present the list of directives they consider. We checked the figures (there are minor differences between our figures and theirs) and brought them up to date for 2007. The conventional wisdom in this sphere can be tested empirically by considering the data on legislative production in social policy. The figures above present, in white, the number of health and safety directives and, in gray, the total number of directives/social regulations (including health and safety directives) per year (Figure 10.1). Quite clearly, and in contrast with the dominant analysis, the number of directives adopted did not decrease between the second half of the 1990s and first years of the new millennium. On the contrary, the legislative output in years 1996–2004 remains almost as high (16 texts adopted) as in the period 1988–95 (17 texts adopted). It is hardly possible to speak of a crisis of the Community method in light of these numbers, at least up until the 2004 enlargement. Dividing the data into ‘social’ and ‘health and safety’ directives allows us to consider whether the overall stability in numbers is attributable to an increased number of health and safety directives.3 In fact, most new directives relating to this area were adopted in the early/mid-1990s in the wake of the 1989 health and safety framework directive. Moreover, the four directives adopted between 2002 and 2006 derived from the same parent directive, dating from 1993, which was split into four different proposals in the late 1990s. The relative stability in the number of directives adopted therefore cannot be explained by a surge in health and safety legislation. Another possible approach to explaining this stability is to consider texts adopted by the EU social partners and subsequently transposed in the form of directives. Since 1995, seven collective agreements have been turned into directives, three of them deriving from the cross- sectoral level (parental leave in 1995, part-time work in 1997, fixed-term work in 1999) and four from the sectoral level; two of the latter are an adaptation of the working time directive to the transport sectors (seafarers in 1998, civil aviation in 2000) and the other two are agreements concluded in the railways sector in 2004 (one fully transposed into a directive in 2005, and the other partly so in 2007). Indeed, it has been shown that in sectoral social dialogue, social partners had a clear preference for negotiating binding agreements (Dufresne et al. 2005). On average, one text originating with the social partners is extended erga omnes by a directive every two years. The development of sectoral directives thus clearly contributes to explaining the overall legislative stability. In terms of their content, the directives adopted since 1997 relate to traditional social fields like the European company (2001), information and

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consultation at the national level (2002), the statute of the European cooperative (2003), anti- discrimination directives (2000), equality between men and women (2004), free movement (2004), etc. Stability is thus also reflected in the thematic continuation and extension of the traditional social agenda. There was indeed a definite reduction in the use of hard-law measures after 2005, but on the basis of recent instances of consultation of the social partners, it seems appropriate to question the permanence of this trend. In 2007 the social partners were consulted on six topics: active inclusion, seafaring jobs in the EU, cross-border transfers of undertakings, reconciliation of professional and family life, musculoskeletal disorders, and needle-stick injuries. These consultations were intended to lead to the presentation of formal draft directives by the Commission, or to a decision by the social partners to negotiate together. In 2008 the Commission consulted the social partners on the revision of the European Works Council directive and in July 2008 it presented a draft directive on this subject. Meanwhile, the Social Affairs Council of June 2008 reached a common position on the working time and temporary agency directives (adopted in October 2008). In July 2008 a new proposal was presented in the field of non-discrimination (COM (2008) 406). This activity appears to indicate the likelihood of a continuing flow of hard-law measures in coming years. Of course, the quantitative elements discussed above do not tell us anything about the potential impact of EU social legislation. The key question is whether these texts are minimalist directives establishing a very low threshold of protection at the EU level, or whether they have a significant structural impact, at least in some member states. Structural, in this context, is understood as questioning some fundamental aspects of national social policy. The issue under discussion here is not the interaction between soft and hard law or the possible development of a new variety of hybrid (Trubek and Trubek 2005). From the analysis, it clearly appears that there is an internal diversification of the directives comprising binding, optional, and nonconstraining provisions, as has been outlined by Falkner et al.: ‘Next to binding rules we now find provisions that allow for certain exceptions or further specification of details in the member states as well as non binding recommendations’ (Falkner et al. 2005: 55). The next section will focus on an analysis of four legal instruments adopted in recent years. We will look at three directives – the two antidiscrimination directives (2000/43 and 2000/78) and the directive on information and consultation at the national level (2002/14) – and one regulation, the revision of regulation 1408/71 (883/2004) on the coordination of social security regimes. We do not claim that their content reflects the average objectives of all directives adopted over the last 10 years. On the contrary, these instruments were selected because they were known to have been important for some member states and our research has shown that in

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fact they had greater impact than we thought. Notwithstanding this selection bias, it can be argued that these pieces of legislation are symptomatic of the resilience of ‘hard’ social policy. For each of these texts we will present the political process of its adoption, detail its content and give a brief evaluation of its implementation. In conclusion, we will summarise the key elements of the cases and elucidate the conditions explaining their adoption. It should be noted that these texts correspond to different periods of EU social policy as presented in the introduction. Regulation 1408/71 came from the first policy phase and is linked to the free movement of persons, whereas the information and consultation directive stems from the move to develop collective rights in the 1970s. In contrast, the two anti- discrimination directives are based on a more individual approach and concern new social problems (like stress at work, harassment and violence at work), all of which were subject to autonomous agreements between social partners after 2000.

Case studies Regulation 1408/71 on equal treatment Regulation 1408/71 (Council of the European Union, 1971) was adopted during the first stage of European social policies (see introduction) and essentially aimed to ensure free movement through the recognition of equal treatment between national and Community workers within each country. It allowed migrant Community workers to ensure that their previous employment would be recognised by the different member states. For social protection matters, the debate on harmonisation was concluded before the signature of the Treaty of Rome (see above, the first section). The coordination was thus built on the harmonisation of rights and duties of national and Community workers and on the recognition of diversities. These diversities have multiplied both through successive enlargements and through the blurring of boundaries between the private and public components of social protection. Furthermore, some directives (equality between men and women for instance) have had transversal effects in every member state. The indirect impact on national systems was very significant (see Leibfried and Pierson 1995, Martinsen 2005a, 2008). The increasing complexity resulting from this ever-growing diversity led to multiple – but often ad hoc – revisions of the regulation or to important amendments such as its extension to non- community workers (on this point see Ghailani 2003). On the other hand, national actors have also been particularly engaged, as Martinsen underlines for Germany (2005a: 1046), ‘German national courts have taken a very active part in questioning and enhancing the scope, impact and effectiveness of EC law. Over the three decades during which Regulation 1408/71 has been in force, German national courts

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have persistently questioned the scope and content of the regulation, as well as the compatibility between national policies and European obligations [ ... ].’ The simplification of the regulation began with the Commission proposal of 21 December 1998 (European Commission 1998a, JO C 38, 12 February 1999). The Commission proposal was analysed, chapter by chapter, for two years, under four successive presidencies: Finland, Portugal, France, and Sweden. This examination did not immediately lead to an agreement, but it was a necessary step for the identification of key issues (Pernot 2004). In 2001, The European Council invited ‘the Council to set, by the end of 2001 and under the light of a re- examination of the proposed options, parameters aiming at modernising Regulation 1408/71 on the coordination of social security regimes. This will allow the Council and the European Parliament to accelerate its adoption’ (European Council 2001, paragraph 33). Seven general horizontal functioning principles, called ‘general parameters’, were created. The other five parameters applicable to the different areas of social security were called ‘particular parameters’. The horizontal parameters were broad political guidelines specifying the agreed goals to be reached by the negotiators; they were designed to help change very technical provisions. For example, according to the first parameter the main objective of modernisation was simplification for citizens without disproportionate complication of administration. Parameter 2 indicated that, in principle, coordination should apply to any person who is or has been subject to social security legislation of one or more member states. With regard to nationals of non-member states, the discussion on extension was to be held in parallel with the instruction from the Tampere European Council, etc. The principles on which modernisation rests remain the same: a) unity of applicable legislation; b) equality of treatment; c) preservation of acquired rights, meaning the possibility of exporting social security services; d) ability to cumulate periods of insurance, residence or completed work in another member state in view of the extension of rights in another member state. Partial agreements were thus reached on the horizontal functioning general provisions under the Spanish presidency (European Council 2002b); on sickness, maternity, accidents at work, occupational illnesses and death grants under the Danish presidency (European Council 2002a); on disability, retirement and survivors pensions under the Greek presidency (European Council 2003b); and on early retirement and family allowances under the Italian presidency (European Council 2003a). The case law of the European Court of Justice on the free movement of patients, (C-158/96 and C-120/95, Kohll and Decker), the list of nonexportable services (C-215/99, Jauch), or the legal basis for the coordination

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of social security for non-EU nationals (C-95/99, Khalil) often exerted a determining influence on these negotiations (Verschuren 2004). On 3 September 2003, the European Parliament ended its first reading by proposing 47 amendments, approved by the Commission. On 26 January 2004, the Council adopted its common position. Two events hastened the conclusion of negotiations. On the one hand, the end of the legislature was approaching. A final agreement had to be reached before the end of April 2004 if the actors wanted to avoid having to go through the whole process again. On the other hand, 10 new countries were to join the EU on 1 May, which was liable to slow the pace of negotiations. On 20 April 2004, the European Parliament voted in two amendments to the common position which were quickly approved by the Council. Regulation 883/2004 of the European Parliament and the Council was then definitively adopted on 29 April 2004, exactly two days prior to enlargement (European Parliament and Council 2004). The new regulation was to apply to all citizens covered by insurance in each member state, regardless of their status (employee, self- employed, student ...). This represented a significant simplification since sophisticated definitions were no longer necessary for the different categories of insured people. The regulation also became an instrument for all European citizens moving within the Union and no longer exclusively for workers. On some points, the text of the new regulation brought important simplification in accordance with the horizontal parameters adopted to guide the negotiation. For example, a certain number of principles concerning the coordination of social security were gathered in a general provision so that the principles for each branch would no longer need to be repeated. The section covering the rules for the application of the legislation (Title II, Articles 11 to 16) was drastically simplified. Other important innovations included the removal of the distinction between employees and self- employed workers on the one hand and retirees on the other, in relation to family allowances. It also included the adoption of more explicit criteria to determine in which cases residence could be used (Article 70), and new provisions for compulsory administrative collaboration between member states, particularly in order to determine the rights of the interested parties. However, the case law of the Court of Justice on the access to cross-border healthcare was not incorporated. As a result of the acceleration of negotiations, some technical questions were left unresolved. Consequently, the new regulation was not immediately applicable because the annexes which were needed for the regulation to come into force had not yet been adopted. Several annexes needed updating to take into account the requirements of the new member states. It was only in July 2007 that the Commission presented a regulation in order to fulfil the annexes and, when adopted, to render applicable Regulation 883/2004.

