Critics and Eurosceptics claim that the decision-making process of the European Union involves little more than groups of elitist bureaucrats gathering in secret meetings and plotting their latest methods to erode the national sovereignty of the EU’s member states, with the ultimate aim of concentrating power in their hands. Defenders of the EU paint a much rosier picture: that of rigorous debate, transparency and democracy in the EU’s decision-making process. The reality is that while there is an element of truth in both claims, neither come close to illustrating the complexities of the EU’s decision-making mechanisms.
In the decades since the foundation of the European Economic Community (or EEC) in 1957, it has undergone several important changes, not just in its policy responsibilities or its change of name to the European Union, but also through the evolution and proliferation of its policy processes. This study explores the evolution of the EU’s decision-making processes since the 1950s, provides an analysis of the main policy processes employed by the EU’s institutions and actors today, and attempts to account for the factors behind the complexity and proliferation of the EU’s many policy processes. Ranging from intergovernmentalism, where national governments come together to make decisions unanimously, to supranationalism, where responsibility is delegated to non-state institutions, as well as more informal methods, the EU’s policy processes are as diverse as they are numerous.
Today, the number of policy processes within the EU decision-making context ranges anywhere from twenty-eight to over 100, depending on how these policy processes are classified. For the sake of simplicity, this study will focus on four broad groupings of policy processes generally accepted by scholars: the Community method, intensive transgovernmentalism, supranational centralisation, and the Open Method of Coordination.
Some of the factors to be examined will include the increasing influence and confidence wielded by the EU’s independent institutions such as the Commission and Parliament, attempts to address the slow and deliberative nature of policy processes in which unanimous support is required to pass measures, and the increasing number of competing national interests that inevitably come with the increasing number of EU member states. Finally, this study will discuss whether the proliferation of policy processes should be considered a positive development for the EU or whether efforts should be made to reduce the number of processes in order to improve the level of efficiency in the EU’s decision-making system.
Examining the history of EU policy processes
The first important steps of European integration can be traced back to the establishment of the European Coal and Steel Community (ECSC) in 1951, and the European Economic Community (which would later be renamed the European Union upon the passage of the Treaty of Maastricht in 1993) in 1957. The ECSC marked the first time a supranational body could make binding rulings on its member states, ensuring continued cooperation between member states even in the midst of legal and political disputes. The EEC replicated the ECSC’s institutional structures in order to establish an internal market within Europe and to facilitate deeper integration between European states. The EEC’s decision-making bodies included the European Commission, a quasi-executive and supranational institution, the Council of Ministers, made up of the foreign ministers of member states which held veto power over the Commission’s proposals, and the Assembly (later renamed the Parliament) which held few decision-making powers beyond consultations and recommendations.
The next few decades saw the future EU being granted further policy responsibilities, but not without hurdles. President of France Charles de Gaulle, wary of the EEC’s ambitions to bring about further integration, boycotted the EEC’s institutions in 1965. The infamous “Empty Chair Crisis”, which haemorrhaged the EEC’s decision-making capabilities, led to the “Luxembourg Compromise”, which granted member states the ability to veto policy decisions which could affect their national interests. This essentially preserved the unanimity requirement for decision-making for the next few decades until the Single European Act was passed in 1987. Nevertheless, having started out in 1958 with a mandate on just a few policy areas including tariffs, agriculture and overseas development, the EU has gone on to shape policy in over thirty domains, provided for in the Lisbon Treaty of 2009.
After the Second World War, the founding fathers of European integration resolved to ensure that the organisations would not be purely intergovernmental in nature, and that independent institutions would hold their own power to legislate and adjudicate to a certain degree. This was achieved upon the formation of the ECSC and a similar approach was taken when the time came to establish the EEC (Buonanno & Nugent, 2013).
The process of the Community method can be summarised thus: the Commission proposes, the Parliament and Council co-legislate, and the Court adjudicates. Before discussing the merits of this system, it will first be useful to examine the process in more detail. This paper will discuss key aspects of the Community method including the role of the institutions in the Ordinary Legislative Procedure, the decline in the use of the Community method in recent decades, and the limitations that may have helped to facilitate this decline.
The Ordinary Legislative Procedure is the process by which the majority of EU legislation is passed and has seven stages, five of which are defined in Article 294 of the Treaty on the Functioning of the European Union (TFEU) and the other two being defined in Article 297. There are two other legislative procedures, both of which restrict the power of the Parliament to varying degrees but are otherwise similar to the Ordinary Legislative Procedure. However, these legislative processes are deployed only in a small number of situations and shall not be examined further for the purpose of this study.
In the first stage, the Commission proposes legislation. The Parliament then accepts, rejects or amends the proposal through a majority vote of its MEPs. If the bill is accepted or amended, it will move to the Council for deliberation, which will act by Qualified Majority Voting (QMV). If the Council agrees with the Parliament’s decision, the bill is adopted after the first reading. If the Council disagrees with the Parliament, it will provide its reasons for doing so and the amended bill will return to the Parliament for a second reading.
