European Union Administration: Legitimacy and Efficiency

EUROPEAN UNION ADMINISTRATION: LEGITIMACY AND EFFICIENCY

Nijhoff Law Specials Volume 69

The titles published in this series are listed at the end of this volume.

European Union Administration: Legitimacy and Efficiency By

Peter Nedergaard

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

Cover photograph © 2006 European Community A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper. ISSN 0924-4549 ISBN-13: 978-90-04-15573-2 ISBN-10: 90-04-15573-2 © 2007 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. PRINTED AND BOUND IN THE NETHERLANDS.

Contents List of Tables ............................................................................................................ List of Figures .......................................................................................................... List of Boxes ............................................................................................................. List of Abbreviations ............................................................................................. Preface .......................................................................................................................

ix xi xiii xv xvii

Chapter One. Introduction .................................................................................. 1.1. Problems ..................................................................................................... 1.2. The structure of the book and instructions for reading ................... 1.3. Methodological considerations .............................................................

1 1 2 3

Part I Concepts, Theories, and Context of the EU Administration Chapter Two. The EU’s administration – a political hybrid between a national and an international administration .............................................. 2.1. What characterizes an administration? ............................................... 2.2. What characterizes an international administration? ...................... 2.3. The bureaucrat in the international administration .......................... 2.4. The influence of the international administration ............................ 2.5. The surroundings of the international administration ....................

7 8 11 14 17 26

Chapter Three: Organizational Theories and the EU administration ........ 3.1. Organizational structure of the EU administration ......................... 3.2. Organizational processes of the EU administration ......................... 3.3. Organizational culture of the EU administration ............................. 3.4. Legitimacy of the EU administration .................................................. 3.5. Efficiency of the EU administration .................................................... 3.6. The EU’s administration as a ‘political bureaucracy’ ........................

29 30 33 35 38 39 40

Chapter Four: The EU Administration in Context ....................................... 4.1. The historical context .............................................................................. 4.2. The legal context: the Treaties ............................................................... 4.3. The legal context: the legal acts ............................................................. 4.4. The political context: EU’s institutions ...............................................

43 44 49 52 58

vi

Contents

4.5. The political context: EU’s decision-making procedures ................. 4.6. EU’s Context and the implication for the EU Administration ......

64 68

Part II Administration and Institutions of the European Union Chapter Five: Staffing the EU institutions ........................................................ 5.1. The staff of the EU’s administration: The Eurocrats and the rest ......................................................................................................... 5.2. Recruitment of Eurocrats .............................................................. 5.3. Career service ................................................................................... 5.4. Staff regulations ............................................................................... 5.5. Salaries ...............................................................................................

75 75 79 82 88 89

Chapter Six: The Commission – Organizational Structure, Processes and Culture ................................................................................................................... 6.1. The Commission and the Organizational Structure ......................... 6.1.1. The features of the Commission ............................................... 6.1.2. The President of the Commission ............................................ 6.1.3. The political level: the commissioners ..................................... 6.1.4. Cabinets of commissioners ........................................................ 6.1.5. The bureaucratic structure of the Commission ..................... 6.1.6. Conflicts between different branches of the Commission .................................................................................. 6.1.7. Commission communications .................................................. 6.2. Organizational processes of the Commission .................................... 6.2.1. Functions of the Commission in the decision-making process ............................................................................................ 6.2.2. Executive powers of the Commission ...................................... 6.2.3. Comitology:The EU’s system of committees ........................ 6.2.4. Lobbyism and Eurocrats ............................................................. 6.3. The organizational culture of the Commission .................................. 6.3.1. The nationality of Eurocrats ...................................................... 6.3.2. Commission transparency ..........................................................

116 121 124 131 133 133 136

Chapter Seven: The Council of Ministers – Organizational Structure, Processes and Culture ............................................................................................ 7.1. The Organizational structure of the Council of Ministers ............... 7.1.1. An outline of the evolution of the Council of Ministers ..... 7.1.2. The current structure of the Council of Ministers ................ 7.1.3. The Presidency of the Council of Ministers ........................... 7.1.4. The mode of operation in the Council of Ministers ............. 7.1.5. The position of the Council of Ministers ...............................

139 141 141 142 145 149 151

93 94 94 98 101 106 110 114 115 116

Contents

7.2. The organizational processes of the Council of Ministers ............... 7.2.1. The Council of Ministers as an organ of decisionmaking ............................................................................................ 7.2.2. The Council secretariat ............................................................... 7.2.3. Coreper .......................................................................................... 7.2.4. The working groups of the Council of Ministers . ................. 7.2.5. Organization processes between the levels of the Council of Ministers........................................................................................... 7.2.6. Negotiations and decision-making procedure between the Member States in the Council of Ministers ............................ 7.3. Organizational culture of the Council of Ministers .......................... 7.3.1. The Secretariat of of the Council of Ministers ...................... 7.3.2. Sessions in the Council of Ministers ........................................ 7.3.3. Public access to Council documents ........................................ 7.3.4. Esprit de corps in the Council bureaucracy ............................ 7.3.5. Esprit de corps of the Permanent Representations ..................

vii

153 153 155 156 160 163 166 174 174 175 177 179 180

Chapter Eight: Perspectives – Efficiency and legitimacy of the EU administration ...............................................................................................

183

Bibliography ............................................................................................................ Index ..........................................................................................................................

187 195

List of Tables Table 4.1. Legal acts adopted by the Council of Ministers, 1970–2004 ... Table 5.1. Developments in the number of employees in the EU’s institutions (permanent staff ) ......................................................... Table 5.2. Traditional staff categories in the EU ............................................. Table 5.3. Categories of staff in percentages and absolute numbers in 2004 ....................................................................................................... Table 5.4. Categories of staff before and after the staff reform .................... Table 5.5. Monthly starting and maximum salary for different categories of staff in the Commission ............................................ Table 7.1. Population based voting weights before and after the Treaty of Nice ...................................................................................... Table 7.2. Possibilities for establishing coalitions in EU-25 .........................

55 76 77 77 79 90 169 173

List of Figures Figure 2.1. Autonomy and merit-based employment .................................... Figure 6.1. Internal contradictions in the Commission’s handling of tasks ................................................................................................. Figure 7.1. The decision-making levels in the Council of Ministers ..........

19 97 165

List of Boxes Box 2.1. Formal and societal legitimacy ........................................................... Box 2.2. The ideal types of bureaucrats in national and international administrations ...................................................................................... Box 2.3. Committee of Independent Experts on the quota system of the EU ...................................................................................................... Box 6.1. Commission Presidents ........................................................................ Box 6.2. Branches of the Commission .............................................................. Box 6.3. What is the Community Method? .................................................... Box 6.4. Where do EU proposals originate? ................................................... Box 6.5. Outline of advisory and regulatory committees ............................. Box 6.6. Right of public access to Commission documents ........................ Box 7.1. EU Presidencies, 1973–2020 .............................................................. Box 7.2. Perspectives on the position of the Council of Ministers ............. Box 7.3. Coreper I and II ..................................................................................... Box 7.4. The Luxembourg compromise and its background ........................ Box 7.5. Abstract of the meeting in the European Council from 1:20 AM on 11 December 2000 ......................................................................... Box 7.6. Edinburgh conclusions on openness and transparency in the Council of Ministers .............................................................................

8 16 21 100 112 118 119 128 137 148 152 158 168 170 176

List of Abbreviations ACP countries African, Caribbean, and Pacific states. AD Category of staff, which contains administrators with typically an academic education. AST Category of staff in the EU’s system, which contains assistant staff. Benelux Belgium, the Netherlands and Luxembourg. CAP Common Agricultural Policy. CFSP Common Foreign and Security Policy. Coreper Comité des Representatives Permanente; Committee of the Permanent Representatives. CREST Crest is a committee for scientific and technical research, which is composed of high officials selected by the European Union’s Member States, states applying for membership, and EEAcountries. Comité Speciale Agriculture; Special Committee for Agriculture. CSA DG General Directorates; Directorate General. EAGGF European Agricultural Guidance and Guarantee Fund. EC European Community; now known as the European Union (EU). ECB European Central Bank. ECJ Court of Justice. EcoFin Economic and Financial Affairs Council. ECOSOC The Economic and Social Committee, whose main function is to coordinate the UN’s system of activities on the economic, developmental, and social area. ECSC European Coal and Steel Community. EEA European Economic Area. It allows EFTA countries to participate in the internal market without having to join the EU. EEC European Economic Community. EFTA European Free Trade Association, which consists of Norway, Switzerland, Iceland, and Liechtenstein. EMCO Employment committee, which pre-negotiates questions of relevance to employment in advance of considerations in the Council for Ministers for Social and Employment issues. EMU Economic and Monetary Union

xvi

ESC ESF ERDF FIFG EMU END EPC EU Euratom Europol Eurostat GAERC GNP JET JHA MEP NATO NGO OECD PR SEA SCA SOP TEC TEU QMV UN UNCTAD WEU WTO

List of Abbreviations

Economic and Social Committee. European Social Fund. European Regional Development Fund. Financial Instrument for Fisheries Guidance. Economic and Monetary Union French abbreviation for “experts with national attachment”. European Political Cooperation. Formally did the Maastricht Treaty dissolve EPS. European Union. The European Economic Community (EEC) got the name EU when the Treaty of Maastricht came into force. European Atomic Energy Community. European Police Force. The European Unions statistical department. General Affairs and External Relations Council. Gross national product. Joint European Torus. Justice and Home Affairs. Member of European Parliament. North Atlantic Treaty Organization. Non-governmental Organization; i.e. youth, environment, consumer organizations etc. Organization for Economic Cooperation and Development. The members are the European and Central Asian countries, the US, and Canada. Permanent Representations; Representations of the Member States in Brussels. The Single European Act. Special Committee on Agriculture. Standard Operational Procedure. Treaty on the European Community. Treaty on the European Union. Qualified-majority voting. United Nations. United Nations Conference on Trade and Development. West European Union. World Trade Organisation; WTO is an international organisation, which deals with trade rules between the Member States. WTO is the successor of General Agreement on Tariffs and Trade (GATT). There are 141 members of WTO.

Preface This book addresses a theme which I think is not dealt with in sufficient length in the literature on European integration, namely the European integration process seen through administrative lenses. Of course, a book like this also has to analyse the institutions, policy-making procedures, and the legal context of the European integration process. However, the focus is kept on the implications for the administrative and the administrator’s side of the story. Besides being a book about the administration of Europe, the threads running through the book are the concepts of efficiency and legitimacy. The two concepts are used both to evaluate the functioning of the European administration and to contrast the European administration with the national administrations or civil services of the Member States. At the same, the practical side of the administration of European integration is at the forefront of the book. In preparing the book I have received much help from many people. About the most important are Sebastian Volkers, the European Commission; Anders Buch Kristensen, former the Permanent Representation of Denmark to the European Union; Morten Espelund, the European Commission; J. Ørstrøm Møller, the Danish Ministry of Foreign Affairs; Emil Kirchner, University of Essex; Morten Kelstrup, Institute of Political Science, University of Copenhagen; Helle Thorning-Schmidt, member of the Danish Parliament; Thomas Horn, Kasper Lindskow, Emilie Ekeberg, and Monica Thurmond. Last, but not least, this book would never have seen the light if it was not for my wife, Birgitte Olesen. Orginally, the idea to write this book came from Knud Erik Jørgensen, Institute of Political Science, University of Aarhus, on a night in May 2005 at the European Union Studies Association’s conference in Austin, Texas. Thanks for that! Copenhagen, July 2006

Peter Nedergaard

Chapter One

Introduction 1.1. Problems The purpose of this book is to contribute to a more thorough understanding of the EU administration. The unique way in which the EU administration is organized is a result of the special character of the European Union. In some regards, it looks most like an ordinary international organization while, in others, it resembles a federal state. The fact that the European Union has both intergovernmental and federal characteristics influences the framework for the Union and the workings of the administration. In the EU administration, the national public servants are in a system that encompasses a range of federal characteristics and, at the same time, are superior in some areas to the national administration or civil service. However, simultaneously, the game of power politics in the EU administration in many ways resembles what is usually seen in a national administration. The book is fundamentally written with a wish to provide answers to both how ‘federal relations’ and ‘confederal relations’ affect the organization of the European Union seen from the perspective of the public servant. How and to what extent is the EU organized as ‘federalist’ or ‘confederalist’, and what is the significance for the legitimacy and effectiveness of the administration? These are the questions that are sought answered in this book. In answering these questions, the primary focus is on the decision-making process. What is meant by decision-making process is the process that begins with the preparatory work on a case or an initiative and ends with a final decision being made. The focus is, in other words, primarily on the political-administrative upstream process as opposed to the downstream process in which the decisions are implemented.

2

Chapter One

The implementation, or downstream perspective, that is the other important part of the purpose of the administration is only included to the extent that it contributes to the understanding of the political decision-making process in the institutions and administration of the European Union. The basis for this line of demarcation of the analysis is both a result of practical concerns, such as the number of pages allowed in a book, and the author’s personal interests and preferred theoretical approaches.

1.2. The structure of the book and instructions for reading The book is divided in two main parts. Part I provides general characteristics of the cooperation in the European Union as well as its historical origins, and it presents a range of concepts and theoretical elements which are used in the analysis of the administration of the EU. Chapter 2 in part 1 discusses the position of the EU administration as a hybrid between international organizations such as the UN and national administrations such as the French or the British. A range of concepts is presented which is useful when one wishes to categorize and compare the EU administration with other forms of administrations. In addition, the influence of the surroundings and the Eurocrats (a term used for officials in the European Commission) in the hybrid administration of the EU is discussed. Chapter 3 deals with theories and concepts that are relevant for the analysis of the EU administration in an organizational perspective and an integration perspective. Furthermore, the importance of organizational structures, organizational processes and organizational cultures as well as legitimacy and efficiency is discussed. Chapter 4 briefly touches upon the historical development and context of the EU as it is seen from both a legal and political perspective. In the legal perspective, the focus is on the effect of the treaty basis of the EU and the legal acts used in administrative and political decision-making. In the political perspective, the focus is on the institutional division of power between the EU and the Member State and between the institutions at the EU level. Part II analyses the EU administration in its historical context and hybrid character using the concepts and theoretical elements presented in part I. The question that the analysis ultimately seeks to answer is how the special character of the EU administration influences the legitimacy and efficiency of the EU. Parts II begins with an overall analysis of the working conditions for the Eurocrats (chapter 5). Afterwards, the administration in the Commission (chapter 6) and the Council (chapter 7) is analysed from a structural, procedural and cultural perspective. Finally, some perspectives are drawn in chapter 8.

Introduction

3

1.3. Methodological considerations The aim of the book is to provide an empirically founded and theoretically framed analysis of how decisions are made in the EU from the perspective of the officials. Accordingly, great weight has been attached to gathering information and data from relevant and reliable sources. The area of research is characterized by an almost endless stream of new literature and new documents of greater or smaller significance to the mission of the book. An important task is, in this regard, to discover what leads to real changes and what does not. The book is also based on interviews. The interviews are so-called exemplifying or representative interviews in which the chosen respondents are expected to provide knowledge of entire fields of actors. One might question whether the statements of individuals are expected to provide insights that are representative and allow for generalisations. This question can only be answered by doublechecking the information provided by interviews using alternative sources such as written material. In the cases where double-checking has not been possible, interviews have only been used as sources when they have appeared credible and thoroughly consistent. Last, but not least, a note on terminology about the concept of EU administrations. The concept of the EU administration may be defined in a broader and narrower sense. In the former case, the EU administration may be regarded as all administrations that participate in the decision-making process of the European Union, i.e. national and all supranational administrative units of the EU. The EU’s administration in the narrow sense of the word is the administration in Brussels that is permanently employed by the Commission. In this book, the latter definition (the EU’s administration) is used when it comes to the Commission’s administration. The other administrations at the EU level are the General Secretariat of the Council of Ministers and the relatively small administrations of the European Parliament and the Court of Justice, as well as all aspects of the Member States’ administrations participating in EU’s decision-making process. When I include these institutions of the European Union administration in my analysis, I use the term the EU administration.

Part I

Concepts, Theories, and Context of the EU administration

Chapter Two

The EU’s administration – a political hybrid between a national and an international administration The basic thesis underlying this book is that the administration of the EU is a cross between a national and an international administration. Given this perspective, it is paramount to determine the exact location of the EU’s administration on a scale between a national and an international administration, as it has a significant impact on relations between the national administrations and the EU’s administration. The reason for the mixed character of the EU’s administration is that European cooperation clearly has federalist as well as intergovernmental traits. The mixed traits reflect the basic contrast in the EU between the desire for some degree of supranational governance and the Member States’ perceived need for control. The defining attributes of an administration in general and an international administration in particular will be outlined in sections 2.1 and 2.2 respectively in order to determine the special character of the EU administration. Section 2.3 focuses on the peculiar position of the bureaucrat in an international administration, whereas section 2.4 analyses one of the major problems for international administrations – their lack of autonomous influence on the decision-making process – and available means for increasing their influence. Finally, section 2.5 takes a closer look at the special implications the international administration’s environment has for its functioning.

8

Chapter Two

2.1. What characterizes an administration? The characteristics of European national administrations or civil services are to a large extent attached to the modern nation-state. The nation-state was the model for the organization of society, with nationalist movements rising by the 19th century fostered by the French Revolution. The goal was to bring the organization of statehood into accordance with common cultural heritage regarding language, literature, and (the construction of ) history. It was an additional goal to create a community, a ‘Gemeinschaft’, which could give a more solid basis for industrialisation thereby avoiding an undermining of the modernization project by its own disintegrative effects on society and the traditional social order. Box 2.1. Formal and societal legitimacy In this book I define the key concepts of formal and societal legitimacy as follows: Formal legitimacy means that decisions are made following a procedure that has been predetermined by governments or their representatives. The judiciary has the final say in whether or not decisions are formally legitimate. Societal (or popular) legitimacy implies, in contrast, that decisions are in accordance with the expectations and support of the majority of the population. The basis for determining the extent of societal legitimacy is the general attitude towards the EU’s decisions, although public opinion may be divided.

With the advent of the nation-state, the ideas of the constitutional state as an independent arbiter and popular sovereignty also arose. In other words, the basis of national administration is a hierarchical political community that attains its formal and societal legitimacy through a popular majority that generates decisional authority. This thesis has been put forward most succinctly by German lawyer and administration theorist Max Weber (1864–1920) who regarded the ‘impartial’ bureaucrat who administers state authority in the common interest ‘without anger nor eagerness’1 as a state symbol.2 The functioning of national administrations or bureaucracies has been the subject of extensive theoretical attention and empirical research. Max Weber is the classic theoretician in the field with his view on bureaucracy as an expression of formal rationality. According to Weber, it is through the impersonal application of rules, predictable decisions, and specialized expertise in the bureaucracy that decisions made by democratically elected politicians should be implemented.

1

Weber refers to the Latin sentence ‘sine ira ac studio’. Max Weber’s most important works from the first decades of the 20th century can be found in Weber (1946). 2

The EU’s administration

9

The purpose of establishing a ‘Weberian’ organization is to handle cases and implement political decisions in an effective manner without including ulterior personal motives. Put differently, the objective is to ensure rational and objective decision-making. However, the contention that bureaucratic organizations should function in practice as in Weber’s ideal type has been the target of heavy criticism. Most of the criticism has come from two distinct positions.3 The first target of criticism is the assumption of unselfish bureaucrats, and the second target is that an organization’s focus on hierarchical decision-making overlooks the important part played by networks. Regarding the first criticism, research has proven that in practice it is difficult to apply an organizational perspective that does not include the idea of some kind of bureaucratic self-interest. Organizational students have pointed out that administrations may see a maximization of the size of their budgets as an important independent goal, that they are directed by a seemingly incessant urge to grow, that they are inflexible and rigid, that their internal management may often be chaotic, that it is easy to find examples of carelessness, and that bureaucrats may have taken charge of the decision-making process (Grund 1995, 128). In other words, a main criticism of Weber is that having administrative responsibility in an area is connected to self-interest and prestige. Inversely, Weber would have been able to say in response that his model of bureaucracy is an ideal that reality resembles to a certain extent and one that is still useful for analysing and understanding bureaucratic reality. Downs (1967) and Niskanen (1971) have become some of the classic theoretical criticisms of Weber. They put forth an alternative model of bureaucracy that includes an explanation of the bureaucratic tendency to extend beyond what would be optimal from a socio-economic viewpoint.4 The main assumption is that politicians and political leadership only have a very limited insight in internal workings of bureaucracy, therefore they are capable of making only very weak and vague demands on the optimal size of the bureaucracy and whether it could be made more efficient. According to Niskanen, the bureaucracy will choose the level of activity within this framework that is most compatible with the fact that the bureaucrat is “a chooser and a maximiser” who chooses between the possible actions determined by his or her preferences. These preferences may be connected to income, prestige, career prospects, and influence. As these variables are assumed to be positively

3 Namely as part of the rational choice paradigm and network theories, respectively, cf. subsequent parts of the chapter. 4 Downs’ and Niskanen’s theories are usually considered to be an application of the rational choice paradigm to theories of administration. Rational choice focuses on the sources of power of interest groups, the influence of different groups on political decisionmaking and the behaviour of bureaucrats.

10

Chapter Two

correlated to the size of the administrative units, they lead to larger than optimal bureaucracies from a socio-economic perspective. A bureaucrat who intends to make public administration more efficient and reduce budgets is not awarded with economic or career incentives. Instead, he or she will feel the wrath of his or her colleagues and damage his or her own career. Niskanen does not see ulterior personal motives of the bureaucrat as determining his or her behaviour. The determining factors are instead internal and external conditions that lead to budget maximization as the ultimate goal. From this perspective, it is a basic characteristic of the organization of the public sector that the behaviour of the individual bureaucrat leads to a constantly growing public sector, ever-larger public budgets, increasing public regulation, and a larger public bureaucracy. The only possible obstacle to this development from a rational choice perspective is overall political decision-making that provokes a political prioritization of public funds. The Niskanen model of bureaucracy has been disputed ever since it was put forth. There is no conclusive evidence in favour of it (see Blais and Dion 1991). A point from critics is that it is questionable that bureaucrats should be capable of maximising their own budgets to the suggested extent. Some studies have shown that political decision makers are actually playing a larger and more important role than Niskanen assumes. Others have contended that a bureaucracy whose concern is too heavily placed on budget maximization actually undermines the trust that is a prerequisite for this concern. Career prospects as well as later tasks are dependent on a bureaucrat’s past performance and reputation. It is also significant that there will always be a certain level of competition between different parts of the public sector as to who can ‘deliver the goods’ in the fastest and most efficient manner. Nonetheless, the works of Niskanen and other rational choice adherents mean that bureaucrats are no longer regarded as unselfish, neutral, Weberian case-handlers and implementers of political decisions. In addition to the criticism by Niskanen, Weber’s model of bureaucracy has also been criticized for exclusively regarding decision-making in hierarchical terms, even though networks also play an important part.5 Critics have contended that networks in bureaucracies are necessary in order to ensure efficiency in decision-making because their absence would lead to an overload of the decision-making hierarchy if everything had to be approved at the top. This especially applies to cases when parts of the public sector are privatized and officials are forced to cooperate with other types of organizations that are not hierarchical to the same extent. Peterson (2004a) defines policy-networks as “clusters of different kinds of actors who are linked together.” He mentions three specific traits of the EU

5 Niskanen’s criticism is focussed on the Weberian conception of the inherent properties of the bureaucrat, whereas network criticisms focus on the assumption of the hierarchical structure surrounding the bureaucrat.

The EU’s administration

11

that makes it a well-suited object for policy-network analysis. First, the EU is an extraordinarily differentiated, quasi-federal political cooperation that does not have clear-cut hierarchies. Second, decision-making in the EU is characterized by technical experts who often seek to de-politicise the process of political decisionmaking. Third, political decision-making in the EU is also affected by a complex maze of committees that generate their own political agendas (see section 6.2.3. pages 124–131). The Rhodes model is the most commonly used model for analysing policynetworks (Rhodes 2003). According to the Rhodes model, three key variables determine which type of network that exists in a specific sector: 1) Stability in a network’s membership: Is it the same actors who participate year after year? 2) Relative insulation of the network from its surroundings: Is it possible to keep outsiders out in the cold? 3) Mutual resource dependency in the network: To what extent are participants dependent on others’ money, expertise or legitimacy ? In the end, it is the internal structure of the network that serves as the independent variable when developments in EU policies are explained using the policynetwork model. Policy-network analyses are often applied in conjunction with other theories or approaches in order to explain EU phenomena. The backdrop is that network analysis is often criticized for not being a model or theory in its own right but merely a metaphor; it exaggerates stability in Brussels-based networks, and it lacks a concept of power and sensitivity to political asymmetries in relations between network participants (Peterson 2004).

2.2. What characterizes an international administration? The ideal system for an international administration is in principle radically different from the idea behind a national administration. This difference is because there is no commonly accepted supreme authority in the international system as there is in the nation-state in crucial aspects of social life. According to theories in the neo-realist paradigm in international relations theory, the international system is essentially characterized by anarchy. There is no generally recognized authority or legal order to which individual nation-states voluntarily surrender their sovereignty. As a consequence, an international administration has no means to enforce its decisions, and a simple or qualified majority of states cannot usually make decisions. Inversely, a defining trait of international organization and administration is decision-making by consensus (Berdal and Caplan 2004). The ideal international administration attains its legitimacy from the governments of Member States and not citizens. The legitimacy basis for decisions in the international administration is therefore shaky, and it is often difficult

12

Chapter Two

to generate legitimacy that has neither originated from nor been mediated by Member States. Precisely because the basis of legitimacy is more detached, an international administration is dependent on external and shifting circumstances to a larger extent than a national administration. An international administration is not as self-sustained as a national administration.6 The more detached basis of legitimacy also forces the international administration to depend on national administrations in relation to the preparation, administrative execution, and implementation of political decisions. The international administration’s function as a bridge-builder between states and their administrations is therefore one of its most important aspects. The implementation of decisions made by the international organization and its administration is more often than not left to the national administrations. There is, thereby, a decisive difference in the way a national and an international administration perceives its clients and environment. The national administration functions as a controller of citizens in every nation-state, its organization is characterized by a large degree of stability, and an effort is put in ensuring predictability in the solving of tasks in order to ensure due process. The national administration does not have to have its legitimacy constantly re-affirmed by citizens, as it is legitimate on the sole basis that it forms part of the national hierarchical political system. Consequently, national administrations can afford to be relatively closed to external influences and demands from an organizational perspective. External communications will often be unidirectional and have an authoritative character. Anyway, it does not lead to legitimacy problems if communications are of this character. It is, therefore, feasible to compare a national administration or civil service with a machine (Morgan 1986) in which an input from the environment (i.e. a desire for handling a particular case) in principle leads to a certain and predictable standard output with the routine of a machine (i.e. in the shape of a reasoned decision in writing). In that connection, mechanical organizations are characterized by specialized tasks that may be completed without paying attention to the overall picture and are coordinated by the immediate superiors. Ideally, it is possible to define the tasks of an employee precisely in a mechanical organization, with his or her responsibility tied to a certain task. The mechanical view of an organization resembles, to a large extent, Weber’s ideal national administration that is marked by division of labour, specialization, a hierarchical structure, general rules and a system of career advancement that discontinues the non-objective and outmoded structures of favouritism, corruption, and arbitrariness.7 6

The most famous question ever to be raised in regards to the legitimacy of the EU’s administration was posed by the French president Charles de Gaulle at a press conference on the 9. September 1965: “Quelque aéropage technocratique apatride et irresponsible.” (“What an airy technocracy with no patriotism or responsibility”. [The author’s own translation]). 7 To classify Weber’s ideal model of bureaucracy as a mechanical conception of organiza-

The EU’s administration

13

The international administration works in a very different environment, and its relations to its surroundings is therefore different. An international administration will often experience far more changeable working conditions than a national administration. This means that the organizational structure has to be easily adaptable, for example towards new problems caused by changing political conditions. Furthermore, attempts to allow for the instability in the international system and the ensuing uncertainty are some of the most important tasks of the international administration. Due to the international administration’s lack of inherent authority, it is very important to be responsive to demands from clients (i.e. states).8 In other words, it is in the self-interest of the international administration to construct an extraordinarily open and responsive organizational system. That is, the organizational case-handling and administration are fitted to let external actors articulate their demands and support. However, it is far more difficult to predict the results hereof than in the national administration. If the national administration resembles a machine, the international administration may be likened to a biological organism that is greatly dependent upon its expanded ability to adapt to the surrounding environment (i.e. Morgan 1986). International organizations have to adapt to this changing external environment in order to function optimally. In an organic organization, the goal is to solve comprehensive problems that transcend countries, interests, and diff erent fields of expertise.9 Management and communication are to a larger extent carried out in a network structure, which the management may try to compensate for by stricter steering and control. In addition, there is more horizontal than vertical communication in international administrations, which takes the shape of information rather than orders. General loyalty towards the organization is worth more than loyalty towards the bureaucrat’s particular sub-division, and there is considerable prestige in having external contacts. However, some efforts are made to give international administrations more of the same characteristics as the national administration. In an advanced non-national administration as the EU’s, these efforts have partly succeeded. Simultaneously, the parts of national administrations that are in close and constant contact with the institutions of the EU and their administrations also exhibit some of the same organic traits.

tions opposed to an organic one, is to some extent a severe modification of the concept of ideal type, as the mechanical/organic distinction is based in ‘the real world’, cf. Coombes (1970, 113). 8 Cf. Wessels (1985, 19): “The outside political influences have, thus, made the Community bureaucracy a ‘captive of its environment’.” 9 Burns and Stalker (1961) made the original distinction between ‘mechanical’ and ‘organic’ systems of administration.

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A general tendency is the gradual disintegration of the very mechanical administrations of times past, as network structures are gradually spreading in their domain (section 2.1). In a sense, the organizational forms of national and international administrations are converging in a globalising world, although they do retain some basic differences when it comes to, for instance, societal legitimacy.

2.3. The bureaucrat in the international administration Differences between a national and an international administration are traditionally reflected in the difference between the position of the bureaucrat in the international and national administration.10 In a national civil service, bureaucrats are typically making up a professionally, as well as culturally, homogenous group subjected to a hierarchical structure. In principle, the bureaucrats of the international administration are working under fundamentally different conditions. They are typically specialists in their own field and, as a consequence, have some degree of autonomy. The international administration will most often be marked by diversity in cultural and linguistic backgrounds as a consequence of the desire for geographical balance in the recruitment of bureaucrats from all Member States. Usually it happens in the shape of rather formally defined quotas for how many bureaucrats each Member State should have at the different levels in the organization. Another significant difference in relation to national administrations is the conflicts of loyalty that bureaucrats experience due to the gap between the international organization’s requirement of impartial behaviour and the often-implicit demands for special treatment from the home country of the bureaucrat. This final aspect is strengthened by the fact that the international bureaucrat often owes his or her international position to the national administration of his or her home country, and that the person in question may have to continue his or her career in the national administration when the international career ends.11 On the other hand, international organizations try to acquire a large degree of loyalty by paying handsome wages, good pensions, independent career options

10 An international administration may be distinguished by its recruitment and employment procedures in the following way: “In order to qualify as an ICS (International Civil Service, author’s abbreviation), individual civil servants must be recruited from various member-countries, but they must also be employed by and paid by the IO (International Organization, author’s abbreviation).” (Mouritzen 1991, 9). However, this definition has to be modified when it comes to the EU, as some national experts are placed in the Commission in which they do the same job as proper EU-employees even though their country of origin pays their wage. 11 This applies far less to the administration of the EU than other forms of international administration.

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15

(a good career service) and by creating a particular ‘esprit de corps’.12 The intention is to increase the efficiency of the international organization and administration in relation to solving the problems in its scope. Due to the fact that an international organization is characterized by the absence of a single central authority because of the aforementioned lack of a hierarchical political system, the participating states will often try to establish a sort of ‘artificial leadership’ by formally or informally assigning the leading bureaucrat with a special mandate that might be similar to the mandate of a national minister. On the other hand, the foundation of this mandate is usually much more uncertain and, hence, the exercise of this mandate is dependent on a broad-based acceptance from the governments of the Member States, in addition to the personal qualities of the bureaucrat. It is often claimed that a contributing factor to the acceleration of the process of integration in the EU in 1985 was the joining of Jacques Delors as head of the European Commission (Peterson 2004b). Conversely, strong national criticisms of Delors could have rapidly led to him being forced to take on a more passive role. Overall, most international organizations will be evaluated on whether or not they have an active leadership at the top. This point is why the appointment of the head of the organization is often given serious consideration. It is also the case when expecting the head of the organization to accomplish the goals of the organization both effectively as well as ineffectively depending on the degree of convergence between national interest and the organization’s goals. For the bureaucrat too there is an important difference between being employed in a national and an international administration. Bureaucrats in an international administration will more likely be directly involved in political negotiations, as a mediator between Member States. Greater political involvement means that the demand for political impartiality of the bureaucrats in principle should be greater in the international than the national administration. On the other hand, international bureaucrats are expected to play the political role effectively, so the head of the international administration is often recruited from a political office in a Member State. It should be noted that there is a tendency in the national administrations to move away from the ‘Weberian’ emphasis on impartiality, and appreciate ‘political understanding’ and the role of the bureaucrat as political sparring partner, taking that the classic ‘Weberian’ clear dividing line between politics and administration has always been an illusion. Another difference between national and international bureaucrats is the latter’s lack of a common cultural, linguistic, religious or socio-political identity. Among the international administration personnel, professional and other more universal values become significant as the common ground of value among the 12 ‘Esprit de corps’ can be defined as person’s mental programming in relation to issues that are relevant for their functioning in the organization, in which they are employed.

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bureaucrats, with the objective of reaching the goals of the administration.13 However, these common values have shown to have limited the effects on the behaviour of bureaucrats.14 In the EU, there has been an attempt to establish traditional and shared European values and symbols, to prevent the lack of a common identity in international administrations.15 Box 2.2. condenses the ideal types of a bureaucrat in both a national and an international administration. The ideal types could have been derived from realist or neo-realist paradigms in international politics. The ideal type of bureaucrat in a national administration is a consequence of the assumption of a hierarchical political community. Conversely, the ideal type of bureaucrat in an international administration is a consequence of the assumption of the lack of top-level political authority on the international scene.16 Box 2.2. The ideal types of bureaucrats in national and international administrations National administration

International administration

1) Bureaucrats are employed on the basis of criterions of qualification.

1) Bureaucrats are employed based on citizenship in a quota system.

2) Bureaucrats are loyal to the employing organization.

2) Bureaucrats are loyal to their home country.

3) Bureaucrats are non-political. They operate with a clear-cut dividing line between politics and administration.

3) Bureaucrats are “political”. They often participate in negotiations between the Member States.

4) Bureaucrats are employed for life, which gives them independence.

4) Bureaucrats are employed for a fixed term of years.

Source: Authors own representation.

13 All international organizations have fundamental official goals to presume, set down in treaties, declarations, charters, etc. 14 On the other hand, it is probably no coincidence that the international administrations where most employees have the same educational background are often accentuated as well functioning and in effect highly influential. The World Bank and OECD (the Organization for Economic Cooperation and Development), for example, are dominated by economists, and medical physicians dominate the WHO. 15 The symbols are well known: A shared flag, a shared hymn, a shared national day (9 May) and a single currency. The common values are often summed up in the term ‘the European Model’: a market economy with a well-developed social safety net and an emphasis on social equality. In the Constitutional Treaty, the ‘social market economy’ was stated as the model society the EU should pursue. The EU is not a religious community, even though it is not hard to find Christian values in the symbols and conduct of the EU. For a long period in the life of the EU, the French culture and tradition of administration – shown in communication through the use of the French language in the administration – was part of the fundamental values of the EU’s administration, but the French impact has decreased significantly in the latest 10 to 15 years due to the expansion of the EU with new Member States often preferring English to French as the most applied common language in the administration. 16 The differences between the international and the national bureaucrat were established

The EU’s administration

17

As mentioned above in Section 2.1., some of the more recent literature on administration concerning the behaviour of bureaucrats aim at demonstrating that the ‘Weberian’ bureaucrat is not coherent with the actual bureaucrat of real life. More generally, it is demonstrated that the political control presumed by the ‘Weberian’ model of bureaucracy is only partly achievable. On the other hand, the ideal type of the national bureaucrat is still important as a point of reference. It is also as a point of reference that the ideal type bureaucrat in the international administration is applied in the following, meaning that the ideal type of international bureaucrat is the reverse of the ideal type of national bureaucrat. As shown in box 2.2 page 16, the ideal type of bureaucrat in an international administration is the inversed mirror image of the ideal type of bureaucrat in a national administration. However, since the creation of the EU, pro-integrationist political forces have attempted to make the ‘Eurocrat’ similar to the national bureaucrat, and this attempt has, to some extent, been successful (Kassim 2004). Thus, the essential difference between the two ideal types is – generally, at least – that the national bureaucrat has been and is an aim for the real life bureaucrat, while international organizations try to steer clear of the ideal type of international bureaucrat.

2.4. The influence of the international administration17 There are several reasons for an inclination from different camps to increase the influence of the international administration. An important reason could be the desire for a better and more efficient cooperation inside the field of the international organization in question. To succeed, the establishment of international administrations with greater authority and the possibility to function as active resolvers of conflict is a possible solution. An influential international administration is able to submit its own ideas for advancing international cooperation, more likely to succeed in forcing the implementation of already-made decisions, can be an active mediator between Member States, and is able to influence development through a large budget. A large degree of autonomy is a prerequisite for a potentially influential international organization. Autonomy can be defined as an administration’s ability to independently implement the decisions of the managers. On the contrary, a lack

already in the early neo-functional theory of integration: “International bureaucracies, typically, are a far cry from the nicely adjusted, self-contained, and hierarchically ordered models of organization theorists.” (Haas 1964, 98). 17 In the following, the term ‘influence’ is applied in its behavioural definition as described by Mouritzen (1990a, 14): “the modification of one actor’s behaviour by that of another”. This exercise of influence can be both direct and indirect through the possession of a certain ‘capacity of influence.’

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of autonomy is a problem for an international administration that aspires to be more influential. This problem is sometimes referred to as ‘the problem of internationalism’ in international administrations. The root of the problem is that international administrations are subject to heavy pressure from national governments and administrations that are able to obstruct the fundamental goals of the international administration. In the case of a low degree of autonomy in an international administration, the management has a significant control problem in relation to each employee and in respect to the offices and sections, resulting in an inadequate effort to fulfil the goals of the organization. The difficulty in controlling behaviour in order to ascertain that it is aimed at the objectives of the organization is a general and omnipresent management problem. In an international administration, however, the problem is structurally reinforced because of pressure from the surroundings, i.e. powerful Member States and their administrations. The Member States have numerous possibilities for influencing the international administration, which is not connected to a central authority in the form of a state (Kassim and Menon 2004). The result of a low degree of autonomy can be in-house conflicts, exclusion from information flows, mutual suspiciousness, and the forming of arenas for national conflicts in the international administration, which in itself will lead to an even lower degree of autonomy and hence worsen management problems. Several indicators can be developed to measure the degree of autonomy and, in effect, the influence and possibility of the international administration to take on the role as counterweight to nation states and their administrations (Mouritzen 1990a). One indicator of the role as counter-weight is the hiring process in the international administration (see page 22). There are two fundamentally different processes of hiring. First, there is employment based on merit, meaning employment based on diplomas, relevant experience, and other qualifications not based on citizenship. Secondly, there is employment based on quotas, where each Member State is guaranteed that some quotas on their citizens are employed in the administration. In practice, all international administrations use a modified form of quota-based hiring process with quotas shared by Member States. Still, there are differences in all international administrations between the weighting of merits and qualifications in opposition to the weighting of the national background of the employees. It is a foregone conclusion in most literature on this subject that the less meritbased employment, the lesser degree of autonomy and independent influence in the international administration. This scenario is due to Member States having more say in who is hired. This greater influence is problematic since it increases the international bureaucrat’s perception of owing his employment to the home country’s government and administration. The interdependence between autonomy and merit-based employment is illustrated in figure 2.1. page 19 and demonstrates how merit-based employment is presumed to be the independent variable for the degree of autonomy in the international administration.

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19

The result is primarily a conflict of loyalty. Secondly, the quota system of hiring often promotes the creation of informal groups based on the home country within the administration; groups who gain independent influence in the recruiting of new employees and become capable of diverting interest from solving those problems the international administration was originally meant to solve. Thirdly, it can be challenging to pursue a staff policy in an organization with a quota system since rewards and career-development is partly outside the control of the administration. Fourthly, a quota-based multilingual administration will inevitably experience some problems of communication in the daily work, while a merit-based hiring process could more easily integrate linguistic skills as a demand to new employees. Fifthly, in the quota system national frictions will often arise in connection with appointing and promoting employees because some Member States will feel they have been put at a disadvantage (Kassim and Menon 2004, 98). Figure 2.1. Autonomy and merit-based employment High Degree of autonomy

Merit-employment

Low degree of autonomy

Quota-employment

Source: Author’s own representation.

On the other hand, some degree of informal quotas is needed to ensure sufficient legitimacy for the international administration. This legitimacy, after all, means that Member States feel that their interests in the recruiting process are taken into reasonable account. It can turn out to be of importance that all Member States are represented in most parts of the international administration, since bureaucrats become access points for their fellow citizens who want to get in contact with the organization (Michelmann 1978a, Kassim and Menon 2004). In many matters that cannot be based on routine, the bureaucrats of the national administrations will seek to get in contact with a bureaucrat in the international administration who is of the same nationality since communication is less difficult and, perhaps, because one is familiar with the person in some way (this is predominantly the case for many smaller states). Hence, some (at least moderate) form of quota system is probably inevitable in international administrations if they are to be perceived as socially legitimate. In this respect, it can be argued that the norm in the literature of the desirability of merit-based employment is not realistic since it would seriously obstruct the functions of the international administration. The reason for this, then, would not be the direct pressure from the Member States, but their inadequate

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implementation of the decisions reached by the international administration.18 Even in the Spierenburg report from 1979 that otherwise emphasizes the creation of a genuine European Civil Service, the informal quotas (referred to as geographical equilibrium) are accepted based on criterions of efficiency : The Commission seeks to maintain a geographical balance among its staff. This is desirable not so much to ensure an equilibrium at a given moment by earmarking posts by nationality, but to benefit in a positive, dynamic way from the varied experience which officials of different nationalities can bring and to achieve a balance over time. This is the only way in which the Commission will maintain a uniform high quality of staff, if its role is to be effectively performed, (The Spierenburg Report 1979, § 64).

In the second report from the Committee of Independent Experts,19 formed in early 1999 to analyse ‘fraud, mismanagement and nepotism’ in the European Commission, it is proposed, however, that what they call national equilibrium is now ready to be toned down, as noted in box 2.4 page 21.20

18 As Coombes (1970, 161) observed, “Most of those interested in personnel administration at the Commission accepted that certain departures from the classical standards of a career civil service were not only inevitable, but desirable.” 19 The Committee of Independent Experts consisted of André Middelhoek (chairman), Inga-Britt Ahlenius, Juan Antonio Carrillo Salcedo, Pierre Lelong, and Walter van Greven. The committee was formed as a consequence of the decision reached by the European Parliament on the 14 January 1999 to improve “the financial management of the European Commission.” The resolution “Calls for a committee of independent experts to be convened under the auspices of the Parliament and the Commission with a mandate to examine the way in which the Commission detects and deals with fraud, mismanagement and nepotism. . . .” The Committee presented their first report 15 March 1999 and a second and extended report 10 September 1999. 20 The European Parliament has expressed itself even clearer in the ‘Herman Report’ from 1999:

The essential need, in this context, is for narrow national and partisan political considerations to play less of a role than at present in the Commission of the future, not least in the appointments process at all levels. Up to a certain point the presence of these factors is, of course, inevitable. It is important that the full range of national perspectives and cultures are represented within the Commission, and that Commissioners and their officials are aware of how European policies take into account national and regional differences at both the formulation and implementation stage. Moreover, Member States of the Commission are not just senior civil servants, but are also expected to have a certain political role and, where possible, to have political experience and weight within their countries of origin. The current balance, however, appears to be wrong. In particular, the need to find ‘a geographical balance’ between the nationalities of the senior office holders in the Commission appears to be compromising the independence of the European civil service, and ability and relevant expe-

The EU’s administration

21

Box 2.4. Committee of Independent Experts on the quota system of the EU In this context we should recall that serious difficulties in the European civil service system stem from the constraints imposed by compliance with what are called ‘national balances’. It is indisputable that a European civil service drawn from the widest possible geographical basis is required to run the decision-making process of the European Union. It is only through the employment of a staff of different nationalities working together and over a lengthy period of time that the problems of cultural, linguistic and national identity in general may be minimised. Furthermore, the growing and imperative need for the availability of a sufficient number of officials and other servants with a knowledge of various languages and an understanding of the political and social structure of several countries must be weighted against the consideration that the European institutions are not organizations where quotas involving nationality, culture or language are primordial, since all officials and other servants are, in principle, Europeans. (. . .) Indeed, despite almost 50 years of integration and practise of working together in multinational structures, the national balances requirements, far from decreasing, have become stronger. Over time, demonstrations of their influence have become even more glaring and frequently lie at the root of nepotism and misadministration, (Committee of Independent Experts, second report, §6.2.18, 6,2,19, 6.2.20, 6.2.22, 1999).

The reports from the Committee of Independent Experts were subsequently endorsed by initiatives from the European Commission, who have tried to take the raised questions into account. Among other things, the Commissioner rience should play a greater role in the appointments process. Moreover, this problem, if left untouched, is likely to become even more acute in the future with a large-scale enlargement of the European Union, and the necessary appointment of a number of senior officials from the new Member States will have to be reconciled with the need not to lose good existing officials and to ensure sufficient continuity of Commission action. (European Parliament, Report of 26 March 1999 from the Committee on Institutional Affairs on improvements in the functioning on the Institutions without modifications of the Treaties, section B, 25). The European Court of Justice has too been critical towards the quota system. As early as in the “Lasalle Verdict” from 1963, the ECJ found that: The interests of the service and regard for the eligibility of officials for the career bracket in question would be compromised if the administration, in order to secure a geographical balance, could reserve a post for a specific nationality without such actions being justified on grounds connected with the proper functioning of the service. However, it is not incompatible with these requirements that . . . where the qualifications of the various candidates are approximately equal, the administration should allow nationality to play a decisive role when it is necessary to maintain or to re-establish a geographical balance among its staff. (The European Court of Justice, Judgment of 04/03/1963, Lasalle/Parliament, Rec. 1964, 57).

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formerly in charge of staff policy in the European Commission, Neil Kinnock, has carried out proposals on reforming the hiring and promoting processes in the European Commission based upon the White Paper on ‘Reforming the Commission’ from 2000 (Commission 2000). One of the objectives of the reform-proposals has been to make promotions more merit-based than they are today (Kassim 2004, 51–54). Still, inside the quota system there is a wide range of options for how the hiring process is carried out. At one end of the scale, there may be a very broadly based informal quota that is independently filled out by the staffing division of the international administration. At the other end, the national government and administration decide by who the quota is to consist. Additionally, different levels of the international administration can have different practices for filling the quotas. Furthermore, quotas are often at work in promotions. A second indicator of the degree of independent influence and the autonomy of the international administration is career servicing of employees. In traditional understanding, a maximum of autonomy means the opportunity of a life-long career in the international administration.21 Job security, high salaries and good retirement benefits for the bureaucrats in an international administration is presumed to lead to a higher degree of autonomy since it involves a positive sanction towards the individual employee by way of resisting any potential pressure from the Member States. At the same time, organizational memory is increased at long-lasting employments, which is important in forming a counter-weight to the competences of the national administration. In accordance with the above, the Committee of Independent Experts argued in their report that the privileges and the immunities that are offered to the EUemployed are not offered to them for their own benefit, but for the benefit of the EU: The ‘privileges and immunities’ enjoyed by officials are intended to safeguard the independence of the European civil service. They, therefore, do not constitute ‘rights’ held directly by officials, given that they are accorded exclusively in the interest of the Communities and are designed solely to prevent the operation and independence of the Communities from being hindered in any way. (Committee of Independent Experts, second report, §6.6.5. 1999).

However, as on the national level, the assessment of the life-long ‘Weberian’ career has become less positive in the last decades in the international admini-

21

In 1962 in the EC, a staff regulation was implemented that reformed the administration from a system of short-term employment contracts to a career-system (Scheinman and Feld 1972, 131). The staff regulation significantly adhered to the French ‘Statut des fonctionnaires’ in regards to the rules concerning disciplinary measures and the assigning of offices (Coombes 1970, 135).