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The European Commission’s 1995 medium-term Social Action Programme (European Commission 1995) contained a proposal on an EU-level framework action for employee information and consultation. The closure of the Renault plant at Vilvoorde in Belgium in 1997 launched the debate on an appropriate legislation beyond the European Works Council directive, considered by many to have demonstrated the inadequacies of current EU legislation. In June 1997, the Commission initiated a first round of consultations with European-level social partners on the advisability of legislation in this area. The European Trade Union Confederation (ETUC) and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) welcomed this consultation and supported EU action in this field. However, the Union of Industrial and Employers’ Confederations of Europe (UNICE, now BusinessEurope) argued that EUlevel action in this area was unnecessary, as an extensive framework of provisions for worker information and consultation already existed at the national and transnational levels, and there was no real argument in favour of EU legislation (Arcq and Pochet 1998). In November 1997, the Commission opened a second round of consultations concerning the content of possible EU legislation on this issue. The social partners had an opportunity at this stage to decide whether or not to negotiate a framework agreement. From 1995 until autumn 1998, developments revolved around whether or not UNICE could be persuaded to engage in negotiations over a possible Community-level agreement. Finally, the employers decided not to enter into negotiations.4 The Commission then decided to act and in November 1998 adopted a proposal (European Commission 1998b) for a directive establishing a general framework for improving employees’ information and consultation rights in the European Community. The draft directive provided for rules on the information and consultation of workers at the national level, based on collective agreement or legislation. The UK did not have such institutions and the new Labour government was strongly opposed to the draft directive. It secured the support of the German government to block the proposal in the Council, in return for which the UK would support the German position in the European Company debate. The European Parliament had its first reading of the draft directive in April 1999 but because of the Anglo- German ‘deal’ this topic was not placed on the Council’s agenda until June 2000, at which point the Portuguese presidency eventually initiated discussion of the proposal. The discussion intensified under the French presidency during the second half of 2000. The majority of the member states supported the Commission’s proposal but the UK, Germany, Ireland and Denmark – gathering enough

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The information and consultation directive (2002/14/EC)

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votes to constitute a ‘blocking minority’ – maintained their reservations, preventing the adoption of a ‘common position’ by the Council. Once political agreement had been reached on the European Company Statute – in December 2000 – it became clear that the German government would not continue its opposition to the adoption of the directive beyond the UK general election. Denmark and Ireland’s concerns were accommodated by revisions to the text. Faced with the disintegration of the blocking minority, the UK government was forced to abandon its opposition to the directive following the June 2001 general election, although it secured concessions in the common position on the timetable for applying its requirements to smaller undertakings. The Council formally adopted its common position in July 2001. In October 2001, during the second reading of the text, the European Parliament adopted a series of amendments designed to toughen the requirements of the common position that had been rejected by the Council. This prompted the convening of a joint Parliament- Council conciliation committee that agreed on a final joint text for the directive on 17 December. Seven years after the Social Action Programme, the EU directive was finally adopted in February 2002 (European Parliament and Council 2002). The key amendment adopted by the conciliation committee was to Article 10, reducing from seven to six years the transitional period within which countries without ‘general, permanent and statutory systems of information and consultation of employees’ (UK and Ireland) could phase in the directive’s requirements (see below). The other changes were relatively minor. Depending on the choice made by member states, the directive was to apply to undertakings with at least 50 employees in a given member state, or establishments with at least 20 employees (Article 3). The directive defines minimum standards that information/consultation must cover (Article 4). Consultation must take place at an appropriate time, with appropriate means, at the relevant level of management and representation, and on the basis of relevant information provided by the employer. It must seek to reach an agreement on decisions that are under the employer’s control (work organisation, contracts of employment). The directive allows member states to let the social partners negotiate the procedures for informing and consulting employees by collective agreement. They may even agree not to respect the provision of Article 4, which lays down the minimal requirements for information/consultation. It follows the model of the European Works Council Directive, which allows social partners to negotiate below the minimum requirements, which are applicable only when no agreement is reached. Article 8 obliges member states to put in place appropriate measures in the event of non-compliance. In particular they shall ensure that adequate

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administrative or judicial procedures are available to enable the enforcement of the obligations deriving from this directive. ‘Moreover, Member States are obliged to provide for adequate sanctions in case of infringement of the information/consultation obligation. These sanctions must be effective, proportionate and dissuasive.’ (Case C-382/92, ECJ, Commission v. United Kingdom. See Schömann et al. 2006: 31.) This can be considered an improvement compared with the previous directives on collective redundancies or European works councils, for which no sanctions were foreseen in event of non-respect of the information/consultation procedures. Nevertheless, the sanctions are still be decided at the national level and not at the EU level. The directive had to be implemented by 2005 (a three-year delay) but transitional arrangements were available to member states without established statutory systems of employee consultation and representation, namely the UK and Ireland (Article 10). They were to progressively cover all undertakings concerned by 2008 (instead of 2005). In the UK, the regulations implementing the directive are based on a framework that was agreed on by the CBI (employers) and the TUC (unions). They were to apply to businesses with more than 150 employees from 6 April 2005, to those with more than 100 employees from 6 April 2007, and to those with 50 or more employees from 6 April 2008 (DTI 2006). It is no surprise that the directive had its biggest impact in the UK (in Ireland the implementation was delayed). The implementation was submitted to a consultation procedure. There was still the option of keeping the direct means of information/consultation that was in place prior to the directive if the majority of the workforce was not willing to open new negotiations. It should be noted that the penalty for non- compliance is rather high and could reach a maximum of £75,000 (European Works Council Bulletin 2004). This new option was received rather coolly by employers, who had lobbied for a minimalist interpretation of the directive. Many trade unions were also ambivalent (Amicus, a ‘white collar’ union, was the main exception), fearing that this new (institutional) process could have a damaging effect on the traditional voluntarist approach. The main concern was that employers could use the directive (or at least the UK interpretation of it) as a means of by-passing the unions (for a general analysis see Hall 2006; for case studies concerning Amicus, see Taylor et al. 2007). In their general evaluation of the implementation of the directive at the national level Schömann et al. (2006) confirm that a minimalist approach was followed in most member states. Belgium was the exception to this; information/consultation in small and medium-sized enterprises (SMEs) having been on the agenda for a while in that country, the directive forced the social partners to adapt the legislation. On the whole, the directive therefore had a limited impact.

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Although the principle of eliminating all forms of discrimination is included in the 1989 Community Charter of the Fundamental Social Rights of Workers, it was only beginning in the mid-1990s that a growing number of advocacy groups and non-governmental organisations (NGOs) came to support the introduction of anti- discrimination measures (for example the umbrella organisation Starting Line Group) at the EU level. They were able to rearticulate the initial demand from migrant groups (particularly the Migrant Forum) for citizenship based on residence (instead of nationality), as a demand for adopting anti- discrimination policies. They used arguments already considered as legitimate in EU discourse; on the one hand drawing on the parallel with gender equality, and on the other hand the internal market and the improvement of business performance through non- discrimination (on this point see De Schutter 2001; for a more detailed account see Guiraudon 2004). During the negotiation of the Amsterdam Treaty, attention was drawn to the issue of devising a more solid legal framework for anti-discrimination initiatives. The result was the adoption of a new anti-discrimination article – Article 13 (old numbering). At the time however, this provision was criticised because it maintained unanimity in the Council, whereas the European Parliament was merely to be consulted. Once the Amsterdam Treaty was adopted in 1999, it was expected that the Commission would speedily issue new proposals. However, the process was put on hold due to the resignation of the Santer Commission in March 1999. The new Commission took office in September that year and on 25 November a new anti- discrimination package of proposals was issued by the new Commissioner in charge of social policy, Anna Diamantopoulou. The package consisted of three elements: a horizontal directive, a (vertical) directive on equal treatment irrespective of racial or ethnic origin and a sixyear action programme from 2001 to 2006. Based on Article 13, the new proposals aimed to help combat discrimination on much broader grounds than existing EU legislation on equality between men and women. A communication from the Commission (European Commission 1999b) introduced the proposals explaining the background, general context and reasons why the Commission believed that Community-level action in this area was appropriate. From the outset, the Commissioner explained that the two new draft directives could be adopted independently of one another, opening up the possibility of accelerating the adoption of the ‘race directive’. Indeed, it was adopted in just seven months – a record for a social directive to which ‘no member state was opposed in principle ... [although] a number of Governments had serious difficulties with particular points’ (Tyson 2001: 201). The main explanation for this rapid adoption was the victory of Jörg Haider’s extreme

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The two anti- discrimination directives (2000/43/EC and 2000/78/EC)

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right party, the FPÖ, in Austria and the integration of the extreme right into the Austrian government. This explains why the French delegation took the lead on a directive which is based on a very different vision to that of the traditional republican approach (see Guiraudon 2004 for a much more elaborate presentation). The German delegation adopted a low profile to avoid being criticised and associated with the developments in Austria. The initial reaction of the UK government was positive as anti-discrimination is a long-established policy in that country. Moreover, as Guiraudon has stressed (2006: 289) ‘the “race” directive of June 2000 corresponds in great part to the British and Dutch approaches [ ... ].’ The horizontal directive aims to establish a general framework for the principle of equal treatment between persons, irrespective of race or ethnic origin, religion or belief, disability, age or sexual orientation (2000/78/EC of 27 November). It applies to (a) access to employment, self- employment and occupation, including selection criteria, recruitment conditions and promotion; (b) access to all types and levels of vocational guidance, vocational training, advanced vocational training and retraining; (c) employment and working conditions, including dismissals and pay; (d) membership of, and benefits from, any workers’, employers’ or professional organisation. The proposal covers both direct and indirect discrimination. However, some differences of treatment may be allowed by member states if they are based on a genuine occupational qualification, which is strictly necessary for the performance of the activities concerned. The proposal also contains a positive action clause, allowing member states to undertake positive action to compensate for disadvantages in the case of certain groups of people. The member states must ensure that appropriate judicial and/or administrative enforcement procedures are available to all those who consider themselves to have been a victim of discrimination. In the case of infringement of these provisions, member states should provide for sanctions, which are ‘effective, proportionate and dissuasive’. The (vertical) directive on Equal Treatment Irrespective of Racial or Ethnic Origin (2000/43/EC of 29 June) is in many ways similar in its wording to the above-mentioned framework directive. However, it differs both in focus and in scope. Its focus is solely on the implementation of the principle of equal treatment between people of different racial or ethnic origins, and it therefore sets out a minimum framework for the prohibition of such discrimination, while also providing for a minimum level of legal protection for victims of this type of discrimination. Its scope is wider than the draft framework directive (for an article-by-article analysis by an actor see Tyson 2001). It covers all four employment-related areas mentioned by the framework directive, in addition to the following areas: social advantages, including housing, social protection and social security. The proposal covers both direct and indirect discrimination in these areas, but allows member states to allow for differences of treatment if such difference is ‘based

