DERECHO CONSTITUCIONAL DE LA UNIÓN EUROPEA Toma de Decisiones agustín josé menéndez máster centro de estudios constitucionales 2009/2010

Lección Tres Toma de Decisiones comunitarias I. Decisiones Constitucionales: entre la reforma de los tratados y la escritura de la Constitución; II. Decisiones legales: ¿del método comunitario a la codecisión?; III. Decisiones reglamentarias, y en especial de la comitología; IV. La dimensión empírica del derecho constitucional orgánico de la Unión Europea OBJETIVOS (1) Esclarecer los tres procesos de transformación del sistema de fuentes del derecho comunitario (i) la constitucionalización de los Tratados mediante la lectura en clave constitucional de los mismos, al amparo de las tradiciones constitucionales comunes; (ii) la legalización de reglamentos y directivas, fruto de la resolución de la tensión entre fondo y forma que caracteriza el diseño del proceso de toma de decisiones y la asignación de competencias sustantivas a la Unión Europea en los Tratados constitutivos de las Comunidades Europeas; (iii) la original creación de procedimientos de toma de decisiones reglamentarias (esencialmente, la comitología), espoleado por necesidades puramente funcionales, pero que han supuesto una contribución original del derecho comunitario al constitucionalismo comparado (2) Determinar las relaciones que existen entre procesos de toma de decisiones, sistema de fuentes y resolución de conflictos normativos en derecho constitucional europeo (3) Familiarizarse con los aspectos centrales, desde una perspectiva constitucional, de los procesos de toma de decisiones de la Unión Europea; en particular, la reforma de los Tratados, co-decisión y comitología (4) Dilucidación de los elementos de isomorfismo constitucional y de redefinición institucional experimental tanto en la estructura constitucional original de la Unión como en su posterior evolución NOTA DE LECTURA

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El estudio de la constitución “orgánica” de la Unión Europea exige la combinación de las perspectivas jurídica y politológica quizá en mayor medida si cabe que el resto de temas de nuestra asignatura. El primero de los textos dibuja los contornos “constitucionales” del objeto de estudio, y al hacerlo, pone de relieve la estrecha relación que existe entre la constitucionalización del sistema de fuentes del derecho comunitario y la transformación estructural de los procesos de toma de decisiones. Y es que la inevitable ambivalencia de un proceso de síntesis constitucional conllevó no sólo que las normas constitucionales se reflejaran (parcialmente) en un Tratado internacional, sino que las normas materialmente legales adoptarán forma reglamentaria; al tiempo que las normas materialmente reglamentarias no sólo no eran mencionadas, sino que no existía un procedimiento específico para su producción. Pero la lectura en “clave constitucional” del sistema de fuentes se convierte al mismo tiempo en fuente fundamental de la transformación no sólo de la estructura institucional de la Unión (como vimos en la sesión de la semana pasada) sino también de los procedimientos de toma de decisiones, del modo y la manera en la que se determina la existencia de una voluntad general constituyente, legislativa o reglamentaria. La reforma fundamental concierne la progresiva sustitución de la voluntad general legislativa en tanto que mero agregado de las voluntades legislativas nacionales en una voluntad legislativa europea, al incrementar el número de cuestiones en las que el procedimiento comunitario par excellence es sustituido por el procedimiento de co-decisión. En los dos capítulos de la tesis de Anne Elizabeth Stie encontramos tanto una reconstrucción “constitucional” de la creación y evolución del procedimiento, como una valoración normativa, que muestra las luces y sombras en términos procedimentales de la co-decisión (sobre sus deficiencias sustantivas volveremos en las tres últimas sesiones del curso). Pero no menos importante es la transformación del “poder ejecutivo” de la Unión, tanto por lo que se refiere al ejercicio de la función de gobierno en tanto que dirección política, como a la producción de normas reglamentarias esencialmente mediante el procedimiento de la llamada comitología. Ése es el objeto de los extractos del trabajo de Paul Craig, figura de referencia en el derecho público de la Unión, y que analiza estas cuestiones al socaire de la aprobación del Tratado Constitucional. Sus reflexiones son directamente aplicables, mutatis mutandi, al Tratado de Lisboa. Pero la descripción “formal” del derecho constitucional “orgánico” de la Unión tiene que acompañarse de su análisis empírico. De ahí la inclusión de cuatro trabajos fundamentales en la reciente producción politológica europea. Beatte Kohler Koch, doyen alemana de los estudios europeos, y Berthold Rittberger contextualizan y problematizan el desarrollo de la hidra multiforme que es la gobernanza, que introduce una ‘gramática’ decisoria marcadamente ambivalente y cuya combinación con las proclividades que inquietan a Stie podría ser notablemente tóxica. El trío de textos restantes se ocupa menos de la normativa formal que de la pregunta central de la sociología del proceso de toma de decisiones: ¿Quién es más influyente en el proceso de toma de decisiones? Hayes Renshaw, Van Aken y Wallace tratan de averiguarlo determinando cuándo y por qué se vota

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en el Consejo de Ministros, cuándo y por qué se renuncia pues a la práctica constitucional de decidir por unanimidad, práctica sólidamente arraigada. Lo que revela no sólo quién es capaz de llevarse el gato al agua, sino que también contribuye a dilucidar la mecánica de poder que subyace incluso a las decisiones por unanimidad. Los trabajos liderados por Stokman y Thomson tienen un objeto aún más nítidamente empírico. Finalmente, las reflexiones de Jack Hayward, estudioso no sólo de la Unión Europea, sino profundo conocedor de la historia de la Francia republicana, cierran el círculo de este bloque temático y nos invitan a considerar las disfuncionalidades del derecho constitucional orgánico de la Unión Europea desde la triple dimensión de la eficacia, la legitimidad y la integración constitucional, la creación de una identidad política quizá post-nacional. 15. Extractos de Fernando Losada y Agustín José Menéndez, ‘Toma de Decisiones en la Unión Europea’, en Francisco Rubio Llorente y Paloma Biglino (eds.), Informe del Consejo de Estado sobre la inserción del derecho comunitario en el ordenamiento español, Madrid: Centro de Estudios Políticos y Constitucionales, 2008, pp. 339-472 §2. La caracterización del derecho comunitario como un ordenamiento constitucional se fundamenta tanto en el contenido de los Tratados fundacionales de las Comunidades Europeas, como en la práctica jurídica y política de interpretación de los citados textos en el discurso político y jurídico europeo (tanto a nivel comunitario como a nivel nacional). Como es bien sabido, las Comunidades Europeas se constituyeron formalmente en tanto que organizaciones internacionales creadas mediante la firma y ratificación de tres tratados internacionales. Sin embargo, tanto los antecedentes históricos y políticos de las tres Comunidades, como el propio contenido de los acuerdos constitutivos de las mismas contradecían la mera internacionalidad de los documentos y de las organizaciones resultantes. Ello explica por qué es abrumadoramente mayoritaria la interpretación del derecho comunitario en clave constitucional, pese a su forma internacional. A nuestro juicio, es pertinente distinguir los tres grandes procesos en que consiste la transformación del derecho comunitario: a) la especificación de las normas constitucionales estructurales (§3) y sustantivas (§4) del derecho comunitario; b) la caracterización de reglamentos y directivas como normas materialmente legales, o lo que es lo mismo, su legalización (§6); c) la articulación de procedimientos de toma de decisiones reglamentarios mediante la técnica de la delegación de poderes (§7). Al estudio de la constitucionalización, legalización y reglamentarización del derecho comunitario dedicamos los restantes párrafos de esta sección. §3. La transformación del derecho comunitario de subsistema del derecho internacional en ordenamiento jurídico autónomo basado en normas fundamentales implica en primer lugar la elucidación de la constitución estructural de la Unión Europea, que rige las relaciones entre el sistema jurídico comunitario y los sistemas jurídicos nacionales. La doctrina del efecto directo del

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derecho comunitario implica no sólo afirmar que sus normas otorgan derechos subjetivos a los particulares, sino que una vez aprobadas y publicadas en el Diario Oficial de las Comunidades Europeas, tales normas forman parte de los ordenamientos nacionales, cuya composición se ve consecuentemente alterada sin que medien los actos de creación de nuevas normas previstos en el ordenamiento jurídico nacional. Ello implica la caracterización del derecho comunitario como el ordenamiento en el que se integran (parcial y progresivamente) los ordenamientos nacionales de conformidad con las propias normas del derecho comunitario, en cumplimiento del mandato constitucional de integración supranacional, explícito o implícito en las constituciones o en el derecho constitucional de todos los estados miembros. Por su parte, la doctrina de la primacía del derecho comunitario no sólo asume que en caso de conflicto entre una norma nacional y una comunitaria la última habrá de prevalecer, sino que la regla de conflicto que resuelve tales colisiones normativas es una norma de derecho comunitario. Pese a que la primacía comunitaria fue originalmente puesta en entredicho por los jueces nacionales, ha acabado por ser aceptada en todos los supuestos salvo en aquél en el que la norma nacional en conflicto es una norma constitucional. Es cierto que ningún Tribunal Constitucional nacional ha aceptado la primacía del derecho comunitario sin al menos esta excepción. Y que un buen número de ellos ha desarrollado una doctrina constitucional que fija límites procesales y sustantivos a la primacía del derecho comunitario, en este último caso mediante referencia al núcleo “duro” del ordenamiento constitucional nacional. Sin embargo, la definición concreta de esos límites sustantivos no sólo dista de ser obvia (la definición de qué normas formen parte de la identidad constitucional de cada estado miembro no se deriva de forma obvia de cada texto constitucional, sino que refleja en buena medida la “idea de la constitución” de cada Tribunal constitucional), sino que los supuestos en los que los Tribunales parecen dispuestos a ejercer el control de constitucionalidad nacional sobre las normas comunitarias son tan limitados que cabe legítimamente dudar que tal poder se afirme con el objeto de ser ejercido, cuando menos en defensa de derechos fundamentales subjetivos. Sea como fuere, la definición cada vez más restringida del contenido sustantivo de la regla de la primacía nacional conduce a un reconocimiento muy amplio del carácter (materialmente) constitucional del derecho comunitario. §4. En un segundo momento la lectura en clave constitucional del derecho comunitario condujo a la elucidación de la constitución sustantiva de la Unión Europea. En ausencia de un “momento constituyente” y de una constitución escrita aprobada a través de un proceso característico de la redacción legítima de una ley fundamental, la norma fundacional del ordenamiento comunitario no puede ser otra que el derecho constitucional común europeo, al que el Tribunal de Justicia suele referirse mediante la expresión “tradiciones constitucionales comunes a los Estados miembros”. Desde esta perspectiva, los contenidos constitucionales de los Tratados fundacionales han de ser vistos como un primer paso en la definición concreta de qué sea el derecho constitucional común de los Estados miembros a la vista de las exigencias que se derivan del propio proceso de integración, de su contexto específico y de su peculiar evolución en el tiempo y en el espacio. Subsiguientemente, las tradiciones constitucionales comunes se han precisado tanto a través del

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procedimiento legislativo ordinario de las Comunidades Europeas, como a través de la jurisprudencia del Tribunal de Justicia. Este último ha desempeñado un papel central en la lectura selectiva de los Tratados (a través de la cual ha determinado qué normas tienen un rango sustancialmente constitucional y cuáles no) y en la “decantación” de lo que es común en esas tradiciones constitucionales, a la luz de los objetivos perseguidos en el proceso de integración. Ello ha dado lugar a la definición de facto de un “canon de constitucionalidad europea”, esencialmente formado por las cuatro libertades económicas fundamentales afirmadas en el Tratado de la Comunidad Económica Europea (junto con el principio de libre competencia) y por los derechos fundamentales reconocidos a través del “principio de protección de los derechos fundamentales”, esencialmente “refundidos” en la Carta de Derechos Fundamentales de la Unión Europea. Canon en aplicación del cual el Tribunal de Justicia ha llevado a cabo el control de constitucionalidad europea de las leyes nacionales, al resolver las cuestiones prejudiciales planteadas por los órganos judiciales de los Estados Miembros. Esa distinción material se ha visto posteriormente reforzada con la diferenciación neta entre el procedimiento seguido de facto y de jure para la reforma de los Tratados o para la adopción de ciertas decisiones de rango constitucional previstas en los citados Tratados, y el procedimiento legislativo ordinario. A ello contribuyó la progresiva diferenciación de la definición de los procedimientos de reforma de los Tratados (que han ido acercándose al modelo “constituyente” de la mayoría abrumadora de las constituciones nacionales, aunque sigan subsistiendo cruciales diferencias) y los procedimientos legislativos ordinarios (especialmente tras el abandono parcial pero progresivo del requisito de unanimidad en el Consejo de Ministros para la formación de la voluntad colectiva del mismo). Esa diferenciación tiene quizá su punto de llegada en el Dictamen 1/91 del Tribunal de Justicia y la afirmación de que los Estados miembros no pueden reformar los Tratados a su antojo, aún estando unánimemente conformes, salvo si siguen el procedimiento establecido y actúan dentro de los límites que fija el propio derecho comunitario. §5. De la caracterización del derecho comunitario como un ordenamiento constitucional, que se asienta en el derecho constitucional común a los Estados miembros, se derivan dos exigencias. La primera es la necesidad de clasificar los procedimientos de toma de decisiones comunitarios a la luz de las tradiciones constitucionales comunes, y muy especialmente, la asignación de grados diversos de fuerza jurídica a las normas resultantes en atención a si expresan una voluntad general a favor de una determinada norma (como es el caso de las normas aprobadas a través de los procedimientos constitucionales y los procedimientos legislativos) o a si, por el contrario, se limitan a especificar los contenidos generales y abstractos de la normativa de conformidad estricta con los elementos esenciales determinados en procedimientos constitucionales o legislativos (lo que es el caso, esencialmente, en los procedimientos de toma de decisiones reglamentarios). §6. La segunda consecuencia es la caracterización como normas legales, expresión de la voluntad general de los ciudadanos europeos, de lo que formalmente se denominan con términos con connotaciones abiertamente reglamentarias, en concreto reglamentos, directivas, decisiones marco y (en cierta medida) estrategias comunes.

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La definición de qué voluntades sean suficientes para forjar la voluntad general europea es una cuestión compleja, no sólo por el carácter federal de la estructura política y jurídica de la Unión (a lo que en la literatura reciente se hace referencia mediante el término más elegante, pero quizá innecesariamente innovador de “comunidad política multi-nivel”), sino quizás fundamentalmente dado el desajuste entre sustancia y forma legal (como acaba de indicarse, las normas materialmente legales tienen denominaciones formalmente reglamentarias) y dadas las serias deficiencias democráticas de los procedimientos de toma de decisiones comunitarias materialmente legislativas. Las denominaciones reglamento y directiva no se incluyeron en los Tratados de Roma por casualidad, sino con la intención de dejar constancia de la diferente dignidad democrática de las leyes nacionales (expresión de la voluntad general, fruto de un proceso legislativo que pone a prueba la existencia de una voluntad general de los representantes de los ciudadanos) y las normas comunitarias, concebidas originalmente como mera “implementación” reglamentaria de la “leymarco” contenida en el Tratado. Si esas reticencias han sido superadas (o quizá meramente reprimidas) ello se debe tanto a la lectura en clave constitucional de los Tratados (por la que reglamentos y directivas pasan a desarrollar una norma parcialmente constitucional, siendo así que las normas típicas de desarrollo de la Constitución son las normas legales, no las reglamentarias) como a la resolución de la tensión entre la forma de reglamentos y directivas y los contenidos sustantivos que los Tratados fundacionales requerían fueran regulados a través de las mismas. Así, a modo de ejemplo, quizás es pertinente recordar que el Tratado de la Comunidad Económica Europea preveía la creación de un arancel exterior común, y la consecuente definición de los impuestos que se cobran en aduanas mediante un reglamento comunitario. O, de forma semejante, que los Tratados contemplaban la definición de los elementos esenciales de los impuestos indirectos sobre el consumo recaudados en el interior del mercado común mediante directivas. En ambos casos se trataba de cuestiones típicamente reservadas al legislador (en aplicación del principio de “no taxation without representation” que subyace al ordenamiento jurídico de todos los Estados miembros). Los reglamentos y directivas aprobados en aplicación de tales disposiciones fueron consecuentemente interpretados como si fueran normas materialmente legislativas, no sólo por los tribunales europeos y nacionales, sino por los propios legisladores nacionales; así, las normas nacionales de trasposición de las directivas relativas al IVA han sido leyes nacionales, ulteriormente desarrolladas reglamentariamente; pero el contenido esencial de las directivas ha sido implementado en normas de rango y dignidad legal. Ello ha conducido a la consideración de reglamentos y directivas como normas “materialmente” legislativas (una evolución que en el caso de las directivas está estrechamente relacionada con el reconocimiento del efecto directo de las mismas). Una vez que se acepta que el derecho comunitario es un ordenamiento (materialmente) constitucional, y se asume que reglamentos, directivas y decisiones marco son materialmente normas legislativas, el proceso por el que se aprueban las mismas ha de ser caracterizado como un procedimiento de forja de una voluntad general semejante a lo que es el caso en los procedimientos legislativos nacionales. Máxime si se tiene en cuenta que los dos principales procedimientos legislativos (el procedimiento comunitario standard y el procedimiento de co-decisión) se estructuran formalmente como tales, al agregar las voluntades de instituciones cuya legitimidad se

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asienta, más o menos indirectamente, en la voluntad de los ciudadanos. Ello no es óbice para que la “cadena de legitimación democrática” de alguna de estas instituciones sea excesivamente larga (como es el caso del Consejo de Ministros, especialmente en su formación de grupos de trabajo), o que pueda dudarse de la solidez de algunos de los eslabones de la cadena (en atención, por ejemplo, a la falta de transparencia de los trabajos del Consejo). Pero la caracterización de reglamentos y directivas como normas de rango legal, cuya legitimidad se fundamenta en su condición de expresión de la voluntad general, no oculta estas deficiencias democráticas, sino que contribuye a hacerlas más evidentes. Y en buena medida explica por qué el procedimiento de toma de decisiones reglamentario se estructura de modo que sea posible “inyectar” un mínimo de legitimación democrática a las normas resultantes (muy especialmente, tras la reforma de 2006 del llamado procedimiento de “comitología”). A ello hemos de añadir que la limitada asignación de poderes “colegislativos” al Parlamento Europeo se debe no sólo a las decisiones políticas que se han tomado o dejado de tomar en los sucesivos procesos de reforma de los Tratados, sino que en parte se explica por el peculiar federalismo que caracteriza las relaciones entre la Unión y los Estados miembros, y que conduce a que exista una relación clara entre la actual división competencial entre la Unión y los Estados y el tipo de “voluntad general” necesaria para la aprobación de reglamentos y directivas en cada área competencial. De ahí que al considerar los procedimientos de toma de decisiones legislativas, distingamos esencialmente entre (1) procedimientos en los que se trata de determinar si existe una voluntad agregada de los ciudadanos de los Estados miembros representados por sus gobiernos, o procedimientos (2) en los que se trata de dilucidar si existe una doble voluntad general, la agregada de los ciudadanos de los Estados miembros representados por sus gobiernos, y la de los parlamentarios europeos en representación directa de los ciudadanos. §7. La tercera consecuencia de la lectura en clave constitucional del procedimiento de toma de decisiones comunitario es la caracterización como procedimientos reglamentarios de lo que formalmente son actos resultantes de la delegación de poderes normativos por parte del Consejo; en concreto, nos estamos refiriendo a la denominada “comitología”. Es preciso tener en cuenta que la lectura en clave “legal” de reglamentos y directivas conduce a vaciar de contenido la categoría reglamentaria en la redacción original de los Tratados. Sin embargo, ese vacío fue pronto cubierto debido a una combinación de necesidades funcionales. Al asignar al Consejo de forma casi exclusiva el poder de aprobar normas generales y abstractas, los Tratados fundacionales colocaban sobre las espaldas de los ministros nacionales reunidos en Consejo una pesada carga, imposible de cumplir sin la previa sofisticación del proceso de formación de voluntad del Consejo (al fin y al cabo, seguían siendo ministros nacionales, y teniendo las correspondientes obligaciones); ello condujo en primera instancia a la creación del Comité de Representantes Permanentes (previstos en los Tratados de Roma, aunque no en el de París) y posteriormente a la aparición de grupos de trabajo, en ambos casos a modo de estructuras institucionales capaces de preparar las reuniones “ejecutivas” de los Consejos de Ministros, reduciendo al mínimo posible los puntos sobre los que el Consejo tenía efectivamente que discutir y tomar decisiones. Pero incluso tras el desdoblamiento institucional del Consejo, la tarea de implementación normativa resultaba

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una carga excesivamente pesada, especialmente por lo que se refería a la política agrícola común en los primeros años del proceso de integración europea. Tales presiones funcionales condujeron a una división de trabajo estructuralmente muy semejante a la que se ha impuesto en el ámbito nacional entre ley, en tanto que expresión del proceso de toma de decisiones legislativo, y reglamento, en tanto que acto normativo general dictado por órganos ejecutivos, y cuya validez depende del contenido normativo de la ley que desarrolla. En ausencia de un fundamento constitucional para articular esa relación en tales términos, se recurrió a la técnica de la “delegación legislativa”, en concreto, asumiendo que el Consejo delegaba bien a la Comisión, bien a “comités” coordinados por la Comisión, la tarea de redactar reglamentos y directivas (en tanto que actos de ejecución) mediante los que se implementaran los reglamentos o directivas aprobados mediante el procedimiento ordinario (y que en terminología comunitaria se conocen como actos de base o marco). El uso de la técnica de la delegación en lugar de la articulación de una relación jerárquica entre las normas ha conducido no sólo a que muchas normas materialmente “reglamentarias” contengan normas “independientes” del marco fijado por el reglamento o la directiva de base, sino a la negativa del TJCE a distinguir formalmente el rango jerárquico de ambas normas (a lo que se añade que el TJCE ha interpretado, en una decisión muy discutible, que el poder reglamentario asignado a la Comisión directamente por los Tratados en relación con ayudas de estado ha de considerarse a todos los efectos como una norma materialmente legal, de igual modo a cómo lo son los reglamentos o las directivas de base). §8. Los procesos de toma de decisiones administrativas regulados en el derecho comunitario son notablemente limitados en términos cuantitativos. Si bien la distinción entre normas generales y normas de aplicación está claramente presente en la redacción original de los Tratados, también lo está la caracterización del modelo comunitario como un modelo de “federalismo ejecutivo”, en el que al tiempo que se reserva la efectiva aplicación directa del derecho comunitario a las administraciones y jueces nacionales, se “europeiza” a los mismos (aunque esa europeización no implica necesariamente una modificación de las lealtades institucionales, en tanto en cuanto los funcionarios públicos y los jueces siguen debiendo su designación, sus posibilidades de carrera y su remuneración al sistema político y el derecho nacional). La dimensión empírica en el estudio del procedimiento de toma de decisiones §9. Sin embargo, la reconstrucción desde una perspectiva puramente formal del proceso de toma de decisiones comunitario tiene que ser complementada mediante la atención a la práctica constitucional, y muy especialmente, a los estudios politológicos acerca de la toma de decisiones en la Unión. §10. En primer lugar, el estudio empírico del proceso de toma de decisiones comunitario nos permite relativizar la importancia de cada uno de tales procedimientos, al tiempo que nos ayuda a evitar los errores que pueden derivarse de la aplicación del modelo constitucional nacional a la

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Unión Europea. Así, el hecho de que más de un 70% de las decisiones del Consejo se negocien al nivel de los Grupos de Trabajo revela la importancia trascendental que tiene la división de trabajo en el interior de esta institución, al tiempo que contradice la tendencia a caracterizar a los grupos de trabajo como meros “preparadores” técnicos de las decisiones del Consejo. De igual forma, el estudio empírico de los trabajos del Parlamento Europeo conduce a la conclusión de que el papel determinante de la voluntad del mismo corresponde a los grupos de trabajo, y especialmente, al rapporteur elegido en cada supuesto, conclusión reforzada por la propia identidad institucional del Parlamento Europeo, en tanto que su trabajo se desarrolla esencialmente en comisiones. Por lo que se refiere a los posibles errores derivados de la aplicación excesivamente automática del modelo nacional, es obvio que la peculiar técnica jurídica de la delegación legislativa a los comités de comitología, unida a la originalidad de los mismos, puede llevar a ignorarlos, o a relativizar su importancia, que es sin embargo considerable en el proceso de toma de decisiones comunitario; no sólo cuantitativamente (como es previsible dado su carácter reglamentario) sino cualitativamente, en la medida en la que la efectiva realización de una buena parte de las políticas europeas depende de su correcto funcionamiento. §11. En segundo lugar, el conocimiento formal de las normas que regulan los procedimientos de toma de decisiones puede conducir a conclusiones manifiestamente erróneas en la medida en la que las normas formales no guíen la práctica constitucional, bien sea porque la misma contradiga las reglas formales, o porque éstas sean insuficientemente precisas y sus “lagunas” se vean colmadas por normas consuetudinarias que sólo pueden formularse basándose en la propia práctica institucional. Así, por ejemplo, los análisis formales del proceso de toma de decisiones concluyen que en los procedimientos de reforma de los Tratados el Parlamento Europeo tan sólo es consultado. Sin embargo, la influencia que tal informe puede tener sobre la decisión de algunos parlamentos nacionales puede condicionar el éxito del proceso de ratificación, dado que se requiere que la misma sea unánime. De ahí que podamos hablar de un poder constituyente de facto del Parlamento Europeo. De igual forma, los estudios formales tienden a conceder notable importancia a los cambios en el procedimiento de formación de la voluntad del Consejo de Ministros operados por el Acta Única Europea y los sucesivos Tratados de reforma, y que han dado lugar a que en un número creciente de supuestos el Consejo pueda decidir si una mayoría cualificada de sus miembros está conforme, esto es, sin necesidad de que lo estén todos y cada uno de ellos. Sin embargo, el paso de la unanimidad a la mayoría cualificada como regla para la formación de la voluntad del Consejo parece haber tenido consecuencias prácticas bastante limitadas, en la medida en la que la práctica sigue siendo la de prolongar la negociación de modo que sea posible lograr la conformidad de todos los Estados miembros. El número de ocasiones en las que se vota siendo posible hacerlo no supera el 25% de los supuestos. Ello no quiere decir que el paso de la unanimidad a la mayoría cualificada no haya alterado la dinámica decisional del Consejo, pero ese cambio no ha conducido tanto al recurso a la votación una vez que se cuenta con una mayoría suficiente, cuanto al uso estratégico de la posibilidad de solicitar una votación en el proceso negociador que tiene lugar en el propio Consejo. Esta observación nos lleva a concluir, por ejemplo, que el procedimiento que cooperación

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ha de ser considerado no como una variante o antecedente del procedimiento de co-decisión (caracterización que sólo es correcta en términos históricos), sino del procedimiento comunitario ordinario. El poder legislativo que adquiere el Parlamento Europeo al poder alterar la mayoría necesaria para aprobar una norma es relativo en la medida en la que el Consejo tiene tendencia, con independencia de tales facultades de la asamblea representativa, a gravitar hacia la decisión unánime. Dicho lo cual, no dejamos de señalar que esta cuestión ha pasado a ser puramente teórica, en la medida en la que en los últimos cinco años no se ha hecho prácticamente uso del procedimiento de cooperación. §12. En tercer lugar, las formas constitucionales pueden servir para ocultar los factores determinantes en el proceso de toma de decisiones. Así, es necesario considerar no sólo las reglas formales de conformidad con las que se decide, sino los factores que explican que se reúnan mayorías suficientes para formar bien la voluntad agregada de los Estados miembros, bien la doble voluntad de la que también forma parte la de los parlamentarios europeos. Ello aconseja prestar la atención necesaria a los horizontes y programaciones temporales de las instituciones, tener en cuenta el carácter “repetido” del proceso de negociación comunitario, y la medida en la que ello explica las razones por las que ciertas decisiones pueden ser más sencillas si se producen en un determinado momento procesal y no en otro, o qué tipo de factores determinan el peso e influencia de los distintos actores en el proceso de toma de decisiones (por ejemplo, de los Estados miembros en el Consejo). 16. ‘The Nuts and Bolts of Co-Decision’ de Anne Elizabeth Stie, en Co-Decision, the panacea for EU Democracy? , tesis doctoral, Universidad de Oslo

Introduction The co-decision procedure is one of several decision-making procedures in the EU, but since its inception with the Maastricht Treaty an increasing number of policy areas have been subjected to it and covers today “…more than half of Community primary legislation” It is (arguably) also the procedure under which the directly elected EP has the most power and can in this way be seen as the current culmination of the EP’s steady growth of influence in legislative matters (I come back to this below). According to the Council official website, the co-decision procedure is “…by far the most important legislative procedure” and in the Lisbon Treaty it is renamed to (potentially) become the ‘ordinary legislative procedure’ of the EU (cf. also the Constitutional Treaty). The codecision procedure belongs to the Community method framework and is thus supranational in nature in contrast to decision-making in the second and third pillars as well as soft-law policycoordination mechanisms such as the Open Method of Coordination (OMC).