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23

stration. The reason for this assessment is that the rapidly changing international arena requires qualifications that are not consistent with employment in the same organization for 30 to 40 years. In the case of the EU it has also been argued that, through shorter employments in the EU administration, a form of socialization can be achieved in order to disseminate ‘the European idea’ and improve the relationship between the national and the EU administration22 (Scheinman and Feld 1972). A third indicator of the autonomy of the international administration is the national merits of a career in an international administration. On one hand, moderate national merits of the career and low interest in the work of the international bureaucrat mean that the national attempts to influence the international administration are minor and insignificant. On the other hand, there is a risk of getting less qualified bureaucrats in the international administrations. Inversely, high national merits of employment in an international administration have the effect that national attempts at influence are increased and hence the autonomy of the international administration is probably decreased. This is mainly due to the connection between high national merits and the importance ascribed to the particular international administration by Member States. The national merits of a career in an international administration is, among other things, dependent on whether the national administration is characterized by a tradition of generalization or specialization, since a tradition of specialization, as is often seen in smaller states, entails that employment in an international administration is often given less merits than in larger states where the special qualifications and experiences gained from the international administration can be fully employed. A fourth indicator of the degree of autonomy and independent influence in the international administration is connected to management. The traditional perception is that management should be hierarchical, as it is at the national level. The presumption is that only a hierarchical management can constitute a strong safeguard against the pressure and influence of the Member States. In effect, a unitary management is perceived as more effective in securing the counter-balance

22 The possible effect of socialization through the short-term employment of bureaucrats in international administrations has never been thoroughly examined because of, among other factors, the difficulties in defining and resolving the problem. It could be argued that national bureaucrats become more ‘national’ as a result of employment in an international administration where the customs and traditions of the home country are often held in higher regard than they otherwise would be. As far as dissimination of ‘the European idea’ is concerned, France deliberately makes use of short-time employments in the EU administration as a part of the career of the national bureaucrat (the roulement-system). This tradition was introduced by President Charles de Gaulle, with the objective of enhancing the national administration vis-à-vis the European Commission, as the national bureaucrats through their short-term employments get familiar with the rules of the game from the inside.

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and autonomy of the international administration than for instance corporate management. This is also why the gradual, formal and informal, strengthening of the position of the head of the European Commission in the last 20 years (who according to the Treaties of the EU make decisions in commonality) has been considered as a strengthening of European integration in general. When Romano Prodi became President of the Commission in 1999, he was able to seize on a new Treaty article, inserted via the Treaty of Amsterdam (Article 219),23 which probably gave him more actual influence in both the composition of his College of Commissioners than any previous President (Peterson 2004b, 21). In the Treaty establishing a Constitution, the position of the head of Commission is strengthened further and therefore also strengthens the hierarchical structure of the European Commission at the political level. In the later years, the administrative management has also been the subject of increasing attention from the European Commission starting with Jacques Santers arrival at the Commission in 1995 (Cini 2004, 66). In a document from 1999, it was argued that all management levels should be entrusted with managerial assignments to a greater extent than was the case at the time (Commission 1999, appendix 3). In relation to this development, a solution of rotation among the Director-Generals of the European Commission has been introduced to secure a generally stronger management in the administrative level of the European Commission (Peterson 2004b, 26). In addition, the Committee of Independent Experts has argued for strengthened management at all levels of the European Commission if the efficiency and legitimacy of the administration are to be increased. This recommendation was adopted by the Commission in its White Paper from 2000 and was subsequently introduced as the so-called Activity-Based Management system (Kassim 2004, 45). At the same time, it can be argued that a powerful management does not do much good in increasing the autonomy of the international administration unless it is accompanied by good career-servicing (see Commission 2000). It is commonly conceived by non-governmental organizations (NGOs) that the international hierarchy of administration is unnecessary or directly harmful in promoting international cooperation. This opinion is drawn on the idea that the hierarchy of international administrations increases the gap between the management of the international administration and the interests and groupings that it was supposed to help. It is a common critique from Member States at the annual discussions of the size of the budget that more funds should be used at projects ‘in the field’ and less at the ‘bureaucracy’ of the headquarters. Meanwhile, the discussion on how much of the budget to be used on administrations and how

23 According to Article 219, the College of Commissioners works “under the political direction of the President.”

The EU’s administration

25

much on political tasks of the organization is really a discussion on what degree of independence or autonomy the organization is to have. A fifth indicator of the degree of autonomy and independent influence of the international administration is the bureaucratic ideology or esprit de corps. The American researcher on organizations, Henry Mintzberg esprit de corps as “an integration of individual and organizational goals that can produce synergy” (Mintzberg 1989, 224) (see also the footnote on page 15). According to Bakka and Fivelsdal (1999) a certain amount of common ideology in an organization is necessary for the successful adjustment of the organization to its dynamic surroundings (Bakka and Fivelsdal 1999, 112). At the same time, it can be used internally to enhance the autonomy and set guidelines on the expected behaviour of the organization as has increasingly been the case in the EU’s administration (Cini 2004). Three fundamentally different causes for the creation of a certain esprit de corps can be identified. First of all, shared educational backgrounds (economic, juridical, medical, etc.) and shared professional norms can be a contributing factor.24 Secondly, it can be a sort of macro-ideology that already exists to some extent but that the international administration is trying to cultivate further in order to increase autonomy. In both the European Commission and, for example, the Secretariat for the Nordic Council of Ministers, the notions of ‘the specific European’ and, respectively, ‘the specific Nordic’ are alive and kicking as macro-ideologies. Both administrations sponsor conferences, seminars, and courses on European and Nordic culture and social conditions, respectively. In both the European Commission and the Nordic Council this macro-ideology is definitely contributing to the creation of a feeling of unity resulting in increasing autonomy. The bureaucratic ideology probably presupposes a well-developed career service in order to be an effective management tool. A third reason for the creation of a certain esprit de corps could be that a certain tradition of administration attains a form of hegemony. For instance, the European Commission has, as earlier mentioned, been characterized by the French tradition of administration, and the bureaucrats for a long period of time widely accepted the French language as the most important shared language of the administration.25 24

On the importance hereof, see note 14 above page 16. Meanwhile, English has in the later years manifested itself as the most important language in the administration of the EU. From 1 May 2004, the EU enlargement with ten new Member States has further strengthened the position of English. At the same time, German has been catching up on the French language as the second most important language in the administration in the recent years. This development is likely to continue in the following years given the size of the German-speaking population of the EU. Since the mid-1990s, the most important EU-documents, press-releases, etc. have initially been published in French, German and English. In contrast, a 25-year-old study showed that, at that time, the three remaining languages, Italian, Dutch and Danish were used just as rarely in the EU bureaucrats’ daily dealings with each other (Michelmann 1978a). 25

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French and English are normally seen as the internal languages of the EU, with English currently being the most important language. Still, it is decisive that at least the head of Commission speaks French, and this decision has been the case for all occupiers of the post until now.26 As mentioned, the situation has changed gradually so that English has now taken over as the number one language in the administration. The enlargement of the EU on 1 May 2004 has further strengthened this development.27 A sixth indicator of the degree of autonomy in the international administration relates to the level of accessibility of the international administration (Mouritzen 1990a). This question most notably refers to the possibility and the expense of communicating between the international and the national administration. On the issue of access to the international administration, the relative openness of the lines of communication increases the influence from the national administration28 while the international administration is able to communicate its ideas and proposals to the national administration. The influence of the international administration can also be dependent on whether the administration has tasks of implementation in a given area. If so, open lines of communication can increase its influence remarkably since it will usually entail direct powers in regards to the administration.

2.5. The surroundings of the international administration As has been made evident, an international administration is more sensitive to its surroundings than a national administration. Analytically, the surroundings of the international administration can be divided into several categories, each

26 As it is, this trend rubs off on the use of language internally in the Member States. Jean-François Deniau from Académie Française said to Le Figaro, according to The Economist on 7 August 2004 that English had now conquered even the French Ministry of Finance, which he referred to as ‘the heart, the bastion of French power’. The French Ministry of Finance was now circulating the drafts for new EU-regulations in English; “since they were going to be discussed in English in Brussels anyway.” 27 “After Babel, a new common tongue; The European Union”, The Economist, 7 August 2004, page 33. 28 On the influence of national delegations on bureaucrats of the same nationality in the administration of UNESCO, Hoggart writes, “In short, and more brutally, they expect loyalty and leaks. The pressure on some secretariat members can be so constant that they cease to feel like pressures and become an accepted aspect of the job. Many secretariat members are simply required, by their Delegations, always to have in mind the interests of their countries, to tell all and to act in the way they are told [. . .],” (Hoggart 1978, cited from Mouritzen 1991, 12, note).

The EU’s administration

27

having the ability to influence the international administration in different directions. The first and most important part of the surroundings of the international administration is the governments of Member States. Usually these authority players are represented in a sort of council at the top of the international organization, to which the international administration is tied as a secretariat. In an overall perspective, the European Commission can be regarded as the secretariat of the Council of the European Union in the EU29 since it prepares and presents proposals for the Council of Ministers of the European Union to decide upon. In this regard, the European Commission can be seen as the primary administration of the EU, or simply as the administration of the EU. On the other hand, the Council of the European Union has its own secretariat that in the narrow sense serves the Council of Ministers together with the European Commission (chapters 6 and 7). The other institutions of the EU have their own secretariats as well. These are the European Parliament, the European Court of Justice, the European Economic and Social Committee, the European Court of Auditors, the Committee of the Regions, and the Ombudsman. The secretariats of these institutions can be seen collectively as the secondary administration of the EU. The authority players are, as a part of the surroundings of the international administration, somewhat overlapping with the users of the international administration. They consist of the primary users who are paying for the activities and formulating the politics of the international administration and secondary users who are players outside of the governments of the Member States. The secondary users are, for instance, interest groups (and maybe some large companies) that play a significant role in the functioning of the administration in the case of the EU. A third category in the surroundings of the international administration is the identifying actors, who consist of organized groups working for the same objectives as some international organizations. These are NGOs who support the objectives of the international organization through lobbying, demonstrations,

29

“Yet it [the European Commission] is entrusted with functions, which go far beyond those normally associated with an international secretariat or civil service,” (Coombes, 1970, 101). Michelmann (1978b) also emphasizes, “[The European Commission’s] functions are much broader than those of the classical secretariat of an international organization.” On the other hand, Ehlermann (1981, 336) quotes Hallstein on his statement from 1979: “In den letzen Jahren hat die Initiativkraft der Kommission nachgelassen. Sie wirkt auf viele als ein dem Rat ‘dienendes’ Organ, eine Art ‘Generalsekretariat’ des Rates . . .”. (“In the recent years the initiative-activity of the European Commission has diminished. To many it appears an organ for the Council, a sort of ‘General Secretariat’ of the Council . . .’). During the ten years under Jacques Delors’ presidency, the Commission regained some of its former influence, which it lost by the mid-1990’s when Jacques Santer become President according to Desmond Dinan (2005, 188).

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and the use of propaganda. Examples of this are the United Nations Association, the Atlantic Treaty Association (supportive of the NATO-alliance), and the European Movement (supportive of the Council of Europe and the European Union). Concurrently, it is possible that in connection with the international organization and administration there are organized groups counteracting its objectives through pressure on national governments. An example with reference to the EU is the nationally based anti-EU movements. Furthermore, parts of the surroundings of the international administration are the potential and actual competitors and rivals that would take over – or have taken over – the assignments. These may be organizations with similar objectives. For instance, there is competition between EU and the Council of Europe, between the EU and NATO, between the WTO and UNCTAD, between the EU and the Nordic Council and between OECD and EU. Additionally, there is of course competition for assignments and the internal competences in every international administration, as in the national administrations. In section 6.1., the competitive situation between the different sections of the European Commission is analysed. Finally, an important part of the surroundings of an international administration is the national administrations, which at the same time are the primary tools for authority players. In some cases there is competition between the national and the international administration on which administration gets the assignments in certain areas, for instance in connection with the implementation of the decisions made by the international administration. Finally, yet importantly, this competitive situation is important if the national administration is heavily represented through a delegation in the international administration as is the case for the EU’s administration due to the existence of Member States’ national representations in Brussels.

Chapter Three

Organizational theories and the EU administration Organizational theory is an important tool for the analysis of an organization such as the EU administration. Yet, it should be noted that organizational theory is not a close-knit theoretical system. It has been argued that organizational theory consists of three dominant themes: structure, process, and culture. A dominant theme is taken to mean the display and use of an overall viewpoint (Bakka and Fivelsdal 1999, 21). The three dominant themes should not be seen as separate, but as attempts to focus on certain aspects of organizations like the EU administration. At the same time, the aim of studying the structures and cultures of organizations is to be able to say something about the processes that take place in the organizations. Furthermore, efficiency and legitimacy are emphasized as fundamental aspects of the EU administration that touch upon the structure, process, and culture of the administration. These aspects are, therefore, considered in this chapter as well. An efficient administration is the objective of every administration, and the question of legitimacy can be raised in connection with the activities of nonnational administrations, especially because they have not been given legitimacy from the nation-state. Section 3.1. addresses the EU administrational structure, and section 3.2. analyses the organizational processes of the EU administration, while section 3.3. analyses the organizational culture of the EU administration. In section 3.4., the legitimacy of the EU administration is considered, and section 3.5. raises the

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question of the efficiency of the EU administration. Finally, section 3.6. outlines the model of the EU’s administration as a political bureaucracy.

3.1. Organizational structure of the EU administration Overall, structure can be defined as “a stabile arrangement of components within a whole.” Large and complex organizations cannot exist without a basic and formal structure. A formal organizational structure is a question of systemizing and distributing tasks in order to secure a satisfactory use of the organization’s resources (Bakka and Fivelsdal 1999, 43). In relation to this, organizational theory has pointed out numerous organizational structures (e.g. matrix-organization and line-staff organization) to optimally solve the problem of distributing tasks in different types of organizations. Next to the formal structure, there is an informal structure of groups and networks. The existence of these groups and networks can be interpreted in different ways. Firstly, the informal structure can be seen as an attempt to establish a feeling of social certainty in the organization. This means that informal structures emerge among different players of the organization who are in different ways similar to or supportive of each other. Secondly, it can be interpreted as an attempt to supplement the formal system to reduce the uncertainty in the organization’s decision-making process. Hence, the objective of informal structures and networks is to correct defects in the formal decision-making process. Thirdly, the informal structure can be interpreted as an attempt from the employees to twist or adapt the organization to their own interests and needs. This is coherent with the role of the organizational players in the Niskanen model of bureaucracy (section 2.1.). In some cases, this can result in a detachment of the informal structure from the formal organizational structure, with the result of the two structures operating with different objectives (Meyer and Rowan 1977). Meanwhile, this presupposes that the formal structure has no possibilities of sanctioning the subversive activities of the informal structure. In respect to the EU’s administration and its relations to national administrations, it is of interest that employees with the same nationality constitute an informal network in the European Commission and other parts of the EU administration. It is probably not irrelevant that EU-employees socialize primarily with colleagues of the same nationality in their free time (Michelmann 1978b, 493). The most important informal national networks and groups in the EU administration are often referred to as mafias.1 There has been no attempt

1 Earlier on especially, it was claimed that the centres of the mafias of the different Member States were the Commissioners’ Cabinets (Michelmann 1978a). Since the Cabinets

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to disguise this in the open references to ‘the Irish mafia’, ‘the Italian mafia’, ‘the Greek mafia’, etc. The informal networks are often stronger among individuals from smaller Member States. Aside from the national networks there is, according to several interviewees, a network consisting of individuals who attended the College of Europe in Bruges.2 According to Mintzberg (1979), the tasks of any organization may be split up in division of labour and coordination, respectively. Hence, the importance of coordination grows when the surroundings of the organization become more uncertain. For an international administration, surroundings are often more uncertain than for a national administration. For this reason, coordination must be expected to play a bigger role. For one, the coordination in the EU’s administration takes place internally in the European Commission, where several departments exist with this sole objective. Additionally, there is both formal and informal coordination between the Commission and the secondary administration of the EU, especially the Council Secretariat. In accordance with Mintzberg (1979), the environment of an organization may be analysed based on four variables: 1) stability, 2) complexity, 3) market heterogeneity, and 4) hostility. On the first variable, the environment of the EU administration may be described along the dimension stable-dynamic. As mentioned earlier, the surroundings of international administrations can be described in general as dynamic, i.e. that the surroundings are characterized by uncertainty and unforeseen events. This is only somewhat the case in the EU administration since the

have become multinational in 1999 with the Prodi Commission, this claim is no longer as relevant. The Committee of Independent Experts found in their 1999–examination that “unhealthy national allegiances can cut across the formal structures of the Commission. During the first phase of its work, the Committee, in examining files, in interviews with officials and in correspondence received from outside sources, not infrequently encountered the existence of national reflexes, and even of national networks, within the Commission. It found that some commissioners, and/or their private offices, are not immune from such reflexes.” (The Committee of Independent Experts, Second report on Reform of the Commission, 10 September 1999, § 7.3.3.). Kassim and Menon (2004, 99) also conclude that “the way in which national administrations are striving to maintain close contact with fellow nationals in Brussels attest to the ways in which Member State influence extends to inside the institution.” 2 The College of Europe (College d’Europe) is a kind of EU-administration College with many external professors who have regular work in the EU. A one-year special training in Economics, Law and Administration is offered, which will normally be built on a Master’s in the Social Sciences. The objective is to make the students especially qualified for working in the EU administration.

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nature of the EU as a supranational organization has diminished the unpredictability of the surroundings to some extent. On the second variable, it is possible to move between the simple-complex poles. This dimension relates to the demands on the expertise of the organization. At the same time, complexity may be reduced in different ways through standardization and rationalization. The environment of the EU administration is complex as a result of the many Member States, citizens, companies and third countries on one side, and a wide range of fields of responsibility on the other. Meanwhile, the complexity is, to a large extent, made manageable through standardization of possible demands that the environment may make on the output of the organization. First of all, there has been an attempt to make the output of the EU administration foreseeable by giving the European Commission the monopoly on the right of initiative (i.e. making proposals for new legislation). Secondly, the output of the European Commission has been standardized to a large extent and follows certain rules.3 There is a manual in the EU’s administration, “L’expression écrite dans les services de la Commission de Communautés européennes” that contains guidelines on how to annotate, write an account of decisions, or a report. There are also rules on how to initiate a letter and examples of how to use courtesy phrases in different contexts. The third environment variable varies from homogeneous to heterogeneous. It relates to players, products, and geographical areas. An example of extreme homogeneity would be a private company that supplies a single product to a single buyer. The environment of the EU administration is difficult to describe along this dimension. On one hand, it is heterogeneous (a large geographical area and many players is the objective of the decision-making). On the other hand, the product in the form of proposals for political decisions is relatively homogeneous. According to Eliassen (1993) and Nedergaard (2006b), for example, the EU’s political decision-making process is based more on shifting lobbyism from different interested parties than on formally established relations to organized interested parties. If this is a correct observation, the EU’s decision-making process is quite heterogeneous. The fourth environment varies from friendly to hostile, such as to what degree there are competitive situations and different forms of conflict. This variable

3 Official EU documents like policy drafts, reports, and analyses from one of the Generals Directorates or services of the Commission are marked SEC (French/English) followed by the two last digits in the year in a parenthesis and a consecutive numbering. The completed communications of the Commission are numbered in the same way as well, with the mark COM in front. After the hearing in the European Parliament they are marked “final”. Particularly important initiatives are assigned with even numbers. Most important official EU-documents can be downloaded from the respective homepages of the EU-institutions.

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is important for the primary administration of the EU, i.e. the Commission. Both friendliness and hostility may be shown by EU institutions other than the Commission as well as from Member States and their administrations, citizens and third countries. The cycle of EU integration is to a large extent dependent on this environment variable. Simultaneously, the behaviour and influence of the EU administration as a whole is, to a large degree, dependent on the general EU integration cycle, as the EU administration, and especially the Commission, act with more self-confidence when the general cycle of the EU integration is positive. Hence, for the general EU integration cycle, the environment variable is both a dependent and an independent variable. Until now the booms of European integration have been in the time periods 1957–1965 and 1985–1996 due to, among other things, the possibility of a strong leadership by the Commission Presidents (Dinan 2005, 190).

3.2. Organizational processes of the EU administration In the analysis of organizational processes, decision-making procedures play an important role. However, decision-making may be difficult to demarcate from other organizational processes like conflict- and motivational processes. When taking into consideration that other processes contribute to decision-making processes, the term ‘decision’ is automatically broadened. In addition to this, the decision-making processes will be closely linked to the organizational structures as well as to the division and culture of power in the organization. In the case of the EU, the role of the large Member States (especially France and Germany by the Paris-Berlin axis) is an example of the division of power’s influence on the decision-making process, even though the power plays of larger Member States are modified by the supranational nature of the EU. The model of rational decision-making implies in this respect that the decision-making process is aimed solely at reaching the basic objectives that are fundamental for the existence of the organization. Max Weber worked with this model as an ideal type of decision-making behaviour. Herbert Simon was the first to thoroughly criticize the model of rational decision-making for its normative bias in his book Administrative Behaviour (1945). At the same time, he urged that the analysis of the decision-making process was essential to the study of any kind of administration.4 What characterizes Simon’s ‘administrative man’ is, first of all, dependence on a certain frame of reference, which is determined by factors such as experience and educational background. Secondly, the administrative man will always try

4

Cf. Simon’s sentence: “decision-making is the heart of administration”.

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to change his alternative options. Among other things, this is due to the selfinterest and frame of reference of the person in question. Thirdly, the choice between alternative decisions is a choice between the alternatives that seem most satisfactory rather than choosing the optimal alternative. Fourthly, Simon presumes that the administrative man has limited insight into many of the decisions he has to make. To diminish this problem, most organizations work with more or less explicit decision-making programmes, the standard operating procedures (SOP’s). Hence, with Simon the organization becomes more rational than the individual person. Cohen, March and Olsen’s Garbage Can model5 represents another step away from the rational model of organizations. According to this model, decisionmaking procedures in organizations are so complex that they must always be split up in partial processes. The process of decision-making is not as in the rational model seen as one compact process but as different flows of 1) possibilities and occasions for decisions; 2) problems; 3) solutions to problems; and 4) participants.6 In the EU, the Commission has analysed several of the political problems of the Member States. In many cases, elaborate and pre-fabricated pro-integration proposals can rapidly be made available as solutions. All that is required for the proposals to surface is a convenient occasion where a sufficient number of actors express their support. Meanwhile, the fact that the Commission makes use of experts and researchers in the preparing of proposals is no guarantee for a more rational administration and that the EU decision-making process is not akin to the Garbage Can model (Haas 1992, 11). According to the Garbage Can model, there are many possibilities of interconnection between the different flows in the organization. The interconnections can take place anarchically, they can be based on experience, or they can be caused by structural and administrative agreements established in the organization. At the same time, the model is open for many different kinds of input in the EU decision-making process, particularly in areas without clear-cut boundaries between formal and informal structures and official and interest-based inputs. Bureaucratic Politics models of organizations may be seen as a concrete Garbage Can model. Bureaucratic Politics models of decision-making processes presume that there will always be frictions and conflict of interests in differentiated organizations, for example, in connection with distributing assignments and

5 This model of organizations is somewhat different from March and Olsen’s subsequent institutionalist model of organization (March and Olsen 1989). 6 Cf. the following sentence: “From this point of view, an organization is a collection of choices looking for problems, issues and feelings looking for decision situations in which they might be aired, solutions looking for issues to which they might be the answer, and decision makers looking for work.” (Cohen, March and Olsen 1972, 72).

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resources or in connection with relocations and reorganizations. The different sections will compete for the resources. As in Niskanen’s model of bureaucracy, the single units in the public administrative apparatus are presumed to be quasiautonomous players pursuing their own objectives in the political decisionmaking process (Peters 1992). Still, there will be different mechanisms such as structures and power-cultures regulating these processes. In the EU administration, these frictions are furthermore exacerbated by conflicts between the EU level and the national level regarding the allocation of resources and other issues. Meanwhile, it may be criticized that the Bureaucratic Politics model used on the EU’s political system does not take into consideration the framework that the EU’s legal system may put on, for one, the behaviour of the players. Organizations may, according to March and Simon (1958), respond to conflicts by four different processes: problem solving , persuasion, negotiation, and politics. To March and Simon, ‘politics’ means an expansion of the conflicts, where it is attempted to establish larger coalitions by exceeding the initial negotiation areas. The prevalent solution of conflicts between the EU’s authority players through bargaining and package deals – among other things in connection with meetings in the Council – can be seen as a result of this. The rational choice model can contribute further presumptions that can help in understanding the content of these package deals more thoroughly. In the rational choice model, the political system is taken to be asymmetrical, meaning that well-organized and concentrated interests outside of the political system as a whole will gain advantages through decisions involving expenditure, while un-organized and more dispersed societal interests often will have to foot the bill. The political system will probably be more asymmetric at the EU level than on the national level since the EU administration is more responsive to organized economic interests because of the lack of a powerful parliamentary or finance-ministerial counterweight to interest-based expenses and regulations and because an alternative means for increasing societal legitimacy are to a larger extent sought by involving interest groups in the decision-making process (Nedergaard 2006b).

3.3. Organizational culture of the EU-administration Organizational culture may be defined as “the norms, views and values that exist in the organizations.” In regards to the European Commission there is talk of a ‘mémoire organizationelle’. The organizational culture is imbedded in the dominant esprit de corps, and it indicates a certain way to construct the social world surrounding it. Its function is to give dominant criteria for how to act as a member of the organization. At the same time, the organizational culture makes an apparently confusing organization more stabile and foreseeable. Additionally, myths are an important part of every organizational culture.

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According to Schein (1985), organizational culture can be seen as a pattern of basic assumptions that are invented, discovered, or developed by a given group as it learns to handle its problems with external adaptation and internal integration. Eventually, this pattern becomes part of people’s conscience. Leading up to this is an educational process that has, in most cases, been initiated by the founder of the organization. The same pattern may be found in the history of the organization.7 On the visible level, the culture of the organization contains numerous artefacts.8 Among the artefacts of the EU organizational culture are the headquarters of the European Commission: Berlaymont (a 13 story building resting on columns and with the commissioners placed on top),9 the Justius Lipsius building of the Council (marked with the Roman letters ‘CONSILIVM’ on the outside) and the EU flag with its twelve10 yellow stars on a dark blue background that is inherited from the Council of Europe. The culturally conditioned rules that determine the interaction in the organization are not as visible, and even less visible are the basic values and the conceptual framework of the organization. The non-visible part of the organizational culture consists of underlying categories, presumptions, and myths. A fundamental presumption in the organizational culture of the EU administration is that the European partnership can solve many of the problems that the Member States either cannot solve themselves at the national level, or that would be less effectively solved at the national level. At the same time, it is part of the conceptual framework of the organization that there is not nearly enough European integration because of the opposition from the Member States. This can be stated as the EU resting on unspoken rules that have their starting point in a certain ‘common spirit’ that consists of the assumption that all Member States gain positive results from the membership over time, hence the single

7

The history of the EU administration is taken up in section 4.1. Artefacts are, for example, the layout of buildings, statues and other physical symbols of the organizations culture. 9 It is worth to quote Dinan (2005, 187): “The Berlaymont – a large, star-shaped glass and concrete structure in the heart of the ‘European Quarter’ in Brussels – is a potent symbol of the Commission’s fluctuating fortunes. Like the name ‘Commission’, the building appears aloof and uninviting. Moreover, the Berlaymont’s fate epitomized the Commission’s apparent decline in the wake of the Maastricht Treaty. In 1991, as the Treaty was negotiated, the Commission evacuated the Berlaymont on grounds that health safety conditions had become altogether unsatisfactory.” 10 The number twelve symbolizes perfection. A year has twelve months, a day has two times twelve hours, etc. In ancient Israel the number tvelwe gained significance through the handing-down of the tale that the people consisted of twelve tribes, who descended from the twelve sons of the patriarch Jacob. In the Old Testament the number twelve refers to this tale in several places, see 2. Mos. 24,4; 28,21; 4. Mos. 13; Jos. 4, 1–9. In the New Testament this is reflected in the twelve apostles of Jesus, cf. Matt. 19,28. 8

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Member State should not be allowed to continue blocking the decision-making process while, at the same time, one should not override Member States who are in a minority position (Kalin 1993). This is why it is important for the Member States always to appear ‘European’ in interaction with each other. Most of the speeches that ministers give in a European setting begin with some sort of honouring of the European project. In organizational terms this unspoken rule is a kind of ‘standard operating procedure’. If a Member State opposes a proposal, the strongest argument that may be activated is that the proposal undermines other and more important objectives of the European partnership. Clearly, various national administrative cultures are found in the EU administration. In addition to the national organizational cultural differences that are brought together in the EU administration, there is the question of an independent organizational culture developing in the EU’s administration, such as the administration of the Commission. Since the beginning of the 1990s there have been a number of studies of this phenomenon (Cini 2004, 65).11 Accordingly, most interview surveys point out that Eurocrats, to a higher degree than national bureaucrats, are supportive of transferring competence to the EU level without identifying less with their national identity. According to Coombes (1970, 127, 142), one of the most important qualifications in the original hiring of bureaucrats for the European Commission was that they had a ‘pro-European’ mind-set. In relation to this, Chris Shore (2000), such as in the following statement, has shown in his ethnographic analysis of top-bureaucrats in the European Commission that the job, at least at this level, affects the employee: “Living and working in the EU does change you. I’ve certainly become more federalist in my outlook . . . I can see the process working on me.” (Shore 2000, 221). However, organizational culture in relation to the EU’s administration has also increasingly come to be understood as the management culture of the Commission (Cini 2004, 70). Not least Neil Kinnock, when he was made commissioner responsible for administrative reform, promoted a Commission strategy for cultural change in EU’s administration in direction of efficiency, independency, transparency, accountability, and penalizing wrongdoing (Cini 2004, 71). In section 6.3., the factors preventing the development of a common European organizational culture will be pointed out. An important explanation is that nationality plays a considerable role in employments, promotions etc.

11

The study made by Abélès, et al. (1993) deals with this question to some extent.

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3.4. Legitimacy of the EU administration Legitimacy may, as mentioned in section 2.1., be analysed from two fundamentally different perspectives. First, a moral, political, social, or popular perspective can be put on the question of legitimacy. In that case, legitimacy is what the majority of citizens regard as right or wrong, acceptable or unacceptable, democratic or undemocratic, and so on. Secondly, the question of legitimacy can be seen from a legal point of view, i.e. what is legally and lawfully correct. The first perspective is previously referred to as societal legitimacy, the second as formal legitimacy (see box 2.1. page 8.). The societal perspective on legitimacy is especially important to the EU since there are limited sanction possibilities in most areas of cooperation. The EU must rely on the Member States and the EU citizens to voluntarily subject themselves to the passed proposals. This implies that to a large extent they accept the process leading to the decision, or, for example, that they regard the decisions as legitimate. These demands on legitimacy are ‘defensive’ in the sense that they restrain in what areas Member States are willing to engage in a joint decision-making process that is part of the EU cooperation at a given time. On the other hand, this limit is not constant since it changes when the presumptions for the settings of former limits are changed. Hence, the societal legitimacy of the EU administration’s role in the decision-making process is continuously transforming. Meanwhile, it must be expected that the Member States see decisions made by the EU as increasingly legitimate as they participate in more phases of the decision-making process. This has among other things shown to be true in that the Member States have demanded representatives in the many different workgroups and committees that are put down by the Commission, both in the process of preparing proposals and implementing the passed proposals. For the Member States, it is of great importance that they can modify or halt proposals and form coalitions with other Member States at an early stage. These wishes of the Member States may be interpreted as a desire for having the option of halting or modifying proposals in the EU decision-making process because the EU does not have enough societal legitimacy for citizens to subject themselves without question to the decisions reached by a majority of Member States. When several countries form an alliance in a certain area there is a risk that the social and political groups that were formerly a majority in the political system suddenly change status and become a minority in the larger political system. All things aside, the citizens in question have smaller possibilities of controlling and influencing their own territory. What decides the legitimacy of the new political system is whether citizens identify with the new cooperating unit and thus accept the new rules of the game (Weiler 1991, 416). Accordingly, the question is whether the majority of the national population is willing to subject themselves to the majority of the EU population. It seems that it is only willing to

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do so to some extent. In that case, it is not important if the decisions are made by the Council of Ministers or in the European Parliament. The inadequate societal legitimacy of the EU is not primarily due to decisions being made by an institution that is not directly elected. It is, on the other hand, due to the extension of the traditional political boundaries of the decision-making process. Hence, it would be no solution to the problem of societal legitimacy just to award the European Parliament more power. All in all, this means that the federalist answer to the problem of the EU’s lack of societal legitimacy, to give a directly elected parliament more say on legislation, is not a sufficient solution. Concerning the decision-making process, it is the aim of the EU, as an organization, that citizens accept the new limits on majoritarian decisions. Meanwhile, this process does not take place over night. As stated by Weiler (1991, 419): “In a federation created by integration rather than by devolution, there will have to be a period of adjustment when the political boundaries of the new polity becomes socially accepted as appropriate for the larger democratic rules whereby the minority will accept a new majority.” Based on the above, one can raise the question of what it will take to maintain the societal legitimacy of the EU in a situation where the citizens do not fully accept the majority-decisions, but still are being forced to subject themselves to the decisions made by the EU. In connection to this problem, Weiler points out two components that are especially important for maintaining societal legitimacy : First of all, it must be manifested in a clear and tangible way that the welfare of the citizens increases as a result of integration, welfare meaning different goals of security, economic growth, employment and better environment. Secondly, no Member State must feel neglected on important political issues. The first component can be of help in explaining why it was emphasized prior to the completion of the internal market that it was expected to lead to considerable welfare gains. The second component is helpful in explaining why the Luxembourg compromise for many years played such an important role for the public acceptance of the decision-making process of the EU.12

3.5. Efficiency of the EU administration Every organization or organizational unit may be characterized by its objective. Accordingly, it may be argued that the internal decision-making process in an organization consists of a hierarchy of means and ends, where a certain phenomenon may be regarded as an end when seen from a lower level in the hierarchy and as a mean when seen from a higher level (Meyer 1982, 45). The series of means

12

The Luxembourg compromise is presented in box 7.4. page 168.

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and intermediate means that lead to an overall end may be described as a strategy. In order to reach a rational decision, one must choose the strategy that leads to the desired set of consequences. The term efficiency may, in other words, be defined as the ability of the decision-making process to produce a rational decision. In this regard, the demands for efficiency apply to all phases of the decision-making process, such as proposals, decision-making and implementation. If the demands for legitimacy may be seen as ‘defensive’, the opposite is the case for the demands for efficiency, which at the same time can be seen as coherent with the question of legitimacy since a low degree of efficiency must be expected to lead to less legitimacy (Cini 2004). Meanwhile, the demand for efficiency in the decision-making process entails a demand for an efficient gathering of knowledge. To make goal-rational and, hence, efficient decisions the decision-making must be based on knowledge that is relevant to the decision. The most important function of the committees and work-groups of the EU is to produce this knowledge as a basis for decisions. At the same time, these institutions secure a more efficient implementation when the decision-making process is rooted more deeply in the Member States. On the other hand, the central role of the committees in the decision-making process of the EU may undermine the quality of the decisions. The demands for negotiation and consensus entails a conflict between rational political meansends decisions on one hand and what is realistic with regards to reaching political agreements on the other. Furthermore, the decentralized structure of negotiation in the EU makes the attainment of broad political goals difficult, as well as the question of where to spend those economic means that are diverted between several sectors in society. Finally, an aspect of the efficient decision-making process is if the organization is able to make decisions at all. The split up decisionmaking process of the EU involves a risk that the decision-making will make a slow process if a small group of Member States raise objections.

3.6. The EU’s administration as a ‘political bureaucracy ’ More than twenty years ago, Wessels (1985) put forth a series of normative models of how the EU’s administration could be constructed. It is, however, still highly relevant. The first model is called ‘supranational bureaucracy’, and it presupposes the construction of an administration similar to the one of the nation state at the EU-level. With this ascertainment alone, he sees the model as unrealistic and lacking societal legitimacy. The second model is described by Wessels as ‘brokerage bureaucracy’. This is an administration with few independent functions, with the most important objective being ironing out the conflicts in the EU decision-making processes to make way for the necessary compromises. Wessels sees the Council Secretariat as such

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an administration, which as a result can be expected to appeal to those in favour of transforming the Commission to having the same competence and structure as the traditional international administration. Still, Wessels does not think that an EU administration built after this model will be able to efficiently solve the political tasks of the EU. The third model is called ‘secretariat bureaucracy’, whose functions are limited to the traditional administrative functions while negotiation, control functions, and strategy are left to politicians and/or to the national bureaucrats. According to Wessels, this model is also inefficient if the EU administration should solve the political tasks and problems of the EU. Finally, there is the model of the EU’s administration as “an active, open, integrated and cooperative bureaucracy” that mirrors the hybrid character of the EU as a cooperation that in its organizational form lies somewhere in between the federal state and the international organization. Wessels refers to this model as ‘political bureaucracy’. According to this model, the EU’s administration should have the following functions: 1) Administrative functions: The EU’s administration must be able to manage the normal functions in considering cases, ensuring continuity in the administration, preparing for meetings, etc. 2) Technical expertise: The EU’s administration must be able to advise politicians on the content of different policies and possible implications hereof in order to help give basic political goals a concrete form. 3) Programmatic functions: The Commission, the Secretariat of the European Parliament, and the European Economic and Social Committee must contribute actively to identifying and analysing problem-areas, proposing innovative methods within the framework of the existing policies, and developing programmes with medium and long term perspectives. 4) Mediating functions: The EU’s administration must contribute in gathering and integrating different national negotiating positions. This must take place both in the single units of the EU’s administration and in cooperation between the European Commission, the Secretariat of the European Parliament, and the Secretariat of the Council. Additionally, diplomatic and political skills are needed to work with and influence the different players. 5) Crisis-management: A special mediating function consists of crisis management inside the EU and in relation to the external challenges where mediating requires quick and well-considered initiatives. 6) Implementation and control functions: In light of the expanded activities of the EU, the importance of implementation and control with the EU’s policies will be strengthened. Until now, the EU’s administration has had very few implementation powers. This makes control functions even more important to find out if the policies have the intended effects.

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7) A self-regulating function: To exercise all of the functions mentioned above the EU’s administration must be able to reform itself continuously with attention to the shifting surroundings. This ‘para-bureaucratic’ function demands an ability of self-criticism. Today, all of these functions are to some extent handled by the EU’s administration. Hence, the establishment of a ‘political bureaucracy’ entails a strengthening of these functions. Wessels concludes that in his model for an efficient political bureaucracy in the EU “it is not assumed that Eurocrats are substituting politicians, but that their cooperation is broader and more intense than normally accepted in the traditional Weberian image of bureaucrats.” (Wessels 1985, 31). The ‘political bureaucracy’ will, according to Wessels, be the premise for an innovative, active, and open administration that is in its turn a premise for the EU’s political leaders to develop democratic solutions to the EU’s problems. If presumed that “the Community level needs to become more active, more efficient and (!) more democratic, then the Community should act for the ‘political’ bureaucracy model.” (Wessels 1985, 32). Accordingly, Wessels’ model of ‘political bureaucracy’ is an attempt to construct an administration with both a high degree of efficiency and legitimacy. In the concrete analysis of the EU administration in the rest of this book, Wessels’ model of the ‘political bureaucracy’ will be applied in order to measure to what extent the actual EU administration fit Wessels’ political bureaucracy model.

Chapter Four

The EU administration in context The historic process of the EU may explain the unique character of this organization and the fact that the EU administration is a mix between a national and an international administration. The political history of the EU is an illustration of the fact that the EU, like any other organization and administration, has both a series of basic objectives (e.g. the official objectives or the publicly sanctioned myth about the organization) in addition to a series of political objectives such as survival, autonomy, and influence. In both cases the objectives are realized while, at the same time, several other objectives like prestige, harmony between the authority players, and the wish for expansion of authority are also present. Section 4.1. analyses the effect of the post-World War II aspiration for a united Europe on the EU administration. One of the most important things that make the EU different from other forms of international cooperation is that the Union is based on a comprehensive and detailed set of Treaties that has been modified and extended during the last 20 years. The Treaties of the European Union contribute to making the EU a political hybrid between an international organization based on intergovernmental cooperation and a supranational federal state, and thereby provides the EU administration with some of its special features. In addition, the Treaty basis mandates some important constraints on the actors in the EU system. In section 4.2., the legal basis of the EU and the founding Treaties are analysed. The legal acts of the EU are the decision-making products that are the foundation of the integration process. A closer analysis of the legal acts makes it possible to reach important conclusions regarding the nature of the EU cooperation as well as the input to the EU administration and the national administrations.

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In section 4.3., the different forms of legal acts of the EU are accounted for. The section also analyses the direct effect of EU legal acts. The legal supremacy of EU legal acts is also discussed. In section 4.4., the institutional power structure of the EU is analysed in order to assess its effect on the EU administration. Here, the distribution of power between the EU’s institutions is dealt with using the traditional tri-partition of power as a frame of reference, and the political scope and depth of the EU cooperation is considered as well as other essential characteristics. The section also discusses whether the often-emphasized principle of the subsidiarity may be regarded as a principle for the division of powers. Additionally, section 4.5. analyses the influence of the EU institutions in the decision-making process of the European Union. In conclusion, the EU’s context and its implications for the EU administration is presented in section 4.6.

4.1. The historical context The myth about the establishment of the EU takes its starting point in a strong idealistic wish for a peaceful and united Europe in the years following World War II. This wish is seen as the primary reason for the establishment of the EU. As soon as 1948, the western European countries held a congress in The Hague where the decision was made to create the Council of Europe, which was, however, seen by the majority as an organization too wide and inefficient to fulfil the vision of a united Europe. Another version of the purpose of the establishment of the EU takes its starting point in the world power politics post-World War II. In 1950, the new Federal Republic of Germany wanted permission from the western Allies to expand steel production. The USA was supportive of the German wish, since a strong West Germany was seen as a most welcome safeguard against emerging Communism. Additionally, the American government feared that a neutrally minded West Germany would result if the western powers opposed German industrial growth. France, on the other hand, was concerned about an expansion of the German steel production. They feared a German rearmament, and at the same time, an expanded German steel production could lead to lower steel prices in Germany causing French relative industrial competitiveness to diminish. In an attempt to bring about a harmonious solution to this Gordian knot, the French Minister of Foreign Affairs Robert Schuman presented a plan in May 1950 that through a sort of ‘highest common denominator-principle’ was beneficial to all the interested parties. Bureaucrat and businessman Jean Monnet who until then had been the Head of the French ‘Commissariat du Plan’ established in 1945 developed the plan.1 According to the Schuman Plan, the German as well as the French steel 1

Commissariat du Plan is based on both the strong French tradition for State-planning

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industries would be placed under the control of a supranational European body (Dinan 2005, 23).2 France was in this way made to wield direct influence on the expansion of the German coal and steel industries. Meanwhile, what is interesting from the perspective of administrational history is that the Schuman Plan involved a never before seen kind of international cooperation where nationstates would give up part of their sovereignty in return for gaining influence on a supra-nationally organized cooperation with a relatively independent secretariat. The Schuman Plan was the basis for the Treaty establishing the European Coal and Steel Community (ECSC), which was signed in Paris in April 1951 by the following six countries: West Germany, France, Italy, Belgium, the Netherlands, and Luxembourg. Consequently, the ECSC Treaty involved the establishment of shared institutions consisting of a parliamentary Assembly, a Council, a Court, and a supranational administration (which was named the High Authority) with both the authority and the obligation to present proposals. As something completely new in international cooperation, these institutions were awarded extensive competencies to intervene in the coal and steel industries of the six countries. The United Kingdom did not wish to become a member of the ECSC (even though membership was offered to them) because of reluctance to surrender the sovereignty of the British coal and steel industry. As earlier mentioned, it is well-known in organizational theory that the structures and institutions established by the founders of the organization gain great significance for the subsequent functioning of the organization. In Mintzberg ’s (1983) organization phase model, the first phase is named ‘Autocracy’. It refers to a type of organization dominated by a strong, creative and charismatic leader who is able to exercise his power with no consideration of the power of others. Hence, it became very important for the subsequent functioning of the EU that the administrative structure behind ECSC (which was later to a large degree taken over by the European Community and later on by the European Union) was developed and proposed by persons embedded in the French planning and bureaucratic tradition.3 As in France, the EU’s administration in the form of the Commission is the autonomous and stabile element, whereas the decision-making body in the form of the Council is by definition unstable (just as the governments were the unstable element in the fourth French republic from

(a tradition that goes back to Colbert) and the common positive attitude in post-war Europe towards the Soviet planning economy and its planning-institution Gosplan. 2 The idea had already been successfully tested to some extent. In 1804 the central Rhine Commission was established as the first international organization. It was composed of French and German bureaucrats as well, and the goal was to secure the river traffic on the Rhine (Riggs and Plano 1993). 3 This idea coincides with the term ‘path-dependency’ in the historic institutional theory.

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1945 to 1958). The administration in the form of the High Authority (later on the Commission) gained a considerable independent status right from the beginning, and the commissioners, like the top-level civil servants in the French central administration, gained much independent competence. Overall, the EU’s administrative structure became highly hierarchical, which, according to theories on international administration, is also a precondition for being able to act as an effective counterweight to the Member States and their administrations.4 In other words, the hierarchical organization of the EU is a contributing factor in securing efficiency and success for the EU as a European body of cooperation. The staff recruitment to the European Coal and Steel Community’s administration was in the first years based on ad hoc hiring and the majority of the staff was employed on short-term contracts or posted by national administrations. Screening procedures were informal and closely tied up to the individual High Commissioner, which resulted in strong national loyalties inside the organization (Knudsen 1993). Because of this, the need for a more formal organization developed and an actual ‘Weberian’ bureaucratization set in. One of the elements in this bureaucratisation was the making of a shared set of rules for the employees. Still, in the beginning it was not evident that a formal bureaucratic system would be established per se. Hence, contract-employment, which is used in many international organizations, was also considered as an alternative. Meanwhile, a formal and independent bureaucratic system was decided upon, and thus a system closer to national administrative systems. The reason for this decision was the desire to create a corps of employees with supranational loyalties. In this regard, Jean Monnet believed that the responsibility for the establishment of a supranational European organization went far beyond the actual current demands of the ECSC since the principles of the regulation of the first community institution would necessarily be influential on future European institutions. In this way, there was a deliberate spill-over effect in the organization of the ECSC administration. The staff regulations of the ECSC were finally approved after thorough preparatory steps in January 1956. After an unsuccessful attempt to establish a defence policy community in Europe, the Benelux countries proposed a plan to create a general Common Market for the western European countries in 1955 (Dinan 2005, 26). On this matter, the EU myth has it that at the time (if the fragile European integration process was to survive) it was necessary to try to integrate the European countries

4

This is also seen in the much more fragmented structure of the UN (compared to the EU) where the original founders of the organization had an Anglo-Saxon (English and American) background where the centralization of the administrative structure is far smaller than in France. It is often said that the single parts of the UN administration are independent ‘baronies’. Meanwhile, there are other reasons for the unique structure of the UN as well.

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through a low politics community (industrial policy, trade policy, economic policy, etc.) since the high politics integration of common security and defence policies had failed.5 In other words, the road to a united Europe would go through shared milk prices, the out-phasing of trade-restrictions and harmonized quotas on steel production. At a conference in Messina in June 1955, it was decided to re-examine the Common Market proposal from the Benelux countries, as well as a proposal from Jean Monnet on a European atomic energy community. Thus, a committee was formed, chaired by the Belgian foreign minister, Henri Spaak, and the report from the Spaak Committee became the basis for the treaty establishing the European Economic Community (EEC) and the Treaty establishing the European Atomic Energy Community (Euratom). Both Treaties were signed in Rome 25 March 1957 and went into effect on 1 January 1958. The first Member States of EEC and Euratom were the six countries already in the ECSC.6 Noël (1991) has suggested that the difference between the EEC Treaty on the one side and the Euratom and ECSC Treaties on the other is that the EEC is a framework treaty while the other Treaties are concrete legal Treaties.7 The Euratom and ECSC Treaties are characterized (almost exhaustively) by specific stipulations regarding the tasks to be performed in different areas, whereas the EEC Treaty limits itself to giving guidelines for policies on different subjects (except for the previously negotiated reduction of tariffs). The EEC Treaty involved the establishment of a customs union prohibiting tariffs and quantitative restrictions on trade between Member States. A tariffbarrier was raised against third countries, which in turn meant that the external trade policy would have to be a joint EEC affair. Additionally, the EEC Treaty demanded free movement of goods, labour, services, and, to some extent, capital

5

High politics is often defined as the policies that the top decision-makers see as most important to secure the further existence, cultural identity, and welfare of the country. During the Cold War high politics were usually considered to be synonymous with defence and security policy. After the Cold War it is possible that other forms of high politics will come to be regarded as more important in sustaining the over-all goals mentioned above. For instance, this could be environmental policy and trade policy. 6 In the EU there is a chaotic confusion of names referring to the same thing: The Treaty of Rome, the EEC Treaty and the European Common Market are synonymous. EC was previously short for the European Communities, the Community (the previous name for the EU in internal documents), and the European Community. Today, the EU is used as short for the European Union and as a collective designation of the three columns of the Treaties of the EU. 7 There is an almost biblical aspect to the comparison made by Noël : The ECSC-Treaty as the Old Testament’s Jewish rule based religion and the EEC-Treaty as the New Testament’s Christian framework religion.