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on a relevant characteristic related to racial or ethnic origin’. Member states are also allowed to take positive action in order to compensate for disadvantages suffered by members of particular racial or ethnic groups. The directive obliges member states to set up an independent body (Article 13) to promote the principle of equal treatment between people of different racial or ethnic origins. This body must include among its responsibilities the provision of assistance to victims of discrimination (Bell 2002). These bodies should conduct independent surveys, publish independent reports and make recommendations on issues relating to discrimination. A further linkage between member states and private actors is created by providing that member states should encourage national social partners to sign collective agreements on anti- discrimination (Article 11) and develop a dialogue with NGOs with a view to promoting the principle of equal treatment. These two directives were accompanied by a proposal for a Council decision to set up a six-year action programme from 2001 to 2006 (European Commission 1999a). Also based on Article 13 of the Treaty, the goal of this programme was to support member states in their efforts to develop policies and practices in the area of prohibiting discrimination. Despite their general affinities with the British approach, the directives did not merely affect France and Germany; they also required the UK to tighten up legislation in other areas, such as age discrimination, where the government had opted for a voluntary code of practice in preference to legislation. Guiraudon (2006) has also argued that the directives were adopted when anti- discrimination policies were challenged in the UK and the Netherlands. They had an involuntary positive impact by preventing the Dutch government from totally abandoning anti- discrimination. Two member states, Germany and Luxembourg, were particularly slow in the transposition. According to the evaluation of national implementation by Bell et al. (2006), the main impact of the directives was to reinforce the visibility of the anti- discrimination measures: ‘Whereas prior [to the directives] many member states provided protection against discrimination through a patchwork of – largely declaratory – equality clauses in a series of legislative instruments, most have now adopted more visible specific antidiscrimination legislation.’ The age discrimination provision was particularly challenging as most of the countries did not have pre-existing legislation on this topic before. Although almost all of the member states have bodies to monitor equality, the evaluation (Bell et al. 2006) suggests that only a few of them are considered to have adequately transposed the requirement to disseminate information on discrimination laws, to promote social dialogue and to encourage dialogue with NGOs. For most of the EU countries, the conclusion of the following French assessment on the non- discrimination directives is valid: ‘These amendments are liable to result in considerable change

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but their actual impact will depend on the actors’ ability to make effective use of a new kind of tool.’ (IGAS 2006: 438, my translation).

While the OMC has been a focus of academic and political attention in recent years, important legislative developments have occurred simultaneously. One can compare the richness of the literature on the OMC with the limited number of references to the topics covered in this chapter. Substantive pieces of legislation in the social field continue to be passed using the ‘unfashionable’ Community method, thereby contradicting the main argument put forward in favour of the soft-law approach, which is that hard law has ceased to be a feasible option. Hence, it appears that despite the need to reach unanimity in the Council and despite the codecision procedure between the Parliament and Council, a favourable conjuncture may allow for the adoption of legislative instruments with substantial implications. Concerning the unanimous approval of the modification of Regulation 1408/71, four factors appear to have been decisive. First, members states feared that any change would be impossible with 25 countries, and therefore felt that a compromise had to be reached rather than to risk no change whatsoever in the near future. Second, the end of the legislative term of the European Parliament (which would also have postponed the examination of changes to a much later point in time) facilitated smooth cooperation in the framework of the codecision procedure and allowed for institutional blockages to be avoided. Thirdly, a series of judgments by the Court of Justice had undermined some of the restrictive provisions of the regulation. As Martinsen notes (2008: 22) ‘The recent raft of ECJ cases point in the same direction – fewer social benefits can be confined to national territory, and free movement is a right based in the concept of citizenship that applies to everyone.’ Finally, the revision method adopted during the long reform process, involving chapter-by-chapter review, had increased awareness on the necessity of reaching a consensus, particularly for the governments occupying the EU presidency that had to manage and encourage the progression of this very technical dossier. To some extent, this reinforced the coalition of the member states that wanted a solution, and allowed for multiple compromises to be found over time. The impetus for an information/consultation directive stemmed from the shock and the political and social protest following the closure of Renault Vilvoorde. The link with the European Company statute slowed the negotiation process, but once the latter was approved, all the UK government could ask for were delays in transposition. Concerning the two directives on non- discrimination, the time needed for their adoption was extremely

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Conclusion: Hybridity in EU social policy

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short. In this case (in the context of the Austrian alliance between the far right and the conservatives) the cost of not doing anything was becoming higher than the costs of a compromise in this area (de Schutter 2001). Yet there were also additional factors that facilitated the adoption. According to Geddes and Guiraudon (2004: 350) ‘[t]he two main factors that explain why an anti-discrimination Directive with a distinct AngloDutch flavour was adopted are policy and ideational linkages to the fight against xenophobia and an equal opportunity frame inherited from the EU gender and equal treatment legislation.’ In other words, it was possible to simultaneously mobilise a conceptual arsenal. From our case studies of this legislation, it is clear that the dynamics behind adoption were different in each case. Nevertheless the common trends are: ●

●

construction of a consensus concerning the need for action, prompted largely by pressure from external developments (enlargement, restructuring, extreme right); a window of opportunity to overcome the Council’s natural inclination to engage in endless discussion in the search for a consensus acceptable to all, including the UK government – a traditional dissenter in EU social policy.

These considerations take us back to the golden age of social policy. In the 1970s numerous directives were adopted – despite the unanimity required by the Treaty of Rome – as a result of the political will that emerged from the troubled social context created by economic recession. Other troubled contexts (Vilvoorde, the far right, enlargement) constituted the trigger for adopting these new proposals. The impact of the Court of Justice’s rulings was also felt (equality between men/women, Regulation 1408/73). Political factors also seem to offer a partial explanation for these outcomes. Indeed, there were a majority of centre-left governments in Europe between 1997 and 2002, a period which in quantitative terms differed little from the first part of the 1990s. As anticipated, enlargement, which strengthened the right-wing majority in the Council, did indeed occasion a pause in the adoption of social directives. True, proposals (working time, temporary agency, posted workers directive, non- discrimination, parental leave, etc.) are now once again on the table, but the main reason they are currently being discussed is that the revision of these texts was foreseen in the existing directives (with the exception of the temporary agency directive which is a new proposal). The role of the Court of Justice as a catalyst for legislation is evident in the case of the working time directive and also of the posted workers directive. From the standpoint of content and scope, the legislation that has been passed in recent years is far from being completely toothless. If the United

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Kingdom is compared with other liberal countries (United States, Canada, Australia), the influence of European social legislation is readily apparent. Insofar as the information/consultation processes are not based on a preexisting formal institution in the UK, they have led – or will lead – to important institutional changes in that country. The ‘race’ directive introduced important changes in various member states, particularly France. While the new Regulation 883/2004 to some extent served the purpose of enshrining Court of Justice case law in Community legislation, it is bound to spur new developments in the future. Following Falkner et al. (2005), whose study demonstrated the existence of soft-law provisions in the hard law they analysed, it must be stressed that the directives under scrutiny here are also hybrid. Hybridity does not merely refer to the presence of hard and soft law in the same policy domains (Trubek et al. 2006) but also to the content of hard-law rules. In the past few years, the areas of pension, unemployment (and employment), healthcare and social exclusion/poverty have witnessed the emergence of processes aimed at producing convergence effects through the OMC (Pochet 2004). In other words, areas subject to harmonisation between states are also subject to open coordination processes. The exception to this is the modification of Regulation 1408/71, as there is no explicit link between these processes and this piece of legislation, which is a more classical harmonisation exercise. The directives analysed here are also hybrid in terms of the actors involved. They contain provisions concerning and involving non-state actors (trade unions and employers for information/consultation; NGOs, social actors and social partners for non- discrimination) who themselves supported the development of (new) institutions to foster and/ or strengthen rights. The second half of the 1990s and the first years of the new millennium were thus clearly characterised by a mix of different modes of governance rather than by a complete shift from hard to soft law (Ferrera 2005; Kilpatrick 2006). Hybridity is already a key feature of European social policy insofar as the latter involves different actors – government, social partners and NGOs – in the implementation of directives (Barnard and Deakin 2000; Deakin and Koukiadaki 2007). The most advanced example of this tendency is the anti- discrimination directive ‘which constructively seeks to combine elements of a rights model and a new governance model which might otherwise be thought of as fundamentally incompatible in their method and their aims’ (De Búrca 2006: 21). To conclude, we have seen that the European Union continues to issue binding legislation, albeit in the form of instruments displaying a number of new features. This capacity for innovation may also explain why these hard-law instruments continue to be regarded by many as an appropriate tool with which to confront the challenges presented by the ever-growing complexity of Europe in the 21st century.

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1. Earlier versions of this chapter were presented at the EUSA Montreal conference, 17–19 May 2007 and at the CONNEX Workshop: ‘How much is known about the “Community method”?’ Sciences Po, 29 November 2007, Paris. I would particularly like to thank Renaud Dehousse, Mark Pollack, Andy Watt and Jonathan Zeitlin for their useful comments. Dominique Jadot and Renaud Smoes gathered the data on the directives. 2. See the comments by Jonathan Zeitlin in Chapter 8. 3. A number of directives that were adopted under Article 118 health and safety – in order to benefit from the qualified majority associated with this legal base – in fact have a broader scope than health and safety (working time 93/104, pregnant workers 92/85, young workers 94/33), and so have been classified as general social directives. 4. The information presented is mainly based on European Works Council bulletin (2002) and Degryse (2003).