On second reading, this process is repeated. If it is not passed here, the bill enters the conciliation stage, whereby a “Conciliation Committee” made up of representatives of the Commission, Parliament and Council is convened in order to “rescue” the bill from failure. Whether an agreement between the representatives is made or not, the final version of the bill enters the Parliament for a third and final reading. The Parliament can then only pass or reject the bill before the Council makes the final decision.
The last two stages of the process involve the signing of the bill into law and the publication of the law in the Official Journal of the European Union. After the law enters into force, the Court of Justice of the European Union is given the mandate to rule on cases brought before them either by the Commission, member states, or on referral from national courts of member states (Schütze, 2015).
What made the Community method unique at the time of its creation, and what continues to make it unique today, is its combination of elements of intergovernmentalism and supranationalism, both concepts this study will explore in greater detail later. This compromise has allowed for EU institutions to act with a degree of independence from the governments of the member states, which in turn has allowed them to focus on the job of progressing the cause of integration without being endlessly distracted by the politics of individual member states. Conversely, it allows member states to continue playing a vital role in the legislative process and to influence the passage of proposed legislation.
Nevertheless, national governments remain wary of the large degree of independence held by EU institutions. The lack of a right to initiate proposals in the legislative process, the lack of a requirement of unanimity in the Council and the dependency of member states on the Parliament and Court of Justice all signify a significant loss of control on the part of national governments (Buonanno & Nugent, 2013).
A form of intergovernmentalism, described by Nugent (2017) as “a form of policymaking in which national governments are the key actors, decisions require unanimous approval by participating governments, and many decisional outcomes do not involve the making of laws.” In the context of the European Union, the intergovernmentalist approach to policy cooperation can be observed in cases where key decisions are made by the European Council or in certain cases the Council, and where the influence and input of the Commission and Parliament is limited. Before describing examples of intensive transgovernmentalism, it would first be useful to describe other forms intergovernmentalism as a source of comparison.
Stanley Hoffmann, in his 1966 paper titled “Obstinate or Obsolete? The Fate of the Nation-State and the Case of Western Europe”, challenged the then popular notion of neo-functionalism, advanced by Ernst Haas, which had argued that European integration could progress via a ‘snowball effect’ of shifting political loyalties and expectations on the part of political actors and interest groups. Hoffmann argued instead that, contrary to neo-functionalist assertions of the decline of the nation state, the nation state was here to stay. While Hoffmann conceded that traditional notions of sovereignty were obsolete, nation states would continue to play a crucial role in regional and global politics. Only in cases of ‘preference convergence’ would nation states allow for European integration to progress. Failure to meet this condition, according to Hoffmann, would simply lead to national leaders pursuing their own course. This approach to intergovernmentalism has been named “classical intergovernmentalism” (Cini, 2015).
Developing the theory of intergovernmentalism further, Robert Putnam published an article in 1988 in which he used the metaphor of ‘two-level games’ to highlight the nature of politics on the domestic and international levels. The first game describes how governments define their policy preferences at home, and the second game is played in the context of inter-state bargaining. Putnam highlighted a clear example of this in his paper by describing the German Chancellor Helmut Schmidt’s clever navigation of domestic and international politics. Being forced by domestic politics to take a position he did not privately favour (namely opposing fiscal stimulus), Schmidt attended the Bonn summit in 1978 and ‘conceded’ his government’s position to follow conservative fiscal policy in return for the US and Japan making their own commitments to safeguard the world economy.
Liberal intergovernmentalism, in essence, lies in the argument that decisions taken at the EU level are ultimately the result of bargaining between the member states. Andrew Moravcsik (1994) summarises liberal intergovernmentalism as follows: “At the core of liberal intergovernmentalism are three essential elements: the assumption of rational state behaviour, a liberal theory of national preference formation, and an intergovernmentalist analysis of interstate negotiation.”
There are some important differences between the forms of intergovernmentalism explored above, and intensive transgovernmentalism. First, unlike the previous categories, which offer broad theories of governance, intensive transgovernmentalism is precise in its description of a specific policy process conceptualised by researchers. It focuses on the day to day operation of the EU and its policy output, in contrast to the previous types of intergovernmentalism which focus on broader strategy and procedures. In recent decades however, scholars have noted the increasing trend among researchers to examine the day-to-day decision-making process of intergovernmentalism, though some have criticised the methodology pursued by scholars who mistakenly assume that the Council is the pre-eminent decision-making body in the EU (Garret & Tsebelis, 1996).