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inside the EU. As a result, a need developed for some common regulations on standards for goods, unemployment insurances, acknowledgement of different educational systems, etc. Hence, in these areas functionalist spill-over was taking place as well. In relation to this, the establishment of the competition policy became important to secure free competition on a level playing field, which gave the Commission the opportunity to practise its competence to secure a competitive European business community (Majone 1996, Peters 1992). Additionally, a common agricultural policy and common transport policy had to be established. According to the Treaty, all this had to be achieved gradually in a period of twelve years (the transitional period) until 1 January 1970. As in the ECSC, a series of common institutions were established: a Court, a parliamentary Assembly, a Council of Ministers, and a Commission that all had to make decisions in accordance with the Treaties. The bedrock for the European Union was, in other words, laid by the European Coal and Steel Community on which subsequent European cooperation was modelled. Initially, the EEC Treaty was an indicator of negative integration, such as the removal of the obstacles for intra-community trade and economic cooperation between the Member States. Meanwhile, regulations on agricultural policy and trade policy in the EEC Treaty may be seen as positive integration, which entails the establishment of a co-ordinated, regulated and institutionalized community in these two policy areas. It is primarily positive integration between the Member States that has made the creation of a large EU administration necessary. Positive integration simply requires more political coordination, negotiations, and attainment of consensus, than negative integration.8 In November 1959, seven European countries (the UK, Denmark, Norway, Sweden, Switzerland, Austria, and Portugal) formed the European Free Trade Association (EFTA) as an alternative to the establishment of the EEC. The EFTA agreement came into effect in 1960 and involved free movement of industrial goods produced in the EFTA states, where as before the countries maintained different tariffs for imports from third countries. There was no attempt to establish an actual politically coordinated and institutionalized cooperation in the EFTA setting. In other words, positive integration was not existent in EFTA, and thus the EFTA administration has always been of quite a limited size. A common feature of the three traditional European Communities (ECSC, EEC and Euratom) is that they had as an official and fundamental goal to contribute to the creation of a unified Europe. This was expressed clearly in the preamble and in Article 2 of the initial EEC Treaty, where it is stipulated that the fundamental goals of the Treaty are “an ever closer union among the peoples

8

Cf. Wessels (1985, 13): “Already in the 60s, the administrative burdens were growing from dismantling trade barriers – the ‘negative integration’ – to constant policy management – ‘positive integration’, e.g. in the field of agricultural policy.”

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of Europe” and “closer relations between the states belonging to it”. This passage is altered in the Treaty on European Union, which is initiated with a series of common provisions for the Union (Articles 1–6). In these provisions, the goal of establishing a European Union is specified, and the Treaty itself is defined as marking a new phase in “the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizens” (Article 1). No matter what, this fundamental goal of the EU puts demands on the EU administration to act strategically in order to promote a certain direction of the integration process (Schmidt 2004). An equivalent is usually absent in proper international administrations.

4.2. The legal context: the treaties The legal traditions of the six original Member States have more similarities than differences. The three original Treaties that founded the European cooperation in the 1950s are based accordingly on Continental European law and especially the French legal tradition. The accession of new Member States has not changed the fact that the treaty basis of the EU as a product of Continental European legal traditions and similar to the French Code Civil is characterized by elastic provisions that leaves room for changing interpretations in the light of societal developments and the ongoing integration process. As a consequence, the European Court of Justice (ECJ or the Court) has been able to apply a French mode of interpretation. The ECJ has chosen to emphasize the preambles of the Treaties of the EU and has, accordingly, created the possibility of applying a purpose interpretation rather than a restrictive interpretation of the letter of the law. Consequently, pro-integrationist and strong antitrust rulings have been formally legitimated, even when it is difficult to find any legal basis in the Treaty. In other words, the provision has been stretched by a purpose interpretation and the ECJ has formally maintained this provision as a warranting legal basis while referring to the preambles’ provisions on the EU’s goals and means as a supplement. On the other hand, the bare existence of a detailed Treaty basis for economic European integration has strengthened both societal and formal legitimacy, as integration has happened in accordance with relatively clear legal rules of the game that at least formally apply equally to all the Member States. The Merger Treaty9 was signed in 1965. The Treaty entailed the establishment of a common Commission and a common Council of Ministers for all three of the communities: ECSC, EEC and Euratom (the Commission acquired the

9 The Merger Treaty – Treaty establishing a Single Council and a Single Commission of the European Communities.

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functions of the High Authority, mandated by the ECSC Treaty). Already before the signing of the Merger Treaty the European Parliament (previously referred to in the Treaties as the Assembly) and the ECJ were made common to the EEC, ECSC and Euratom. The Merger Treaty stipulates that the institutions retain the powers conferred on them by the three founding Treaties. This implies, for example, that the Commission’s powers in the relation to the coal and steel sectors as conferred on it by the ECSC Treaty were far more extensive than in relation to the policy areas covered by the EEC Treaty. Seen from an organizational perspective, the Merger Treaty was a result of the desire for a more unitary and ‘rational’ decision-making process as the institutional heterogeneity of the Treaties and provisions covering the European cooperation in itself contributed to a fragmented decision-making process. The founding Treaties of the EU have been amended on several occasions, in particular when new Member States acceded in 1973 (Denmark, Ireland, the United Kingdom), 1981 (Greece), 1986 (Spain, Portugal), 1995 (Austria, Finland, Sweden), and 2004 (Estonia, Latvia, Lithuania, Poland, the Czech Republic, the Slovak Republic, Hungary, Slovenia, Malta, and Cyprus). The amendments have often concerned rules relating to post-accession representation in the European institutions. The main principle in the Treaties of Accession is that, within a set deadline, any new Member State is to fully accept (and apply) the existing framework of EU legislation (the principle of acceptance of ‘acquis communautaire’). Most recently, the desire for the accession of a number of eastern and central European countries has served as an impetus for the Treaty of Nice and the Treaty establishing a Constitution for Europe that include amended provisions on the weighting of votes in the Council and representatives in the European Parliament per Member State. Two Treaties have amended the budget regulations in the three original Treaties, in 1970 and 1975 respectively. The Treaties also entailed conferring more powers on the European Parliament, which is also the case with the nonratified Constitutional Treaty. Additionally, several decisions made by the governments of the Member States have been incorporated in the Treaties. This was the case, for example, with the 1970 and 1985 decisions on the EC’s revenues and various decisions on the geographical location of the EU institutions. A 1976 decision on holding direct elections to the European Parliament has also been incorporated. Treaty incorporation entails that the legal acts may only be amended by ratification in the national parliaments of all Member States. However, it was not until the Single European Act from 1986 that a fundamental change was made to the EC’s treaty basis. The Single European Act introduced cooperation at two legal levels. The common foreign policy was introduced in the Treaty as a part of the EC, but it was also decided that the ECJ should not have competencies in relation to the foreign policy provisions. The

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cooperation under these provisions was generally more similar to a ‘normal’ intergovernmental cooperation, which was also reflected in the symptomatically weak and small EU administrations in the policy area. The Single European Act also meant a legally tightened re-introduction of the Common Market under a new name: the Internal Market, which was now planned to be in force by 1993. The implementation of the Internal Market was to happen by qualified majority voting in the Council of Ministers. In addition, one can argue that the launch of the Internal Market spawned a series of functional and political spillover effects that led to the 1992 Treaty of Maastricht (the EMU and CFSP) and the 1997 Treaty of Amsterdam (Nedergaard 1990, Tranholm-Mikkelsen 1991). The Treaty on the European Union was accordingly a continuation of the Single European Act. New areas were added to the European cooperation, but often beyond the reach of the ECJ, institutional changes were made, and the areas of cooperation in general were expanded. In addition, a French idea of an EU in three pillars was introduced as a framework: 1st pillar was the traditional and economically expanded EU-cooperation that slowly acquired some federal traits; 2nd pillar was the expanded but still rather limited cooperation under the heading of Common Foreign and Security Policy; and 3rd pillar was cooperation in the area of Justice and Home Affairs. The EC was thus the 1st pillar cooperation, which was based on the Treaty establishing a European Community, also called the EC Treaty or TEC. All three pillars were simultaneously based on the Treaty on the European Union, also known as the Maastricht Treaty or TEU. Both the TEC and the TEU were subsequently amended by the Treaties of Amsterdam and Nice. In the proposal for a Treaty establishing a Constitution for Europe (or the Constitutional Treaty), the three pillars are merged. In addition, the Charter on Fundamental Rights from the European Council’s 2000 meeting in Nice is introduced as a kind of Bill of Rights. The Constitutional Treaty was, moreover, intended to strengthen various organs by giving the EU’s Foreign and Security Policy a more unitary character, by, for example, institutionalizing a permanent presidency (and expanding the term from six months to two and a half years) and establishing an EU Minister of Foreign Affairs. Overall, one can argue that the connection between the Single European Act and the Treaty on the European Union is characterized by functional and political spill-overs from the mainly negative integration stipulated in the Single European Act to the mainly positive integration of the Treaty on the European Union. One can furthermore argue that the process was characterized by an overflow from the important goal of deregulation (in the Single European Acts) to the goal of re-regulation at EU-level (in the Treaty on the European Union). The accelerated positive integration resulted in a noteworthy growth in the EU administration and especially in the number of EU administrative tasks in the national administrations.

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The Treaty of Amsterdam and the Treaty of Nice that were enacted in 1999 and 2003 respectively are, from a technical perspective, revisions of the Treaty on European Union. The purpose of the amendments was to solve the unanswered questions of the Treaty on European Union,10 to address the Union’s unpopularity among the peoples of Europe, to increase decision-making capabilities, and to prepare the EU for the eastward enlargement with a considerable number of countries acceding. The Treaty of Amsterdam restructured the EU’s Treaties and the articles were renumbered. The changes were intended to make the Treaties more coherent and easier to read. The Constitutional Treaty from 2004 was in some ways meant to further simplify the complex EU legislative framework by merging the existing Treaties into one using the same principles and eliminating the pillar structure. The intended revision was the hitherto most extensive. In addition, the revisions occurred using the convention method with a relatively wide representation of social groups and political groupings, as the federalists often recommend. In 2005, however, the Constitutional Treaty was rejected in two referendums in France and the Netherlands.

4.3. The legal context: the legal acts EU-legislation passed by the Council of Ministers and the Commission can be issued as several different types of legal acts with different legal consequences. What kind of legal act is to be issued may usually be inferred from the warranting provisions in the Treaties. TEC Article 249 lists five different forms of legal acts: regulations, directives, decisions, recommendations, and opinions.11 Regulations are characterized by their direct and binding effect on Member States. They cannot be implemented into national law (and thus modified), as they immediately create rights and obligations for citizens and firms. In other words, regulations have legal effect in Member States after being adopted and announced in the Official Journal of the European Union. Regulations have general applicability as they take effect in the entire Union unless something else is explicitly specified. Regulations are for the most part used in areas with proper

10

‘Unanswered questions’ in former treaties are named ‘leftovers’ in the EU jargon. The yet un-ratified Constitutional Treaty introduces a simpler typology of Community instruments: 1) Legislative instruments: European laws and framework laws that are the new terms for regulations and directives. 2) Non-legislative instruments: regulations and decisions. A regulation concerns the implementation of legislative act, and a decision is a binding non-legislative act. 3) Non-mandatory instruments: opinions and recommendations; 4) Sui generis documents: conclusions of the European Council, Council guidelines and European Council strategic guidelines. 11

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common policies, such as the Common Agricultural Policy, fisheries policy, and transportation policy. Directives are legally binding just as regulations, but in the first instance only to the Member States, which are obligated to transpose the provisions of the directive into national law. The transposition is to happen before a set deadline. The transposition deadline may vary between one year and three years. A longer transposition deadline may be negotiated when the directive is up for adoption in the Council of Ministers. However, most often the deadline is 18 months. Directives are binding for the Member States but only obligate the Member States to a certain intended purpose, whereas the Member States are free to decide upon the means to be used for the attainment of this end. In other words, directives must be implemented by national measures – such as national legislation. The option of (a distinct) national implementation of EU directives may contribute to increasing societal legitimacy because Member States may, to a larger extent than with regulations, implement the directives in accordance with national procedures and tradition. However, increased national latitude may also be a weakness seen from a Union point of view, as Member States have often been slow in adopting the national measures that transpose the directive. The result has been numerous deadline transgressions. This results in a decrease in the formal legitimacy of the integration process as legal acts may in reality loose their intended uniform effect. The size of the transposition problem varies with the number of adopted directives. However, it is often specific Member States that are very slow in transposing directives according to the regularly published lists.12 The transposition phase makes considerable interpretation and redefinition possible, often guided by the Member State’s national interest. This gives national bureaucrats influence on the shape of EU regulation and makes implementation an autonomous element in the political game between authority actors in the EU (Peters 1992). This game has both winners and losers. The Italian Ministry for Agriculture has, for example, by a peculiar implementation of the 1984 milk quota system allowed Italian farmers to exceed their milk quotas without having to pay a super-levy. Seen from a theoretical perspective, the effect of the directives does not differ decisively from regular international agreements. In practise, however, a rapprochement between directives and national legislation has occurred. This may also be seen as the overall strategy the EU administration employs in order to attain the European Union’s basic goals. The rapprochement tendency has three causes. First, the very detailed and elaborate13 content of most directives often

12

Cf. the Commission’s “General Report on the Activities of the European Union” (various years). 13 In this case the recent criticisms of the EU’s pedantically detailed regulation on the one hand and the basic goals on the other contradict each other.

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necessitates an almost literal transposition into national law. Secondly, the practise of the ECJ gives citizens and firms the possibility of unconditionally referring to the exact wording of directive provisions in the national courts. Th irdly, national authorities are generally obliged to adapt their interpretation of national law to existing directives (Hix 2005, 121). As recognition of this tendency, the Constitutional Treaty renamed directives as framework laws. A decision is, in the same way as a regulation, immediately legally binding. Contrary to regulations, decisions do not have general applicability, but are instead directed at a defined circle of persons or firms or, possibly, a specific country. Decisions do create rights and obligations and may be used directly as legal references in national courts. Decisions are announced to the addressee and are only made public if the Council of Ministers and the European Parliament decide so in conjunction. The Commission issues decisions, for instance, when firms have breeched the EU’s competition rules or when it decides whether or not national subsidies are in accordance with the rules of the Treaty. Recommendations and opinions are non-binding legal acts. They are, however, assumed to be politically binding and have influence on the interpretation of the legally binding legal acts. There are no requirements concerning reasoning or disclosure. Normally, recommendations and opinions concern specific issues like energy conservation, pensions or employment policy. A growing part of the recommendations adopted by the Council of Ministers concern cooperation under the open method of coordination in the EU (section 4.5.). Council opinions are also non-binding and normally contain general guidelines for the EU policy. Finally, the Commission delivers opinions. Most often it is the intention that opinions are to be followed up by specific legal acts, such as, regulations, directives, or decisions. In practise, however, this is far from what always happens. Table 4.1. page 55 illustrates the quantitative dispersion and development of specific types of legal acts adopted by the Council of Ministers. It shows that a growing number of legal acts are adopted by the Council of Ministers each year. Simultaneously, changes have happened in the types of legal acts adopted. Most significantly the number of recommendations has risen, among other things, as a consequence of the introduction of the open method of coordination. The adoption of legal act in form of directives had furthermore has its peak periods, as when the Internal Market programme was introduced. ECJ rulings are also a very important source of EU law. The ECJ has the exclusive authority of interpreting EU law. It determines whether actions of Member States are in violation of obligations laid down in the Treaties, it decides upon the validity secondary legislation (regulations, directives and decisions), and it answers questions from the national courts concerning the interpretation and validity of EU law. The ECJ ’s decisions are binding and national courts must adhere to them. The decisions of the Court are announced continuously. In the areas covered by the EC Treaty (1st pillar), the EU has the status of a legal person, and accordingly may conclude agreements with third countries and international organizations. Negotiations are lead by the Commission and agree-

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Table 4.1. Legal acts adopted by the Council of Ministers, 1970–2004

Regulations Directives Decisions/ Recommendations

1970

1983

1987

1992

1994

1998

2004

249 25

395 41

458 40

383 162

274 46

202 27

181 46

71

108

125

189

148

199

221

Source: The Commission, General Report on the Activities of the European Union (various years).

ments are usually signed by the Council of Ministers after consultation with the European Parliament. Clear and unconditional provisions in such agreements may create rights and obligations for citizens and firms, which can be applicable in national courts. Agreements are announced in the Official Journal of the European Union. Finally, there are the conventions Member States have agreed upon with each other, which have the status of autonomous treaties. Conventions are used in areas not covered by the Treaties. This entails the possibility that the EU cooperation may expand beyond the limits of the Treaties if the Member States should wish to do so. EU regulations and decisions are, for one, characterized by having direct effect in the Member States. This means that regulations and decisions without delay enter into effect after being adopted by the EU and announced in the Official Journal of the European Union. Directives do not have direct effect as they are transposed into national law. However, if a Member State exceeds the specified deadline for transposition and if the directive contains specific and exact provisions that would improve the legal status of the citizens, it may be applied directly by the national courts. In this way directives, like regulations and decisions, have direct effect. Vagueness in the wording of directives is thus sometimes a reflection of a conscious weakening of their direct effect. That EU law was to have direct effect was not certain when the EU was established. However, a seemingly unsolvable problem arose in the van Gend en Loos legal case at a Dutch court, which triggered a request from the court for a preliminary ruling from the ECJ.14, 15 The Dutch court asked the ECJ whether Article 12

14 A preliminary ruling is a general and guiding statement on a legal matter the Court makes on request from a national court. 15 The case concerned the Dutch importer van Gend en Loos, which imported German goods to the Netherlands. The Benelux countries then concluded an agreement in their internal customs union on the re-classification of different types of goods. This had the effect that the goods that van Gend en Loos imported were removed from one position in the tariff system to another. Consequently, the toll increased from 3 per cent to 8 per cent. The importer therefore took legal action in the Dutch court in order to reduce the toll to

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in the EEC Treaty (which contained a ban on tariff increases) only entailed rights and obligations for the Member States or also entailed rights and obligations for citizens and firms in the Member States (Hix 2005, 121). In other words, the ECJ was asked whether it considered EU law as having an equal stance with other international treaties as a part of international law or as an independent and novel legal system. Several Member States supported the Netherlands in the former contention, but the ECJ concluded that the Treaties of the EU were not mere international agreements.16 The ECJ highlighted that the establishment of the Common Market affected all legal persons in the EU and made reference to the preamble and Article 177 of the EEC Treaty that presupposed that national courts could apply EU law.17 This lead the ECJ to the conclusion that EU citizens were also legal subjects: Independently of the legislation of Member States, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the community.

EU law is in other words similar to national law as it awards EU citizens with rights. The ruling brought the ECJ into a sensitive area. It was obvious that not all of the original six Member States intended that citizens should be able to draw upon Treaty provisions without the legal mediation of the Council of Ministers or the individual Member State. The ECJ in other words established a principle that could speed up the integration process more than the Council of Ministers wanted. The ECJ has often made use of this principle and established that several important provisions of the Treaties have direct effect. This applies to the articles on the free movement of goods (Article 28 and 30 of the EC Treaty), the prohibition on discrimination (Article 39, 43 and 49 in the EC Treaty) with regards to the free movement of labour, the right of free establishment and the free trade in services, the provisions concerning competition (Article 81 and 82 in the EC Treaty), and the rule on gender equality. The ECJ has subsequently expanded the principle so it, also applies, to some extent, to directives, which were traditionally not considered to have direct effect. If a directive is suitable for taking action before the national court, the ECJ has by referring the principle of ‘l’effet utile’ (the effectiveness of the EU law) made 3 per cent, arguing that the increase was in violation of the ban on tariffs increases, cf. article 12 of the EEC Treaty. 16 Case 26/62, Van Gend en Loos vs. Nederlandse Administratie des Belastingen, 5 February 1963. 17 Accordingly, the ECJ indirectly became a participant in the debate between intergovernmentalists and federalists concerning the legitimacy of the EU.

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it possible for citizens to refer directly to EC directives provided that they have not been before the transposition deadline or that the national authorities have altered the content of the directive during its transposition into national law. Already, in the first ruling on direct effect, the ECJ set up a series of conditions establishing when direct effect could be asserted; direct effect exists, when a provision establishes a clear and unconditional duty for Member States that in its implementation does not require any further measures on the part of the Member States or Community Institutions. Furthermore, the provision must not confer any discretion on national authorities. Whether or not these criteria are satisfied does to some extent depend on a concrete evaluation. The ECJ has on occasion surprised Member States by its willingness to stretch the direct effect of EU law. Thus, direct effect is currently the norm. Concerning direct effect, the ECJ has reached a conclusion opposite to what most Member States had originally envisaged when the EU Treaties were signed. The result has been a more efficient and thorough legal integration in the Union. The second important ruling in the establishment of the EU’s basic principles concerning the status of EU law was the 1964 ruling in the case Costa vs. ENEL.18 The case was another preliminary Article 234 ruling that settled the hitherto unsolved issue of how to rank national law in relation to the EEC Treaty. The background for the case was the nationalization of an Italian electric power plant in which Flaminio Costa owned shares. He contended that the nationalization was in violation with several of the provisions made in the EEC Treaty. Contrarily, the ECJ found that there was no conflict between Italian law and EU law and that the plant nationalization was thus not in violation of EU law.19 After this conclusion, the ECJ chose proceeding by issuing its view on the basic principles of the case. The Italian court had indicated that it would apply Italian law regardless of the outcome of the ECJ ruling. Provoked by this contention, the ECJ attached an obiter dictum20 that stated that in the case of a conflict between national law and EU law, EU law was to be applied (Hix 2005, 122–123).21 18

Case 6/64, Costa vs. ENEL, 15 July 1964. The ECJ has also in its later rulings shown a tendency to interpret national law and EU law as consistent, thereby avoiding conflicts. The court has, in other words, sought to ensure harmony between the actors with authority, i.e. the Member States. This is probably one of the reasons why the authority of the ECJ has not been questioned by the Member States. 20 An ‘obiter dictum’ is a legal expression for a legally redundant addition in a ruling by the judge as that the legal addendum does not concern the dispute in question. 21 The reasons made for the Costa-ruling concerning the primacy of the EU law is worth quoting in some length: By contrast with ordinary international treaties, the EEC Treaty has created its own legal order which, in the entry into force of the treaty, became an integral part of the legal orders of the Member States and which their courts are bound to apply. 19

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With the principle of legal supremacy, an important loophole in the Treaties was closed. The decision was perhaps not legally self-evident, but it was substantiated with reference to the special nature of EU law and the wording of specific articles. The motivation was distilled into being a question of the efficiency of EU law, and it was also emphasized that the legal basis would be endangered if it was made secondary to national law adopted at a later point in time (Gulmann 1978). Had the ECJ not chosen to follow a pro-integrationist line of thought, the subsequent rapid development of EU law had been impossible. Afterwards, the principle of legal supremacy has been accepted by the Member States of the EU, despite the politically epochal fact that it is created in the legal system and not by political agreement. A decisive question in this regard is whether the national courts recognize the principle, seeing that in the end it is the national courts that decide which law applies in the Member State. The tendency has been towards recognition of the principle by the supreme courts in the Member States. The principle is, however, still not recognized by courts in all Member States (e.g. not by the German Supreme Court).

4.4. The political context: EU’s institutions The tasks of the EU are divided between the Commission, the Council of Ministers (in short: the Council), the European Parliament, and the European Court of Justice (ECJ ). The division of powers diverges from the tri-partition of powers (executive, legislative and judicial), which is often emphasized as a political ideal for liberal democracies. The four main EU institutions are assisted by four auxiliary organs: the European Economic and Social Committee, the European Court of Auditors, the Committee of the Regions, and the EU Ombudsman. At the same time, the European Council and the EU Presidency play important roles in the decision-making process and may to some extent be

By creating a community of unlimited duration, having its own institutions, its own legal persona, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both nationals and themselves. The integration into the laws of each Member States state of provisions which derive from the Community and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal order accepted by them on a basis of reciprocity, such a measure therefore cannot be inconsistent with that legal order.

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characterized as autonomous intergovernmental institutions, even though they are often described in connection with the Council of Ministers. This quadripartite institutional structure results in a mix of the executive and legislative processes that also mix national and supranational elements. When the Treaties confer legislative powers on the EU, the powers are almost always placed with the Council of Ministers by itself or in cooperation with the European Parliament. The Commission solely has Treaty-conferred powers in individual areas such as the regulation of competition and certain parts of the Common Agricultural Policy. But most regulations and directives still bear the Commission’s signature as the Council of Ministers often authorizes the Commission to determine the necessary implementing rules. In regard to the legislative activity, the Council must follow certain rules of the game in its relationship with the Commission and the European Parliament. In most cases, the Council of Ministers must wait for proposals by the Commission, which holds the sole right of initiative. The Council and the European Parliament may, however, request a proposal from the Commission, and the Commission will most often comply with such a request. The Commission will rarely use its legislative monopoly on its initiative without having an expectation that the Council and the European Parliament will adopt the proposal. Such an expectation may be ascertained by the working groups and expert committees that assist in the preparation of proposals. The European Parliament has gained increased influence on the legislative powers of the Council with every of the most recent Treaty amendments, and it was intended to be put on an entirely equal footing with the Council in the Constitutional Treaty. However, the Treaties award no right of initiative to the European Parliament. Accordingly, the rules concerning the participation of the Commission and the European Parliament in legislative process do not change the fact that a significant part of the legislative power resides with the Council of Ministers. The key decisions on important legislative affairs are most often made by the governments and administrations of Member States. Executive power is far easier to locate than legislative power. Only in some clearly defined areas with regard to competition regulation is the administration of EU regulations placed in the Commission. National authorities administer the predominant part of the rules, and the main task of the Commission is to monitor their administration. In most areas, Member States have had difficulties accepting EU inspectors operating on their own. The Commission is thus normally dependent on the cooperation of the national administrations, which it also has to monitor. The Commission can also base its monitoring activities on possible complaints against the national administration’s implementation and enforcement of EU rules made by private parties. However, the Commission has a stronger standing in connection with subsidies made by the EU’s structural funds. In this area, the Commission has often referred to the ECJ ’s legal practice

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with the requirement of producing evidence of compliance with general rules before subsidies are paid. Besides the division of the legislative and executive powers, the judicial power has a central and surprisingly strong position within political system of the EU. The ECJ is the EU institution with the strongest federal traits. The activity of the ECJ is, however, limited to the competencies it has been conferred by the Treaties. Contrary to the Commission and the European Parliament, it may autonomously make binding decisions with effects on the Member States in its entire sphere of competence. As all other courts, the ECJ has no power of initiative. It only makes decisions in cases that are brought before it by other actors. Apparently, the circle of actors who may bring an action before the Court is narrowly defined. It consists of Member States, the Council, the Commission, and private citizens or companies that are immediately and directly affected by an EU legal act, which may mainly be asserted in the areas administered by the Commission, or when citizens or companies have suffered losses as a consequence of wrongdoings by the EU. The most significant difference between the ECJ and a federal court is that the ECJ has no direct access to the machinery that enforces the execution of and compliance with its rulings. If the Court makes a decision that must be executed by force, it has to happen in accordance with the administration of justice of the Member State in question. The EU has no ‘monopoly on the legitimate use of force’ (the often cited sentence from Max Weber). And the cooperation in Justice and Home Affairs (3rd pillar of the TEU) – including the creation of Europol – does not change this. The ECJ ’s lack of enforcement capabilities naturally entails the risk that the Court’s findings will only be complied with to a lesser degree. According to the political science literature based on Easton (Easton 1953), a political system is constituted by actions that have consequences for the adoption of authoritatively binding decisions in a society. A political system consists of structures, processes as well as culture, and a political system is constituted by the processes that lead to the adoption of authoritatively binding decisions. In order to be sustained, the Easton tradition claims that a political system requires support from the surrounding environment, that is to say a widely held feeling of belonging to the community. This feeling of belonging to the community is the very condition for the existence of societal legitimacy. In this regard, the political system accepts and adapts to the demands made by citizens. Demands are articulated and aggregated into the political system, in which demands are filtered. Finally, the political system is characterized by feedback and a certain degree of self-regulation in which the effeciency of the system plays a part in its survival. Several scholars have analysed the EU from the perspective of a political system (e.g. Hix 2005). Support for the EU political system is increased by symbols (i.e. the EU flag, the European Day on 9 May, the European hymn), solutions that satisfy the demands of citizens, and structural changes that give the political system as a whole a greater degree of legitimacy.

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Seen in a broader perspective, the political system of the EU is subject to many greater and minor changes through a series of interacting games. The first game is an internal game in the national arena. The second game takes place between the Member States and consists of the maximization of the national interest (‘the intergovernmental arena’). The third game is played by EU institutions in regards to maximising institutional influence on EU policies and institutional position in the EU polity. The fourth game is a bureaucratic game between the different General Directorates of EU’s administration that have autonomous policy interests and organizational cultures. An important characteristic of the EU’s administration concerns the delimitation of overall EU competencies. In this regard, the possibility of expanding the competencies of the EU is a defining feature that has significant effect on the area of operation of the administration and on the relations between national administrations and the EU’s administration. Contrary to federal states, the area of application of EU law is limited to areas as defined in Treaties of the Union. Article 7 of the EEC treaty stipulates, “Each institution shall act within the limits of the powers conferred upon it by this Treaty.”22 The Treaties of the EU are thus fundamentally different from national constitutions that most often confer the national legislative organs the power to make decisions in all areas. However, federal constitutions may also reserve certain areas for the constituent states. In other words, the activities of the Commission and the Council apparently build on a strict principle of legality as no organ may make decisions in areas that are not defined in the Treaties as within the jurisdiction of the Union. However, it does seem that the principle of legality is challenged by the stipulation of Article 308 of the EEC Treaty that contains an empowering provision that opens up the possibility of decision-making in areas that are not included in the Treaties. The wording of Article 308 is as follows: If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

From the time the EEC Treaty entered into force in 1958 until 2005, Article 308 has only been used in conjunction with other Treaty provisions (especially

22

Such provisions are explicitly repeated in the article on the Council of Ministers (Article 202) and the Commission (Article 211). In this regard, it is also relevant that the ECJ may declare the actions of the Council of Ministers and the Commission void if they involve violations of the EEC Treaty, according to Articles 230 and 231.

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Articles 2 and 3 of the TEC) to adopt around 900 legal acts. Since the EU Treaty entered into force in 1993, approximately 20 legal acts a year have been adopted based on Article 308. This amounts to roughly 0.5 per cent of the total amount of legal acts adopted based on Treaty provisions in this period. The group of legal acts adopted based on Article 308 has an extremely mixed composition both with regard to character and policy area. The legal acts cover both actual legislation (i.e. harmonization by directive and immediate lawmaking by regulations), the legal basis for expenditure (i.e. funds or aid for third countries), the establishment of organs and agencies (i.e. regarding the administration of programmes), the adoption of cross-cutting programmes, and the conclusion of international treaties. The application area for Article 308 covers a broad range of areas and measures that at the time of their adoption had no specific legal basis in the Treaties. During the continuous amendments of the Treaties, especially by the Single European Act and the Treaty of Maastricht, a more specific legal basis has often been provided for the policy areas that have been subsumed under Community policy by the application of article 308. Examples include the environment, education, culture, consumer protection, research, and industry. Since 1993, article 308 has especially been used in the areas of economic and technical cooperation with third countries other than the developing countries, the establishment of decentralized bodies and agencies, the energy sector, civil defence, tourism, supranational company forms, supranational intangible assets (i.e. EC-trademarks), budgetary discipline, the Euro (i.e. concerning counterfeit money), economic support for Member States, and signing of cooperation agreements with third countries and international organizations. One of the more spectacular uses of Article 308 is the December 2001 Council regulation concerning the freezing of assets that belong to terrorists and terrorist organizations, which was a follow-up on the UN Security Council resolutions made in the wake of the 9/11 terrorist attack. The 1992 Edinburgh European Council that confirms that the principle of the subsidiarity also applies to the use of Article 308 implies other limitations applicable to the use of Article 308 (Dinan 2005, 126–127). In the TEU, it was sought to specify the limits to the expansion of the EU’s authority. This happened by means of two general principles. First, the principle of the subsidiarity stipulates that the decision-making process must occur at the political level, which after all considerations is the optimal and most decentralized level. Secondly, the principle of proportionality stipulates that there must be a reasonable relationship between goals and the means employed to reach them.23

23

The principle of proportionality is different from the principle of legality as the principle of proportionality concerns the goals and means of Treaties of the EU, whereas the principle of legality stipulates that the EU must only issue rules if they are based on the Union’s Treaties.

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Accordingly, a EU legal act cannot set aside rules or involve the use of means that go further than necessary in order to reach the intended legal goal. The ECJ has used this principle for many years in the evaluation of the legality of the European Union’s legal documents.24 Contrary to the principle of legality, Article 308 involves a dilution of the legal constraints on the authority of the EU. In the political minefield between the principle of legality and the dilution of the principle, the principle of the subsidiarity has become a hotly debated political principle in the EU. In the latest amendments of the EU Treaties, provisions concerning the principle of the subsidiarity have been added. Two ‘schools’ exist in the debate of the principle of the subsidiarity. One school (comprising among others the northern Member States) considers the subsidiarity as a new and important principle for the vertical separation of powers in the future EU. The other school considers the subsidiarity as merely a loose concept that is not to have any significant influence on the organization of the political decision-making process, even though it has been incorporated in Treaties of the Union. However, both schools recognize that the debate on what to make of the principle of the subsidiarity may in itself have an autonomous influence on the competencies of the EU. One of the basic problems with the use of the principle of the subsidiarity as a principle for the separation of powers is that the concept is not interpreted uniformly across Europe; in the Protestant and individualistic North the concept is rendered as equivalent to proximity, ensuring, for example, a maximal proximity between the locus of power and the people. However, if one traces the origin of the concept, the subsidiarity originated as a Catholic term for the distribution of power between the centralized and decentralized levels of authority and was used sympathetically towards the centralisation of power. The principle of the subsidiarity was at first incorporated into the discourse on Treaties of the EU with Altiero Spinelli’s proposal for a EU Treaty made in the European Parliament in 1984. Spinelli used the concept following a suggestion by the Christian Democrats. Thus, in the original proposal the principle of the subsidiarity was intended to be a federal element of the Treaty. 25 Contrary to this view, the principle of the subsidiarity has also been considered as a sort of defence of the nation-state. The view is that the EU administration already today is overloaded. Subsidiarity is seen as a way to reduce the load. Additionally, in Germany there are constitutional ties based on an internal subsidiarity principle that secures a considerable amount of influence for the various ‘Länder’ and forces the German government to work for the same thing at the

24

See i.e. Case 122/78, 1979, and Case C-118/89, 1990–I. The principle of the subsidiarity is mentioned in the preamble of the early draft of Spinelli’s Union Treaty, but not in the Treaty text itself. One can argue that the principle of the subsidiarity undermines the perception that nation-states constitute the optimal level of decision-making in a range of areas. 25

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EU level. In other words, the principle of the subsidiarity is seen as a way to avoid the EU being perceived as a threat to the national independence.

4.5. The political context: EU’s decision-making procedures The Treaty of Rome was characterized by the European Commission gaining authority to make proposals and to run negotiations (namely in the legal area and on areas concerning external economic relationships), with the Council having decision-making authority and the European Parliament having consultation authority. The role of the European Parliament was gradually extended on the budget area (modifications in 1979 and 1975), on the legal area (the Single European Act) and in respect to external relationships the Maastricht Treaty. With the Single European Act, the European Parliament gained authority to approve treaties of accession and association agreements, which were extended to include some other international agreements as well with the Maastricht Treaty. With the Amsterdam Treaty, further steps were taken towards an extension of the European Parliament’s authority, since the co-decision procedure was simplified and extended to include new areas, and at the same time, the role of the European Parliament was strengthened in regards to the appointment of the European Commission. In the proposal for the Constitutional Treaty the European Parliament ranks equally with the Council on approximately 75 per cent of the areas in the Treaty that are decided on by the decision-making procedure (of co-decision) (Nedergaard 2004). Since the Amsterdam Treaty, the co-decision procedure is used in most areas under the Community Law while the cooperation procedure (which was introduced in the Maastricht Treaty) is limited to a few decisions regarding the Economic and Monetary Union. The consultation procedure is still in use in a series of special areas, such as those that demand unanimity in the Council. For instance, this is the case with taxation cases, spatial planning and administration of the water resources. Additionally, the Council makes decisions with qualified majority in a number of areas, such as in agricultural policy and competition policy using the consultation procedure. Meanwhile, in the Constitutional Treaty these last two policies were to be decided on with the co-decision procedure. Decisions on the Structural Funds and the Cohesion Fund are made with unanimity after a consultation procedure from the European Parliament. The consultation procedure is also used in reaching international agreements, when these agreements involve altering a legal document that has been enacted with the codecision procedure or when they have considerable budgetary consequences or create a special institutional frame. Finally, there is the notification system where the European Parliament is only informed about proposals that will be decided on in the Council. This decision-making procedure is used in some cases regarding the Economic and Monetary Union.

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When the European Commission poses a proposal for a EU legal document, the EU Treaties state which decision-making procedure is relevant. There are large differences between the different procedures in time-expenditure, complexity, and the number of involved parties. The 1996 Intergovernmental Conference had, among other things, an objective of simplifying the decision-making procedures and of reducing the number of procedures. In the legal area this objective is to some extent fulfilled. Meanwhile, there was still perceived to be a problem with the unanimity rule, which has been kept in a series of areas and in the fact that the European Parliament has only consultation rights in two important areas where the Council decide on legal documents by majority rule, namely on agricultural policy and competition policy. With the co-decision procedure agreements on a proposal can be reached at several levels. Accordingly, the procedure can be characterized as a continuous negotiation process starting with the Commission’s submitting of a proposal. In actuality, the discussions between the Council and the Parliament take place through informal contacts, technical meetings, and tripartite meetings in the Conciliation Committee managed by the Presidency. In this regard there has been not only a continuous and considerable increase in the number of proposals that are dealt with in the same procedure, but also the number of meetings and contacts at all levels has grown rapidly due to the procedure. The tripartite meetings (the so-called ‘trialogue’ meetings) between the Council, the Parliament and the Commission are the core of the continuous negotiation process. The trialogue form is used throughout the procedure at different levels (from the technical to the political level) to secure agreement and clarify unresolved questions in order to secure a rapid completion of the procedure, which demands that the readings in the Council and the Parliament run in parallel and with an intensive exchange of information. At the same time, the Council’s Presidency (section 7.1.3. page 145) must be ready to take extensive exploratory contacts to and negotiations with the Parliament.26 The tendency is that heavy cases continue to end up in the Conciliation Committee while less controversial cases are ended earlier in the process.27 Also, the Presidency’s level of ambition is significant in this connection since highly prioritized cases are sought pushed through rapidly. At the same time, the increasing importance of the co-decision procedure has resulted in a changing of the national EU-coordination procedure in some countries. 26 In principle, the Presidency obtains a mandate from the Council to do this, but in actual practise it takes place through Coreper. Additionally, in the negotiations it is important that the Parliament’s negotiators represent the expected final stands of the Parliament, to make sure that the negotiated results are actually supported by the majority of Parliament. 27 Today, about one fifth of the adoptions take place after the Parliament’s first reading of a proposal.

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Decisions in the EU are made outside of the supranational community as well. These are made based on the Treaty on European Union, Article 7, 11, 23, 24, 34, 48 and 49. These articles deal with regulations and procedures of a constitutional character and with the foreign and security policies (2nd pillar), the EU police cooperation, and the judicial cooperation in criminal cases (3rd pillar). These procedures are different from the procedures in the Treaty of Rome (1st pillar). An often-debated issue is the decision-making procedure regarding amendments of the Treaties (Article 48), which starts with a proposal submitted by a Member State or the Commission. The role of the Commission is to participate in the intergovernmental conference, while the role of the Parliament is to be consulted in advance of the intergovernmental conference. The Parliament is tied to the intergovernmental conference based on informal procedures. The decision to amend the treaties is made by a common agreement between the governments and is then presented to all Member States for ratification in accordance with their constitutions. The decision-making procedure of the Common Foreign and Security Policy in the EU (CFSP) is based on Article 23 in the Treaty on European Union, which is launched with a proposal submitted by a Member State or the Commission. The Council can approve a request for a common foreign policy strategy with unanimity, while the European Council must unanimously approve a decision on a common foreign policy strategy. Decisions on common foreign policy actions, common opinions, or other decisions based on a common strategy is made in the Council by qualified majority unless a Member State objects to it with referral to important national interests. In that case, the Council can by qualified majority request that the case is referred to the European Council and its composition of heads of state and government with the aim of a unanimous decision. Decisions on common opinions or actions that are not based on a common foreign policy strategy are made in the Council by unanimity. The role of the European Parliament in regard to foreign policy consists of regular notifications from the Presidency of the Council and consultations on the most important aspects and the fundamental decisions (in the inter-institutional agreement on financing of the CFSP, it is specified that this consultation must take place annually and be based on a document prepared by the Council). The decision-making procedure on the police and judicial cooperation based on Article 34 of the Treaty on European Unions is launched by a proposal being submitted by a Member State or the Commission. The opinion of the Parliament is presented at a consultation in advance of framework decisions, other decisions and conventions. At the same time, the Presidency and the Commission regularly inform the Parliament of work in this area. The Council reaches decisions unanimously. The Council can also reach decisions by qualified majority when it adopts measures for the implementation of

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already made decisions. Implementation measures for conventions are adopted in the Council by a majority of two-thirds of the contracting parties. The newest decision-making procedure of the EU is the open method of coordination. The open method of coordination has gained acceptance as an independent decision-making procedure in the later years. The first steps for this acceptance was taken with the European Council when it held its first meeting with employment as the main theme in November 1997 in Luxembourg just after the intergovernmental conference on the Treaty of Amsterdam. This method has since been applied to other policy areas. The objective of the Luxembourg intergovernmental conference was, among other things, to establish the content of the so-called employment chapter in the Treaty of Amsterdam. The Luxembourg process is hence the notation of the implementation of this chapter in the Treaty of Amsterdam, and it is at the same time the clearest example of the use of the open method of coordination so far. The Luxembourg process maintains that a common employment strategy is established and coordinated at the EU-level but that the actual implementation of the employment policy remains a national competence. At the European Council in Lisbon in 2000 it was decided to extend the use of the open method of coordination. That happened in connection to the agreement on the goal that Europe should be the world’s most dynamic knowledge economy by the year 2010. The argument was that if there should be any chance to fulfil the goal, what is needed is an EU where the Member States to a far wider extent coordinate policies and objectives on the employment, educational and social areas is needed (policy sectors where the EU does not, as a general rule, have a legal basis to adopt legislation). The open method of coordination has been gradually applied in educational policy, social policy (e.g. pensions and eldercare), and research policy since the Lisbon summit. It is characteristic that there is a close mutual connection between these policy areas and the employment and social policies that are already subject to the open method of coordination. In practise, this is reflected in a relatively close cooperation between the different committees and working groups that work with the open method of coordination in the different policy areas. Until now many Member States and the European Parliament have been supportive of the use of the open method of coordination, even though the method entails that the Parliament is excluded from the decision-making process.28 On

28 A possible solution to the problem of the exclusion of the European Parliament from the open method of coordination could be to give the European Parliament a role in overseeing that the recommendations given to the individual Member States in connection to the open method of coordination are followed by concrete action. For instance, a consultation procedure could be established where the Member States would answer to the European Parliament based on a written notification of how the recommendations had been followed through.

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the other hand, there are also forces that feel that an overextended use of the open method of coordination moves the EU too far in the direction of a traditional international cooperation. These forces are strengthened if the results of the open method of coordination in the form of recommendations for the Member States are not taken seriously and followed by action. At the same time, some criticize the use of the open method of coordination as a sophisticated way of subjecting policy areas outside of the legal basis of the EU Treaties to an EU decision-making procedure. Additionally, the open method of coordination has been criticized for being undemocratic since there are great differences in the extent of the governments’ and government officials’ inclusion of the interest groups and the regional and local authorities (or their representatives). There is a lack of inclusion even though the employment, social, and educational policies are the exact responsibility of non-central authorities in cooperation with relevant interest groups, for example. Hence, the question is whether the use of the open method of coordination in reality entails tighter centralizing. Finally, there has been a discussion about the learning effect of the open method of coordination. Mutual learning is to a wide extent the raison d’etre for the cooperation in the open method of coordination, but the evaluations of the learning effects has varied considerably from large and important effects ( Jacobsson 2003) to relatively small effects (Casey and Gold 2004, Alessina and Perotti 2004). Meanwhile, the question is if the latter evaluation underestimates the learning effects of the open method of coordination since it does not take into account the changes in the employment policy discourse and the argumentative logic that follows from the use of the open method of coordination (Nedergaard 2005). From a network-perspective, the open method of coordination is by all accounts more network promoting than under the traditional decision-making procedure, (section 2.1 page 8). This is related to the fact that the open method of coordination entails an intensification of the EU’s meeting activities among the bureaucrats, that this meeting activity, to a wider extent, is turned in a solely professional direction and that new areas are included that are often outside of what can be managed by bureaucrats in the international sections.

4.6. EU’s Context and the implication for the EU administration The EU’s history has been characterized by a dynamic process where positive and negative integration have mutually strengthened each other. Th e result is a closely regulated and institutionalized European Union, which has in turn resulted in a considerable administration at the EU level as well as in the Member States. The institutionalized community of the EU was one of the objectives of the founding fathers with the ECSC Treaty and the European Economic Community.

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The EU’s development has given the EU’s administration good possibilities to increase its influence. This is related to the EU’s administration being forced to take on a strategy of the EU’s development towards a more integrated Union. In other words, unlike other international administrations, the EU’s administration (the Commission) has to formulate policies. This means that the European Commission as the EU’s primary administration has certain built in contrasts between the administrative functions and the programmatic functions, where pro-integrationist strategies for the further development of the EU are to be formulated. Put differently, the inherent demand that the EU’s development should go in a certain direction makes the political goals of extended assignments part of the official goals. This phenomenon is not similar to any other international cooperation forum. In this process, the Commission’s fulfilling of certain groups’ wishes is less dubious than it would have been at the national level, since this interest-maintenance can be characterized as a strategic furtherance of integration. In other words, being captured by certain interests has at times been an acceptable strategy for the EU’s administration when its fundamental objectives are taken into consideration. On the other hand, the EU’s administration risks losing societal legitimacy faster than national administrations that function as neutral, ‘Weberian’ administrations. In the end, this may limit efficiency in the EU’s administration and obstruct an expansion of assignments. In other words, it is continuously important for players inside and surrounding the EU’s administration to find a balance between playing a political pro-integrationist role and acting as a neutral administration. The Treaties of the EU are characterized by vague and elastic provisions that the ECJ has been willing to stretch and bend in accordance with societal developments and the progressing integration process. Moreover, the evolution of the Treaties of the EU has been marked by a certain ‘treaty incrementalism’ in which the continuous changes made to the Treaties have altered and strengthened the legal basis of the Union. The Treaty establishing a Constitution for Europe was furthermore intended to provide a constitutional basis to the Union in a way that has never been attempted before in any intergovernmental cooperation. Overall, the treaty basis of the EU is important if one wishes to understand the strength of the Union as well as the demand made on new Member States requiring them to implement the ‘acquis communautaire’. The Treaties are, from the perspective of organizational theory, a strong frame of reference for the decision-making process of the EU, and they make it better defined and less atomized than is often seen in conventional international organizations. In other words, the Treaties make the EU better equipped to pursue organizational goals than regular international organizations. Furthermore, the Treaties provide the EU with institutions that have distinct portfolios of assignments and decision-making procedures that constrain the behaviour of actors, yet meanwhile they are institutions with independent interests and autonomous organizational memories, as intended by the Union’s founders.

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The Treaties of the EU are thus uniquely aimed at increasing the autonomy and self-control of the supranational institutions. A significant part of the relative success of the EU may be ascribed to this fact. The principle of supremacy and the principle of direct effect are today widely accepted, even though neither of the principles are self-evident consequences of the EU’s founding Treaties. A very wide interpretation as to the purpose on the part of the ECJ has led the way for a pro-integrationist policy. The two principles have stabilized the legal status of the Commission and its clients. The clients have been informed about what they can rely on in case of conflict. Additionally, the principles have made the administrative hierarchy of the EU clearer cut, as the EU’s administration is now superior to national administrations in a legal sense. The most important reason for the hierarchy has been the efficiency of EU law. The principles of EU law’s direct effect and supremacy constitute a supranational trait in the EU. Thus, the Union has a legal order that is somewhat similar to that of federal states (albeit federal states do not face the same restrictions on the exercise of their competencies). In other words, the legal order that has been established by the ECJ, has, to a significant degree, removed the internal affairs of the EU from the state of anarchy, which normally characterizes the interaction between states in the international system. The character of the legal order has a decisive influence on the relations between national administrations and the EU’s administration, even though the supranational legal order has in no way succeeded in removing all the traits of an international administration from the EU’s administration. This is partly because of the constraints on the EU’s competencies and that the transposition of directives into national law depends on the national administrations. The development is, furthermore, not irreversible. Authority actors may regain some of the authority ‘lost’ in the implementation stage. This possibility would be strengthened by an increased use of framework directives. Additionally, the EU’s large output of regulation (as pointed out by Majone 1996) is in reality an expression of the EU’s limited resources, as actors not having resources to solve the problems by means of economic funding (economic support, subsidies, redistribution, etc.) will be tempted to proceed by means of regulation. This may have the effect that the legal system of the EU is overburdened with ensuing negative consequences for the efficiency of the EU administration as well as the societal legitimacy of the EU on account of excessive regulation. As mentioned, the quadripartite institutional structure of the EU entails a merging of legislative and executive processes and a mixing of supranational and national elements. This increases the tendency of institutional power struggles in the EU relative to the situation in Member States. The structure also entails a tendency for the administration to become both complex and alternately strong or weak depending on the Union’s current integration dynamic. On the other hand, however, the institutional structure of the EU is far more stable than normally seen in international organizations.