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Notes

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11 The ‘Governance Turn’ Revisited

Since the mid 1990s, European governance has evolved substantially, particularly in the direction of fewer constraints: flexibility, coordination, peer monitoring, and soft law have become fashionable themes. The literature on ‘new modes of governance’ (or NMGs) has flourished alongside these transformations.1 Some authors have referred to a ‘governance turn’ in European studies (Kohler-Koch and Rittberger 2006). The analysis of the nature, significance and impact of this ‘new’ governance has indeed created a scholarly movement in its own right (with its ‘stars’, a specific language, quasi-specialised reviews, a multiplication of large-scale research programs, etc.). NMGs are defined, more or less implicitly, in opposition to the Community method. Despite occasional doubts regarding their legitimacy (Georgakakis and de la Salle 2007) or their effectiveness (Idema and Kelemen 2006), they tend to be viewed as increasingly important in EU policy-making. But is the existence of ‘new’ instruments of governance necessarily synonymous with an innovative way of doing things? Is it really the case that NMGs now play a central role in EU policy-making? Are we witnessing the emergence of an entirely new system of governance at the European level? Our aim in this chapter is to answer these questions. To this end, we will begin by briefly making the point that the concept of ‘governance’ is better suited than that of ‘government’ to describe the way public policy is conducted in the European Union. We will then move to a discussion of the main trends that are identified as New Modes of Governance in order to assess to what extent they can properly be described as ‘new’. This will be followed by an overview of more traditional forms of EU action, which will lead us to support the idea that ‘old’ governance has far from disappeared. The European system of governance is thus a good example of change in continuity: ‘old’ and ‘new’ are not mutually exclusive but tend to mix in an ever complexifying marble cake.

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It is difficult to regard the Community method as the way a would-be ‘government of Europe’ would act given the absence of a powerful executive, able to assign clear programmatic goals to the Union and to see to it that action is undertaken to reach those goals, and able to impose its views on other actors if need be. Despite recurrent complaints about the Brussels bureaucracy or the ghost of a ‘European super state’, the Union lacks several of the classical features of the State. True, EU law claims to be supreme over conflicting national rules, but the Union is deprived of hierarchical authority over lower levels; it lacks any coercive power and is therefore dependent on national authorities to see its decisions enforced. The complex balance of power associated with the Community method has clearly impeded the emergence of a strong central government. Although it might be somewhat far-fetched to argue that ‘Europe has made a principle of powerlessness’ (Revel 2003), there is little doubt that this result was not accidental. As argued in Chapter 1, the whole system was constructed to lock member countries into a virtuous scheme of cooperation in which efficiency gains could be made, rather than to create a new, imperial power, to which they would be subjected. There is therefore some irony in the fact that the Community method is increasingly criticised for its alleged inclination towards intrusive regulation and its lack of flexibility. Several of the elements associated with new modes of governance may help us make sense of its main features. Thus, using the classification proposed by Oliver Treib, Holger Bähr and Gerda Falkner (2005), one could say that the Community method is but one of the many modes of governance used by the Union. Admittedly, it entails more constraints than other methods, since it rests on legally binding and enforceable actions taken according to institutionalised procedures in a system characterised by a high dispersion of authority. It may lead to a broader variety of outputs than is commonly acknowledged however, as decisions adopted according to the Community method do not necessarily result in the adoption of rigid approaches to implementation. Indeed, the use of directives or opt-out clauses may result in a fair degree of diversity. Similarly, it may include material or procedural regulations (i.e. forcing national governments to notify the Commission or other member states of measures that may hamper free movement before they are adopted). Moreover, even though the main decisions are formally adopted by public bodies, EU policy-making processes may (and often do) provide ample space for private interests; witness the important role attributed to social partners in social policy, or to industry representatives in standardisation procedures. In other words, contrary to widespread opinion (see e.g. Majone 2005), what

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The Community Method as a mode of governance

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is characteristic of the Community method is the process whereby decisions are made, rather than the outcomes of this process. Though processes and outcomes may of course be related, the point needs to be made that the Community method does not necessarily lead to a centralisation of authority in the hands of bureaucrats, eager to impose an inflexible solution to any problem. Indeed, as has just been suggested, there are many examples to the contrary. In short, whereas the notion of government is characterised by a hierarchical and centralised type of authority, the European political system was conceived and has operated differently from the very beginning. If one accepts that the defining feature of governance consists ‘in the interaction of a plurality of “governing” actors who are not all state nor even public ones’ (Leca 1996: 339, our translation), then the Community method can be defined as a mode of governance. What then, is so special about the ‘New Modes of Governance’ that have appeared lately?

The rise of new modes of governance: A tentative typology New European governance has multiple faces and many systems of classification have been put forward as a result. In this chapter however, we focus on four categories of instruments which in our view illustrate the variety of ambitions and techniques that have led to the development of the ‘governance’ movement: governance by implication, by delegation, by reputation, and by integration. Governance by implication This first type of instruments calls for opening European policy-making to civil society and involves an increasingly broad range of actors. The Commission itself proposed such a development in its White Paper on governance, citing as a model the extensive consultations that were organised between 1998 and 2000 before the adoption of the ‘Telecoms Package’: ‘what is needed is a reinforced culture of consultation and dialogue’ (Commission 2001: 16), a strategy which it has followed systematically in areas where its legitimacy to act was questioned, as noted by Laura Cram elsewhere in this volume. 2 The willingness of other institutions to foster transnational debate on EU policies appears equally strong, the Economic and Social Committee having been particularly active on this front (Smismans 2000). Recently, the Commission has displayed a keen interest in more innovative forms of dialogue. For instance, in the framework of the ‘Plan D’, launched after the rejection of the draft Constitutional Treaty by the French and Dutch referenda, the Commission supported the organisation of experiments in transnational deliberation inspired by direct democracy techniques, such as citizens’ conferences or deliberative polls. However, the impact of these participatory devices on decision-making is

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at best questionable and they involve numerous difficulties, be it in terms of language, or because the size of the sample required and its diversity make it difficult to achieve real deliberation (Boussaguet and Dehousse 2009).

The second process consists of delegating a number of prerogatives to autonomous administrative structures operating at the European level. Although the first Community-level agencies were created in the 1970s, their number grew significantly during the 1990s and the 2000s, in the wake of the single market programme (Majone 1996). The basic idea behind this move was that the development of the EU’s regulatory capacity was necessary to reconcile free movement of goods with protection imperatives (in fields such as environmental or consumer protection, public health, workers’ health and safety, etc.). This led to the setting up of autonomous structures in which expertise could be developed, and which were vested with (generally limited) organisational powers (data collection, establishment of transnational networks, organisation of discussions on best practices, etc.), as well as (more rarely) the power to make individual decisions, or to issue rules considered to be outside the legal reach of agencies.3 This compromise allowed for the management of a number of issues to be Europeanised without fully expelling national administrations from the concerned field, since as a rule they are directly associated with the agencies’ activities. Despite significant differences in their respective status, most of these structures have become or are becoming centres for experience-sharing, socialisation, learning, and developing common solutions. These all contribute to the creation of shared representations for European and national actors involved in the same policy area. Governance by reputation Although the Maastricht Treaty rules on the convergence of macroeconomic policies provided a blueprint for governance by reputation, the paradigm was only formalised with the launching of the Open Method of Coordination (OMC) by the Lisbon European Council in Spring 2000. The OMC was in fact the starting point for theorisation on new modes of governance and served as the basis for further conceptualisation of European governance. Although the ambitions of the ‘Lisbon Strategy’ were quite far-reaching, any transfer of additional powers to the European level was deliberately avoided. The ‘Open Method of Coordination’ defined on that occasion consists above all in establishing procedural routines – the definition of guidelines and indicators, periodic monitoring of national policies, exchange of best practices – intended to promote mutual emulation and learning. Mutual emulation rather than Community control mechanisms was seen as

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Governance through delegation

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the key to success under this new strategy. The Commission was relegated to a secondary role and the heads of state and government assumed an overall role of guidance and control (Dehousse 2004; De la Porte and Pochet 2002; Rodrigues 2002). This strategy reflected a political compromise between extending European influence into new political domains and eschewing challenges to member state sovereignty, particularly in social matters. Since the OMC was systematised in 2000, new coordination processes have developed in the social realm (e.g. retirement, social protection and inclusion, health and access to long-term care) and in other sectors where it was thought that the EU should primarily play a support role (e.g. research and innovation, education, youth, information society). The term OMC thus in fact designates a working method rather than a particular process, since the instruments used tend to vary from one area to the other: drawing up of national action plans, setting of quantitative objectives, elaboration of individual recommendations. Governance by reputation in general, and the OMC in particular, do not lead to the definition of common rules, but rather to forms of cognitive and normative harmonisation practices, where convergence is sought at the level of problem analysis and of solutions, but diversity in national implementation schemes is allowed (Palier 2001/2). The cognitive dimension is therefore central; emulation and reputation have emerged as drivers, supplanting legal requirements, and the networking of national actors is the principal vehicle for European public policy-making. Governance by integration Governance by integration, which has especially thrived since the 1990s, aims to manage the complexity and multidimensionality of some of the problems for which the EU is responsible. It refers to what is most often called ‘mainstreaming’, ‘integrated approaches’, or ‘integration principle’. Under this approach, certain policy concerns are injected into a broad range of sectoral policy domains instead of being treated as stand-alone issues. An early example of this type of governance involves environmental concerns, which are addressed systematically in a broad range of Community policies. The integration principle first appeared in the Single European Act of 1986 (Article 130 R. 2) and was subsequently reaffirmed. A second example is gender mainstreaming, or integration of the gender dimension. Article 3.2, which was added under the Treaty of Amsterdam, states that ‘in all the activities referred to in this Article, the Community shall aim to eliminate inequalities and to promote equality, between men and women’. Mainstreaming processes have multiplied informally in many domains since the end of the 1990s (e.g. handicap, discrimination, urban issues, etc.). They were reinforced by the European constitutional project and the Lisbon Treaty, which confirmed this development by defining ‘provisions of general application’ to EU policies (Title II of the Treaty on the functioning of

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the European Union, Articles 8 to 13) that stipulate specific ‘requirements’ to be taken into account in the definition, management, and implementation of all policies, including gender equality, social protection, combating exclusion, environmental protection and sustainable development, consumer protection and animal well-being (Halpern et al. 2008). Governance by integration is being put into practice through a variety of tools. Some, like Commission inter-service groups, are organisational: they attempt to coordinate affected activities and actors. Others are meant to provide decision-makers with analytical tools (statistics, indicators, followup or impact studies, etc.). Finally, ‘awareness tools’, such as training, or compiling best practices, seek to raise actors’ consciousness about the different impact that policies may have on selected social groups, the environment, etc. (Jacquot 2010). The new modes of governance thus employ a wide range of instruments and practices. Each of the categories discussed here represents, in its own way and to varying degrees, an approach that differs from traditional ‘government’. Together they display some key features that are traditionally associated with governance : a greater role for private actors, a growing polycentricism, or preference given to more limited constraints. However, one may wonder to what extent this actually reflects a radical departure from earlier approaches pursued at the EU level.