Another key component lies in the term ‘intensive transgovernmentalism’ itself. Nugent explains that a term such as ‘intergovernmental cooperation’ does not do enough justice to the nature of policymaking in the context of the EU’s foreign policy, and that the term ‘intensive transgovernmentalism’ does a better job capturing the nature of “constantly ongoing interactions between representatives of the member states as they work with one another on a day-to-day basis to make EU foreign policy” (2017). The same logic applies to other policy areas in which intensive transgovernmentalism is utilised, ranging from judicial cooperation to treaty reforms.
Through this method, the Commission no longer holds the sole power to initiate policy measures. Instead, national governments represented on the EU level are also granted initiating powers. In addition, the Parliament’s role is downgraded to a consultative position. As explained by Buonanno and Nugent (2013), the Parliament exercises what little influence it wields by forming committees to monitor the progress of proposed policies and to produce its own recommendations, though, as the name implies, recommendations do not carry the full face of law. Finally, the Court of Justice is virtually excluded from intergovernmental policy processes. This is partly due to the lack of a mandate to do so provided by the EU treaties and also due to the fact that EU legislation is not formed by intergovernmental processes. For example, the Court of Justice cannot hear cases or make rulings on the EU’s Common Foreign and Security Policy.
Perhaps the clearest example of intensive transgovernmentalism at work can be seen in the EU’s Common Foreign and Security Policy. Beginning in the 1970s in the wake of the Yom Kippur War and the Oil Crisis before being given treaty form by the Single European Act, EU foreign policy has always been intergovernmental in nature, prioritising consensus over the often adversarial nature of the legislative process (or the Community method for that matter). The intergovernmental method of policymaking was necessitated by the desire for member states to cooperate with each other on specific foreign policy matters while at the same time avoiding having to do so under the framework of the Community (Buonanno & Nugent, 2013). This was cemented further by the inclusion of the “Common Foreign and Security Policy” in the Treaty of Maastricht in 1992, though it took some tough negotiation for the member states to agree on an intergovernmental method of policymaking instead of an approach that would have been similar to the Community method (Hurd, 1994).
Day to day operation of intensive transgovernmentalism
To examine in more detail how intensive transgovernmentalism operates on a daily basis, it would be useful to explore the Common Security and Defence Policy (or CSDP), a subset of the CFSP. Taking shape in the 1990s in the midst of the conflict in the former Yugoslavia, the CSDP has been described as a “defence cooperative of sovereign member nations that retain full control over national security matters” and that “while many EU politicians and officials may consider developments of EU-wide armaments and defence industry policies desirable, there is no overriding incentive for the EU to do so” (Markowski & Wylie, 2007).
This can be seen in how the CSDP and CFSP as a whole has taken shape. In the late 1990s, EU states agreed on a number of targets with the objective of improving the CSDP’s operational capabilities and included further ambitions in the draft of the Constitutional Treaty. These targets included the establishment of a European Defence Agency, European Gendarmerie Force, European Rapid Reaction Force, and the EU Institute for Security Studies. Despite the failure of the Constitutional Treaty, each of these targets were eventually met.
As with intergovernmentalism in general, intensive transgovernmentalism is limited in its capacity to enable governments to make important decisions in politically sensitive matters. This limitation has manifested itself numerous times in the EU’s recent history, a prominent example being the member states’ failure to agree on a united position on how to approach the future of Yugoslavia. This led to the failure of negotiations with Yugoslavia, which descended into conflict after the secession of Bosnia and Herzegovina (Jopp & Diedrichs, 2011).
In contrast to the Community method and intensive transgovernmentalism, both of which hold intergovernmental characteristics to one degree or another, supranational centralisation bypasses all elements of intergovernmentalism, and refer decision-making responsibilities to independent EU institutions such as the Commission and the Court of Justice. The clearest of situations that call for such centralisation involves the day-to-day implementation of EU law within member states. While the governments and civil servants of member states are tasked with the responsibility of implementing such laws, the Commission is given the mandate to monitor the progress of this implementation, with the Court of Justice ruling on potential breaches of EU law. One famous case on the failure to implement EU law was that of Francovich v Italy, where the Court of Justice held that member states could be liable to pay individuals who suffered a loss due to the failure of said member state to implement an EU directive.
In keeping with the task of ensuring that member states implement and follow EU law, the Commission is granted the power to create binding non-legislative acts. This de facto makes the European Commission a lawmaker in its own right and can be compared with the President of the United States’ ability to issue Executive orders. Such binding acts take the form of delegated acts and implementing acts. The former, provided for under Article 290 TFEU, allows for the Parliament and Council to grant the Commission power to enact non-legislative acts through supplementing and amending certain non-essential sections of EU legislation. Implementing acts, provided for under Article 291 TFEU, allow the Commission, and in occasional circumstances the Council, to intervene in areas where uniform conditions for the implementation of EU legislation is required, i.e. in the implementation of regulations.
