Regional Integration Module of Political Science Lecture 5 Modes of governance in the EU

Actor –centered institutionalism

• A version of “rational choice institutionalism “ • Focus on how the institutional framework of decision making in the EU influences EU policies

Institutional framework

Problems

Orientation and preferences of the actors Actors’ constellati ons Modes of interaction POLICIES Policy context

Institutional performance : effectiveness and legitimacy

• “Institutions serve a dual function in policy processes . On the one hand, they organize collective decisions limiting competencies and resources, and regulating access and modes of interaction. by establishing arenas, allocating and • On the other hand, they also provide the legitimating arguments which support the effectiveness of public policies by asserting a moral duty to comply with them even if the policy in question is against one's interest or preferences.”(Scharpf 2001) • Institutional performance can therefore be evaluated on two dimensions : • Their problem solving capabilities of decisions  EFFECTIVENESS • The capacity to convey legitimacy to those actions in the face of divergent preferences among the groups affected.  LEGITIMACY

Modes of governance in the EU

• Scharpf distinguishes 3 institutionalized modes of EU governance + 1 additional new mode of governance : • The

supranational/hierarchical

choices can be unilaterally imposed by supranational actors (i.e., the European Court of Justice, ECJ; the Commission; and the European Central Bank, ECB); mode, in which policy • he

joint-decision

mode , in which supranational actors play a significant role, but cannot act without the acquiescence of at least a qualified majority in the Council of Ministers; • the

intergovernmental

mode, in which policy choices depend solely on the unanimous agreement of member state governments.

• A “new” mode of governance :

open coordination

Intergovernmental mode

• The intergovernmental mode characterizes negotiations over amendments to the Treaties, which, so far, have been the prerogative of Intergovernmental Conferences and the summit meetings of heads of state and government in the European Council.

• Other decisions taken by the European Council • Some policy areas in Foreign and Security policy, taxation etc.

Intergovernmental mode-legitimacy

• RELATIVELY STRONG • Decisions derive from negotiations among democratically legitimated national governments and (in case of Treaties also ratified by the democratically legitimated parliaments of all member states).

Intergovernmental mode-problem solving capability

• VERY LOW • The capacity for conflict resolution and achieving effective policies is tightly constrained by the fact that each government has a veto (unanimity rule).

• Despite pressures on all governments to reach agreement and being oriented to "cooperation", governments can’t easily justify uncompensated concessions against opposition back home if European issues have political salience in national politics. • Under such conditions, negotiations may either break down or deteriorate into hard bargaining where agreement can be reached only through cumbersome package deals or side payments .

• This explains the very unsatisfactory outcomes of processes of treaty revision, or the dismaying un effectiveness of EU foreign policy

• “policy-making by intergovernmental agreement is a slow and awkward process, and policies so adopted are very hard to change in response to new circumstances or preferences”

Supranational-hierarchical mode

•

European institutions are able to impose binding policy choices without the agreement of national governments.

• EX: • monetary decisions by the ECB, • policies defined by the ECJ in its interpretation of treaty provisions and secondary European law, • and decisions by the Commission when it unilaterally adopts directives, when it issues regulations specifying the content of Council directives, and when it initiates treaty infringement procedures against individual member states.

Supranational-hierarchical mode: legitimacy

• Legitimacy of the decisions of supranational authorities rests on the legitimacy of the intergovernmental decision empowered them.

(treaties) that has • Decisions’ legitimacy is limited by relatively narrow normative constraints: for the Commission and the ECJ legitimacy is higher in areas where the original intent of the treaty making governments is clearest ( in particular policies of market-making negative integration).

Supranational-hierarchical mode: other sources of legitimacy

• In addition the ECJ enjoys the legitimacy deriving from its cooperation with national courts and from nationally rooted beliefs in the “rule of law” (liberal democratic political cultures).

• ECJ and ECB may enjoy legitimacy stemming from recognition of technical excellence (non-majoritarian authorities)

Supranational-hierarchical mode: limits of legitimacy

• These basis of legitimacy are not available if the Commission and Court use their supranational powers to achieve purposes about which member governments are divided.

• Ex: Commission deciding on state-aid • Laval and Viking judgments of ECJ

Supranational-hierarchical mode: effectiveness

• The capacity for conflict resolution is not constrained by the possibility of veto of national governments . Policy choices can be adopted that violate their interests and preferences even on politically salient issues.