Where is the novelty in this? Many interpretations of the evolution in the European political system tend to pit new governance against the old, represented by the Community method, leading to a series of dichotomous oppositions: binding vs. nonbinding instruments, top- down vs. bottom-up approaches, uniformity vs. diversity, rigidity vs. flexibility, closed vs. open processes, hierarchical relationships vs. cooperative ones, centralised vs. decentralised policy-making, majority rule vs. deliberation, hard law vs. soft law, etc. Yet a closer look reveals that new governance and its instruments are not systematically at odds with the traditional Community method. The novelty in this does not in fact signify a fundamental transformation of the existing system, but rather an elaboration of certain features inherent to European governance and its hybrid, ‘unidentified’ political system, to use Jacques Delors’ now classic expression. This section will show that for several of the characteristic traits associated with new governance, antecedents can be identified in earlier policy-making.

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The ‘Governance Turn’

The shifting public/private border As we saw above, new modes of governance have been conducive to strengthening the role of private actors in public policy. Openness to civil society has grown, further implicating the latter in the European decision-making

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process through consultation and deliberation, whether this be through NGOs already present in Brussels, or civil society as a whole (Commission 2002). As a result there is growing pluralism involved in the Commission’s relationships with interest groups. Evolution in the agricultural sector is instructive in this respect (Garzon 2006). At first, a form of agricultural corporatism existed which was modelled on the joint planning mechanisms between producers and public powers that were operating in member states at the time. The Commission and affected sectors operated within a structured co-management setup. This strongly encouraged the formation of a unique transnational committee of organisations representing agricultural interests (COPA) that became the Commission’s privileged interlocutor on agricultural matters. In exchange for supporting the CAP, this committee obtained a quasi-monopolistic consultation position. However, this modus operandi was progressively challenged beginning in the mid-1980s, when the Commission started to extend its consultations to new interlocutors (i.e. agro- alimentary industry, other agricultural confederations, commercial sectors, etc.). Furthermore, more flexible forms of dialogue, such as informal and occasional meetings (seminars, hearings, consultations, etc.) were used to complete and/or compete with the traditional consultative committees. To sum up, in the past two decades, in the agricultural sector, as in environmental policy, gender equality and many other areas, the tendency has been towards flexibility and diversification, with the Commission seeking to increase and multiply its contacts. The initial model, based on the narrow association of a small number of organised actors, with clear corporatist leanings, was gradually replaced by a pluralist pattern of more fluid and flexible consultations with a growing number of groups. But that evolution was detected long before the debate on NMG was initiated (Streeck and Schmitter 1991). Moreover, in some areas the reliance on private actors has been even stronger: technical standards have long been drafted by industry, while NGOs are important agents in EU development policy. NMGs therefore appear to have simply reinforced a trend that was already well established. Admittedly, the opening up of the European decision-making process today concerns civil society as a whole, not just interest groups. The goal is to reinforce interaction with sub-national actors and more importantly to directly involve European citizens through extensive consultation. European institutions display a clear intention to open discussions up to the public, including ‘lay’ people. But these innovations are mostly of an instrumental nature, and cannot be depicted as a major departure from past practice.

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The accentuation of ‘institutional polycentrism’ Another characteristic of new modes of governance has to do with institutional complexity. There are multiple loci of power, decision-making and administration involving a large number of players, and there are many

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ways to get stakeholders involved. New governance has accentuated the fragmentation of power by including new actors in the institutional system and calling on them to play an important role in European policies. The newly established regulatory agencies are a good example of this; while these structures may have clear advantages (e.g. sectoral expertise, cost savings, greater visibility in a particular sector, etc.) they also undeniably contribute to increasing the complexity of the European system. Not only do they add a new, administrative layer to the list of EU actors, but they are themselves only the tip of the iceberg, since one of their main tasks has been to set up and run a network bringing together their national counterparts in the areas in which they are active. At this level too however, the novelty should not be over-emphasised. From the outset, the Community method has had clear polycentric features: both the Commission and the Council are veto players in legislative procedures, and the organisation of the Council in sectoral formation and its reliance on multiple layers of committees contribute, to the overall fragmentation of the institutional system. As indicated above, this is one of the essential attributes of the Community method: countervailing powers are multiplied in order to avoid any kind of hegemony. No wonder that in such a context the development of semi-autonomous regulatory structures could be accepted without radical opposition (Dehousse 2008). The softening of constraint A third characteristic of governance relates to the form of authority and degree of constraint. While government is characterised by a hierarchical and centralised authority, governance relies more on cooperative mechanisms and a softer exercise of authority. Indeed, new governance tends to rely on softer types of instruments, in particular by developing new types of public policy instruments that are less intrusive than the regulations or directives traditionally used in the Community method. NMGs often rely more on emulation and peer evaluation than on formal constraints; they allow for different (particularly national) responses to problems. In the OMC, for instance, formal constraints are limited and no sanctions are foreseen in the event of non-compliance. The main goal of this method is the diffusion of common political objectives and cognitive principles, rather than a complete harmonisation or the centralised implementation of identical policies. As a result, soft law is said to be on the rise. Thus, a comparison between the Commission’s work during the first two years of Barroso’s mandate and the first two years of Prodi’s mandate has shown that hard law (directives, regulations, decisions) generally declined (down 2.8%), while soft law progressed during the same period (up 18.1%). White Papers, Green Papers and Opinions even rose by 90.1% (Kurpas et al. 2008). Once again however, the novelty is only relative. Soft law has been widely resorted to in the past, for

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The ‘Governance Turn’

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instance to codify the Commission’s policy towards State aid (Cini 2001; Snyder 1994) and forms of diversity have been tolerated in a wide range of areas (Ehlermann 1983–4; Sabel and Zeitlin 2008). Moreover, even in areas where the propensity to resort to NMGs has been the strongest, such as in the domain of social policy, hard law has far from disappeared, as shown by Philippe Pochet in the previous chapter. To conclude, it appears that the novelty of new modes of governance is only relative, since the final analysis suggests that they do not represent a radical departure from the governance model that has been operating at the European level since the beginning (see also Tömmel and Verdun 2009). The innovations introduced tend to accentuate some of the ‘traditional’ features of EU governance, like polycentrism and complexity, or contribute to trends already under way, such as the shift towards a pluralist model of relations with private actors. Where differences with past practice exist, they tend to be differences of degree, not of kind. Furthermore, if ‘new’ governance is not that ‘new’, the ‘old’ governance in the form of the Community method has certainly not disappeared, as we shall now see.

How does the Community method fare? To complete our inventory of the balance between ‘old’ and ‘new’ governance, we now need to assess the current importance of traditional modes of governance in EU policy-making. Several elements suggest that despite repeated announcements of its imminent demise, the Community method has been more resilient than expected. First of all, the volume of ‘hard law’ produced by the European institutions is far from declining.4 As shown in Figure 11.1, the number of Commission proposals has remained fairly stable after the 2004 enlargement, despite a temporary drop in 2005, which seems due to the intense activity of the year before.

493

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2000 Figure 11.1

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Number of Commission proposals

Source: OEI data.

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The ‘Governance Turn’ 249

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Source: Council General Secretariat for 1999–2002; OIE for 2003–2009.

A similar picture emerges for legislative output. Every year the Union adopts about 200 legislative texts (Figure 11.2). True, there was a sharp decline in 2005, right after the enlargement, but this appears to be a byproduct of an acceleration registered the previous year, with a peak of 230 texts, nearly two-thirds of which were adopted in the four months that immediately preceded the arrival of the new members. Obviously, the fear of paralysis generated by the enlargement played a major role in that acceleration. Interestingly however, after the 2005 decline, legislative output tended to increase, which suggests that the EU machinery has reacted better than many observers anticipated. Even more surprisingly, decisions have been made increasingly rapidly (Dehousse et al. 2006, chapter 1). The stability of legislative output is quite remarkable even in the social policy sector, which was the theatre of many attempts to introduce ‘new modes of governance’. The same thing can be said for another major source of hard law: the European Courts (European Court of Justice and Court of First Instance). The number of rulings by these courts has been climbing, which is hardly a surprise since an increased number of member countries could be expected to mechanically lead to an increase in litigation. Needless to say, those figures say nothing of the normative quality of EU law or of its content (pro-integration or not). However, the enlargement has clearly not had the crippling effect on the Community law-making system that was anticipated.

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30 28 26 24

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Figure 11.3

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Note: Share of public votes in areas where majority voting is allowed. Source: Hayes-Renshaw, F., Van Aken, W. and Wallace, H. (2006) for 1999–2001; OIE data for 2002–8S.

Second, the resort to voting, a key feature of the Community method, has remained at pre- enlargement levels. This is remarkable as many studies conducted in relation to the discussions on institutional reforms in the run- up to the 2004 enlargement stressed that the increase in the number of countries was likely to lead to a stalemate in the Council, given the high threshold for a qualified majority fixed by the Nice Treaty (see e.g. Tsebelis 2006). Yet, as shown in Figure 11.3, after a decline observed in the enlargement period, the ratio between the number of votes registered and the number of legislative acts adopted on a legal basis allowing a vote, remained pretty stable. According to Hayes-Renshaw et al. (2006), the average number of votes was 20% over the period 1999–2004. In our data, the average figure is 22% over the period 2004–8, with a 30% peak in 2007. Interestingly, the time before voting has tended to shorten. Prior to enlargement, it took on average almost 475 days after an act was transmitted to the Council for the ministers to decide that a vote was to be taken. This time period has now declined to around 450 days, which might help explain the acceleration in legislative procedures. Of course, the relatively limited number of votes that took place during this period calls for great caution in the interpretation of this data. Nevertheless, it appears that contrary to many pre-2004 forecasts, the enlarged Council is not less willing to vote than its predecessors. In broader terms, the impact of the 2004 enlargement on the functioning of the European institutions appears to be less dramatic than expected (Best et al. 2008).