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The term ‘co-decision procedure’ was and still is an ‘unofficial’ name in the sense that it is not mentioned in the Treaties due to opposition from the British government during the Maastricht negotiations In the Treaties (TEC) it is merely described as ‘Article 251’. As mentioned, this is supposed to change with the Lisbon Treaty which refers to the co-decision procedure as the ‘ordinary legislative procedure’, thus simplifying and reducing the number of the EU’s legislative procedures. However, the term ‘co-decision’ quickly came into usage and is today uncontested and widely used by all parties. One of the main features of the co-decision procedure is the development of a more intense and common inter-institutional culture, especially between the EP and the Council, but also the Commission. Contrary to other decision-making procedures in the EU, under the co-decision procedure a proposal does not become law unless both the Parliament and the Council accept it. It is particularly to make the recourse to the Conciliation Committee – a formal arena where the EP and the Council (as well as the Commission) meet to negotiate if agreement after second reading cannot be achieved – worthwhile that first spurred the development of closer ties between the EP and the Council. In short, the formal inter-institutional interdependence prescribed in Article 251 forced the Council to take the views of the EP more seriously into consideration and in the longer run this has altered the character of the institutional triangle between the Commission, the Council and the EP. All in all, the net winner seems to be the EP although with some costs (I come back to this below). The formal institutional interdependence prescribed in Article 251 has also triggered the development of an important informal inter-institutional culture, also called the trialogue system, which refers to the informal talks between the EP and the Council with the Commission acting as a kind of broker between the two former. As the name indicates, ‘co-decision’ signifies the decision-making method where the Council colegislates with the EP. In contrast to the other first pillar decision-making procedures (consultation, cooperation and assent), co-decision introduced particularly two new elements. Firstly, the possibility for extending the decision-making process to a third reading and thus the establishment of the Conciliation Committee and, secondly, since Amsterdam, the possibility for early agreements ending the decision-making process already after the first reading. Together with the abovementioned informal contact structures (i.e. the trialogues), these two elements represent the most important changes to the Union decision-making system with the introduction of the co-decision procedure. This chapter has four parts. The next section contains an introduction to the co-decision procedure – which areas it covers and how it generally works. Section two provides a presentation of the historical development of the co-decision procedure. Section three gives an overview of other legislative procedures within the larger Community method or first pillar decision-making context. Fourthly, I provide some general numbers on co-decision-making.

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How the Co-decision procedure works Which areas does it cover? The co-decision procedure is currently applicable in the following policy areas (43 legal bases TEC) Article 12: non-discrimination on grounds of nationality Article 13(2): combating discrimination (incentive measures) (new in Nice) Article 18(2): right to move and reside freely Article 40: freedom of movement for workers Article 42: social security for migrant workers in the Community (Council acts unanimously) Article 44: freedom of establishment Article 46(2): right of establishment: special treatment for foreign nationals Article 47: taking up and pursuing self-employed activities; recognition of diplomas Article 47(2): idem, if national legislation is amended (Council acts unanimously) Article 55: right of establishment: services Article 62(1): absence of controls on persons crossing internal borders (new in Nice, Council acts unanimously) Article 62(2a): checks at external borders (new in Nice, Council acts unanimously) Article 62(3): absence of controls on persons crossing internal borders (Council acts unanimously) Article 63(1): asylum policy (new in Nice, Council acts unanimously) Article 63(2a): persons under temporary protection (new in Nice) Article 63(2b): receiving refugees and displaced persons (new in Nice, Council acts unanimously) Article 63(3b): measures against clandestine immigration (Council acts unanimously) Article 65: judicial cooperation in civil matters (except family law) (new in Nice) Article 71(1): transport (rail, road, inland waterways) Article 80(2): transport (extension: sea, air) Article 95: internal market Article 129: employment (incentive measures) Article 135: customs cooperation Article 137(1-2): social policy Article 141: social policy: equal opportunities; equality of men and women Article 148: ESF (implementing decisions) Article 149,4: education (incentive measures) Article 150(4): vocational training Article 151,5: culture (incentive measures) (Council acts unanimously) Article 152(4): public health (incentive measures) Article 153(4): consumer protection Article 156: trans-European networks Article 157(3): industry (specific support measures) (new in Nice)

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Article 159(3): economic and social cohesion (specific actions outside the Funds) (new in Nice) Article 162: ERDF: implementing decisions Article 166: research (framework programme) Article 172: research: implementation Article 175(1-3): environment Article 179: development cooperation Article 191: political parties at European level (statute and political rules) (new in Nice) Article 255(2): access to institution documents Article 280(4): prevention of and fight against fraud Article 285(1): statistics Article 286(2): independent supervisory body for monitoring the protection of personal data Article 251 TEC The co-decision procedure is formally described in Article 251 of the Treaty establishing the European Community: Article 251 1. Where reference is made in this Treaty to this Article for the adoption of an act, the following procedure shall apply. 2. The Commission shall submit a proposal to the European Parliament and the Council. The Council, acting by a qualified majority after obtaining the opinion of the European Parliament: if it approves all the amendments contained in the European Parliament's opinion, may adopt the proposed act thus amended, if the European Parliament does not propose any amendments, may adopt the proposed act, shall otherwise adopt a common position and communicate it to the European Parliament. The Council shall inform the European Parliament fully of the reasons which led it to adopt its common position. The Commission shall inform the European Parliament fully of its position. If, within three months of such communication, the European Parliament: (a) approves the common position or has not taken a decision, the act in question shall be deemed to have been adopted in accordance with that common position; (b) rejects, by an absolute majority of its component members, the common position, the proposed act shall be deemed not to have been adopted; (c) proposes amendments to the common position by an absolute majority of its component members, the amended text shall be forwarded to the Council and to the Commission, which shall deliver an opinion on those amendments. 3. If, within three months of the matter being referred to it, the Council, acting by a qualified majority, approves all the amendments of the European Parliament, the act in question shall be

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deemed to have been adopted in the form of the common position thus amended; however, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. If the Council does not approve all the amendments, the President of the Council, in agreement with the President of the European Parliament, shall within six weeks convene a meeting of the Conciliation Committee. 4. The Conciliation Committee, which shall be composed of the Members of the Council or their representatives and an equal number of representatives of the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the Members of the Council or their representatives and by a majority of the representatives of the European Parliament. The Commission shall take part in the Conciliation Committee's proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. In fulfilling this task, the Conciliation Committee shall address the common position on the basis of the amendments proposed by the European Parliament. 5. If, within six weeks of its being convened, the Conciliation Committee approves a joint text, the European Parliament, acting by an absolute majority of the votes cast, and the Council, acting by a qualified majority, shall each have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If either of the two institutions fails to approve the proposed act within that period, it shall be deemed not to have been adopted. 6. Where the Conciliation Committee does not approve a joint text, the proposed act shall be deemed not to have been adopted. 7. The periods of three months and six weeks referred to in this Article shall be extended by a maximum of one month and two weeks respectively at the initiative of the European Parliament or the Council. The co-decision procedure step by step The co-decision procedure is divided into three stages or readings which can be concluded at each stage depending on the ability to reach agreement (different types of majorities are required – see below). It is common to say that the procedure begins with the Commission launching its proposal to the EP and the Council. However, prior to formulating the proposal, the Commission has conducted an extensive consultation process both inter-institutionally with the EP and the Council, externally with the civil society organisations and corporate interests etc. as well as with other EU institutions, such as the Economic and Social Committee (ESC) and the Committee of the Regions (CoR) in those areas their opinions are required. In other words, prior to launching a policy proposal and formally opening a co-decision procedure, the process has usually lasted quite some time in order for the Commission to have an idea and anticipate the various positions and identify

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contested issues. In the Commission the proposal is then finally and officially adopted either through the written (no discussion/ ‘A’ point) or oral (with discussion/ ‘B’ point) procedure among the Commissioners and then sent to the EP and Council as well as published in the Official Journal in its ‘C’ series. First reading The first reading starts when the Commission – which has the formal monopoly of initiative – launches its policy proposal simultaneously to the EP and the Council. (At this stage it is also possible for the CoR and the ESC to submit their positions on the proposal). The difference between the first reading, on the one hand, and the second and third readings, on the other, is that there are no time limits in the former. Discussions can therefore go on as long as deemed needed both in the EP and the Council. The proposal is officially announced in plenary in the EP and allocated to the relevant parliamentary committee (potentially joint involvement of two or more committees if the nature of the case so requires). The task of the committee is to prepare the Parliament’s ‘Opinion’ on the Commission’s proposal and the committee thus appoints a rapporteur who is put in charge of producing a report suggesting amendments and changes to the Commission proposal. The report is firstly subject to internal committee discussion and, when agreed among committee members (simple majority required), recommended to and discussed in the Parliament in a plenary session. The report is also adopted by simple majority in the plenary and consequently made the ‘Opinion’ of the EP and then submitted to the Commission (as well as the Council). The Commission reviews the amendments from the EP and if it agrees, adopts a modified proposal in order to accommodate the suggestions of the Parliament. Meanwhile, the responsible Council working party(ies) has started the first reading process in the Council. The Council working parties are subcommittees of the Council of Ministers which discuss, make recommendations and table amendments to the (modified) Commission proposal. The process is supervised by the members of the Committee of Permanent Representatives (Coreper) and attended by national representatives sent from the member states. The process then moves on to Coreper which examines the agreements reached in the working parties and attempts to resolve outstanding points of disagreement before the proposal is sent to the Council of Ministers. On the basis of the EP’s Opinion and the Commission’s potential recommendations, the Council discusses the proposal and reaches a Common Position by a qualified majority vote if the Council agrees with the recommendations made by the Commission. If the Council disagrees with the alterations the Commission has made to the EP’s amendments, this requires unanimity in the Council. If it turns out that the Council approves all the amendments made by the EP (or if the EP did not make any amendments to the Commission proposal) and the Commission, the proposal can be adopted and become law for implementation right away without the Council having to agree on a Common Position. This kind of ‘fast track legislation’ or ‘early agreement’ where the procedure can

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be closed after first reading was made possible after the changes in the Amsterdam Treaty. If, on the other hand, the Council does not approve and a Common Position is adopted, this signals the end of the first and the start of the second reading. Second reading One difference between the first and the second reading is the shift from simple to absolute majority voting in the EP. There are no changes to the Council’s QMV rule. Another difference is that during the first reading of the co-decision procedure there are no time constraints neither on the EP nor on the Council when formulating their ‘Opinion’ and ‘Common Position’ respectively. In the second reading, however, a strict timetable is prescribed (see below). Finally, the end of a second reading is different from a first reading sequence in the sense that the former opens up for the possibility of convening the Conciliation Committee. Apart from the above, the second reading is more or less a copy of the first. The second reading process starts with the EP taking a stance on the Council’s Common Position within 3 months (with the possible extension to 4 months) after receiving it. If it approves or does not respond, the act is deemed adopted. If the Parliament rejects the proposal by an absolute majority, the act fails. If, on the other hand, the Parliament makes amendments to the Common Position (supported by an absolute majority), the dossier is sent back to the Council (and the Commission for its opinions). Within 3 months (with the possible extension to 4 months), the Council can either approve the EP’s suggestions (by QMV if the Commission has approved them or otherwise through unanimity) or it can reject either all the amendments or just one single amendment. If approved, the Common Position with EP amendments is adopted. If rejected, the Conciliation Committee is convened within 6 to 8 weeks. For conciliation processes, both the EP and the Council select a delegation to represent them. In the Conciliation Committee the members attempt to find a compromise position. The Conciliation Committee consists of an equal number of members from the Council and the EP with the participation of the Commission. If no agreement is reached within 6 to 8 weeks the act is rejected. If, however, agreement has been reached within the same time limit and a Joint Text has been adopted, the third reading starts. Third reading The members of the Conciliation Committee then take the agreement back to their respective institutions where the conciliation compromise – the Joint Text – is presented and the proposal with amendments is voted upon. For the act to be adopted both institutions must approve – the EP with a simple majority of the votes cast and the Council with a qualified majority. Agreement in both houses must be reached within 6-8 weeks. If one of the institutions rejects the proposal, the act is not adopted. At this stage it is not possible to again open the process and the EP and the Council

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must take a vote on a take-it-or-leave-it basis. A rejected act can only be re-opened if the Commission tables a new proposal. The trialogues In parallel with the formal procedure as described above, trialogues are now an important characteristic of co-decision-making. These meetings are crucial for the understanding of how the co-decision works and therefore deserve some space here. The trialogue is an inter-institutional arena containing a limited number of participants from each institution. From the EP, the rapporteur, the chair of the responsible committee and, in addition, often the shadow rapporteurs (especially those from the large political groups) meet. In trialogues prior and during conciliation, one of the three permanent EP Vice Presidents also participates. The Council is usually represented by the Presidency in the form of the chair of Coreper I (the deputy permanent representative), the chair of the relevant working group as well as the Council Secretariat ‘backbone’ which provides legal expertise. The incoming Presidency is usually also included, but only with observer status. The Commission is represented by the relevant Commissioner in the trialogues that are conducted “...just before or on the fringe of the Conciliation Committee.” For the other meetings, a high-level official, usually the relevant Director-General or Director meet assisted by the Secretariat General (the Codecision Unit and the Legal Service). In sum, there are not more than 10 persons from each institution. In the beginning trialogues were only common prior to the Conciliation Committee, but are today conducted throughout the procedure. Hence, whereas the Treaties formally describe the codecision procedure in a sequential manner, i.e. that each institution deals with the dossier in turn, responding to each other’s suggestions as outlined above, Farrell and Héritier point to the simultaneity of the procedure due to these informal practices and contacts as they take place throughout the whole procedure. In other words, it is not the case that one house sits and waits until the other has come up with a response. Rather, while the formal process proceeds in a sequential manner, selected representatives from all three institutions are in constant contact with one another in order to reach agreements, broker deals and sound out each other’s positions. In 1999 with the inception of the Amsterdam Treaty and the possibility for closing the procedure after the first reading, the EP, Commission and the Council signed a Joint Declaration committing them to cooperate on a constructive basis. The agreement was revised in 2007 with a particular emphasis on how the first reading trialogues should be conducted. There is now a strong emphasis on reaching so-called ‘early agreements’, i.e. closing the procedure after the first reading. Access to trialogues is thus privileged and restricted to the above actors who are the key figures throughout the process. Trialogue meetings are conducted behind closed doors. During first reading trialogues it is only the official Commission proposal (and accompanying public documents such as impact assessments etc.) that are publicly available. As the whole purpose of trialogues is

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secrecy, the debates are obviously not openly accessible and there are no verbatim records or minutes. Consequently, with regard to individual and ongoing dossiers, there is no information available from first reading trialogue meetings. In the second reading, the EP’s opinion, the Council’s Common Position as well as the Commission’s comments thereon are available, but again there are no available documents from the trialogues themselves. This is also the case with conciliation trialogues. The trialogues are not mentioned in the Treaties, but have obtained a more or less semi-formal status in the two aforementioned Joint Declarations between the Commission, the EP and the Council. In general it is stated that the ...trilogue system has demonstrated its vitality and flexibility in increasing significantly the possibilities for agreement at first and second reading stages, as well as contributing to the preparation of the work of the Conciliation Committee. Such trilogues are usually conducted in an informal framework. They may be held at all stages of the procedure and at different levels of representation, depending on the nature of the expected discussion. Each institution, in accordance with its own rules of procedure, will designate its participants for each meeting, define its mandate for the negotiations and inform the other institutions of arrangements for the meetings in good time. There is (arguably) a strong consensus among commentators that the swiftness and efficiency of the co-decision procedure in large part should be credited this informal contact structure which has eased and strengthened the cooperation climate between the EP and the Council. It is particularly the latter that favours this practice whereas the EP has expressed ambivalence as the process has become less transparent, only involve a handful of MEPs and the debate is partly moved out of the formal channels and the Parliament itself. The character and functioning of the trialogues will be discussed extensively below.

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The development of the co-decision procedure Prior to Maastricht The process leading to the introduction and then the further development of the co-decision procedure can perhaps best be illustrated from the perspective of the EP. Hence, even if the Council is still the dominating house in EU decision-making, the introduction of the co-decision procedure has increased the EP’s role in legislative tasks significantly. Prior to the Single European Act (SEA) the EP was only scarcely involved in legislation through a simple consultation procedure which, as the name indicates, means that the EP was only consulted, but the Council had no obligation to follow the wishes of the Parliament (see more on the consultation procedure below). Despite this, “…by the mid 1970s, Council consulted Parliament on virtually all legislative proposals referred to it except those of a purely technical or temporary nature”. The introduction of direct elections to the EP and the MEPs becoming full-timers from 1979 together with the important ‘isoglucose ruling’ of the ECJ in 1980 signalled the more active role the EP was going to play in future EU decision-making. Now it was made clear that the Council was obliged to await the EP’s opinion before it could adopt an act. However, the isoglucose ruling was more a power of delay than a veto and consequently more effective in situations where decisions required urgency. What is more, the Council could still disregard the EP’s position if it did not agree. With the SEA, the powers of the EP grew as two additional decision-making procedures were introduced, namely the assent and the cooperation procedures. Now both the number of policy areas where the EP was involved as well the powers of the EP were strengthened. The cooperation procedure meant that the power of the EP was increased as it was now involved also in a second reading in decision-making processes. Procedurally this means that after the EP has produced its opinion, the Council must respond and agree on a Common Position prior to the second reading can take place: “As a result, the habit of two readings gave the impression of a classical bicameral legislative procedure at European level, and helped pave the way towards full co-decision”. Maastricht – Co-decision I The co-decision procedure was introduced with the Maastricht Treaty in order to improve the Union’s democratic legitimacy through the strengthening of the EP’s position and powers. The EP was going to be a more equal partner to the Council in Community legislation. As mentioned above, the rules regulating co-decision introduced the formal requirement that a proposal must be accepted by both houses in order to be adopted. This formal equality was symbolised by the establishment of the Conciliation Committee. Under the Maastricht provisions, recourse to the

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Conciliation Committee was, however, not necessarily the final stop. If conciliation negotiations failed, the Council could re-introduce its Common Position and adopt the act unilaterally if the EP failed to drum up an absolute majority among its members to support its rejection within a six weeks deadline. The Council only tried this option once in the 1994 Voice Telephony case where the EP managed to gather an absolute majority and voted the act down. The Council obviously found this strategy too costly and refrained from using this right in subsequent procedures. Another provision that made the EP inferior to the Council was the former’s obligation before the second reading to announce its ‘intention to reject’ the Council’s Common Position “…and then confirm this in a new vote following an option conciliation meeting with the Council”. This provision was deleted in the Amsterdam Treaty. Even if not as accentuated as the well-known budgetary quarrels in the 1970-80s, the beginning of the Maastricht period was characterised by confrontation and lack of cooperation between the EP and the Council, as the legislative procedures hitherto had not warranted as close cooperation and interdependence as required in co-decision. The institutions were thus not accustomed to work together on a more equal footing. The weaker EP struggled to win influence whereas the more powerful Council tried to minimise the former’s new-won formal clout. The Council had no tradition for paying attention to or taking seriously the views of the EP. In these initial years of the co-decision procedure the EP, on its side, demonstrated a remarkable ability to act collectively and thus won long-term victories and more power, e.g. through the aforementioned Voice Telephony case in 1994.. Over time, the EP and Council have developed its well-known and quite efficient arrangement of informal trialogue contacts and meetings where disagreements can be discussed and aired prior to formal discussions. The ‘trialogues’ or ‘trilogues’ were originally introduced in relation to conciliation meetings and the very first trialogue was held during the SOCRATES report in 1994 on the dispute over comitology and the budget. In the second half of 1995 under the Spanish Presidency, the EP and Council agreed to hold regular trialogue meetings prior to the Conciliation. The reason was that the Treaty was and still is silent on what shall happen between the Council’s rejection in the second reading and prior to convening the Conciliation Committee. In addition to making the formal conciliation meetings much more prepared, the conciliation trialogues grew out of a frustration over conciliation meetings with over 100 people present and the lack of productive dialogue and negotiations between the EP and the Council. Moreover, the formal conciliation meetings could be very time-consuming and difficult as the dossiers and hence the discussions are often of a very technical nature. The trialogues prepare the conciliation meetings and function as an arena for sounding out differences and trying to find common ground. No formal decisions are taken here as the participants must refer back the possible solution to their respective conciliation delegations for potential approval.

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In sum, trialogues are not described in the Treaties, but now play a crucial role in the workings of co-decision. Their normative status are, however, highly ambivalent. I will discuss the trialogues thoroughly in this thesis, but for now it suffices to say that the trialogues represent an important feature in the development of a ‘new legislative culture’ between the EP and Council and that under co-decision I, trialogues were first and foremost confined to the stage prior and during conciliation. Amsterdam – Co-decision II So far the introduction of the Amsterdam Treaty has represented the most important change to the co-decision procedure. Firstly, the number of policy areas subjected to co-decision increased considerably, from 15 to 40 – spread over 31 articles. Secondly, the provision whereby the EP had to announce its ‘intention to reject’ a Council Common Position was repealed. “If the EP now votes to reject the common position, the legislation fails. This reform largely corresponds to the practice of co-decision: in the intergovernmental conference (IGC) negotiations, the Member States, the Parliament and the Commission all declared this part of the procedure to be moribund”. Thirdly, Amsterdam also removed the possibility of the Council to re-introduce its ‘Common Position’ after the second reading thus depriving the Council of its relative power to impose decision-making upon the EP unless the latter was able to mobilise an absolute majority and veto the proposal. After Amsterdam the future destiny of a policy proposal rests with the outcome of the Conciliation Committee – if no agreement is reached in conciliation the act fails and the procedure is closed. This puts the Council and the EP on a more equal footing in legislation under co-decision. “As a result, more than one observer has called the Parliament the big winner of the Amsterdam Treaty negotiations”. Fourthly, Amsterdam reduced the time limits for the duration of the co-decision procedure after the adoption of the Council’s Common Position from 16 to 14 months. Finally, Amsterdam opened for the so-called ‘fast-track procedure’ allowing the legislative process to close already after the first reading if the EP and Council agree. This also resulted in the aforementioned Joint Declaration between the EP, Commission and Council on the practical arrangements for the co-decision procedure. Here, the institutions committed themselves to cooperate in an amicable manner and, in short, we may arguably say that the document semiformalised the usage of trialogues. Moreover, this was also followed up by the Council – which is the institution that has had to change its working methods the most. In a report from the Presidency and the Council Secretariat where closer and more accommodating cooperation with the EP was underlined, the trialogues were mentioned as a means that had made co-decision more effective, i.e. reduced the number of conciliations and increased closure at first reading. Whereas the Maastricht period and co-decision I can be seen as the trial and error period where the institutions tried to come to terms with the new legislative arrangements (i.e. the Council accepting and taking seriously the EP as a co-legislature), the Amsterdam period and co-decision II solidified the informal cooperation arrangements that developed under co-decision I. From Amsterdam onwards, the aim has been to reduce the number of dossiers going to conciliation and trying to reach agreement as

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early as possible, hence the need for more continuous cooperation and contact on an informal basis. Partly for this reason, Hix argues that “…by the mid 1990s the EU legislative system had developed into something much closer to a traditional bicameral model.” Nice The Nice Treaty did not represent big changes with regard to structure of the co-decision procedure and only increased the number of policy areas “…by five, immediately after ratification, and by five more, at a later date”. Today the co-decision procedure covers over 40 areas of Community action. With regard to co-decision, the big question during the IGC was whether it should concur with all areas where decisions are taken by qualified majority vote (QMV) in the Council, as the EP fought for. This was, however, only partially implemented as “…among the new cases under QMV, three legislative ones remained outside the co-decision procedure: financial regulations, internal measures for the implementation of co-operation agreements, as well as the Structural Funds and the Cohesion Fund”. The new policy areas subjected to co-decision after Nice were measures to combat discrimination, judicial cooperation in civil matters (excluding family law), specific industrial support measures, economic and social cohesion actions (outside the Structural Funds), the statute for European political parties and measures relating to visas, asylum and immigration. Lisbon: from co-decision to ‘ordinary legislative procedure’ Even if the French and Dutch referenda formally put an end to the Constitutional Treaty, the majority of its content survived the 2007 IGC and was adopted at Lisbon. Whether it will survive a second ratification process still remains to be seen and the future prospect for the Treaty after the Irish turned it down in 2008, is currently undecided. One of the main tasks for the Convention on the Future of Europe was to simplify the legislative procedures in order to make the EU system more transparent and comprehensible. The constitutional treaty suggested to make the co-decision procedure the ‘ordinary legislative procedure’ and to increase the number of Community areas subjected to it from 43 to 92, i.e. the majority of EU legislation. This is also the case in the Lisbon Treaty. As in the Constitutional Treaty, the pillar structure is also almost abolished in the Lisbon Treaty thus paving the way for more EP involvement. Co-decision or the ‘ordinary legislative procedure’ will henceforth apply to important policy such as agriculture, fisheries, structural funds as well as the whole current third pillar area of justice and police cooperation. Other decisionmaking procedures such as consultation and assent will be brought together under ‘special legislative procedures’. To make co-decision the default procedure in policy areas where the Council decides by QMV has been a principle advocated by the EP for a long time and the constitutional treaty seems “…finally to establish this link”. The Lisbon Treaty also adopted the clause providing for a more permanent leadership in the Council. However, the President of the European Council will presumably not affect the current set-up of co-decision-making as the Council of Ministers will retain its rotating six months presidency when dealing with legislative acts. In sum, the Lisbon

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Treaty will arguably not alter the structure and workings of the co-decision procedure as was the case in Amsterdam, but it will make it more important as it will apply to the majority of EU legislation. The co-decision procedure in the larger first pillar legislative context. The co-decision procedure belongs to the so-called Community method framework which is located in pillar 1. The Community method framework is supranational in character and involves different configurations of the EU institutional triangle: the Commission, the EP and the Council with the ECJ as the overall watchdog. Within the so-called Community method there are four different types: the consultation, the assent, the cooperation and the co-decision procedure. The four can be distinguished by how much power the EP has as a legislature in relation to the Council. Under the consultation procedure the EP has the least power, then follows assent, cooperation and finally codecision where the Parliament at least formally enjoys equal legislative powers with the Council. Let us have a brief look at the three first procedures. The consultation procedure is the oldest of the four procedures and was already introduced by the Treaty of Rome and until the Single European Act (SEA), this was the only decision-making procedure. For a long time it was also the most important legislative procedure in the sense that the majority of EU legislation was adopted under this procedure. Over the last few years (2005-9), however, the number of acts adopted under the consultation procedure has sunk (see table 2 below). According to this procedure, the EP is only allowed to give a non-binding opinion to the Council before a new piece of legislation is adopted. The Council is obliged to consult the EP, but it is not bound by its opinion. If the Council agrees with the EP’s opinion, it can then ask the Commission to amend the proposal, but the latter has no obligation to accommodate such a request. The consultation procedure applies to important policy areas such as agriculture, competition policy and other Community policies, in addition to institutional and budgetary policies, citizens’ rights and police and judicial cooperation (i.e. third pillar) policies. If the Lisbon Treaty comes into force, the consultation procedure will fall into the category of ‘special legislative procedures’. The assent procedure was introduced with the Single European Act and was extended at both Maastricht and Amsterdam. This makes the EP more on a par with the Council in cases concerning the accession of new members, association agreements with third states as well as other important agreements with third countries, the appointment of the Commission President, citizenship issues, the tasks of the European Central Bank and amendments to the Statutes of the European System of Central Banks and the ECB, the Structural and Cohesion Funds, the procedure for elections to the EP and in cases where sanctions imposed on Member State for breaching fundamental rights are considered. The procedure requires the support of a simple majority in the EP under most of these policy areas, but there are three exceptions where an absolute majority is required, namely those concerning EP elections, accession of new member states and in cases where member states are in

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breach of fundamental rights. In any event, an act is not adopted if the EP rejects the proposal. However, the EP cannot make amendments to the Commission proposal as is the case with the consultation, cooperation and co-decision procedures. It can only accept or reject it as it stands. There is also a reverse version of the assent procedure applying to cases where the Council can only accept or reject the statutes or rules of procedure of the Ombudsman as well as the EP. Corbett et al. call the assent procedure a crude version of co-decision as it requires the acceptance of both legislative houses, but assent does not provide for amendments, but only a ‘take-it-or-leave-it’ practice. In the provisions of the Lisbon Treaty the assent procedure is renamed ‘consent’ procedure. The SEA also introduced the cooperation procedure (Article 252). This procedure gives the EP more power than both the consultation and assent procedures as the Parliament is here involved also in a second reading of legislative acts. Even if the cooperation procedure was originally covering only 10 treaty articles it was, until the introduction of co-decision, still an important procedure as it covered around one third of all legislation. The cooperation procedure is, as mentioned above, the forerunner of the co-decision procedure, but since the latter’s inception, the former has lost its competence in many areas to the latter. After the Amsterdam Treaty the procedure has a rather reduced scope: “The main reason for the shift from co-operation to co-decision is the procedural change applied to one legal basis – namely Article 95 TEC. The general basis for harmonization measures in the framework of the internal market. With Maastricht, the procedure to be applied for Article 95 shifted from co-operation to co-decision, and 45.9 per cent of co-decision procedures concluded between November 1993 and December 2001 fell under this article.” The cooperation procedure was originally established to apply to Single Market policy areas. Now it only applies to certain fields of the economic and monetary union. The effort to reduce the number of decision-making methods in the EU, the Lisbon Treaty suggests to repeal this procedure altogether and replace policy-making usually falling under it with the ‘ordinary legislative procedure’ (i.e. the current co-decision procedure) or by non-legislative acts of the Council. The cooperation procedure shares many similarities and is identical with the co-decision procedure up until the second reading, but has no possibility for recourse to the Conciliation Committee. The difference occurs after the EP has either accepted and/or amended or rejected the proposal during the second reading. A policy proposal falls altogether under co-decision if the EP rejects it, whereas under the co-operation procedure the Council can still adopt the proposal if it can reach unanimity. It can also be argued that the Commission has more power under the cooperation procedure as it has to approve the second reading amendments made by the EP before they are sent to the Council. It is consequently important that the Commission is backing the EP’s suggestions so that they remain in the proposal. As we have seen, this provision does not apply under co-decision as the

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Council and the EP do not need the formal approval of the Commission to adopt amendments (although the Council must drum up unanimity if the Commission’s comments are to be rejected). In other words, the difference between the co-operation and co-decision procedures is that in the former the Commission has more power and the Council has the final word. In fact, it is argued that it is the Commission that loses most power in the move from co-operation to co-decision. In this regard, it should be mentioned that the inter-institutional power balance has been a major topic in the co-decision literature. This debate has a strong game-theoretical emphasis. By measuring conditional agenda setting and veto powers, these studies aim to determine the relative legislative influence of the Commission, the EP and the Council. Prior to the revision of the codecision procedure with the inception of the Amsterdam Treaty, the debate was focused on the whether the EP was more powerful under co-operation rather than co-decision. One strand argued that the EP had more power under the co-operation than the co-decision procedure. The argument was that under the co-operation procedure the EP (together with the Commission) has conditional agenda-setting power which means that if the Commission supports its amendments, it would be hard for the Council to reject them since unanimity instead of QMV is then required. Hence given that the member states were more interested in passing legislation rather than none whatsoever, the assumption was that it was easier to support the EP’s amendments and get an agreement even if the outcome was not the preferred one. Under the co-decision procedure (that is, ‘co-decision I’), the EP has absolute veto power, but because the Council could re-introduce its Common Position if conciliation failed, the Council could put pressure on the EP and present the Joint Text as a ‘take-it-or-leave-it’ offer. On this basis, it was assumed that the EP was more influential under the cooperation than the ‘co-decision I’ procedure. This position attracted many opponents and was highly disputed. However, with the Amsterdam Treaty and the revision of the co-decision procedure, the Council’s right to re-introduce its Common Position was repealed. Hence if no agreement is reached in the Conciliation Committee the act now fails and there is no second round for the Council. Consequently, after Amsterdam the argument that the EP wields more influence under the cooperation procedure is hard to sustain. There is now widespread agreement that the EP is more powerful under co-decision than under the other legislative procedures and that the EP and the Council have now become genuine colegislators. In sum, the situation after Nice concerning decision-making procedures within Community method framework is that the co-decision and consultation procedures are the most important and most frequently used legislative mechanisms. Co-decision covers almost all areas of the internal market, whereas the consultation procedure was until 2008 used in the majority of cases (se table 2). The cooperation procedure, on the other hand, is almost never used and the assent procedure is only important in cases of international agreements. If the Lisbon Treaty is ratified, this picture will

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change as co-decision becomes the default or ‘ordinary legislative procedure’ and consultation will figure under ‘special legislative procedures’. The co-decision procedure in numbers – efficiency and effectiveness The acts coming out of co-decision are either regulations, directives or decisions. The number of concluded co-decision acts has grown steadily from Maastricht until today. In the first co-decision period between Maastricht and Amsterdam there were 165 concluded dossiers. Within the last parliamentary term (1999-2004), the total number of concluded co-decision files was 403. In the current parliamentary term (2004-2009) from 2005 to 2008, the number of adopted dossiers has increased from 122 in 2005 to 217 in 2008. Moreover, whereas acts adopted under the consultation procedure has declined, the number of co-decision acts has in contrast increased and in 2008 the number was actually higher than consultation. In their study on the impact of enlargement on decision-making in the Council, Hagemann and De Clerck-Sachsse (2007: 11) found that the number of co-decision acts was high just before the accession of the ten new member states and then dropping immediately after enlargement (see also Settembri, 2007). This trend is now reversed “...into an increase that even exceeds the years prior to enlargement.” Below I have made a table on the number of adopted first pillar acts during the last four years.