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Additionally, the EU becomes extraordinarily dependent on the surroundings of the administration, as is also the case with traditional international organizations. However, contrary to traditional international organizations, the EU’s administration has both a firm legal basis in the Treaties and the possibility of expanding this basis by using Article 308. The principle of the subsidiarity has been highlighted as a means for deciding whether a question should be decided by Member States or at the EU level. However, the big question is if this principle in fact entails a delimitation of the Union’s sphere of competence as long as the actual content of the concept is unspecified. In practice, it is likely that the principle of the subsidiarity will not significantly constrain the actions of the EU or the EU’s administration. Last, but not least, the positions and influence of the EU institutions varies to a large degree depending on their formal position in the decision-making procedure.

Part II

Administration and Institutions of the European Union

Chapter Five

Staffing the EU institutions Chapter 5 is the introduction to the remaining chapters in the second part of the book. The chapter provides readers with an overall perspective on the EU administration regarding recruitment and classification of staff (section 5.1), the recruitment of Eurocrats for the EU’s administration (section 5.2), the career prospects for Eurocrats (section 5.3), the staff regulations of the EU (section 5.4), and the remuneration of EU officials (section 5.5).

5.1. The staff of the EU’s administration: The Eurocrats and the rest As illustrated in table 5.1 the European Commission has by far the greatest number of employees among the institutions of the EU. The General Secretariat of the Council of Ministers, the European Parliament, the European Economic and Social Committee, and the Committee of the Regions have in total fewer employees than the Commission. It is obvious that the unique position of the Commission in decision-making in the EU is also reflected in staff levels.

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Year/ Parliament Employees 1970 1980 1990 1995 1999 2003 2003 2006

532 2,573 3,482 4,091 4,575 4,960 4,960 4,883

Council of Commission European Ministers Court of Justice 618 1,599 2,185 2,464 2,621 2,919 2,919 3,393

7,801 11,947 16,720 20,383 22,631 22,534 22,534 23,910

114 363 752 950 961 1,140 1,140 1,346

Others

In sum

170 599 880 1,219 1,289 1,382 1,382 1,762

9,235 17,080 24,018 29,107 32,077 32,935 32,935 35,293

* The Committee of the Regions is included from 1994 onwards. The Court of Auditors was established in 1977, and formerly Commission staff performed auditing. Source: The EU Information Centre of the Danish Parliament.

The number of positions in the Secretariat of the European Parliament grew considerably from 1968 to 1981 (approximately 14 per cent per year), where afterwards the growth noticeably subsided. The General Secretariat of the Council of Ministers grew in connection with the first enlargement of the EU with the addition of the UK, Ireland, and Denmark in 1973. Hereafter, the growth rate has been rather stable despite further enlargements of the EU. The initial high growth is because the first enlargement meant an increase in the number of official languages by 50 per cent (from four to six), which had major implications for the number of interpreters. Growth in the Commission’s staff funding was close to constant in the period leading to the mid-1990s and was only, to a limited extent, affected by the enlargements beginning in 1973. Henceforth, the growth in the number of staff has been modest. However, the statistics do not show the effect of the large enlargement spurred by that of 1 May 2004. The permanent employees in the Commission who are in charge of administration on a daily basis are often referred to as Eurocrats1 or functionnaires and work in Brussels (and in some departments in Luxembourg ), but, in addition, there are staff at centres of research (3,672 in 2004), press and information offices (536 in 2004), and the EU’s missions in third countries. The staff of the EU has traditionally been grouped into four categories (A, B, C, and D). These categories were changed in connection with the May 2004 reform of EU staff regulations. However, the traditional categories are described in this section as they form the basis for staff statistics in 2006. In the following section, the new categories are presented.2 1

A term for Commission officials first coined by Altiero Spinelli (1967). The reform of the EU’s staff regulations is implemented from 1 May 2004 to 1 May 2006. In the transitional phase, temporary categories were used. 2

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Staff that carry out service-oriented tasks are grouped in category D under the old system (office messengers, drivers, and workshop employees). Staff that function as secretaries, archive organizers, or do similar clerical work are grouped in category C. Non-academic staff who review cases are grouped in category B. Category A is academic staff who are the Eurocrats in a narrow sense.3 They perform management, planning, and investigative tasks within the institution’s area of competence. There is, moreover, a special sub-category LA, which is the A-category for academically trained interpreters and translators. However, following a ruling by the Court, staff in all categories, in a legal sense, are regarded as EU officials (Coombes 1970, 149). Table 5.2. Traditional staff categories in the EU Category

Tasks

A LA B C D

Academic staff, i.e. the Eurocrats in a narrow sense Academically trained interpreters and translators Non-academic staff that review cases Staff that perform clerical tasks Staff that perform services

Source: Author’s own representation.

The distribution of staff between categories is not the same in the different institutions of the EU, as can be gathered from table 5.3. page 77, which illustrates the distribution between positions in the different institutions of the EU in percentages. Table 5.3. Categories of staff in percentages and absolute numbers in 2006*

European Parliament Council of Ministers The Commission In sum

A

B

C

D

42 per cent/ 2049 42 per cent / 1409 49 per cent / 11674 47 per cent / 15.132

17 per cent/ 825 11 per cent / 368 21 per cent / 5034 19 per cent / 6227

39 per cent / 1900 45 per cent / 1554 28 per cent / 6739 32 per cent / 10193

2 per cent / 108 2 per cent / 63 2 per cent / 463 2 per cent / 634

* Other institutions are not included in this table, cf. table 5.1. Source: The Commission, Budget Proposal 2006.

3 Michelmann on category A staff (1978b, 23): “These officials are the administrative elite entrusted with what is referred to in French as ‘conception’, a concept that is perhaps best translated as ‘creative thinking’, as this is contrasted with more routine, administrative tasks.”

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The internal distribution of staff categories also reflects the distribution of tasks between institutions. The General Secretariat of the Council of Ministers in Brussels is perceived as a centre for multi-lingual conferences that draws the most important actors from administrations in national capitals. This implies a relatively extensive use of secretaries, interpreters, and translators. Several Member States have questioned whether the institutions have adjusted their staff to the new opportunities for rationalization (especially in category C) that came with the more widespread use of IT. However, any such rationalization is bound to be more difficult in the EU than at the national level as Member States will try to obstruct any rationalization that would affect its employed nationals. Furthermore, there has been a significant reduction in category C staff in the last decade. In connection with the administrative reform of 2004 resulting from the Commission’s White Paper from 2000, the categories of staff and grades of remuneration have been altered (Kassim 2004, 46). The basic staff categories have been reduced from four (A, B, C, and D) to two (AST and AD), whereas the system of remuneration has been changed to 16 grades, each containing 5 steps (section 5.5, table 5.5). AST replaces the C and B categories and contains assistant staff and the remuneration grades 1–11. AD replaces the A and LA categories and contains administrative staff and the remuneration grades 5 to 16. Heads of units are in remuneration grades 9 to 14,4 while ‘Directors’ and ‘Directors General’ are in the 14/15 and 15/16 remuneration grades, respectively. New Eurocrats are typically employed as Heads of section and are placed in a grade between 5 and 8 depending on qualifications. Finally, category D is replaced by a new group of contract employees who are placed in remuneration grades in the new AST category. The categories of staff before and after the staff reform are compared in table 5.4. According to the Commission’s plan, the reform was to be phased in from 1 May 2004 to 1 May 2006.5 A goal for the reform is to change the career structure for the EU’s employees. The former career system has been much criticized on the grounds that it offered too few and inflexible opportunities for promotion. The new system awards both

4 There are two sub-groupings for Heads of department: 9–12 are Heads of department, while 13–14 are Heads of department in mid-level management. It requires more practical and theoretical experience to be promoted to Head of department in mid-level management. 5 In the transitional phase the old categories are given new temporary names. For instance, the A and LA are designated as follows in the transitional phase; A1 = A*16, A2 = A*15, A3/LA3 = A*14, A4/LA4 = A* 12, A5/LA5 = A*11, A6/LA6 = A*10 A7/ LA7 = A*8, A8/LA8 = A*7.

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Table 5.4. Categories of staff before and after the staff reform Former category

New category

Groups of staff

A and LA

AD

B and C

AST

D

Phased out

Administrators: 14–16: Directors 9–14: Heads of department 5–8: Newly hired (Heads of section and consultants) Assistants (typically clerks) Tasks performed by contract employees (outsourcing)

Source: Author’s own representation.

seniority and merits, both having more steps on the remuneration scale making wage variation greater (Peterson 2004b, Kassim 2004). The starting salary for employees in the EU has been lowered, but the aggregate lifetime salary has been calculated to remain the same (see further details in section 5.3.).6

5.2. Recruitment of Eurocrats The recruitment of Eurocrats in AD 5–8 positions usually happens by a preemployment test (also known as the concours), which is held in all Member States. If an applicant passes, he or she is put on a ‘reserve list’. After making the ‘reserve list’ an appointment for a position may call for prerequisites including as much as two years of education, work experience, nationality,7 personal connections,8 and the interview.

6

Among 563 top Eurocrats, only 2 per cent were women in 1990 (The Economist, 7 April 1990). This percentage has slowly increased during the 1990s, and when Neil Kinnock was appointed as the Commissioner responsible for staff, a strategy was drafted specifically for increasing the proportion of female leaders in the Commission. On 8 February 2002, a press release by Neil Kinnock stated, “The Commission’s aim is to double the representation of women in senior management posts (A1 and A2) by the end of its mandate (this means appointing 22 women to these grades by December 2004).” In 2004, the percentage of women in top positions A1/A2 had increased to 15 (cf. memo for Neil Kinnock, Targets for recruitment and appointment of women 2004, 11 June 2004). The goal of having more women among the ranks of EU officials seems now to be even higher on the agenda. 7 In principle, the nationality of an applicant must not be taken into account in accordance with the EU’s principle of non-discrimination. 8 The contention that personal connections matter for recruitment to the Commission

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The selection process for a position as a generalist (i.e. AD 5–8) is very lengthy compared to most national standards. The formal demands of the pre-employment test are that the applicant must have a university degree, a thorough knowledge of at least one of the official languages of the EU, and possess adequate knowledge of one additional official language. The process of selection is initiated with a multiple-choice test in several disciplines (History, European integration, International economy, Arithmetic, Geography, Logic, etc.) and a multiple-choice test in another language per the preference of the applicant.9 Several months later a written test ensues in which the applicant’s abilities in general presentation and case-reviewing are tested. At the same time, the applicant’s comprehension of the second official language is tested. The selection process concludes with a verbal test, carried out in both the primary and secondary official languages. Some regard this extensive selection process as a legacy from the administrations of the Napoleonic age (The European, 1 April 1994). However, the high degree of intended objectivity may also be regarded as necessary in order not to diminish the societal legitimacy of the administration of the EU. It usually takes a year for an applicant to pass the selection process described above.10 Hereafter the applicant is placed on the reserve list from which the institution recruits. The reserve list has been made public with the names of reserves appearing in alphabetical order since 1999 following pressure from the Ombudsman of the EU. Eventhough an applicant may make it to the list, he or she may have to wait a long time before a position becomes available, and there is no guarantee of this occurring. Approximately 70 per cent of the persons on the reserve list are even-

and other EU institutions is sensitive and was the subject of an inquiry by the Committee of Independent Experts in 1999. Examples under scrutiny were the hiring of a good friend of former Commissioner Edith Cresson, the wife of former Commissioner Marin, and the brother-in-law of former Commissioner Pinheiro. The first findings of the Committee strongly criticized Cresson (‘a clear case of favouritism’), as the hiring of Cresson’s good friend on a contract as an external consultant turned out to be factitious. The two other Commissioners escaped criticism. However, the Committee found that it would have been more sensible if Pinheiro had not hired his brother-in-law. 9 The multiple-choice test is objective from a formal perspective as it puts everyone on equal footing. However, The European reported (1 April 1994) that the December 1993 test was marked by attempted cheating: “Last December’s exam has become a standing joke, with widespread stories of cribbing and cheating. Officials are investigating how 30odd Italians managed to achieve full marks in the notoriously tricky multiple-choice paper. Some contestants even used mobile telephones to communicate with better-read accomplices outside the examination room.” 10 On average, one out of 30 applicants passes. But for the A and LA positions, the proportion falls to one out of 40.

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tually given a position, but it remains uncertain if non-employment is primarily an indicator for candidates who no longer seek positions in the EU because they have gotten other jobs or sluggish demand on behalf of EU institutions. The Commission sometimes claims that recruitment is difficult especially from the wealthier countries in Northern Europe. It is furthermore claimed that low relative wage levels in the EU were a considerable part of the problem. Every Member State attests that it should be attractive for its citizens to work in the institutions of the EU, but most of the interest is focused on the group of category-A employees (Kassim 2004, 99). However, most Member States disagree with the Commission’s analysis. Many countries doubt the existence of any real recruitment problems. They point to the fact that 55,000 applicants in 1994 and 31,000 applicants in 1998 were received for the pre-employment tests for generalists with a background in the social sciences.11 (Second report on Reform of the Commission, 10 September 1999, § 6.5.4.). It is certain that a whole string of additional factors, besides salary, motivate applicants. For instance, career prospects, work tasks, the reputation of EU institutions, the organizational culture, housing conditions, options for children’s schooling and upbringing, and alternative positions at the national level are all contributing factors. The salary may compensate economically when a partner may be unable to find a job in Brussels, but that does not necessarily imply that the party in question is willing to abandon his or her job and career prospects. The multiple-choice test is furthermore alien to applicants from some Member States, and it seems that this particular type of testing is also gender biased, as a smaller percentage of women than men complete the test. As applicants who pass the concours may have to wait several years from their initial application to the job offer, the motivating factor for applying may have disappeared, the applicant may have settled down and found a job-change challenging due to family obligations, or he or she may have embarked on a different career path.

11 The Committee of Independent Experts on the number of applicants: “Proper and efficient management of open competitions with such a large number of candidates is, effectively, impossible: organisation becomes a huge problem; the duration of the procedures places an unacceptable burden on the institution; the financial cost is too high; and it is almost impossible to ensure that the proceedings are above board. The fact that the second open competition referred to above had to be cancelled following the discovery of irregularities merely serves to confirm the extent of such problems. Furthermore, selection cannot be carried out with due care and effectiveness in the presence of such a large number of candidates. The selection procedure, which is conducted by fairly diverse and heterogeneous selection boards, assisted by a large number of assessors, sometimes inadequately qualified, results in relatively effective recruitment. The primary aim of the procedure appears to have become the mass elimination of candidates so as to reduce numbers, rather than the proper selection of those candidates with the skills required by the institution.” (Second report, 1999, § 6.5.5. and 6.5.6.).

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The United Kingdom has complained that the pre-employment test favours specialists with a degree in Economics or Law,12 which is in accordance with the administrative traditions of Continental Europe.13 As a result, Member States with a tradition for hiring generalists, such as the UK and the Nordic countries, are in a poor position in regards to getting nationals hired in the EU.14 The EU’s tradition of hiring specialists instead of generalists may also lead to a larger perceived need for strong structuring of the administrative work. On the other hand, the EU acquires technical expertise by hiring specialists, which is an important element for a well functioning political bureaucracy (section 3.6.). The selection procedures have furthermore been modified in the last couple of years in order to recruit more generalists.

5.3. Career service Promotions of AD employees to grade AD 14 in the Commission have traditionally been made by a system that combines seniority with the results of the evaluation reports (regarding qualifications, efforts, and behaviour), which each superior official must complete on every subordinate employee at least every second year. When promoting in other circumstances, other factors may also be included, “such as information relating to their administrative and personal position” (Second report, 10 September 1999, § 6.5.32.). As such, there is considerable discretion in determining whom should be promoted and when.15 In an overall perspective, most Eurocrats’ careers proceed by 5 or 6 remuneration

12 The Committee of Independent Experts points to another bias: The selection method favours applicants from some Member States where “the desire to pursue an international career is more prevalent and the necessary training structures better developed in some countries than others, and this is reflected in the results.” (Second report, 1999, § 6.5.7.). 13 Based on a survey of a sample of directorates, Michelmann (1978b) found that almost half of AD staff had a degree in Law or Economics (including Business Administration). 7 per cent had a degree in Political Science. The prevalent previous professional experience was in public administration or private business. Lower level positions in the EU are in principle allocated by the same criteria as in the national administrations of Member States, as national administrations also quite often use pre-employment tests for recruitment for positions on these levels. 14 Cf. The European (1 April 1994): The EU’s recruitment procedure “has proved particularly impenetrable for applicants from the EU’s northern fringe and educational systems, like those in Britain, which tend to turn out generalists with poor language skills.” 15 In the words of the Committee of Independent Experts, “The end result . . . is that the promotions system is not – or, at least, is not seen to be – fair and reliable.” (Second report, 1999, § 6.5.39).

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grades (from AD 5–8 to AD 12–14), which takes 20–25 years. On average, a Eurocrat reaches the position of Head of unit in an age of 50–55 years with the intention to stay in this position for a number of years (Second report, 10 September 1999, § 6.3.28). Recruitment for most senior positions (AD 16, AD 15, and partly AD 14) has traditionally been carried out according to national and political criteria and perhaps after a career in a national administration, an organization, or a public corporation, as is often the case for international administrations.16 However, since the reforms in 2000 almost all senior posts have been obtained from people from the Commission or from national administrations in the new Member States. These appointments usually make it to the agenda of commissioners. On the other hand, the procedure is only in writing as regards the commissioners when it comes to AD 13 and lower categories of staff. The possibility of introducing persons from outside the EU has been retained as an option in the 2004 staff reform when it comes to positions in the AD 14, AD 15, and AD 16 categories.17 In earlier years appointments to top posts often involved bringing people in from outside the Commission: Appointments at A3 [now AD 14, author] are frequently influenced by political or geographical considerations, and at this level staff inevitably have to be recruited from outside. As there are no special rules like those for Grades A1 [now AD 16, author] and A2 [now AD 15, author], these recruitments are made by devious procedures, such as the appointee being brought in on a temporary contract and subsequently established as a full official by means of an internal competition. Therefore, because of his or her special experience he or she is sure of being successful. A similar procedure also operates for appointments of outsiders at A5/A4 [now AD 11–AD 13, author], which has a generally disruptive effect on career perspectives. These purely formal competitions – the so-called ‘rigged competitions’ – are understandably unpopular with staff ; and they do not even provide a guarantee that the Commission will select the best possible candidate. (Spierenburg report, 1979: § 104).

However, during the last ten years almost all senior posts have been filled with people from the Commission or from new Member States. The recent staff reform aimed at reducing automatic processes in promotions and, in some cases, remuneration and strengthening Weberian meritocracy in the EU. The background has been the charges of nepotism and corruption, for example, in the Commission and its bureaucracy that were brought to light in con-

16

The French term for bureaucrats who are placed directly in the Commission from national administrations is tellingly ‘parachutistes’. 17 On the other hand, these positions offer less job security.

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nection with the resignation of the Commission in the spring of 1999 (Peterson 2004b, Kassim 2004). Traditionally, staff organisations and trade unions have been active parties aiming at creating the most classical career system as possible in the administration of the EU (Coombes 1970, 163). The main reason is that current employees thereby achieve enhanced career prospects. At the same time, however, staff organizations were in opposition to Neil Kinnock’s reform proposals from 2000 onwards as they were seen in certain areas as an elimination of already acquired rights (Kassim 2004, 37–38).18 Previously, the special procedures for appointments caused many EU careers to hit a glass ceiling at the A4 (post-reform AD 12) level, that is, before the person in question had obtained a proper career position. All in all, the prospects of a management position in the EU’s administration were bleaker than in most national administrations. In relation to the 2004 career system reform, there has been an attempt at breaking the glass ceiling by underlining that bureaucrats at the AD 12–13 levels may obtain a promotion to AD 14 if they yield an ‘outstanding level of performance’. In practice, a rough estimate is that 20 per cent of administrators may reach AD 14 (Commission 2002). As such, the glass ceiling has to some extent been removed. The fact that only 20 per cent of the Eurocrats obtain senior posts is similar to the chances for promotion in many national administrations. According to an internal survey in the Commission, Eurocrats rate good connections, preferably to the Director General or the Cabinet, as the most important criterion for promotion even though they seem to be of declining importance. Abilities and work experiences come second to connections.19 The significance of informal groups in promotions is disliked among employees: “Handsome pay does not stop Eurocrats from grumbling. They dislike the Byzantine subtleties of the promotion system. Prospects depend on the ability to win friends in the many circles – national, party political, personal, even religious – that can influence appointments.” (The Economist, 7 April 1990).20 Once, a newly appointed Head of department thus dismissed the congratulations from a colleague with the remark, “Besides my qualifications for the job, I’m also French, Socialist, Jewish and a freemason.” (The Economist, 20 March 1993). The European (15 April 1994) once expressed it differently: “career progression

18

Alan Hick, the president of academic staff in the Commission, has referred to them as ‘Thatcherites’ (European Voice, 12–18 April 2001). He is right in a theoretical perspective as the administrative reforms of the Commission were inspired by the ‘Niskanen’ model of bureaucracy in rational choice theory, cf. section 2.1., page 8. 19 Information by Anders Buch Kristensen, former Head of Department, Permanent Representation of Denmark to the European Union. 20 The headline of The Economist’s article was ‘Oh, to be a Eurocrat’ (The Economist, April 7, 1990, page 61).

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depends as much on knowing how to use well-connected colleagues, or pistons, as on ability.” There is apparently a North-South cleavage in administrative cultures in the EU when it comes to the degree of acceptability of performing the necessary selfpromotion in order to further one’s career: “North European officials, with their tradition of self-effacement, sometimes complain that southerners who draw attention to themselves get unfairly promoted. There is no doubt that those who lobby on their own behalf do better than those who just hope someone notices them.” (The Economist, 7 April 1990). Consequently, it is perceived as completely comprehensible in the administration of the EU if one’s failure to be promoted to a management position can be explained with reference to the wrong nationality, the wrong political sympathies, or lack of the right connections when the appointment was made. Conversely, it is extremely difficult to dismiss Eurocrats on the grounds of incompetence due to the nationality-based regime of appointments. In this event, the person in question would probably appeal to the nationality-based network and claim to be discriminated on the basis of nationality. Therefore, managers have usually given up in advance on dismissals even in flagrant cases, where an employee in a national administration would clearly have been dismissed.21 As a result, there are a proportion of employees in the EU’s administration who only do a minimum of work (so-called ‘dead wood’). However, the proportion is likely to be much larger in proper international administrations. Most recent reforms of the staff regulations of the EU have sought to end the much-criticized procedure for promotions. Previously, it was a promotion committee in the top management of each DG, which every year produced a short list of names on the basis of recommendations from departments from which the central staff administration promoted employees to a limited number of available positions. However, a criterion that demanded that persons had been employed at each step for at least three years before moving on to the next did provide some limitations on the discretion of the promotion committees (Kassim 2004). Promotions are now formally conducted using a point system. A mandatory individual staff development interview is also required, in which the superior official must rate the performance of the employee. The point scale has the grade 20 as maximum and most employees are given 13 or 14. The scale is divided into three sub-categories. First is performance, which has a maximum of ten points. Second is ability, which yields a maximum of six points, and third is conduct, for which an employee maximally may be awarded four points. The points awarded

21 In an infamous memo written 20 years ago, a Director-General complained that the only felony that could lead to the dismissal of an EU employee was murder on a motherin-law (The European, 15 April 1994). A much-publicized recent dismissal was of Bernand Connally, the former leader of the Commission’s office for the EMU, which he opposed strongly – he wrote the anti-EMU-book ‘The Rotten Heart of Europe’.

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every year are pooled for each employee. On the basis of the number of available positions a point threshold is calculated and every employee with a cumulated sum of points above the threshold is promoted. Independent of staff development interviews, the management in each DG has a certain number of supplement promotion points it may distribute as it likes. A realistic calculation could, for instance, be that the promotion threshold is 60 points one year and those employees who have obtained 14 points in rating for four consecutive years and four extra promotion points are promoted. Persons who have obtained 13 points every year have reasonable chances for the next promotion, but no guarantee. The point system explicitly excludes seniority criteria for promotions, but it remains clear that seniority still influences how many points a Eurocrat can obtain and, thereby, when the Eurocrat is promoted. This change offers more transparency and influence for immediate superiors. Yet, in the end, it is still the top management who decides who will get a promotion, so the debate over different forms of favouritism is not necessarily over. The most positive intended consequence of the staff reforms in recent years is the introduction of staff development interviews. It is a regime that underlines the manager’s duty to set annual targets for each employee as a basis for subsequent evaluation. Another important aspect of reform of staff policy in the EU regards the Directors General, who are the highest officials in the EU’s administration. The Prodi Commission (1999–2004) introduced, immediately after taking office, mandatory rotation for Directors General, which means that a DirectorGeneral may stay in the same position for six years maximum, thereafter he or she will have to ‘rotate’ to a new position (Peterson 2004b). The purpose of this reform has been partly to ensure that the individual Director General does not have time to build an excessive power base around him or herself and partly to facilitate learning processes that ensue when the Director General changes position and responsibilities. Furthermore, some of the reason has been to ensure the delicate balance between the influence of Member States mediated by top officials and the EU administrative system, as it is no longer possible for a Member State to have a Director General in a position in the same area for more than six years. All in all, the administration of the EU is a hybrid between a national and international administration, even when it comes to recruitment and promotions. At the same time, recruitment procedures may possibly pull the EU in the direction of the international as well as the national or Weberian type of administration. For instance, some observers feared that the 1993 budget crisis would be used by Member States to send more national experts to the EU instead of hiring proper Eurocrats.22 This question has popped up time and again, as in the 1979 Spierenburg report (Kassim 2004, 99). It recognized that there might be a 22

“Some fear that governments will use the crisis to send more national officials to

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need for hiring national experts for performing special tasks. At the same time, it was emphasized that such employments should only be of a short duration (from a month to a year), and the Commission should “ensure that the use made of national experts does not rise significantly above its present level, or again run the risk of distorting the European Character of the administration” (Spierenburg report, § 110). If the number of national experts grows excessively, it is feared that the influence and autonomy of the Commission would be undermined. Today, the maximum duration in which a national expert can be employed has risen to three years. However, it is also argued in § 103 of the Spierenburg report that the employment of persons from outside offers its advantages: If the Commission is not to become increasingly divorced from experience of the outside world, it is essential that it should be able to benefit from a current of staff having such experience. Such people may come from national administrations, both sides of the industry or other sectors, although most of them will probably prove to be national civil servants. In the latter case, the Commission will benefit from a more informed view of its activities which they will take back to their home administrations at the end of their time in the Commission.

Hence, there were later on adopted a so-called special concours for temporary employees with a longer working experience beforehand. The danger of an undermining of the autonomy of the Commission by national experts (also referred to as END’s, the acronym for the French term Experts Nationaux Detachés) should, in other words, be evaluated against the fact that external expertise may increase the technical expertise of the Commission23 and furthermore increase the national administrations’ knowledge of and acceptance of the order of the day in the Commission, when national experts return to their previous position. As long as national experts are utilized only to a limited extent, the Spierenburg report found, they contribute to increasing the efficiency and societal legitimacy of the EU’s administration.

Brussels to fill Commission posts and gain a greater hold over the independent institution.” (The European, 25 March 1993). As a factor limiting the possibilities for Member States to control the number of national experts in the Commission was, however, the fact that all national experts had to be approved by the Commission. In addition, the fact that the Commission pays approximately half of the national experts salary might also – to some extent – redirect the loyalty of national experts. 23 This was an element in Wessels’ normative model of the EU’s administration as a political bureaucracy (see section 3.6.).

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5.4. Staff regulations The original staff regulations for the EEC and Euratom entered into force on 1 January 1962. The legal basis was Article 212 of the then EEC Treaty, which determined that the Council of Ministers and the Commission should adopt staff regulations unanimously. Preceding the entry into force of the staff regulations a number of years had passed with undetermined staff conditions for the administration of the EEC. Despite that recruitment of personal advisers for the commissioners and the construction of the Commission’s own administration had been on the agenda in the first meeting in the EEC Commission 16 January 1958, several years passed before a concrete framework for staff policy was adopted. In the meantime, the EEC drew on staff from the ECSC and temporary staff made available by national central administrations. There had, however, already been substantial criticism of the high wage levels for the employees of the ECSC, and most were unwilling to be as generous in the case of the EEC and Euratom (Coombes 1970, 133). With the adoption of the Merger Treaty in 1965, Article 24 stipulated that officials and other employees in the three communities would have their employment transferred to the European Community. Furthermore, Article 24, section 2 says that the regulations are drawn upon the basis of a proposal from the Commission (after consultation with the other institutions). Hereafter, the Council of Ministers adopts the EU staff regulations with qualified majority voting. A new set of joint staff regulations was adopted by the Council of Ministers in 1968. In practise, the new regulations mainly consisted of a string of modifications of the 1962 regulations. In the new regulations it was (and is) a stated objective to ensure capable employees from all Member States who are, moreover, loyal to the EU institutions and not their country of origin. The autonomy of the European institutions was to be increased by offering a high degree of job security, generous wages and working conditions, clear complaints procedures and freedom of association, and collective bargaining for employees. The staff regulations have been revised several times since 1962, but the revisions have varied considerably in significance. In 1974, the trade unions were granted representative status and a number of privileges (Kassim 2004, 38). The latest revision has been in connection with the staff reform, which was to be implemented from 2004 to 2006. In this context, the staff reform has been a relatively large revision that is partly due to general demands of modernization set forth by Member States and partly due to the uncertainty that followed in the wake of the resignation of the Santer Commission in 1999. The revision of staff regulations and the overall reform has formally lead to significant changes in the terms of employment and career prospects for Eurocrats, (sections 5.2. and 5.3. pages 79–87).

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The current annual wage adjustment implies, for example, changing the wage table in the staff regulations, which every year necessitates that the Commission submits a proposal that the Council of Ministers must adopt with a qualified majority. However, the Commission’s monopoly on initiative means that only the Commission can submit proposals for the wage level for EU employees. The same applies to national Ministries of Finance who conduct the salary negotiations for the public sector, which in turn also affect the wages of officials in the Ministries of Finance. However, the difference is that the employees in the Ministries of Finance only make up a tiny proportion of public employees, and the economic stress caused by large increases in public pay is far greater on a national level than when the wages of EU employees increase.24 To what extent the Commission is capable of taking the role as employer versus the employees in the Commission, and, for instance, getting the most work done for the minimum salary remains unclear. No other EU institution is capable of adding pressure in this area. This is why it is difficult for Member States to alter staff regulations. Even though there is consensus among Member States that the staff regulations should be changed, it is impossible to force the Commission to propose changes. If the goal is to increase the autonomy and self-checking of the Commission, it is advantageous that regulations are difficult to alter. This is the background for the high esteem staff regulations enjoy among federalists. Moreover, Member States often disagree over staff regulations. There are different national traditions regarding terms of employment for civil servants and uses of the civil service. Denmark, the Netherlands, Sweden, and the United Kingdom are known for requiring a more restrictive and ‘employer’ oriented approach in regard to the administrative policy in the EU.

5.5. Salaries Member States’ demands for a more restrictive approach in the EU’s administrative policies are often directed at the salaries. As can be gathered from the table below, Eurocrats and other officials in the EU system are given handsome wages.

24 Some might claim that it is the same situation in the Commission. Also here it is only a small part of the Commission who has any influence on proposals concerning the future wages of all Eurocrats.

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Table 5.5. Monthly starting and maximum salary for different categories of staff in the Commission (as of 1 May 2004)* Wage grade 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1

Starting salary /Euro

Maximum salary /Euro

14,926.62 13,192.64 11,660.09 10,305.57 9,108.40 8,050.31 7,115.13 6,288.58 5,558.06 4,912.40 4,341.74 3,837.37 3,391.59 2,997.60 2,649.38 2,341.61

16,207.45 14,926.62 13,192.64 11,660.09 10,305.57 9,108.40 8,050.31 7,115.13 6,288.58 5,558.06 4,912.40 4,341.74 3,837.37 3,391.59 2,997.60 2,649.38

* Assistants (the AST group) are grouped under wage grade 1–11, while administrators (the AD group) are grouped under wage grade 5–16. Source: Staff regulations, Staff Regulations of Officials in the European Communities, 1 May 2004.

Eurocrats pay a special EU tax that gradually increases from 5 to 45 per cent, depending on the size of the income. A person in the A5 group with an annual income of approximately 52,000 Euros a year pays between 20 and 25 per cent in taxes. Part of the salary also goes to a pension fund as well as expenses for insurance. Conversely, officials receive special allowances. Married employees receive a household allowance amounting to 5 per cent of the income. Moreover, families with children receive a benefit per child and an extra benefit if a child is undergoing schooling. In addition, there is a benefit for posting and one or two free travels to the country of origin a year. Compared with wages for civil servants at the national level, the net salary for EU employees is very high. However, in some cases the EU salary should be compared with net salaries for a family with two breadwinners, as is often the case in most of Northern Europe. Furthermore, the national retirement age may quite often be at 65 years of age, and pensions may comprise a substantial percentage of the former salary. In a historical analysis, Uffe Østergaard (2002) finds the salaries of the EU’s administration as follows: Some employees may receive too generous of wages and privileges that originate from the institutions’ genesis as part of the foreign policy of states. Ambassadors

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have traditionally been highly paid due to the risk. In medieval times and early modernity, ambassadors and other envoys were perceived as personifications of the enemy were hung on the wall or thrown in dungeons for the duration of the conflict. It is no longer like that, and maybe we should consider adjusting the privileges of the employees of foreign services (downwards). It can hardly be regarded as life threatening or profoundly unpleasant to be employed in the European institutions. [Author’s own translation].

It has been a point of contention in some Member States whether the posting benefit for civil servants who work in the EU’s institutions should be abolished, as a posting in the EU is no longer comparable with a posting in the rest of the world. However, posting benefits have generally survived. In the 1950s and early 1960s the wage level for EU employees was relatively high compared to national civil services. Subsequently, the relative wage level fell during the 1960s and early 1970s, triggering several strikes in the EU (Scheinmann and Feld 1972, 129). When a large number of British, Irish, and Danish Eurocrats were being recruited in 1973 and 1974, the size of EU wages was unimpressive. Conversely, wage increases have been larger at the EU than the national level since the mid1970s. Since 1972, wage adjustments have been calculated according to an adjustment method (referred to as the ‘Methode’ ), which is based on a principle of parity. This means that the development in EU real wages is tuned to the average development in purchasing power of public employees in Member States. The ratio between EU wages and the wages of public employees in Member States is therefore kept constant. On the one hand, it pays better to be employed in the EU than in, for instance, the UN or NATO. On the other hand, wages in the European Investment Banks, for example, are more handsome than in the EU’s institutions. Wages in EU institutions have also been compared to the wages of diplomats stationed in Brussels by the foreign services of France, Germany, the United Kingdom, and Denmark. The findings are that diplomats are better paid than EU employees, although the higher salary can be explained with reference to mandatory rotation between posts in different countries, which does not apply to EU employees. Finally, the survey also shows that the wages of EU officials are 50 to 100 per cent higher than wages for national officials at the same level in France, Germany, the United Kingdom, and Denmark when applicable taxes are deducted.25, 26 2004 also saw some changes in the calculation of EU wages. The overall effect of the Methode is a kind of inflation-based automatic regulation of wages that,

25

“EU-lønninger midt på skalaen”, Morgenavisen Jyllands-Posten, 15 April 2000, page 4. Neil Kinnock has not been seriously contemplating adjusting the wage level of Eurocrats: “. . . most of them actually pocket about twice what most of their civil service coun26

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to some extent, de-politicizes annual wage adjustment so they are not based on negotiations but on extensive statistics from Eurostat. Critics of the Methode have emphasized that the wage regulation offers no opportunity for the Council of Ministers to make any estimates of acceptable wage increases, but, conversely, implies an automatic adjustment of salaries that is contrary to desirable restraints on wage increases in the public sector. The desire of some governments of reducing wage increases for EU officials may be interpreted as a want of increasing the societal legitimacy of the EU, especially in North European Member States with a traditionally critical view vis-à-vis EU’s administration. Decreasing the wage level is also recommended in theoretical literature as a means of increasing efficiency. The argument is that very high salaries increase ‘favouritism’, such as recruitment on the basis of friendship, kinship, or political connections. However, as has been shown, it is more difficult to adjust wage levels in the EU’s administration than in a national administration. In the beginning of the 2000s, it was also agreed, as part of the reform of the EU’s administrations human resources policy, that the Methode would be incorporated into the staff regulations (Kassim 2004, 53). High and increasing EU salaries (compared to alternative jobs) have meant that there is very small mobility out of the EU system.27 At the same time, there is a risk that informal connections will increasingly be a prerequisite for employment, which means that nepotism will be on the rise and the overall quality of the Eurocracy may be reduced if the Weberian bureaucrat is taken as point of reference.

ter parts earn back home. Mr. Kinnock defends all this on the ground that the Commission must attract the best and the brightest; most of the staff must be multilingual. It is already struggling, he says, to keep top-flight lawyers who can earn much more in the private practice. The right comparison, he says, is not with home-based civil servants but with expatriates in other outfits such as NATO and the World Bank.” (The Economist, 3 March 2001). 27 In latter days there has been a tendency for some EU officials to move to better-paid positions. It especially applies to competition law, where law firms and lobbyists who are in conflict with the Commission in cases concerning fusions, public subsidies, and dumping generally offer more handsome salaries.

Chapter Six

The Commission – Organizational Structure, Processes, and Culture The formal organizational structure of the Commission relates to the coordination of the distribution of tasks among employees, offices, departments, and General Directorates. In this context, there are different kinds of organizational structures. In addition to the formal structure there is, as described in chapter 3, an informal structure, which in the Commission consists mostly of networks of employees from certain Member States. In the case of the EU, the informal structure is an important part of the organizational culture. The organizational structure is analyzed in section 6.1. In section 6.1.1., the features of the Commission are outlined, whereas section 6.1.2 discusses the role of the President of the Commission. The top officials in the division of labour in the Commission are the commissioners whose positions are highlighted in section 6.1.3. At the same time, the commissioners and their cabinets have important roles as coordinators, (section 6.1.4.). The bureaucratic division of labour in the Commission is analysed in section 6.1.5, conflicts between different parts of the bureaucratic structure of the Commission are described in section 6.1.6, whereas linguistic communication is analysed in section 6.1.7. Organizational processes are internal decision-making processes with one theoretical pole of analysis being the rational model. It regards decision-making processes as solely oriented towards attaining the basic goals of the organization. Critics of the rational model usually contend that its assumptions do not hold in regards to bureaucrats safeguarding their own interests, the necessity of a common frame of reference for the employees and the overall organization, the

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existence of standard operating procedures (SOPs), and the limited information available to bureaucrats, (chapter 3). The Garbage Can Model is the other theoretical pole (chapter 3). It regards the decision-making process not as one compact process, but a process consisting of multiple streams of decision-making options, problems, solutions, and participants. The result of the process depends on the direction and merging of the streams. It is assumed that individual parts of the public administrative apparatus pursue their own goals. The rational choice thesis of political asymmetry offers a view on how these bureaucratic selfish interests are pursued. The analysis of the organizational processes of the Commission is divided into an analysis of the Commission’s functions in the decision-making process (section 6.2.1.), an analysis of the executive powers of the Commission (section 6.2.2.), an outline of the EU’s committee system (section 6.2.3.), as well as an outline of lobbyism, EU-based interest groups, and the Commission (section 6.2.4.). An organizational culture consists of, for one, the way the employees perceive the world to the extent this perception influences their work in the organization in question. Signs of a certain organizational culture may – as mentioned in chapter 3.3. – consist of everything from visible organizational cultural artefacts over a string of rules determined by the organizational culture to invisible assumptions and categories of thought in the organization that may be very difficult to investigate. In an international administration such as the Commission, it is essential to analyse the effect of the many different employed nationalities. In addition, theories of organization often underline that the original creators of an organization leave crucial fingerprints on the organizational culture. Section 6.3. is made up of sections on the nationality of Eurocrats (section 6.3.1.), and the openness in the Commission (section 6.3.2.).

6.1. The Commission and the Organizational Structure 6.1.1. The features of the Commission Article 211 of the Nice Treaty stipulates a number of roles for the Commission:1 In order to ensure the proper functioning and development of the common market, the Commission shall: – Ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied,

1

The Commission is geographically based in Brussels. Some divisions (i.e. the statistical

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– Formulate recommendations or deliver opinions on matters dealt with in this Treaty, if it expressly so provides or if the Commission considers it necessary, – Have its own power of decision and participate in the shaping of measures taken by the Council and by the European Parliament in the manner provided for in this Treaty, – Exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter.

The Commission provided for in Article 211 is merely the forum in which EU commissioners meet. Concerning this forum Andersen and Eliassen (1993, 20) write, “The Commission is not only a kind of government and administration but also, to some extent, a parliamentary committee.” Swann (1988, 49) writes that an additional role (to the one defined in the Treaties) is to function as a “mediator trying by means of negotiations with the Member States to find an acceptable compromise.” Yet, usually observers also mean the administration at the commissioners’ disposal when they refer to the Commission. The combination of the two roles means that the Commission is also called the ‘Guardian of the Treaties’ (and is to prevent Member States or companies from violating the provisions in the legal basis of the EU). This means, “The Commission has to assume a unique blend of administrative, or bureaucratic and judicial responsibilities in order to ensure that the laws of the Community are being upheld . . .” (Archer and Butler 1992, 25). In continuation hereof the Commission is often referred to as the ‘locomotive’ of the EU (The Economist, 25 March 1989), ‘the heart of the Community system’ (Ludlow 1991), ‘the central staff function’ in the institutional system of the EU (Bach 1992), ‘the conscience of the Community’ (Coombes 1970, 82), ‘an honest broker’ (Coombes 1970, 83), and ‘a federal political leadership in embryo’ (Coombes 1970, 102) whose most important role, in the words of Jacques Delors, is to attain the ‘intellectual control of the agenda of the European Council’ (The Economist, 7 April 2004). Dimitrakopoulos (2004) describes the Commission as the ‘barometer of integration’ which plays the discursive role as ‘mediator of meaning’ (Bellier 2004). The most important classic work on the Commission is Coombes’ 1970 book. It still remains relevant to a large extent even though it was authored more than 35 years ago. Coombes (1970, 89) claims that the Commission in some cases behaves as “a political party with a firmly rooted ideology.”2 The Economist characterizes the Commission as follows:

office of the EU, Eurostat) are based in Luxembourg (cf. Articles 7, 8, and 9 of the Merger Treaty). Originally, Jean Monnet wanted all institutions to be placed in Luxembourg, but Luxembourg opposed due to fears that the small state would be unable to receive the large group of foreigners. As the larger Member States fought bitterly over the placement, Brussels was agreed on as a compromise. 2 Many observers have criticized the ideological commitment of the Commission to

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The many different accounts of the Commission may be considered as an underlining of partial aspects of the seven different functions the EU’s administration should have according to Wessels (1985): Administrative functions, technical expertise, programmatic functions, mediating functions, crisis management, implementation and control functions, as well as functions of self-control. Coombes (1970, 78) concludes, “The Commission has two essential characteristics, of which is summed up in the term ‘independent’, and another in the term ‘European’.” However, in another area Coombes (1970, 100) seems doubtful of his own characteristic: “Is the Commission a political leadership, or is it a ‘bureaucracy’, or is it in some ingenious way both?” Or as Coombes (1970, 239) also expresses it: “the Commission is generally faced with a choice between acting as an independent, uncommitted secretariat and a zealous band of Europeans.” In Coombes’ words the Commission should be both goal-seeking and goal-setting, an administrator and an initiator, an objective arbiter between Member States, and carry out political leadership (Coombes 1970, 234–237). Coombes lists a number of consequences of the internal contradictions in the Commission. Coombes claims that the administrative objective as arbiter requires a mechanical organization, whereas the normative political initiator requires an organic organization. As mentioned in chapter 2, mediation between national authoritative actors demands political involvement of the political apparatus – contrary to the basic features of the Weberian bureaucrat and his mechanical organization. Figure 6.1 page 97 outlines the internal contradictions in the Commission’s handling of tasks. In accordance with Coombes (1970, 240), the tasks of the Commission are described as initiation (of EU decisions), norm setting (as ‘Guardian of the Treaties’), ‘Conscience’ of the EU, administration (as caretaker

further European integration. For instance Close (1978, 463) writes, “Approximation is not an objective of the Community for its own sake” and that many directives on harmonization exceeded the legal basis. This criticism has also been raised internally in the Commission. Lord Cockfield has criticized ‘harmonization for the sake of harmonization’ as characteristic of policy at the end of the 1970s. However, the EU has since improved in this manner: “Gone are the days when it could be said that ‘if it moves, harmonize it’, ” (speech by lord Cockfield, quoted by McGee and Weatherhill 1990, 583). 3 “Charlemagne: Neil Kinnock, Europe’s Anglo-Saxon reformer”, The Economist, 3 March 2001, page 50.

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of technical tasks in connection with preparation of decisions, data collection etc.), and mediation (between Member States). Coombes finds that there is constant tension between norm setting and initiative functions on one side and the administrative and mediating functions on the other. The first sets of tasks are constructive or political, whereas the second sets of tasks are implementing or bureaucratic. There is a substantial conflict between mediation and initiation. An arbiter who makes too many initiatives is easily identified as biased. The initiator needs to be able to point to specific interests, whereas the arbiter needs to be completely independent of specific interests. This discussion (as well as Coombes’ analysis of the Commission) has kept its topicality to this day. The Presidency is normally considered the most important mediator but the Commission and the Council Secretariat play important supporting roles. The mediation occurs between the Member States, the Commission, and the European Parliament. The Commission is also a powerful player in the negotiations of a proposal as the Council must reach a common position by unanimity in order to change a proposal. However, normally the Commission accepts changes that are backed by a qualified majority in the Council if there is a possibility of adoption in the Parliament. The Commission has another important role which is not mentioned in this section as the Commission also manages the adopted regulation. This takes place in the so-called comitology system in cooperation with the Member States (section 6.2.3). Figure 6.1. Internal contradictions in the Commission’s handling of tasks

Bureaucratization ADMINISTRATION MEDIATION

INITIATIVE NORM SETTING Politicization

Source: Coombes (1970).

In principle the Commission is independent of the governments of Member States and has as its most important task to submit proposals for EU law. As such the Commission is a unique phenomenon in an international context. There are no secretariats in international organizations with a comparable mandate (Sørensen 1971, 19). The Commission even holds a monopoly on submitting proposals for EU legislation. It is especially due to this ‘peculiar build-up’ (Bach

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1992, 18, author’s own translation), that the Commission is characterized as the ‘initiator and motor of community decision-making’ (Ehlermann 1981, 337, the author’s own translation).4 In this context the role of initiator implies an obligation to determine strategic goals,5 formulate overall policies, design legislation, prepare the budget, and provide the EU with political leadership (Ludlow 1991). In the Commission’s White Paper from 2000 it was recommended that the Commission should return to its core functions: “policy conception, policy initiative and enforcing Community law.” There are a number of different evaluations of how the Commission handles the right and duty of initiative. On the one hand Ludlow (1991, 112) quotes a senior Commission official for saying that “Commission officials find themselves pushing at an open door when they exercise the function of initiative.” On the other hand, Beukel’s case study of the education policy of the EU concludes that the Commission will only submit proposals when their adoption in the Council of Ministers is certain (Beukel 1992). In Beukel’s study the Commission is to a larger extent on standby in relation to the submission of proposals. However, the fact remains that the Commission does make proposals that are not adopted. In a ‘both-and’ characterization, Kassim and Menon (2004, 97) conclude about the Commission: “Although created as an independent body, the Commission is in practise dependent on national governments.” There is no doubt that the position of the Commission on the scale from ‘international secretariat’ to ‘government in making’ both depend on the integration cycle as well as the area of political cooperation. At the same time, there are different views on whether the Commission should resemble an international secretariat: to those who saw the Commission of the EEC as the embryonic federal executive of a united Europe, the staff of the Commission counted for much more than a mere international secretariat (Coombes 1970, 121).

6.1.2. The President of the Commission Formally the President of the Commission is no more than the first among equals (‘primus inter pares’). In practise, he (so far no woman has been President) has

4 Cf. Bach (1992, 18): “The uniqueness of the political-administrative processes of the European Community could be characterized as the realization of the normative primacy of the bureaucratic initiative.” [Author’s own translation]. 5 What is really implied by ‘determining strategic goals’ is a point of contention. On the other hand, it does seem to imply no less than outlining, future developments, a determined effort, the long rather than the short run, and analysis instead of description, cf. Bakka and Fivelsdal (1992).