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(%)

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The ‘Governance Turn’

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There is no doubt that the post-1992 period has seen many innovations and a clear desire to experiment with new modes of governance. The opposition between old and new governance should not be over- emphasised however. First, several hallmarks of the new instruments – flexibility, decentralisation, deliberative policy-making etc. – already featured prominently in some EU policies well before the current governance literature started to blossom. Second, new modes of governance, such as dialogue with civil society, can also be used by EU institutions to enhance their influence, as noted by Laura Cram in Chapter 9. It has also been shown that the modes of action, and even at times the structure, of the actors to which the new governance literature has directed our attention, such as non-governmental organisations, were often influenced by EU policies (Sanchez- Salgado 2007). Much of the ambiguity of the current situation stems from the fact that the turn to governance has developed largely to enable the EU to step into policy areas in which, for a variety of reasons, the delegation of powers to supranational actors was deemed unacceptable – the best example being the famous open method of cooperation, the aim of which was clearly to Europeanise one of the strongholds of modern States: their welfare systems. Moreover, the old-fashioned Community method still appears to occupy a central place in EU governance. Year after year, the volume of EU legislation remains remarkably stable. Whatever one may think of its political orientations, the European Commission does not sit idle, but produces a steady volume of proposals. Although the number of member countries has more than doubled in 20 years, the Council does not seem to face greater difficulties in making decisions. At all these levels, the latest enlargements do not appear to be a major source of difficulty, contrary to expectations. Moreover, the very fact that rulings of the Court of Justice can be controversial – as was the case with the Laval and Viking cases, dealing with the rights of workers to collective action and the competition between national systems of social protection – is a good indicator of the fact that the Court of Justice has remained a central actor in EU policy-making – too strong an actor, some would argue (Scharpf 2009). The European system of governance is therefore composed of an accumulation of ‘old’ and ‘new’ instruments, which coexist and at times are even designed to operate together. This hybrid situation, which belies the dominant view of the evolution of European governance, may in part be due to the great contiguity that exists between new modes of governance and their forerunners. As noted above, new modes of governance are best analysed as an accentuation of the original features of the system, rather than as outright innovations. Both were largely conceived to respond to the same need, to provide a framework for interstate cooperation without leading to an unwanted degree of centralisation. This is not without analogy

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Conclusions: The marble cake of European governance

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with the metaphor of the ‘marble cake’, used over a century ago by Morton Grodzins (1966) to describe the coexistence of several varieties of federalism in American government. Pure innovations are rare in the world of governance.

1. See the literature review in Kohler-Koch and Rittberger (2006); Treib, Bähr and Falkner (2005), Olsen (2008), Eberlein and Kerwer (2002), Tömmel and Verdun (eds) (2009). 2. See Chapter 10. 3. Even though ways around that obstacle have been found; see Schout 2008 on the European Airline Safety Agency. 4. The data discussed in this section is taken from a large-scale empirical project conducted at Sciences Po in Paris, in the framework of the Observatory of the European Institutions (OEI): European Union Legislative Output 1999–2010 (5 June 2010) [database], Centre for European Studies (Sciences-Po) and Centre for Socio-political Data (Sciences-Po, CNRS) [producers], Centre for Socio-political Data (Sciences-Po, CNRS) [distributor].

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Notes

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Conclusion: Obstinate or Obsolete?

In a much-discussed article written half a century ago, Stanley Hoffman (1966) argued that despite functionalist expectations to the contrary, states were not withering away and should be expected to retain a major role in European affairs. Much the same could be said today about the Community method. Over 60 years after the Treaty of Paris, the first to define the basic elements in the limited but strategically important coal and steel sectors, it still plays a central role in contemporary EU policy-making, notwithstanding repeated declarations about its alleged obsolescence, made by political leaders and students of European integration alike. Yet its continuing relevance does not mean it has not evolved. When trying to analyse the overall evolution of the European Union, one must therefore avoid simplistic judgments: as in any political system, one can see different processes at work here.

The resilience of the Community method As shown by various contributions to this volume, the original operating system laid out by the Treaties of Paris and Rome – a combination of limited delegation to supranational bodies and rules encouraging states to cooperate – has displayed an amazing ability to evolve and meet new challenges. Since the beginning of its ‘journey to an unknown destination’ (Shonfield 1974) Europe has experienced a number of crises and undergone deep transformation. The iron curtain has disappeared, flows of goods and services have grown to unprecedented levels, and new technologies have transformed communication between peoples. The Coal and Steel Community quietly passed away at the beginning of the twenty-first century, but variants on the basic model defined by Monnet and his aides are now operating in areas such as monetary policy or justice and home affairs – areas traditionally regarded as being at the core of sovereignty. According to Jolyon Howorth, elements of a community spirit can even be discerned in the field of defence, described over 50 years ago by Hoffmann as an area of ‘high

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politics’, by nature immune from any kind of functionalist contamination. His refined analysis of the Political and Security Committee shows that even in a body composed of member states’ representatives, power politics may give way to a deliberative logic based on mutual trust, and intergovernmental procedures may lead to ‘supranational outcomes’. The resilience of the Community method owes much to the system’s capacity to integrate instruments designed to meet new functional needs. The main institutional innovation of the past two decades – the emergence of the European Parliament – has been digested by the EU machinery without any major shocks, and so far the same can be said for the spectacular enlargement process that has led the Union to absorb most European states. A complex web of committees and networks run by EU agencies has been created. As a rule, these structures have demonstrated a remarkable ability to socialise newcomers; witness for example the way in which the Parliament has adjusted to the challenge of enlargement, as analysed in Olivier Costa’s contribution to this volume. This evolution is all the more remarkable in that it has not occurred without opposition. The opposition itself is hardly a surprise: as Hoffmann noted (1966: 884), one could expect that national leaders would not sit idle while entire layers of their authority were eroded by package deals inspired by an enlightened bureaucracy, compromising their ability to respond to their voters’ preferences. Functionalism breeds resistance. The post-Maastricht period is quite telling of their willingness to resist. After nearly a decade of massive development of EU activity under the Commission’s Single Market programme, national leaders insisted on inserting a number of safeguards against unwanted expansion into the Treaty. This resulted in, inter alia, the subsidiarity principle, the creation of separate intergovernmental ‘pillars’ to allow cooperation to develop outside the control of supranational bodies, or the introduction of a number of legal barriers designed to limit EU activity in its new areas of competence, such as health, culture or education. Less than two decades later however, these efforts appear ill-fated. The survey of post-Maastricht developments in the realm of justice and home affairs provided by Jörg Monar shows how rapidly the inter-governmental mechanisms foreseen by the Treaty on European Union have been superseded by elements pertaining to the Community method. True, the pace is slower in the field of foreign policy, but the movement seems to be in the same direction. The fact that willy-nilly, the position of High Representative for Foreign and Security Policy was brought closer to the Commission by the Lisbon Treaty indicates that in many people’s minds, the only way to overcome the structural weaknesses of inter-governmental cooperation is to incorporate therein elements inspired by the classical operating system of the Union. It is still too early to tell whether we are likely to see a similar movement in relation to the open method of coordination. The OMC has enthusiastic

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supporters, but for better or worse a sense of disillusionment has been developing over the past years. It is indeed likely that this is premature, as suggested by Jonathan Zeitlin in Chapter 8. By definition, a process of cognitive harmonisation such as the one set up by the Lisbon European Council requires time before its effects are felt. The real problem is the mismatch between the ambitious objective trumpeted in 2000 – to transform Europe into ‘the most dynamic and competitive knowledge-based economy in the world’ – and the elaborate implementation process that was designed to attain it. But judging from the 2010 debate on the ‘Europe 2020’ programme, meant to replace the Lisbon strategy, the lesson does not seem to have been learnt. The discussion has focused on the objectives, with little attention paid to implementation concerns. Be that as it may, the overall picture does not seem to augur a fading of the Community method: the range of policies to which it applies is today larger that it has ever been. How can one explain this outcome? Some would probably argue that on the whole the various alternatives have failed to deliver the degree of cooperation that was deemed necessary. But the contributions to this volume propose an additional explanation. One of the strengths of the Community method, and one of the factors that may explain its resilience, is that it does not necessarily presuppose an ideological commitment to European integration. In Chapter 1, I argue that a pure strategy of self-interest could lead states to support (limited) transfers of sovereignty to improve the efficiency of international policy-making. Likewise, Thomas König and Dirk Junge have stressed that logrolling and package deals among members of the Council can explain the degree of consensus that characterises the decision-making in the Council of Ministers. Susanne Schmidt’s insightful account of the Commission’s agenda-setting powers also shows that it is to a large extent by altering the range of alternatives open to national governments that it may shape coalitions in the Council. All this suggests that governments’ utilitarian calculations may explain their acceptance of the gradual expansion of the Community method’s scope. Ideas have also played a role in this process: the development of the Parliament’s role, for instance, seems to owe much to the tendency, implicit but nonetheless quite developed in Europe, to regard parliamentary systems as the most natural form of government (Goetze and Riitberger 2010).

A system in transformation

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The fact that the Community method has not disappeared does not mean it has remained untransformed. New institutional actors have appeared; the most prominent of these being of course the European Parliament, which has acquired essential legislative prerogatives and now has a clear policymaking role in many areas. At the bureaucratic level too, a large number of more or less autonomous agencies have emerged as key actors in their

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respective spheres of authority. As substantial as they may be, however, these innovations can be seen as adjustments to the model rather than as radical alternatives, since they are clearly influenced by the same operating codes. Given the weakness of partisan politics at the European level, the European Parliament has not become an instrument of party government, contrary to what has happened in other political systems. Some may deplore it (see e.g. Hix 2008) but consensus remains the basic principle underpinning its internal functioning. Similarly, European agencies (the formal powers of which remain limited) may be seen as adhering to the golden rule of the Community method: avoid any concentration of power at all levels. Their formal powers may be limited, but had they been concentrated in the hands of the Commission they might have led to the emergence of a powerful bureaucratic actor. Remarkably, these two developments, responding to idiosyncratic sources – the unwillingness of national political parties and of national administrations to accept the emergence of too strong an EU counterpart – have ended up reinforcing a decentralisation of power that is, as was argued in Chapter 1, the hallmark of the Community method. It is fair to say that in Brussels one often hears complaints that the Commission is weaker today than it used to be in the Delors era, or even – for the elders – in the Hallstein period. Indeed a recent survey shows that this view is widely shared in the rank and file of Commission officials (Kassim et al. forthcoming). There is little doubt that its authority is more openly challenged as a result of the emergence of powerful rivals for leadership at nearly every level. In the weeks that followed the appointment of Herman Van Rompuy as President of the European Council, for instance, he announced his intention to organise regular meetings of the Heads of State and Government to steer EU policies. Moreover, the rapid succession of crisis decisions to be taken since his appointment have given him ample opportunities to step onto the Commission’s turf. But contestation is part of politics: Hallstein was violently opposed by the French government at the time of the empty chair crisis and Delors became the focus of much criticism when, in his second term in Brussels, he tried to acquire ‘a political and politicized persona’ (Drake 2000: 52). Both Romano Prodi and José Manuel Barroso made a point of avoiding this kind of situation, the latter being quite outspoken about the fact that there is little to be gained from challenging national leaders. Part of the current malaise within the Commission might therefore be due as much to the fact that its successive leaders have proved to be risk-averse, as to any structural transformation that may have taken place in the conducting of EU policies. Moreover, as Laura Cram shows in Chapter 9, even when it can only avail itself of weak instruments such as consultation or dialogue with civil society, a purposeful Commission may use these tools to establish or consolidate support for its initiatives. In other words, political capital does not merely depend on institutional devices but also on the way they are used. It is well

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known, for instance, that the European Council was established to inject a degree of intergovernmental control into the functioning of the European Community. Yet during much of his time in Brussels, Delors was able to use it to have his blueprints endorsed or to rein in reluctant finance ministers. The current impression of weakness often given by the Commission should not be equated with a decline of the Community method, just as too radical an expansion of its authority could be seen as a departure from the principle of fragmentation of power that is at the root of the system. Interestingly, in the above-mentioned survey of Commission officials, a majority of the respondents, despite lamenting the Commission’s loss of influence, declared themselves opposed to the idea that the institution to which they belong should one day become a true ‘government of Europe’ (Kassim et al. forthcoming).