Length of procedures Many had predicted that greater involvement of the EP would mean slowing down and making the legislative process less efficient. Studies show that this was not the case prior to the enlargement in the EU15, rather to the contrary: “A more detailed analysis indicates that the average duration of co-decision fell from 769 days (for the period November 1993 – December 1994) to 409 days for proposals made between July 1999 and July 2002”.

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However, in a recent study by Settembri where he takes heed of the impact the 2004 enlargement has had on EU decision-making, he found that with regard to length of decision-making process, his data also shows that the average number of days to complete a co-decision file has now gone up to the same level as in the 1993-94 period. More specifically, prior to enlargement he found an average of 600 days to close a co-decision dossier whereas after enlargement this number has raised to about 730 (ibid). In comparison, the average length of consultation acts has decreased from around 510 to 310 days. Fast-track procedure – early agreement Despite the fact that the duration (number of days) of the legislative process is now on a par with the early Maastricht situation this could imply that the dossiers also go through all the three readings. This, however, is no longer the case and as can be seen from the table above, the overwhelming number of co-decision acts is now adopted after the first reading. As we have seen, this type of ‘fast-track legislation’ or ‘early agreements’ was made possible with the coming into force of the Amsterdam Treaty. During the pre-Amsterdam parliamentary period (1993-1999) when it was not possible to conclude a co-decision procedure at the first reading, 60% or 99 dossiers were closed at second reading and 38% or 63 dossiers agreed after conciliation In the fifth parliamentary period 1999-2004, 28.5% of all co-decision dossiers have been closed after first reading (i.e. 115 dossiers) whereas 49.6% (i.e. 200 dossiers) were closed at second reading and 21.4% (i.e. 86 dossiers) were finalised at third reading For the current parliamentary period (2004-2009) the pattern of reaching agreement after the first reading has increased significantly: Of the 122 dossiers adopted in 2005, 74% was completed at first reading. In 2008, a total number of 217 dossiers were adopted of which 65% was adopted after the first reading (see table 2). The emphasis on first reading also means that there is hardly any dossier that goes all the way through the third reading which is consequently almost abolished. It is first and foremost the Council that has been eager to close agreements in the first reading and seeks to avoid conciliation as much as possible and to “…reach agreement as swiftly as possible whenever possible…” This ‘commitment’ to reaching agreement at first reading is also followed up in the aforementioned Joint Declaration from 1999 and revised in 2007 between the Commission, the EP and the Council on the workings of the co-decision procedure. Conclusion The aim of this chapter has been to provide some background information on the rules and practices of co-decision-making ranging from a historical synopsis of major developments from

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Maastricht until today, a presentation of the legal bases and the functioning of the procedure (both the formal (three readings) and informal (trialogues) aspects), a comparison of the legislative procedure in the first pillar and finally a more quantitative summary of the efficiency and effectiveness of the co-decision procedure. Altogether this provides a foundation for the evaluation starting with the first criterion of democratic deliberative meeting places in the next chapter. 17. ‘Co-decision: tried but not yet acquited’ de Anne Elizabeth Stie, en CoDecision, the panacea for EU Democracy? , tesis doctoral, Universidad de Oslo

As we can see from the evaluation in the previous chapters, the co-decision procedure does not fully approximate all the criteria necessary for meeting the demands of a democratically legitimate decision-making structure. This does, however, not mean that co-decision is without democratic qualities: Inclusion of affected parties and a democratic forum Both the EP’s committee and plenary settings are organised in a way that make them conducive to democratic decision-making and hence qualify as democratic deliberative meeting places. This is important as modern democracies rely on representation rather than direct participation and the way decision-making processes are organised is crucial in order to ensure that there is a link between decision-makers and those affected. An important factor to achieve this end is the existence of a publicly open and accessible forum where elected decision-makers (or a representative selection among them) exchange, test and scrutinise arguments and positions. The evaluation revealed that the EP committees and plenary sessions are organised in such a way that makes it likely to expect that positions and counter-positions can be tested and scrutinised in an open and accessible manner (even if there should be roll-call voting at both committee and plenary levels as well as verbatim records of committee meetings). Moreover, it is particularly the interplay and the division of labour between committees and plenary sessions that together meet the requirements of a democratic deliberative meeting place. On the one hand, the committees function as settings where dossiers can be discussed more thoroughly. Here the number of MEPs is reduced, but committees nevertheless ensure a representative selection of MEPs. The interaction is more informal and seemingly conducive to exchanging and responding to arguments. The plenary, on the other hand, is a setting with a significantly higher number of participants which from the outset makes a thorough discussion in the deliberative sense more difficult. Hence plenary sittings are more formal and less conducive to spontaneous discussion. However, even if these institutional constraints may make it possible that the MEPs themselves have already made up their mind and are presumably not very inclined to engage in thorough deliberation with each other, the plenary is a forum – to a greater extent than committees – where

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the MEPs present and justify their positions towards the outside world. What is more, the EP plenary sessions are easily accessible both with regard to documents and debates (even if the default voting procedure should be roll-call) and for interested citizens it is thus possible to monitor their MEPs by scrutinising the suggested amendments and speeches they make. In addition, the plenary is a setting where it may be possible for the MEPs to hold each other to account for their conduct in other (more secretive) settings such as the trialogues and the Conciliation Committee. In this sense, the plenary setting in particular thus becomes a setting compatible with public justification and account-giving. In sum, the division of labour between committees and plenary sessions can be conceived as an institutional set-up ensuring a sequencing of deliberative tasks where the former performs the more detailed and explorative work and the latter is a setting where the MEPs defend their positions. The division of labour between committee and plenary also ensures inclusion of the views of affected parties at both levels as the MEPs are directly and substantially involved at all stages of the policy process. Unlike the Council, the process of moulding a collective will is not ‘out-sourced’ to unelected officials. Hence the normative hierarchy between affected and competent parties is respected in the Parliament. In this sense, the formal set-up in the EP does not only allow for deliberation prior to decision-taking, it also ensures a democratic opinion- and will-formation process. Even if not a democratic feature in itself, the importance of a democratic deliberative meeting place is crucial for representative democracies as it contributes to build trust among those affected and their representatives. We may add that, although to varying degree, the open EP settings also help the public to get better acquainted with some of the reasons behind the Commission’s and the Council’s policy choices and amendments. As we have seen, whereas the Commission always participates in both the committee and plenary sessions – it explains and justifies its position in front of the MEPs, the Council is more hesitant to respond to the MEPs’ questions and usually prefers to use these meetings as listening posts. Openness In comparison to other EU decision-making procedures, the transparency rules governing the codecision procedure ensure a greater degree of openness. The reason for this is first and foremost due to the full participation of the EP under co-decision which, as we have seen, conducts its legislative processes in greater transparency than the other two institutions. Under the other Community legislative procedures when the Council is the main decision-maker and not as dependent on the Parliament, the transparency conditions are worse than they are under codecision. Here, the policy-making process starts in the Commission and subsequently moves to the Council where the internal legislative processes are conducted more or less in secrecy before an agreement is reached and the act is adopted. This is also the case in the second and third pillars.

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Hence, when dossiers are treated according to the co-decision procedure where the EP is more involved, this also ensures a higher level of legislative openness. What is more, the Council’s own rules of procedure commit the institution to open discussions at the ministerial level at all stages of the co-decision procedure (cf. Article 8(1)). In contrast, open discussions under other procedures are limited to the first debates on new and important dossiers and otherwise if the Presidency and Coreper decide to open the ministerial meetings (Article 8(25)). For the public discussions at the ministerial meetings, the Council provides internet video streaming which makes it possible for everyone with a computer and internet access to follow the sessions. In addition, the Council’s practice of publishing voting charts that are attached to the legislative dossiers ensures intelligibility of ministerial voting. Altogether, when comparing to the current treatment of co-decision dossiers with the Council’s openness record in the past (prior to the Brussels Presidency Conclusions and the subsequent revision and improvement of the rules of procedure in 2006) as well as under the present rules concerning other decision-making procedures, openness is considerably better under co-decision than under the other EU decision-making procedures. While these improvements are acknowledged and underlined as important steps in the right direction of facilitating the formation of an informed public opinion, the sections below will further substantiate these findings in accordance with the other conclusions that can be drawn from the evaluation. More precisely, the democratic qualities of co-decision must be balanced against the democratic deficits of its actual practice. The formal set-up of co-decision – sequencing of decision-making stages From a deliberative democratic perspective, decisions should not be taken before a proposal has been properly discussed and examined from all relevant perspectives. Political choices that will be binding on citizens require argumentative testing. However, when positions have been presented and considered, an element of institutionalised bargaining is legitimate and acceptable in order to ensure that decisions are also taken efficiently. Bargaining and subsequently voting are mechanisms to reject or adopt the relevant legislative proposal when time is up and the parties have not reached a consensus. Moreover, voting can also represent a formal confirmation of a process where a consensus has been reached. Generally, the point is that the sequencing of policy-making stages is central. When we look at the formal set-up of the co-decision procedure in Article 251, the lack of strict time limits gives the first reading an explorative character providing both the EP and the Council the opportunity to get familiar with the content of the proposal. It facilitates the possibility to discuss and reach an agreement on what is normatively and technically at stake and to collectively form their positions before a final decision is taken in each legislative house. In this sense the formal rules open up for deliberation prior to decision-making. The second reading is more structured with regard to time limits, but debate is still possible. What is more, if proceedings under the second reading are difficult but agreement is nevertheless conceived to be within reach, recourse to the

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Conciliation Committee opens up for a Treaty-regulated bargaining setting between the EP and the Council with the Commission as facilitator and broker. The reason why the Conciliation Committee can be seen as a legitimate bargaining setting is because it appears towards the end of the procedure when the positions and options are well-known to the participants and to the public, but where final agreement has not yet been achieved. Moreover, even if its members are not composed of elected representatives only, the Conciliation Committee can still be conceived as a legitimate bargaining arrangement. In this way, it provides a legitimate mechanism to induce both efficiency and effectiveness in co-decision-making. The third reading does not open for debate, but a presentation of the agreement reached in the Conciliation Committee. Hence the third reading procedure in both the EP and Council respectively amounts to mere voting on a (reversible) piece of legislation. Again, the formal set-up of the co-decision procedure with an explorative potential in the first reading, more structured proceedings in the second reading with time for both debate and possibly regulated inter-institutional bargaining towards end of the process, make a third reading solely devoted to voting acceptable. In sum, the Treaty-regulated set-up of the co-decision procedure ensures that deliberation can precede bargaining and decision-taking. Moreover, the sequencing of the procedure allows for intelligible stages of decision-making. However, the established practices of co-decision-making manifested by the trialogues obscures the democratic qualities of the formal Treaty set-up; thus, as we shall see below, render them merely potentials. Intelligibility of procedure and separation of powers A similar pattern can be found with regard to the ex ante indicators figuring under the fourth criterion regarding mechanisms to neutralise asymmetrical power relations. With regard to the first neutralisation indicator – intelligibility of procedure – the description of the co-decision procedure in Article 251 is, I would argue, fairly comprehensible for citizens and other interested parties. This point is also supported by the fact that the Commission, the EP and the Council all provide easily accessible and comprehensible co-decision guides which explain the basic functioning of the procedure. Article 251 delineates a predictable and consistent procedure in the sense that it describes the three readings, its various time limits, voting rules and how it is possible to conclude a dossier at every reading. Moreover, Article 251 describes the actors involved and how the Conciliation Committee shall be organised and composed. In this sense, we may argue that codecision is an intelligible legislative procedure. This is also the case when we consider the principle of separation of powers. When seen in isolation from the larger EU system, the legal demarcation between the Commission as the policy-initiator and proposer, the EP and the Council as the co-legislative houses and the ECJ as the judicial branch is respected. However, when the larger EU inter-institutional relations and powers are under

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consideration, the EU system allows the Council another go on co-decision dossiers since the same national experts often sit in both the Commission expert groups as well as the Council working groups (and later in the Comitology committees). Hence, again it can be argued that the formal arrangement as described in the Treaties is conducive to a democratic organisation of co-decision-making, but that the established processes and practices weaken the democratic quality intended by the formal provisions. Judicial review and Ombudsman as additional accountability and justificatory settings With regard to the two ex post neutralisation mechanisms we saw that both the ECJ and the Ombudsman offer settings where decision-makers can potentially be held to account. As a first pillar legislative procedure, co-decision dossiers can be tried before the ECJ if (natural and/or legal) persons see their rights violated. Here, the Court has jurisdiction and is authorised to review not only compliance with procedural rules, but also whether the content of co-decision dossiers are in line with Community law. As a neutralisation mechanism, the Court functions as a setting where decision-makers have to provide reasons and justify their conduct/decisions in a publicly accessible manner. Hence, in knowing that they may be tried before the Court after an act is adopted can have a disciplining effect on the actions of decision-makers during the legislative procedure. Even if only a soft law mechanism, the Ombudsman institution has a significant impact on opening up decision-making processes in the EU. The EO has steadily carved out a place as an important complaint organ, especially with regard to procedural aspects such as lack of openness. In such cases, plaintiffs can get their case reviewed in an easily accessible and inexpensive manner. In this sense, the EO offers a setting where individuals with limited means can get their complaints reviewed (given that the matter falls into the category of maladministration). Both the Court and the Ombudsman thus provide third party scrutiny that can intervene between decision-makers and those affected when the latter see their rights violated by co-decision dossiers. They are both procedural mechanisms that function as limitations and incentives on decisionmakers’ actions so that they are more likely to behave in accordance with Treaty provisions. In this sense, the Court and the EO have pre-emptive effect. In addition and equally important from a deliberative democratic perspective, both the Court and Ombudsman represent publicly accessible settings where decision-makers must explain and justify their positions. We could also stretch this point even further and argue that even in cases where the plaintiffs do not succeed, the proceedings of the Court as well as the Ombudsman put the burden of argument and justification on the decision-makers rather than on the plaintiffs. They ensure that single individuals and/or other legal persons do not have to stand up against the EU institutions directly, but are rather helped by an adjudicative third-party. Such mechanisms are important as a

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direct address by individuals and others can be very easy to just ignore at the EU level due to the very asymmetrical relationship between the EU co-decision institutions and single individuals and/or other legal persons. This is especially so in polities without a well-functioning media structure and public sphere. Democratic deficits These democratic qualities notwithstanding, the co-decision’s overall problem is that the abovementioned qualities are seriously weakened due to character and scope of informally established rules and practices. This pertains first and foremost to the extensive usage of the trialogues, but also how the Council is organised internally. More precisely, whereas the above shows that the formal set-up of the co-decision procedure clearly have democratic qualities, the way co-decision-making is actually conducted and practiced largely renders these qualities latent rather than materialised. The Council’s internal organisation – an obstacle to a democratic opinion- and will-formation process Above, it was argued that in order for co-decision to fulfil the first criterion both legislative houses must ensure an open setting conducive to the requirements of a democratic deliberative meeting place. As we have seen, the Council does not live up to its role as a democratic legislator according to this understanding. The problem is that it is primarily the lower echelons – the working groups, the Council Secretariat and Coreper – that take care of the daily work on co-decision dossiers. Hence the important collective opinion- and will-formation process prior to actual decision-taking is not in the hands of the people and their (elected) ministers, but rather the unelected Council officials. It may be that the agreements accomplished in these settings are reached in a deliberative manner, but they do not have democratic qualities and can only qualify for the category of deliberative legitimacy as introduced in chapter 2. At the ministerial level, on the other hand, the process is better described as an aggregation of preferences rather than a collective forming of a common position. In this way, Union citizens are deprived of a setting where arguments are presented, tested and justified in a publicly accessible manner. The meetings below the ministerial level are all closed and conducted in camera. Apart from provisional agendas, there are no working documents available from these meetings and it is only the Commission that has access to Council meetings. The EP and the public, on the other hand, are generally excluded from knowing what and how dossiers are discussed in the working groups and in Coreper. Consequently, the heavy influence of unelected officials renders the openness of ministerial meetings de facto less valuable from a democratic point of view. Open ministerial meetings function at best as settings where citizens can view the adoption of already reached agreements. In this way, the institutional interplay and division of labour between working groups/Secretariat/Coreper, on the one hand, and the ministerial setting, on the other, does not comply with the conditions for a

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democratic sequencing of deliberative tasks/moments as is the case in the EP since the Council officials have no authorisation to speak on behalf of affected parties. It is only the ministers who have the electoral foundation to be the citizens’ spokespersons, but in leaving almost the entire legislative process in the hands of the unelected officials, they fail to live up to the requirement of public justification. As argued in this thesis, it is not enough merely to be elected as representatives they must also earn their right to speak on behalf of citizens. This is only achieved to the extent that they are willing to explain and justify their decisions in a setting where the public can actually watch them ‘in action’. In other words, Council ministers are not in line with the requirement in the Dag Hammarskjöld slogan “Only he deserves power who every day justifies it” as the exercise of power is not satisfactorily fused with public justification neither at the EU level nor at the national level. The Council’s main challenge is therefore that there is no democratic process of collective willformation only at best a democratic voting or decision-taking moment: Unlike most other legislatures, the Council members do not pass policies according to a set of policy preferences publicly announced to the full population affected by these policies. It is thus often difficult for the constituencies to have a clear overview of all governments’ positions on a specific policy issue. There is much talk about the fragile status of the EP in the hearts and minds of European citizens, but they should perhaps have the same worries about the Council. It is difficult to ignore that the internal organisation of the Council suffers from serious democratic deficits which consequently also affect the democratic quality of co-decision-making. The indirect chain of representation is from the outset a weak democratic mandate. To function as a democratic legislator the Council should consequently be organised in a way that aims at compensating for this shortcoming, not the other way around where it shuns publicity and its obligation to justify decisions. The ministers do not even meet the legitimacy requirement on which the intergovernmental logic rests. Here, the ministers should at least comply with what the principle of indirect representation demands and have established a practice of reason- and account-giving in their respective constituencies at the national level. Instead, citizens are merely cut off with a press conference or statement towards the end of the process and this does not comply even with the minimum democratic requirements. The implication of the intergovernmental logic underpinning the Council’s organisational set-up effectively distorts the legitimacy of the ministers’ indirect chain of representation: Secrecy creates and reinforces the informational and capacity asymmetries which plague the relationship between national executives and national parliaments on European issues. It precludes national parliaments from having sources of information alternative to the accounts offered by national ministers... This renders it difficult not only to know what has actually been said in such meetings, but especially why decisions were adopted..

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In fact, the very basis on which the intergovernmental principle of indirect representation rests can itself be questioned. Many studies have shown that the Council is not so intergovernmental after all, but rather a highly integrated and supranational institution. Hence the principle of indirect representation is not enough to legitimise the ministers’ delegated powers which subsequently also renders the intergovernmental evaluation standard insufficient. This is not only detrimental for the supranational legislative process as we have been dealing with in this thesis. As mentioned above, it also seriously affects the national level and the national parliaments’ ability to conduct an informed and enlightened scrutiny of their government. Politicians and experts Some may find the conclusion on the internal organisation of the Council too harsh. They may side with the intergovernmental logic where the ministers work on delegated powers and where they are only accountable in their respective national constituencies. In this regard, it should be added that the second criterion of inclusion of affected and competent parties reflects an attempt to capture empirically the difference between the democratic and the epistemic dimensions of decisionmaking. In holding that affected parties’ representatives shall always have the upper hand, critics may argue that the claim I make here is too strong. Modern decision-making is complex, technical and knowledge-demanding. Elected representatives are not experts in all fields (even if the sectoral division of EP committees have fostered many quite specialised MEPs), but are politicians with general knowledge. In expert terms, then, democratically elected legislators are considered “...to be seriously deficient as lawmaking bodies. They often lack, among other things, the expertise, staffing resources, organisation, cohesion and flexibility needed for the making of quality legislation. Thus, in no European country does the elected body act as the exclusive legislator”. In other words, experts in a variety of fields are needed to ensure that decisions meet certain scientific and cognitive demands. Numerous experts are included and consulted in many ways ranging from single events with outside lobbyists to permanent sector bureaucrats in the Commission or the national experts in the Council working groups. For the internal organisation of the Council, the working groups, Secretariat and Coreper indeed contribute to much needed (efficient) problem-solving, technical expertise and the ability to reach agreement among a heterogeneous set of member states positions. Hence they also play an important role in co-ordinating collective action and in enhancing the epistemic dimension of co-decision dossiers which are also valuable to democratic decision-making. However, from a democratic perspective the fear is that they become too powerful thus outmanoeuvring the elected generalists. As discussed above, this is a challenge in the Council. Here, the ministers play second violin to the working group, Secretariat and Coreper officials in the important opinion- and will-formation process prior to final decision-taking. The latter run the ‘daily show’ (much due to the fact that sitting in the Council is only a part-time job for the national ministers) and they also influence the way issues are formulated and talked about. As we have seen, issues are framed in technical terms which are subsequently adopted also at the political level where ethical

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and moral dilemmas, political choices and conflicting positions should be clearly articulated and communicated to the general public in order to bring out the normative implications of policy proposals. This type of technical language sometimes also influences debates in the EP. However, co-decision dossiers are not merely apolitical and uncontroversial and the application of a technical language contributes to ‘neutralise’ and ‘disguise’ the political salience and stakes from citizens and others affected. The plea for more early agreements has partly been justified on the basis that there are many dossiers that are merely technical and can thus more easily and efficiently be dealt with if they are just fast-tracked through in a first reading where they – from the Council side – are hardly dealt with by any elected representative. The fear of expert domination is not unique to the EU alone even if it is more critical at the European level due to weaker representative institutions to ensure democratic control. However, the Council’s problem is a general one, namely that: ...officials act on the basis of normative knowledge that is not regulated by democratic procedures. They use their ‘own’ perceptions and values or ‘internal’ professional standard when they evaluate societal problems. The question is from where the experts yield authorisation to deploy particular values when doing their job. Who has given them the right to act in this way and how can we know that they have applied correct values and valid knowledge?. In other words, the chain of democratically legitimate decision-making has here been turned up-side down as administrative power has not been democratically assessed and transformed into communicative power before the Council decides either to adopt or to reject a co-decision dossier (cf. chapter 2). The internal organisation of the Council hinders co-decision dossiers to be scrutinised by public reason because the balance between the politicians and experts tilts towards the latter to the extent that the fear of a self-programming ‘epistocracy’ or governance without democracy’ is imminent. This is also underlined by the fact that there are no possibilities to hold these officials accountable neither through elections nor in public debate. Hence the scope and extension of the Council officials’ involvement should not be mistaken as a democratically legitimate way of relieving the ministers of their heavy workload as the arrangement seriously violates the normative hierarchy between elected and non-elected actors. From the outset, the strong emphasis on respecting the normative hierarchy between representatives of affected and competent parties may seem a bit rigid. True, the consequence of upholding this emphasis is that in cases of conflict the views of elected politicians will always have to trump those of the experts thus also running the risk that the representatives of affected parties’ views may not offer the qualitatively best choices and thus not the most optimal outcomes for all those affected. This is of course not the desired outcome, but it is arguably the price that must be paid if we want to retain a certain level of democratic control of decision-making. Since we cannot anticipate all the consequences of a decision, we can never really be sure about what the best solution is. No one possesses complete information and knowledge – not even experts. Unintended consequences must

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always be factored in – sometimes they go in a positive direction, but very often also in a negative direction. Unelected and unaccountable experts cannot and should not be entrusted to dominate the majority of the opinion- and will-formation process or the last decision-taking word. It is, however, impossible to fully avoid that experts deal with issues that raise ethical and moral questions, but it is the way and the extent to which they are involved in Council decision-making process that is worrying from a democratic perspective. However, to decide exactly how the balance between politicians and bureaucrats/experts should be drawn is difficult and ultimately a task to be settled via public debate between Union citizens and politicians. In other words, if the Council insists on keeping its secretive working methods and privileges the ministers should be prepared to defend and sustain them in a public debate. The democratic deficits of the internal organisation of the Council does, however, not mean that dossiers are not tested argumentatively. Many studies show that the working groups and Coreper are settings where decisions are reached in a more deliberative way. The point is that this type of deliberation does not amount to a democratic test of arguments as the ministers are not involved and the meetings are not publicly open. Whereas the more deliberative and consensus-building method characterising the lower level working groups in the Council seemingly represents a strong candidate for what I labelled ‘deliberative legitimacy’ in the introductory chapters, the evaluative scheme and the subsequent assessment above clearly illustrate that this working method does not meet the requirement of democratic deliberation and should thus not be confused with democratic legitimacy. Having said this, the normative aspects and implications of experts and bureaucrats’ involvement in EU decision-making is, on the whole, still an under-developed research area that should be investigated and assessed more thoroughly. For instance, they do not as such have a ‘constituency’ to which their knowledge is attached, that is, they advocate and exercise theoretical and skill-based knowledge which is acquired through several years of education and training. On this basis, they could argue that their deliberations are mainly scientific and not political; that they decide within given parameters; that they are constrained by mandate, procedural rules and organisational setting; and that they are controlled by other colleagues. Hence even if the participation of experts and bureaucrats cannot, from a democratic perspective, dominate the decision-making process, the professional knowledge with which they contribute represents – in principle – a more general or universally valid kind that does not necessarily reflect and represent parochial or special interests situated in civil society, the market or the political system as such. It could perhaps rather be argued that their participation has been an important component for the development and stability of the constitutional state and that they in this sense represent important carriers of democratic values and principles. The more precise normative value of how experts and bureaucrats can and are contributing democratically in general and in the EU in particular can, however, not be decided in advance.