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acquired an increasing influence in latter years, which in turn also depends on the general integration cycle in the EU. The President of the Commission participates in all meetings in the European Council (so-called EU summits) and all G86 summits since 1977. Moreover, the President is distinguished by other commissioners as having the largest cabinet (Peterson 2004b, 25). The cause of the increased significance of the President is no doubt the desire of strengthening leadership in the Commission. Since the Treaty of Amsterdam it has clearly been the responsibility of the President to tend to the cuts and rationalization of the portfolio of the Commission, and it could happen by establishing a working group consisting of several commissioners from each jurisdiction, (see Article 214 in the Single European Act). Furthermore, it is the responsibility of the President to provide the overall political guidelines for the Commission in such a manner that collective responsibilities are strengthened, (see Article 219 in the Treaty of Amsterdam). Also, with the appointment of Romano Prodi in 1999, it has been recognized that the President of the Commission can reject candidates from the Member States.7 In addition, the President controls the delegation of responsibility to commissioners and is de facto capable of isolating a commissioner. From an administrative perspective, the role of the President is to prevent a ‘Balkanization’ of the EU bureaucracy (Peters 1992) through leadership (Bellier 2004), which is an inherent danger due to the smaller degree of autonomy compared to national administrations. It can be argued the President maintains the task of setting strategic goals due to his privileged position (Ludlow 1991). At the same time there are some similarities between French presidential rule and the position the President of the Commission has acquired due to the increasing competencies of the EU. In that connection it is notable that Coombes remains silent on the role and position of the Commission’s President in his classic book Politics and Bureaucracy in the European Community. The same thing applies to Michelmann’s 1978 book Organizational Effectiveness in a Multinational Bureaucracy. Conversely, the special position of the President of the Commission is thoroughly discussed in more recent literature on the administration and build-up of the EU (see Peterson 2004b, Kassim 2004, Kassim and Menon 2004). Box 6.1. page 100 lists the former (and current) Presidents of the Commission and their predecessors.

6

Formerly G7 before Russia was admitted as an observer in 1997. However, “Prodi was by no means free to select his own College, and there is no evidence to suggest that he vetoed the choices of any of the EU’s 15 member governments. But he clearly did lobby hard to shape the choices who were appointed . . .” (Peterson 2004b, 21). 7

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Box 6.1. Commission Presidents Commission Presidents (until 1967 solely for the EEC Commission) 1958 1967 1970 1972 1973 1977 1981 1985 1995 1999 2004

Walter Hallstein Jean Rey Franco-Maria Malfatti Sicco Mansholt Francois-Xavier Ortoli Roy Jenkins Gaston Thorn Jacques Delors Jacques Santer Romano Prodi José Manuel Barroso

Presidents of the High Authority of the European Coal and Steel Community (merged with the EEC Commission in 1967) 1952 1955 1958 1959 1963

Jean Monnet René Mayer Paul Finet Piero Malvestiti Dino Del Bo

Presidents of the Euratom Commission (merged with the EEC Commission in 1967) 1958 1959 1962

Louis Armand Etienne Hirsch Pierre Chatenet

Generally there is consensus that factors, other than the legal basis laid out in the treaties, are significant for the degree of influence of the President of the Commission maintains. Traditionally the two former Presidents Walter Hallstein and Jacques Delors are regarded as ‘the giants’. It is no coincidence that they presided over the Commission in periods that could be regarded as generally positive integration cycles. It is also no coincidence that both Hallstein and Delors provided the Commission with strong leadership (Dinan 2005, 190). Both in the case of Hallstein and Delors their names were to a large degree synonymous with the Commission.8 So far, Commission Presidents have come only from the six founding states, save Roy Jenkins from the UK and current President José Manuel Barroso from Portugal. The post of President usually rotates between the Socialist (or Social Democratic or Labour) parties and the Conservative or Christian Democratic parties of Member States. 8 Ehlermann (1981, 337) use the term ‘prä-gouvernemental’ or pre-governmental about Hallstein’s Commission.

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The President is appointed by the governments of Member States by a common accord. The President is appointed at the European Council’s summit in June or the beginning of July. All Member States must be able to accept the President the first time he is appointed. The role of the European Parliament in appointing the President of the Commission was strengthened by the Treaty of Amsterdam as the European Parliament now has to approve of the intended candidate of Member States. The Constitutional Treaty would strengthen the Parliament even more as it stipulates that the President is appointed by the Parliament itself following a nomination by governments. Meanwhile, the position of the President has also been strengthened. He now participates in the appointment of the rank-and-file commissioners, (Article 214, section 9 of the Treaty establishing the EC). The appointed President is therefore now capable of objecting to intended appointments. 9 The not ratified Constitutional Treaty stipulates that the members of the Commission are appointed by the President based on nominations by Member States. The President has furthermore been conferred the competence to appoint the Vice Presidents of the Commission. Already in the Treaty establishing the EC, a provision that stipulates that the “Commission shall work under the political guidance of its President” was introduced (Article 217), which strengthens the President in relation to the other members of the Commission.

6.1.3. The political level: the commissioners Until 2004, the larger Member States of Germany, France, the United Kingdom, Italy, and Spain nominated two national candidates for the Commission each, whereas smaller Member States each nominated one candidate. From 2004 onwards, the number of commissioners has been reduced to 1 per country, meaning that there are 25 commissioners. In addition, it has been decided that the number of commissioners cannot exceed 25, not even if the EU is expanded to include more countries (Dinan 2005, 198). The commissioners are appointed for a five-year term by all governments of Member States. However, in practice it happens by each Member State appointing its own national candidate. So far other Member States have refrained from interfering in the appointments of other states. It remains an open question if

9

For instance, Commission President Barroso demanded an equal distribution of posts between sexes. Accordingly, Bertel Haarder who was considered ‘first in line’ was not nominated for commissioner by the Danish government as there was a shortage of women. The same happened with regard to the Dutch minister for agriculture. Instead, Mariann Fischer Boel was nominated and subsequently made commissioner for agriculture.

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any such interference would be tolerated.10 However, it can be argued that the President de facto is capable of vetoing candidates by promising an insignificant post to the suggested candidates. In the Spierenburg report (§ 47) it was suggested that the Commission President should have a ‘one-time-veto-power’ over Member States’ nominations. Conversely, when the Barroso Commission was to be appointed in 2004, the European Parliament used its power of approval to assert its influence on the composition of the Commission. By threatening to reject the entire Commission, a parliamentary majority succeeded in forcing the Member States and the President to change the composition of the Commission, so it became more acceptable and could gather a majority in the European Parliament.11 In the beginning, commissioners were most often senior civil servants from the foreign services of Member States. An overriding criterion for their nomination was a ‘European attitude’ (Coombes 1970). Today, the Commission has obviously evolved into a political institution whose members frequently leave a government-level political career behind in their country of origin. Several factors determine the appointment of commissioners: competences, political loyalties as well as gender (e.g. Peterson 2004b, 21). When larger Member States could appoint two commissioners they would usually find one candidate in the ranks of the ruling party or coalition, whereas the other candidate would come from the major opposition party. Member States that only appoint one commissioner have traditionally nominated a candidate from a party in the governing coalition. The reason is that the commissioner to some extent serves as a representative of the Member State, which implies that the person in question should be able to mobilize national support as well as be intimately familiar with the views of the national government regarding EU policy. This is the only way to ensure the open representation of national interests in the Commission (Michelmann 1978b). This also explains the strong desire for retaining one commissioner per country. Conversely, the fact that Member States were willing to give up on the demand of one commissioner per country indicates that commissioners serve as national points of contact to a less extent today than previously. Consequently, for Member State representatives or lobbyists, it is more effective to contact the commissioner responsible for the case in question than the national commissioner. 10

In 1993 Greece implied that they would veto a Danish appointment of Ritt Bjerregaard as commissioner because she had heavily criticized the Greek role in the conflict in former Yugoslavia as well as Greek resistance to international recognition of the Former Yugoslav Republic of Macedonia (FYROM). If the Greek threat had become reality it would have lead to a crisis, as it is highly unlikely that Denmark would have accepted the veto. 11 The controversy especially revolved around the Italian nominee, Rocco Buttiglione, who provoked resistance in the Liberal and Socialist groups due to his controversial views on women and homosexuals. Subsequently, his candidacy was withdrawn.

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When the Commission is in session it functions as a college. This, for instance, means that commissioners hold collective responsibility for decisions. The Commission is usually in session once a week and decisions are made by simple majority (Article 17 in the Merger Treaty). As far as possible it seeks to make decisions by unanimity. 90 to 95 per cent of the decisions by the Commission are made using written procedure in the cabinets. Every commissioner is delegated the responsibility for a specific case area. In general, each commissioner heads one or more of the 24 General Directorates (known by the French acronym DG) or departments. It is often claimed that this management structure is problematic. Part of the problem could be personal traits of commissioners, but the institutional structure is also responsible. In addition to the General Directorates, the General Secretariat of the Commission is of great significance and can be considered the General Directorate of the President. In many ways this body serves as the centre of the international administration, meaning that it acts as an agenda-setting body inside the Commission. The General Secretariat of the Commission also carries out, to a considerable extent, the role of arbiter, programmatic functions, and EU crisis management. Previously, the distribution of responsibilities between commissioners happened at a pre-Christmas meeting (‘the night of long knives’) where newly and re-appointed commissioners attended under the auspices of the already appointed Commission President. This meeting often saw quarrelling over the influential posts with large budgets. It resulted in compromises and solutions that often seemly quite untenable for the proper management of administrative functions. For example, the DG for External Relations was divided between British Leon Brittan (External Economic Relations) and Dutch Hans van den Broek (External Political Relations) at the portfolio distribution in December 1992. This ‘Solomonian’ option caused some difficulties determining which area of responsibility each commissioner had in practice (Financial Times, 8 January 1993). However, since the Treaty of Nice entered into force it has been the prerogative of the Commission President to distribute portfolios (after consultations with governments of Member States): The responsibilities incumbent upon the Commission shall be structured and allocated among its Members by its President. The President may reshuffle the allocation of those responsibilities during the Commission’s term of office. The Members of the Commission shall carry out the duties devolved upon them by the President under his authority.12

Criticisms that each commissioner (and possibly his or her political backings) regards his or her portfolio as his or her own ‘Kingdom’ have multiplied over the 12

Article 217, section 2 in the Treaty of Nice.

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years. In the report from the Committee of Independent Experts it is emphasized that commissioners are collectively responsible for decisions made at Commission sessions. The Committee stresses that collective responsibility requires that: commissioners should be able to argue freely in private and at Commission meetings on what they hear, or perceive, to be a colleague’s approach in his/her sphere of competence and can argue freely in private while maintaining a united front when decisions have been reached, (Committee of Independent Experts, Second report, 10 September 1999, § 7.10.4.).

The Maastricht Treaty awarded the European Parliament greater say in the appointment of Commission members. Its influence has hitherto been restricted to the never formally utilized right to force the entire Commission to resign by a vote of no confidence. However, the old wish of the European Parliament to be able to castigate single commissioners by expressing no confidence (in the same way most national parliaments are capable of force a no-confidence-vote on a single cabinet member) has not been granted in recent treaty reforms. Some concessions were made to the Parliament in the Treaty of Amsterdam, as the President of the Commission is to be approved by the European Parliament, (Article 214 in the consolidated Treaty on the EC). With the Treaty of Nice it was specified in Article 214, section 2 that: the Council, meeting in the composition of Heads of State or Government and acting by a qualified majority, shall nominate the person it intends to appoint as President of the Commission; the nomination shall be approved by the European Parliament.

Federalists have often demanded that the European Parliament should elect the future President of the Commission with the goal of ensuring more societal legitimacy. However, it remains questionable whether or not that would be the outcome. The threat that the European Parliament would bring down the entire Commission by a vote of no confidence almost became reality in the beginning of 1999. The occasion was that a Dutch Eurocrat had leaked internal information on nepotism (Commissioner Edith Cresson) and inefficiency (Commissioner Manuel Marin) to members of the European Parliament. The Commission reacted to the leak by reducing the Eurocrat’s salary by 50 per cent for four months. The European Parliament responded by a motion of no confidence, which was almost adopted on 14 January 1999 with 232 votes in favour and 293 votes against. Instead, the European Parliament adopted a resolution that implied setting up a committee of independent experts that was to investigate the Commission and publish its findings six weeks later. The first report of the Committee of Independent Experts published on 15 March 1999 subsequently caused the resignation of the Commission. Again in 2004 the European Parliament threatened to use its powers to refuse the approval of the Barroso Commission. The consequence was that Italian can-

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didate Rocco Buttiglione had to withdraw his candidacy in favour of less controversial Franco Frattini. Then Barroso presented his modified Commission, which was approved by a majority in the European Parliament.13 Many observers have interpreted the conflict as a classical constitutional battle between the European Parliament on one side and the Commission and governments of Member States on the other in the light of the proposal on the Constitutional Treaty, which had strengthened the European Parliament. The European Parliament won the quarrel, which may strengthen it even before a potential implementation of (or some reincarnation of ) the Constitutional Treaty. 14 According to Lundquist (1991, 120–126), the handling of different roles in public administration may be based on different formal bases of legitimacy. The function of the bureaucrat is legitimized by professional qualifications. The function of the politician is legitimized by the preferences of voters. The participation of interest groups in public administration is legitimized by their representation of interests. Finally, the so-called politruk is legitimized by political loyalties. This final form of legitimacy is often criticized as it is regarded as a politicization of the administration, which runs counter to the basic Western (i.e. Weberian) ideal of public administration. This may explain that the commissioner is the target of heavy criticism as a ‘politruk’. Lundquist found that roles that are not legitimized by voters or based on interests must be legitimized in the rational order of things or efficiency if they are to be commonly accepted and have a high degree of legitimacy in the Western tradition of public administration. Bearing this in mind, proposals from commissioners that may be seen as irrational and causes of inefficiency may be even more fatal for the societal legitimacy of the Commission than if a national civil service or government put the same awkward proposals forth. The original rational legitimacy of commissioners was based on the fact that they were to perform their duties with the overall interests of the EU in mind without receiving directions from national governments or any other institution. This independent and supranational position has, however, been weakened by

13

In connection with the withdrawal of the first Barroso Commission proposal additional adjustments were made. First the Hungarian candidate Lazlo Kovacs was given a new portfolio. Second, the Latvian candidate Ingrida Udre was substituted with Andris Pielbags. This created some protests from Member States of the European Parliament who resented that there would be one woman less in the already male-dominated Commission. 14 Furthermore the European Parliament might not have won the power struggle if it had not been for the combination of Buttiglione’s unpopular statements on women and homosexuals and his nomination as Justice Commissioner with the responsibility for civil rights (“Forfatningskamp: Systemskifte. Parlamentet vandt magtkampen mod Barroso. Men var kampen lige?”, Politiken, 28 November 2004, page 5).

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commissioners who have, from time to time, unduly promoted the interests of their national government. Conversely, there are instances when a commissioner was not nominated for a second term because he or she had failed to promote national interests sufficiently in the opinion of the national head of government (e.g. British Lord Cockfield in 1989).15 Meanwhile there is a tendency for commissioners to be captured by special interests in their area of responsibility in the Commission (like in other public administrations) and thereby increase political asymmetries in the political system of the EU. On the other hand, there are also instances of commissioners working for initiatives they find to be in the overall interest of the EU even though large segments of the EU’s population oppose the initiative. A good example is the Economic and Monetary Union. As the example illustrates, such initiatives may receive the backing of well-organised and powerful interest organizations.

6.1.4. Cabinets of commissioners For the purpose of personal advice and guidance (based on the set-up of the French civil service)16 commissioners have a cabinet consisting of six persons (save the cabinet of the President, which is larger). For many years almost everyone in the cabinet was of the same nationality (and possibly same political conviction) as the commissioner, while only a single member of the cabinet came from another Member State. However, the Prodi Commission changed this in response to the criticism made by the Committee of Independent Experts of the previous Commission. Today, half the members of the cabinet must be of a different nationality than the commissioner. In addition, either the chief of cabinet or the deputy chief of cabinet must be of a different nationality than the Commissioner (Peterson 2004b, 25). The Prodi Commission furthermore decided that the cabinets of commissioners should be based in different buildings in order to avoid pork-barrelling behind closed doors. However, the Barroso Commission reversed the decision and all cabinets have been moved back into the Commission building in Berlaymont. The prototype of a rank-and-file member of the cabinet is often a younger civil servant who has had a somewhat successful career trajectory and is prepared to work considerably more than normal office hours. Additionally, there may be significant differences among Member States regarding to recruitment patterns,

15 The same thing happened to Claude Cheysson whom then French Minister of Finance, Jacques Delors, accused of ‘betraying France’ when he voted for a Commission proposal that ran counter to the interests of French agricultural interests. (The Economist, 25 March 1989). 16 See Bach (1992, 19).

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as French cabinet members are usually recruited from the French elite universities (‘les Grandes Ecoles’), whereas cabinet members from smaller Member States have the same education and training as Heads of section in the national ministries. It is commonly accepted that the cabinet investigates cases on behalf of the commissioner’s country of origin, but this representation of interests should be seen in conjunction with opposite pressures from other actors. Earlier on, it was often criticized that cabinets became too closely associated with the priorities of the Commission’s Member State which is also one of the reasons for transforming to more truly ‘European’ cabinets under the Prodi Commission (Peterson 2004b, 24–25). Nevertheless, the cabinets serve as a kind of buffer between external political pressure and General Directorates of the Commission. The inherent conflict between politically oriented cabinets and technically oriented General Directorates could also hardly be avoided. This conflict is overlaid by a national conflict between the representatives for a politically appointed Commissioner from one Member State and an often politically appointed Director General from another Member State. The Chief of cabinet (‘Chef de cabinet’) has a special position, which especially applies to the Chief of cabinet of the Commission President who often negotiates with other commissioners on behalf of the Commission President (The Economist, 25 March 1993). The Chief of cabinet participates in the meetings that prepare the weekly Wednesday session of the Commission. In principle, the Director General is superior to the Chief of cabinet in the administrative hierarchy. However, Directors General are often forced to negotiate with them, as they control the access to their joint superior. But in the end it is the commissioner who determines the role of the cabinet in relation to the DG under his auspices (Michelmann 1978b). The functions of the cabinet are as follows: 1) to serve as a personal staff for the commissioner, i.e. outline political initiatives and priorities within the jurisdiction of the commissioner, 2) to obtain information on initiatives in other commissioners’ area of responsibility by bypassing official lines of authority,17 3) to coordinate the Commission’s dealings at the political level (i.e. the Chiefs of cabinet meet every Monday under the auspices of the General Secretariat of the Commission18 to prepare the commissioners’ Wednesday session), 4) to foster and nurture relations between the commissioners and the European Parliament, 5) to serve as political representatives of commissioners, and 6) to keep good

17

For instance cabinet Member States are presented with all proposals from the DG’s of other commissioners before they are discussed at the Commission’s session. This offers the opportunity of mobilizing resistance or support. 18 See section 6.1.5. page 110 for details on the position of Secretary General of the Commission.

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relations between commissioners and their country of origin (Ludlow (1991) and Peterson (2004b). The roles described above would be very difficult to perform for proper Commission Eurocrats. Cabinet members are a mixed crowd in the sense that some were Eurocrats before being appointed, whereas others are from national civil services, the research community, interest organizations, etc. However, cabinet members are not first and foremost loyal to the EU, but to their commissioner and perhaps national governments and administrations. When the Commission was established in 1958, commissioners were officially only allowed to have two cabinet members each (Coombes 1970, 124),19 while commissioners today have six cabinet members who are members of the AD category and another six who are members of the AST category.20 It has been a widely accepted assertion that cabinets had become too big (Peterson, 2004b) until it was during Romano Prodi’s Presidency that the limit on six AD category members of each cabinet was set. The cabinets were also criticized in the Spierenburg report (1979, § 56): Our analysis of the current situation has shown that although the usefulness of these private offices is not disputed, some aspects of their operation are starting to cause difficulties and are even threatening to disrupt, quite substantially, the smooth running of Commission Services: Cabinets ‘shielding’ Members from their Services, Chefs de Cabinet usurping the responsibilities of Directors General, meetings of Chef de Cabinet (and indeed of junior Cabinet staff ) questioning proposals without consulting the officials responsible for them, interference in appointment procedures with undue weight being given to nationality factors, and so on.

The Cabinets have often played a special role in staff and promotions policy as criticized in the Spierenburg report. Cabinets often intervene in order to further career prospects for compatriots and members of the same political party. The cabinet of the Commission President is distinguished by excellent opportunities for intervention in promotions. This option was widely used by the Cabinet of Jacques Delors, according to the International Herald Tribune (2 July 1994): There has been a deliberate policy on the part of the Delors cabinet in the past 10 years of infiltrating into key jobs in the Commission French ‘hommes de confiance’ who would report back directly to the Delors cabinet.

There are also examples of promoting inept persons from other Member States in order to weaken the position of the country in question in the EU’s administration (Michelmann 1978b). The promotion and hiring procedures have since 19 However, the President of the Commission was entitled to four cabinet Member States. 20 See section 5.1 an explanation of the categories.

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been changed to counter such strategies with some success (chapter 5). The Prodi Commission, which set out to ‘clean’ the Commission after the scandals of the Santer Commission, has played a significant role in this regard (Kassim 2004). According to Abélès, et al. (1993), the Cabinets also influence the degree of national identification in the Commission: national identity is seen to be encouraged in the Commission by some features of the modes of recruitment and promotion, by the cabinets system, the END’s and parachutage. These aspects structure important contradictions into the heart of the organization.

Put differently, when Cabinets intervene in staff policy and promotions they undermine the self-regulation and autonomy of the EU’s administration. These interventions unequivocally reduce the societal legitimacy of the EU, as they leave the impression that obtaining a position in the EU primarily depends upon exploiting the ‘right connections’. The Committee of Independent Experts partially supported criticisms of the Cabinets in the 1999 report (Second report, § 7.5.8.): The Committee subscribes to the idea that large cabinets are damaging in that they become a ‘counter-administration’, de-motivate regular officials, lead to ‘parachutages’ of outsiders within the administration and contribute, generally, to an administrative culture based on party, ideological and/or regional/national divisions. The Committee therefore recommends that the size of cabinets be kept to, at most, six category-A members.

The Committee of Independent Experts, furthermore, emphasized that the cabinets should be composed of several nationalities and that it is unacceptable that cabinets are exclusively or primarily composed of persons of the same nationality as the commissioner. As mentioned above, this final recommendation was taken to heart and with the instalment of the Prodi Commission, nationality-based cabinets were a thing of the past. The Prodi Commission also reformed the appointment and promotion procedures in important ways (see also chapter 5). Firstly, a formal seniority criterion was attached to the appointment Eurocrats to senior post in the Commission. This criterion limited the possibility for members of cabinets to be appointed or promoted solely on account of political contacts or nationality. Secondly, the authority to appoint all positions under the Director General was left to the Director General thus formally cutting of the cabinets’ possibilities to influence promotions and appointments. In reality, however, the cabinets still exert considerable influence on appointments and promotions in the Commission.

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6.1.5. The bureaucratic structure of the Commission The Treaty establishing the EC does not contain guidelines on the internal organization of the Commission. In a general perspective, the Commission as a bureaucracy has been established using the French-German civil services as role models. This was ensured by the first President of the Commission, Walter Hallstein, who was also the Chief of staff and the administration (Coombes 1970). Consequently, more emphasis was put on hierarchical communication than individual initiatives, unless those initiatives were triggered by a stimulus from above in the hierarchy. An employee on a temporary contract21 described it as follows: It is a hierarchical system where patience is a paramount concept when all communications are in a foreign language and months of legislative preparation is removed from the table by the EU Ministers with the stroke of a pen. (. . .) You have to be prepared to accept that the EU is a very different place to work than what you are accustomed to from home. If you need to send an official letter to another office or out of the building it usually have to pass the desks of five to six persons and it usually takes approximately 2 weeks before it is posted. The same thing applies to letters marked ‘Very Urgent’, it will still take at least a week before you get a reply (. . .) You have to get used to another pace. But when you get the go-ahead after a couple of weeks you can conversely be confident that the letter is OK and has been given the seal of approval in the right places, (Børsen 22 October 1993, author’s own translation).

The comment may be regarded as an affirmation of the existence of differences in administrative cultures in the EU. As previously touched upon, the hierarchy in the EU’s administration increases the autonomy of the administration and possibly the degree of rationality, and it enhances the certainty of administrative case processing. There has been an increase in vertical and horizontal branches of service in the Commission over the years. Two services especially stand out among the horizontal branches. One is the legal service of the Commission, which serves as the watchdog of the Commission as it has to approve of every political initiative (Michelmann 1978b). Representatives from the legal services participate in a great number of meetings with other branches of the Commission and representatives of the Member States when legal-political issues make the agenda. In general, the strong legalistic foundation of the EU makes the legal service of the Commission powerful. The Commission also consciously uses the legal service to ensure itself an increased degree of autonomy in relation to the Member States.

21 The person in question is Ole Draborg , who had a temporary contract making him willing to comment on the Commission.

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The other important horizontal branch of service is the General Secretariat of the Commission22 with approximately 330 employees. The head of the Commission’s General Secretariat is the Secretary of the Commission as Secretary General for the Commission, and he is responsible to the President (Kassim and Menon 2004, 100). Over nearly 30 years, the Commission had the same Secretary General: Emile Noël (1958–1987). The General Secretariat of the Commission was strengthened as part of the administrative reform process under the Prodi Commission (Kassim and Menon 2004, 100). The role of the General Secretariat is to ensure maximum coordination, monitor the progress of proposals in the decision-making process, ensure that political deadlines are kept, and initiate the so-called written procedure. That implies that representatives from the General Secretariat preside over the meetings of the Chiefs of cabinet every Monday and the meeting of the Directors General every Thursday. The General Secretariat of the Commission is furthermore responsible for the formal relations with the Council of Ministers, the European Parliament, and the EPC (the European Political Cooperation). The Political Director of the Commission is also part of the General Secretariat’s staff. Finally, the General Secretariat is also responsible for the policy-planning unit of the Commission. In daily workings, staff from the General Secretariat participate in Committee meetings when it comes to procedural questions. The Commission’s General Secretariat to a large extent assumes the role as a bridge builder or arbiter between the Commission and authority actors outside the Commission. Secondary clients of the Commission will, however, usually approach Eurocrats in different branches of the Commission directly. Box 6.2. page 112 outlines the General Directorates (or DGs) and the specialised services of the Commission. The number has been on a steep climb over the years and lack of coordination between DGs has been a prime target for critics who charged the Commission with inefficiency (Ehlermann 1981, 343). Reducing the number of DGs and branches has therefore been proposed multiple times (Commission 1991), however, without much success. Until the Prodi Commission took office, the DGs were assigned fixed numbers where, for example, the DG I was the General Directorate for External Relations and DG VI the General Directorate for Agriculture. The old numerical system was abolished as the Commission wanted to emphasize equality between DGs and that DGs with small numbers did not imply more prestige than DGs with larger numbers. When the old numerical designations are used in the following it is also explained which area they designate.

22 Is referred to as SG (acronym for the French term Secretariat Generale) in EU jargon.

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Box 6.2. Branches of the Commission

Policies DG Agriculture and Rural Development DG Competition DG Economic and Financial Affairs DG Education and Culture DG Employment, Social Affairs and Equal Opportunities DG Enterprise and Industry DG Environment DG Fisheries and Maritime Affairs DG Health and Consumer Protection DG Information Society and Media DG Internal Market and Services DG Joint Research Centre DG Justice, Freedom and Security DG Regional Policy DG Research DG Taxation and Customs Union DG Transport and Energy

General Services European Anti-Fraud Office Eurostat Press and Communication Publications Office Secretariat General Internal Services DG Budget Bureau of European Policy Advisers Information Infrastructures and Logistics Internal Audit Service Interpretation Legal Service Personnel and Administration Translation

External relations DG Development DG Enlargement EuropeAid—Cooperation Office DG External Relations Humanitarian Aid Office—ECHO DG Trade Source: Commission website.

Traditionally, DG External Relations23 and DG Competition have been regarded as within the German sphere of influence,24 DG Agriculture and Rural

23

Cf. The European, 8 April 1994. The background for the German dominance in DG IV (now DG Competition) is partially historical. Germany has had an active anti-trust policy since the 1950s (inspired by the American model). Consequently, Germany had experienced bureaucrats in the competition area when initial recruitment was made (Michelmann 1978a, 481). Moreover, from 1958 to the early 1990s all Directors General in DG IV have been German (The Economist, 20 March 1993). 24

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Development and DG Development25 within the French sphere of influence, and DG Internal Market and Services within the British area. In DG Agriculture and Rural Development there was still in the 1990s a quite special culture of administration according to Abélès, et al. (1993): “The smoke-filled atmosphere of DG VI (Agriculture) reflects in its manner a French rural attitude: the gitane still has its fans.” (Author’s own translation) However, one of the results of the reform process starting with the Prodi Commission seems to be a reduction in the nationality based influences (Cini 2004). Another significant difference between different DGs is whether they are old and touch the traditionally core areas of European cooperation or if they are relatively novel. Abélès, et al. (1993) describe the self-perception of DGs as follows: Some of the DGs are aware of their relative novelty—DG XVI (Regional Policy), for instance; others feel themselves to be in some sense the ‘real’ Europe, both there from the beginning and part of the ‘nuts and bolts’. Historiographical and perceived epistemological priorities join forces here to offer a powerful space of self-definition. This would be the case for DG VI (Agriculture), for example, and for DG III (Industrial Policy). It is DG III, which has, in the perception of many of its own officials, produced the Internal Market on which so much else depends. ‘What is Europe if not a market?’ Moreover: “This is new wine in old bottles. We are the Common Market. That’s what Europe is: the Common Market.” The market can find symbolic coherence in relation to other DGs, not only in historical relation to those deemed to be newcomers to the scene, but also in contradiction to those seemed to be less close to the coalface. For example, DG I (External Relations) is perceived to be noble, bronzed and sophisticated, but flighty. DG V (Social Affairs) is thought of as idealistic and disorganized. Through relational images of this kind, DG III becomes its own model of self-conscious and down-toearth rationality, and a model of realism and order.

Traditionally, it was difficult to switch from one DG to another because, for one, it could possibly affect the internal staff balance among Member States. The geographical balance was taken very seriously, especially in the most influential DGs (Michelmann 1978a). However, a result of the administrative reform process of the Prodi Commission also seems to have been a significant increase in Eurocrats switching from one DG to another (Kassim 2004, Kassim and Menon 2004). It should, on the other hand, be noted that the possibilities of switching can be limited due to the fact that the size of DGs, moreover, varies considerably. The largest is the DG Agriculture and Rural Development with 10 directorates. Some DGs only consist of one directorate.

25

Again, this is due to the massive French interest in the EU’s agricultural policy and the fact that EU development aid originally went to former French colonies. From 1958 to the early 1990s every Director General in DG VI was of French origin (The Economist, 20 March 1993).

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6.1.6. Conflicts between different branches of the Commission Conflicts between different DGs in the Commission are inevitable. The conflicts are of the same nature as on the national level and concern who has jurisdiction in certain areas of responsibility, the size of budgets, the number of employees, etc. However, the conflicts at the EU level are far more complicated than at the national level as the environment consisting of clients, allies, and adversaries is far more complex and at several administrative levels. DG Agriculture and Rural Development have, for years, been entrenched in a conflict with policy DGs in the areas of industry and technology. The latter DGs have felt inhibited because roughly half of the EU budget is used on agricultural subsidies. Another cleavage regarding views on and attitudes towards industrial policies is between DG Information Society and Media (which includes telecommunications) and DG Competition. DG Information Society and Media has been called “the interventionist arm of the Commission” (Sharp 1992, 251) and ostensibly perceives its task as promoting research and development programmes in the telecommunications industry, for one, whereas DG Internal Market and Services and DG Competition press to liberalize access to telecommunications cables. Conflicts may also stem from different environmental attitudes and interests. An illustrative example is the decision-making process surrounding a Commission proposal for measures against ozone layer-degrading compounds. Among the compounds in question were so-called HCFC gasses26 and the disinfectant methyl bromide (Information, 18 March 1993). DG XI (now DG Environment) had submitted a proposal for measures to the Council of Ministers. However, the Commission President, Jacques Delors, intervened in the eleventh hour. His intervention came after active lobbying from French chemicals firm Atochem who is the market leader in the production of methyl bromide as well as HCFC. The decision to prepare joint EU regulations to reduce the consumption of HCFC and methyl bromide was taken in December 1992. The decision was made a month after an international UN conference on the ozone layer, which concluded in the adoption of a global ban on HCFC in 2030 as well as regulations on the use of methyl bromide. At the Commission’s December session the stage was set for a stricter Commission proposal than the one agreed at the UN conference. It was specified that the proposal should be ready for the meeting of the Council of Ministers of the Environment on 22 March 1993. DG Environment

26 HCFC gasses are currently being used as an alternative to the most aggressive ozone depletors, CFC gasses, but as HCFC also damages the ozone layer to some extent it has been a goal to make their use as short-lived as possible. Methyl bromide is used as a pesticide in agriculture, especially in fruit-producing countries in Southern Europe.

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did compose a proposal that would have meant a ban on the use of HCFC by 2014, or 16 years in advance of the UN deadline. DG Environment motivated the stricter EU target with the reason that HCFCs would “make a substantial contribution to ozone depletion in the course of the next 20 years.” Against this backdrop the time schedule was referred to as ‘compelling’. Regarding methyl bromide, DG Environment proposed reducing production by 50 per cent before 1999. However, even though the proposal had more or less been approved by all other DGs and commissioners, it never made it to the agenda at the meeting of the Council of Ministers of the Environment on 22 March 1993. Meanwhile, the proposal had been leaked to the chemicals industry, even before it had reached Member States’ Ministers of the Environment. The French chemicals firm Atochem got wind of the proposal at a very early stage and did everything in its power to have it modified. Atochem is the EU’s largest producer of methyl bromide and, in the course of a few years, also the world’s largest producer of HCFC gasses. Consequently, the company had an obvious interest in delaying the phasing out of the chemicals. Additionally, the French government owned 51 per cent of Atochem and the firm had, consequently, close ties to the French government and Jacques Delors. At the last moment, the French government announced that it could not accept having the DG Environment proposal on the agenda of the Council of Minister of the Environment without modifications. Simultaneously, DG Industrial Policy, DG Agriculture, and DG Enterprise and Industry had changed their positions and renounced DG Environment. The HCFC gasses example illustrates the limitations on Commission autonomy when the economic interests of a large and important Member State are at stake.

6.1.7. Commission communications The working language in the Commission is characterized by jargon as in other specialized workplaces. New terms and acronyms have mushroomed, which has meant the publication of several special EU dictionaries. With the goal of harmonizing the internal written communications in the Commission, a manual has been compiled named “L’expression écrite dans les services de la Commission des Communautés européennes” (“Written Expression in the Services of the Commission of the European Communities”), which contains guidelines on how to structure a memorandum, initiate a letter, write a decision-making summary or report, and the use of courtesies in internal and external letters. The manual was compiled while Jacques Delors presided over the Commission, but even before written communications were made according to comparable guidelines. As English and French are dominant languages in the Commission, there is a tendency for communications to be characterized by a mixture – ‘Euro-

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Frenglish’ – that implies randomly switching between English and French terms and mixing up the grammar of the languages. Even though translations are made for all official languages, French, English, and German have preferential positions. In spite of the influx of Member States with English as the preferred non-native language,27 French has for long retained a strong position as an administrative language in the EU. A report on the position of French in the EU institutions explains that France embedded the position of French as an administrative language when negotiating the British accession, as French President Georges Pompidou came to the accord with PM Edward Heath that British Eurocrats should be proficient in French and that Britain was to never intervene to further the position of English as an administrative language in the EU (L’Association des Fonctionnaires francais de la Communauté europénne, 1991). Among French members of the European Parliament, a group has been set up (“Groupe pour l’Etude et la Défense de l’Usage de la Langue Francais”) with the task of defending the position of French in the European institutions.28 However, during the last ten years French seems to have been loosing the battle for dominance as the administrative language. English is today the overriding working language in the Commission and even younger French diplomats and Eurocrats speak a reasonable English.

6.2. Organizational processes of the Commission 6.2.1. Functions of the Commission in the decision-making process The Commission has several functions in the decision-making process of the EU. It submits proposals for all kinds of legal instruments (a right of initiative), participates in all levels of the Council of Ministers’ subsequent treatment of proposals (a sort of consulting function but with the potential for significant influence) and monitors compliance with legislation in force (a control function). The Commission is to implement the Commission regulations, which can be quite

27 See “After Babel, a new common tongue; The European Union”, The Economist, 7 August 2004, page 33. 28 On 10 July 1998 a French Member State of the European Parliament, Dominique Souchet, inquired on the (lacking) use of French at a seminar on fisheries policy in connection with the World Exhibition in Lisbon on 25–28 June 1998 as he had learned that participants were reputedly shocked over the complete lack of communication in French. The Commission replied that all Commission staff on location spoke French fluently, which also applied to some of local temporary staff (Official Journal of the European Union, 22 February 1999, C 50/134).

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far-reaching and may necessitate the issuing of legal instruments of a technical nature. In some instances the Commission also performs the direct administration of EU regulations. The successful management of the Commission’s functions depends on the extent it succeeds in outlining a strategy for fulfilling the so-called Lindberg thesis. The thesis propounds that the Commission is efficient in relation to its own goals when it succeeds in an ‘upgrading of the common interests’.29 In other words, it is up to the Commission to isolate and identify problems of Member States and offer common European solutions. The most important function of the Commission is based on the Council of Ministers, inability adopt legislation unless there is a proposal on the table from the Commission (save a few cases). Thus, individual Member States or other EU institutions are unable to submit proposals to the Council of Ministers.30 With the adoption of the Treaty of the European Union, the European Parliament obtained the right to ask the Commission to present certain proposals. However, this was a mere codification of an already existing practice. The Commission’s formal monopoly on initiative is, with its executive powers, the legal basis for the potential functioning as a political bureaucracy (see Wessels’ model presented in section 3.6.). All in all, the Commission is the key institution in what is sometimes referred to as the ‘Community Method’, illustrated in the box page 118. Proposals are drawn up internally by Commission officials from the relevant General Directorate. Alternatively, the Commission asks an independent committee of experts to compile a report on a given subject, which the Commission’s own officials elaborate until it appears as a proper legislative proposal. When new EU proposals are initiated, the Commission will often involve external experts who, from a formal perspective, are independent of Member States and organized interest groups. In recent years there has also often been a public hearing before the Commission has made important new proposals. According to Nugent (2003), four factors determine the extent to which the Commission is willing to let outsiders participate in the drafting of a potential legal instrument: 1) What is the sector in question, and which channels and conflicts exist in the area? 2) What is the Commission’s political assessment regarding the importance of letting outsiders participate in the drafting of a concrete proposal? 3) How big is the Commission’s need for external expertise? 4) How is the working method in the General Directorate or office that is to draft the proposal? When a proposal has been drafted in an office in the Commission (with or without the participation of external experts and interested parties), the proposal is forwarded to higher levels in the Commission’s organization. The proposal 29

See Lindberg (1963). However, the European Parliament may encourage the Commission to present certain proposals. 30

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Box 6.3. What is the Community Method? 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, which together form 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. Source: The Official Journal of the European Union, 12 October 2001.

is discussed with other affected General Directorate and other parts of the Commission. If agreement is not reached in the interdirectorate consultations it will be difficult for the proposal to be accepted by the college. In the end, commissioners make their decisions on the new legal instrument, which is then made public and forwarded to the Council of Ministers and the European Parliament. Of course, the time it takes from the first initiative to the Commission making it public varies from proposal to proposal. However, a year’s preparation is common as it is at the national level. Often the Commission’s proposal is discussed with selected national experts even a long time before it is made public. This happens in expert committees and groups established by the Commission. The experts who possibly have assisted the Commission in preparing the proposals are sometimes invited to attend the meetings in the committees. In addition, national bureaucrats will discuss the proposal on an informal basis in the committees of the Commission. This implies that the Member States have wielded influence over the submitted proposals long before they reach the Council of Ministers. Furthermore, the Eurocrats of the Commission will often negotiate with the same national officials in the same areas year after year, which yields strong familiarity with each other’s positions and creates closely knit networks of independent values and positions. Even though the Commission retains the monopoly on making proposals for EU legislation, proposals are submitted due to a host of different motives. According to the Commission’s 2001 report on ‘Better Lawmaking’, only around 10 per cent of proposals are new Commission initiatives (box 6.4., page 119).

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Box 6.4. Where do EU proposals originate? Where did initiatives for EU legislation originate in 2001? Resulting from international accords31 Treaty obligations or derived from other EU legal instruments Adoption of existing EU legislation Requests from the Council, the European Parliament, Member States, or corporations New legislative initiatives

30 per cent 10–15 per cent 20 per cent 20–25 per cent 10 per cent

Source: Commission’s report December 2001: “Better Lawmaking 2001”. COM(2001)728.

However, the Commission, although often through the comitology system, may opt to adopt legal instruments under superior legal instruments that have been adopted by the Council of Ministers. Thus, Article 211 in the TEC stipulates that the Commission has independent decision-making powers. Every year, the Commission adopts a considerable number of administrative legal instruments (approximately 5,000–10,000) on the basis of this stipulation. Still, the Commission has in principle only been delegated decision-making powers in questions of secondary, administrative importance. On the other hand, ‘administrative legal instruments’ should be interpreted widely and have sizeable political consequences. The Commission has, for instance, issued regulations on the price level for agricultural produce when negotiations on the issue have been deadlocked in the Council of Ministers (Peters 1992, 103). An important part of the autonomy of the Commission is based on its right of initiative as stipulated in the Treaties. The reason for delegating the right to initiate legislation to the Commission is the confusion and mutual suspicion that would ensue if every Member State presented proposals for legislation that would all require processing. When the Commission drafts proposals, a legislative uniformity is ensured, and the Commission may meanwhile play the role as the guardian of the EU’s common interest on the practical level. When the Council of Ministers has wider discussions on certain issues, the Commission will usually make preparations for the discussion by presenting a communication to the Council, and it will often be Commission communications that initiate discussions in the Council of Ministers. In many cases, the Commission will only draft concrete legislative proposals after becoming familiar with the positions of Member States by broader discussions in the Council of Ministers (and by prolonged and thorough consultations with national officials and interest organizations). The Commission’s carrying out of the right and duty

31

The Commission usually negotiates international accords with a mandate from the Council of Ministers.

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of initiative is, in other words, dependent on both technical and political inputs from Member States. The Commission participates in the Council of Minister’s reading of proposals for legal instruments, as the Commission is represented in all meetings in the Council of Ministers and all working groups that meet under the auspices of the Council of Ministers. In all working groups the Commission’s representatives participate on an equal footing with representatives from Member States (albeit without the right to vote). In addition, the Commission has power to veto all changes to a proposal that are made in the Council unless changes are confirmed unanimously which they seldom are. In this manner, the Commission often wields considerable influence over discussions in the Council of Ministers and the working groups due to its expertise. The Commission, for example, frequently presents draft settlements in order to bridge differences between parties. The Commission is directly setting the agenda on other occasions (Nedergaard 2006b). One of the goals of the Commission is to contribute to the development of the EU and European integration (Article 211 in the TEC). A strengthening of the Commission has therefore traditionally been seen as a step on the road to further integration in the EU. An influential Commission has also been seen as an alternative to a EU that is dominated by large Member States. Many smaller Member States (such as the Netherlands, Belgium, Luxembourg , and Portugal) often regard a strengthening of the Commission as being in their own interest (Nedergaard 2004). However, several factors (and not least the French desire for an independent national role in the decision-making process of the EU) lead to a weakening of the Commission’s position early in EU history. The formal rules in the TEC award the Commission a relatively strong position when the adoption of Commission proposals only requires a qualified majority vote among Member States. Against this backdrop, it seems clear that the Luxembourg compromise32 (and the tendency for many years only to make limited use of votes) meant a weakening of the Commission. At the same time, the Council of Ministers did not refrain from suggesting changes to the Commission’s proposals as the purpose of decision-making in the Council of Ministers was, for many years, solely to find a legal instrument that could be accepted by all Member States (as a consequence of the Luxembourg compromise). In many cases the Council of Ministers completely altered the original Commission proposal. Conversely, the strengthened role of the Council of Ministers in EU decision-making at the Commission’s cost has undoubtedly increased the societal legitimacy of the EU for a long time span. However, the Luxembourg compromise has not been referred to in many years, and none of the new Member States have stated that they accept the compromise.

32

See box 7.4. page 168.

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Furthermore, the Commission’s possibilities for acting as an arbiter and the influence the decision-making process during the Council of Minister’s reading of Commission proposals was weakened concurrently with the strengthening of the position of the Presidency of the EU. The country holding the Presidency also often desires to present draft settlements that may rally Member States. For instance, the so-called ‘Presidency Conclusions’ are drafted after every European summit under the guidance of the Presidency Member State. Finally, the considerable expansion of the Secretariat of the Council of Ministers has strengthened the administrative capacity of the EU Presidency. However, the Presidency still have an incentive to cooperate with the Commission as the Commission has the power to veto changes that are not unanimously accepted in the Council. In the areas, where the Commission had the possibility of independently adopting and implementing proposals, the autonomy of the Commission has been weakened through the establishment of so-called management committees that consist of representatives of the Member States (section 6.2.4.). Since the implementation of the Single European Act and establishment of new decision-making procedures with qualified majority voting in new areas, the Commission has meanwhile regained part of its original position. The significantly reduced importance of the Luxembourg compromise and increased inclination to vote in the Council of Ministers point in the same direction.

6.2.2. Executive powers of the Commission All in the all, the treaty base of the EU awards the Commission executive powers to a considerable extent. However, this does not mean that the Commission has ‘proper’ executive powers. This is because executive functions have been specifically delegated from the Council of Ministers to the Commission. Second, the Council of Ministers still defines the boundaries of the Commission’s executive functions. Third, the Commission almost always delegates the responsibility of implementation to Member States due to lack of resources and experience and due to political reasons, although the Commission often retains the power to monitor implementation. Fourth, the Council of Ministers continually monitors the Commission’s executive functions by using a committee procedure. It is primarily in the EEC area that the Commission has been attributed executive powers by the Council of Ministers (the so-called ‘subsidiarity powers’). The Commission had often been attributed these functions directly in the ECSC treaty. The executive powers of the Commission (both those directly based in the Treaties as well as those based on delegated competencies from the Council of Ministers) may be grouped in the categories I, II, III, and IV (Noël 1991). Category I–powers consist of issuing regulations on the implementation of treaty stipulations and legal instruments adopted by the Council of Ministers.

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The ECSC treaty gave the Commission far reaching powers.33 The EEC Treaty also awarded the Commission direct powers. The most important are the Commission’s powers to establish a customs union according to the time schedule in the Treaty. When the Commission’s responsibilities have grown considerably, it is particularly due to the powers to implement common policies (especially in the agricultural area) and the internal market that the Council of Ministers has delegated responsibility to the Commission. Category II–powers consist of applying treaty stipulations on individual cases (in relation to governments as well as private corporations). The Commission was, according to the ECSC Treaty, particularly extensive in this area. The Commission was often in direct contact with coal and steel businesses.34 The EEC Treaty awarded the Commission with similar powers in the area of competition policy especially, such as monitoring cartels and potential abuse of a dominant market position, monitoring and abolishing public subsidies, and anti-discrimination measures in the customs area. These powers are strengthened by the additional powers delegated by the Council of Ministers to implement common policies on agriculture, trade, fisheries, the environment, the internal market, etc. The Euratom treaty awarded the Commission administrative tasks in the same extent as the ECSC Treaty.35 Category III–powers consist in administering the opt-out clauses in the treaties. According to a number of provisions, the Commission may, in special cases, make exceptions to Treaty provisions when a Member State requests so. Originally, the ECSC and EEC Treaties contained general provisions that allowed for extensive and varying options for awarding exemptions – from the imposition of customs tariffs to the possibility of allowing an entire economic sector to deviate from treaty regulations. Most of these provisions were only valid in the transition phase stipulated in each Treaty.36 However, one of the provisions

33 The Commission was mandated to ensure the realization of the goals stipulated in the Treaty, i.e. establish and administer a common market for coal and steel. Almost every single article in the ECSC treaty gave the executive authority new responsibilities and corresponding powers. 34 The Commission closely monitors aspects of their activities. The Commission may stimulate and coordinate investments, help employees threatened by unemployment, award loans etc. The Commission’s role became apparent in connection with the crisis that hit the European steel industry in the 1980s. 35 In this context it concerns the supply of fissile materials, radiation protection, monitoring nuclear power plants, and disseminating research results, to name a few. 36 New general opt-out provisions have been introduced to current accession treaties in order to avoid difficulties after the accession of the new Member States to the EU. They are of limited duration.