The hybrid nature of EU governance The above remarks clearly show that one must avoid simplistic comparisons between old and new patterns of governance. Several contributions to this volume strongly suggest that mechanisms identified with these two ideal-types may actually coexist. In his study of justice and home affairs, Jörg Monar observed both an increase in the use of target-setting and peer control, as well as in the volume of ‘hard law’ adopted. Philippe Pochet’s analysis of social policy suggests that such an evolution is not accidental; indeed the two kinds of tools may occasionally be used in the same piece of legislation to combine different kinds of pressure on the relevant domestic actors. Rather than viewing the relationship between old and new governance as a tug of war in which one will eventually be called upon to prevail over the other, they should be considered as distinct but not clearly antagonistic approaches to policy-making at the European level, as argued by Laurie Boussaguet, Renaud Dehousse and Sophie Jacquot. The EU, like most systems of contemporary governance, ‘normally functions through a mix of co- existing, partly inconsistent organisational and normative principles, patterns of participation, behavioural logics, standard operating procedures and legitimate resources’ (Olsen 2008: 7). EU governance is too complex to be captured by simple dichotomies. Rather than thinking in terms of alternatives, we should try to analyse how different modes of governance are combined and how the mixture changes over time (Tömmel and Verdun 2009). Thus, whatever the aims of its promoters, it would make little sense to argue that ‘new’ governance will necessarily lead to the demise of the Community method. As a recent strand of critical literature has observed, the effectiveness and long-term viability of many new instruments remains to be demonstrated (Idema and Kelemen 2006). On the basis of the evidence reviewed in this book, the importance of the Community method does

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not appear to be waning. Moreover, the Lisbon Treaty contains elements that should in all likelihood enlarge its scope and consolidate it, such as an extension of qualified majority voting and the shift of a substantial part of justice and home affairs to the first pillar. It is however important to stress that the above considerations say little about the capacity of the Community method to achieve results that respond to citizens’ expectations. Several chapters in this volume suggest that in many respects this method facilitates decision-making and renders implementation more likely. Yet it is no panacea and the alternatives that have been envisaged here and there, may respond to other motivations than to the will to limit the powers of supranational actors. Not all problems can be addressed through legislative instruments, and the growing influence of Europe in areas traditionally regarded as ‘executive powers’, such as police or foreign policy, is likely to require innovation even if one intends to remain faithful to the spirit that has inspired European integration since its inception. Finally, as Giandomenico Majone reminded us in Chapter 2, procedures and policies are two different things; there is no guarantee that more efficient procedures will necessarily lead to optimal policy outcomes. Nor is there automatically a direct link between decision- making processes and community feelings; the latter is probably as much, if not more, linked to symbolic elements or to identity factors as to the policies pursued in any given system. As Hoffmann noted in 1966, ‘[t]o go “beyond the nation-state”, one will have to do more than set up procedures’ (p. 881). That judgment remains valid: if one hopes to establish the legitimacy of the European Union on a stable foundation, references to the spirit of the Founding Fathers will not suffice.

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accountability, 22, 24, 25, 28, 106 acquis communautaire, 30, 53, 56, 62, 121–2, 127 AFSJ, see area of freedom, security and justice (AFSJ) age discrimination, 181–2 agenda control, 23–6 agricultural sector, 192 amendments, tabled by EP, 67–8 America policy, 114–15 Amsterdam Treaty, 34–5, 118, 120, 179, 190 anti-discrimination directives, 179–83 area of freedom, security and justice (AFSJ), 118–25, 127, 128, 130, 131 Austria, 47 Balassa, Bela, 20 Barber protocol, 45 Barroso Commission, 11, 31 benchmarking, 10, 141, 145 Berlin Declaration, 19 Billig, M., 163 Breton, Albert, 16 Broad Economic Policy Guidelines (BEPGs), 135 Buchanan, James, 18 budgetary matters, 64 Carr, Edward, 37 case law, 44–50, 53–8 Cassis-de-Dijon judgement, 54–5 Central Europe, 29, 62, 64 Checkel, Jeffrey, 108, 111, 112 civil dialogue, 157–62, 165 civil servants, 73 civil society, 11, 61, 152, 158–62, 164–5, 188–9, 191–2 Civil Society Contact Group (CSCG), 159–61 clubs, 35–6 co-decision procedures, 66–7, 69, 71, 72, 131 collective choice, 18–19 collegiality, 8

commissioners, appointment of, 8 Commission White Paper (2001), 11 committee governance, 93 Common Agriculture Policy, 22 Common Foreign and Security Policy (CFSP), 10, 12, 91, 94, 96 Common Implementation Strategy (CIS), 138–9 Common Market, 20 communism, 29 Community Charter of the Fundamental Social Rights of Workers, 169 community interests, 8 Community method, 3–4, 194–6 alternatives to, 118, 125–32 crisis facing, 33–7 decline of, 17 effectiveness of, 19–23 efficiency of, 16–19 elements of, 118–19 European Parliament and, 60–75 integration/democracy trade-off and, 23–6 in JHA domain, 119–25 judicial politics and, 43–58 as mode of governance, 187–8 new context for, 28–31 new modes of governance and, 155–60 OMC and, 135–47 principles of, 23, 60 problems facing, 9–13 resilience of, 199–201 transformation of, 201–3 understanding, 4–9 viability of, 16–40 weakening of, 31–3 competition policy, 7, 49 Conciliation Committee, 72, 73 conflict resolution, 76–88 Constitutional Convention, 33 constitutional efficiency, 17 Constitutional Treaty, 63, 64, 71, 160 constraints, 193–4

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contextualised benchmarking, 141, 145 Convention on the Future of the European Union, 65, 71 convergence support measures, 127–8 Cooper, Robert, 97 COREPER, 88, 97, 103–4 Council of Europe, 5 Council of Ministers, 5–6 Council Presidency, 73 counter-terrorism, 134n26 Counter-Terrorism Coordinator (CTC), 129 country-of-origin principle, 31–2 Court of First Instance, 195 Court of Justice, see European Court of Justice (ECJ) criminal law, 123 CSCG, see Civil Society Contact Group (CSCG) currency, 36, 37 Curtin, Deirdre, 30 decision making, 7–8, 17–19, 60 decision-making, 77–80, 82–8 decision-making-cost function, 18 decision-making in the European Union (DEU) study, 80–2 delegation, 189 Delors, Jacques, 11, 26 democracy, 29, 74, 158 participative, 65, 160–2 trade-off between integration and, 23–6 democratic deficit, 9, 71, 152, 158, 161 democratisation reforms, 65 Denmark, 121, 122, 132n5 de Tocqueville, A., 162 Deutsch, K., 164 DG Environment, 157 Diamantopoulou, Anna, 179 differentiation, 34 Directorate-General for Employment, Social Affairs and Equal Opportunities (DG EMPL), 151, 156, 157–68 domestic policies, 22, 146 dropouts, future, 36–7 EAPN, see European Anti-Poverty Network (EAPN) Eastern Enlargement, 22

Eastern Europe, 29, 62, 64 economic benefits, 20 economic growth, 20–2 economic policy, 10 economic theory of clubs, 35–6 Edelman, M., 163 effectiveness, 19–23 efficiency, 16–19, 28, 34, 71, 74 electricity liberalisation, 50–1, 52–3 employment policy, 10, 166, 168, 173–5 EMU, 21, 36–7, 169 enhabitation, 162–4 equal treatment, 173–5 EU Action Plan on Drugs, 126 EU Action Plan to Combat Terrorism, 126, 133n20 EU governance, 4, 23, 136, 137, 158, 186–98, 203–4 EU Migrants Forum, 156 EU Military Committee, 94 EU Military Staff, 94 Euratom, 27 Eurogroup, 10 Eurojust, 118, 129 Eurolaw game, 54 European Anti-Poverty Network (EAPN), 156 European army, 91 European Central Bank, 10 European Coal and Steel Community, 6, 199 European Commission, 3–6, 9, 38 administrative powers of, 49 apolitical character of, 25 dismissal of, 25 governmental nature of, 64 legislative and policy power of, 11–12, 23–6, 131, 155–6 legislative process and, 50–3 member states’ interest in proposals of, 80–2 nomination of, 66 number of proposals by, 194 OMC and, 135–7 role of, 5–7 weakening of, 31–3, 61–2, 202 European Company Statute, 177, 182 European Constitution, 3 European Council, 10, 60, 64, 66, 94, 96–7, 99, 103, 116, 174–5, 201, 202–3

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European Council – continued conflict resolution in, 76–88 decision-making, 77–80, 82–8, 113–4 OMC and, 14, 135–6, 189 president of, 10, 12, 74 representation of member states in, 65 European Court of Justice (ECJ), 3, 5, 38, 44–50, 51, 53–8, 123, 195 European Disability Forum (EDF), 156 European economy, 20–2, 29 European Employment Strategy (EES), 10, 33, 135, 141, 152 European Environment Bureau (EEB), 157 European Federation of National Organisations Working with the Homeless (FEANTSA), 156 European Forum for the Arts and Heritage (EFAH/FEAP), 159 European identity, 29 European integration, 3 dynamics of, 8–9 flexible approach to, 34–5 key aspects of, 93 orthodox approach to, 30 political nature of, 64 problems facing, 9–13, 32–3 public support for, 9 by stealth, 26–8 trade-off between democracy and, 23–6 European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), 129 European NGO Confederation for Relief and Development (CONCORD), 159 European Parliament, 3, 5–6, 8, 174 Community method and, 60–75 increase in power of, 11–12, 60–6 influence on policy-making of, 66–73 OMC and, 137–9 reform of, 74 role in justice and home affairs, 120, 123, 127–8, 131 role in security and defence policy, 103–4 tabling of amendment by, 67–8 European Police College, 129 European Public Health Alliance (EPHA), 159 European Security and Defence Policy (ESDP), 91–4, 105–8, 116