The Joint-decision mode

Joint decision- Community method

• The main institutional avenue of European legislation • Legislative power shared by EU institutions • Multi-level implementation

Phase

Joint decision or “Community method”

Institutions Agenda setting Policy formulation Policy decision Policy implementation Monitoring European Commission, European Council European Commission Council of Ministers, European Parliament European Commission. Secondary legislation Member states European Commission

The Commission and legislative initiative

• Initiatives of the Commission are a formal precondition of European legislation .

• The Commission responds to a variety of inputs (from EU institutions and m.s.’s governments, from a variety of interest groups). Given its a monopoly of agenda-setting power, the Commission has the freedom to select the individuals, groups and organizations which it will hear and hence the inputs to which it will pay attention. The European Council has played an increasing role in the EU’s agenda setting by mandating the Commission to draft proposals .

• Nevertheless, the Commission (or more specifically its specialized Directorates General) is responsible for the drafting of legislative bills and generally able to follow its own preferences in selectively translating inputs into legislative initiatives

Decision

• Legislative initiatives of the Commission must be adopted by the Council of Ministers, voting either by qualified majority or by unanimity . • In preparing its common position, the Council relies on COREPER and the Council Secretariat to integrate the positions of national ministries and the work of large numbers of preparatory committees staffed by national civil servants and experts. • In most policy areas, moreover, the European Parliament has become a co-equal legislative partner of the Council (ordinary legislative procedure, formerly co-decision) .

Decision

• Decision in the Council • The

veto positions

of individual member governments have been reduced as the decision rule in an increasing number of policy areas has been changed from unanimity to

qualified majority

. • Nevertheless, at the end of the legislative process, European policies still depend on the support of a

large majority

of the weighted votes of member governments in the Council. Further, despite the formal voting procedure prescribed by the Treaties, there is a strong preference in the Council for taking decisions in a

consensual way.

Secondary, in detail legislation

• If the directives so adopted need further specifications before they can be implemented, the task is delegated to the Commission which, however, is generally required to consult, or even obtain the agreement of, " Comitology" committees which, again, national civil servants and in experts must work out broadly acceptable solutions

Policy implementation

• European directives must be transposed into national law ( legal implementation ) by national governments and parliaments, and they must be implemented by national and sub-national administrative agencies, all of which may have their own preferences and constituency interests in mind when exercising discretion.  many clearances needed and risks of large implementation deficits

Monitoring and enforcement

• The Commission is charged with monitoring national compliance and may initiate infringement proceedings against member governments which it believes to be in violation of Treaty provisions or of Council and Commission directives, regulations, and decisions.

Joint decision –legitimacy

• Since the assumption of the mode of governance is that salient preferences of the states are not violated, the need for legitimation is relatively low.

Joint decision –problem solving capability

• LOW • The joint-decision process can be described as negotiations in an extreme form of multiple-veto constellation .Hence if the style of interaction is one of “hard” bargaining, one should expect a very low capacity for effective action and frequent blockages

Factor

Conditions of the decision trap (Falkner 2011)

Conditions of the decision trap DECISION RULE DECISION-STYLE

Requirements for (nearly) unanimous decision taking Bargaining

MODES OF REPRESENTATION INTERVENING ACTORS -

EU decisions are directly dependent upon agreement of constituent government

POLITICAL PREFERENCES

Fixed and divergent interests imported from the domestic level (probability of veto



high)

Outcomes of JDP

• “where the policy preferences of national governments or of major interest groups strongly diverge, the more likely outcome is either deadlock or a compromise at the lowest common level ”. (Scharpf 2001)

Joint decision trap: typical policy outputs

• Sub-optimal decisions in terms of problem solving capability • Policy inertia (it’s difficult to change existing policies because the decision rules are so demanding).