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remained in force after the establishment of the common market in 1968. This was Article 115 in the EEC Treaty, which allowed independent national import quotas in relation to third countries. Category IV–powers consist of the administration of the EU’s Funds. The Commission administers the allocation of funds that are intended for the EU’s direct market interventions and the EU’s Funds.37 From 1952 it was not only possible to guarantee the EU’s loans by the ECSC’s own income (‘the ECSC tariff ’), but also to finance interventions in the coal and steel market.38 Since 1958, the Commission has furthermore administered a Euratom programme for research and tuition in the nuclear field. As such, joint research facilities have been established in Ispra (Italy), Karlsruhe (Germany), Geel (Belgium), and Petten (the Netherlands). There have been massive changes in research activities since the 1970s. The EU has tried to coordinate the nuclear research of Member States, the carrying out of joint projects in mind. Hereof the most famous is JET ( Joint European Torus), a large facility devoted to increase knowledge of controlled nuclear fusion. The facility is in Culham, near London. Finally, the research activities of the EU include far more than nuclear research. After the entry into force of the European Single Act, these activities are part of multi-year programmes. The Commission furthermore administers a number of EEC Funds with significant funding. It is first and foremost the European Agricultural Guidance and Guarantee Fund (EAGGF – or FEOGA by the French acronym). The EAGGF’s so-called Guarantee section is responsible for the overall funding of market schemes and the price support subsidies that are adopted by the Council of Ministers. However, the Common Agricultural Policy is the only area where a common policy covers an entire business sector and the EU wholly provides funding. Finally, the Commission administers the so-called structural funds. They are the European Social Fund (ESF), the so-called Guidance section of the EAGGF, the European Regional Development Fund (ERDF), and the Financial Instrument for Fisheries Guidance (FIFG). Additionally, there is the Cohesion Fund, which was established with the TEU. In relation to poor third countries there is also a fund in the development field, the European Development Fund, which was already provided for in the EEC treaty.39 37

The concept ‘Fund’ is commonly used but has no precise meaning in this context. However, a Fund may be defined as the legal basis for the yearly allocation of funds. 38 The most significant expenses today are research subsidies, interest subsidies for investment and restructuring loans, re-training for employees, and other social instruments that are related to the restructuring of the iron and coal industry. 39 The Fund operates within the framework of periodical agreement (former Lomé, and now Cotonou agreements) between the EU and African, Caribbean and Pacific states (ACP countries) that formerly had close ties to a EU country. The Commission further-

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6.2.3. Comitology: The EU’s system of committees40, 41 According to the TEC, the Commission is normally responsible for the implementation of legislation at the community level (Treaty establishing the EC, Article 202).42 Therefore, every legal instrument stipulates which powers of implementation the Commission is awarded and how those powers are to be exercized. The formulation is frequently that a committee according to the socalled comitology procedure shall assist the Commission. The committee is made up of representatives for authorities of Member States under the Commission, which gives the Commission the possibility of entering into a dialogue with national authorities before implementation measures are adopted. In this way, the Commission can ensure that implementation measures are optimally adapted to conditions in each affected Member State. In addition, the comitology system allows the Council to observe the implementation and make sure that the Commission does not exceed the boundaries of the competency that has been delegated to it. The extensive structure of committees is a central feature of the decisionmaking process of the EU on all levels, areas, and phases where the Commission plays a central role.43 The Committee system of the EU differs from comparable organs at the national level regarding their scope, political significance, the diversity and complexity of issue areas, systematic in preparation and overall power position (Kalin 1993). In a theoretical sense, the comitology system can be interpreted as an institutional response to the tensions between the dual supranational and intergovernmentalist structure of the European Union on the one hand, and the problems that have to be solved by the EU’s institutions on the other ( Joerges and Neyer 1997). The committees are responsible for a large part of the political activity within the framework of the EU’s decision-making process. Member States’ interactions happen, to a large extent, by national representatives who participate in committees. In this connection the committees of the EU acquire importance for the efficiency and legitimacy of the decision-making process. more administers the measures that the EU adopt to support other developing countries than the ACP countries, i.e. countries in the Mediterranean and a number of countries in Asia and Latin America. 40 The system of committees is here defined in a narrow sense. However, the group of commissioners, Coreper (section 7.2.3.) and the committees of the European Parliament could also be regarded as a part of the EU’s system of committees if a less restrictive definition is applied. 41 Comitology is the term for theories on the organs (committees) that act as a kind of ‘mini Councils’ and vote on subsidiary legal instruments. 42 The provision also made it to the Constitutional Treaty. 43 The Commission publishes a register of existing committees on an annual basis. It happens in connection with the presentation of the budget to the European Parliament. There are approximately 1000 committees within the Commission’s field of responsibility.

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The procedures that apply to relations between the Commission and the committees correspond to different models stipulated in a council decision (the aptly named Comitology Decision). The first ‘Comitology Decision’ dates from 13 July 1987, but in order to incorporate subsequent treaty revision, including primarily the new position of the European Parliament in the new co-decision procedure, and to accommodate criticisms that the EU system is too complex and opaque, the 1987 decision has been replaced by the Council of Ministers’ 28 June 1999 decision. Furthermore, the new 1999 ‘Comitology Decision’ included the option of increasing the transparency of the committee system for the European Parliament and the broader public, as committee documents became easier to obtain by citizens.44 The Comitology Decision lists three types of committees: advisory committees, management committees, and regulatory committees. It is the Commission that formally invites the members of all committees and pays their travel costs and food expenses. The invitation from the Commission is forwarded to the permanent national representations in Brussels. However, different criteria apply for the appointment of the members of the committees. With regard to the advisory committees that are summoned before a directive or regulation is adopted and the regulatory committees which are summoned when the Commission adopts regulations, the members are appointed by Member States’ governments and act on mandates from their respective governments. Conversely, members of the management committees, who convene when directives are to be adopted in the Commission, are nominated by the Member States but appointed by the Commission. In the ‘Committees of an Advisory Nature’,45 the Commission gathers opinions from representatives of Member States. The work in these committees is based on the Commission’s submittal of proposals of necessary measures for implementing, for example, a research project. The committees offer their opinions before a fixed deadline. The Commission to the widest possible extent pays heed to the opinions of committees and states a reason if it does not follow their recommendations. Even though the Commission has committed itself to paying heed to the recommendations of the advisory committees, it is not bound thereof, and the proceedings in the committee have no implications for the subsequent workings of the procedure. Due to the limited options of sanctions, it is characterized as a weak committee. In opinions attached to the Single European Act it was recommended that advisory committees be used in connection with the implementation of the internal market.

44

It is the final goal to make decision-making procedures electronic and make all nonconfidential documents that are presented to the European Parliament fully public on the Internet. Furthermore, since 2000, the Commission has published an annual report with a summary on activities of committees in the preceding year. 45 Often known by the acronym CAN.

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The advisory committees make up the majority of committees, and their primary function is to generate expert knowledge. It may be expert knowledge of a technical character in a given field. Due to limited administrative resources compared to responsibilities, the Commission often has only limited options for performing the task beforehand by itself. It may also be to generate expertise on the positions of affected actors or willingness to enter into a compromise, for example, within a given area of EU cooperation. This expertise is of a political rather than a technical nature (Kalin 1993). Preparatory committees are presided over by a Eurocrat or another person appointed by the Commission. It may be committees consisting of persons with scientific expertise or other highly skilled persons without connections to Member States or interest groups. These persons function as independent consultants and are recruited on the basis of their expertise in a given field. Often advisory committees meet two to four times annually. In addition to this, the Presidency often holds a meeting for committees, a socalled informal meeting, that meanwhile has almost the same character as formal meetings, but also includes cultural elements and a joint dinner. Although, the Commission does not have powers of implementation, the Council of Ministers has, as previously touched upon, expanded the administrative functions of the Commission by awarding it tasks in relation to the subsidiarity community powers with the transformation of the Commission, to a certain extent, into an ‘implementation bureaucracy’, to borrow a term from Bach (1992, 27). When the Council of Ministers has decided so, the management and regulatory committees are summoned. The procedure in the management committees is as follows: proposals from the Commission are submitted to the committee, which then makes a decision by qualified majority voting within a given deadline.46 The Commission subsequently adopts the legal instrument. If it is not in accordance with the opinion of the committee, the Commission is to notify the Council of Ministers immediately. Hereafter, the Council of Ministers may decide to award the Commission one of two roles. The first implies that the Commission shall delay implementation for a maximum of one month. Within this time span the Council of Ministers may make another decision. The other role implies that the Commission shall delay implementation for a set time span, however not exceeding three months. All in all, it is paramount for the decision-making process in the field that the Member States have not left overall implementation to the Commission. Thus, also at the level of the management committees, national influence has been institutionalized, which is closely related to the aspiration of ensuring a high degree of societal legitimacy for the decision-making process. In the Common Agricultural Policy (CAP), it is up to the Commission to administer the decisions of the Council of Ministers. Especially important is the 46 If the committee does not issue an opinion within the deadline set by the chairman, the Commission will adopt the provisions on its own.

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fixing of export restitutions and import tariffs. Yet, the Commission also makes a string of different decisions that affect prices and the market developments. It all happens after readings in the management committees. The management committees (or ‘comités de gestion’) were established in 1962 as a part of the CAP regime and have, in practice, proven to be administrated very effectively. Since then, management committees have been set up for every agricultural product. ‘Standard operating procedures’ (SOPs) are well developed within the administration of the CAP. In management committees decisions are made on less significant issues regarding the CAP’s market regime, such as fixing of export restitutions, subsidies, and so on. The committees consist of national officials (from the Ministries of Agriculture and Revenue Services, for example) and are presided over by a Commission representative (Hix 2005, 53). In management committees the votes are weighted in the same way as in qualified majority votes in the Council of Ministers, as the Commission representative is devoid of the right to vote. Noël (1991, 17) has likened the use of management committees to an alarm system. If the Commission does not support the opinion of the majority of government representatives, it is an indication that there is a severe coordination problem between the administrations of Member States and the Commission. That is why the Council of Ministers sometimes intervenes and makes the decision. Instead of an alarm system it could also be regarded as a control function with the aim of increasing societal legitimacy as a starting point. Another committee, which is closely related to the management committee, is the regulatory committee (‘Committee of a Regulatory Nature’). 47 Decision-making procedures in the regulatory committees are quite – but not exactly – similar to the ones that apply to management committees. In both committees the Commission submits its proposal to the committee. However, in the management committee an opinion reached by qualified majority against the Commission proposal is required in order to reject it, whereas in the regulatory committee an opinion in favour of the proposal must be shared by a qualified majority in order to adopt it. Hence, it is harder for the management committee to reject a proposal than for the regulatory committee. The notion applies for both committees that if the reached opinion is supportive of the proposal, the Commission subsequently adopts the provisions. If the opinion does not correspond to the proposal or if the committee does not issue an opinion before the deadline, the Commission immediately submits its proposal to the Council of Ministers for decision. The Council of Ministers adopts the proposal by qualified majority voting. Conversely, it requires unanimity in the Council of Ministers to modify the proposal. If the Council of Ministers does not make a decision before a set deadline, no longer than three months, it may bestow the Commission with

47

Often designated by the acronym CRN.

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one of two roles in the different areas of cooperation. The Commission is either allowed to adopt the proposal or the Commission may only adopt the proposal if there is not a simple majority against it in the Council of Ministers. Due to their competencies, the regulatory committees are characterized as strong committees. Box 6.5. Outline of advisory, managerial, and regulatory committees Advisory committee in the Commission

Management committees Regulatory in the Commission committees in the Commission

Purpose

Advise the Commission

President Participants

The Commission National officials, external interested parties, and experts From the department and especially from the agency/the department Large degree of openness in relation to participants May come from a variety of actors: Business federations, research communities, Member States, the Commission, etc. Decision-making process characterized by circle of interested parties

Vote on ‘subordinate’ proposals for directives that are subsequently adopted by the Commission The Commission National officials from Capitals or PR

Vote on ‘subordinate’ proposals for regulations that are subsequently adopted by the Commission The Commission National officials from Capitals or PR

From the government

From the government

Closed sphere of participants Stems from the Commission

Closed sphere of participants Stems from the Commission

Mandate Openness Initiative

Special conditions

Frequent votes. Frequent votes. Efficient and fast Efficient and fast decision-making process decision-making process Criteria of adoption Hearing of relevant parties Qualified majority Qualified majority against Commission against Commission proposal in order to proposal in order stop it adopt it Case processing Short to medium Short Medium time span

Source: Author’s own representation.

Different theoretical perspectives may explain the committee system of the EU. At any rate, the effect of the many committees that coordinate, offer advice, and make decisions within the given framework is that they function as stabilizers and reduce potential resistance against decisions in the Commission’s environment. The American organizational scholar David O. Selznick (1953) used the concept of ‘co-optation’ to describe the tendency that organizations in potentially hostile surroundings use recruitment to neutralize potential adversaries.

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This corresponds to the Commission’s attempt at involving national experts and members of the permanent national representations in Brussels as much as possible in the internal decision-making process of the Commission. The Commission’s former Secretary General commented at an early stage, These experts do not formally commit their governments but, as they are informed of the interests and opinions of the latter, they perform a useful function in guiding the Commission in its search for solutions that are technically accurate and generally acceptable to the six governments, (Noël 1967).

The French term for this process is ‘engrenage’, which literally translated means the interlocking of gears. Lindberg characterized in his day the involvement of national officials and experts as ‘a keystone of the Commission’s tactics’ (Lindberg 1963, 53). The goal of these tactics is to increase societal legitimacy and the efficiency of the EU’s decision-making process. The European Parliament has repeatedly criticized the utilisation of the different types of committees as it finds that they harm the independence of the Commission (Hix 2005, 57). Furthermore, it has criticized the Council of Ministers for not using advisory committees in cases concerning the internal market. The Council of Ministers is to an increasing extent using procedures (in the shape of different types of management or regulative committees, box 6.5. page 128) that, according to the European Parliament, may imply decisions that do not reflect the common EU interest. A majority in the European Parliaments claims that it may risk endangering the efficiency of the EU’s integration process. Concepts such as ‘bureaucratic intermingling ’ (Pag 1987, 446), ‘co-operative bureaucracy’ (Wessels 1985), ‘joint policy-making process’ (Bach 1992, 25), or ‘transnationalization’ (Esmark, 2002) have been used to characterize the decision-making system of the EU and its committee system. In this context, the committees are an institutionalization and stabilization of the relations between the bureaucratic actors at the EU level and in the central administrations of Member States. At the same time, they facilitate far more informal contacts and the establishment of more or less permanent networks, which may turn out to be independent actors in the decision-making process. Often, loyalty arises between officials from different Member States, as the assistance of another Member State in a specific situation may create a ‘political bill of exchange’, which may be cashed in the shape of concessions at the level of bureaucrats at another time. In practice, the contacts in the committees are important horizontal lines of information between different offices and departments in the civil services of Member States and individual DGs in the Commission. Consequently, the Commission’s committees are often characterized as ‘instruments of joint management.’ Information of relevance to decisions is exchanged in transnational bureaucratic networks. In this context, most decision-making processes are de-politicized and even de-nationalized. This is because pragmatically inclined experts more often than not present technical-instrumental solutions (Bach, 1992, 24). On

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the other hand, it may be claimed that the technical-administrative functions are politicized. In any case, in the EU it is clearly the case that the bureaucrat’s networks mentioned in chapter 2 achieve a density and intensity that clearly exceeds other networks between EU Member States and other international administrations. This transnational structure of communication perforates vertical hierarchies and distributions of competences in the administrations of Member States to the extent that strong horizontal networks of communication are obsolete, which, for one, implies transnational loyalties. Possibly, the main implication is that the national official with EU tasks acquires a more European attitude, whereas the Eurocrat is conversely more prone for a national attitude due to work interactions.48, 49 The connections between bureaucrats in the civil services of the EU imply a deviation from the ideal typical model of bureaucracy. The ensuing bureaucratic structure is hereby more ‘liquid’ and less hierarchical. It is a reasonable expectation that an organic organizational structure that comprises national officials as well as Eurocrats will be formed. This development is a departure from the perception of the decision-making process of the EU as one unified compact process. Instead, a space is opened for multiple ‘streams’ of decision-making options, problems, solutions, and participants. On the other hand, these ‘streams’ are unidirectional, namely directed towards increased European integration. Therefore, the EU’s decision-making processes may possibly be described as ‘directional Garbage Can processes.’ In this context, a valid claim may be made

48 Some studies have pointed in the opposite direction. However, these studies are of an older date. In a 1975 study by Werner J. Feld and John K. Wildgen conducted interviews with 82 national officials from the then nine Member State to investigate which factors influence the attitudes and behaviour of officials in relation to integration (Feld and Wildgen 1975). Nationality, age, and place of employment were singled out as variables. The conclusion was, “. . . The mere fact of working together does not unidirectionally impel integrative attitudes.” (Feld and Vildgen 1975, 256, in Fredslund and Thorning-Schmidt 1994). According to the authors, the reason is that national officials fear that increased integration would imply more competition for their own position from other elites. Therefore, national administrative elites counteract integration and may in reality be ‘saboteurs at work’ (Feld and Wildgen 1975, 244). In this context it is furthermore worthwhile noting one of Felds and Wildgen’s sub-conclusions, namely that the officials with the most positive attitude towards the EU were the ones employed in the foreign services of Member States (Feld and Wildgen, 248, in Fredslund and Thorning-Schmidt 1994). 49 Irène Bellier (2000) observes, for one, a number of linguistic tensions in the Commission: “Beyond the Commission’s demonstrative ‘Europeaness’, one observes that the performance of references to national identities is sustained by at least two criteria: the language used in professional exchanges and the ways of doing things, which recall national origin and are occasionally stigmatized by stereotyped judgments.”

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that this administrative structure requires a bureaucratic entrepreneur rather than a routine oriented bureaucrat. The number of academic Eurocrats is approximately 9,000 (see table 5.3. page 77). According to this number, the number of visiting national bureaucrats should be added. If the aggregate number of EU committees (approximately 1,000) is taken as a starting point, and it is assumed that two to three national bureaucrats are attached to every committee in each of the 25 national delegations, a good estimate is that approximately 50,000 national bureaucrats are the ‘Reisekader’ of the EU, to use an expression by Bach (1992, 24).50 Along with the Eurocrats they make up the trans-European bureaucracy of the EU.

6.2.4. Lobbyism and Eurocrats Lobbyism is probably a more important part of the EU decision-making process than at the national level, as lobbyism is characterized by interest groups that apply external pressure in order to influence the decision-making process. On the contrary, the national decision-making process is to a higher extent characterized by an organization of interests where interest groups are invited to the negotiation table. From a political science perspective, the organization of interests in the EU is pressure group based, whereas it frequently is corporatist in Northern European Member States. Yet, lobbyism in the EU also displays corporatist features from time to time, for example, through participation of interest groups in the Economic and Social Committee (ESC) or formal invitation of NGOs to public hearings of important initiatives. Not least representatives from different interest groups frequently contact the Commission. These may be divided into organizations that do not work for their own gain (i.e. professional, cultural, and environmental organizations) and organizations that work for their own gain (legal advisers, public relations businesses, and consultants). The latter often work on the behalf of third parties. Meanwhile, recent years have seen increased political activity directed towards the EU’s institution and especially the Commission and its General Directorates (Dosenrode and Sidenius 1999, 50) but also the European Parliament has been subjected to an increased level of lobbyism. An April 2003 report from the research department of the European Parliament put the number of lobbyist offices at an estimated 2,600 with approximately 10,000 employees. From a statistical perspective, European business interests have the best representation (33 per cent), with consultants coming in second (20 per cent). After consultants are individual businesses (10 per cent),

50 Bach (1992, 24) estimated that national bureaucrats made 360,000 journeys to Brussels a year in the beginning of the 1990s due to the process of European integration.

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NGOs (10 per cent), and national associations of employers and employees (10 per cent). Finally, there are regional representatives (5 per cent) and different think tanks (1 per cent).51 Contact between Eurocrats and lobbyists is usually conducted in one of two ways. Either the parties are in direct contact in an expert committee, an advisory committee, the ESC, or the contact is less structured and conducted on an ad-hoc basis. Provisions regulating relations between Eurocrats and lobbyists were already introduced in the staff regulations (section 5.4.). Section II in the staff regulations includes specific provisions that regulate the behaviour of EU employees in relation to external interest groups. Especially important provisions for the lobbyist relations are receipts of presents (Article 11 and 11a), action or behaviour that may reflect adversely upon his position (Article 12), occupational activities after the end of EU service, non-disclosure of information and documents (Article 17) and the mandatory informing of the Commission if the spouse of an Eurocrat is in gainful employment, which is incompatible with the duties of the Eurocrat (Article 13). The main purpose of these provisions is to avoid EU employees receiving economic benefits from their relations to lobbyists. There is lobbyism at all levels of the EU decision-making process. Lobbyist activities are often carried out according to a conscious strategy. If a lobbyist acquires a strained relationship with the Commission, he or she may contact members of the European Parliament to assist with the relations to the Commission. The estimated 950 Euro-organizations also form part of the lobby system (Greenwood 2003). Their main functions are to exchange information between national organizations and exert influence on all phases of the EU’s decisionmaking process. Most of the activities of the Euro-organizations are directed towards the Commission due to its central position in the decision-making process, but other EU institutions are also targets of lobbyism. Furthermore, the lobbyists are displaying an increasing interest toward the European Parliament. This is partly due to the European Parliament’s attainment of increased influence on the decision-making process and partly due to lobbyists’ easier access to parliamentarians.52 This has meant that all lobbyists must be registered, accredited, and carry an access pass in order to gain access to members of Parliament. A list of registered lobbyists is made public on the European Parliament’s webpage.53

51 Source: European Parliament, General Directorate for Research: “Lobbying in the European Union: Current rules and practices” (constitutional affairs series). 52 European Parliament, General Directorate for Research: “Lobbying in the European Union: Current rules and practices” (constitutional affairs series). 53 The list is published at the following address: http://www2.europarl.eu.int/lobby/ lobby.jsp?lng=en

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The Commission is usually favourably disposed towards the inclusion of interest groups in the political process, as it needs the expertise and know-how of organizations. Moreover, it is sufficient for the Commission to consult one (Euro-)organization that has aggregated multiple interests in the Member States to one common interest. Finally, it legitimizes the Commission in relation to governments and populations if organizations are supportive of its proposals. Th e Commission’s interest in the inclusion of organizations in the decision-making process is displayed by the financial support it offers for the secretarial functions of some Euro-organizations.54 This may be interpreted as if the Commission attempts to create ties of loyalty with regional interests bypassing national governments. Conversely, when cases are closer to readings in the Council of Ministers, lobbyist activities are primarily organized by national organizations and directed towards national governments. In sum, it may be concluded that corporative structures from the national level, to some extent, disintegrate at the European level as they do not necessarily imply more societal legitimacy for the decision-making process. Instead lobbyism has increased accordingly. Meanwhile, the impact and character of lobbyism depend on the decision-making procedure in question, as the position of different EU institutions herein varies considerably. However, there is a clear tendency for attaching a higher priority to the European Parliament.

6.3. The organizational culture of the Commission 6.3.1. The nationality of Eurocrats In Article 27 of the EC’s 1962 staff regulations, two potential conflicting considerations were listed: Recruitment must aim to ensure for the institutions the assistance of officials who possess the highest qualities of competence, performance and integrity, recruited on the widest possible geographical basis among the nationals of Member States of the Communities. Officials are chosen without distinction of race, creed or sex. No post may be reserved for the nationals of a particular Member State.

Complaints to the European Court of Justice over the reservation of certain posts to nationals of specific Member States have so far been fruitless. The Court has always found that even though citizenship must not be a determinant factor in recruitment decisions; it may be an additional factor in the hiring of a specific 54

For instance, the Commission supported the secretariat of ETUC for a number of years. The Commission still supports the Poverty Network and other similar organizations working for disadvantaged groups.

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person. This especially applies to preferential treatment of the nationals from a certain country if it is necessary to keep the ‘geographical balance’55 in certain branches of service. The aim of ensuring a geographical balance in the recruitment pattern of the Commission may be interpreted against the backdrop that the societal legitimacy of the EU decision-making process would be radically reduced in countries with a lack of representation in the Commission. Also, considerations of efficiency may be in favour of a certain geographical balance in recruitment as individual EU employees act as mediators of information from individual Member States, which is essential for the EU’s ability to carry out mediating and programmatic functions etc. of the EU. Certain forms of quotas are also in place internally in several European countries, for instance the German federal administration keeps a balance between officials from different Länder, whereas other countries have informal quotas for certain religious or linguistic groups of the population. To a certain extent, the Commission seeks to uphold the informal quotas at every level, but the quotas are observed more strictly higher up in the hierarchy (Kassim and Menon 2004, 98). Before the 2004 enlargement, the five largest Member States held 19 out of 27 posts at the level of Director General (including heads of cross-sector branches). The distribution of posts between nationalities was originally governed by an informal Gentlemen’s Agreement.56 It stipulated that the distribution of positions between Member States should roughly match their budget contribution to the EEC. Originally, France, Germany, and Italy were to contribute around 28 per cent each (Weil, 1965). In practice, the share of category-A personnel was distributed somewhat equally with a 25 per cent share for Germany, France, Italy, and the Benelux countries each (Coombes, 1970, 128–129). From this starting point the Benelux countries and France have gained ground at the expense of Germany and Italy. Conversely, the number of French Eurocrats is not much greater than the number of German, British, Italian, or Belgian Eurocrats. New Member States have a natural desire of having their own nationals employed in the EU’s administration. Therefore, enlargements usually entail the creation of new positions and special redundancy packages, which means that EU employees may leave the service in order to vacate positions for nationals of new Member States. In connection with the 1986 accession of Spain and Portugal, the Commission hired a total of 1,320 Spanish and Portuguese Eurocrats at all levels based on 106 admission tests. In order to permit these recruitments, 446 officials

55

‘Geograpical balance’ is the traditional euphemism for the system of informal quotas. For a number of years it was impossible to get the Commission to illuminate the distribution of employees by nationality. For instance, the Commission claimed that it did not have statistical information on nationality in response to 1982 enquiry in the European Parliament. 56

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chose to be relieved of duty prematurely, and 939 additional positions were created (Knudsen 1993). When Sweden, Finland, and Austria acceded on 1 January 1995, approximately 2,000 officials from these countries were placed in the EU’s administration. In connection with the larger 2004 enlargement, the same procedure was used. Voluntary redundancy packages in relation to enlargements are quite lucrative for those Eurocrats who opt to use them. At the accession of Spain and Portugal the packages were aimed at officials older than 55 with at least 10 years of service behind them. Seen in conjunction with the standard retirement provisions (that allow for early retirement when the Eurocrat is 60) the package was relevant for staff ages 55–60. Persons that opted for the package received 70 per cent of their former salary in pensions and were allowed to have supplemental incomes with their former full salary as ceiling. Meanwhile they continued to gain pension rights as if they were still employed. The same model was used for the 1981 accession of Greece as well as in connection with the enlargement of the EU in 2004. Besides the proper EU officials, the Commission also employs temporary external staff who, to a considerable extent, perform tasks that alternatively would have been performed by staff under the conditions regulating the employment of officials. These are employees on temporary contracts and consultants, for example, who are often permanently attached to the Commission. Additionally, this applies to the national experts. A considerable part of this external staff works in the Commission’s offices, and they are a prerequisite for the implementation of the EU’s policies in a row of areas (Knudsen 1993). National experts are staff that Member States post for a maximum three-year period. It is to a large extent the Member States’ role to use their contacts to the relevant General Directorates in order to make a deal on the placement of an expert. The Commission has a bifurcated view on the placement of national experts. On the one hand, national experts bring cheap expertise and labour to the EU’s administration as their countries of origin pay their basic salaries. On the other hand, too large a proportion of national experts is perceived as a foreign element that undermines the autonomy of the Commission and aspects of the role of Weberian bureaucrat (section 2.1). The Commission has therefore found that the proportion of national experts in some areas was too large in comparison with the proportion of proper EU officials, and those experts performed tasks that ought to be performed by Eurocrats. If the efficiency of the EU administration is the frame of reference, the existence of national experts is an exponent of a true dilemma between the desire for maximum expertise and organizational autonomy. However, when it comes to societal legitimacy there is no doubt that national experts contribute to increasing it (section 2.4).

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6.3.2. Commission transparency Transparency in the Commission is a trait as well as an indication of the administrative culture. In principle, the Commission’s relations to the public have two dimensions. One relates to freedom of information, for example public access to Commission documents, whereas the other relates to the extent the broader public is capable of monitoring the decision-making process. As far as freedom of information is concerned, the Commission is often comfortable with making documents like background notes and negotiation status notes public, whereas Member States are more reluctant. The mixture of federal (or supranational) and intergovernmental traits of the EU cooperation makes transparency more difficult ( Joerges and Neyer 1997). The degree of transparency in the EU’s administration is at the same time an indication of the dominant culture of administration as well as a factor that independently affects the culture of administration. When it comes to public insight in the decision-making process, it was declared in connection with the adoption of the TEU that transparency in the decisionmaking process would enhance the democratic character of the institutions and public confidence in authorities. The Commission was therefore recommended to present a report on measures that would provide the public with greater access to the information of institutions to the Council of Ministers no later than 1993. The meetings of the European Council in Birmingham and Edinburgh followed up on the declaration. The Commission complied with the request and presented two communiqués with the hope of increasing access to public records disclosure requests and a more proactive policy on information.57 With the Treaty of Amsterdam the access rights of citizens were included as a part of the treaty basis of the EU. Article 255 of (the consolidated version of ) the TEC stipulates, “Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents.” The request for access to Commission documents is to be directed to the relevant branch of service of the Commission, Commission information offices in Member States or Commission delegations in third countries.58 57 In the first announcement on public access to institution documents dating 7 May 1993, the Commission set overall guidelines for the access to public records disclosure, which it intended to elaborate. The second note on transparency in the EU dating 2 June 1993 elaborated on the first note and furthermore focussed on information policy in relation to citizens. It was the final reply of the Commission to the Maastricht declaration and the subsequent Birmingham and Edinburgh declarations. 58 A request for public access is to be answered by the head of the relevant branch or the Commission’s General Secretariat within a month. Refusals may be appealed to the Secretary General of the Commission within a month, who then shall reply within a month. The Commission must provide reasons for a refusal.

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On 3 December 2001, a new Commission decision on the right to access entered into force. According to Article 7 of the decision, the Commission must provide reasons for denials of a public records disclosure request. Concurrently, openness regarding documents the institutions of the EU receive from the outside is the norm. However, there are exceptions to the right of access, and Member States may in all circumstances demand confidentiality. Box 6.6. below illustrates a specific case in which the Commission was requested to provide access to public records. The case ended before the Court and succinctly illustrates the different views and considerations that are part of public records disclosure request cases. Box 6.6. Right of public access to Commission documents Right of public access to Commission documents (Case T-105/95 WWF UK vs. the European Commission) In 1993, the principle of openness was incorporated into EU law in connection with the adoption of the TEU. The aim of the principle is to strengthen democracy and public confidence in the EU. This is to happen by openness in the administration of the EU and by the right to public access to Commission documents. The Commission has adopted an internal Code of Conduct relating to rights of public access in Decision 94/90 (Official Journal of the European Union L 46, 1994). According to its provisions, the right of access may only be refused if such access may harm the protection of public interests, privacy, commercial interests, or the confidentiality of proceedings. In 1991, Irish authorities decided to build a visitor’s centre in a national park and applied for EU structural funds. World Wide Fund for Nature (WWF) claimed that the centre was an infringement of EU environmental law and complained to the Commission. After investigating the case, the Commission concluded that the complaint was unsubstantiated and that the construction of the centre did not infringe on EU law. The WWF tried to get the Commission’s decision annulled by the Court. When unsuccessful, the WWF requested access to all documents in the case. The Commission refused access on the grounds that it would contravene considerations of public order because the case concerned a possible treaty infringement, and it wanted to protect confidentiality of its own proceedings. The case was subsequently brought before the Court. Initially, the European Court of Justice established that Decision 94/90 confers rights on citizens and creates duties for the Commission, notwithstanding its status of internal guidelines. This implies that citizens have a general right of public access and that exceptions may only have a limited scope. Hereafter the Court evaluated whether or not the Commission’s refusal of access was justified and established that the Commission should have given a reasoned refusal of access to each and every document. However, the Court accepted the Commission’s refusal of access to the documents in question. Source: The EU Information Centre of the Danish Parliament.

The norm is that there is a right of access to the documents of the Commission and the Council of Ministers. However, the right of access is not applicable if the public access to documents may harm one of a number of specific interests.

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Therefore, there are a number of exceptions to the norm of public access. They concern 1) public interest in regards to public security; defence and military matters; international relations; the financial, monetary or economic policy of the Community or a Member State, 2) privacy and the integrity of the individual, 3) commercial interests of a natural or legal person, including intellectual property, 4) the protection of the financial interests of the EU, 5) the mandatory consultation with third parties who provided information with the intention of establishing an exception under 1) thru 3), or with Member States that have provided information. It is also possible to refuse access a) if a citizen makes repeated requests or requests concern extensive documents,59 b) if considerations for nondisclosure of negotiations in the Council of Ministers require so, or c) if there are considerations regarding classified information. Regarding the EU’s decision-making process it is implied by the rules of procedure of the Commission and the Council of Ministers that proceedings of negotiations are confidential unless it is decided otherwise. The right of access may therefore be refused on the ground of confidentiality of negotiations in the Commission and Council of Ministers. This provision may be given an expansive interpretation. It is possible to bring cases of refusal of the right of access to the EU Ombudsman, but the EU Ombudsman does not itself have access to the documents the plaintiff has been refused access to. Despite the relatively restrictive formal regulations regarding the right of access to public records, the EU administration is often open for the access to documents, even before the Commission has adopted them. This is partly because the Commission as a common European administration has many national ‘access points’ for persons seeking specific information and partly because the Commission itself emphasizes keeping interest organizations informed in order to generate more influence and support (section 6.2.5). On the other hand, this type of access is too heavily based on power positions in the form of privileged access to parts of the political system to make up an instrument of democratic control that furthers societal legitimacy.

59 This happened to the British journalist, Tony Bunyan, who made five requests for a total of 177 documents regarding the cooperation in Justice and Home Affairs. The Council of Ministers decided that a reasonable response to the request was a refusal.

Chapter Seven

The Council of Ministers – Organizational Structure, Processes and Culture1 The Council of Ministers is the central political organ of the EU and primary channel of influence for Member States. The most important task of the Council of Ministers is to make political decisions and adopt legislation based on proposals from the Commission. Furthermore, the Council of Ministers was mandated by the Treaty on the European Union to make the decisions necessary for the adoption and implementation of the Common Foreign and Security Policy following the overall guidelines of the European Council. The Council of Ministers moreover coordinates the activities of Member States and adopts measures in the area of Justice and Home Affairs. The Council of Ministers is made up of representatives of the governments of Member States that meet to defend their national interests in the EU. The Ministers act on the basis of instructions from their governments and are responsible to their national parliaments. The Council of Ministers has a number of subordinated administrative units who meet under its auspices, while the Council

1 The Council of Ministers may be summoned in different configurations depending on the issues at hand and include both the ministerial level as well as the assisting organizational structure of committees, working groups, secretariats, etc. (see e.g. figure 7.1. page 165).

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of Ministers itself acts within the constraints of the overall strategic decisions of the European Council. In section 7.1., the overall structural framework for the work of the Council of Ministers is analysed. Section 7.2. focuses on the organizational processes of the Council of Ministers and chapter 7.3. on the organizational culture. This chapter first briefly outlines the main features of the evolution of the Council of Ministers (section 7.1.1.) and provides a more thorough analysis of the Council of Ministers’ current build-up (section 7.1.2.). The Presidency of the Council of Ministers is furthermore analysed (section 7.1.3.) and the Council of Ministers’ mode of operation is discussed (section 7.1.4.) as well as the position of the Council of Ministers (section 7.1.5.). In the areas where the Council of Ministers make decisions, they contribute to the formal democratic legitimacy of the EU, as the decisions of the Council are made by politicians who are elected by the people. However, the internal organization of the Council of Ministers and its placement in relation to other EU institutions in the decision-making process influence the efficiency and societal legitimacy of the decisions. In section 7.2., the internal organizational and decision-making processes of the Council of Ministers is presented in order to evaluate their organization and legitimacy. Initially, the general characteristics of the Council of Ministers as an organ of decision-making are presented (section 7.2.1.). Afterwards, descriptions on roles in the decision-making process of the secretariat of the Council of Ministers (7.2.2.), Coreper (7.2.3.) and the working groups (7.2.4.) follow. In the following section the internal organization processes encompassing the various organs of the Council of Ministers are described in an overall perspective (section 7.2.5.). Finally, negotiation and decision-making procedures between the Member States and the Council of Ministers are analysed (section 7.2.6.). Analysing the organizational culture of the Council of Ministers entails focusing on, for example, how organizational actors perceive and construct the world, applicable informal rules and the degree of openness toward the surroundings. In section 7.3.1., the autonomy on the Secretariat of the Council of Ministers in relation to the Member States is analysed, whereas section 7.3.2. is concerned with the degree of openness in connection with the sessions in the Council of Ministers. Section 7.3.3. outlines the possibilities for public access to Council documents, section 7.3.4. focuses on esprit de corps in the Secretariat of the Council of Ministers, and 7.3.5. analyses the degree of esprit de corps shared by the officials of the Permanent Representations.

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7.1. The Organizational structure of the Council of Ministers 7.1.1. An outline of the evolution of the Council of Ministers The Council of Ministers that was established with the EEC was the General Affairs Council, which consisted of Ministers of Foreign Affairs who were to discuss EC issues. This system continued into the 1960s when the Common Agricultural Policy (CAP) was established. It quickly became clear that the Ministers of Foreign Affairs had neither time nor expertise to carry out the marathon-style negotiations the CAP required (Bassompierre 1988, 21). Developments have since caused a horizontal expansion of the Council of Ministers, as 22 different configurations of the Council of Ministers existed until June 2000 when it was decided to reduce the number of configurations to 16. Therefore, the Council of Ministers does not really designate one specific Council but a number of functionally divided Councils in which the Ministers within a given area of public policy meet and negotiate. As part of the institutional process of reform that was initiated by the November 1999 Helsinki European Council with the goal of preparing the EU to the anticipated enlargement with ten new Member States, the European Council decided at its June 2002 summit in Seville to limit the number of Council configurations, which is why there are today 9 functionally delimited configurations.2 The vertical development of the Council of Ministers has happened both at the superior and subordinate level. At the superior level, the European Council was established in 1974 and since has been codified in Article 2 of the Single European Act (Wessels 1990, 133). At the subordinate level, a bureaucratic substructure arose in the shape of the Secretariat General of the Council of Ministers, the Permanent Representatives Committee (Coreper) as well as approximately 250 committees and working groups. The low level structure of committees and working groups has been subject to rationalization in recent years and many of the groups only meet rarely when a concrete proposal demands its attention. A review of the historical evolution of the Council of Ministers shows that there have been consecutive changes in the structure and competencies of the Council of Ministers. For many years, the Council of Ministers strengthened its positions at the expense of the Commission. In latter years, the European

2

The different configurations of the Council of Ministers have since 2002 been: 1) General Affairs and External Relations, 2) Economic and Financial Affairs, 3) Cooperation in the fields of Justice and Home Affairs ( JHA), 4) Employment, Social Policy, Health and Consumer Affairs, 5) Competition, 6) Transport, Telecommunications and Energy, 7) Agriculture and Fisheries, 8) Environment, and 9) Education, Youth and Culture.

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Parliament has similarly strengthened its position at the expense of the Council of Ministers.

7.1.2. The current structure of the Council of Ministers In the following section, the current structure of the Council of Ministers is analysed. First, the internal structural build-up of the Council of Ministers is examined. Hereafter, a number of external structural frameworks for the decision-making process in the Council of Ministers are introduced. The internal structure of the Council of Ministers may be described by its horizontal and vertical divisions. The horizontal differentiation concerns the different configurations of the Council of Ministers whereas the vertical division is the hierarchical structure of ministers in the Council of Ministers, permanent representatives in Coreper and national officials in the various working groups. The concrete configuration of the Council of Ministers may vary from session to session depending on the issues at hand yet without affecting its character of being a unitary institution: The Ministers of Foreign Affairs of EU Member States meet in the configuration ‘General Affairs and External Relations Council’ (GAERC) to discuss external relations and overall political issues, the Ministers of Finance and Economic Affairs meet in the configuration ‘Economic and Financial Affairs Council’ (ECOFIN), whereas the Ministers of the Environment make decisions on environmental issues, etc. (Dinan 2005, 245–249).3 The frequency of sessions in the Council of Ministers depends on the urgency of the matters at hand. The three most important configurations are probably the General Affairs and External Relations Council, the Economic and Financial Affairs Council, and the Agriculture and Fisheries Council. These configurations meet once a month, whereas other configurations such as ‘Transport’, ‘Environment’ or ‘Competition’ are summoned two to four times a year. In sum, there are 90–100 sessions in the Council of Ministers a year. Furthermore, the Council of Ministers is currently organized in such a way that the Council of Ministers is subordinated to the European Council and furthermore has a lot of vertically subordinated administrate activity (the General Secretariat, Coreper, and working groups). The General Secretariat is to assist the Council of Ministers with practical preparations for meetings in the Council of Ministers and functions as the

3 A problem that acquired salience with the enlargement of the EU with 10 new Member State is to ensure an effective execution of the meetings of the Council of Ministers. Conclusions from the November 2002 Helsinki Council note that roundtable discussions in which all Ministers are awarded speaking time should be avoided, as the Presidency should restrict the speaking time of Ministers.

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administrative centre of the Council of Ministers. The General Secretariat furthermore offers advice and guidance to the Council Presidency (section 7.1.3). The content of discussions in the Council of Ministers is prepared and coordinated by Coreper, which is made up of the Permanent Representatives and their alternates in Brussels who meet every week. Coreper is divided into Coreper I and Coreper II. Coreper I is concerned with technical issues such as the Internal Market, whereas Coreper II tends institutional questions and general EU questions. Coreper I and II also supervise and coordinate discussions in the approximately 150 committees and working groups that are made up of officials from Member States and at the technical and lower administrative levels prepare cases that are presented to Coreper and the Council of Ministers. In the agricultural area there is, however, a Special Committee of Agriculture (abbreviated SCA) that handles preparation of the meetings at the ministerial level and has formed its own working groups for the various agricultural products. In the same way (but without the decoupling from Coreper), the Monetary Committee handles the preparation of meetings concerning economic and monetary questions, while questions concerning research policy is discussed in CREST (French abbreviation of the committee for scientific and technical research), and questions concerning employment policy are discussed in the Employment Committee (EMCO). Furthermore, the so called article 133-committee, consisting of experts on trade policy, plays a large role in the preparation of proposals on trade policy in the Council of Minister, and, additionally, the so called article 36-committee deals with the preparation of meetings concerning the EU police cooperation and the legal cooperation in criminal cases. The division of the Council of Ministers in functionally divided councils as well as committees and working groups consisting of experts cause discussions in the Council of Ministers to be characterized by a technical-bureaucratic rationality to some extent. That functionally divided councils adopt EU regulation may furthermore be assumed to contribute to increased sector divisions in the decision-making process of the EU. This tendency is exacerbated by the fact that representatives from each sector provide the input to the Council of Ministers and that the output from the Council of Ministers in the shape of implemented EU legislation affects the very same sectors that are placed at the negotiating tables all the way through the decision-making process.4 From a theoretical perspective, the strong sector divisions of the decision-making process of the EU by the functionally divided Council of Ministers contribute to increasing political asymmetries (chapter

4

The sector divisions at the stage of implementation is underlined by empirical evidence, i.e. that “the ministry or agency responsible for negotiating a directive is often primarily responsible for also ensuring the later incorporation into the respective law,” (Siedentopf, et al. 1988, 28).

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2) and the opportunities for bureaucrats for acting more ‘Niskanenian’ than ‘Weberian’ (section 2.1. page 8). As mentioned above, in order to correct some of these problems, the European Council adopted an extensive reform of the structure of the Council of Ministers at its summit in Seville in June 2002. This implies that the European Council will adopt a tri-annual strategic programme based on joint recommendations from the affected council Presidencies in conjunction with the Commission and at the request of the General Affairs and External Relations Council. The first strategic programme was adopted in December 2003. The General Affairs and External Relations Council is presented with an annual programme for the Council of Ministers in December of every year based on the multi-annual strategic programme. This programme is presented in unison by the two upcoming Presidencies, and it takes into consideration issues that are judged to be of particular salience based on the dialogue on annual political priorities initiated by the Commission. The final version of the work programme is adopted based on discussions in the General Affairs and External Relations Council. When the Council of Ministers acts as a legislature, it is the Commission that has the sole right of initiative and presents a proposal to the Council of Ministers for adoption (chapter 4). The proposal is subsequently considered in the Council of Ministers that may change the proposal before it is adopted through either a qualified majority (if the Commission agrees) or unanimity (if the Commission disagrees). The Council of Ministers may, moreover, confer powers of implementation to the Commission in adopted legal instruments (section 6.2.3. page 124). The European Parliament participates actively in the legislative process (chapter 4). In relation to a number of questions (i.e. the internal market, consumer protection, education, and health), community legislation is adopted by both the European Parliament and the Council of Ministers by using the co-decision procedure. Both the European Parliament and the Council of Ministers also adopt the budget of the EU. In some areas (especially with regard to the 2nd and 3rd pillar), the Parliament however still has no legislative powers (chapter 4). Labour market parties and other interest groups are, in most areas, consulted through the European Economic and Social Committee, and local and regional authorities are consulted through the Committee of the Regions. As stipulated in the EU’s treaties, the Council of Ministers adopts decisions by a simple majority, a qualified majority or unanimity depending on the issue at hand (section 4.5. page 64). In Community cooperation, a large part of legislative decisions are made by qualified majority votes based on Commission proposals. According to the EC treaty, the legal instruments of the Council of Ministers may be in the shape of regulations, directives, decisions, recommendations and opinions, (section 4.3. page 52). The Council of Ministers may also adopt political conclusions or other types of legal instruments such as declarations or resolutions.

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In the Common Foreign and Security Policy, the Council of Ministers adopts the necessary decisions for the setting and implementation of this policy based on the overall guidelines of the European Council. The European Council recommends joint strategies and initiates them by adopting joint actions and common positions. In the area of Justice and Home Affairs and cooperation in criminal cases, the Council of Ministers adopts common positions and decisions and draws up conventions based on initiatives originating from a Member State or the Commission. According to the formal voting rules applicable to the Council of Ministers, there is the possibility that an individual Member State may be outvoted and forced to comply with the EU legal instruments it voted against. In this respect, the EU is different from proper international organizations where Member States are not obliged to comply with decisions made by other countries. The possibility of outvoting Member States is a supranational trait in the EU cooperation.

7.1.3. The Presidency of the Council of Ministers The Presidency of the Council of Ministers, the Coreper, and all other committees and working groups are filled by the same Member State for six months at a time.5 The most important tasks that are to be carried out during a Presidency are the following (e.g. Nugent 2003, Dinan 2005, 228): First, the Presidency presents proposals on agendas for meetings and summons meetings in the Council of Ministers, Coreper, and in committees and working groups.6 The country holding the Presidency is hereby awarded considerable control over the frequency of meetings in specific Council configurations and working groups as well as suitable topics for discussion at the meetings. In relation to this, the Presidency decides which working groups are needed during its term and which working groups are not required. The organization of this task reflects the

5

If the Constitutional Treaty is eventually adopted, the European Council will have the same Presidency for 2 ½ years at a time, and the Foreign Affairs Council will have a permanent President. 6 “The country that holds the Presidency may not have much power, but while it is in charge it literally sets the agenda, choosing what the EC discusses or fails to discuss.” (“The EC presidency: Quickstep to confusion”, The Economist, 30 October 1993, page 56). The Presidency is, however, not able to put new subjects on the agenda spontaneously during the Presidency. This makes it relevant for the upcoming presidency to ask the Commission to make desired proposals just before officially taking the chair in the Council.

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political priorities of the Presidency and it is usually carried out in conjunction with the Secretariat of the Council and the Commission. Second, the Presidency seeks to further political solutions in the Council of Ministers and generate support for different initiatives for EU legislation. The most important criterion for success is usually that the Presidency has achieved results in the form of adopted or soon-to-be-adopted proposals.7 The Presidency is to discover possible and necessary compromises among Member States. The Presidency is therefore able to act as a neutral arbiter at discussions in the Council of Ministers. Creating results usually takes extensive negotiations, the ability to function as an arbiter, and manoeuvrability in relation to one’s own constituency. The Presidency may receive advice and guidance from the Secretariat of the Council when performing these tasks.8 Regarding the carrying out of this arbitration function, the Presidency is in some cases – and depending on the character of the issues at hand – competing with the Commission. In other cases, the Presidency and the Commission may have convergent interests, which imply a greater probability of success. At times, when the Commission has had a strong position, it has been able to perform the task by itself. This seems to be the case in the time period leading up to the 1966 Luxembourg compromise9 and again during the period of the Delors Commission. Cooperation on good terms between the Presidency and the Secretariat of the Council of Ministers is also essential for successful execution of the Presidency, which implies continuous contacts, the joint drawing up of Presidency speech notes, joint analysis and understanding of the opportunities for compromise, etc. Usually the country with a future Presidency will usually initiate contact with the Secretariat of the Council and the Commission 1–1 ½ years before the beginning of the term. Third, the Presidency is to ensure a degree of continuity and smooth transitions in the conducting of EU policies. The so-called troika system is an important means to that end, and it implies that the Member State with the Presidency is supported in its managing of affairs by the previous and subsequent Presidencies (the current trend is increasingly to cooperate with the two subsequent Presidencies). In practice, the cooperation is usually the most intense between the current and upcoming Presidency. Additionally, the upcoming Presidency is often trying to keep a very low profile in the Council of Ministers in order to avoid conflicts with the current Presidency.

7

In latter years, a so-called scoreboard has been published over achievements in the past six months at the end of each Presidency. 8 In practice, large and smaller Member States use the guidance of the Secretariat to a very varying extent. Smaller Member States usually rely more on the advisory role of the Secretariat. 9 See box 7.4. page 168.