229

European Social Fund (ESF), 168 European Trade Union Confederation (ETUC), 176 European Union (EU), 4, 5 accomplishments of, 19–23 enhabitation of, 162–4 enlargement of, 69–70 legitimacy of, 19 new context for, 28–31 problems facing, 33–7 socioeconomic conditions for, 29–30 European Women’s Lobby (EWL), 156, 159 Europol, 129 external borders, 126 external-cost function, 18 federalism, 8 Fischer, Joschka, 33–4 foreign policy, 10, 12, 91, 94–5, 114–16 France, 50–1, 64, 96 Franco-German reconciliation, 3 French Constitution (1799), 24 Frontex, 118, 129 functional target-setting, 125 gambling, 52 General Affairs and External Relations Council (GAERC), 97 General Affairs Committee (GAC), 97 geopolitical changes, 29, 30 Georgian crisis, 116 German Reich, 37 Germany, 3, 20, 30, 33, 37, 45, 47, 53, 141, 163, 173–4 globalisation, 169 Goetschy, J., 167 governance, 11–14 committee, 93 Community method as mode of, 187–8 EU, 4, 23, 136, 137, 158, 186–98, 203–4 hybrid nature of, 203–4 by implication, 188–9 by integration, 190–1 new modes of, 151–2, 155–60, 166, 186, 188–94 by reputation, 189–90 soft, 166 through delegation, 189

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governance – continued as tool of government, 151–65 traditional modes of, 166, 194–6 ‘governance turn’, 186–98 Greenn1 1 0, 159 Guéhenno, Jean-Marie, 29, 40 Haas, Ernest, 26 Haberler, Gottfried, 20 Hague Programme, 125, 130 Hall, Peter, 168 ‘hard law’, 152, 172, 184, 194–6 health care, 53–4 High Authority of the Coal and Steel Community, 3, 27 Holy Roman Empire, 37 Hooghe, Liesbet, 108, 114 Human Rights and Democracy Network (HRDN), 159 information and consultation directive, 176–8, 182 infringement proceedings, 50 institutional balance, 26 institutionalisation, 128–30 institutional polycentrism, 192–3 institution building, 27 integration bias in favor of, 119, 123 flexible approach to, 34–5 governance by, 190–1 market, 39–40 meaning of, 132n3 negative, 37–40 positive, 38, 40 problems with, 32–3 by stealth, 26–8 trade-off between democracy and, 23–6 traditional, 34 intergovernmental cooperation, 120 inter-institutional dialogue, 68–70, 72–4 Iraq war, 114–15 Ireland, 121, 159, 178 iron curtain, 29 Israel, 116 issue linkage, 85–8 Italy, 36 Jacqué, Jean Paul, 26 Jouyet, Jean-Pierre, 33

judicial politics, 43–58 European Court of Justice and, 44–50 legislative process and, 48–58 justice and home affairs (JHA), 118, 119–25 assessment of, 130–2 communitarisation of, 123–5 hybrid legal status of, 121–5 non-binding target-setting instruments in, 125–7 ‘opt-out’ arrangements, 121–3 special institutional structures in, 128–30 use of convergence support measures in, 127–8 Kennedy, Paul, 21 Kohnstamm, Max, 27 labour costs, 30 labour relations, 58 Lamy, Pascal, 8, 26, 34 law-making, 43–58 legal unity, 30 legislation Council decision-making and, 77–80 EC and, 50–3 judicial politics and, 43–58 number of legislative acts, 195 social, 170–3 legislative bias, 119, 123 legislative power, 23–6 legislative process, involvement of EP in, 66–73 legitimacy, 19–23 Lipset, Martin, 22 Lisbon Strategy, 10, 21, 33, 135, 137, 189–90 Lisbon Treaty, 11, 12, 47, 63–5, 69, 122, 130 logic of appropriateness, 88 Maastricht Treaty, 3, 9, 30–1, 44–5, 63, 64, 120, 158, 169, 189 Majone, Giandomenico, 4, 7, 9, 13, 151–2, 154–5, 204 Major, John, 4 majority voting, 7–8, 17, 18, 61 market integration, 39–40 Mayne, Richard, 27 member states cooperation among, 7, 34–5

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member states – continued interests of, in Commission proposals, 80–2 sovereignty of, 25, 119 voting behaviour of, 76–7, 85 MEPs, 54, 62–3, 67–8, 71–2, 73–5 Merkel, Angela, 19 Meyer, Christoph, 108–10 Microsoft, 39 Middle East, 116 military, 96, 106 Milward, Alan, 27 Ministries of Foreign Affairs (MFAs), 95, 97, 113 Monetary Union, 22 Monnet method, 26–8, 38 mutual learning, 143–5 mutual monitoring, 10 mutual trust, 7 Napoleon, 24 National Action Plans (NAPs), 146 national courts, 49–50 national governments, 9–10, 49 national interests, 8 nationalism, 163 national policies, 32–3, 142 national sovereignty, 25, 119 national unions, 58 negative integration, 37–40 neo-liberalism, 169 networks, 11 new modes of governance, 4, 151–2, 155–60, 166, 186, 188–94 Nice Treaty, 12, 34–5, 61, 95, 159 Nicolaides group, 97–8 non-binding target-setting instruments, 125–7 nongovernmental organisations (NGOs), 144, 156–7, 159–60 non-majoritarian institutions, 25 North Atlantic Treaty Organisation (NATO), 91, 96, 97 open method of coordination (OMC), 10, 14, 33, 135–47, 153, 166, 167, 169–70, 190 Community method and, 135–9 in practice, 139–46 opt-in option, 122 opt-out arrangements, 121–3, 131, 132n5, 158

231

Palestinian Authority, 116 Pareto efficiency, 16, 34 Paris, Treaty of, 6, 29 parliamentarianism, 11, 61–6 participatory democracy, 65, 160–2 peer review, 10 per capita income, 21 ‘pillar structure’, of Maastricht treaty, 9 policy-creation, 93 policy instruments, 10, 27–8 policy-making influence of EP on, 66–73 power, 23–5 Political and Security Committee (PSC), 91–117 America policy, 114–15 consensus seeking by, 110–11 ESDP and, 105–8 leadership of, 113–14 members, 98–105 representation, 100–2 Russia policy, 115–16 scope of governance, 102–5 socialisation theory and, 108–14 socio-political profile, 98–105 sources of, 94–8 treaty on, 95 working practice, 95–8 Political Committee (PoCo), 95 Politico-Military Working Party, 97 port services, 31, 39 Portugal, 36 positive integration, 38, 40 posted workers, 55 Poverty Programme, 156 principle-agent theory, 47 Prodi, Romano, 11, 19 Prodi Commission, 17 productivity growth, 21–2 programme target-setting, 125 proposal linkage, 85–8 public goods, 35, 36 public opinion, on European integration, 9 public policy-making, 11 public/private border, 191–2 Pufendorf, Samuel von, 37 pure public goods, 35

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Index

qualified majority voting (QMV), 17, 18

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Regulationn1 1 408/71, 173–5, 182 regulations, 39 Renan, E., 163 Rogoff, Kenneth, 36–7 Rome, Treaty of, 5–7, 29, 38, 39, 168 Russia, 30 Russia policy, 115–16 Saint Malo Declaration, 94 Santer Commission, 158 Sapir Report, 28 Schengen cooperation, 118, 120, 121 Schuman, Robert, 3, 6, 25 Scitovsky, Tibor, 20 separation of powers, 17 Services Directive, 31–2, 39, 54–6 ‘shadow of hierarchy’, 151, 155 Single European Act, 24, 168 Single European Market, 30, 32, 40 Single Market Programme, 21 Skocpol, T., 162–3 Social Action Programme, 176 Social Agreement, 169 social Europe, 30 Social Inclusion Programme, 33 socialisation theory, 108–14 Social Platform, 156–9 social policy, 137–8, 153–7, 164–85 case studies, 173–82 history of EU, 167–70 hybridity in, 182–4 quantitative analysis of, 170–3 Social Policy Forum, 156–7 social protection/inclusion (SPSI), 137, 141, 143, 146 socioeconomic conditions, 29–30 soft governance, 166 ‘soft law’, 136–7, 138, 152, 166–7, 184, 193–4 Solana, Javier, 97 Soviet Union, 29 Spaak, Paul-Henry, 27 special institutional structures, 128–30, 131 sports policy, 54 stability, 16, 19–23 Stockholm Programme, 125 Stone Sweet, A., 46 supranational institutions, 5, 6, 34

supranational intergovernmentalism, 91–117 SWIFT agreement, 11 Tampere Programme, 125 target-setting, 125–7 terrorism, 126, 134n26 third pillar, 120, 122, 130–2 TItle IV TEC, 121–2 Title VI TEU, 133n6 trade unions, 32, 58, 176 trafficking, 126 transaction costs efficiency, 16, 28 transgovernmentalism, 11 transparency, 71, 73–4, 106 Treaty of Amsterdam, 34–5, 118, 120, 179, 190 Treaty of European Union (TEU), 63, 94, 123 Treaty of Lisbon, 11, 12, 47, 63–5, 69, 122, 130 Treaty of Nice, 12, 34–5, 61, 95, 159 Treaty of Paris, 6, 29 Treaty of Rome, 5, 6–7, 29, 38, 39, 168 TREVI cooperation, 118, 120 Tullock, Gordon, 18 unanimity, 7–8, 17–19, 61, 82–8 unions, 58, 176 United Kingdom, 64, 96, 115, 121, 178, 183–4 United Nations General Assembly, 5 United States, 30, 91, 114–15 unity, loss of, 30–1 US Constitution, 9 US economy, 21 Van Rompuy, Herman, 10 Vassiliou, Androilla, 53 vertical coordination, 143 veto rights, 7, 8 voting behaviour, 7, 76–7, 85, 196

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Wallace, Helen, 11 Water Framework Directive (WFD), 138–9 Weiler, Joseph, 44 White Paper on European Governance (European Commission), 4, 23, 158 World Trade Organisation (WTO), 158

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