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The democratic challenge of trialogues It is not only the internal organisation of the Council that affects the co-decision procedure’s democratic credentials. Throughout the thesis, the impact of trialogues has been a topic in almost every chapter and it is now time to address them from a more overall perspective. In short, the problem with how the trialogue system functions today pertains to the scope and scale with which it now influences the co-decision processes. This results in the following democratic problems: Trialogues (i) interrupt the collective opinion- and will-formation processes in the EP; (ii) they keep crucial parts of the decision-making process away from the public eye and thus reduce the level of openness; (iii) they reduce the number of decision-makers; (iv) they are not composed of a representative selection of elected participants hence citizens cannot be sure that all positions have been voiced and taken into consideration; (v) they make the co-decision procedure less intelligible for citizens as the emphasis is on informal and secret meetings; (vi) they make it harder for citizens to know what decision-makers are deciding and hence also more difficult to hold them account; (vii) they (may) weaken the quality of dossiers. One of the democratic qualities of co-decision reported above was that the division of labour inside the EP is not violating the normative hierarchy between elected and unelected actors since it is, firstly, the MEPs who are involved in all stages of the decision-making process and, secondly, because the EP committees are representative of the EP as a whole. Moreover, the division of labour could be conceived as a sequencing of deliberative moments/tasks ensuring a democratic opinionand will-formation process in the EP. However, the evaluation also revealed that this internal process between committee and plenary is to a significant extent disconnected due to the constant pace of trialogue meetings. When committees and plenary sessions become less important this also deprives Union citizens and other affected parties of their right to justification. Thus, trialogues represent a serious obstacle to the democratic process of opinion- and will-formation process taking place in Parliament and hence to a large extent disqualify the democratic features of the formal codecision process discussed earlier. What is more, the impact of trialogues is exacerbated when agreement is reached in the first reading. The process is, as we have seen, even more informal at this stage and completely impermeable for citizens and other affected parties as the institutions have at this point not reached an official position. In this way, the trialogues circumvent the formal set-up of the EP which, in principle, at least ensures that there is one democratic deliberative meeting place where decision-makers defend their positions on a regular basis. However, the established practice of co-decision-making is rather that the scope and scale of trialogues keep the majority of important and decisive legislative discussions more or less constantly outside the public radar. Trialogues also harm the criterion of inclusion as there are only a handful of people present and neither the Council nor the EP participants constitute a representative selection of their respective houses. Rather, in the EP we have seen that the larger political groups have become more dominant as they are often occupying the key positions (rapporteurs, committee chair, group coordinators) and thus become decisive actors. In the Council, delegates from the country holding the Presidency

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dominate (i.e. officials from the working groups, Coreper, potentially the minister). From a deliberative perspective, the problem with closed settings under such circumstances is that the deliberation that may take place could be too narrow and fail to “...reproduce the pluralism of the public in the private”. Trialogues risk being dominated by ‘private reasons’ instead of ‘public reasons’ which means that the arguments presented are not arguments that all could generally accept if they were presented in a publicly open debate (i.e. egoistic and self-interested reasons). The problem is not necessarily that trialogues only contain a limited number of participants. This could be legitimate if they had been representative of the interests and positions in the EP and Council respectively and/or had the results of trialogue deals been properly tested in a publicly accessible manner after the meeting had taken place and before a final decision was taken. Instead, the composition of trialogue members challenges the principle of representation as we cannot be sure that all positions have been taken into consideration when, firstly, there is not a representative selection of MEPs and, secondly, when the Council is not represented by elected representatives. And with regard to the democratic testing of the trialogue outcomes, the assessment showed that these outcomes are often presented to the EP committees and plenary sessions as ‘take-it-or-leave-it’ deals and not as a starting point or basis for a democratic legislative process. As for the Council, the trialogue participants (that is, the permanent representative from the member state holding the Presidency) usually orient and consult the permanent representatives and not the ministers concerning the acceptability of a trialogue outcome. How can Union citizens trust that their positions have been properly voiced and considered under such circumstances? Whereas the interaction between the EP and the Council has increased significantly (at all levels) with the introduction of the co-decision procedure (Corbett et al., 2007: 242) and also improved the inter-institutional relations, this has seemingly happened at the expense of the intelligibility of the procedure. As we have seen, co-decision has been accused of being a complicated procedure where the protracted process of informal inter-institutional interaction through trialogues renders it very hard for the public to get a grasp what is going on during the process. The inclusion of elected representatives cannot compensate for the insulated and non-transparent procedural features because the latter deprives the citizens of the chance to put co-decision-makers to account. In this sense, the trialogue system is not a procedural feature that induces, but rather deters public reasongiving towards affected parties. What is more, the trialogues have seemingly also made co-decision more bureaucratised, encumbering political input as the focus is on reaching deals as quickly as possible and then present it to the EP and Council for approval. Whereas the institutions have done a lot to improve the relations between them, such as coordinating calendars, working methods and streamlining the functioning of the trialogues in the Joint Declarations, their relationship to Union citizens has been neglected. It could thus be argued that the trialogues make the EP and the Council more inwardlooking, minding their own deals and discussions thus ‘forgetting’ about the public’s right to know what they are up to. The effect is that the procedure could be conceived more as an inter-

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institutional battle between the EP, the Council and the Commission rather than a political battle over the best course of action as the citizens find it hard to detect what the political stakes really come down to. In other words, the institutions’ duty to identify and articulate politically salient issues and dilemmas in an open and easily understandable manner suffers. This is especially so concerning the commitment to close dossiers as quickly as possible in early agreements. The Joint Declarations underline efficiency and transparency, but whereas there are many paragraphs on how to ensure efficiency, the transparency and accountability aspects are merely mentioned not developed. Even if the Joint Declarations to some extent semi-formalise the trialogues, the Council and also some MEPs (mainly from the large political groups who are benefiting from current arrangements) are unwilling to overhaul and formalise trialogue rules and practices through an Intergovernmental Conference. They want to keep them as informal and flexible as possible because this enhances the opportunities for the key actors to influence the dossiers. What is more, there seems to be a general tendency within the EU at large to by-pass the formal procedure for Treaty reform and just use inter-institutional agreements (such as the Joint Declarations) to alter the formal, institutional set-up in a favoured direction even if this is not in line with Treaty provisions. Without the authorisation of an intergovernmental conference, the development and semi-formalisation of the trialogue system through the Joint Declarations has changed the character of the co-decision procedure from a sequential to a simultaneous process which in effect is violating the current Treaty provisions as setup in the Article 251. In turn, this has resulted in the situation that the trialogue system becomes a competing decision-making arrangement which largely empties the formal processes in the EP and the Council of legislative importance. There is yet also another, but related problem regarding the extensive usage of trialogues pertaining to how they affect the overall quality of co-decision acts. Whereas the trialogue system plays an important part in explaining the successful adoption of co-decision dossiers, the efficiency gained may backfire the whole system and challenge the democratic improvement represented by the increased involvement and competence of the EP in the Union’s overall decision-making. The reason for this is again first and foremost pertaining to the negative effect early agreements has on the democratic quality of co-decision acts. Prior to Amsterdam early agreement was not an option and most dossiers went all the way through conciliation which meant that the institutions’ positions and arguments were better known, firstly, because the EP and Council had by then actually formed a position and, secondly, because after the first reading more documents are accessible (i.e. the EP’s report, the Council’s Common Position etc.). Today, very few dossiers reach the conciliation stage, and even in a situation where the 2004/2007 enlargements significantly increased the number of participants and presumably also made it more difficult to reach agreement, the trend is still first reading agreements.

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However, “...although more readings are not required before agreements can be made, it was at many occasions stressed that the meetings last longer, and that the legislative process may have been prolonged somewhat with regard to the time spent – rather than the number of readings – on each individual proposal”. In other words, even if dossiers are concluded in first readings, it should not automatically be concluded that the decision-making process is always much more efficient if a dossier is closed at first rather than at second reading. The reason for this is, as we have seen, that there are no time limits in the first reading. The process can continue as long as the institutions so decide. Even if the argument is that early agreements are preferable because they contribute to efficient legislative processes, it has also been shown that the reason why the institutions prefer and are in the majority of cases also able to close the process after the first reading, is because the decision-making situation is more flexible (but also more undemocratic) under the first reading. The absence of official EP and Council positions which function as a constraining factor on the key actors’ scope of independent manoeuvring in the second reading is a main aspect in this regard. However, the flexibility of the first reading is – as we have seen – also among the reasons why the usage of trialogues so early in the decision-making process is severely undermining the conditions for democratic legitimacy at this stage. In this relation it should also be questioned whether reaching a deal early in the process only among a handful of people who meet in secrecy is rather a counterproductive means to ensure qualitatively good decisions. The extensive usage of trialogues may backfire as it becomes less open to new ideas and risks the recycling of opinions and positions which in the longer run can affect the quality of and subsequently jeopardise the legitimacy and trust in EU co-decision acts. What seems to be forgotten when urging for early agreements is that public policy-making must be able to master the difficult task of simultaneously balancing efficiency and democratic legitimacy. Hence there are good reasons for arguing that the EU legislative processes can gain from striking a better balance between these two standards and take the time it takes to go through the formal stages of decisionmaking in a way that also the citizens can follow instead of just fast-tracking legislation through the EP and the Council ministerial settings as quickly as possible. In sum, a democratically legitimate procedure may turn out to be more efficient in the longer run because it produces qualitatively better and thus more stable outcomes. Co-decision acts as working agreements? The main conclusions that can be drawn from the analysis are two-fold and closely inter-linked. On the one hand, the formal rules of co-decision-making are in many respects compatible with democratic decision-making. Had the Council’s internal organisation been improved, the procedure could have represented a promising example of democracy beyond the nation-state. On the other hand, the established rules and practices, manifested in the trialogue system renders passive the democratic potentials characterising the formal procedural rules. When the main part of the decision-making process takes place in trialogues and not in the formal institutions, co-decision becomes ‘committee governance’ and loses its kernel of democratic government.

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Based on the above evaluation, it can, in other words, not be argued that co-decision acts are likely to meet the quality of a working agreement. As shown in chapter 2, a working agreement is an outcome that is supported by reasonable reasons, that is, reasons that are “...inter-subjectively justifiable...”, they are different, but “...become understandable and mutually acceptable...” through deliberative processes. In other words, reasonable reasons are those reasons that have been tested and withstood critique in a publicly accessible manner and the only way to determine whether a decision-making procedure comes close to complying with this standard is if it meets certain procedural criteria such as those developed in this thesis. As we have seen, the procedural conditions underpinning co-decision-making do not ensure a proper testing of dossiers before they are adopted. Rather, the process of co-decision-making is largely held behind closed doors and/or conducted by a handful of people – some elected, but also a significant number of unelected actors. These actors cannot be assumed to represent the plurality of views that characterise modern societies. This is clearly the case under early agreements, but also second reading agreements suffer from the extensive usage of trialogues. Under these conditions it is consequently unlikely to assume that co-decision acts are supported by mutually acceptable reasons. But maybe we are judging co-decision too hard? In other words, is the working agreement a too demanding standard for a supranational decision-making procedure such as co-decision? In this regard we could reiterate the rhetorical question posed in the first chapter: If Union citizens were asked to actually give their consent to co-decision acts, what kind of conditions must the procedure ensure in order to make it likely that citizens will find such acts acceptable and thus legitimate constraints on their actions? What reasons could they have to obey co-decision acts? Most likely they will not all agree on one single democratic principle, but rather invoke different, but equally valid understandings of how co-decision should be democratically organised. Some would perhaps argue that co-decision should be organised according to an understanding of democracy as popular sovereignty based on the principle of one person, one vote. Others would defend the idea that democracy is defined according to how convincingly political organs have justified decisions towards affected parties. Others again would defend a principle of delegated powers where certain political organs have obtained competence to act on behalf of the collective such as the arrangement of national representation of member states in the Council. Seen from this vantage point, the working agreement seems like a suitable standard for assessing the codecision procedure as it can accommodate all the above interpretations of EU democracy at the same time – but only as long as the various conceptions of democracy have themselves been discussed and vindicated as mutually justifiable in a democratic process. Since its inception with the Maastricht Treaty, the co-decision procedure has become more important both with regard to expansion of legal bases as well as an overall increase in number of acts taken under this legislative framework. With the potential ratification and implementation of

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the Lisbon Treaty, the co-decision procedure will become the ‘ordinary legislative procedure’ of the EU covering an extended number of policy areas of which have hitherto been conceived as too sensitive to let the EP have considerable influence, such as agriculture, fisheries and various areas within justice and home affairs. The growing number of policy areas will most likely increase the inclinations to close dossiers after the first reading in order to increase efficiency. Under the work of the Convention on the Future of Europe it was argued that co-decision “…was proving successful in reinforcing the legitimacy of European legislation and should become the normal way EU laws are adopted”. Even if the co-decision procedure has an aura of democratic legitimacy due to the involvement and participation of the EP, we should urge a bit of caution against such a presentation of the procedure. The present evaluation has revealed that this picture must be balanced against the democratic deficits of the co-decision procedure. If we compare co-decision to the to the other EU decision-making procedures, it is at least easy to tell that these procedures are not democratically legitimate. In this sense, they have at least a certain sobering quality of realism. In contrast and put bluntly, we could argue that they way co-decision functions is sometimes more precisely described as a technocratic procedure in democratic disguise. This is not a promising prospect for democracy beyond the nation-state. The evaluative framework and the way ahead In this thesis, the focus has been on discussing and assessing the democratic qualities and shortcomings of the co-decision procedure. In this sense, the present study fills a gap in the academic literature on co-decision which has first and foremost been concerned with the issues of how co-decision affects the relative inter-institutional power relations, how to explain institutional change and/or how to understand the general developments of co-decision-making. Whereas one may argue that these debates indirectly touch upon democratic issues for instance by investigating the status of the EP, they do not provide an analytical framework that facilitates a discussion on the democratic credentials or shortcomings of the co-decision procedure. In other words, these studies do not answer the question of how we can know democratic government when we see it. The evaluative scheme developed in this thesis both provides a standard (i.e. working agreement) of what should be expected of a democratic outcome as well as how to achieve and/or ’measure’ whether a decision-making procedure complies or falls short of meeting the standard (i.e. the criteria and the indicators). In this sense the thesis contributes to make the academic debate on the democratic merits and shortcomings of co-decision-making more tangible. It could also be argued that it provides a more concrete answer to Union citizens on when and why there are good reasons and when and why there are less good reasons to obey and respect EU law. In sum, the thesis contributes not only to make the debate on co-decision richer, it also makes it more nuanced. We now know how the co-decision procedure ‘scores’ with regard to democratic procedural qualities, but how well did the evaluative scheme itself perform? As argued above, an important aim of this thesis is not only to assess the co-decision procedure, but also to contribute to the

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‘operationalisation’ of deliberative democracy. In the final paragraphs, the task is therefore to consider the merits and shortcomings of the evaluative scheme. What can be learned from looking at procedural qualities? And where do we go from here? Firstly, the evaluative scheme shows that deliberative democracy is neither utopian nor too abstract. The criteria were all operationalised into indicators that are clearly demanding, but, under favourable empirical conditions, not impossible to realise given that there is political will. What is more, both in the process of developing the evaluative scheme and in the following assessment, I have sought to underline that deliberative democracy is not merely about deliberation, but is rather to be seen as complementing other decision-making mechanisms (such as bargaining and voting). However, even if deliberation is not a sufficient mechanism to ensure democratic decision-making, without it, bargaining and voting will not function in a democratically defensible manner. In sum, “...the proper idea of feasibility ought to be a normative one: it entails neither the surrender of the original ideals of deliberative democracy nor the mere accommodation to existing institutional and social facts”. Even if readers may disagree with the way I have developed and operationalised deliberative democracy in this thesis, the argument that this model of democracy is unfeasible can consequently not be upheld. Secondly, the main assumption underpinning this thesis is that democratic legitimacy is procedural and determined by the way decisions are reached. This does not mean that the quality of outcomes cannot be evaluated independently of the procedure. Outcomes can be assessed for how just or unjust, effective or ineffective etc. they are (i.e. according to other standards), but their democratic quality can only be determined by assessing the conditions under and the processes through which they were achieved. As argued in the introductory chapters, many EU studies have focused on the deliberative aspects of EU decision-making, but this does not mean that the normative quality we attach to agreements or practices characterised by deliberation is always the same. My argument was that without distinguishing properly between the different types of conditions under which deliberation takes place, we may wrongly overestimate the normative credentials of deliberatively reached agreements and mistakenly conclude that they automatically also have democratic quality. In underlining the difference between the role and participation of actors representing the views of affected parties (elected politicians) versus actors representing competent parties (experts, bureaucrats), the analytical framework is capable of conceptualising more clearly the conditions under which it is possible to expect democratic deliberation to occur rather than merely elite/expert deliberation. Moreover, the evaluative framework is also equipped to show how and why it is not enough to include elected representatives, but that it is the level and type of involvement of these representatives that matter: “Only he deserves power who daily justifies it”. In other words, we cannot take for granted that just because the EP was included as a co-legislator on a par with the Council this will automatically make EU decision-making more democratic. Including the EP is not

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a guarantee in itself that the MEPs will behave democratically. We can also not simply assume that the ministers meeting in the Council can be conceived as channels where the views of affected parties (i.e. their respective national constituencies) are voiced. Moreover, the evaluative framework provides the conditions for showing when co-decision acts are satisfactorily subjected to democratic scrutiny and when unelected participants become too dominant and autonomous to be compatible with democratic decision-making. Thirdly, a central topic in this thesis has been the relationship between the more open, formal setup of the procedure versus the closed, informal (or semi-formal) trialogue structure. The evaluative framework brings to the forefront the normative dilemma inherent in this dualism. It takes us some way in specifying the conditions under which closed settings can be legitimate and when they are violating democratic principles. We have seen, that even though the Conciliation Committee did not fulfil the conditions for a democratic deliberative forum, it could be conceived as a legitimate despite the fact that it is closed to the public during session. The reason for this is because it provides openness ex post, because it appears towards the end of the procedure where positions are already known and because the EP’s delegation is (more or less) composed of a representative selection of Parliament as a whole. The weakness of the Conciliation Committee is consequently the Council delegation as only the Presidency is represented at the minister level. The point is that the evaluative framework provides us with some tools to determine when a closed setting such as the Conciliation Committee is legitimate. The same tools also helped us to evaluate the trialogues where it was shown that the procedural qualities are largely incompatible with democratic decisionmaking. However, even if the trialogues fail in democratic terms, their existence and salience in co-decisionmaking indirectly raises an important issue concerning the apparent need also for more sheltered settings where decision-makers can speak more freely. There is a general perception both by many of those involved in as well as observers of co-decision-making, that trialogues are vital in order to reach agreement. More precisely, it is pointed out that the advantage of trialogues lies in the institutional conditions setting up the meetings: Attendance is limited and the participants often know each other quite well, meetings are held in secret, no minutes or verbatim records are taken and hardly any information leaks out to the public prior or during the process. Trialogues function as flexible settings where actors can speak freely and honestly, where they can sound out differences and test alternatives without being held to account immediately after the meeting is over. In this sense, the trialogues induce trust among the participants which helps the process of reaching agreement. These qualities, it is argued, contribute to facilitate agreement and thus the successful adoption of co-decision dossiers. The issue of how to balance the relationship between open and closed settings and the alleged need for the latter, link into the broader debate on publicity’s place in democratic decision-making. This debate is also important for deliberative democracy. Moreover and as mentioned in chapter 2, it is

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often pointed out that deliberation is fragile and difficult to achieve. One important reason for this is exactly because it is dependent upon a certain level of trust and confidence. In order for deliberation to function the actors must dare to believe that the other actors act truthfully and are actually interested in reaching agreements where the best argument is the decisive factor. In short, “Trust is both the pre-requisite for deliberation and the result of deliberation”. From a deliberative democratic perspective, deliberation is also assumed to ensure rationality and quality of decisions and many argue that publicity is not necessarily or always compatible with this aim. Some empirical studies have shown that open settings often have a negative influence on the quality of deliberation The argument is that publicity seems to trigger rhetoric, demagoguery and manipulation and the rationality of arguments thus suffer. Chambers labels this ‘plebiscitory reason’. In contrast, closed arenas often invoke the opposite as it is easier for participants to respond to the content and quality of each other’s arguments when they are not constantly confronted with media pressure and public opinion polls. It thus seems pertinent to be attentive to the conditions under which trust and confidence can be nourished and protected. In a complex and heterogeneous polity as the EU where a common political identity is (still) lacking trust is found especially wanting. On this background, the trialogue system could be conceived as a valuable means to ensure trust-building among the decision-makers. Hence, perhaps this makes a legitimate need for closed settings as they can provide the conditions for trust-building and thus more efficient (speed), effective (ability to reach agreements) and rational (ensuring quality of) problem-solving which are, after all, also important for a functioning democracy. It is often argued that closed settings are so successful (and flexible) because they, according to involved actors, are informal (cf. Council’s reluctance to formalise trialogue rules). Hence the contention among participants seems to be that the more informal a setting is, the more successful it is at reaching an agreement. As we can see, several issues are intertwined here (i.e. rationality, legitimacy, efficiency, effectiveness, trust etc.). The question is how and when, more precisely, it can be argued that closed settings have a legitimate place in a democratic decision-making process. As argued, the evaluative framework takes us some way in providing the tools to answer these questions, but more research is needed in order to specify and disentangle the conditions under which closed and more informal settings can potentially be justified democratically. On a general level, Warren (2007: 286) argues that it is the purpose or goal of the setting that should decide the level of openness. Closed settings could be legitimate in situations where actors search for common ground and where a shielded setting is a means to reach goals that can otherwise not be achieved. However, the main message conveyed in this thesis is that when the purpose of a setting is the adoption of public policy, secretly reached agreements must at some point be tested and justified in a publicly accessible manner. In other words, even if more shielded and informal settings can have a legitimate place in public decision-making, the balancing act between the open and formal versus the closed and informal should not tilt towards the latter. Privatising public policy-making is never compatible with democratic government.

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18. Extractos de ‘European Governance: Executive and Administrative Powers under the New Constitutional Settlement’, de Paul Craig, 4 (2005) ICON, pp. 40739

The interinstitutional balance of power within the European Union (EU) is central, indeed crucial, to the proposed new constitutional order when viewed from the perspectives of legitimacy/democracy and efficacy. It is not surprising, therefore, that this topic has been contentious. Nonetheless, the member states agreed to the Treaty establishing a Constitution for Europe at the Brussels European Council in June 2004. The discussion that follows will take account of the changes made to the provisions concerning executive power by the 2003 intergovernmental conference (IGC). Section 1 of this article begins by examining the process in the convention for deliberating on the institutional aspects of the draft constitution. This is followed in section 2 by an analysis of the differing issues relating to executive power considered by the convention. It is clear that the constitutional treaty embodies a regime of shared executive power; section 3 considers how this might operate in relation to different aspects of the executive function. The focus then shifts in section 4 to discussion of the provisions relating to executive power from the perspectives of principle and pragmatism. The final sections of the paper consider the regime of shared executive power in terms of legal and political accountability. (…) 3. The disposition of shared executive power in the EU constitutional order: The reality of power sharing Shared executive power has been retained in the final constitution. This does not tell us who will and should do what, nor does it tell us how the component parts of the executive will interrelate in practice. The answers to these issues will not be known until we have experience as to how the system will operate. We can make headway, nonetheless, on the information currently available. The discussion is best conducted by distinguishing different aspects of executive power. 3.1. The setting of priorities and the planning of the legislative agenda 3.1.1. The legal framework We may begin by looking at the legal provisions of the constitution as they relate to the European Council and the Commission respectively.

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In relation to the European Council, the change in article I-21 from article 4 TEU was noted earlier. The constitution provides that the European Council shall define the EU's priorities as well as its general political directions. This language is mandatory, and the additional task of defining the EU's priorities is not expressly qualified by the adjective "general." It might be open to the European Court of Justice (ECJ) to read the word "general" into the text with respect to priorities, but nothing requires this interpretation. The formulation makes sense as it stands: if the framers of the constitution had wished to limit the European Council they could have said "and shall define ... its general priorities." The connection between the extended tasks of the European Council and the president's role is obvious: the president must, inter alia, chair the European Council and drive forward its work. The work of the European Council now includes setting priorities for the EU, and hence the president will have the obligation to drive this forward. These legal provisions are a classic example of law catching up with political reality, given that the European Council has been playing an important role in relation to priorities for a considerable length of time. In relation to the Commission, the main legal provision is article I-26(1), which provides, inter alia, that the Commission shall initiate the EU's annual and multiannual programming with a view to achieving interinstitutional agreements. Thus while the Commission is accorded a general right to initiate particular pieces of Union legislation, it also has the right and duty to initiate the Union's more general programming strategy. The language of article I-26(1) serves to reinforce the sense of shared executive power. We need to understand the status quo ante to determine how far article I26(1) signals a change. The preexisting position may be summarized as follows. The Commission produces its annual work program in the autumn of the year before it is to take effect. While this program is designed to influence the EU's policy agenda, the extent to which it achieves this goal should not, as Nugent states, be exaggerated. This is, in part, because the work program is determined by preexisting commitments and, in part, because Council presidencies have their own work program/priorities that influence the Commission agenda. The Council will establish its own annual work program at the beginning of each year, although, as Hayes-Renshaw and Wallace note, this will be influenced by the Commission program, and by external events. The Council has, since the Seville European Council, developed a multiannual program. The first such program was produced in 2003, and the process is regulated by the Council's rules of procedure. These rules provide for the GAC to recommend to the European Council a multiannual program for the next three years, based on a joint proposal drawn up by the presidencies concerned in consultation with the Commission. In light of this multiannual program, it is for the two presidencies that hold office in the following year to submit jointly a draft annual program for that year. It is unclear how far article I-26(1) is intended to alter the previous legal landscape. The "strong" view would be that the Commission is in the driver's seat in relation to the annual and multiannual programs. Article I-26(1) is framed in terms of the Union's annual programming, not just the

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Commission's. It could be argued, further, that the Seville strategy, whereby the Council develops its own, formal multiannual program, would be inconsistent with article I-26(1). The Commission, in fulfilling its remit to initiate the annual and multiannual strategy, will undoubtedly engage in detailed discussions with state interests and those of the EP. The "alternative" view would acknowledge the Commission's right to initiate an annual/multiannual program for the Union but would maintain that this is not the exclusive method whereby such strategic visions are to be developed. It would, therefore, still be open to the European Council to frame its formal program, with the caveat that the Commission document should be taken into account. The strong view is probably more consonant with the wording of the constitution, although the alternative view may accord better with political reality. It is clear that the legal provisions affirm a regime of shared executive power. The very fact that the European Council's tasks are defined so as to include setting the priorities for the Union necessarily empowers the president of the European Council. It is impossible to argue in legal terms that this should be the exclusive preserve of the Commission; the same point is underscored by the fact that the Commission is empowered, not to impose a fait accompli but, rather, to initiate multiannual programming, with a view to securing interinstitutional agreement. It should also be recognized that the relevant legal provisions are delicately balanced and that they offer a measure of comfort to the Commission as well. Thus, while the priority-setting task of the European Council is not qualified by the adjective "general," it can be argued that the European Council cannot initiate its own formal multiannual program, since this would trespass on the Commission's power of initiation. In that sense, it is for the Commission to factor the European Council's decisions about priorities into the annual and multiannual programming strategies for the Union as a whole, the initiation of which remains a Commission prerogative, explicitly mandated by the constitution. 3.1.2. The political framework We may turn now to the issue of how the European Council and the Commission will interrelate in practice when setting the policy priorities and agenda. It is likely that the president of the European Council will exert greater influence over priorities and the legislative agenda than before, because the office may be held for a term of up to five years. Thus the president will be able to develop a vision for the EU that was not possible with the sixmonth rotation system. It is also to be expected that successive presidents will wish to leave their mark on the EU, chiefly in the form of the agendas that they will press for during their terms of office. Institutional support will be of importance. The European Council has not hitherto had an institutional support mechanism to rival that of the Commission, but this has not prevented it from having significant input into the Union's development. The constitution provides that the European Council is to be "assisted" by the General Secretariat of the Council of Ministers. It would be

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surprising if this arrangement did not blossom into suitable institutional support to meet the needs of the new European Council. Having said this, it is clear, nonetheless, that the Commission--and its president--will continue to be of great importance in setting the EU's overall agenda. It is the commission that is to initiate the annual and multiannual programming with the aim of securing interinstitutional agreement. The Commission president will cooperate with the president of the European Council in ensuring the preparation and continuity of the work of the European Council. The Commission president will be able to rely, moreover, on the considerable influence of the Commission bureaucracy. 3.1.3. Conflict, cooperation, and coherence We can, however, press further in our assessment of shared executive power in light of the criteria of conflict, cooperation, and coherence. The relationship between the presidency of the European Council and the Commission will evolve over time. But it is interesting to reflect on this relationship, now, through the lens of conflict/cooperation, in order to see which of these is likely to predominate and, also, to reflect on the implications of shared executive power for the coherence of the EU's agenda. The worst-case scenario is that there will be conflict between the European Council and the Commission, and that this will lead to interinstitutional tensions reminiscent of those that beset Council--Commission relations in the late 1960s and through the 1970s. The result would be that the coherence of the EU executive agenda would suffer to such a degree that any agreed initiatives would be partial and fragmentary. However, we should also recognize that there are numerous incentives for the two players to cooperate and to develop a coherent agenda. There are a number of reasons why this is so. The first is that it would be detrimental to the EU if interinstitutional tension were to lead to a failure to develop a coherent agenda; such a consequence would be in the interest of neither player. Both would be held responsible, regardless of whether one was "objectively" more to blame than the other. A second reason is closely related to the first. If shared executive power fails, then the consequences for the powers of both presidents will be uncertain. Each might hope that it would lead to future allocations of executive power being more unequivocally in their favor and, indeed, the future disposition of power might gravitate toward a single locus of executive responsibility, but the beneficiary would not be readily predictable. It might be the president of the Commission, but it might be the president of the European Council, along the lines of the Giscardian vision presented to the convention. This uncertainty will be a factor causing the players to be inclined toward cooperation rather than conflict and intransigence.