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Finally, the Presidency is to represent the Council of Ministers in negotiations with other institutions and countries. This task is especially important in relation to other EU institutions (e.g. through continuous meetings with the European Parliament), and with third countries in relation to certain external policies (i.e. trade policy, fisheries policy, and the Common Agricultural Policy). The Presidency will often have a close cooperation with other EU institutions already when planning the Presidency, which implies initiating contacts with relevant units and persons. During the Presidency there is likewise a close cooperation with Commission bureaucrats regarding preparations of decisions in the Council of Ministers as well as the drawing-up of potential compromises between Member States. Contacts between the Presidency and the European Parliament have furthermore expanded considerably in latter years due to the increased legislative powers of the European Parliament. In recent years, it has become customary for the Presidency to present its programme at the first plenary session of the European Parliament. Traditionally, this task was assigned to the Minister of Foreign Affairs of the Presidency, but the presentation is now regularly carried out by the Head of government. Moreover, it is increasingly the norm for the Presidency to send departmental Ministers to make presentations and report to the policy committees of the Parliament. The Presidency is also awarded an important preparatory and representative role in relation to worldlevel summits. It is also the Presidency that represents the EU in relation to the broader public and is the object of mediation. Having the EU Presidency has its advantages and disadvantages. The most important advantage is probably that the Member State in question gains a great deal of influence over the overall political goals of the EU. Another advantage is that the Presidency yields prestige and status. A third advantage is that the Presidency gives the political and administrative systems in the Presidency country a lot of knowledge of the administrative practice and organization of the EU. A fourth advantage is that having the Presidency may contribute to greater societal legitimacy for the European decision-making processes. The major drawback is the large administrative and sometimes economic burden the Presidency entails, which may at times be difficult for small Member States to bear. However, there are no indications that larger Member States necessarily have more successful Presidencies than small Member States. This is because larger states also expect a great deal of influence over adopted EU policies. Large Member States may thus easily violate the norm of the impartial carrying out of the Presidency. Therefore, it is popular wisdom in Brussels that smaller Member States generally handle the Presidency in a more impartial and effective manner than large Member States. However, this assertion should not be taken at face value, as there are also some examples of small states performing less than perfectly. The norm of impartiality implies that if the negotiations in all levels of the Council of Ministers are carried out under the auspices of a certain Member State, the particular views of this state should be represented either by another minister or another representative. The norm also means that it is perceived as

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unacceptable to promote particular national interests in connection with the Presidency.10 A transgression will most often be seen as a violation of the EU’s operational code of conduct and it may result in having to make concessions in other areas. The Presidency rotates among Member States; hence, each state has a sixmonth term. So far, the rotation has been alphabetically based on the first letter of the Member State in the national language with a minor offset from rotation to rotation. However, this principle has recently been modified in order to avoid smaller Member States finding it hard to cope with the administrative burdens a Presidency entails. The 2006 to 2020 Presidencies have been distributed in a way such as to make sure that the troika would always consist of a least one large as well as two smaller or small Member States, at least one new Member State as well as some degree of geographical distribution of troika members.11 In this way, a small Presidency country will always be able to draw on the support of a larger state. Box 7.1. EU Presidencies, 2000–2020

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020

1st half of the year

2nd half of the year

Portugal Sweden Spain Greece Ireland Luxembourg Austria Germany Slovenia The Czech Republic Spain Hungary Denmark Ireland Greece Latvia The Netherlands Malta Estonia Austria Finland

France Belgium Denmark Italy The Netherlands The United Kingdom Finland Portugal France Sweden Belgium Poland Cyprus Lithuania Italy Luxembourg The Slovak Republic The United Kingdom Bulgaria Rumania To be decided

Source: The EU Information Centre of the Danish Parliament. 10 The President should not favour specific national interests, but the national representative in the chair of the Member State that holds the Presidency can bring forward national point of views. 11 The list of Presidencies has been compiled at a Coreper meeting using the criteria in the un-ratified Constitutional Treaty.

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Repeatedly the viability of the current system of rotation in an enlarged EU has been discussed (Dinan 2005, 235–236). Some observers have claimed that the current mode of rotation implies too lengthy a time span between large Member States having the Presidency, which meant risking that the Presidency would remain in the hands of very small or relatively new Member States for prolonged periods of time. Changes to the current Presidential institutions have been proposed several times in European Parliament reports as well as by large Member States. It has been suggested to switch from rotation to a Presidency election that would have a one year term and that several Member States could jointly manage the Presidency, thereby ensuring that there would always be at least one large Member State in the group managing the Presidency. Large Member States increasingly feel uncomfortable with being represented by the growing number of small countries. This dissatisfaction may be interpreted as a response to the increasingly uneven balance between large and small states in the EU, a balance that initially ensured some degree of societal legitimacy. On the other hand, the equal treatment of small and large Member States regarding the Presidency ensures the European cooperation’s societal legitimacy in smaller Member States.

7.1.4. The mode of operation in the Council of Ministers The working methods of the Council of Ministers have been subjected to multiple criticisms. First, critics have pointed out that the functionally divided configurations of the Council of Ministers have been too focussed on narrow sector interests and that they have failed to take account of overall and holistic EU goals. Second, it has been mentioned that the Council of Ministers has been unable to shape and pursue overall strategies for the future direction of the European cooperation. A recent example is the employment policy of the EU with a Dutch-lead initiative for more flexibility in the labour market by making it easier to hire temporary staff on the one hand, and a majority in the Council of Ministers that intends to adopt a directive, which would in fact make it more difficult and expensive to hire temporary staff, on the other (Nedergaard 2006a). Finally, the modus operandi of the Council of Ministers has often been characterized by last minute summons as well as fierce time constraints, which has hardly lead to a free and open exchange of opinions. Changing Presidencies has made it difficult to ensure continuity in its work. And for some participating Ministers, EU tasks are only a distant second, which means that their efforts are sometimes marked by lacking expertise. Ministers furthermore seldom acquire prestige by furthering EU cooperation. Conversely, national Ministers may gain recognition from their home constituency by defending particular national interests and rejecting EU legislation. In the end, Ministers are solely responsible to their domestic constituency.

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An attempt at creating overall guidelines for the EU cooperation has been the use of so-called ‘composite’ Councils (e.g. Ministers of Finance and Economic Affairs with Ministers of Labour and Ministers of Social Affairs). This was also the intention of the 2002 Seville reform, which saw a reduction of configurations from 16 to 9. The aim was that composite Councils should make decisions in areas that affect the portfolios of several Ministers. However, experiences with composite Councils have been mixed. The EU previously had more luck with the establishment of another particular configuration, namely the Internal Market Council, which was given the task of exclusively working for the implementation of the European internal market.12 Already the 1976 Tindemans (Tindemans 1976) report suggested awarding the Council of Foreign Ministers (equivalent to the current General Affairs and External Relations configuration) a superior role in relation to the other configurations, so particularly difficult EU questions were to be addressed by the Ministers of Foreign Affairs. The report assumed that awarding more competencies to the Ministers of Foreign Affairs would further European integration as they were perceived as being more disposed to disregarding narrow national interests in particular areas and thereby furthering overall European cooperation. Multiple EU reports have furthermore recommended that every Member State appoint a special Minister for European Affairs whose prestige would rise and fall with the speed of progress in the European cooperation. This model has a French precedent. However, the proposals for appointing special Ministers of European Affairs have been met by the critique that it would make EU cooperation resemble a traditional intergovernmental cooperation to a greater extent in which countries adopt a special ‘foreign policy’ in relation to the EU. This would happen against the backdrop of general domestication of EU issues. The idea of conferring more powers on the Ministers of Foreign Affairs or appointing special Ministers of European Affairs represents a rupture with the neo-functionalist theory of integration, which sees European integration as driven by experts and trans-national sector interests. The same applies to the proposals for strengthening the position of Coreper in order to ensure more coherence in the work of the Council of Ministers. The General Secretariat of the Council of Ministers outlined options for making Council operations more efficient in the so-called Trumpf/Piris (Trumpf/Piris 1999) report made public 10 March 1999. The report outlines possible changes in the daily workings of the Council of Ministers that could be implemented with changes to the Treaties. In continuation with the report, a number of concrete recommendations were adopted at the December 1999 meeting of the Helsinki European Council. They discussed, for instance, how to ensure a more coherent shaping of policies, ensure

12 The Internal Market Council merged with the Councils responsible for Industry and Research and is now called the Competition Council.

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efficiency in the legislative work of the Council of Ministers (especially in relation to the co-decision procedure where the European Parliament and the Council of Ministers make joint decisions), ensure better preparations for meetings in the Council of Ministers as well as empowering the Presidency and improving standard operating procedures. As mentioned previously, at the 2002 Seville summit the process of reform was continued in light of the enlargement and overall discussion on efficiency and legitimacy. To increase coordination and efficiency the number of different Council configurations was reduced to the current 9, and the overall tri-annual strategic programme adopted by the European Council was introduced. Moreover, the Seville summit concluded that the public should have better opportunities for acquiring insight in the legislative process of the Council of Ministers. In a concrete way this happens by making public by direct transmission the initial (submittal of proposals for legislative acts) and conclusive (the adoption of legal instruments) phases of the decision-making process in the Council of Ministers when it acts in accordance with the co-decision procedure. However, public insight is not expanded to include the phase of negotiations and decisions that are not related to formal legal instruments (Nedergaard 2004). Hence, it is often only initial and concluding formalities to which the public has access. It is, however, doubtful that a further opening of the negotiations would make them more efficient. Finally, the Seville summit concluded with a number of recommendations regarding the execution of discussions at Council sessions that aim at creating a more efficient situation of negotiation. Among the recommendations for the Council Presidency were to limit speaking time for individual Member States and to get Member States with identical positions to choose a ‘spokesperson’.13

7.1.5. The position of the Council of Ministers The position of the Council of Ministers is frequently up for discussion (e.g. Heisenberg 2005, Lewis 2000, Scharpf 1988, Wessels 1991). The discussions are often based on considerations of the future institutional organization of the EU. The following section outlines the debate on the status of the Council of Ministers using as two poles the political positions based on a normative federalist and a normative intergovernmental starting point. Box 7.3. page 152 illustrates two ideal types in the debate on the organization of the European Union. Federalists nurture the desire for further integration in a supranational direction,14 whereas intergovernmentalists desire (intergovern13

Details of the Code of Conduct were published in the Official Journal of the European Union, 22 March 2004. 14 This position has often been the target of heavy criticisms, but it could be contended

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mentalists understood as anti-federalists) to keep or even increase the role of the Member States in the European cooperation (Nedergaard 2004). Box 7.2. Perspectives on the position of the Council of Ministers The goal of the EU Preferences

The Council of Ministers

Intergovernmentalists Intergovernmental Strengthening -Ought to be strengthened intergovernmental -Argue for the formal institutions and informal observance of the principle of unanimity in the Council of Ministers Federalists Federal Strengthening -Ought to be weaker in supranational relation to the institutions Commission and the Parliament -Argue for increased use of majority voting in the Council of Ministers Source: Author’s own representation.

The Council of Ministers is usually regarded as the favourite organ of the intergovernmentalists. At the overall level the intergovernmentalists therefore seek to strengthen the Council of Ministers vis-à-vis the other EU institutions (the Commission and the European Parliament). A relative strengthening of the Council of Ministers could happen by conferring more resources and powers on the Presidency in areas where the Council of Ministers has the sole legislative prerogative. Intergovernmentalists moreover find that decisions internally in the Council of Ministers ought to be made by unanimity so no country is forced to implement decisions it has voted against or at least that Member States should have a right to veto decisions that very important for the national interests. Conversely, ideal type federalists seek to strengthen the supranational element of the EU while political power is partly decentralized. The recent reforms of the Council of Ministers may be interpreted as a compromise between the intergovernmentalist and federalist positions. On the one hand, the Council of Ministers is strengthened by the injection of more resources and the conferral of more powers to especially the Presidency. On the other hand, the use of qualified majority voting is expanded to encompass more areas. However, some of the reforms cannot easily be characterized by using the intergovernmentalist and federalist ideal types. This for instance applies to the reforms regarding transparency in the workings of the Council of Ministers.

that federalism implies a maximal decentralization of power within the federal framework.

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The reforms – or the lack thereof – may better be explicated by the conflicting considerations of the legitimacy of the Council of Ministers on the one hand and the (secrecy-enshrouded) culture of negotiation on the other. Thus, expanding public access to the decision-making process of the Council of Ministers may increase the societal legitimacy of the Council of Ministers, whereas ‘too much’ public access may have a negative effect on the culture of negotiations. This would mean that the actual negotiations would migrate from the official sessions to the hallways of Brussels and Luxembourg , whereby the quality of Council decisions would deteriorate (e.g. Joerges and Neyer 1997).15 The overall future position of the Council of Ministers may well depend on the chosen balance between the federalist and intergovernmentalist position. This balance has tipped towards the federalist position in recent years with the increased powers of the European Parliament and more majority voting in the Council of Ministers. Meanwhile, other issues such as transparency and public access may prove essential for the future culture of negotiation in and societal legitimacy of the Council of Ministers (section 7.2. below).

7.2. The organizational processes of the Council of Ministers 7.2.1. The Council of Ministers as an organ of decision-making The Council of Ministers as described in section 7.1., is not a specific group of individuals but contrarily a decision-making structure comprising of ministers who meet in different assemblies depending on the areas in question. Aside from the nine different compositions of the Council that are currently used, the Council includes an internal hierarchy, which can be described as three separate vertical levels of negation. The top level is the Council of Ministers. Underneath is the Committee of Permanent Representatives (Coreper) and SCA. Below is a range of special committees and the working groups and committees put down by the Coreper (section 7.1.). All levels in the Council are assisted by the Council secretariat. The work of the Council is usually begun at the lowest level in the special committees, working groups, and committees. As the first authority of the Council, they make preparations and initial negotiations of cases. In committees and working groups are representatives of the national administrations and officials from the Council Secretariat and the Commission. The negotiations are afterwards continued on the next level in Coreper and SCA, which, as the second

15 Cf. former British Commissioner Neil Kinnock: “If the sun shines on everything, decisions will be made in the shadows.” (Erhvervsbladet, 23 February 2002).

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authority, recommends cases for final decision at the highest level in the Council and thereby sets the agenda for the meetings between ministers in the Council. The negotiations are concluded by the relevant assembly of ministers, which as the third and final authority can make the final decision in specific cases. Regardless of at which level the negotiations are conducted, they are (almost) always lead by the Presidency currently in place. The Presidency is assisted in the management of the meetings by the Council secretariat, which plays an important role as a part of the secondary administration in the Union. The negotiations often take place around an oblong table with the Presidency seated at the one end of the table and the Commission at the other. The presence of the Commission during the negotiations has a double purpose. Firstly, the Commission acts as the Guardian of the Treaty during the negotiations in order to ensure that the treaty basis of the Union is maintained. Secondly, the Commission seeks to defend its political initiative in the negotiations and will normally change its proposal if there is a qualified majority in favour of change (chapter 6). During the negotiations the Member States are placed side by side at the long side of the oblong table. The coming presidencies are placed to the right of the current President, while the outgoing presidencies are placed to the left of the Presidents. This procedure means that the Member States rotate slowly around the table in accordance as the Presidency shifts every six months. Interpretation booths are placed around the table. They assist with simultaneous interpreting during the negotiations. The various levels in the Council can operate with different language arrangements (the so called ‘interpreter regimes’). Normally, all common languages are translated during the negotiations at the ministerial level whereas more limited language arrangements apply under the negotiations in Coreper and in the committees and working groups. The meetings at the ministerial level in the Council are usually held in Brussels, but in April, June, and October the Council adjourns in Luxembourg in accordance with the agreement made at the Edinburgh summit in December 1992. Under extraordinary circumstances that are thoroughly well-founded, the Council or Coreper can unanimously decide that a meeting should be held elsewhere (see Council Statute, Article 1). However, it is common for the Presidency to have an informal meeting in all Council configurations. Most often the informal Council meetings take place on an attractive spot in the Member State that holds the Presidency or in the hometown of the minister that holds the Presidency. The Council of Ministers acts as legislative authority when it adopts legal acts with legal force in the Member States regardless of whether its business concerns regulations, directives, decisions or framework decisions on the basis of relevant provisions in the Treaties. The European Parliament participates actively in the legislative process. In a long range of questions the Parliament and the Council adopt community law using the co-decision procedure.

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The Council does not act as legislator during its discussions leading to the adoption of internal instructions, administrative or budgetary decisions, decisions concerning the relations between the institutions or international relations, or acts which are not obligatory such as conclusions, recommendations and resolutions. The Council is neither a legislative authority when it uses the relatively new working method called the “open method of coordination” in areas such as economic policy, employment policy and social protection policy, research and education, and immigration and asylum policy (section 4.5).

7.2.2. The Council secretariat As a secretariat for the Council of Ministers and its working groups, the Council secretariat attends to working out reports on meeting proceedings and the translation of documents to all official languages of the Member States. More specifically, the secretariat attends the coordination of the almost daily meetings between the Secretary General and Deputy Secretary General of Council and the Commission.16 The Council secretariat consists of around 3000 persons and is the second largest part of the EU administration after the Commission. The main part of the personnel is interpreters and translators. The staff of actual A-functionaries is around 250 out of which 50 are solely occupied with administrative functions. The remaining 200 A-functionaries handle administrative procedures and assist the Council, Coreper, the special committees, and the many working groups. The secretariat consists of the cabinet of the Secretary General, the legal service and seven General Directorates. The Secretary General and his or her cabinet function as the central coordinator in the Council. The legal service assists the Council, Coreper and the special committees and working groups in solving problems of legal nature. In addition, the legal service represents the Council in the ECJ. A special characteristic of the legal service, which sets it apart from the rest of the secretariat, is that the legal experts from the service can intervene directly in the meetings when asked to do so, whereas the other members of the secretariat can only do so through the Presidency. The legal service is furthermore often asked to review proposals and on occasions to make legal statements. Kirchner summarizes the functions of the secretariat in three categories (Kirchner 1992, 77): Firstly, the Council secretariat is a conference centre where logistic functions are attended to, as is translation, interpretation, preparation and distribution of documents, organization of meeting facilities, and ordinary security. 16

The tasks handled by the secretariat are described in Article 17 in the order of business for the secretariat, which only says: “The Council shall be assisted by the General Secretariat under the direction of a Secretary General.”

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Secondly, it is an administrative centre in the way that minutes of meetings are made and notes are drawn up on all levels of the Council, drafts to conclusions are made, and legal counselling is given. Thirdly, the secretariat functions as advisor for the Presidency. Often the secretariat and the Presidency turn into a team during the six months duration of the Presidency. The assistance yielded to the Presidency consists of consultations concerning objectives, tactics, and technical matters. The most significant contribution in regard is the briefing-book, which is prepared by the secretariat before meetings in the Council of Ministers. The briefing-book also contains a description of the topics that are to be debated on the meetings as well as a description of the remaining disputes and obstacles that must be resolved in order to reach a political agreement. The Secretary General or another high-ranking member of the secretariat is present during the meetings but he or she has no right to speak. The secretariat is furthermore responsible for writing the final conclusions of the meetings. However, it varies to which degree the Presidency makes use of the counselling and guidance of the secretariat. There is a tendency for the large Member States to use the secretariat to a lesser degree than others. The reason for this is that the large Member States believe they have the necessary resources to keep themselves informed of the activities of the Council. In addition for the large Member States, less prestige is attached with carrying out a streamlined Presidency. However, no presidencies can do without the assistance of the secretariat. Consequently, an incoming Presidency will, well in advance, make contact with the secretariat in order to obtain some initial advice. 7.2.3. Coreper17 In order to prepare the decisions at the Ministerial level, a great number of committees and working groups have been established in which all Member States and the Commission are represented. The officials’ preparation of the decisions in the Council in Coreper and the working groups play a very important part in the decision-making process in the EU. In fact, officials at the lower levels conclude negotiations on most proposals from the Commission, and only the most important or problematic ones are left to the Ministers. Coreper is the committee for the permanent representatives or the EU ambassadors of the Member States. The foreign policy ministers of former EC established the committee in 1958. One person in Coreper who usually comes from the involved General Directorate represents the Commission. The Commission’s General Directorates are

17 Coreper is an abbreviation for the French designation: ‘Comité des Représentatives Permanentes.’

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represented on either general director or director level. The president of Coreper is the permanent representative of the existing Presidency. The representative of the Commission and the president of Coreper usually stay in close contact when the meetings in Coreper are being prepared, again in close cooperation with the Council secretariat. Coreper is divided in Coreper I and Coreper II. In box 7.3. page 158 the difference between Coreper I and Coreper II is depicted. Both Coreper I and Coreper II report directly to the various assemblies at the ministerial level and act as preparatory authority. In overall terms Coreper I has the responsibility for preparation of cases in the ‘technical’ areas of the EU-cooperation that are environmental protection, the single market, the transport policy, research policy, and the cooperation on the economic policy, whereas SCA prepares cases for meetings concerning agricultural policies. Coreper II on the other hand primarily assists the work of the foreign policy ministers, the cooperation on the economic policy, the EU-budget, common foreign- and security policy, legal and internal affairs, institutional questions, negotiations on accession of applicant countries and other general EU-questions.18 Both Coreper I and Coreper II have meetings every 1 to 2 weeks. Subordinate to Coreper II is the so-called Antici-group. The group was established in 1975 and is named after its first president who was the permanent representative of Italy at the time. The participants in the group are the personal assistants of the permanent representatives. In addition, the Council secretariat and the Commission have their own ‘Antici’. The most important task of the Antici-group is to prepare the weekly meeting in Coreper, which is why the Antici-group meets before the meeting in Coreper II. In addition to preparing a commented agenda for Coreper II, the Antici-group handles a range of staff functions. In addition, the tasks which are not part of the usual division of labour and are, therefore, difficult to place, often fall to the Antici-group. With special regard to the Presidency, the Antici-group has functions considering that the group often functions as coordinator for the Presidency. In this way it is the Antici-member who in the six-month Presidency participates in the preparatory meetings before the meetings at the ministerial level. The permanent representative and the top management of the Council secretariat also attend the preparatory meetings. In an overall picture, it seems that the Antici-group to some extent sustains the stream of information between the Presidency, the Council secretariat, and the Member States. In meetings in the European Council, the Antici-members have a special status compared with the other delegation members as the Antici-members have direct access to participate in the meetings (Hayes-Renshaw et al. 1989). Firstly, the Antici-members follow every step in the preparation of the meetings. Secondly, 18 However, there is a hierarchical relationship between the superior Coreper II and the subordinate Coreper I.

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the Antici-members are located in the neighbouring offices from which they can quickly be called if the prime ministers need additional information or counselling. There is always a direct phone line between the prime ministers and the Antici-members during the meetings in the European Council (Troy Johnston 1994). Accordingly, the Antici-group is the only formal link between the heads of state and the national delegations. In 1995 an Antici-like group was established in relation to Coreper I. This group is called the Mertens-group, named after its first Belgian president. The Anitici-group and the Mertens-groups have the same functions for Coreper II and Coreper I respectively. Box 7.3. Coreper I og II Coreper I

SCA

Coreper II

Consists of

Acting representatives

Head of agricultural department of permanent representations

Permanent representatives

Reports to

The Council of Ministers

The Council of Agricultural ministers

The Council of Ministers

Areas of responsibility ‘Technical’ areas, e.g. the single market, consumer policy, and taxes

The Common Agricultural Policy (CAP)

Institutional matters and general EUquestions

Meetings prepared by Mertens-group

–

Antici-group

Source: The Author’s own representation.

Generally speaking, the permanent representations in Brussels have a significant influence on the decision-making process. This influence is among other things reflected in the attitude of the permanent representatives who tend to be critical of instructions from the home countries and more interpretive in their perception of the negotiation mandate than it is seen in actual embassies. 19 There are two reasons for this. First, the permanent expatriates in the Representation are ‘closer’ to the decision-making process and the political game. Accordingly, they obtain a higher degree of access to the relevant information on the decision-making process of the EU than the foreign ministries of the

19 The tendency is to try and “twist the instructions in a more realistic direction” (official in the Council of Ministers secretariat).

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Member States. This creates informational asymmetries working to empower the permanent representatives. Secondly, the permanent representatives are oriented towards what is politically possible rather than the use of purely factual and technical criteria of evaluation. Additionally, the permanent representatives are constantly reminded that negotiations in one area are often linked to negotiations in other areas in Brussels through the linkage of proposals from different policy areas. Furthermore, there is often a large degree of responsiveness to the representatives’ arguments about what is possible in a specific bargaining situation. Finally, the permanent representatives might also have ‘Niskanenian’ reasons for his or her point of views as presented above because they might increase their power and prestige. In this regard, it is important to be aware that there is a difference among the Member States in the latitude of the permanent representatives allowed by the governments. The permanent representatives from Italy and the Benelux countries are characterized by having a large margin for manoeuvre whereas France, Greece, Denmark, Ireland, and the United Kingdom do not tolerate much latitude in the negotiations (Nugent 2003), even though mandates are often issued in dialogue between the ministries and the representatives. One reason for these national differences is whether the national decision-making structure is centralized or not as there seems to be less latitude in the centralized Member States. The conclusion is that Coreper in general and SCA with regard to agriculture play an extremely central role in the decision-making process of the EU. All questions that are discussed in the Council of Ministers are accordingly dealt with by Coreper or SCA. Even though both Coreper and SCA has a significant influence on the decision-making process internally in the Council of Ministers, the EC Treaty does not give any opportunity for transferring the formal decision-making competency from the ministerial level to Coreper. All decisions must be formally made at the ministerial level. This normally happens after cases have been negotiated at the lower levels and nominated as A-items (items on which agreement has been reached). Afterwards, all cases decided upon in Coreper are collected under item A, provided that no Member State makes objections. At the meetings on ministerial level in the Council of Ministers, the adoption of item-A cases is merely a formality, and as they constitute the main part of the adoptions in the Council they relieve the negotiations. The A-items are on the agenda and they are adopted when the president of the Council has asked whether all Member States are accepting the proposals and no one has responded.

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7.2.4. The working groups of the Council of Ministers20 At the level under Coreper and SCA is a long range of working groups that also play an important role in the internal decision-making process of the Council. These working groups comprise a chapter that is often overlooked in the literature about the EU administration even though it is here that many national officials are confronted with the EU administration. The working groups are comprised of experts from the Member States or the permanent representatives of the Member States and one representative from the Commission. It is the responsibility of the Member States to ensure by whom the Member States are represented in the working groups. This happens by way of a so-called special attaché or a visiting public servant from the capital of the Member State (usually the minister’s department, but in cases of a very technical nature the person can also come from a lower government agency). However, there is no stabile pattern for when officials from the Member States or from the permanent representation are sent to participate in the working groups in the Council. There have usually been somewhere between 250 to 300 working groups connected to the Council of Ministers. That number was however, reduced to about 150 in 2002. They hold 2000 to 2500 meetings a year.21 Most of the working groups have a permanent character but there are some working groups that only deal with specific questions. Additionally, there is a large difference in how frequent the working groups meet and how large their significance is. The activity level of the working groups is closely correlated with the legislative activity in their area of responsibility; certain groups can hibernate completely during a sixmonth Presidency whereas others meet up to once every week. The task for the working groups is, as mentioned above, to carry out the first technical processing of the proposals coming from the Commission and negotiate as many details as possible before the proposal is discussed at the higher levels (Coreper and the ministerial level). When a proposal is finalized in working groups, or if difficulties in reaching an agreement arise, the proposal is sent to Coreper. Simultaneously, the working groups send a report, prepared by the Council secretariat, to Coreper that states whether there is agreement or disagreement among the representatives of the Member States. Consequently, there is pressure for finalizing cases at the lowest possible level of decision-making

20 Most of section 7.2.4. is based upon information from Sebastian Volkers and Anders Buch Kristensen who are both long time participants in the work of the workings groups of the Council of Ministers. 21 The activities of the working groups are not determined in any legal act. Neither is there any possibility for gaining insight into their protocol, minutes, meeting dates, etc. However, as a general rule they adjourn every second or third week, even though it the meeting frequency depend on the context.

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in the Council. As mentioned above, no proposal can formally be voted on at the lower levels, but the president in the various working groups or Coreper can conclude whether a majority can be established in favour of the discussed proposal. It happens that Member States make objections in Coreper that have not been voiced in the working groups. In this situation Coreper evaluates whether cases should be sent back for further discussions in the working groups. The same situation can arise at the ministerial level. If this is the case, the ministers can decide to reopen the A-item for negotiation at the present meeting if all Member States agree or at the following meeting if some object. This changes the status of case into a so-called B-item. The ministers will then discuss either at the present or the following meeting whether the case should be sent back to Coreper before the final decision-making at the ministerial level. In some of these instances, the perception can be that the work has not been done properly at the lower levels of the decision-making process in the Council. The processing of a proposal from the Commission will normally occur in daylong meetings in the working group, which are led by the existing Presidency. The Council secretariat aims at an interval of at least three weeks on account of the continuous revision of texts, translation of minutes, and so on. However, oftentimes the priorities and time pressures of the Presidency result in a more compressed process with a smaller interval between meetings. The Presidency – often in cooperation with the Commission – prepares an agenda for the meetings in the working groups while the Council secretariat has the responsibility of putting out notices of the meetings and the release of the relevant material for the meetings. The negotiations on proposals from the Commission are organized differently. It is to a large extent the Presidency that decides which approach to use. As a main rule the Member States go through the proposals article-by-article or section-bysection. However, the Presidency can choose to concentrate the negotiations on certain unresolved questions in situations where no progress seems to be made in the negotiations. The preparatory meetings are often used to clarify general questions concerning the proposal from the Commission and eventual legal or procedural uncertainties. This can possibly happen via a statement from the Council’s legal service. Usually, Member States’ positions will not be clarified until after the preparatory meetings. Afterwards, the discussions on the substance of the proposal begin. During the negotiations, the representatives of the Member States will advance their positions either through oral presentations using simultaneous interpretation or through written presentations which are handed out by the Council secretariat before, during or after the meeting. Informal contacts between the Commission and the working groups occur very early in the process when the Commission is preparing a proposal. The contacts are revived by the fact that it is often the same persons who take part in the management or regulatory committees of the Commission and the Council working groups (Kalin 1993). Accordingly, the continued communication between the Commission and the Member States is made possible. This has great significance for

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the decision-making process, as the Commission has the possibility of withdrawing or changing proposals during the processing in the Council working groups which can contribute to increase both the efficiency and the societal legitimacy of the union. It is not least via the participation in the Council working groups that the Commission obtains knowledge of the Member States’ attitudes towards a proposal. This enables the Commission to manoeuvre tactically in order to adjust the proposals to fit the situation in the negotiations. In this way the Commission can act as a de facto broker between the Member States and adapt its proposal in order to secure a qualified majority in at the ministerial level. The interaction between the Eurocrats of the Commission, the national bureaucracy in the Commission committees, and the Council working groups entails the blurring of the distinction between the initiative and the decision-making phase. The flexibility and the mutual exchange of information between the Commission, the representation of the Member States in Brussels, and the national experts are necessary as the cases often wander back and forth between the various levels of negotiation inside the Council. The working groups therefore have a very important function in making the EU administration work as a ‘political bureaucracy’ to use Wessels’ terminology (section 3.6. page 40). The representatives of the Member States in the working groups have principally three important tasks. For one, they must ensure the safeguarding of the national interest in the negotiations on proposals from the Commission. Secondly, they must make sure that the proposal has matured enough to reach a political decision at the ministerial level. Thirdly, participation of the Member States serves to increase the likelihood of successful implementation after a decision has been made. Before the meeting in the working groups the Council secretariat sometimes sends a new text proposal to the permanent representations of the Member States. Usually, this happens very shortly before the meetings. In this period of time the Member States’ representatives in the working groups must obtain instructions for the negotiations from the Member States. After the meetings the representatives report back to the authority from which they received their instructions either in writing or orally with a description of the development of the meeting and the positions of the various Member States. In the meetings, Member State representatives can express their attitudes towards a proposal by voicing different forms of reservations. Some countries use a parliamentary reservation, which emphasizes that the national position will be subject to acceptance in the national parliament at a later time in the process. Th e Member States often express a general scrutiny reservation to the totality of the proposal on the first meeting in the working groups due to the fact that national analysis has not yet been conducted. The final national attitude towards the proposal can normally not be expressed until later in the negotiations. If a Member State has substantial difficulties accepting the proposal this can be voiced by a substantive ‘reserve’.

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Regarding the individual provisions of the proposal, the Member States can in the same manner make either a scrutiny reservation if the national position is not clarified or a substantive ‘reserve’ if the country has difficulties accepting specific provisions. The Member States can also clarify their scrutiny reservation by stating whether the reservation is positive or negative if there is a reasoned expectation as to how national positioning will result. A scrutiny reservation made on account of lacking translation of the proposal is often called a linguistic scrutiny reservation. The working method in working groups is not as formal as at the ministerial level. Votes seldom occur at this level, which often makes the argument more important than formal voting weights. When negotiations take place in the working groups, the representatives negotiate on the basis of more or less specified instructions from the Member States. The instructions often concern only the position of the Member State and do not specify which negotiating strategy the representative should utilize. During negotiations the representatives accordingly seek to use durable and convincing chains of arguments regardless of whether the overall approach to the question at hand is political, economical, legal or technical. The overall result of the nature of the negotiations is a tendency towards the politicizing of the decision-making process already at the lower levels in the Council. Another defining feature of the working method in working groups is that Member States can have strategic and tactical reasons for refraining from expressing their position at the level of the working groups. If the case in question is considered important, Member State representatives can choose not to present their position until the case has reached a level of maturity where the Member State can “gain something from its position”. Accordingly, there can be strategic and tactical reasons for revealing the national position at Coreper-level or, in certain cases, not until the proposal has reached the ministerial level. This strategy can be a result of a delegation wanting to politicize a case before it is abandoned in negotiations. One official expresses this strategy in the following way: “There are some cases where we can see the solution is reasonable but where we cannot move at working group level because for political reasons it must reach ministerial level. Not until then can one yield to the common goal.” [Authors’ own translation of statement made by an official at the Danish Permanent Representation in Brussels]. Examples of these cases are when a widely held national opinion against a proposal exists and the minister, subsequently, cannot accept the proposal unless he or she is outvoted.

7.2.5. Organization processes between the levels of the Council of Ministers In this section the internal processes between the various levels in the Council are summarized in an overall perspective.

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When a proposal is made by the Commission in an area where the Council has decision-making competency, the bureaucracy of the Council immediately begins processing it while awaiting response on hearing requests or first reading from the European Parliament, and hearing reports from the European Economic and Social Committee and the Committee of the Regions. At first the proposal is put on the Coreper’s or SCA’s agenda. It is decided whether to leave the proposal to a subordinate working group to prepare the processing of the proposal. Therefore, the proposal oftentimes goes through the first technical processing at working group level. The processing continues until all possibilities of settlement have been explored. When a proposal has been processed in the working group or if difficulties arise in the negotiations, the proposal is send to Coreper, which will seek to solve the remaining problems. For Coreper the choice is between continuing the processing of the proposal, forwarding it to the ministerial level, or sending it back to the working group with new instructions. It is in this way in Coreper that cases are recommended for final decision at the ministerial level and as a result Coreper sets up the agenda for the meetings among the ministers in the Council. Similarly, the ministers can send back a proposal to Coreper if they have agreed on new instructions or if they have given up reaching a decision. Through this process, which often stretches over quite a while, a gradual rapprochement between the positions of the Member States takes place. A Member State can, for example, withdraw from a position if it is isolated or if possibilities for compromise are discovered. Again, the legitimacy-enhancing operational code of the EU is seen as the position of the Member States mutually adapting in order to make the decision-making process a positive-sum game. According to the various sources, about 70 per cent of all decisions in the Council of Ministers are effectively made at working group level and about 15 per cent at Coreper level, meaning that about 15 per cent of the decision is left for the ministers.22 The 85 per cent are adopted in the Council of Ministers in a written procedure as an A-point. The lines of the decision-making process between the various levels in the Council of Ministers are shown in a simplified version in figure 7.1. page 165. As the figure shows the agricultural area has a special committee (SCA) which is responsible for the preparation of the meetings at the ministerial level and which creates its own set of working groups for the individual agricultural products (section 7.2.3.). As a supplement to the figure, the Council’s relations to the outside world should be mentioned again. The Commission formally initiates the internal deci-

22 Information from Anders Buch Kristensen. Anders Buch Kristensen is former head of department at the Permanent Representation of Denmark by the European Union.

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sion-making process in the Council. In addition, a long range of authorities are consulted during the decision-making process. Figure 7.1. The decision-making levels in the Council of Ministers The Council of Ministers

Legal Linguist Group

SCA

COREPER I COREPER II

Mertens-group

Working groups

Antici-group

Source: The author’s own representation.

As mentioned in the introduction, the Council of Ministers contributes to the formal legitimacy in the areas where the Council has decision-making competencies due to the fact that elected politicians from Member States formally make the decisions in the Council. However, the societal legitimacy of the Council also depends on its organizational processes including its decision-making procedures. Nevertheless, it has been argued that the Council lacks societal legitimacy in a range of areas related to organizational and decision-making procedures.23 Firstly, the internal organization processes in the Council give the lower administrative levels in the vertical differentiation a relatively large amount of power, as most negotiations are concluded before they reach the ministers, even though the decision-making competency is formally placed at the ministerial level. Against this argument one can, however, object that the same delegation of competency

23

See Juliet Lodge (2003), and Jeffrey Lewis (2000).

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occurs in the national administrations where it is also normal that proposals are negotiated and concluded at the lower administrative levels. In addition, in both the Council of Ministers and the national administrations the minister does have the final formal responsibility for all decisions made. Secondly, it has been asserted that the negotiations in the Council are closed, and that the public consequently have no insight into the decision-making process. However, the same opacity exists in the lower levels of the administration in the national negotiations. The problems concerning lack of openness in the negotiations at the administrative level is accordingly the same as in the national administrations. With regard to the negotiations at the ministerial levels there are nonetheless differences in the degree of openness as the national governments often (but not always) have a higher degree of openness than the Council. However, moderate steps towards more openness have been taken with the new Council Statute, which was decided at the Seville summit in 2002. Thirdly, critics have stated that even if the organization processes in the Council has the same degree of decentralization and the administrative level the same lack of openness as the national administrations, the Council still has a greater problem concerning the societal legitimacy than the Member States. This is due to the fact that the national representatives in working groups represent the special interests of the nation states whereas the national officials are, in principle, neutral. For that reason, critics assert that the Council of Ministers must have a larger degree of openness than the Member States in order to obtain the same degree of societal legitimacy as national decision-making organs. These arguments are part of a discussion on openness in the EU which has spread as the Union has obtained competencies in still more areas. When discussing openness in the EU one must remember that more openness can lead to the transfer of actual decision-making to other closed fora (section 7.1.5. and section 7.3.2.). Increased openness in the internal decision-making processes in the Council can accordingly lead to lower efficiency which is also likely to decrease the societal legitimacy.

7.2.6. Negotiations and decision-making procedure between the Member States in the Council of Ministers In general, the Council aims at achieving consensus among the Member States when decisions are made. In the cases where reaching a consensus is not possible, the Treaty’s rules on voting can be used. According to the Treaty three different types of negotiations exist. In the following, these are presented with significant weight placed on the decision-making procedures requiring qualified majority. This is partly due to the fact that the decision-making procedure requiring qualified majority is most widely used, partly because the rules concerning qualified majority are undergoing continuous change and discussion.

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Unanimity In certain Treaty articles unanimity is required in order to make a decision. This simply means that a no-vote from just one Member State results in the rejection of a proposal. Unanimity, in one example, applies for Article 93 (the EC Treaty) concerning the harmonization of taxes (VAT, excise duty on certain goods, etc.),24 Article 42 (EC Treaty) on social conditions (rules on social rights for citizens from one Member State deciding to stay in another Member State) and parts of Article 137 (EC Treaty) concerning employment policy. Additionally, certain facets of foreign and legal cooperation in the EU (2nd and 3rd pillar) require unanimity. There has been a running discussion in the EU concerning the unanimity rule as some Member States have argued that some or all of the covered areas should be out under the qualified majority rule in order to make decision-making easier. However, due to the political sensitivity of the subject this has not yet been possible. It is the general assumption that it would harm the societal legitimacy of the EU’s decision-making process if unanimity were abolished in these areas. Accordingly, the unanimity rule is left in areas where Member States wish to retain sovereignty but harmonize all on which everybody agrees. There is a tendency towards the transfer of areas under the unanimity rule to the qualified majority rule. This tendency was to be further enhanced in the proposal for a Constitutional Treaty, in which the areas covered by the unanimity rule were to be further reduced to 25 per cent of the areas in which the Council has decision-making competency; however, unanimity was to be kept in the areas mentioned above. Historically, the unanimity rule has been connected with the Luxembourg compromise presented in box 7.4. page 168. Simple majority In some areas a simple majority is enough to pass a proposal. As there are 25 Member States this means that a proposal is adopted if 13 Member States vote in favour. However, in practice the simple majority rule is only used in cases of a procedural nature. Almost no legal acts are adopted on the basis of a simple majority.

24

The wording of Article 93 is as follows: “The Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonization of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonization is necessary to ensure the establishment and the functioning of the internal market within the time limit laid down in Article 14.”

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Qualified majority Over the years still more articles in the treaty basis of the EU have prescribed that the proposals in the covered areas must be passed by way of qualified majority. This necessitates that the voting weights the Member States have been delegated are used to examine whether a qualified majority is reached or not. The voting weights of the Member States are delegated partly on the basis of the size of the population, but with benefits to the smaller Member States. Furthermore, political bargaining power influences how the relationship between Member State voting weights should be. For instance Poland, Spain, and Bulgaria were given a relatively large weight whereas the Czech Republic was given a relatively small weight in the Nice Treaty. This asymmetry was intended to be adjusted in the Constitutional Treaty. Box 7.4. The Luxembourg compromise and its background France was, in the mid–1960s, dissatisfied with the gradual introduction of majority decisions in the decision-making procedure of the EU. When the protests did not resonate with the rest of the Member States, France temporarily withdrew from the cooperation, which in practise resulted in paralyzing the Union. France did not return until January 1966 when the Member States had agreed on giving veto power in areas of ‘very important interest’. The agreement has later been named the ‘Luxembourg compromise’. It is, however, not an actual compromise, but rather a unilateral French declaration in which the demand for unanimity when ‘very important interests’ of the Member States is at stake is stated. Accordingly, the declaration is not legally binding. For about two decades after 1966 it was the norm that Member States continued discussion until consensus was reached. When the demand for unanimity coincided with a Member State’s claim that ‘very important interests’ were at stake, it was respected with only one exception. The new Member States, Denmark, the UK, and Greece supported the Luxembourg compromise unconditionally. Thus, support was in reality a warranty for the compromise as the three Member States and France at the time together wielded 28 votes, which were enough to block the adoption of a proposal if qualified majority was required. In several cases, voting has loomed during discussions in the Council. If a Member State in such a scenario has asserted its ‘very important interests’ the Member States have been able to rely on that the four Member States who had supported the Luxembourg compromise would vote against the proposal or abstain from voting. It is, however, unclear how much weight the Luxembourg compromise carries today. The Council increasingly makes decisions by way of qualified majority. This is possibly an expression of a change in the norms in the EU towards the upgrading of the common interest. The Luxembourg compromise has not been asserted successfully since 1985 were Germany succeeded in obtaining support for the use of the veto power.25

25

Noël says about the compromise, “Today the Luxembourg Compromise is hardly ever used to block a majority decision. Over the years both delegations and ministers have gradually changed their approach to discussions to take into account the prospects of a final decision by majority vote.” (Noël 1991, 23). The British EU-researcher, Neil Nugent states, “the Compromise is perhaps therefore now best thought of as usually in a deep sleep, but subject to very occasional awakening.” (Nugent 1999, 121–122).

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At the European Council summit in Nice on the 7–11 December 2000 the new voting weights for after the eastern enlargement took place. The negotiations ended with an agreement on the new distribution of votes, which entered into force on 1 November 2004. The new distribution of voting weights is shown in table 7.1. below. In advance of the agreement, negotiations had gone on for several days. The Economist delivered an abstract of the decisive phase of the negotiations that shows that many different arguments are used in the debate on the distribution of votes. The abstract illustrates that the distribution is the results of political negotiations and not objective criteria alone (see box 7.5. page 170). In table 7.1. the new voting weights after the enlargement are compared with the voting weights in EU–15. Table 7.1. Voting weights before and after the Treaty of Nice Member State

Germany United Kingdom France Italy Spain Poland The Netherlands Greece Czech Republic Belgium Hungary Portugal Sweden Austria Slovak Republic Denmark Finland Ireland Lithuania Latvia Slovenia Estonia Cyprus Luxembourg Malta Total EU–25/EU–15

26

Voting weights in per cent/ vote in the Treaty of Nice (Entered into force 1 November 2004)26

Voting weights in per cent/ vote in EU-15 in the Treaty of Nice

9.0 (29) 9.0 (29) 9.0 (29) 9.0 (29) 8.4 (27) 8.4 (27) 4.0 (13) 3.7 (12) 3.7 (12) 3.7 (12) 3.7 (12) 3.7 (12) 3.1 (10) 3.1 (10) 2.1 (7) 2.1 (7) 2.1 (7) 2.1 (7) 2.1 (7) 1.3 (4) 1.3 (4) 1.3 (4) 1.3 (4) 1.3 (4) 0.9 (3)

11.5 (10) 11.5 (10) 11.5 (10) 11.5 (10) 10.1 (8) – 5.7 (5) 5.7 (5) – 5.7 (5) – 5.7 (5) 4.6 (4) 4.6 (4) – 3.4 (3) 3.4 (3) 3.4 (3) – – – – – 2.3 (2) –

100.0 (321)

100.0 (87)

In addition 14 votes were allocated to Rumania and 10 votes to Bulgaria in the Treaty of Nice.

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Box 7.5. Abstract of the meeting in the European Council from 1:20 AM on 11 December 2000 Chirac (France) presents proposal. Verhofstadt (Belgium): No. Too high a threshold [to achieve a majority]. Discrimination against gets worse with every draft. Easier for three bigs to block. Simitis (Greece): Are you really giving 22 MEPS to Belgium and 20 to us? Guters (Portugal): An improvement. We have two lees MEPS than B. Want a lower threshold. If acceptable to all, I accept. Lipponen (Finland): Fair proposal on vote reweighting. But Lithuania does not have a fair deal. Belgium, there has to be a difference on the basis of population. We are different from Sweden in population, and so treated differently . . . Threshold v high, but if everyone can accept so can I. Schröder (Germany): When I hear these kinds of complaints it makes me sick. This has nothing to do with the organization of Europe. I have enormous doubts about the 74%. Let’s settle and go home. Schüssel (Austria): Don’t like 74%. But if others agree I can. Blair (Britain): I can agree. The threshold is high because of the way the original has been scaled down. Strongly support commission president by QMV . . . If elections by QMV of each commissioner, I have problem. Chirac: (France): It is the list that is done by QMV, not the individuals. Junker (Luxembourg): Recognize that you have taken up our idea QMV for commission president. Couldn’t we lower the threshold? But if all can accept, then I can . . . Chirac: (France): Fine to look at this. Kok (Netherlands): Six biggest doing well. One more vote from Netherlands to Austria would help reduce the discrimination. Prodi (commission president): Agree with Junker on threshold. Ahern (Ireland): I’ll buy it if you do. Amato (Italy): There’s a bit more QMV, which is good for us. Turning the Member State safety net round is not great, but I understand. I note that some candidates are badly served. Romania gets the same as Netherlands, Malta less than Luxembourg and Lithuania less than Ireland. Fine for us around the table. Chirac: (France): A nuance; legitimate that old Member States, who have contributed so much, have more votes than those who are new and will bring problems. Simitis: (Greece): We have 300,000 more people than Belgium and two fewer MEPS. Chirac: Belgium has a huge problem. We have to recognize that. Portugal has shown solidarity. Exception that confirms the rule. Simitis: (Greece): But you put me in same state as Belgium. Goes against all logic. Rasmussen (Denmark): Can buy it if all can. Bigs have made key contribution.... But I am sorry for one country-Lithuania, which has the same population as Ireland. Total votes goes from 337 to 342; why not 2 more for Lithuania? But can accept if all can. Azner (Spain): Less re-weighting Member States’ safety net. Threshold is a significant progress. Verhofstadt: My point isn’t the number of MEPS, but the votes. Not using same principles for all. Chirac: Are you vetoing? Verhofstadt: Can’t accept. Persson: (Sweden): We can accept proposal. Same position as Finland and Denmark on Lithuania. Chirac: Commission and 14 can accept treaty. If no gap in your MEPS, will you buy it? Simitis: Yes. Chirac: So just Belgium. Rasmussen: What about Lithuania? Chirac: Newcomers will get less than those that are there already. We’ve done all we can. For MEPS, Greece 22, Belgium 22, Czech 20, Hungary, Portugal 22. Editor’s note: The agreement ultimately arrived at, two hours later, did give Greece and Portugal two fewer Euro-MPS than Belgium. But Lithuania got parity with Ireland in the Council of Ministers. Source: The Economist, 15 December 2000.