• Length of the policy making process and frequent blockages • Ill-timed decisions • Overly complex and detailed character of European regulations as the cumulative result of specific demands from member states

• Nevertheless decisions are taken • And some times policy innovations are introduced……

Exit venues from the joint decision trap (Falkner 2011) Factor Conditions of exit or dissolution of the jdt DECISION RULE DECISION STYLE MODES OF REPRESEN TATION INTERVENI NG ACTORS POLITICAL PREFEREN CES

Alternative rule of decision taking (de jure or de facto) Problem solving orientation Constituent governments are not decisive: de facto, decision taken by bureaucrats (ex: Coreper) Governments may be influenced by the Commission acting as a broker or circumvented “via agency decision” (the ECJ) Preferences of m.s. governments may be altered because of processes of learning and socialization or because of changes in the conditions affecting national interests (changes in governments , external shocks or crises )

The Open Method of Coordination

The Open Coordination

• A mode of policy coordination among member states intended to avoid the self-blocking tendencies that limit the effectiveness of European policy processes in the joint-decision and intergovernmental modes, in the presence of divergent national preferences. With OMC m.s. are fully responsible for their policies. • Inaugurated in 1997 with the European Employment Strategy • Extended at the Lisbon Summit of Spring 2000 to a number of policy areas concerning social protection and promotion of economic growth.

OMC Def:

“The Open Method of Coordination (OMC) is the method of European Union (EU) policy-making that facilitates the

voluntary coordination of national policies

through a series of interconnected steps, including European-level definition of common goals , definition of

national reform programmes

implementing these goals, regular national reporting, and EU-level monitoring of national progress . It has a cyclical nature, as goals may be revised, and it is used in different policy areas, often in combination with classic EU legislation. (Borràs, Radaelli 2010).

OMC as new mode of governance

• New Mode of Governance (NMG) or ‘soft law’, with different forms of input and output legitimacy compared with the other modes of regulation and governance in the EU.

Actors in open coordination

• OMC involves the Commission, national governments, permanent committees of high-level national civil servants, the Council of Ministers, and the European Council in defining common policy objectives and in assessing national efforts to reach these objectives.

In what policy areas?

An alternative – or step towards legislation – in areas where Community competences were weak, but where policy challenges were comparable in the wake of the Economic and Monetary Union EMU) that constrains government’s autonomy in fiscal policy (namely social policy). In areas where national diversity should be preserved (uniqueness of national model) and yet reforms are needed given common challenges.

• Explanations of the introduction of OMC are mainly inter-governamentalism and rational-choice institutionalism : they explain why governments decided for a new method alternative to the Community Method and for delegating so little authority to supranational institutions.

The OMC cycle

It’s a cyclical method : • First, policy objectives (in some cases accompanied by quantitative benchmarks) are proposed by the EuropeanCommission. • Second Member State representatives, in Council formations and then at the yearly meetings of the Spring European Council, decide upon which objectives the Member States will pursue.

• Next, efforts to meet the objectives agreed for any given OMC process are reported by Member States, • Finally they are reviewed by peer Member States and by the EU level (Commission-Council) with assessments of performance, but no hard recommendations in the case of non-compliance.

• (de la Porte, Pochet 2008)

• First, the OMC has been hailed as a promising instrument for addressing common European concerns while respecting national diversity because it encourages convergence of objectives, performance, and broad policy approaches, but not of specific programmes, rules, or institutions.

• Open = Open ended  different policy solutions are possible =

Inclusive

policy-making process

Open Method of Coordination Legitimacy

• The legitimacy of m.s. governments (reforms are decided at the national level, no transfer of sovreignity) • Zeitlin (2005) “OMC’s legitimacy depends on the participation of the widest possible range of actors and stakeholders at all levels , from the European through the national to the regional and local, in order to ensure the representation of diverse perspectives,tap the benefits of local knowledge and initiative, and hold public officials accountable for carrying out mutually agreed commitments”.( throughput legitimacy )

OMC: Not a single mode of governance

• OMC  mechanisms. Borrás and Greve (2004) have singled out three criteria: different levels of” softness’ when it comes to implementing • the degree of precision of and demand for qualitative and quantitative guidelines, • the possibility to link non-compliance to explicit forms of economic sanctions • the degree of definition of the different actors’ roles envisaged by the procedure, in particular in the peer-review step of the processes.

• (see lect 6) • Harder forms have a legal basis in the Treaties and regard employment or coordination of macro-economic policy (Broad Economic Policy Guidelines); • Softer versions for social policy, education, research

OMC –effectiveness

• Very controversial topic.

• What do we mean for “effectiveness”?

• -policy convergence : towards common goals or policy content ?

• Policy learning and policy innovation?

• What OMC? OMC is different in different policy domains