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The respective constituencies of the president of the European Council and the president of the Commission might be a third reason engendering cooperation between the parties. The fear of conflict is based, in part, on the assumption that each will lead a united team with views strongly opposed to that of the other's team. The reality is more interesting. The president of the European Council will undoubtedly occupy a powerful position. Nonetheless, the interests of the president's immediate constituency, viz. the member states, will not be homogeneous. We know that the small states fear domination by larger neighbors and feel that they might be better protected by the Commission. Nor should it be presumed that the larger member states necessarily have an identity of interest on the substantive direction of EU policy. The priorities that emerge from the European Council are, therefore, likely to be the result of compromise among the member states. While the European Council may be intergovernmental in institutional terms, it would be mistaken to think that this will necessarily translate into intergovernmentalism and states' rights in relation to the substantive direction of EU policy. The Commission president's constituency, under the new constitutional order, is equally interesting. The incumbent will have considerable power. The President, however, may also face contending pressures from his or her constituency. The indirectly elected president will have to take account of the interests of those in the EP who voted him into office on the promise or expectation of certain policy initiatives. On the other hand, the Commission president will be wary both of alienating those in the EP of a different political persuasion and of offending state interests if the president hopes for a second term. There may also be constraining influences exerted by the other commissioners. It would be surprising if they did not reflect some genuine diversity of opinion as to the EU's priorities. This diversity will play out in the multiannual agenda. It will be for the Commission president to balance the legitimating force that this can bring to the EU's agenda with the need to fulfill the expectations of the EP party or coalition that puts the president into power. The modus operandi of the European Council and Commission in the past is a fourth factor that provides an indication of likely cooperation in the future. They have worked symbiotically and to good effect on many issues, especially since the passage of the Single European Act (SEA). The Commission has frequently fed the European Council policy initiatives that it wished to advance and gained the European Council's imprimatur. The Commission's shift in thinking about the strategy for the single market in the 1990s is but one example of this. Winning the European Council's approval for the general direction of policy in a particular area facilitates the Commission's task when it must fashion specific legislation to put that policy into effect. It is to be hoped that this cooperation will not change under the new constitutional order, notwithstanding the increased power of the president of the European Council. The new relationship prevailing between the Commission and European Council, in the context of setting priorities and the multiannual agenda, may indeed lead to greater overall coherence than before. The European Council's

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contribution to the larger policy agenda has been tangible but, at times, fragmented and unpredictable due to of the six-month cycle of the presidency. The five-year presidency of the European Council is intended to allow for better planning and greater coherence of programming than before. The final factor in engendering a climate of cooperation rather than conflict is law. The legal provisions of the constitution embody shared executive power, not just in the instantiation of the extended presidency of the European Council alongside the president of the Commission, but also in their respective powers with regard to the setting of priorities and multiannual agendas. These powers are delicately balanced in the manner adumbrated above. The European Council has the express power to define priorities, while the Commission retains the right to initiate the multiannual agenda with a view to securing interinstitutional agreement. Neither side, therefore, can use the law to argue that it should have exclusive executive power but both can resort to legal argumentation to delimit the sphere of executive power possessed by the other. 3.2. Development of policy choices through the European Council The discussion thus far has focused on the way in which shared executive power might operate in relation to the setting of the EU's priorities and the planning of the agenda. It is equally important to consider how shared power will play out in relation to the development of policy choices. The role of the president of the European Council within the Council is especially important in this respect. We have already seen that the Giscardian plan and the proposals made by the U.K. in January 2003 accorded the president considerable control over the Council. The totality of these proposals was not incorporated within article I-24. Nonetheless, the role of the president of the European Council within the Council continued to concern the Commission, which feared an increase in the president's influence. Thus, in its comments on the draft constitution it sought to confine the president's duties to chairing the European Council and representing the Union in the CFSP, while excluding the president from organizing the work of the Council. The EP expressed similar concerns. Although the more far-reaching Giscardian plan was not incorporated in the constitution, the president of the European Council, nonetheless, may be able to exert greater influence over the development of policy initiatives by virtue of his role in the GAC. This council formation is of central importance: It is charged with ensuring consistency in the work of the other council formations, and with preparing and ensuring the follow-up to meetings of the European Council. The centrality of the GAC explains some of the maneuvering by key players, as there were member states that wanted the president of the European Council to preside over the GAC as well. The Commission sought to modify the constitutional provision so that the GAC's oversight of consistency would be carried out in conjunction with the Commission. Neither side won out. The

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presidency of the GAC is, according to article I-24(7), to be held for six months by each of the members of the team presidency. The Commission did not secure a formal role for itself in the consistency tasks of the GAC vis-à-vis the work of the different Council formations, although it may exercise an informal role. Nonetheless, the president of the European Council has a key role in the work of the GAC, and this role was strengthened by the IGC. Previously, the GAERC had the obligation to prepare for European Council meetings and ensure the follow-up of their decisions, as mandated by the Council's rules of procedure. The agenda for the European Council was drawn up by the GAERC, based on a proposal from the presidency, and, normally, the presidency would also prepare and submit position papers on key issues on the agenda. This approach was incorporated in article I22(2), which stated that the president of the European Council should, in cooperation with the Commission president, ensure the preparation and continuity of work of the European Council, on the basis of the work of the GAC. The draft constitution provided that the GAC should, in liaison with the Commission, prepare and ensure follow-up to meetings of the European Council. The obligation placed on the GAC to ensure follow-up to the European Council would, even in this version, have enhanced the power of its president, since he or she could point to the GAC's constitutional obligation to carry forward European Council policy. The position of the president has been further enhanced by the revised version of article I-24(2), which provides that preparation and follow-up to meetings of the European Council are to be carried out in liaison with the president of the European Council as well as with the Commission. Thus, the influence of the president may be felt directly and indirectly. The direct impact is self-evident. The follow-up to meetings of the European Council may often require work by the other sectoral councils. The president of the European Council, by virtue of its liaison with the GAC, will be able to exert influence over the detailed initiatives required to implement European Council policy. It should be recalled that a significant number of legislative initiatives have their origins in suggestions from the Council, which are then referred to the Commission in accordance with article 208 EC, now article III-345. The president of the European Council, his position reinforced by the GAC's obligation to ensure follow-up to meetings of the European Council, will be well-placed to put pressure on other Council formations to take the steps necessary to follow through on details of European Council policy. The indirect impact of the president of the European Council within the GAC is a matter for speculation. It is clear, in formal terms, that the European Council president does not have a role in the GAC's oversight of consistency in the work formations of the Council of Ministers. It remains to be seen, however, whether this divide between the respective spheres of European Council president and GAC is sustainable. We can foresee an overlap between the two spheres, because, for example, the consistency of Council formations' work may be a necessary condition for the efficacious follow-up to European Council meetings, or because the follow-up to those meetings

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may turn out to have implications for all the Council formations. The indirect influence of the president of the European Council and, indeed, of the Commission president, over both aspects of the GAC's work may be further enhanced by institutional factors relating to the GAC itself. Concerns have been voiced that the GAC, in the past, has not monitored consistency adequately. Its members were commonly member states' foreign ministers, who were too busy to give proper attention to the work of Council formations. If this tendency were to persist in the new constitutional order, the president of the European Council and the Commission president would both be likely to exercise greater influence in order to fill this relative vacuum. 3.3. Delegated rule making It is also important to touch on the new regime for delegated regulations. The constitution provides for so-called nonlegislative acts. A European regulation is a nonlegislative act of general application for the implementation of legislative acts and specific provisions of the constitution. It may be binding in its entirety and directly applicable in all member states, or it may be binding only as regards the result to be achieved in member states to which it is addressed, leaving national authorities free to choose the form and means of achieving that result. A European law or framework law may delegate to the Commission the authority to enact regulations to "supplement or amend certain nonessential elements" of the law or framework law. The legislative act that includes a delegation must define the delegation's objectives, content, scope, and duration. The European Parliament or the Council may decide to revoke a delegation, or the delegated regulation may enter into force, but only if no objection has been expressed by the Parliament or the Council within a period set by the law or framework law. Space precludes a detailed analysis of these provisions, and their implications for the interinstitutional balance of power within the EU. This can be found elsewhere. Still, the relevance of this topic for the present analysis of executive power may be highlighted as follows. The constitutional strategy had been to regard delegated regulations as a type of executive power exercised by the Commission, subject to the constraints above. The constitutional strategy also led to hopes by some that the new category of delegated regulations would lead to the dismantling of comitology, or at least the removal of its management and regulatory committees. The idea, therefore, was that the Commission, in its executive capacity, should be able to enact the relevant regulations subject to the possibility of call-back by the Council or EP. It should be noted, however, that delegated regulations are only nonlegislative in the formal sense, that is to say, they are not primary laws. This does not mean that they are not legislative in nature. They clearly are, and this conclusion is reinforced by the fact that they are said to be of general application, and that they can supplement or amend certain elements of primary law. The reality is

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that a European regulation will often be what would be regarded in domestic legal systems as secondary or delegated legislation. The Commission, therefore, will have significant power over complex regulatory choices, with relatively little input from the Council and the EP. The controls will be difficult to monitor and enforce. The prior regime was based on generalized ex ante input into the making of delegated norms, with the possibility of formal recourse to the Council in keeping with the comitology procedures, while the EP also exercised some control. Now, we are switching to a system based on ex ante specification of standards in the primary law, combined with the possibility of some control ex post should the measure not be to the liking of the EP or Council, although this latter control will only operate where it is written into the primary law. The efficacy of the new controls is questionable. It will often be difficult for the Council and the EP to specify with any exactitude the criteria that should guide the exercise of delegated power by the Commission, especially if primary laws become more abstract and less detailed. Moreover, if comitology is dismantled, it may not be so easy for the Council or the EP to decide whether to exercise their power relating to revocation of the delegation, or entry into force, of a particular regulation, since they might not have the information on which to make this decision. (...) 4. The disposition of executive power in the EU: Principle and pragmatism The deliberations concerning executive power were contentious and complex. It is important to stand back from the particular issues and consider the emerging picture of executive power in the EU. We can assess this disposition of power from the perspectives of principle as well as pragmatism. Two major viewpoints can be identified. 4.1. The argument against shared/divided executive power The principled argument against divided executive power is as follows. Two presidents of the Union is one president too many. As a matter of principle, by analogy from domestic polities, there should be but one locus of executive power within the Union, and this should be the president of the Commission, who is responsible to the EP. Therefore, it is fitting for the EU to embrace a parliamentary-type system in which there is a single executive power, accountable to the electorate, if only indirectly, through election by the EP. The voters will then be able to express their preferences by changing the composition of the EP, which will likely lead to a change of the person indirectly elected as the president of the Commission.

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The divide in executive power is also deprecated on grounds relating to principles of clarity and transparency. An aim of the Laeken Declaration was to render EU decision-making clearer and simpler. This has not been achieved in relation to executive power. An informed citizen, reading the constitution assiduously, would still find it difficult to understand the distribution of executive power. Principled arguments against shared executive power are reinforced on pragmatic grounds, the argument being that the division will lead to a confusion of responsibility between the two presidents, since their respective executive responsibilities are not clearly defined. 4.2. The argument for shared/divided executive power The principled argument in favor of shared executive power rests on the nature of the EU, which has always been characterized by an interinstitutional balance of power, rather than the separation of powers. Its major institutions represent different interests, with the consequence that it is acceptable in principle for executive power to be shared by a body representing state interests and one representing the Community interest, each of which is legitimated in different ways. Moreover, the attempt to impose a single executive power could be counterproductive. Thus, there might be real tensions if there were only one president of the Union, the Commission president, who would chair the European Council. The Commission president might be subject to conflicts of interest, resulting from a desire to press the Commission view, combined with the need to retain the confidence of the member states within the European Council and to articulate their views. Furthermore, the assumption that executive power in nation states is "unitary" is an assumption that is often belied by legal and political reality. A more realistic picture would recognize that such power is exercised not only by ministers that form the "government," plus the formal bureaucracy, but also by a plethora of other agencies and firms to which power has been transferred. It should also be recognized that the principled consequences thought to follow from a single locus of executive power would not be feasible without radical changes in the EU institutional structure. The voters would not be able to change policy by removing those whom they disliked, because, even if the Commission president could be indirectly removed in this manner, that would still leave state representatives in the Council of Ministers and the European Council, who would continue to have major input on agenda setting. The principled critique of shared executive power based on clarity undoubtedly has force. It was always going to be difficult to deliver on this aspiration, deriving from the Laeken declaration, in relation to executive power, the more so once it was decided that there would be two presidents for the EU. It should be acknowledged, nonetheless, that clarity about executive power in nationstates is also imperfect. A national constitution may locate executive power within a certain figure or

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institution. This does not, however, mean that the citizen will be clear as to who exercises particular aspects of executive power, for the reasons set forth above. The argument for shared executive power rests also on pragmatic grounds. The contention that this will lead to confusion is based, in part, on the assumption that it would be a novel development. This does not accord with reality: Executive power in the EU has not hitherto resided in a single institution. It is exercised in part, by the Commission, which exercises a plethora of executive-type functions, including the administration of legislative programs, planning of the legislative agenda, the negotiation of treaties with third parties, and framing of the budget. But the Council of Ministers and the European Council also wield executive power. And, although the treaties say relatively little about the powers of the European Council, the reality is that nothing of major importance happens without its approval. It has a say in setting the legislative agenda, in setting the Union's priorities, and in deciding the pace and direction of change within the Union. The division of executive power between the Commission and European Council may not be neat, but it is the reality, especially since the SEA came into effect. Moreover, the two institutions, for the last decade, have worked well, indeed symbiotically, to develop the EU agenda. The practical argument for shared executive power also rests on the lessons of history. A constant theme in the Union's development has been the evolution of institutions, often outside the strict letter of the treaties, as a response to concerns relating to the institutional balance of power. The European Council began life in this way, as did the Committee of Permanent Representatives to the European Communities (COREPER) and the comitology process. If executive power were to be concentrated within a single presidency of the Commission and this did not prove acceptable to some member states, it could lead to further institutional developments outside the strict letter of the constitution. Better, therefore, to recognize and structure shared executive power within the constitution, than to have it develop outside the constitutional remit. 5. Accountability in a regime of shared executive power It is also important to stand back and consider the emerging regime in terms of accountability. This inquiry could well occupy a book in itself; what follows does not purport to be an exhaustive analysis. The object is, rather, to identify some of the central issues concerning accountability. 5.1. Legal accountability The draft constitution as produced by the convention left the general structure of the ECJ's jurisdiction unchanged. The European Council was not subject to judicial review, which was anomalous given its powers. This matter was addressed by the IGC. Article III-365(1) was amended so as to render the European Council subject to review in relation to acts that are intended to produce legal effects vis-à-vis third parties, with a similar amendment concerning failure to act. It is

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clear that binding acts of the European Council could also be challenged indirectly through national courts via the preliminary ruling procedure. It should also be recognized that interinstitutional disputes concerning the disposition of executive power could end up before the ECJ. I have argued that there are cogent reasons to expect the European Council and the Commission to cooperate rather than come into conflict. If cooperation breaks down, however, then recourse to the ECJ is always a possibility. The ECJ would have jurisdiction to hear such actions under article III-365. 5.2. Political accountability It goes without saying that political accountability within a regime of shared executive power will be more complex than in regimes where such power is concentrated within a unitary executive. A regime of shared executive power will not have a single line of executive accountability. There is another proposition, which is somewhat less obvious, but that should also be borne in mind. Parliamentary political systems in which executive power is located within a single executive may well foster electoral accountability: the electorate can throw out the party whose policies it dislikes. It is also the case that systems with a strong, unitary executive power can often experience problems of political accountability between elections. Thus commentators in the U.K. have referred to the system as one of "elective autocracy," in which a government elected with a reasonable majority has considerable power and the legislature has little influence. We may now turn to political accountability within the emerging constitutional order. This is best examined by considering accountability, first, in relation to the setting of the overall political agenda and, next, in relation to the implementation of policy choices. As to accountability for the overall political agenda--chiefly embodied in the multiannual program, and the multiannual financial framework, it will not be possible for the voters to express their dislike or to put another party, with a different agenda, into office. The fact that executive power over agenda setting is shared between the Commission and the European Council prevents such direct transmission of voter preferences. It would be a mistake, nonetheless, to believe that such preferences will have no effect. The Commission president is elected by the EP, and the European Council must take account of the election results in deciding which person to put forward to the EP as Commission president. Thus, if the electorate dislikes the direction of EU policy it can express this through a change in the EP, which will have some impact on the European Council's decision as to the candidate for Commission president. Moreover, it is important to be realistic about how far voter preferences could change policy even if the constitution had opted for a single president of the EU, namely, the president of the

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Commission indirectly elected by the EP. This would have accorded the voters greater electoral influence over the policy agenda. However, there would still have been constraints flowing from the Council of Ministers and the European Council. The president of the Commission, acting as the sole president of the EU, would still have had to take into account member state preferences in the European Council, as well as voter preferences as expressed by MEPs. It might be argued, then, that the solution should have been to do away with the European Council altogether. There is, however, no possibility that this will occur, or could have occurred. Nor is it necessarily desirable: legitimation within the EU has always been conceived of in terms of representation of both state and voter interests, through the European Council and the EP, respectively. The reality is that, under the constitution, the multiannual agenda will be the result of a discourse between the major institutional players. This discourse will incorporate voter preferences, partly through the Commission president and partly through consultation with the EP. The discourse will also include state interests as mediated through the European Council and the Council of Ministers. This process may be messier than that in states with a single executive power. However, it does avoid the kind of executive dominance over the political agenda adverted to above. The dialogue fostered by shared executive power can be healthy in making actors rethink their own preconceived positions concerning the direction of EU development. The dangers of this leading to conflict between the Commission and European Council are, as we have seen, more likely to be outweighed by factors that engender cooperation. Let us now turn to consider political accountability in relation to the implementation and execution of policy choices. There are different aspects of this process that must be disaggregated. The annual and multiannual agenda will be developed in part through European laws and framework laws, which are legitimated through the ordinary legislative procedure initiated by the Commission. New delegated regulations will also be used. There are, as we have seen, problems in this respect, which reflect the difficulty of rendering secondary rule making both workable and legitimate. We must also consider separately the issue of accountability as it relates to the implementation and execution of agreed policy choices. The Commission clearly has the primary responsibility for policy implementation and is subject to a variety of constraints. The EP can exercise control, through a committee of inquiry, and through scrutiny by its regular committees, with the ultimate option of forcing out the entire Commission. The ombudsman can investigate cases of maladministration. Moreover, the Commission is subject to the important rules contained in the new financial regulation, which covers matters such as fiscal and policy responsibility, audits, delegation, contracting, and the like. 6. Conclusion There was greater disagreement in the convention about institutional provisions than about any other issue, and the IGC devoted the majority of its time to them. This is unsurprising. The detailed

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provisions on executive power embody a distinct view as to the nature of the EU polity, and the balance therein between intergovernmental and supranational forces. The very fact that the outcome was a constitutional treaty upped the stakes. There is little doubt that many were disappointed by the outcome. Those who had hoped for a single locus of executive responsibility embodied by a Commission president, legitimated through election by the EP--who would chair the European Council, continuing the practice of six-month terms--are especially critical of the outcome. There are undoubtedly arguments for this vision of the EU polity. It has not, however, been incorporated within the constitution, which envisages a regime of shared executive power. The preceding discussion has sought to shed some light on how this might operate in relation to the different aspects of executive power. It has addressed the considerations of pragmatism and principle that relate to this power sharing, and assessed it in terms of legal and political accountability. It remains to be seen whether the constitutional treaty will be ratified, in accordance with the constitutional requirements of the member states and, if so, whether reality accords with speculation.

19. Extractos de Beate Kohler Koch y Berthold Rittberger, ‘The Governance Turn in EU Studies’, 44 (2006) Journal of Common Market Studies, pp. 27-49

I. Governance: The Journey of a Concept While governance has become a popular research focus in EU studies, there is still confusion about the conceptualization of the term. ‘The concept of governance is notoriously slippery; it is frequently used among both social scientists and practitioners without a definition all agree on’ (Pierre and Peters, 2000, p. 7). Schneider (2004, p. 25) even argues that the conceptual vagueness of the term is the ‘secret of its success’. Conceptualizing Governance Cutting through the clutter of different definitions and conceptualizations, Pierre distinguishes between two broad meanings of the concept. The first refers to ‘the empirical manifestation of state adaptation to its external environment as it emerges in [the] late twentieth century’. From this perspective, governance can be considered both a process and a state whereby public and private actors engage in the intentional regulation of societal relationships and conflicts. Governance is thus different from government, the latter stressing hierarchical decision-making structures and the

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centrality of public actors, while the former denotes the participation of public and private actors, as well as non-hierarchical forms of decision-making. The second meaning refers to governance as the ‘conceptual or theoretical representation of [the] co-ordination of social systems’. Pierre argues that two major sets of research problems and questions emanate from this latter meaning of governance. The first adopts a ‘state-centric’ perspective as it points to the ‘steering’ capacity of the state and its institutions, as well as to its relationship with non-state – private – interests and actors. The second set of research problems and questions chooses a society-centred point of departure, focusing on the ‘co-ordination and various forms of formal or informal types of public–private interaction’, which are manifested in different types of networks and public–private partnerships. To these two meanings of governance, we add a third, prescriptive meaning of governance viz. ‘good governance’. The notion of ‘good governance’ has become prominent in economic development discourse since the late 1980s. The World Bank and the Development Assistant Committee of the Organization for Economic Co-operation and Development have been leading advocates of propagating sound fiscal management and administrative efficiency as a precondition to sustainable growth and development. The concept gained popularity among donor countries and institutions and was soon used in a broader political understanding. The benchmark of ‘good governance’ was expanded to include legitimacy derived from a democratic mandate of those in power, the rule of law, free market competition and a greater involvement of non-governmental organizations (NGOs). NGOs would not just participate in designing and implementing development strategies closer to the needs of the people and mobilizing endogenous economic and social resources, but also activate civil society and boost grass roots democracy. The notion of ‘good governance’ was also embraced by the EU and considered a crucial ingredient of EU–ACP cooperation relations. The ‘good governance’ discourse in the context of development, however, was formerly quite detached from critical reflections on the state of EU institutions. The notion of ‘good governance’ in the EU context first became prominent through the release of the Commission’s White Paper on ‘European Governance’ in which it lists several principles underpinning ‘good governance’, such as openness, participation and effectiveness. These themes continue to inform the discussion on governance, in particular in the field of political science, the lead discipline in the governance debate. The article goes on to a discussion of the development of the governance debate in the fields of international relations (IR) and comparative politics (CP) before it turns to the ‘governance turn’ in EU studies. II. Understanding EU Governance

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In the course of the past decade, a plethora of analyses have come to see the EU as a system of governance characterized by ‘a unique set of multi-level, non-hierarchical and regulatory institutions, and a hybrid mix of state and non- state actors’. Concepts that sought to grasp the alleged sui generis-nature of the EU polity mushroomed during this period: ‘multi-level governance’, the ‘regulatory state’ and ‘network governance’. Dominant Features of EU Governance As a concept, EU governance requires some considerable ‘stretching’ to include all areas of EU policy-making activity. Some of the concept’s central features, such as its multi-level nature, apply to the whole EU ‘pillar’ structure. Other core features, such as the key role of supranational actors in the ‘community method’ (see below), the dominance of regulatory politics or public–private policy networks are characteristic of only the first pillar. Over the years policy co-operation developed in additional areas, including economic and monetary affairs, security and defence, as well as police and judicial co-operation. Here the policy-making process that brought about integration is characterized by ‘intensive transgovernmentalism’ . In the case of the single currency it resulted in delegating institutional powers to a function-specific agency, the European Central Bank. In no other areas has a centralized and hierarchical institutional process been introduced. Rather, ‘intensive transgovernmentalism’ prevails. This breeds special forms of policy co-ordination involving national and Community officials that allow Member State governments to retain considerable control but still transform the ways in which states traditionally go about doing their business. The ‘community method’, however, is crucial and, in practice, the dominant feature of EU governance. Scharpf has dubbed this method the joint- decision mode’, characterized by a strong role for the European Commission in the formulation and execution of Community legislation, with the European Parliament (EP) gaining power and influence. All legislation is adopted by the Council of Ministers by qualified majority or unanimous vote. During the preparation, formulation and implementation of policies, the Commission and EP consult or even co-opt private groups and organizations to give information and expertise. Furthermore, ‘comitology committees’ of national civil servants and outside experts work out compromise solutions for implementation to smooth transposition and compliance at the national and sub-national level. Another prominent feature of EU governance is its multi-level nature. Marks developed the concept of ‘multi-level governance’, which is a ‘system of continuous negotiation among nested governments at several territorial tiers’. MLG posits that decision-making authority is not monopolized by the governments of the Member States but is diffused to different levels of decision-making – the sub-national, national and supranational levels. Aiming at a general theory of MLG, emphasized that governance is interconnected, not nested: ‘while national arenas remain

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important arenas for the formation of national government preferences, the multi-level governance model rejects the view that subnational actors are nested exclusively within them. Instead, subnational actors operate in both national and supranational arenas ... National governments ... share, rather than monopolize, control over many activities that take place in their respective territories’. ‘Multi-level’ thus signifies the interdependence of actors operating at different territorial levels – local, regional, national, supranational – while ‘governance’ refers to the growing importance of nonhierarchical forms of policy-making such as dynamic networks which involve public authorities as well as private actors. These two features – the multi-level nature of the EU ‘political system’ and the growing importance of private actors in the policy process – are also among the defining characteristics of the concept of ‘network governance’. Network governance is distinct from other forms of governance, such as corporatism, pluralism and statism. In a system of network governance ‘the “state” is vertically and horizontally segmented and its role has changed from authoritative allocation “from above” to the role of an “activator” ’ . Governing the EU involves bringing together the relevant state and societal actors and building issue-specific constituencies’. Furthermore, given the dominance of regulatory policy-making and the marginality of redistributive conflicts in the EU, network governance is characterized by an orientation towards problem-solving instead of individual utility-maximization. To these three dominant features – the ‘community method’, MLG and ‘network governance’ – is added a fourth – ‘detached political contestation’. While the EU is developing into an ever more powerful centre of decision- making, we are witnessing a ‘hollowing out’ of policy competition between political parties at the domestic level. The EU impinges directly on national policy-making by limiting the policy space available for national party competition, by reducing the range of available policy instruments through supranational delegation and by circumscribing the policy repertoire fuelled by the politics of negative integration. Still, the EU is heavily under-politicized since the majority of the large mainstream political parties in the domestic arena sideline EU issues in national electoral contests. Party competition takes place within national boundaries and is the driving force for accentuating or bridging national cleavage structures; it frames political options and thereby ‘gives them a face’. There is (still) no equivalent in the wider European political space. Elections to the EP do not generate transnational preferences, nor do they give contested issues a European profile, they are – as Reif and Schmitt famously put it – ‘second-order national contests’. Thus, the ‘European’ aspects of EP elections affect voting behaviour only marginally. The Advent of the Regulatory State and its Impact on Governance One strand of research indicative of the ‘governance turn’ in EU studies, characterizes the EU as a ‘regulatory state’. This presupposes that the EU polity has achieved a considerable degree of maturity as a political system that has come to exercise ‘classical’ functions of political systems, such as the production of public policy, with regulatory politics as the central pillar of the EU’s political

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activity. The literature has advanced a set of compelling reasons why the EU is geared towards regulatory policy-making. Part of the argument is historic: the ambition to create a single European market demanded a considerable degree of regulatory activity to eliminate trade barriers, to stimulate competition and to correct or compensate for market failures. The other part of the argument is structural: regulatory policies require only weak legitimation since the (potential) (re-) distributive effects are not immediately visible. The demand for regulatory policies is driven by both public and private actors. While ‘intergovernmentalists’ emphasize the centrality of Member State governments and intergovernmental bargaining, ‘weak’ intergovernmentalism stresses the centrality of a wider set of public actors, Member States and EU institutions; and ‘supra- nationalists’ stress the centrality of private actors, organized interests in particular, in alliance with supranational actors, such as the Commission and the European Court of Justice (ECJ). The supply of regulation has furthered functional and administrative differentiation and, because of the Commission’s dependence on external expertise and ‘stake-holder’ support, the proliferation of sectoral policy networks. While there is broad agreement in the literature that policy networks play a role in the agenda-setting and implementation stage, with private actors – experts and organized interest groups – playing a prominent role, the actual decisions are still taken according to the hierarchical mode of decisionmaking. Börzel, therefore, calls for a distinction between governing in networks, which she considers rare in the EU, and governance with networks, a characteristic feature of the EU where private actors are heavily involved in the preparation and implementation of policies. The demand for regulation, however, is not always met by the supply. Scholars and practitioners alike identify a performance crisis of EU governance. This crisis has its roots, at least partially, in the startling success of European integration, which now directly affects core activities of the state, ‘employment policy, social policy, migration, criminal prosecution, and education’. Given variations in national regulatory regimes, the salience of the issues and the diverse preferences of domestic actors, ‘one-size-fits-all’ solutions are hardly applicable. As a response to this dilemma, EU Member States have introduced ‘new modes governance’. ‘New Modes of Governance’ The introduction of ‘new modes of governance’ (NMGs) was a reaction to the imminent risk of deadlock in Community decision-making. The evolution of the scholarly discourse is closely connected with the ‘open method of co-ordination’ (OMC), which was established by the Maastricht Treaty as an instrument destined for co-ordinating national economic policies through the use of recommendations and guidelines. Research on the OMC has mushroomed since it was officially established by the May 2000 Lisbon European Council.

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What are the defining characteristics of NMGs? First, they depart from the Community method of legislating through regulations and directives, relying on ‘soft law,’ which is not legally binding and has no legal sanctioning mechanisms against noncompliance (voluntarism). Second, NMGs are negotiated between public and private actors at different levels of decision-making while the effective policy choice is left to each individual Member State (subsidiarity). Third, all relevant actors are included in the process of defining policy goals and instruments. That is, no distinction is made between steering subjects and steering objects. Yet, caution is necessary when presenting NMGs as the magic solution to the EU’s performance problem. The effectiveness and problem-solving capacity of NMGs vary according to the type of policy and actor preference constellations at hand. Héritier argues that redistributive policies and ‘deeply entrenched problems’ are unlikely candidates for the successful application of NMGs, although ‘distributive, co-ordinative, network goods problems as well as diverse, discrete, and high complexity/uncertainty issues are more amenable to a “treatment” by new modes of governance’. Research on NMGs takes two broad directions. One focuses on the motivations of EU actors to propose the application of NMGs. For instance, much has been written about the Commission’s self-interested or legitimacy-driven motivations for pursuing ‘good governance’. The second comprises a great variety of empirical work that seeks to assess the significance of NMGs. A considerable number of studies have tested whether there has actually been a significant shift from the ‘community method’ to NMGs across a wide range of policy areas. While there is ample evidence of such a shift, some studies show that the application of NMGs in individual policy areas is still scant compared to the application of traditional ‘command and control’ instruments. Moreover, the application of NMGs, such as the OMC, is not restricted only to ‘uncontroversial cases in which there is a high level of consensus. On the contrary, they are almost always introduced after legislative deadlocks’. Other studies have looked at the impact of NMGs on actor behaviour. By emphasizing ‘benchmarking’, ‘peer review’, and ‘best practice’ MNGs engender the assumption that participating actors can learn from assessment and comparison. This assumption has been borne out by several studies. In addition, because NMGs stress participation, transparency and learning, they are of particular interest to democratic theory. De la Porte and Nanz have, for instance, analysed the OMC’s ‘democratic dimension’ from the perspective of deliberative democracy. Others have found that, despite the rhetoric and high aspirations, MNGs do not necessarily produce participatory decisionmaking.