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The distribution of votes which privileges the small Member States can be interpreted as a protection against the potentially constant overruling of the smaller Member States by the larger Member States. The change in the Treaty of Nice reduces the degree of favouritism of the small states and can be interpreted as a way to take into consideration the accession of a number of small Member States in the eastern enlargement which was about to change the balance relatively more in favour of the smaller states.27 Additionally, it played a significant role in the negotiations that the small states during the negotiations on the Constitutional Treaty maintained that they wanted to retain the one country – one commissioner principle in the Commission instead of ceding their right to having a commissioner at all times. In sum, the new distribution of voting weights can be seen as a result of a political negotiation involving the traditional horse-trading. When it was acceptable for Germany that the same number of votes was allocated to all four large Member States it should be seen as partly a result of the fact that France opposed a skewed distribution and partly that Germany was granted more representatives in the European Parliament. Additionally, it played a role that Germany was ensured that the size of the Member State population could play a role (see below). Nevertheless, it must be noticed that it is only as a last resort that votes are carried out in the Council of Ministers after a long process of ‘give-and-take’ between all the Member States. The EU has a built-in wish to avoid confrontations and strive for consensus (Kalin 1993). However, even though it is a rarity, it does occur still more often that Member States are openly defeated in votes. And even though votes are rare, voting weighs do play a role in the ‘give-and-take’-process leading up to the consensus. One might say that discussion is carried out in the shadow of the voting weights. As the most important examples of articles in the treaty basis of the Union in which qualified majority is prescribed as the way of decision-making, Article 86 and Article 37 can be mentioned. Article 86 concerns the implementation of the internal market whereas Article 37 covers important areas concerning agriculture. In addition to the voting weights, the Treaty of Nice contained additional criteria for the attainment of qualified majority in the Council. According to the Nice rules, a proposal is adopted under the qualified majority rule if two conditions are fulfilled: 1) when the proposal has been approved by a majority of the Member States (in some cases a majority of two thirds) and 2) when at least 232 votes have

27 Already today, Denmark, Sweden, and Finland have almost as many votes in the Council as Germany, which has four times as many citizens as the three Nordic Member States taken together. This effect has by French politicians been characterized as ‘la dictature de petits’ and by British diplomats as the ‘the tyranny of the tinies’ (Information, 22 September 1993). Accordingly, the decision-making process might lose societal legitimacy in the larger Member States.

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been cast in favour of the proposal which equals 72.3 per cent of the total number of votes (which is about the same proportion as under the former voting rules). Every Member State can, in addition, demand that it is controlled whether the number of votes cast represents at least 62 per cent of the total population of the EU. If this condition is not fulfilled, the proposal will be rejected. Under the Nice rules the most important element in the forming of coalitions are the weighted votes whereas the country element and the population element only constitutes a sort of secondary majority-test. The balance in the distribution of votes is, however, not just a question of small Member States vs. large Member States. It is also a question of the relationship between the various groupings of Member States which in different ways have been established as certain regularities in the interests and views of the Member States involved. Under the Nice rules, none of the traditional groupings are able to gather a qualified majority easily. The 12 Member States of the Euro group (which are full members of the economic and monetary union) are however close. The traditional budget-restrictive Member States (which want narrow limits on the EU budget) are quite far from being able to gather a qualified majority even if France is added to this group. Both Mediterranean countries (with common interests in the Mediterranean products), the Baltic nations, and the ten new Member States as individual groupings are far from being able to raise a qualified majority. The fact that no individual group of Member States is able to raise a qualified majority without support from other Member States contributes to giving the Union societal legitimacy. This is due to the fact the compromises are forced and no Member States are repressed. The EU is more than any other supranational cooperation a well-organized and well-administrated compromise machine where decisions can only be made when Member States bend towards each other. Table 7.2. page 173 illustrates the possibilities for establishing coalitions in EU25 under the Nice rules. It is the task of the Presidency to detect the positions of the Member States on the various proposals and decide whether it is a good or a bad idea to have a vote. Accordingly, the Presidency must be able to sense whether there are enough votes to ensure the adoption of the proposal in question. It does not make sense for the Presidency to initiate a vote if it is not expected to lead to adoption of the proposal unless the Presidency actually works to reject the proposal (which is an occasional occurrence). In certain cases where very important questions have been discussed in the Council, Member States sometimes agree on package deals.28 This means that a Member State gets its way with regard to a proposal that is particularly important for that Member State in exchange for supporting a proposal that is of particu28 There is autonomous literature on the theoretical foundation for package deals, logrolling and side payments, etc. (Mueller 2003, 108–127, 213–215).

The Council of Ministers – Organizational Structure, Processes and Culture 173 Table 7.2. Possibilities for establishing coalitions in EU–25 Group of Member States

EU-25 Share of Member Voting weights States’ votes in in per cent/ per cent (minimum vote (minimum 50 per cent) 72 .3 per cent )

The Budget-restrictive 1) Budget-restrictive plus France The Baltic countries 2) The Mediterranean countries 3) The large Member States 4) The large an medium Member States 5) The Eurogroup The new Member States The Central- and Eastern Member States

36 40 32 28 16 24 48 40 32

37.7 (121) 46.7 (150) 29.6 (95) 36.1 (116) 36.1 (116) 53.0 (170) 59.5 (191) 26.2 (84) 24.0 (77)

Share of population in per cent (minimum 62 per cent) 43.4 56.5 32.8 39.4 57.3 74.6 67.0 16.7 16.4

1) Belgium, the Netherlands, Luxembourg, Britain, Sweden, Denmark, Finland, Germany, and Austria. 2) Denmark, Finland, Sweden, Poland, Germany, Estonia, Latvia, and Lithuania. 3) Cyprus, Spain, France, Greece, Italy, Portugal, and Malta. 4) Germany, France, Britain, and Italy. 5) As above plus Spain and Poland. Source: Author’s own representation.

lar importance to another Member State. These forms of package deals have even been considered an advantage for the integration in the EU. The problem with potential EU-cooperation in different speeds is exactly that cooperation often is based on the collective acceptance of a package of proposals as a give-and-take compromise between Member States with different preferences. If the Union does not have a common mix of political areas of cooperation such package deals will become difficult to make. This is especially important considering “[o]ver more than forty years of EC history, the necessity for consensus might have slowed down the decision-making process, but it has ultimately not prevented the EC from making considerable progress, especially by using the package-deal method,” (Wessels 1991, 149). The decision making process of the EU can, in other words, be perceived as a series of horse-trading in which the Member States give-and-take and as a result all gain from the negotiation game in the medium to long run. A series of decisions of this pattern can be called decision-making processes on the basis of the operational code of the EU (Kalin 1993).29 The condition for the code to be accepted

29

Kalin (1993) enumerates three conditions for the operational code: 1) the actors

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is that the Member States in the minority position do not feel repressed. The wide range of different groups of Member States contributes to making the overriding of particular Member States unlikely by creating a certain balance between the Member States. At the same time the many committees and working groups of the EU-system also register the positions of the Member States and seek compromises in order to ensure that everyone is heard. The internal organization processes in the Council can, however, weaken the possibilities for making package deals as the working groups on the lower levels often do not have enough overview and competency to include additional areas in their negotiations thereby ‘linking’ cases. This can decrease the efficiency in the decision-making process in the Union.

7.3. Organizational culture of the Council of Ministers 7.3.1. Secretariat of the Council of Ministers The dominant mindset in the Secretariat of the Council of Ministers is probably more difficult to identify than in any other organ in the EU. The reason is that one of the aims of the Secretariat is to be regarded as impartial and command the trust of all Member States, which especially is important for the relations between the Secretariat and the Presidency. More than any other EU organ, the Secretariat of the Council of Ministers aims at being an anonymous institution even though the Council secretariat seems to acquire a higher profile in times of accelerated European integration (Dinan 2005, 232). At the same time, it remains clear that the Secretariat of the Council of Ministers aspires to acquire influence by its autonomy. Former Secretary General Niels Ersbøll stated that: The Secretariat is a guarantor of the healthy functioning of the Council and for coherence and continuity in the actions of the Council. Thus the Secretariat resents supporting a poor Presidency. Poor in the sense that it is partial and seeks to further its national interests. In such cases the Secretariat has a weapon it can use to keep things on track, and that weapon is distance. There is dissociation from the Presidency, and the Secretariat tries to make this dissociation obvious to the other Members of the Council, even though the Presidency of course still is assisted by the Secretariat of the Council. This yields an invisible influence, (Niels Ersbøll, Brussels 1993, quoted in Fredslund and Thorning-Schmidt 1994). [Author’s own translation].

perceive the decision-making process as a positive-sum game, 2) the actors avoid overriding each other and blocking the decision-making process, and 3) if the rules of the game are violated (that is the operational code), the violation will be punished.

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7.3.2. Sessions in the Council of Ministers Traditionally, the sessions in the Council of Ministers have been closed to the public, unless it was decided otherwise by unanimity at the meeting.30 Ministers in the Council of Ministers have been disinclined to admit defeat on issues they have fought over. This has certainly had some bearing on the desire to keep the public gaze away from the meetings. The lack of transparency in connection to Council sessions has probably both increased the efficiency of the decision-making process and reduced its societal legitimacy. Normally, bureaucrats from the national Ministry and the EU representation sit at the negotiating table in the Council of Ministers. When the Ministers approach the resolution of a difficult issue the session is declared closed (‘restreint’). Subsequently, everyone, save the Ministers and one or two advisers, leave the meeting. Immediately before a compromise is reached the President may declare the meeting for super-closed (‘super-restreint’), and only the Ministers are left at the table. The reason for gradually leaving the Ministers in their own is that they with few or no advisers are more prepared to disregard technicalities that are usually brought up by officials and view the issues from a pure political perspective. When there is no overall desire for having full transparency in Council sessions it is because it would seriously hamper the possibilities of securing compromises. In that case the real decisions would migrate to closed preparatory meetings. Public vote can also complicate the decision-making process, as some Ministers feel compelled to vote against a deal for political reasons (section 7.2.). There is a public vote on decisions that are made with the co-decision procedure. Increased transparency is an often-promoted bid at ensuring EU decision-making processes and increased degrees of societal legitimacy. This is partly why the conclusions of the December 1992 Edinburgh summit included a number of recommendations on increased transparency in the work of the Council of Ministers. For example, it was established that the process of making the work of the Council of Ministers more transparent should be initiated in a number of areas as illustrated in box 7.6. page 176. Meanwhile, the Edinburgh conclusions on transparency in the decision-making process of the Council of Ministers also established that the practice of making the complete Council conclusions public, which had arisen in most Council configurations, should be expanded to all configurations of the Council, “exceptions being made for cases where such information would harm the interests of the Member States, the Council or the Community.” This latter exception may, for instance, apply to actual negotiations. It is finally established that there should be more emphasis on publishing explanatory summaries of the most important A-points. 30 First public meeting in the Council of Ministers was held in Brussels on 1 February 1993.

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Box 7.6. Edinburgh conclusions on openness and transparency in the Council of Ministers a) Open Debates on Work Programme and on Major Initiatives of Community Interest i) Open orientation debates on relevant Presidency or Commission work programmes, in both the General Affairs Council and the ECOFIN Council. The timing will be for decision by the Presidency. ii) There should be regular open debates on major issues of Community interest. It will be for the Presidency, any Member State or the Commission to propose issues for open debate. The decision will be made on a case-by-case basis. b) Legislation Major new legislative proposals will, whenever appropriate, be the subject of a preliminary open debate, in the relevant Council, on the basis of the Commission’s legislative proposal. It will be for the Presidency, any Member State or the Commission to propose specific subjects for a debate. The decision will be taken by the Council on a case-bycase basis. Negotiations on legislation in the framework of the Council shall remain confidential. c) Publication of Voting Record When a formal vote is taken in Council, the records of the vote (including explanations of vote where delegations request these) shall be published. d) The decision on holding an open debate on a specific item under point a ii) and b) shall be taken by unanimity. e) ‘Public access’ will be achieved by televising the debate for viewing in the press area of the Council building. Source: The UK’s Presidency Conclusions, December 11, 1992.

Regarding the disclosure of voting results, it is important to note that formal votes in the strict sense of the word do not take place very often in the Council. There is, furthermore, the option of bypassing disclosure demands by using a less ‘formal’ voting procedure. The subsequent negotiations over the principles of disclosure resulted in changes in the Council’s Statute on 6 December 1993, when two new provisions were introduced. The first of these provisions31 stipulates that if a vote in the Council is made public, then the motivation given by Members for their vote should also be made public upon the request of affected Member States. The Council of Ministers has also adopted a number of provisions regulating the use of this provision. They imply that if the disclosure of the vote motivation of one or more Member States is requested it is up to each and every member of the Council of Ministers to decide if the disclosure should be regarded as prudent or not. The second provision32 lists four situations that are particular importance to the potential disclosure of the results of a vote. The first situation is when the Council 31 32

Article 5, section 1, 2nd subsection. Article 7, section 5.

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of Ministers acts as a legislature and the Council adopts a Common Position in accordance with Article 251 or 252 of the Treaty of the EC. If the Council makes the decision by written voting procedure, which may happen in urgent matters (pursuant to Article 8 of the Statute), the results of the vote are only disclosed when the Council acts in its legislative capacity and therefore not disclosed when adopting a Common Position.33 The second situation is when votes are cast by the Members of the Council or their representatives in the Conciliation Committee established by Article 251 in the Treaty establishing the EC. In that case there is no disclosure. The third situation is when the Council acts within the legal framework of 2nd and 3rd pillar of the Treaty on the EU. Some Member States desired automatic disclosure in this area, but that has not happened so far. The final situation is when the Council decides to avoid disclosure at the request of a Member State. The decision should, in that case, be made by a simple majority (Article 201, section 1 of the Treaty establishing the EC). Coreper, moreover, processes public disclosure requests prior to the meeting in the Council. An important element in connection to the execution of meetings in the Council is the delivery of so-called unilateral declarations. These are declarations that the Minister of the Member State in question reads aloud or distributes in order to familiarize the other Ministers with a particular point of view. However, the main purpose is to demonstrate for parts of the national political support base, that certain views have been presented to the Council. The attitude towards more transparency in the Council varies significantly from Member State to Member State. Belgium, Luxembourg, and Portugal have been especially reluctant to letting in the public gaze whereas the United Kingdom and the Nordic countries have pressed for more transparency. The main problem with transparency in the Council of Ministers consists of the Ministers’ difficulty of admitting defeat on issues they have fought over. The argument goes along the lines that more transparency would make Ministers more disinclined to make any concessions at all. Thus, transparency in the Council opens a schism between the efficiency and societal legitimacy of the decision-making process of the Council of Ministers. Conclusively, nothing suggests that transparency will ever be implemented in actual negotiations in the Council.

7.3.3. Public access to Council documents The Council of Ministers decided in 1993 in favour of more openness regarding its work in the form of more possibilities of public access in non-disclosed Council

33

If there are any doubts whether or not the Council is acting in its legislative capacity, the Council issues an opinion on the basis of a note from the legal service. A decision of not disclosing the results of a vote may be made by a simple majority. See Treaty establishing the EC Article 149, section 1.

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documents (see Decision 93/731/EC). This decision was part of the overall line towards more transparency and openness as a response to low public confidence as expressed by the 1992 referendums in France and Denmark. The first step in this direction was taken in the shape of Declaration No. 17, which was annexed to the Final Act of the Treaty on the EU and concerns the right of access to information. The principle that citizens should have ‘maximum access to information’ was afterwards affirmed at the June 1993 European Council summit in Copenhagen. On 6 December 1993 the Council of Ministers and the Commission adopted a code of conduct, which stipulates that the public “will have the widest possible access to documents held by the Commission and the Council.” On 29 May 1995 the Council of Ministers reiterated that it intended to ensure regular and comprehensive briefings of the public before the beginning of each session. In this connection, the Secretariat of the Council has the option of distributing all relevant information regarding texts that are to be discussed, when pertinent and in discussions with the Presidency. The Council and European Parliament adopted a public access regulation regarding public access to documents of the European Parliament, the Council, and the Commission in May 2001. This means that all EU citizens have a right of access. The starting point is that all documents in the possession of the institutions that are covered by the regulations are thus in principle accessible to the public. Public access is thereby the norm and rejections the exception. Article 4 of the regulation includes a number of stipulated exceptions (section 6.3.2). The exceptions are only valid in the time span in which any precautionary measures may be attributed to the contents of the document, and the exceptions may also be timelimited themselves. The regulation also stipulates a number of exceptions for documents compiled by an institution for internal use only, or received by the institution from an external party, and documents that are related to a case in which the final decision has not yet been made, and if public knowledge of the contents of the document could harm the decision-making process of the institution. Similar exceptions apply to documents that contain opinions intended for internal use as part of discussions and preliminary consultations in an institution. In sum, the possibilities of acquiring public access to Council documents are rather limited. The main reason is that the Council of Ministers shares some traits with the negotiation forums of other international organizations, where it still is the defence of the national interest that informs the negotiations. The opening for televised transmissions to the public from the Council of Ministers is thus in the areas that do not concern negotiations between Member States.

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7.3.4. Esprit de corps in the Council bureaucracy34 According to Fredslund and Thorning-Schmidt (1994), it is possible to find a norm that emphasizes the positive independent aspects of making decisions at the political as well as bureaucratic level of the Council. The introduction of scoreboards that show how many decisions have been made under the auspices of a given Presidency is an indication of the prevalence of this norm. It is the most important task of officials both in the working groups and Coreper to resolve as many pending issues as possible, and if the number of pending issues were not reduced, bureaucrats would be regarded as not doing their job properly. The decision-norm also implies that bureaucrats are familiar with each other and have close working relationships. This inhibits destructive behaviour in the decision-making process and indicates that there is also an ‘esprit de corps’ at the bureaucratic level that facilitates negotiations. A contributing factor to the creation of this esprit de corps is the many formal and informal contacts through various networks between officials that may influence the outcome of the negotiations. The most significant contacts are between the President of a working group and corresponding officials in the Commission and from the Council Secretariat. It is moreover important for each representative to maintain regular and intense contacts with colleagues in the working group. These contacts must be nurtured carefully in order to keep one up-to-date with the positions of other delegations and to form alliances (Gonzáles-Sánchez 1992). The daily exchanges of information are likewise characterized by many informal phone conversations, e-mails, etc. where officials keep each other posted on developments on an issue. Conclusively, the informal network in the EU is established long before the formal decision-making process but it continues to operate after the initiation of the formal process. Another of the negotiation mechanisms that apply to the political level of the Council can also be found at the bureaucratic level. In the bureaucratic negotiations at both working group and Coreper level there seems to be a strong norm of consensus. First, the norm is expressed by a general reluctance to vote in favour of attempts to achieve consensus: “Usually there is no voting at the lower levels, only on agriculture and the budget. It is unpleasant to be out-voted. I think that votes are only held if it is really necessary, which is why there are efforts at achieving consensus” (information from official in Brussels). Another element that reinforces the norm of consensus is the need for a common position externally in some areas. Before individual issues are discussed, a basis consensus has been established in the group regarding the limits of the discussions.

34 Henry Mintzberg defines esprit de corps as “an integration of individual and organizational goals that can produce synergy” (Mintzberg 1989, 224).

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7.3.5. Esprit de corps of the Permanent Representations35 The expatriated officials at the Permanent Representations may be expected to have their attitudes affected by the tasks they are to perform. On the one hand, they are representatives of their countries of origin and must defend their interests as any other ambassador. On the other hand, the members of Coreper and the different working groups are also members of a EU institution, as Coreper and the working groups are integrated parts of the Council of Ministers. Thus, they have national duties as well as a responsibility for the European Union.36 There are ample indications that officials are affected by their EU responsibility, and that this results is a permanent balancing act between the particular interests of the Member States and the common interest of the EU. Thus, this creates the perception of not just fighting for one’s own country but also for the European Union. The mindset is perfectly illustrated by the following assertion: “It is because we are ambitious officials, and we want to do a good job. It is possible that there is a normative take on it, in the sense that one thinks that the machinery must keep running. There is no doubt that people down here are interested in the progress of European integration” (information from official in Brussels). Thus, officials from the Permanent Representations must start with what is possible and ‘yes-able’. This is also connected to their working in a system where decisions and consensus are regarded as an end in and of themselves. Concurrently, loyalties also arise between officials with close working relationships, such as a sense of community, solidarity and the desire to help out colleagues bound by difficult instructions from home. In the concrete negotiations it is most often the expatriates who are most focussed on the overall interests of the European Union and the representatives who have just flown in from the capitals who are defending the national interests. In some ways loyalty and expectations of reciprocity between the permanent representatives makes the negotiation process run smoother. A marked difference between officials in the Permanent Representations is that special attachés are typically more informed on the substance of an issue compared to officials from the Ministry of Foreign Affairs. This means that it will often be easier for officials from the Ministry of Foreign Affairs to make concessions in the negotiations. The reason is that these officials are usually conscious of 35

This section is based upon information from Sebastian Volkers, former special attaché at the Danish Permanent Representation in Brussels. 36 Cf. Charles Rutten, a former Dutch Permanent Representative. He asserts that the national interests inform the first stages of the negotiations, but that the time also comes when it is recognized that it is impossible to get any further by solely relying on instructions from home. The real negotiations commence at this stage, and actors realize their responsibility for the Community. Or as Charles Rutten says: “At this second stage it is the responsibility for the Community that becomes prevalent and the inspiration.” (Rutten 1992).

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the give-and-take nature of negotiations, and because of their more overall political approach that does not prioritize technical details. On the other hand, lack of technical knowledge can also mean that officials from the Ministry of Foreign Affairs have difficulties in their interpretation of the instructions. Based on a number of interviews with (Danish) officials, Ladefoged and Rise Nielsen (2004) conclude that special attachés in the Permanent Representatives in time develop a “supranational conception of loyalty towards the European Community, increased efficiency in the Council and sustainable solutions with real value for all citizens of the EU. The attachés develop a loyalty towards the supranational level, but the conflict between the national and supranational levels is not perceived, as it is subsumed under the concept of ‘Danish interests’. The loyalty towards the supranational level is perceived as an instrument in the safeguarding of national interests.” In sum, Ladefoged and Rise Nielsen (2004) conclude that the bureaucrat “manages psychologically to ignore and sublimate a conflict even if it does exist ‘objectively’.” (Haas 1958, 14).

Chapter Eight

Perspectives – Efficiency and legitimacy of the EU administration In the beginning of the book, the basic problem consisted of how and to what extent the EU is either federal or confederal and what effect the overall form of organization has on the administration and its efficiency and legitimacy. Initially, it was explained how international organizations by definition have difficulties with obtaining autonomy. The fundamental reason for this is the absence of a link to a concrete state formation. The EU’s administration has the same problems but not to the same extent. The reason is that the EU is a hybrid between a state and an international organization and has a range of federal characteristics that makes the distance from a ‘pure’ international organization especially pronounced. The hybrid character is evident if one analyses the history of the EU and the legal foundation. This has given the EU a relatively high degree of formal legitimacy, which has a spill-over effect to the societal legitimacy. Traditionally, the EU has sought to maximize the societal legitimacy by promoting the welfare for its citizens in the widest sense and ensuring the Member States that no national interests are overridden in major cases. In the fulfilment of the goal of not setting aside any Member States in decisive matters, package deals have played a significant role. This has been possible because it has occurred in a kind of cooperation with many subdivisions to which all members have had access. This has been the major strength of the EU.

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If, to a higher extent, the broad cooperation in the EU obtained the character of an intergovernmental organization in several speeds and with decisive influence of the major Member States in the Union, it would be a great risk that Member States would be suppressed in the decision-making process, which, accordingly, would lose societal legitimacy in the respective Member States. Strong and relatively effective institutions in the EU have been a goal for EU cooperation from the beginning. This has contributed to the creation of the basis for many spill-over effects, leading to both positive and negative integration with new policies and institutions as the result. In this area, the existence of the principle of the subsidiarity has been no concrete hindrance for the transfer of tasks to the European level. The most serious hindrance is likely to be that EU loses societal legitimacy if the EU initiates cooperation in areas that the majority of Europeans find are illegitimate. The question that arises is whether the change in people’s loyalty (and accordingly the societal legitimacy) can follow the pace of the constantly proceeding integration. Another question is how much closer the integration in the EU can become without the EU becoming a federal state. The legally solid treaty basis is an important part of the characteristic of the EU as a political hybrid as it enables the organization to better achieve its goals. This applies particularly strongly for the Court’s interpretation of the principles concerning the primacy and direct effect of EU law. Accordingly, the reason given for this interpretation has primarily been considerations concerning the effectiveness of EU law but it also contributes to strengthening the formal legitimacy and the EU’s character as a ‘state of law’ (a ‘Recthsstat’). Both the societal legitimacy and efficiency of the Commission are probably enhanced by its objective criteria for hiring. The presence of the national experts also principally contributes to strengthening the societal legitimacy as well as the efficiency. At the same time the presence of national experts might create a risk that the autonomy of the Commission might to a certain extent be undermined. The staff regulations are a federal characteristic of the EU, and they increase the autonomy of the Commission. Yet, they also make it difficult to change the working conditions for the Eurocrats in a direction that can be more widely accepted by the Member States. Accordingly, the staff regulations might also cause decreasing efficiency and societal legitimacy of the EU. The dual (and, to some extent, contradictory) role of the Commission as both caretaker of administrative functions and political leadership also creates a risk that the legitimacy and efficiency of the Commission might decrease. The question is whether the two functions can be separated and handled effectively. The Commission’s efficiency is reduced as the distribution of tasks between General Directorates is not properly coordinated. The reason for the lack of rational coordination is that the Commission is still open to pressure from strong Member States. The result is also an increased level of conflict between General Directorates as some directorates attempt to increase their status and significance by undertaking tasks that belong in other directorates. The conflicts are also often politically

Perspectives – Efficiency and legitimacy of the EU administration

185

motivated. The conflicts show the boundaries for the autonomy of the Commission when the vital interests of the Member States are at stake. The so-called Lindberg thesis states that the Commission is efficient with regard to its own organizational goals when it succeeds in upgrading Member State interests to the EU level. The Commission originally had good chances for using the Lindberg thesis and, thereby, to obtain a high degree of autonomy as the Commission had a strong position in the Treaties (section 6.1). However, this was weakened by the demand for unanimity and the former Luxembourg compromise. With regard to the executive functions, the Council of Ministers still exerts control with the Commission through the administrative committees. This reduces the autonomy of the committee but increases the societal legitimacy. It can be said that it takes a certain degree of societal legitimacy to maintain a high degree of efficiency. From an overall perspective, the system of committees in the EU increases the efficiency of the EU as it successfully generates technical and political knowledge. With regard to societal legitimacy, the system of committees is the first important step in the give-and-take process that characterizes the decision-making process of the EU and gives rise to plus-sum games between the Member States. Lobbyism can have the same effect, but it also entails a great risk of creating political asymmetries in the EU and, thereby, reducing the efficiency. In the EU, lobbyism is an important characteristic as the EU administration is very willing to be influenced if such influence draws on a pro-integration and federal direction. Additionally, the legal basis for such an influence is present on account of the behaviour of the ECJ. Consequently, the decision-making process of the EU can be broadly characterized as ‘directional’ Garbage Can processes. The formal decision-making procedures of the EU give varying influence on various EU institutions. The co-decision decision-making procedure gives the European Parliament significant influence. To the extent that the European Parliament possesses societal legitimacy, this will rub off on the decision-making process. However, if the societal legitimacy does not exist, the societal legitimacy of the decisionmaking process will decrease. In the latest treaty changes, an effort has been made to simplify and streamline the decision-making procedures of the Union. This has increased the efficiency of the decision-making. The treaty basis of the Union is however still rather complex. The organizational culture in the Commission is greatly influenced by the different organizational culture that the Eurocrats bring with them from their respective national administrations even though the administrative reforms since the Prodi Commission have aimed at creating a common administrative culture. The ‘geographically balanced’ hiring process autonomously increases the societal legitimacy of the decision-making process but also entails the creation of an organization with competing organizational cultures (section 5.2 and 6.1). The most important differences exist between southern and northern Europe with the southern culture being – to some extent – dominant. The result is decreased societal legitimacy

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of the administration in northern European Member States. On the other hand, the predominance of the southern European administrative culture increases the autonomy of the Commission. From an overall perspective, a southern European culture inspired by French traditions is well suited for international administrations if the priority is to increase their autonomy. However, it is still uncertain how the enlargement with 10 new Member States has influenced the organizational culture in the Commission. The decision-making process in the Council of Ministers was in many years strongly influenced by the demand for unanimity. The reason was both the general integration trends in the EU and the existence of the Luxembourg compromise. Unanimity ensured that decisions achieved a level of societal and normative legitimacy that was necessary in some Member States. However, over the years, majority decisions have become more common in the Council. In these majority votes, the small Member States have been allotted more votes relative to the large Member States. On the one hand, this increases the legitimacy of the decision-making process in the small Member States. However, on the other hand, some of the large Member States have complained that this has lead ‘the tyranny of the small’ and the decision-making process has, accordingly, lost societal legitimacy in the large Member States. This is the reason why the Constitutional Treaty was intended to alter the allocation of votes in order to increase the voting power of the large Member States. All in all, the decision-making procedures of the EU are unique in comparison with other international organizations and indicate that the EU is a progressive and efficient international cooperation. The ministerial level in the Council of Ministers (and to an increasing extent, the European Parliament) is the top level in a hierarchical decision-making structure in which the Member States through a give-and-take process have strived for consensus. The special structure of the Council is, however, also characterized by segmentation between the various compositions of the Council. This entails increased asymmetry and thus a somewhat increased inefficiency in the decision-making process which, so a certain extent, trigger of the same characteristics of the decisionmaking at the administrative level.

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Index 1

2nd pillar, 51, 66, 167, 177

artificial leadership, 15 Austria, 48, 50, 135, 148, 169, 173 autonomy, 14, 17–19, 22–26, 43, 70, 87–89, 99, 110, 115, 121, 135, 174, 183–186

3

B

3rd pillar, 51, 60, 66, 167, 177

Bach, M., 95, 97, 106, 126, 129, 131 Bakka, J. F., 25, 29, 30, 98 Barroso, M., 100–102, 105 Bassompierre, G., 141 Belgium, 45, 120, 123, 148, 169, 170, 173, 177 Bellier, I., 95, 130 Berlaymont, 36, 106 Beukel, E., 98 Bjerregaard, R., 102 Blais, A., 10 Børsen, 110 Brussels, 11, 26, 76, 78, 81, 87, 91, 94, 95, 125, 129, 131, 143, 147, 154, 159, 162, 174, 175, 179, 180 budget maximization, 10 budgetary discipline, 62 Bulgaria, 148, 169 bureaucratic intermingling, 129 Bureaucratic Politics-model, 34, 35 Burns, T., 13 Butler, F., 95 Buttiglione, R., 102, 105

1st pillar, 51, 54, 66

2

A Abélès, M., 37, 109, 113 acquis communautaire, 50, 69 administration, EU, 1–3, 7, 16, 23, 25, 27, 29–33, 35–46, 48, 49, 51, 53, 61, 68–71, 75, 84, 86, 87, 89, 90, 92, 136, 138, 185 administration, international, 2, 7, 11–20, 22–28, 31, 41, 43, 46, 49, 69, 70, 83, 85, 86, 94, 103, 130, 186 administration, national, 2, 8, 11–17, 19, 22, 23, 26, 28–31, 43, 44, 46, 51, 59, 61, 70, 82–88, 92, 99, 108, 166 administartion, primary, 22, 33, 69 administration, supranational, 3, 45 administrative language, 116 Administrative Man, 33 advisory committee, 125, 126, 128 Alessina, A., 68 Andersen, S. S., 95 Antici, 157, 158, 165 Archer, C., 95

196

Index

C cabinet, 93, 99, 109–109, 111, 155 CAP. See Common Agricultural Policy (CAP) Casey, B.H., 68 CFSP. See Common Foreign and Security Policy (CFSP) Close, G., 96 Cockfield, Lord, 96, 106 Code Civil, 49 Code of Conduct, 137, 148, 151 co-decision procedure, 64, 125, 144, 151, 154, Cohen, M.D., 34 comitology, 97, 119, 124, 125 Commission, 2, 14, 15, 20–28, 30–38, 41, 45, 46, 48–50, 52–54, 58–61, 64–66, 69, 70, 75–79, 81–89, 92–138, 141, 145–147, 153–157, 160–162, 164, 167, 171, 178, 179, 184–186 commissioner, 20, 21, 30, 79, 80, 93, 99, 101–109, 124, 153, 171 Committee of Independent Experts, 20–22, 31, 80–82, 104, 109 Committee of the Regions, 27, 58, 75, 76, 144, 164 Common Agricultural Policy (CAP), 48, 53, 59, 123, 126, 127, 141, 147 Common Foreign and Security Policy (CFSP), 51, 66, 139, 145, 157 common foreign policy, 50, 66 Common Market, 39, 46, 47, 51, 54, 56, 94, 112–114, 122, 123, 125, 129, 143, 144, 150 Common Position, 177 communication, 12, 13, 16, 19, 26, 32, 110, 112, 115, 130, 159, 161 communication, hierarchical, 110 communication, horizontal, 13 commiunication, vertical, 13 Communism, 44 community law, 55, 64, 98, 154 Community Method, 117, 118 competition policy, 54, 56, 65 Conciliation Committee, 65, 177 concours, 79, 81 confederal, 1, 183

conflict of loyalty, 14, 19 consensus, 11 Constitutional Treaty, See Treaty establishing a Constitution for Europe consultation procedure, 64, 67 continental European law, 49 control problem, 18 conventions, 55, 66, 145 Coombes, D., 13, 20, 22, 27, 37, 77, 84, 88, 95–99, 102, 108, 110, 134 cooperation agreements, 62 co-optation, 128 Copenhagen summit, 178 Coreper, 65, 124, 141–143, 145, 148, 150, 153–160, 161, 163–166, 177, 179, 180 corporatist, 131 Costa vs. ENEL, 57 Council of Europe, 28, 36, 44 Council of Ministers, 27, 35, 39, 49–55, 58, 59, 61, 64–67, 75–78, 88, 89, 92, 97–99, 111, 114–122, 124, 126–129, 133, 136–156, 158–168, 171, 172, 174–180, 185, 186 Court of Justice (ECJ), 21, 27, 49, 50, 54–60, 63, 69, 70, 76, 118, 133, 137, 155, 184 Cresson, E., 80 Cyprus, 50, 148, 169, 173 Czech Republic, 50, 148, 168, 169

D ‘dead wood’, 85 decision-making procedure, 33, 64–69, 71, 125, 165, 166, 168, 185, 186 decision-making process, 1–3, 21, 30, 32–34, 37–40, 50, 58, 62, 67, 69, 93, 111, 114, 121, 124, 126, 129–134, 136, 138, 140, 124, 143, 147, 151, 153, 156, 158, 160, 163–167, 171, 173–175, 179, 184–186 decisions, 52, 55, 144, 154 defence policy, 46 Delors, J., 15, 27, 95, 100, 106, 108, 114, 115, 146 democratic legitimacy. See legitimacy, democratic

Index Denmark, 48, 50, 76, 89, 91, 102, 148, 159, 164, 168, 169, 171, 173, 178 DGs. See Directorates General (DG) Dion, S., 10 Dinan, D., 46, 62, 100, 101, 149 directives, 52–57, 59, 70, 96, 125, 143, 144, 154 Directorates General (DGs), 24, 32, 85, 86, 103, 107, 109, 111–115, 117, 118, 130, 131, 134, 135, 155, 184 Dosenrode, 131 Downs, A., 9 Draborg, O., 110 direct effect, 55–57, 70

E EAGGF. See European Agricultural Guidance and Guarantee Fund (EAGGF) Easton, D., 60 ECJ. See Court of Justice (ECJ) ECOFIN. See Economic and Financial Affairs Council (ECOFIN) Economic and Financial Affairs Council (ECOFIN), 141 Economic and Monetary Union (EMU), 51, 64, 65, 106, 172 Economic and Social Committee (ESC), 27, 41, 58, 75, 131, 132, 144, 164, 167 economic policy, 47, 138, 155 ECSC. See European Coal and Steel Community (ECSC) Edinburgh conclusions, 175, 176 Edinburgh summit, 62, 136, 154, 175 EEC. See European Economic Community (EEC) efficiency, 2, 10, 15, 20, 29, 37, 39–42, 46, 58, 60, 70, 69, 81, 87, 92, 105, 124, 129, 140, 151, 162, 166, 175, 177, 183–186 EFTA. See European Free Trade Association (EFTA) Ehlermann, C.D., 27, 98, 100, 111 Eliassen, K.A., 31, 95 employment policy, 54, 67, 68, 155, 167 EMU. See Economic and Monetary Union (EMU) Erhvervsbladet, 153

197

ESC. See Economic and Social Committee (ESC) Esmark, A., 129 esprit de corps, 15, 25, 35, 140, 179, 180 Estonia, 50, 148, 169, 173 Euratom, 47, 49, 50, 88, 122, 123 Eurocrat, 2, 17, 42, 75–77, 79, 84–86, 88–91, 104, 108, 116, 130–132, 134, 135, 162, 166, 185 European Agricultural Guidance and Guarantee Fund (EAGGF), 123 European Coal and Steel Community (ECSC), 45–48, 50, 68, 88, 121, 122, European Council, 2, 51, 52, 58, 62, 66, 67, 99, 101, 136, 140, 141–142, 144, 145, 150, 151, 157, 158, 169–171, 178 European Council in Lisbon. See Lisbon European Economic Community (EEC), 47–50, 56, 57, 61, 68, 88, 121–123, 134, 141 European Free Trade Association (EFTA), 48 European Parliament, 2, 27, 32, 39, 41, 50, 54, 58, 59, 61, 63–67, 76, 77, 97, 101, 102, 104, 105, 107, 116–119, 129, 131–134, 136, 144, 147, 151–154, 171, 178, 185 European Voice, 84 Europol, 60 Eurostat, 92 executive, 58, 59, 94, 121, 122, 185

F federal, 1, 11, 41, 43, 44, 60, 95, 98, 134, 136, 151, 152, 183, 184 federal states, 41, 43, 61, 70, 184 federalism, 1, 37, 39, 56, 89, 104, 151–153 Feld, W.J., 23, 91, 130 Financial Times, 103 Finland, 50, 135, 148, 169–171, 173 fisheries policy, 53, 116, 147 formal legitimacy. See legitimacy, formal France, 16, 33, 44, 45, 52, 91, 101, 106, 116, 134, 148, 159, 168–170, 173, 178 Fredslund, H., 130, 174, 179 French legal tradition, 49

198

Index

G GAERC. See General Affairs and External Relations Council (GAERC) Garbage Can, 34, 94, 130, 185 Gaulle, C. de, 12, 23 gender equality, 56 General Affairs and External Relations Council (GAERC), 141, 142, 144 General Directorates. See Directorates General (DGs) General Secretariat, 75, 76, 78, 103, 107, 111, 136, 155 generalists, 82 geographical balance, 14, 20, 134 Germany, 33, 44, 45, 63, 91, 101, 112, 116, 123, 134, 148, 168, 169, 171, 173 Gold, M., 68 Gonzáles-Sánchez, E., 179 Greece, 50, 102, 134, 135, 148, 159, 168, 170, 173 Greenwood, J., 132 Grund, J., 9 Gulmann, C., 58

H Haas, E.B., 17, 34 Hallstein, W., 27, 100, 110 harmonization, 62, 96, 167 Hayes-Renshaw, F., 157 hegemony, 25 Helsinki meeting, 141, 142, 150 Herman report, 20 High Authority, 45, 46, 50 high politics, 47 highest common denominator-principle, 44 Hix, S., 54, 56, 60 Hoggart, R., 26 Hungary, 50, 148, 168

I ideal type, 9, 12, 16, 17, 33, 157 ideal types of a bureaucrat, 16 implementation, 2, 12, 26, 53, 57, 59, 70, 96, 121, 124, 126, 150, 162 industrial policy, 47, 113–115 Information, 114

integration, 34, 36, 39, 46, 48, 49, 53, 56, 57, 69, 70, 99, 120, 129, 130, 150, 151, 153, 186 integration, negative, 48, 51, 184 positive, 48, 51, 184 intergovernmentalism, 56, 61, 65–67, 69, 124, 136, 150, 152 Internal Market. See Common Market international administration. See administration, international international bureaucrats, 14, 15, 17, 18 International Herald Tribune, 108 international law, 56 international organization, 1, 11–15, 17, 27, 28, 41, 43, 45, 46, 54, 62, 69, 70, 97, 145, 178, 183, 186 Ireland, 50, 76, 148, 159, 169 Italy, 45, 101, 123, 134, 148, 159, 168, 170, 171, 173

J Jacobsson, K., 68 JHA. See Justice and Home Affairs ( JHA) joint management, 129 joint-policy-making process, 129 Justice and Home Affairs ( JHA), 50, 60, 138, 139, 141, 145

K Kalin, A., 37, 124, 161, 171, 173 Kassim, H., 17–19, 22, 24, 31, 78, 79, 81, 84–86, 88, 92, 98, 111 Kinnock, N., 22, 37, 79, 84, 91, 92, 96 Knudsen, K.O., 46, 135

L Ladefoged, A.M., 181 Latvia, 50, 148, 169, 173 ‘leftovers’, 52 legal document, 63, 65 legality, 62, 63 legitimacy, 1, 2, 11, 12, 19, 29, 38, 40, 42, 56, 60, 105, 124, 140, 153, 164, 183, 186 legitimacy, democratic, 138, 140 legitimacy, formal, 8, 38, 49, 53, 165, 183 legitimacy, rational, 105

Index legitimacy, societal, 8, 14, 35, 38–40, 53, 60, 69, 70, 80, 92, 104, 105, 109, 120, 126, 127, 129, 133–135, 138, 140, 149, 153, 162, 165–167, 175, 177, 183–186 Lewis, J., 165 Lindberg thesis, 117 Lindberg, L.N., 117, 129 Lisbon, 67, 116 Lithuania, 50, 148, 169, 170, 173 lobbyism, 32, 131, 133, 185 Lodge, J., 165 low politics, 47 Ludlow, P., 95, 98, 99, 108 Lundquist, L., 105 Luxembourg, 45, 67, 70, 95, 120, 121, 148, 153, 154, 168–170, 173, 177 Luxembourg compromise, 39, 120, 121, 146, 168 Luxembourg-process, 67

M Maastricht Treaty. See Treaty on the European Union (TEU) Macedonia, 102 macro-ideology, 25 mafia, 31 Majone, G., 48, 70 Malta, 50, 148, 169, 173 March, J.G., 34, 35 Marin, M., 80 McGee, A., 96 mechanical organisation, 12, 96 Merger Treaty, 49, 50, 95 merit-based employment, 18, 19 Mertens-group, 165 Messina summit, 47 ‘Methode’, 91, 92 Meyer, J.M., 30 Meyer, P., 39 Michelmann, H.J., 19, 25, 27, 30, 77, 82, 99, 102, 108, 110, 113 Mintzberg, H., 25, 31, 45, 179 Monetary Committee, 143 Monnet, J., 44, 46, 47, 95 monopoly on initiative, 117 Morgan, G., 12, 13 Morgenavisen Jyllands-posten, 91

199

Mueller, D., 172 mutual learning, 68

N NATO, 28, 91, 92 Nedergaard, P., 51, 64, 68, 120, 149, 151, 152 neo-functionalism, 17, 150 neo-realist paradigm, Netherlands, 45, 52, 55, 56, 148, 168, 171, 173 networks, 9–11, 31, 129, 130, 179 NGO, 24, 27, 131, 132 Nice summit, 169 Nielsen, L.R., 181 Niskanen, W., 9, 10, 30, 35 Niskanenian, bureaucracy, 9, 10, 30, 35, 84 Niskanenian, bureaucrat, 144 no confidence, 104 Noël, E., 47, 111, 121, 129, 168 Nordic Council, 25, 28 Nordic Council of Ministers, 25 North-South cleavage, 85 Norway, 48 Nugent, N., 117, 145, 159, 168

O obiter dictum, 57 OECD, 16, 28 Official Journal of the European Union, 52, 55, 116 Olsen, J.P., 34 Ombudsman, 27, 58, 80, 138 open method of coordination, 54, 67, 68, 155 openness, 26, 94, 128, 137, 140, 166, 176–178 opinions, 52, 54 opt-out, 122 organic organization, 13, 96 organizational culture, 29, 35, 36, 37, 81, 93, 94, 139, 140 organizational processes, 29, 33, 93, 94, 139, 140, 153, 165 organizational theory, 29, 45, 69

200

Index

P Pag, S., 129 Perotti, R., 68 persuasion, 35 Peters, B.G., 35, 48, 53, 119 Peterson, J., 10, 11, 15, 24, 84, 86, 99, 102, 108 Plano, J.C., 45 Poland, 50, 148, 169, 173 policy-network, 11 political bureaucracy, 30, 40–42, 48, 82, 87, 117, 162 political hybrid, 7, 43 political leadership, 9, 95, 96 Politiken, 105 politruk, 105 Portugal, 48, 50, 100, 120, 134, 148, 169, 170, 173, 177 pre-governmental, 100 principle of direct effect, 55–57, 70 principle of parity, 91 principle of proportionality, 62, 70 principle of supremacy, 58, 70 principle of the subsidiarity. See subsidiarity problem of internationalism, 18 Prodi, R., 24, 31, 86, 99, 100, 108, 109 programmatic functions, 69, 96, 103

Q qualified majority, 11, 51, 64, 66, 67, 89, 104, 121, 126–128, 144, 152, 154, 162, 166–172 quota system, 14, 18, 19, 21, 22, 134

R rational choice, 9, 10, 35, 84, 94 rational decision, 40 rational decision-making, 40 rational legitimacy. See legitimacy. rational rational model, 34, 93 rational model of organizations, 34 rationalization, 32, 78 rationality, 110 technical-bureaucratic, 143 recommendations, 52, 54, 67, 68, 125, 144, 145, 150, 151, 155, 175

referendum, 178 reform, 22, 76, 78, 79, 83,-86, 141, 144, 150–152 regulation, 22, 46, 52, 54, 59, 62, 70, 75, 88, 125, 143, 154 regulative committees, 125, 127, 128 representation of interests, 105, 107 research policy, 67, 157 Rhodes, R.A.W., 11 Riggs, R., 45 right of access, 137, 138, 178 right of initiative, 32, 59, 116, 144 roulement-system, 23 Rowan, B., 30 Rumania, 148, 169 Rutten, C., 180

S Santer, J. 27, 100 Santer Commission, 88 SCA. See Special Committee of Agriculture Schein, E.N., 36 Scheinman, L., 23 Schuman, R., 44 security policy, 47, 66, 157 self-regulation, 60, 109 Seville summit, 151, 166 Sharp, M., 114 Sidenius, N.C., 131 Siedentopf, H., 143 Simon, H.A., 33, 35 simple majority, 11, 103, 144, 167, 177 Single European Act, 50, 51, 62, 64, 99, 121, 125, 141 Slovak Republic, 50, 148, 169 Slovenia, 50, 148, 169 social policy, 67, 155 societal legitimacy. See legitimacy, societal SOP. See standard operating procedure (SOP) sovereignty, 45, 58 Spaak, H., 47 Spain, 50, 101, 134, 148, 169, 170, 173 Special Committee of Agriculture (SCA), 143, 153, 157–159, 160, 164 specialists, 87

Index Spierenburg report, 20, 86, 87, 102, 108 spillover, deliberate, 46 spillover, functional, 48, 51 spillover political, 51 Spinelli, A., 63, 76 staff categories, 76–79 staff policy, 19, 22, 86, 88 staff regulations, 3, 46, 76, 85, 88–90 Stalker, G.M., 13 standard operating procedure (SOP), 34, 37, 93, 94, 127, 151 standardization, 32 structural funds, 64, 123 structure of committees, 124 structure of communication, 192 subsidiarity, 44, 62, 71, 124 supranational, 3, 7, 33, 40, 43, 45, 46, 56, 59, 66, 70, 136, 151, 152, 162, 172, 181 Swann, D., 95 Sweden, 48, 50, 89, 135, 148, 169–171, 173 Switzerland, 48 symbols, 16 Sørensen, M., 97

T TEC. See Treaty on European Community (TEC) TEU. See Treaty on European Union (TEU) also known as the Maastricht Treaty The Economist, 26, 79, 84, 85, 92, 95, 96, 106, 107, 112, 113 Thorning-Schmidt, H., 130, 174, 179 Tindemanns report, 150 ToA. See Treaty of Amsterdam trade policy, 47, 147 Tranholm-Mikkelsen, J., 51 transparency, 86, 136, 152, 153, 175–178 transport policy, 48, 157 Treaties of Accession, 50 treaty incrementalism, 69 Treaty establishing a Constitution for

201

Europe, 16, 24, 50–52, 59, 64, 69, 101, 105, 124, 145, 148, 167, 168, 186 Treaty of Amsterdam (ToA), 51, 52, 64, 67, 99, 101, 104, 136 Treaty of Nice, 50, 51, 94, 103, 170, 171, 172 Treaty of Rome, 47, 64, 66 Treaty on European Community (TEC), 51, 52, 63, 136 Treaty on European Union (TEU) also known as the Maastricht Treaty, 36, 51, 52, 62, 64, 66, 136 tripartite meeting, 65 Troy Johnston, M., 158

U UN, 46, 62, 91 unanimity, 65, 66, 103, 127, 144, 152, 167, 176 UNCTAD, 28 United Kingdom, 50, 76, 82, 89, 91, 100, 101, 159, 168, 169, 173 USA, 44

V van Gend en Loos, 55, 56

W wages, 14, 81, 88–92 Weatherhill, S., 96 Weber, M., 8–10, 12, 33, 60 Weberian, 10, 15, 17, 22, 69, 83, 86, 92, 96 Weberian bureaucracy, 17, 46, 69, 84 Weberian bureaucrat, 17, 42, 92, 96, 135, 144 Weiler, J., 38, 39 Wessels, W., 13, 40–42, 48, 82, 87, 96, White Paper, 98 WHO, 16, 28 World Bank, 16, 92

Ø Østergaard, U., 90

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