20. Fiona Hayes Renshaw, Wim Van Aken y Helen Wallace, ‘When and why the EU Council of Ministers Votes Explicitly’, 44 (2006) Journal of Common Market Studies, pp. 161-94

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Introduction This article presents an overview of evidence of voting practice in the Council of Ministers of the European Union (EU) and its evolution over the years. Its core purposes are to set out the available empirical evidence on explicitly contested voting and to suggest some of the potential explanations for the patterns that emerge from these data. It is our hope that the data which we have collated will be drawn on by others for more extended analysis.1 While the data set covers the period 1994–2004, we provide a rather more detailed picture for the years 1998–2004, drawing on new data on recent practice, released by the Council under its transparency procedures. We still lack details on previous periods and we have no systematic evidence on proposals not put up for decision because it was thought probable that they would fail to find a majority. Since 1999, the Council has published monthly summaries of Council Acts and minutes of individual Council sessions on its website, showing decisions taken and noting some information about negative votes and abstentions. In addition it has published press releases since 1997 on each session of the Council, containing similar information. Our data build on these records and supplement them with additional details drawn from reports of individual Council sessions, as well as some interview material. I. Overview The simple picture in much of the literature is that, until the Single European Act (SEA) of 1986, decisions in the Council were mostly either formally subject to the unanimity rule or subject to the implicit acceptance of the right to veto. Thereafter, we are led to believe, qualified majority voting (QMV) became not only the predominant rule but also the common practice, at least as regards decisions relating to the internal market and most of its legislative programme. In our view, this picture is far too simplistic, and in any case this apparently well-defined transition from unanimity to the active use of QMV is not borne out by the evidence. It is certainly true that participants did not admit to voting very much before the mid-1980s. Records were kept within the Council, but were in no way publicly accessible, nor were they even widely distributed to member governments. Nonetheless, delegates from Member States knew very well that votes could be and sometimes were taken, and they also knew on which issues votes were technically possible and thus might be solicited. Well-briefed national delegates were given guidance on the circumstances in which they could agree to the use of voting (since agreement on the procedure preceded substantive votes) and thus when they might want to uphold what they took to be their (or another Member State’s) rights under the Luxembourg compromise. In practice, there has recurrently been heavy reliance on consensus-building on many topics for functional reasons.

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Figure 1 shows that some 30 per cent of decisions are taken formally on the legal basis of unanimity and that some 75–80 per cent of decisions technically subject to QMV are not explicitly contested at ministerial level in the Council. In a system which requires that decisions agreed are implemented in domestic law, consensus encourages compliance, and an outvoted government might evade compliance. The progressive strengthening of Community law may have begun to provide an alternative means of promoting guarantees against non-compliance. What is hard to judge under a system of implicit consensus is how often member governments, when isolated on an issue, chose not to block decisions, or where the ‘shadow of the vote’ (Golub, 1999) settled the outcome.

Over time, however, it became harder to invoke the Luxembourg compromise, and the reasons for doing so became less persuasive. Instead, governments who wished to maintain the possibility of blocking proposals that they did not like focused mainly on retaining the unanimity rule for those subjects. Now and again, however, on subjects already accepted under the QMV rule, certain governments have become nervous and have insisted on including some form of protection against being over-ridden on a vote. Thus the Ioannina compromise of 1994, and the ‘emergency brake’

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provisions of the Treaty of Amsterdam (ToA) and the Treaty of Nice (ToN) were introduced as forms of reassurance. Significantly, however, they have hardly ever been activated. The few (predominantly failed) attempts to invoke the Ioannina compromise have been mainly on technical issues, mirroring the case of the Luxembourg compromise, where the reported instances have been concentrated on agricultural and fisheries topics. On the other side of the debate, those member governments that claim to be supportive of more active majority voting and of the opportunity to over-ride minorities have been instrumental in inserting into the treaties (especially the ToA and the ToN) provisions for ‘enhanced co-operation’ that would in theory make it easier to press ahead on specific issues. Once again, it is significant that these provisions have so far remained largely theoretical rather than operational, with the important exception of the euro area. The net result is that we observe – or at least have observed in the EU-15 – a pattern which works at the ministerial level mostly by consensus, with rather few explicitly contested votes, and only a small number of efforts to circumvent the formal rules by activating the provisions or ‘informal’ (and operationally unclear) conventions for dealing with awkward minorities. This pattern has proved remarkably robust over the years. Although our systematic data cover only more or less the past decade, these are consistent with case- study and interview evidence from the 1980s and the early 1990s. Heisenberg (2005) confirms our findings on the recent period. Whether or not this pattern will continue in the EU-25 is, of course, another question. So far we have only rudimentary evidence with very few observations for the period since the enlargement of May 2004. In addition, we lack data of two kinds. First, we have no systematic empirical data on failed decisions, in the form of proposals that were not adopted because there was no majority in their favour. These are typically issues that do not rise to the ministerial level of discussion, with the result that published Council records do not report roll call votes on failed decisions. Second, although qualitative studies indicate that implicit voting is a common practice in committees of officials, we have no quantitative data that would enable us to substantiate either the extent or the patterns of such voting in the various meetings held at sub-ministerial level. The nearest that we can get is via those decisions recorded in Council minutes as agreed ‘A’ points on the basis of explicit voting, but this too is something of an exception. In neither category of cases do we have detailed data on the ways in which blocking minorities are constituted, whether explicitly or implicitly. II. The Hard Evidence The data on contested votes that have emerged since late 1993, when the first figures started to become available, show the proportions of decisions agreed under QMV on which negative votes or abstentions were declared, the pattern of contestation by Member States and by issue areas, and which Member States tended to vote with each other on which issues. The data which we have used for the period 1994–2004 come from several sources: some early information released informally to

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the authors; the data collected by Mattila and Lane; data collected by Mattila; and data collated for the second edition of Hayes-Renshaw and Wallace. For the period 1998–2004, we have checked records for individual Council sessions, which gave us 564 instances or ‘roll call’ observations, and which produced 8,460 observations of individual expressions by member governments of positive votes, negative votes or abstentions. We have disaggregated these instances into a broad categorization of issue areas, to which further refinements can be made. Our records cover legislation adopted, including for some cases ‘political agreements’ (i.e. pre- final positions) and ‘common positions’ (i.e. within the co-decision procedure with the European Parliament), as well as some operational decisions, notably on the Council’s implementation of its own transparency provisions. Table 1 provides a breakdown on a very provisional basis by broad categories of types of decision. We have, however, not yet tried to sort the data by legal base. For further details of how our data sets were constructed and the techniques used for their analysis, see the Appendix to this article. Further work is needed to pull these different data sets together and to link voting records, on the one hand to types of decision and, on the other, to issue areas.

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Table 2 reproduces the simple information first released in 1995, which showed several clear points. Some 25 per cent of those decisions agreed under QMV had been contested. Of these, almost half were on agriculture and fisheries, with a further quarter on internal market issues, and the remainder being thinly spread across other areas. On these votes, the number of ‘nos’ and abstentions by definition fell short of blocking minorities, and were there for the record to show the absence of approval for a given decision. The most frequently contesting states were Denmark, Germany, the Netherlands and the UK. Mattila and Lane confirmed that, in 1995–98, 25 per cent or fewer of decisions were contested each year under the QMV rule, that contestation continued to be more common on agriculture, the internal market and transport (they do not separately identify fisheries) than on other issues, and that Sweden (which joined the EU in 1995) and Italy had joined the group of states more likely to contest decisions. We should, however, note that there were very particular reasons to do with agricultural policy and its financing which led the Swedish government to cast a series of negative votes in 1995 − one factor was the eurosceptic Minister of Agriculture;

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another was the awkward interface between the common agricultural policy (CAP) and Swedish agricultural policy, forced by EU accession to unwind its recent modernization − and that the pattern of voting by Sweden subsequently changed. In a revised data set, Mattila extended the figures by country up to 2000, but not by issue area, and the same contesting Member States were evident.

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The various data show very clearly that some member governments rarely choose to vote ‘no’ or to abstain on proposals which are known to command a clear majority. Belgium, Finland, Ireland and Luxembourg fall into this category. Table 3 and Figure 2 show the aggregate data on contested votes by Member States in recent years. The picture remains very much in line with previous years. Thus some ‘northern’ countries, notably Germany,

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the Netherlands and the UK, joined by Italy, are more likely to abstain or to vote ‘no’, a set which includes both older and newer members, and both the more integrationist by tradition and the more critical. Another interesting point that emerges is that France and Spain contest a decision rather less often than the other larger Member States. This may reflect one of two phenomena: either these governments repeatedly succeed in getting their interests accommodated, or else their political cultures lead them to prefer to appear on the side of the majority at the final stage of decision.

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Table 4 and Figure 3 show the picture by issue area, and confirm the earlier picture of contested votes concentrated especially on agriculture, fisheries (where Spain becomes an active no-sayer on some points), some internal market, public health, transport and environmental issues, and then a scattering in other areas. It should be noted that, of the roll call of explicit Council votes, 47 per cent are contested by only a single (‘singleton’) Member State, a further 19 per cent by only two Member States, 18 per cent by three Member States, with the remaining 16 per cent being cases of more than three contesting Member States. In other words, we find a very small n of explicit votes where several Member States simultaneously record their contestation. Our detailed data set of voting behaviour in the period 1998–2004 enables us to look at individual instances of voting and the issues at stake. Thus we learn that most contested votes are on detailed regulations (especially agriculture, where there are marketing arrangements and so forth that have to be renewed annually) and directives (especially on the internal market, public health and food safety). The sources of contestation can generally be traced back to well- established differences of opinion between the Member States. Sometimes these are on matters of social preferences, such as the authorization of biotechnology or genetically modified foods or plants; contested decisions on tobacco controls are another example. Others are on matters of policy principle, such as the costs of particular agricultural market decisions, where we can observe net payers into the budget taking a stand against particular items of, or increases to, expenditure. Often the contested votes are on more

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detailed points that relate to a distinct national constituency or a different national practice that is in conflict with the emerging EU provisions. The instances of contested voting on public health, biotechnology and food safety seem to fall into this category, being (perhaps not coincidentally) issues which prompt vocal advocacy groups in some Member States. One possible explanation for contested voting may be that some member governments may not feel able to commit other levels of government in their own countries, particularly, for example, where the relevant policy has to be implemented by regionally or federally devolved levels of government. The pattern of contestation by Germany contains a number of issues subject to the competence of the Länder rather than the federal government. In other cases, such as Denmark, contestation may be linked to tight parliamentary negotiating mandates for ministers. When contested voting takes place on issues where no prior EU rule exists, there is prima facie evidence to suggest that ‘no-saying’ correlates with subsequent poor or delayed compliance by those same Member States. One pertinent example here is the legislation on the patenting of biotechnology products, where a controversial directive was adopted in 1998, with abstentions from Belgium and Italy and a negative vote by the Netherlands, and scheduled for implementation by the end of July 2000. In November 2004 this directive had still not come into force in 11 Member States, and the European Court of Justice (ECJ) had declared six Member States including Belgium, in breach of the law, with cases pending against a further three, including Italy, Luxembourg and the Netherlands (European Voice, 10–17 November 2004). In July 2005 Italy, Luxembourg, Latvia and Lithuania had still not implemented. Further research is needed in order to see how far contested voting correlates with subsequent non-compliance. The data (as we saw in Table 3) also potentially shed light on Council votes on issues that are the subject of co-decision with the EP. In such cases, the rules provide opportunities for member governments to adjust their stances in response to parliamentary positions, although we have not followed this through in our data set. The data also contain a group of contested votes on the operation of the transparency provisions, where a recurrent grouping of Denmark, Finland, the Netherlands and Sweden voted against Council decisions to release information (see Figure 4). This rather surprising behaviour is explained by the fact that the Legal Service of the Council, typically supported by a majority of Member States, holds that its legal advice and opinions should not be released, and the ‘no-sayers’ register their protest to show that they favour a more generous release of information. In looking at the patterns of contested voting, we note that some dogs do not appear to bark. In other words, there are issues that we know from case-study evidence to be deeply controversial, but which rarely appear as explicitly contested in the voting data. Two kinds of example stand out: trade issues and budgetary questions. As regards trade, our data cover both trade policy provisions under Article 133 (TEC) and anti-dumping provisions, but together these constitute only 6 per cent of explicitly contested decisions, despite the fact that there is a recurrent cleavage in the EU between the more liberal and the more protectionist Member States. This plays into negotiations on big trade

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issues, such as the positions to be adopted in international trade negotiations, notably within the World Trade Organization (WTO). The tough debates on such questions do not normally take place in full Council meetings, but rather in the Article 133 Committee of senior national trade officials. Even then, it seems to be the case that, once majorities for negotiating positions have been established, those in a minority choose not to record negative votes or abstentions in the Council, and in any case, efforts are generally made to ensure that the package on the table includes elements that serve to bind in all of the Member States.3 The same seems to be true of ‘micro’ decisions on trade issues, such as contingent protection, and in particular decisions about whether to impose definitive anti-dumping duties. Since the mid-1990s, the latter type of decisions have been subject to simple majority voting, a change made to the Council regulation at the prompting of the French, in order to increase the chances of imposing definitive duties. Here again there are lively arguments in the relevant Council working party, often resolved by implicit voting. Interestingly the relative weight of contending coalitions was sufficiently important for the procedural rule to have been adapted again on 8 March 2004 (under Council Regulation 461/2004, OJ L77/12, 13 March 2004). Thus, a ‘positive’ vote adopted by a simple majority of those Member States present and voting is now required in order to resist any proposed imposition of definitive duties by the Commission. The budgetary arena has somewhat different characteristics. Decisions on annual appropriations are framed by the multi-annual financial perspectives and are then expressed in an annual budgetary cycle. Most of these details are handled in a routine way by the Council’s Budget Committee of national officials, and are then passed to the Budget Council, in a special session of Ecofin, which generally adopts its decisions by consensus and then interacts with the Commission and the EP in the annual cycle. We know from case studies and our own interview evidence that the Budget Committee regularly uses indicative voting to resolve differences, but again contested voting is not usually recorded in the ministerial sessions. The situation as regards the multi-annual financial perspectives is very different. These periodic packages always go to the European Council for resolution and always contain some items formally subject to unanimity voting, for example, the setting of the revenue targets and ceilings, and the ‘macro’ allocations under most of the spending programmes. In practice therefore, these packages are resolved by negotiations that continue until the consent of all member governments has been delivered. Where budgetary concerns seem most likely to generate explicitly contested votes is on apparently quite technical agricultural issues which have budgetary consequences. Our data would allow this last point to be followed through in more detail. In the context of budgetary decisions we note that the picture presented by Kauppi and Widgrén is somewhat misleading in its attempt to correlate voting power in the Council with the pattern of receipts from and contributions to the EU budget. They argue that the out-turns from the macro budgetary packages are better correlated with the relative political power of Member States than with the relative economic needs and situations of Member States. So far so good. However, there

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are two flaws in their analysis, which relate to the details of EU budgetary bargains. First, the authors segregate bargaining about EU budget receipts from bargaining about contributions, thus missing the increasingly central importance of ‘net contributions’ as a factor in governments’ positions. Second, they wrongly assume that bargains on receipts have been subject to QMV. On the contrary, this is a bargaining arena where the unanimity rule has so far applied, and hence any Member State could block a decision by withholding its consent. While it may well be the case that ‘more powerful’ Member States can be more extractive in conditioning their assent, the ‘less powerful’ Member States (in terms of the criteria used by Kauppi and Widgrén) can also extract rewards in return for consenting to the package. Thus, although member governments have varying capacities to exercise power in these always tough and controversial negotiations, each member government has an opportunity to press for specific benefits, in the absence of which it can impede agreement.. Hayes-Renshaw and Wallace report the appeals to the Ioannina compromise, which also illustrates the pivotal role of Sweden in negotiations on a set of agri-monetary issues, in that instance subject to QMV contested voting. Zimmer et al. address some of these issues, argue the importance of the clash between what they call the ‘north’ and the ‘south’, and anticipate that new Member States are likely to join the ‘southern’ grouping for reasons of subsidy dependence. However, we should note that the potential for net budgetary burdens on some new Member States may lead to a different alignment of positions. The contentious discussions at the June and December 2005 European Councils and the subsequent negotiations on this subject will clearly be a fruitful subject for further analysis. There is an important recent new entrant into the records of contested voting, namely concerning the rules surrounding economic and monetary union (EMU) and the management of the euro. Heated discussions took place in 2002−03 over the Stability and Growth Pact (SGP), set up to impose discipline on Member States as regards stability targets. Interestingly, many member governments were determined to vote publicly on one side of the argument or the other, in a highly politicized domain where the decisions clearly had to be taken at the level of ministers. This public positioning took on an extra dimension when the Council failed to find majorities in favour of disciplining France and Germany, whereas smaller Member States, in this case especially Portugal, were much more vulnerable to tough conditionality and the threat of sanctions. The Council minutes of the Ecofin meeting of 25 November 2003 provide a rare record (to our knowledge the only case) of explicit voting leading to failure to reach agreement (see Table 5). III. Coalition Behaviour One potentially very important question is whether the recorded roll calls show any identifiable coalitions of Member States and, if so, on which issues. As we have already noted, however, the answer may be less interesting than it appears, given that so many instances (47 per cent) of contestation are by singleton Member States. We are thus left with rather scattered evidence of clustered voting patterns. On an exploratory basis Figures 5–10 (see Appendix), a series of

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dendrograms, show some preliminary impressions of the proximity of Member States to each other in several issue areas. In this article we report on a selection from a wider collection of dendrograms that we have constructed. For the most part, the coinciding votes tend to be issue-specific rather than constituting part of recurrent coalitions. In addition, many negative votes seem to be countryspecific, relating to a particular situation as regards a specific legislative proposal that would have a singular impact on a local economic sector or regulatory practice. This is especially true as regards single market issues. Such findings are consistent with an accumulation of qualitative case study evidence on EU policy-making, which suggests that simultaneous contestation may often be the result of a mere coincidence of differently based objections, rather than evidence of shared motives for contestation. A similar conclusion is also reached by Zimmer et al..

In particular there is no systematic evidence of most big or most small Member States voting together, or of old or new members voting together. On the contrary, one important feature of recorded dissent seems rather to be linked to domestic political cultures and perhaps specifically to the need to defend positions in national parliaments, since the Member States concerned (with the exception of Italy under the Berlusconi period of government) include most of those with the more systematic procedures of national parliamentary scrutiny. If we had more detailed evidence about positiontaking at earlier stages in the Council, we could look for correlations with the use of ‘parliamentary scrutiny reserves’ by particular national delegations. Another possible correlation might be with the expression of subsidiarity concerns on particular issues. Evidence from our data set could be combined with relevant information about both specific issues and individual countries to pursue such lines of inquiry. Contrary to the supposition of Mattila we find no evidence of traditional left/right cleavages in the patterns of explicit voting (see Appendix, Figures 5 and 6). The pattern of contested voting on agriculture does not produce clearly recurrent cleavages (Figure 7), although on fisheries the apparent pattern deserves further exploration (Figure 8). As regards the budget in the explicit sense, our data set records only three roll calls, although some of the CAP roll calls involve issues of

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budgetary costs. There are signs of a broad cleavage between the more and less free-market minded member cases on single market (Figure 9) and trade issues (Figure 10), as would probably also be clear if we had micro-level qualitative data on more of the external trade issues. The evidence on EMU and the SGP is an unusual case of polarization between larger and smaller Member States (Table 5). In all cases, however, we should note some deviance from the patterns, since no Member State is entirely consistent on these issues. These patterns are not surprising, given the weight of these issues on the EU agenda, although we should be a little cautious about resting an analysis on only the final level of ministerial discussion for which the recorded contested votes are few in number. As we make clear in the Appendix to this article, we deliberately used cluster analysis in order to be able to scrutinize our voting data without prior assumptions as to the patterns of simultaneous opposition and abstention. Of course the same data could be subjected to more stringent analysis and to the systematic exploration of alternative potential explanations. Our preliminary survey, however, suggests that any such further analysis needs to combine information on both Member States and issue areas in order to get real traction on the data. IV. Problems of Inclusion and Exclusion This leads us to the broader issue of whether the voting rules recurrently disadvantage or isolate particular countries. A distinction should be borne in mind here between an erratic pattern of isolated countries, varying considerably according to issues, and a repeated pattern as regards individual countries, groups of countries or kinds of issues. EU governance depends on legitimation through the Member States and their obedience to Community law. There is a real issue of how to legitimate individual decisions for a state whose government voted against them, perhaps to signal in advance the improbability of its compliance. The more frequently a member government is outvoted and visibly unhappy about it, the larger the problem becomes, certainly for the Member State concerned and arguably for the system as a whole. We have not yet examined our data set to test for this, or to identify instances where individual Member States are ‘outvoted’ on issues where they are the primary ‘stakeholders’. Much depends on the degree of sympathy the beleaguered minority evinces from other member governments and other institutions and on how justified the minority position is considered to be. The situation has existed in both theory and practice since the foundation of the EC, and a range of devices has developed over the years to correct such conflicts, with the Luxembourg compromise, the Ioannina compromise, and the ‘emergency brake’ being regarded as very much last resorts. Three particular isolation-avoiding practices have developed. The first, and perhaps the most obvious, is to put the onus on the Commission and the Council presidency to do their utmost to accommodate reasoned and apparently reasonable differences of position. Frequently, the accommodation is achieved through declarations in the Council minutes, and often attached to

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decisions taken in the end by consensus. Declarations in the Council minutes often also record points on which dissenting member governments have failed to achieve accommodation of their concerns. The material available on the Council’s website could be examined to explore this point further. A second practice is to provide for a variety of formulations within the body of the relevant text which allow for divergent interpretation or application of the relevant rules to particular Member States. These may be differentiated rules, exceptions, derogations or longer or shorter time delays or transitions. This history of accommodating special problems helps to explain why explicit voting remains relatively infrequent in the Council. A third option has become markedly more prevalent over the past two decades, namely the formulation of more generic special arrangements in the form of protocols and declarations attached to the treaties in order to ring-fence a possible minority position. Each of the EU treaties since the SEA has been accompanied by a mass of such devices, often to cater for highly idiosyncratic features of particular countries. Here the borderline between the objective and the subjective has already been crossed, as too with the introduction of exceptions sought by particular and partisan governments, as distinct from points that could more plausibly be argued to be ‘national interests’. Perhaps the most interesting example from the Treaty on European Union (TEU) was the insertion of the ‘Irish abortion clause’, under the guise of the obscure Protocol 17, annexed to the TEU and to the Treaties establishing the European Communities. The 2004 Constitutional Treaty also contained an interesting example, in the form of the declaration from Belgium that, in its case, ‘national parliaments’ (relevant for establishing those elections in which citizens of other Member States can vote) should be taken to include both the two federal chambers and the several assemblies of the regions and communities. In considering problems of inclusion and exclusion, therefore, the relevant factors are: the borderline between objective and subjective differences; the extent of sympathy for minority or isolated Member States; the area of political judgment left to the Council, but with the ECJ hovering in the background; and the risk of the Council being implicated in partisan conflict within Member States. V. Relative Power and Voting Rules Behind many of the attempted analyses of voting behaviour and bargaining outcomes in the Council lie different ways of assessing the relative power of Member States in the process. It is evident from the debates among practitioners that there are two rather different understandings of relative power. On one side lie the observations of the ‘insider practitioners’ (culled usually from qualitative interview evidence) that voting rules and voting weights matter, but to only a limited extent. Alongside these lie substantive preoccupations on specific issues, the skills and persuasiveness of the negotiators, and the opportunities provided by specific situations for one or other government to exercise leverage on bargains. On the other side lies the public discussion between the politicians

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who engage in the treaty reform debates which examine options for changes to the voting rules. During such debates, stylized positions are often adopted which imply that relative power should somehow be correlated with formally assigned voting power. Thus enormous amounts of time and energy have been spent in successive intergovernmental conferences (IGCs) arguing over proposed rule changes. (Interestingly, this was not the case in the IGC leading to the SEA and its ‘breakthrough’ on extending the QMV rule, which was efficiently despatched in just over three months.) Our data on contested voting, evidence to the authors in interviews and qualitative evidence from published case studies tend to give more credence to the observations of the ‘insider practitioners’ than to the public political rhetoric.

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The voting rules in the Council have changed recently with the application of the ToN since May 2004. This introduces the new ‘triple majority’ system of: weighted votes; number of Member States; and, if requested, with the percentage of the EU population. Table 6 shows the evolution of the voting rules in the Council over time. The Nice rules require negotiators in the Council to make the three calculations in order to gauge where potential majorities or blocking minorities may lie. These changes are too recent for us to be able to draw any definitive inferences as to their impact. They have, however, led to at least some governments providing their officials with ready-reckoner spreadsheets in order to make the necessary calculations routinely during meetings. In the academic literature on the Council we also find two very different lines of analysis, one broadly qualitative, the other broadly quantitative. By and large, studies based on one or other form of qualitative analysis argue that relative power depends on some combination of, on the one hand, the rules and procedural setting and, on the other, the substance of the issues being decided. As regards the latter, member governments exercise influence according to a combination of two main factors: first, their stake in the issue under discussion (thus French voices count more on agriculture than British voices, and Spanish voices count much more than German ones on fisheries issues), and second, the persuasiveness of national positions vis-à-vis the proposals on the table. Thus practitioners cite many examples of instances in which a member government in a clear and isolated minority has succeeded in turning round an argument in the Council to its advantage. There is also a large literature on the relative impacts of Member States as leaders or laggards, uploaders or downloaders in environmental negotiations. Of course, such issue-specific qualitative case study material often does not lend itself to compelling generalizations, and hence the more promising developments in the literature are those which seek to combine qualitative and quantitative analyses. Conclusions Several broad conclusions can be drawn from the foregoing about the practice of voting in the Council. First, of course rules matter and the patterns of bargaining behaviour are different depending on the voting rule that applies to any given issue or set of issues. Thus far the vigour of

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the arguments about changes to the rules is logically based, whether in the context of periodic IGCs or in the context of efforts to introduce special conventions, more or less formalized, as in the case of Luxembourg and Ioannina. However, irrespective of the rules that govern any decision, the predominant patterns of bargaining are aimed either at building consensus as far as possible in eventual decisions or else at preventing measures from getting to the ministerial level of negotiation until and unless there is more or less a consensus. To put this another way, the patterns that we observe do not correspond to typical roll call behaviour either in legislative bodies (national parliaments, regional or local councils and so forth) or in international organizations such as the United Nations.5 Second, relative power matters, but not in a way that can easily be quantified as regards the empirical data. Too few of the agreed decisions are submitted to explicit and public voting for us to have a secure overview of the patterns of decision- influencing, and in the recorded instances of contested voting the numbers are too small to support clear overarching assertions. Nonetheless, the data on contested voting by and large confirm the results of qualitative case studies and give them extra nuance. Although the data over the period from 1994 are not entirely comparable in their origins, they also show a rather consistent pattern over the 11 years that they record. In essence, explicitly contested votes are exceptional and are only recorded (with the exception of the EMU case cited above) on issues where it has been established in advance that a proposal will be agreed. This is because a ‘super-majority’ clearly favours the relevant proposal and the individual dissenters have decided not to push their dissent further. In other words, no blocking minority is present. Third, the data show rather clearly that a very large proportion of decisions agreed are crucially framed and shaped well before the ministerial sessions. We have separately surveyed the proportions of decisions taken as ‘A’ and ‘B’ points in the Council over the three months October, November and December 2004 and found that, out of a total of 626 decisions (operational as well as legislative), 411 were adopted without discussion as ‘A’ points, and 215 as ‘B’ points (requiring ministerial discussion). In these pre-Council phases of the decision-making process, implicit voting – or position-taking that could be supported, if necessary, by explicit vote-taking – almost certainly plays an important part, as qualitative studies have generally argued. But then two different phenomena can be observed at the ministerial level. On the one hand, we see decisions that we know were controversial earlier turn into widely endorsed outcomes. On the other hand, formal expressions of opposition by explicit voting may be directed at least as often at domestic constituencies as at other members of the Council. In other words, Member States are practising a form of ‘signalling’ either to each other or to outside audiences, indicating that they have some qualms about the decision being reached. Where we have to depend on qualitative case studies is for accounts of what persuades individual governments to switch votes from one side to the other in the case of closely fought decisions. Our data set could be used to investigate some cases of repeated roll calls on the same topic, in which individual Member States have changed their position over time, as well as to differentiate more thoroughly between different types of decision.

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Fourth, there are some rather clear differences between issue areas. In some fields, such as agriculture, fisheries and the internal market, explicit voting at ministerial level is clearly more usual and more routinized, while in others it is hardly observable. This suggests a pattern of path dependency. In yet other fields, as, for example, in the case of trade policy, the impact of implicit voting is played out at the level of officials. Our lack of detailed data from earlier periods makes it a little difficult to draw hard and fast conclusions on this. Nonetheless, it seems to be the case that routinized explicit voting at ministerial level or implicit voting at official level occurs more readily in those policy fields where there is a settled rhythm to EU decision-making, where the default position is that an existing agreement continues rather than that there is no agreement, where national positions are rather clear, and where habits of doing business together are rather well established. In contrast, in fields that are rather newer for the EU, the effort to broker agreement may be considerable but, once reached, there is a reflex to state that there is a consensus even on issues that are subject to QMV. But of course, in newer and more controversial issue areas, unanimity is still generally the retained decision rule under the treaties. Fifth, further work is needed on how the shadow of the QMV rule influences behaviour, whether to encourage implicit voting or to flush out where the potential blocking minorities may impede an agreement. In qualitative interviews (both those conducted by us and those reported in case studies by others), insiders mostly concur that the swing factor – in particular in the working parties and senior committee deliberations that precede ministerial sessions — is whether there is a determined blocking minority. If there is, the proposal is stalled. If there is not, then marginal dissenters tend to switch their efforts to extracting rewards or concessions in return for withdrawing their opposition. An unexplored dimension here is whether blocking minorities are mainly construed in a mechanical and numerical count of votes, or whether opposition from a ‘critical proportion’ of larger Member States is functionally equivalent. Finally, our data provide very slender evidence of active and organized coalition behaviour on contested votes. Neither the statistics nor the cluster analysis generate strongly significant patterns, although the dendrograms hint at some of the dimensions of contestation. Here, too, we need ways of getting more traction on what happens at earlier phases of the Council’s deliberations, as well as on how national negotiating strategies and tactics are developed. 21. ‘Main Conclusions of The European Union Decides’ en Franks Stokman y Robert Thomson, ‘Winners and Losers in European Integration’, 5 (2004) European Union Politics, pp. 5-23 (extractos) The volume The European Union Decides provides a systematic introduction to a range of explanations, formalized as models, of decision-making in the European Union. These explanatory models can be classified into three categories.

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The first category consists of models that focus on the decision-making procedures stipulated by the treaties and developed by practice. These procedures define the sequence of moves and, in combination with the distribution of policy preferences, which actors are pivotal. These models are referred to as procedural models. The structure of a procedural model is defined by the procedure considered. So there are different variants of both the consultation and the co-decision procedures, depending on whether the decision rule in the Council is qualified majority or unanimity. A procedural model generates predictions of the decision outcome on each controversial issue by applying the interpretation of the decision rule it contains, given the location of the reference point and the initial positions of the member states, the Commission and the European Parliament. Initial positions are assumed to reflect the preferences of the actors and are assumed not to shift during the process. Alternative procedural models have been developed owing to different interpretations of the procedures (particularly regarding the role of the European Commission and the European Parliament) and different assumptions concerning the linkages between issues within the same Commission proposals. The second category contains models that focus on the informal bargaining that takes place before the legislative proposals are adopted as laws. Formal institutions play only an indirect role in these explanations by determining whose interests should be taken into account. Procedures are seen as less important than bargaining and primarily as safeguards that ensure cooperation. Several models were considered and adapted to decision- making in the European Union. One of the models assumes that all actors try to find a cooperative solution that takes the interests of all actors into account. The interests of actors with higher stakes in the outcome of a controversial issue are assumed to be reflected to a greater extent in the decision outcome. This reasoning is contained in the compromise model, whose prediction is the mean of the positions of all actors on an issue scale, weighted by the power of each actor and the level of importance it attaches to the issue. The forthcoming volume (Thomson et al., forthcoming) contains a proof that this prediction is a first-order approximation of a well-known cooperative game- theoretical solution, the Nash bargaining solution. A second model, the domestic constraints model, is also based on a cooperative Nash bargaining solution, but takes into account the domestic constraints through which some member states have less flexibility than others to return home with compromise solutions far from their initial positions. A third model, the position exchange model, assumes that pairs of actors take advantage of situations in which both stand to gain by each supporting the other’s position on the issue that is relatively more important to the other. Such exchange of support is always advantageous for the pairs of actors involved but may well have strong negative consequences for others, who see the decision outcomes moving away from their initial positions as a result. A fourth model, the challenge model, assumes that actors also use non-cooperative strategies in this bargaining process to obtain the best outcome they can. The third category of models combines elements of informal bargaining with procedural rules. Coalition models have been developed and applied in The European Union Decides, in which

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minimal winning coalitions are evaluated against each other on the basis of the amount of conflict to be expected within them. Conflict is assumed to depend either on the spread of the initial positions of the actors within the coalition or on how evenly losses are distributed among the actors in the coalition. Coalitions that result in decision outcomes much further away from the initial positions of some actors than of others are assumed to engender more conflict than coalitions in which losses are distributed evenly. For issues where unanimity is required, the decision outcome predicted by the coalition models is about the same as that of the compromise model. For issues that must be resolved by QMV, only the interests of the set of actors within the coalition are taken into account and determine the outcome. A second model, the procedural exchange model, assumes that actors first exchange power resources, giving extra weight to issues that are of high interest to them at the expense of issues in which they are less interested. Subsequently, decisions are taken according to the relevant procedural rule, taking into account the redistribution of actors’ power during the prior exchange process. A third model, the conditional procedural model, assumes that complexity increases quickly with the number of controversial issues in a Commission proposal. The model therefore assumes that all controversial issues are first reduced to one overall dimension of conflict, and that subsequently the relevant procedural rule is applied to determine the outcome on that integrated dimension. Most of these models have until now not been tested in the context of EU decision-making. Some have been applied to very limited data sets and in small pilot studies. Others have been developed during the course of this project. None of the models has been tested on as large a data set as the one we have collected in this project. Never has such a variety of models been tested against each other in a contest to identify their relative performance. The overall results of the comparative testing of the models in the forthcoming volume are as follows. Bargaining models do much better than procedural models in generating accurate forecasts of decision outcomes. Among the bargaining models, the best predictions are given by models based on cooperative solutions that include the positions of all EU decision-makers. Unanimity, wherever possible, is a very strong norm in the EU, even when decision outcomes supported by only a qualified majority of actors are possible. Procedural rules matter in identifying the actors whose interests should be considered and the actors who should be given more weight than others, but also in sanctioning actors who follow their own interests against those of others. Like many legal regulations, procedures do not determine behaviour but set the boundaries within which action takes place. Decision outcomes in the EU tend to take into account actors’ essential interests, wherever possible, and actors avoid harming the essential interests of others. Non-cooperative bargaining models and bargaining models based on bilateral deals are less applicable, because the behaviour they predict often has negative externalities for others. In The European Union Decides, the models are tested on the basis of the accuracy of their predictions of decision outcomes. By contrast, the articles in this special issue focus primarily on the

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micro level by addressing questions of relevance to the winners and losers of decision-making processes in the European Union. Here, an actor’s success is defined primarily by the distance between the position it initially favours and the decision outcome. Together, the first two articles, the first by Torsten Selck and Bernard Steunenberg and the second by Stefanie Bailer, address a range of factors, from procedural rules to informal power resources, that empower certain actors more than others. The third article, by Javier Arregui, Frans Stokman and Robert Thomson, examines the bargaining mechanisms through which actors feel compelled or willing to relinquish support for their initially most favoured positions. The fourth article, by Antti Pajala and Mika Widgrén, also focuses on the actor level, by examining the differences between member states’ a priori voting power and their ‘empirical voting power’, which takes into account their positions on controversial issues. 22. Extractos de Robert Thomson and Madeleine Hosli, ‘Who has power in the European Union? The Commission, the Council and the European Parliament in Legislative Decision-Making, 44 (2006) Journal of Common Market Studies, pp. Introduction 391-417

What is the relative power of the European Commission, the Council of Ministers and the European Parliament (EP) in legislative decision-making in the European Union (EU)? What levels of resources do these actors possess that enable them to exert influence on each other and on the contents of legislation? The balance of power between these actors matters, because it influences the contents of legislation, which in turn affects just about every aspect of economic, social and cultural life in the EU’s Member States. Each of the three actors has distinct roles in the legislative decision-making process. The Commission holds the right to initiate legislative proposals, which it is widely acknowledged gives it considerable potential to influence the contents of legislation. However, the Commission’s proposals can be amended by, and need to be approved by, the Council of Ministers and, depending on the policy area, Parliament too. The Council and the Parliament hold legislative authority in the EU. The Council, where Member States’ governments are represented, is considered by some to be the most powerful institutional actor in the EU. The formal rules of interaction between the Commission, Council and Parliament are specified in the legislative procedure that applies to whichever proposal is being discussed. The choice of procedure depends on the Treaty article on the basis of which the Commission introduces its proposal. Today, the most important and widely used legislative procedures are co-decision and consultation. The specifications of the legislative procedures certainly influence the extent to which each of the actors is able to leave its mark on the contents of legislation. Under the co-decision procedure, the Council and Parliament are essentially equals, whereby the approval of both bodies is required before legislation can be adopted. The co-decision procedure as specified in the Treaty of Amsterdam, the version examined here, provides for the possibility of two parliamentary readings of

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a legislative proposal. In the event of a protracted disagreement between the Council and the Parliament, a Conciliation Committee is set up, composed of representatives of the Council and Parliament, with a view to formulating a joint text. The Committee must succeed in formulating a joint text and this must be approved by both the Council and Parliament for the legislative proposal to be adopted. Consultation is an older and simpler procedure than co-decision. Under consultation, the Commission proposes and the Council decides; the EP has an advisory function only. The relative power of these three actors has been a central element of many debates on law-making in the EU, even among scholars adopting similar research approaches. For example, there have been debates among formal modellers who have sought to understand legislative politics by examining the constraints and opportunities provided by procedural rules. The analyses are based on the premise that these procedures, or formal institutions as they are referred to, are the key factors influencing actors’ behaviour. Despite focusing on the same type of institutions, researchers using this approach have reached different conclusions on the effects of successive Treaty revisions on the power of these three actors. Differences in their conclusions are due to the indeterminacy of the formal rules, in the sense that these rules are open to interpretation. For example, some researchers have argued that the co-decision procedure introduced by the Maastricht Treaty reduced the power of the Parliament compared with the co-operation procedure it replaced, while others have argued that co-decision increased Parliament’s power. Further, a recent review of formal models of the legislative procedures currently used in the EU argued that there are different interpretations of these institutions, each of which has different implications for the relative power of the Commission, Council and Parliament. For example, in the rules describing the current version of co-decision, although the Commission is charged with introducing the proposal, what happens in the Conciliation Committee is open to interpretation: does the Council make a proposal to the Parliament concerning the content of the final legislation to be adopted, or does Parliament make this proposal? This matters, since the actor able to make the first move has a distinct advantage when it comes to leaving its mark on the legislative proposal just before approval. Researchers who include informal institutions in their analyses also reach different conclusions regarding the balance of power between the Commission, Council and Parliament. In contrast to formal institutions – written rules enforced by third parties – informal institutions are unwritten, consist of norms of behaviour, and are enforced by the actors themselves. In their consideration of the balance of power between the Council and the Parliament under co-decision, Farrell and Héritier argue that informal institutions are of vital importance. They contend that ‘the dynamic interaction between formal and informal institutions ... has important consequences for legislative outcomes and the relative decision-making power of European political actors’. Informal institutions are shaped by actors’ different time horizons, sensitivities to failure and levels of resources. These factors are said to shift the balance of power in favour of the Parliament. For example, the Parliament’s time horizon is longer than the Council’s, which is largely defined by the

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six-monthly presidencies. This gives the Parliament the advantage in negotiating with the Council. Further, Parliament has an advantage in terms of resources, since parliamentary committees focus on particular areas of policy, while officials from the Committee of Permanent Representatives (Coreper) in the Council tend to be generalists. Moreover, Farrell and Héritier report that parliamentarians have been expanding their influence under the consultation procedure by using informal rules that have been developed in the practice of the co-decision procedure. With the data presented in this article we contribute to the ongoing debate on the relative influence of the institutional actors in EU decision-making in two respects. First, we describe the views and quantitative judgements of a select group of prominent practitioners of European affairs regarding the balance of power between the Commission, Council and Parliament. Given the variance we find in practitioners’ views, it should perhaps not surprise us that academics’ views also differ. Second, we incorporate alternative sets of judgments into alternative variants of a simple bargaining model, and apply these to a large number of controversial issues that were the subject of debate in EU legislative decision-making. We find that the views of a minority of practitioners, those who attribute relatively modest levels of power to the Commission and the EP, generate the most accurate predictions. This allows us to infer which judgments on the balance of power are most accurate. This analysis identifies the net effect of formal and informal institutions on the three actors’ power, as defined by their ability to shape decision outcomes in legislative decision-making. The results also provide indications, although not precise estimates, of the relative impact of formal and informal institutions in defining actors’ power. These analyses do not distinguish between the variety of alternative strategies actors may employ when using their power. Another limitation of the present analyses is that they do not incorporate the role of the European Court of Justice. Instead, we focus here on the three institutional actors who are most relevant in legislative decision-making prior to the adoption of legislative proposals. This article is organized as follows. Section I describes the design of the small survey of practitioners and reports the main findings of the survey. Section II describes and illustrates the model used to test alternative views on the balance of power in the EU against each other. The model is called the compromise model, a computationally simple, but predictively powerful model of political bargaining. Section II also describes the data to which the model is applied. Section III contains the analyses of the data on EU decision-making using the model. It begins by illustrating how the application of the model enables us to differentiate between alternative views on the balance of power among the Commission, Council and Parliament. The analyses in which the two alternative views on the balance of power – referred to as the Council-centric view and the supranational view – are then presented. These inquiries are supplemented by exploring a larger number of alternative views on the balance of power, to identify which estimates allow the model to generate the most accurate forecasts. We conclude by drawing inferences on the relative power of the Commission, Council and Parliament in legislative decision-making.

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I. The Survey The survey on the distribution of capabilities between the Commission, Council and Parliament was fielded among practitioners of European affairs. This small survey was part of a larger project ‘Decision-Making in the European Union’. The respondents were interviewed in person, asked to discuss their views and, where possible, quantify their judgments on the relative power of the three actors. The interviews were held between September 2000 and July 2001. The selection of practitioners and the structure of the interviews are outlined first. Subsequently, the article reports the main findings concerning the arguments they used in support of their judgments, and the numerical estimates they gave. Survey Design The practitioners were selected such that, although the survey was small, the results would represent the views of a range of well-informed individuals. Given the small size of the sample (21) and the distribution of the informants (most were from the Commission or the Council), this survey should not be considered representative. Instead, it aims to explore the opinions of a range of informed practitioners and to generate hypotheses for further investigation. Ten of the 21 informants were officials from the Commission, two from the Council Secretariat, seven from the permanent representations of the Member States in the Council and two from the EP. Most were selected on the basis of their professional position. They had been working in the EU for many years, and/or had attained a position such that they had a vantage point from which to observe a range of decision situations. For example, two of our informants had headed the Commission’s civil service. Most of the civil servants from the permanent representations were responsible for co-ordinating decisionmaking in Coreper. The interviewees were also selected due to the fact that they displayed a broad knowledge of EU affairs in previous discussions with them. The interviews were semi-structured. The judgments on the relative power of the Commission, Council and Parliament were elicited using a standard request and a general procedure.' The standard request was worded as follows: Within the policy domain (specify domain) subject to (type of legislative procedure, including Council voting rule), the different stakeholders have different capabilities or amounts of potential to influence decision outcomes. This ability is based on a number of different resources: for example, the formal authority to take decisions, financial resources, information, access to other important stakeholders, leadership of a large number of people etc. Please indicate the capabilities of each stakeholder on a scale from 0 to 100.

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When responding to this request, the interviewees were asked, first, to rate the capabilities of the three actors – the Commission, Council and EP – relative to each other. These interviews resulted in 36 sets of estimates on the relative capabilities of the Commission, Council and Parliament, 18 relating to the co-decision procedure and 18 relating to the consultation procedure. Some of the informants indicated that their estimates were specific to a particular policy area subject to a particular legislative procedure. For example, one informant provided different estimates for the area of the internal market, subject to co-decision and transport policies, also subject to co-decision. Others made an overall judgement on the distribution of capabilities for decision-making under a given procedure without distinguishing between different policy areas. It was left to the informants themselves to decide whether to concentrate on a legislative procedure in general or to focus more specifically on a policy area. The question was intended to obtain judgments on the capabilities of each actor relative to those held by others. To assist the informants in making these judgments, hypothetical coalitions of actors were posed and compared to others; for example, ‘what would happen if the Commission took one position and the Council and EP another on an issue they attached equal importance to?’. Through such comparisons, an attempt was made to gauge the relative weight that should be attributed to the three actors. Although a scale of 0 to 100 was suggested and most informants stayed within this range, they were encouraged to use any numbers they felt comfortable with to represent their judgments; it was emphasized that the relations between the numbers were more important than their absolute values. In most cases, the informants found it easiest to attribute a score of 100 to the actor or actors that in their view held most capabilities and to rate the others relative to this score. Others preferred to describe the relations using other numbers: such as Commission 70, Council 80 and EP 60; or ‘one third for each of the three institutions’. To make these estimates comparable with each other, they were re-scaled after the interviews such that the Council has a score of 100, and the other two institutional actors are scaled higher or lower than this score. So, for example, Commission 70, Council 80, EP 60 becomes Commission 87.5, Council 100, EP 75. It was also possible for the informants to rate the three institutional actors equally. Survey Results Since the informants had to justify their numerical estimates, the interviews yielded a considerable amount of qualitative argumentation relating to the power relations. These arguments are summarized below. Despite the similarities between the qualitative arguments mentioned during the interviews, the informants provided quite different numerical estimates, as will be discussed later in this section. Box 1 contains a list of the 12 arguments forwarded by at least two of the 21 practitioners consulted. A detailed report was written on each of the 21 interviews, describing the arguments used by the informants when rating the three actors’ relative capabilities. The arguments listed in Box 1 were

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distilled out of the many examples, personal experiences and anecdotes contained in the reports. The most common argument advanced is that the Commission has almost exclusive right to initiate proposals. Of course, the initiating role played by the Commission is a prominent feature of many of the procedural models referred to earlier. However, the informants indicated that the importance of the right to initiate proposals was not confined to the Commission’s ability to locate its legislative proposal somewhere in the policy space, as depicted by the procedural models. The right to initiate also gives the Commission the opportunity to frame the proposal in more general terms, by defining the terms in which issues are discussed. Further, the Commission’s influence is not restricted to the formulation of the initial proposal. It is also actively involved in the policy discussions in the Council, and in negotiations between the Council and the Parliament. Despite similarities between the practitioners’ qualitative arguments, a substantial amount of variation is present in their numerical judgments on the relative capabilities of the Commission, Council and Parliament. The figures in Table 1 summarize the judgments on the power of the three institutional actors. Most of the interviewees preferred to discuss the power relations in the context of a defined policy area subject to a certain procedure (e.g. agriculture subject to consultation and QMV voting), rather than a procedure in general (e.g. all policy areas subject to consultation). Box 1: Summary of Arguments Relating to the Relative Capabilities of the Commission, Council and Parliament Arguments Regarding the Commission’s Power 1. The Commission has the almost exclusive right to initiate and frame proposals (12 reports). 2. The Commission is adept at forging political deals between other actors, both within the Council and between the Council and EP. This provides the Commission with a strong potential to influence the decision outcome (6 reports). 3. It is easier for the Council to accept than to amend a Commission proposal (4 reports). 4. The Commission has the potential to withdraw a proposal before the Council has adopted it, at least under consultation and the first stage of co-decision (2 reports), although this potential is of limited use in practice (2 reports). 5. The Commission has great expertise on the policy areas affected by its proposals (3 reports). 6. Extensive consultation and arbitration prior to the introduction of the proposals give the Commission authority during the discussions with the Council and EP (2 reports). 7. After the release of the proposal, the Commission is usually able to present a consistent line and united front in discussions with the other institutions; this cannot be said for the Council and EP (2 reports). Arguments Regarding the Council’s Power 8. The Council derives much of its capabilities from the strength of the national bureaucracies that support the Member State representatives, providing them with expertise (2 reports). 9. In the Conciliation Committee at the end of the co-decision procedure, the Council is generally better organized than the EP and is able to present a consistent policy stance (2 reports).

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Arguments Regarding Parliament’s Power 10. The formal rules of the co-decision procedure provide the EP with a potential comparable to that of the Council to influence decision outcomes (5 reports). 11. The EP’s lack of expertise on the technicalities of policy often means that it cannot make full use of the potential it has according to the procedural rules (3 reports). 12. Even under the consultation procedure, the Parliament’s opinions are taken into account, particularly by the Commission (5 reports). Note: The number of the 21 interview reports that contained this argument are in parentheses. There is a substantial amount of variation among the estimates, even within sets of estimates that are said to refer to the same policy area, subject to the same legislative procedure. The standard deviations reported in Table 1 are high. Even when the estimates were elicited by the same interviewer, from individuals from the same organizations, large differences are found. (HERE TABLE 1) For example, an informant in one of the permanent representations was asked for his judgement on the relative capabilities of the three actors in the policy area of agriculture (subject to the consultation procedure and QMV in the Council), to which he responded: Commission 15, Council 100, EP 3. On the same day, the same interviewer posed the same question to another informant from the same delegation and obtained the estimates Commission 100, Council, 100, EP 0. A closer inspection of the estimates reveals that there are two groups of estimates for each legislative procedure, each reflecting a distinguishable view on the relative power of the supranational actors relative to the Council under the consultation and co-decision procedures. We label these views the Council-centric view and the supranational view. Figure 1 shows the frequency distribution of judgments on the Commission’s capabilities on issues subject to the consultation procedure, relative to the Council (the Council is given a score of 100 for presentation purposes). In four of the estimates, relatively modest scores are attributed to the Commission, in the range of around 20–40. In the remaining 14 estimates, considerably higher scores are attributed to the Commission, in the range of around 80–140. Similar distinctions can be made regarding estimates of the Commission’s capabilities under co-decision, and regarding the estimates of Parliament’s capabilities under consultation and co-decision (see Table 2). Under co-decision, we distinguish between a group of estimates in which the EP is said to have equal or greater weight than the Council, and a group that attributes less capability to the EP than to the Council. Within each of the two sets of estimates, there are still differences between the numerical estimates and the supporting qualitative argumentation. However, the variation is considerably smaller than that found among all the estimates.

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The practitioners’ judgments do not appear to vary systematically by the institution with which they were affiliated. Such a bias might have been expected. It might, for example, have been supposed that civil servants from the permanent representations of the Member States would attribute more capabilities to the Council relative to the Commission and EP. (HERE TABLES 2 AND 3) Table 3 provides information on the judgments on the relative power of the actors by the location of the practitioners who provided these estimates. Although the numbers of observations are limited, there do not appear to be large and consistent differences. It might be ventured, however, that officials from the permanent representations hold a somewhat more Council-centric view of the balance of power under the consultation procedure than do other informants. Given the debates among academics on the relative power of the institutional actors in the EU, it should perhaps not be too surprising us that practitioners hold a similar variety of views. In the following section, these alternative views are explored in more depth. (…) Conclusions The findings reported in our article have four implications. The first and most obvious pertains to our understanding of the balance of power between the three institutional actors in the time period considered here. The results indicate clearly that the Council-centric view on the balance of power among the European Commission, Council and Parliament is the more accurate depiction of recent legislative decision-making. As such, the findings support accounts of the EU decision-making in which Member States’ interests are seen as important in defining decision outcomes. It would be inaccurate to dismiss this as obvious. Most of the practitioners we interviewed attributed much more power to the supranational institutions, the Commission and Parliament, than our findings suggest is appropriate. Furthermore, many analyses of the EU’s formal decision-making procedures suggest that the Parliament is essentially on an equal footing with the Council under co-decision (for a recent review see Selck and Steunenberg 2004). This does not, however, imply that actors other than the Council are marginal. The Commission and Parliament – and also a range of other actors, including domestic and transnational interest groups – may affect the policy positions that governments advocate in negotiations within the Council, thereby exerting indirect influence on decision outcomes. Further, the activities of the supranational actors may feed back into the process of domestic preference formation (Stone Sweet and Sandholtz, 1997).

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The results indicate that the Commission and Parliament have substantial weight in the decisionmaking process, even though those weights are far less than that of the Council. Even the Councilcentric view tested above attributes considerable power to the Commission and Parliament. This becomes apparent when the relations between the actors are depicted numerically. With regard to the qualified majority variant of the consultation procedure, our best estimate is that the Commission has a power score equal to the sum of two or three large Member States; the same is true of the Parliament under the co-decision procedure. Under the QMV variant of consultation, where the Parliament’s opinions are non-binding, its opinions nevertheless appear to affect the contents of policy. Here, the weight of the Parliament is similar to that of a large Member State. The second implication is that the formal procedures or ‘rules of the game’ have a considerable impact on the power of each of the institutional actors. This finding should surely be welcomed given the considerable amount of academic investment devoted to the study of these formal procedures. Substantial differences were found in the balance of power between the three institutional actors, depending on the legislative procedure under consideration. In general, when controversial issues need to be resolved by the consultation procedure and unanimity voting in the Council, the preferences of the Commission and Parliament are of limited relevance in determining the final policy outcomes. In our analyses, this refers to issues in the areas of justice and home affairs, taxation and foreign policy. It come as no surprise that the supranational actors’ preferences play less of a role in these policy domains, since European policy in these areas is still in its infancy. In the qualified majority variant of the consultation procedure, the Commission and Parliament have more potential to influence the contents of the decision outcomes, but still nowhere near the level of the Council as a whole. Compared with the qualified majority voting variant of the consultation procedure, the Commission appears to be weaker and the Parliament stronger under the co-decision procedure. The third implication pertains to the variability of the actors’ influence across the range of issues considered. This should encourage us to pursue a more detailed specification of the conditions under which the Commission, Council and Parliament have more or less power to shape decision outcomes. The variation in actors’ power is evident not only across different decision- making procedures, such as consultation and co-decision, which have been studied extensively; it is also present across different issues subject to the same decision-making procedures. Many of our key informants pointed to the importance of differences in power across policy areas. In the same vein, it would be possible to examine the relative power of the institutional actors across fundamentally different types of issues. Burns’ (2005) study on the influence of Parliament has started to explore this line of research. Using a case study approach, Burns found that Parliament has more influence on regulatory issues than on distributive issues. The dataset used here allows these and similar hypotheses to be tested in a more quantitative fashion.

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The fourth and final implication is that explanations of actors’ power in EU decision-making should consider, and preferably integrate, both formal and informal institutions. This article has not addressed the effects of different kinds of institutions directly; instead it focused on describing the resulting balance of power between the Commission, Council and Parliament. Nevertheless, it is clear that the power relations identified here are not the result of formal institutions alone. For example, legalistic analyses of the co-decision procedure may attribute equal power to the Parliament and the Council. However, the results presented here indicate that the Parliament’s power is much lower in practice. Some of the practitioners indicated that the Parliament’s position is weakened by the lack of technical policy expertise among MEPs compared with the Council, whose Member State representatives are supported by large national bureaucracies. Furthermore, legalistic analysis of the consultation procedure may attribute less power to the Parliament than it has in practice. Some of the practitioners interviewed in this study indicated that Parliament’s power under consultation derives in part from the receptivity of the Commission to its views. The necessity of integrating formal and informal institutions when analysing power in the European Union becomes ever more pertinent in an EU of 25 Member States. One analysis of the Nice Treaty reforms suggests that the changes to the formal decision rules – particularly the new triple majority requirement in the Council – may have shifted the balance of power in favour of the Council (Tsebelis and Yataganas, 2002). Similarly, Hosli (1998) claimed that enlargement in combination with maintenance of the QMV decision threshold could shift power towards the Council in the EU’s inter-institutional setting. However, enlargement will undoubtedly also bring changes to the informal sources of power. Some of our informants argued that the Council’s power derived partly from its ability to present a united front in its dealings with the Parliament in the Conciliation Committee. Given a more heterogeneous set of preferences in the Council of 25 Member States, it is questionable whether the Council will maintain its pre-eminent position in the future. Therefore, possible trends towards increased intergovernmentalism could be partially counterbalanced.

23. Jack Hayward, ‘The Elusive European Union’, introducción y conclusiones de ‘Leaderless Europe’, editado por Jack Hayward, Oxford: Oxford University Press, 2008

Why has the management of European integration over more than half a century's development failed to generate a clearly identifiable leadership? The answer may simply be that 'Europe has made a principle of powerlessness,'. The stubborn defence of an increasingly residual national sovereignty coupled with the fear of a remote, centralized, and intrusive authoritarianism, cultivated by attacks upon 'Brussels bureaucracy' and a purported 'European superstate', have resulted in the European Union deliberately shunning the institution of an overriding leadership. Instead, piecemeal powersharing by nation statesmen seeks surreptitiously to promote an integrationist strategy incrementally, by fits, starts, and stops. Out of an obscure multiplicity ofinteractions, the unforeseen outcomes are

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elite compromises of imprecise parentage. The complex process that has underpinned the perpetuation of powerlessness has to be investigated if the accuracy of the assertion of principle is to be vindicated and be seen to have been practised. How did initial imaginative innovation give way to lacklustre, routine indecision? THE POLYCENTRIC CONTEXT It is not the informed scepticism of those who understand that the European Union is based upon a rejection of any formal hierarchy between its member states that has occupied the forefront of public discussion. It is the relentless promotion of fear of a remote, centralized, and intrusive authoritarianism that predominates, even though the colourful cases illustrating these peremptory assertions are usually mendacious or misleading. Far from being the superstate of Eurosceptic daymares, the European Union has evolved into a highly poly-centric and pluralist consociational polity within a mega-confederal system of consensual decision-making by its constituent memberstate elites. So as not openly to challenge the sancrosanct principle of national sovereignty, the successive incarnations of integrating Europe shunned visible leadership. It did so in favour of a dispersed elite network of more or less committed supra-nationalists, surreptitiously steering a visible collective political leadership of nation statesmen, who tactically legitimized the incremental attainment ofan integrationist strategy. The successive incarnations of the European Union have been deliberately dedicated to a polycentric pluralism and consociational confederalism calculated to avoid the emergence of uninhibited leadership. The nominal leaders can disclaim responsibility for the heavily amended and compromised results of processes that alternate between longer periods of secretive, piecemeal negotiations and shorter periods of public communication of the accomplished facts, between the informal understandings arrived at and the formal ratification that imparts to them an official legitimacy. They can also deny responsibility for the failures and paralysis that frequently result from resignation to non-negotiable nation-state intransigence, particularly when unanimity is a precondition of reaching a decision. Has the European Union an inbuilt propensity to immobility that, notably through appeals to an intangible acquis communautaire, preserves inefficient and inequitable practices that are far removed form the ideals of its protagonists? The explanation of both its unattractive practices and incapacity to devise simple and effective solutions to them can be traced to the European Union's origins. Because the increasingly intrusive activities of a faceless 'Brussels often seemed to alienated national mass publics not merely remote and incomprehensible but disturbing, it has been possible for populist demagogues to mobilize opposition to decisions lacking the trappings of habitual democratic legitimacy. Elite conspirators in the enlightened European public interest are easy victims of a mass media-orchestrated denigration. Because compromise bargains are made covertly, to allow a confidential exchange of concessions that would not be acceptable in isolation, the

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necessary lack of transparency lends credence to suspicions of sell-out that can be unscrupulously exploited. The need to identify adversarial winners and losers hampers the attainment of the cumulative benefits of positive-sum agreements by reducing controversial issues to intransigence inducing zero-sum discord. Despite the determination to sidestep the sensitive issue, transnational leadership is especially important to impart authority to EU institutions. Lacking popular legitimacy, leaders convey an uneasy sensation of having both feet firmly fixed in mid-air. Without the traditional loyalties of nation states, to whom citizens primarily look to satisfy their wants and with which they identify themselves, the EU has to rely on treaty-based legal authority. So it seems to require the infusion of a prominent political personality, a Mr Europe, to attract public support for what are generally regarded as complex, unfamiliar foreign authorities, with future-orientated ambitions that lack the capacity to arouse enthusiasm from those with more urgent preoccupations. However, this is a fatally simplistic if tempting short-cut solution to transnational leadership in a peculiar political entity that cannot be satisfactorily conceived by analogy with a nation state or international organization. The acknowledged absence of a single European demos means that direct democratic leadership is precluded, so the EU has had to fall back on a combination of indirect democratic legitimacy through member-state leaders, non-democratic institutions such as the European Commission, the European Court of Justice, and the European Central Bank, and a European Parliament with limited powers, to which the intergovernmental European Council and Council of Ministers are not accountable. An inability to institutionalize a more legitimate and identifiable leadership, which has largely taken for granted the views of their citizens and contented itself with symbolic manifestations of European identity—a flag, an anthem, a passport—has meant that while the integration process has nominally moved from a Common Market to an Economic Community and then a Union, it has in practice seemed to be shifting in the opposite direction. It has been reversing from a would-be union of peoples, via an actual union of states, into a minimal union of markets. Enlargement has accentuated an attenuated sense of community, resulting in marketization by default. While pleasing some, this retrogression has spread an impression of political leaders unwilling or unable to provide the impetus necessary to meet the competitive challenges in an innovative rather than inertial fashion. In 1968 Ralf Dahrendorf referred to the 'cartel of elites' types of leadership as being anxious, defensive and rigid, 'designed to reduce risk and maintain the status quo'. Is this the fate of a European Union that seems to fit the confederal consociational model? The European Economic Community extension of the European Coal and Steel Community (ECSC) into a Common Market was initiated by leaders of the three small states of the Benelux Customs Union in 1955, following the precedent of the nineteenth-century German Zollverein. However, unlike the predecessor economic confederation, it was not preceded by political confederation and succeeded by political unification. Determined to reaffirm their sovereignty, the

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six signatories of the Rome Treaty combined retention of a fragile intergovernmental balance of power with structures that could be adapted to a process of voluntary integration if acceptable to the member states. To avoid hegemony, it was a 'contract between equals to act henceforth as one', initially for explicitly limited purposes. The Treaty accepted implicitly that, not forming a democratic political community, majority decision could not operate. Adopted 'top down by leaders, not based on a 'bottom-up emotional unity-in-diversity, their federalist inclinations had to be restrained with the resulting potentially confusing institutionalized confederal compromise only permitting further integration if this became practicable. Against de Gaulle s ambitious view that European political unity should have priority, Jean Monnet justified prudently beginning with the ECSC. 'We believe in starting with limited achievements, establishing de facto solidarity, from which a federation would gradually emerge. I have never believed that one fine day Europe would be created by some great political mutation and I thought it wrong to consult the peoples of Europe about the structure of a Community of which they had no practical experience'. After the French (and Dutch) had over fifty years' experience, they voted down a proposed European constitutional treaty in 2005 that combined a consolidation and mutation that proved too indigestible for the mass public, despite desperate elite attempts at persuasion. To secure unanimity, elite conflict resolution had to be secured by extra-democratic reciprocal accommodation, the mutual concessions process being protected from publicity until agreement was reached. Presented with a fait accompli, the parliamentary representatives and the people more generally might not accept the concessions negotiated, with a resulting disillusion and alienation from the European enterprise and its functionally surreptitious practices. This is particularly likely because 'consociationalism highlights the politics of the relationship between the leaders and the led, and the way in which the interests may depart from those of the latter in the process'. Quite apart from sometimes exacerbating rather than harmonizing conflicts of national interest, with consociational elitism a sense of 'community is more likely to emerge despite than because of the intentions of leaders'. So, while consociational practices impart a dynamic corrective to confederation's static legalism, they have made it more difficult to transform 'a system of democratic governments into a democratic system of government’. The result may be not merely intergovernmental dissensus but dissociation between the European demoi.The stillborn proposed constitutional treaty underlined the confederal character of the EU through its article 60 formally specifying the right of member states to secede. Direct democracy's 2005 national backlash against consociational elitism reminds us of the need to recall, as Giovanni Sartori did in The Theory of Democracy Revisited, why leadership is especially indispensable in democracies that are allergic to overt inegalitarianism. He successively quotes James Bryce: 'Perhaps no form of government needs great leaders so much as democracy does'; Salvador de Madariaga, 'Despite appearances, liberal democracies are dependent on leadership even more so perhaps than other, more authoritarian forms of government; for ...their natural tendency

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to weaken the springs of political authority must be counterbalanced by a higher level of...authority on the part of their leaders'; A. D. Lindsay, 'If democracy is to survive it will have to employ and use every bit of skill and knowledge and leadership it can get hold of. This complicated interdependent world in which we are living cannot be run without knowledge and skill, foresight and leadership.' These remarks dating respectively from 1888, 1936, and 1940 take on even greater significance in the contemporary context of the European consociational confederation. The European misrepresentative leaders who substituted their own preferences for those they purported to represent had placed their independent responsibilities for too long above their need to be responsive to those they could not persuade and in 2005 their pretensions were rudely exposed. Public confidence in the working of European Union institutions has fluctuated in part with perceptions of their economic performance, but there has been secular decline in the links between leaders and led. This was because 'Heads of Government and national ministers committed themselves to grandiose objectives without explaining the awkward implications to their domestic publics.' Confidential, complex decisions taken in a confederation of committees was coupled with 'the conspiracy among officials and ministers to say one thing to each other and another to their national publics (which became) so close to second nature that the problem of public consent was taken for granted'. The select, self-conscious insider agents of change pursued integration by stealth, facing the many ill-informed outsiders with repeated faits accomplis. 'What was sought was not enthusiastic public involvement in the steps by which the content of the common European interest was defined. All that was required was public support and acquiescence after the event'. European election and opinion surveys indicate that 'voters are consistently, and considerably, more sceptical about integration policies than their representatives', reflecting a 'structural conservatism' that is significant because 'voters views have a greater impact on elite orientations than vice versa'. Because the participative direct democratic ideal requires that in some sense there is 'government by the people' and liberal democratic representative reality has operated at a great distance from them, the legitimacy of leadership is exposed to dubiety. When, alerted by the populist media, public suspicions are aroused, the political and administrative Eurocratic elites are disposed to retreat into 'leading from behind or leaderless drift'. The cost of consensus may be inertia supplemented as expedient by improvisation. RETROSPECT AND PROSPECT Faced after the Second World War by a domineering (US) friend and a menacing (Soviet) enemy, six West European countries tentatively ventured, initially, into cautiously limited economic integration. To avoid confronting controversial questions of principle, the founders deliberately took refuge in imprecise/flexible stipulations of the boundaries, power, policies, and ultimate purposes of an enterprise that some hoped would eventually become a United States of Europe by stealth. Having embarked on a 'headlong flight into an unknown future, in order to escape from a

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fearful present'—Andrew Shonfield's translation offuite en avant—the founders sought 'a modern surrogate for a federation' in which it was not 'point of arrival at a final union which it is important, or even possible, to foresee, it is the joint decision to embark on the enterprise and then the experiences along the route that matter'. So, no limit was placed on the 'European' states that could be included as members. No restriction was imposed upon the policies that might be dealt with collectively rather than separately. No specification was made of what elements of national sovereignty would be shared. Visionary elite aspirations were concealed by a circumspect pragmatism from peoples judged unready or unable to understand the imaginative necessity to transcend their parochial nationalisms, so recently exacerbated by a war that had harshly exposed their destructive proclivities. Before considering what has been accepted as the Community method of European integration, it is necessary to see how this ingenious approach does not fit with either of the contrasting methods of decision-making that I dubbed thirty years ago 'humdrum and heroic', although it shares some features with both of them. Following on Charles Lindblom's concept of 'muddling through', the humdrum style does not have an explicit, overriding, long-term objective and action is incremental, departing only slightly from existing policies as circumstances require. Humdrum decisions 'are arrived at by a continuous process of mutual adjustment between a plurality of autonomous policymakers operating in the context of a highly fragmented multiple flow of influence'. The heroic decision-making style sets explicit long-term objectives to be pursued by maximum coordination of public policies and by an ambitious assertion of political will. It was sceptically observed of the heroic style that it is 'a most difficult activity with limited probability of clear-cut success and high probability ofstarkly visible failures at best'. In practice, 'under the guise of reducing uncertainty there is a plenty of scope for wishful thinking and public deception'. The history of European integration offers many examples of both decision-making styles in operation. Adept at disguising heroic purposes by incremental innovation, the acknowledged father of European integration, Jean Monnet, after a long career in using his entrepreneurial skills in promoting disinterested international causes, launched French planning with American aid during 1946-50 before heading the ECSC that set the initial pattern that has endured despite drastic modifications. His experience in promoting international cooperation between sovereign governments in foreign economic policy led him to combine the implicit pursuit of heroic long-term integrationist objectives by humdrum incrementalist means. Monnet's method of engrenage has been described by George Ross as 'an "action trap" in which agents once set on a specific course of action, find themselves obliged to take a set of further and much broader actions that point them in a direction in which they did not necessarily intend initially to go'. As used by Monnet and those who emulated him, it was 'a way ofbeing federalist without making too many people frightened about it' just as within France he had successfully promoted concerted medium-term planning by people who were often wanting either to impose or oppose it and generally did not comprehend what he was doing.

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Although he shared Monnet's purposes, Shonfield percipiently warned against 'the excessive reliance of the tacticians of the European Community on the blackmail principle of international politics: you manipulate your innocent partners into a position which is more compromising than they had imagined, in the hope that they will then find that they can't afford to opt out'. The resentment that the engrenage action trap caused over the years has resulted in a distrust of surreptitious integration by manipulation of some would-be leaders by others acting as conspirators in the European interest. What it has ensured is that some latecomer governments— notably Britain, Denmark, and Sweden—have occasionally decided that they can afford to opt out of specific activities, while even in the heartland of the original six—as demonstrated in the 2005 referendum results in France and the Netherlands—mass publics have shown their revulsion from what was perceived as 'headlong flight into an unknown future' symbolized by the proposed constitutional treaty for an ever-expanding Union. Only one president of the European Commission, Jacques Delors, was to implement fully the Monnet method, in his capacity for behind-the-scenes manipulation of both his colleagues and more importantly the heads of member governments. Having spent much of the 1960s in the Monnetcreated French General Planning Commissariat, Delors was also, like his exemplar, an institutional outsider who became a consummate insider. Monnet not only knew where decisions were made; he intimately knew the few who made them. As the capacity to decide was usually dispersed, only someone who could be trusted by a network of influential friends could play the crucial role of unobtrusive coordinator and de facto leader from behind the scenes. Because both Monnet and Delors found party politics repellent, they preferred to persuade those who could secure subsequent democratic endorsement as representatives of their peoples when this was required and unavoidable. Their gift was to carry conviction with the few who counted, leaving them to persuade the public. Perhaps out of despair at the unwillingness of many European leaders to discharge this duty, Delors increasingly came out into the open, assuming an overtly political role that inhibited his ability to provide the politicians with the policies for which they wished to take the credit without the associated criticisms. Unwilling to the play the role of a conventional political leader, Delors was condemned to the frustration of watching the heads of member governments warily refusing to fall into the beneficent action trap he had set for them. Particularly since its enlargement to twenty-seven member states, from January 2007 the EU clearly has an excess of entrenched 'veto players' as described by George Tsebelis, i.e. 'collective actors whose agreement is necessary for a change in the status quo'. He explains that the potential for policy change declines as the number of veto players, the dissimilarities in their policy standpoints, and their internal cohesion increase. This means that the dynamic Commission-led action trap has reversed into a veto-encumbered joint-decision trap and inability to adapt in more than incremental ways to changing circumstances. Because Commission and European Court of Justice interventionism has been curbed, substitutes for member-state leadership are stifled. The EU's

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inability—spectacularly in the case of the constitutional treaty proposals in 2005—to secure popular ratification of the agreements reached in the Convention and by the member governments, is eloquent testimony to the difficulty of overcoming the paralysing propensities of a polarized institutional structure, diverging policy preferences, and dissensions within member states, especially but not only when decisions have to be unanimous. The operation of the qualified majority veto within the various configurations of the Council of Ministers maintain a significant constraint on collective action. The additional veto players introduced by the referendum in some member states proved fatal to ratification. Faced by the need to take unpopular decisions, the failure of democratic 'leaders' to show leadership qualities in an interdependent transnational context results in the transfer of their personal discredit to the collective enterprise of European integration. A public opinion that until recently seemed even more uninterested than uninformed, disoriented when not apathetic, cannot be mobilized for ambitious purposes by methods that have been only episodically successful in the past, even though the original impetus has been perpetuated, paradoxically, by inertia rather than positive support in the absence of either sufficient galvanizing fear or hope. The surreptitiously heroic, inspiring, visionary style has relapsed into humdrum, unimaginative routine and demobilizing quietism, concentrating on day-to-day crisis management. Transactional, inconclusive problem-identifying has come to predominate over transformative, pragmatic problem-solving, resulting all too often in defeatist indecision because of the absence of the capacity to overcome the cumbersome administration of things by the collective government of the Union through a combination of collusion, impulsion, and persuasion. The alternative is to surrender to inhibition and eke out a precarious hand-to-mouth existence in the hope that unforeseen events will precipitate changes on which the complex of'leaders' is otherwise unable to agree. As the potential outcome becomes clearer, failure of nerve threatens to paralyse those faced with the opportunities that doubtless will arise even when they do not need to create them. With many hands on the wheel, steering through the transnational rapids is a perilous exercise. Experience has shown it is not impossible but needs sometimes to be rather more riskily heroic and rather less cautiously humdrum if stasis or, worse still, disintegration is not to be the European Union's fate. In the EU context, the current preference for using the looser appellation 'governance' instead of the precise term 'government', reflects an implicit acceptance of the absence of effective institutionalized leadership. Deploring its practical consequences without creating its preconditions constitutes a wilful refusal to face distasteful facts. The result is resignation to becoming the object of forces the EU is incapable of controlling because it has not achieved self-mastery. At the least, member governments should not evade the leadership function of persuading their peoples before committing them to changes for which they are unready, however frustrating the resulting slower

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pace of urgent adaptations may be. Meanwhile, we should eschew both elite wishful thinking and public deception. The time for action traps is over. We must indefinitely get used to living uneasily with leaderlessness. As a corrective to a depressing defeatism caused by the inability to fulfil excessive expectations, the prevailing view that confederalism had become obsolete was challenged by Daniel Elazar because the USA's rapid replacement of confederation by federation has not been the model followed in European integration, which had its own logic and momentum. 'The European Community developed as a new style of confederation in a new way'. It had 'deliberately rejected the large ends of federation and sought the more limited linkages of confederation ...This has been achieved not as a way station on the road to a United States of Europe but to reach a more confederal end'. He asked whether and on what conditions confederal tension between limited integration and residual sovereignty could be sustained long term, but did not answer his own question. I do not believe anyone else can. However, he did conclude: 'Today it may be said that the European Union is essentially complete as a confederation although its member states and peoples do not necessarily share a sense of the completeness'. While this may be unfortunate, it has long since wisely been pointed out by a historian that 'political confederations are not religious communities ...reciprocal advantage, not sentiment, must be their basis if they are intended to endure. None but a cynic would despise sentiment; none but a fool would build on it'

In the aftermath of the European Union's 2005 inability to achieve unanimous agreement on the legitimizing constitutional treaty that set out its institutional principles and summarized its policy purposes, the situation seemed desperate. However, it was less serious than it appeared in one sense, because in so far as a clear interpretation is possible, it probably amounted more to a hesitation and a pause than to a call for reversal. Nevertheless, even if one takes into account the inauspicious context of economic stagnation and undigested massive enlargement a year earlier, as well as specific domestic causes, there were more deep-seated reasons for anxiety, related to the theme we have pursued. The consociational confederalism that has both inhibited the capacity for effective elite leadership of European Union and member-state representatives, and predisposed them to be remote from their peoples remains a constraint on the process of integration, both in terms of consolidating past achievements and seeking new ones. Will anything short of an external crisis be sufficient to call forth the will to overcome the forces of inertia and national interest fragmentation that, as in the past, have paralysed the EU's capacity for leadership? Without seeking to predict precisely specific or general outcomes when the outlook compounds persisting complexity and increasing uncertainty, a cautious assessment of the prospects for the EU is in order, as indicated by the preceding analyses. Do they suggest an impetus towards integration, a resignation to stasis, or a reaction resulting in disintegration? Subsumed under the pervasive ramifications of the 'logic of leaderlessness' we may detect dispersed acts of creative innovation and consensus-building that owe more to the expedient exploitation of opportunities that arise than to

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the sustained, consistent projection of a comprehensive plan of action. Before attempting an overall characterization of the prospective state of the union, we should consider what indications the specific findings of particular parts of the enterprise examined have to offer, while conceding that an incomplete set of partial views cannot yield incontrovertible general conclusions. Despite rhetorical flourishes that alarm rather than inspire, nowhere within the EU's polycentric institutional structure has the reversion to a humdrum style of leadership been more evident than in the role of the president of the Commission. Without the legitimacy to promote formal institutional reforms, he and his colleagues have to rely on informal and inconspicuous legislation while reducing the flow of new proposals. Recourse to consensual, cooperative coordination, relying upon indicators of good practice and the persuasion of laggards to improve their performance by comparison with leader nations rather than formal directives, is a feature of the Commission's modest focus upon facilitating intergovernmental piecemeal progress. The Commission president will continue to struggle to secure greater internal cohesion between its directorates, coordination of divergent policies being rendered more difficult owing to the tendency of commissioner national loyalties to exacerbate habitual conflicts of competence that arise when 'horizontal' issues have to be dealt with by 'vertical' structures. To prevent the fragmentation and paralysis that would result from a combination of inter-directorate and intergovernmental discord, the Commission will impose its credibility and agenda-setting influence if it can continue to get a better grip on its own internal relations and steer EU policy networks towards practical solutions of pressing problems. The limited impact of the ambitious policy priorities of the 2000-10 Lisbon agenda, because of the unwillingness of national governments to take consequential action, confirms that the Commission's leadership role has been unceremoniously curtailed in line with the diminutive EU budget (1 per cent of EU gross national income). In the three specific policy sectors discussed, the most momentous exertion of Commission presidential leadership has been in monetary integration, with Roy Jenkins initiating and Jacques Delors pushing through the Economic and Monetary Union project to completion. However, despite the Commission's formal budgetary and macro-economic powers in enforcing the Stability and Growth Pact rules on member governments, the latter, notably through their finance ministers in Ecofin, have succeeded in first bending and then softening these constraints, whose credibility had been impugned as 'stupid' by Romano Prodi, speaking more as an economist than as Commission president. Because the Pact's rules have become more flexible, there is more scope for avoiding clashes between the Commission and national finance ministers, but the Commission's function of guardian vis-á-vis the veracity and rigour of member government behaviour is liable to give priority to expediency over virtue. The guardian of price stability is the independent and depoliticized European Central Bank, which has consistently exerted a deflationary policy bias. The new EU members, led by Poland, show little enthusiasm to join the single currency, while those who have opted out show no inclination to change their minds. A common fiscal policy has proved unacceptable (a European tax even less so) to fund an EU budget that will remain modest because it

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does not cover defence or welfare expenditure. Forlorn calls for a coordinating EU 'economic government' as a political counter weight to the ECB by French Socialists, instead of the informal Euro Group of ministers, has fallen on deaf ears. The future of EU integration will depend in part on whether the Eurozone proves to be an economically successful and politically unifying rather than a divisive institution. So far, with only half the member states in the monetary union, an EU lacking cohesion in a pivotal policy will be a persisting handicap in achieving vigorous leadership. Environmental policy has been an activity where some member states have played a leading role, with the Commission devoting itself more to harmonizing national standards than to promoting its own stringent common EU policy. This frontrunner function has been performed by the European Parliament, with 'green' NGOs and the firms most affected by the EU's environmental legislation being especially prominent. However, because it impinges on so many other sectors, but unlike monetary policy cannot claim as pivotal a place in EU decision-making, environmental policy may become increasingly a tributary of compromises made in international fora. In the entrepreneurial promotion and use of electronic technology, the record has been mixed, with a conspicuous failure in Commission-led High Definition Television but success in firm-led Digital Video Broadcasting as the strategic instrument of advancing European competitiveness. Liberalization in the cultural field has come up against resolute French vetoes, which have reinforced EU protectionism of its diverse constituent national identities despite anti-Hollywood market-oriented integration through 'Television Without Frontiers'. While the European Court of Justice has empowered the EU to treat audio-visual infrastructure as an economic service like any other, it has not authorized it to intervene in the content of what is communicated. More imaginative use has been made by the Commission of the Internet both to improve its own administration and encourage informed interaction with European citizens, going beyond consultation with organized interests and officials in the member states towards deliberative democracy. However, while the bureaucratic aspects of the Commission's eGovernance practical innovations have led to significant improvements, its more ambitious democratic aspirations have so far been less successful in extending public participation as a way of increasing the legitimacy of the EU in general and of the Commission in particular. Two important areas of EU action with significant international implications which have not been considered—the Common Agricultural Policy and Competition Policy—are moving in opposite directions as far as Commission leadership is concerned. Despite long-drawn-out resistance, notably by successive French presidents from de Gaulle to Chirac, the CAP is losing its position as the leading EU common policy, while still taking the lion's share of its budget. Justified as assistance to uncompetitive peasants, it has profited mainly large-scale capitalist farmers. A combination of factors—declining numbers of peasants (except in Eastern Europe, but this has been a further incentive to curtail subsidies), budgetary constraints, the demands of forward-looking activities, the World Trade Organization pressures from the developing countries and the USA—will shift the

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Commission from economic to welfare concerns, more consonant with the modest place of agriculture in the EU. By contrast, the competition commissioner has, since the 1990s, acquired wide discretionary power over the burgeoning industrial mergers and acquisitions involving both major private and public national champion firms, despite the attempts by French and German governments to resist EU vetos. Because the enterprises concerned are generally either American or European, the conflicts that arise from the EU adoption of US-style anti-trust regulation have an extraterritorial dimension and are more aggressively assertive than the status quo defensiveness of the CAP. Although a number of ECJ decisions have reversed the prevention of mergers, the increasing impact of industrial and financial globalization will compel the Commission to exert increasing regulatory power. This is indicative of the necessity to avoid simplistic generalizations about the decline of the Commission. Its activities sometimes continue to advance even when they retreat elsewhere. With national governments—especially those of France and Germany— seeking to control the agenda-setting and transformative leadership of the EU, a more prominent role was assumed by the Council of Ministers but its ineffectiveness in performing these functions led to the creation in 1974 of the European Council on the initiative of Giscard d'Estaing and Helmut Schmidt. As finance ministers they had become frustrated by the working of EU institutions and as newly installed president and chancellor respectively they sought to put this right. However, although they and their successors Mitterrand and Kohl were able sometimes to impart a decisive political impetus, this was by fits and starts and did not amount to the Franco-German comprehensive hegemony often proclaimed. Nevertheless, in association with Delors as Commission president, from the mid1980s to early 1990s Mitterrand and Kohl did provide much of the EU leadership. Thereafter, postunification German governments became less inclined to defer to French leadership, which under Chirac became increasingly erratic and ineffective. Former German foreign minister Joschka Fischer's attempt in 2000 to push 'From Confederacy to Federation' fell on deaf ears. The 2005 advent of Angela Merkel has led to a more explicitly independent German stance. Earlier attempts at a triumvirate with a Britain led by a more pro-European New Labour Government from 1997 never got very far. This was because Prime Minister Blair was unable to secure mass public support for his wish to play a leading EU role, as well as his combination of restraining some initiatives and opting out of others, notably the single currency. Blair attempted to revive the flagging 2000 Lisbon agenda of increasing economic competitiveness by stressing the need to concentrate on specific practical reforms consistent with national interests and rejecting comprehensive institutional reform as putting the cart before the horse. Relying more on a US-led NATO, Britain was unable to give a strong lead on security and foreign policy, where it would have been in a position to do so. French attempts to mobilize opposition to an over-mighty ally, reviving an old Gaullist strategy by looking towards Russia as a counterbalance to the USA, does not commend itself to East European members, or since the Merkel Government even to Germany. EU

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leaderlessness in foreign and security policy remains dogged by divisions, underfunding and the lack of a clear foreign enemy, so it has come to rely primarily on soft rather than coercive powers. The hope of creating a semi-permanent or fixed president of the European Council and a Union minister of foreign affairs by the constitutional treaty that was rejected in 2005 has left the EU to manage with its six-monthly rotating presidency. Although this has seemed a curious form of leadership, it does correspond to the confederal consociational nature of the EU, allowing the heads of all the member governments to take their turn in co-ordinating its affairs. The leaders pro tem of the EU are thus not chosen for their qualities, party, or programme but because they are the political head of the state whose turn it is to occupy the presidential post, all member states being treated equally. Team presidencies have shared the workload and have been of help particularly for the under-resourced smaller states. While there may be a revival of at least the institutional reforms of the constitutional treaty, the emphasis in practice will continue to be upon humdrum, 'low politics' bargaining despite occasional rhetorical flourishes in the direction of heroic, visionary 'high politics'. The European Parliament has made progress towards providing some direct leadership but tends to be overly ambitious, as was clear from the constitutional treaty mishap. It has been more successful in enforcing a measure of accountability on the Commission, exerting indirect leadership. On some issues it has provided influential leadership, notably environmental policy, but while the impending crisis of global warming could prompt a unifying mass mobilization challenge, it has not yet dwarfed petty preoccupations, so the EU has been largely confined to setting minimum standards, underpinning national regulatory discretion. Political parties remain rooted in their national contexts. Despite sharing a left/right split, no distinct European electorate or party system has emerged, so that David Marquand's projected Europe des partis has not displaced a predominant Europe des patries, the precondition of an EU democratic citizenship making possible electoral integration. Parliamentary parties do not provide support for any specific leadership because they have 'no office with real power to fight for at the European level'. With no one leading, who should European peoples follow? An open-ended purpose of the EU has been to promote political democracy and economic stability in the countries to its eastern and southern peripheries. Apart from prosperous Norway and Switzerland, the EU has proved a powerful attraction, especially to impecunious states that have seen accession as a passport to prosperity and assisted modernization. While 'it is virtually impossible to refuse membership to any applicant that is both European and democratic...you can certainly keep the applicants waiting a long time'. This has been the usual practice, the stringent preconditions of membership being in part a pretext concealing a lack of enthusiasm of the peoples of some existing member states, particularly when the candidate is Turkey. Previous enlargements having escaped much public debate, the process has become explicitly controversial. The inability to

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secure elite agreement on strengthened leadership, coupled with public reluctance to stretch the sense of European identity to breaking point, has dissipated such enthusiasm as existed within for further enlargement. This is reflected in less favourable terms of accession and prolonged procrastination and equivocation calculated to discourage applications to join a more exclusive fortress Europe disinclined to subordinate its interests to the lofty ideal of pan-European solidarity. 'EU institutions sometimes legislate but they never implement. Implementation is still exclusively the responsibility of national institutions' and enforcement is slow and patchy, especially in the new member states, despite the overloaded ECJ's capacity eventually to impose fines. Not merely is the EU lacking direct coercive power; it is fragmented both between Commission directorates and Council of Ministers committees. Securing agreement is an arduous undertaking and major difficult decisions are usually left to the four or more annual meetings of the European Council and its twiceyearly rotating president. This is not calculated to produce strategic leadership, so 'muddling through' predominates when it can overcome the leaders' recourse to the protection and assertion of national interests. EU political leaders operate within a crowded and confusing arena, endeavouring to deal with an insoluble integration puzzle that subsumes a multitude of smaller puzzles. The unheroic task of political leadership in such circumstances is to fit the pieces together, resolving some puzzles while new ones emerge. Reluctance by leaders to fix the limits of inclusiveness and diversity has deliberately left unsettled the ultimate purpose of a contested integration process. They will have provisionally muddled through if they can preserve a collective sense of stability while making a multitude of small and occasionally large incremental adaptations to changing contexts not of their choosing. This will have to suffice until the unpredicted impact of a crisis necessitates a more ambitious collective response capable of securing a willingness to follow from otherwise divergent elites and detached peoples, who are disinclined to follow non-existent or ineffective leadership. The probabilistic general outlook suggests neither dramatic disintegration nor transformative integration. Instead, a modified stasis is likely to prevail, consisting of a combination of drift and cautious, piecemeal improvisation as opportunities present themselves to a perennially leaderless Union engaged in a trial and error exploration. While short-term improvisation in the service of diminished national sovereignty damage limitation is probable, political experimentation will continue with unpredictable longer-term outcomes, especially because the EU is not powerful enough to steer the processes of global reorganization.. It does not help when member governments make commitments they do not intend to honour, except if they are convenient. In conclusion, the EU will have to manage its affairs with a minimum of 'leadership heroics'. A wise organization theorist, James March, in 1982 suggested four humdrum features of successful leadership. They are everyday competence at all levels; reliance upon reciprocal anticipation rather

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than formal direction; trust within the hierarchy between leaders and led; avoidance of indispensability. While all these ways of compensating for the absence of heroic leadership are demanding, the inclination of leaders to exaggerate their own importance means that an invitation to modesty by an indisputable leader, Georges Clemenceau, should be borne in mind. 'The cemeteries are full of people who thought they were indispensable.' Lowering excessive expectations, nevertheless, should not be regarded as implying resignation. Rather, it is the precondition of an effective collective commitment to achieving realistic outcomes in a context where the objectives of action remain shifting, contested, and ambiguous.