New Modes of Governance and the Open Method of Coordination
New Modes of Governance refer to a spectrum of policymaking processes based on a semi-voluntaristic and participatory structure which allows for a degree of flexibility that is not offered by the previous policy processes studied thus far. New Modes of Governance began to take hold first in the EU member states in the 1980s before making a presence within the EU institutions in the early 1990s. Nugent suggests that new governance emerged as a credible policy process because of its lack of a requirement for all stakeholders to conform to the same policies, in addition to allowing for innovative solutions to new problems to take hold (2017).
The most well-known example of a New Mode of Governance in the EU context is known as the Open Method of Coordination (or OMC). Making its first appearance in the Treaty of Amsterdam in the area of employment policy provided for under Article 148 of the TFEU, the Open Method of Coordination has since gone on to become an important tool for the EU to utilise in various policy fields. Drachenberg and Brianson identify some core features of the open method (2016).
● Participation of different actors in the policy making process.
● Multilevel governance involving actors from various levels of government in the member states.
● Deliberation, policy learning and transferability.
● The use of soft law mechanisms, ensuring flexibility in policy making.
● The principle of subsidiarity, where decisions are made at the lowest appropriate level of government.
In a somewhat similar vein to Nugent’s observation of New Modes of Governance, Eberlein and Kerwer (2005) note that the Open Method of Coordination “avoids strict regulatory requirements and allows experiments that are adapted to local circumstances, while fostering policy improvement… through institutionalized mutual learning processes”. This grants stakeholders an escape mechanism of sorts, as it provides an alternative to the consensus-based intergovernmentalism as well as the often politically risky approach of supranationalism.
The first major use of the OMC was declared at the Lisbon Summit in March 2000, when the European Council, in a bid to improve the EU’s economic competitiveness, committed to using the method in order to achieve its aims. The Lisbon Strategy outlined its ideal form of open method cooperation as follows:
● Fixing guidelines for the Union, combined with specific timetables for achieving the goals that they set in the short, medium, and long terms
● Establishing, where appropriate, quantitative and qualitative indicators and benchmarks against the best in the world, tailored to the needs of different member states and sectors as a means of comparing best practice.
● Translating these European guidelines into nation and regional policies by setting specific targets and adopting measures, taking into account national and regional differences.
● Periodic monitoring, evaluation, and peer review organised as mutual learning processes.
Since then, the OMC has gone on to be utilised in policy fields such as regional policy, the environment, research and transport among others. This level of flexibility can serve as a microcosm for EU policymaking as a whole; offering traditional policy processes where possible and providing alternatives where necessary.
The OMC (and by extension, new governance) is not without its shortcomings. Critics argue that it lacks teeth when compared to intergovernmental or supranational policy processes. This can be seen in the lack of real sanctions against member states in the event of a failure to conform to policy decisions. Instead, member states have utilised a form of “peer pressure” by monitoring each other on progress made in implementing policy decisions, while the Commission has played a “name and shame” function alongside various media outlets and interest groups.
This structural flaw can be seen in the EU’s failure to meet the targets outlined in the Lisbon Summit previously discussed. In response, the EU shifted its aims towards general policy areas including increased investment and innovation, tackling unemployment, and enacting new climate change and energy policies. This has allowed room for some form of cooperation between the member states, but provides no impetus for states to act, leaving the potential for decisive action to be undertaken via this method rather limited.
The proliferation of policy processes
Each of the main policy processes have their strengths and weaknesses but the question remains as to why there are so many in the first place. To answer this, it will first be useful to examine the relative decline of the Community method in the decades since the 1970s.
It is important to take into account the context and time that saw the beginning of the Community method’s decline. The 1970s and 80s saw the accession of six countries into the EU, as well as the Oil Crisis which forced EU member states to begin forming a united foreign policy. Among others, these two developments highlighted the Community method’s flaws in dealing with major problems in a timely manner. This combination of intergovernmentalism and supranationalism, intended to be a compromise to address the concerns of European leaders, proved to be inadequate in dealing with the new challenges that came with new member states and an increasing number of policy areas being transferred from the member state to the EU.
As a result of the EU gaining new competences in important policy areas, European leaders understood that the EU needed to update its policy methods in order to keep up with the related challenges. Informal processes began to emerge, leaving the Commission, traditionally the initiator in all formal policy procedures, with a diminished role in certain policy areas (Bache, Bulmer, George & Parker, 2014). Indeed, in its earliest days, the EU’s institutions had already served as a forum for national leaders to discuss, explore, and cooperate on politically sensitive matters that would have had little hope of being addressed in the traditional Community framework (Buonanno & Nugent, 2013). In addition, national governments have found the Community method to be problematic as they perceive it to deprive them of all control over the EU’s legislative process. This is in spite of the fact that heads of state make up the agenda-setting European Council and national government ministers make up the Council, a co-legislator in this process. However, there are a few sources of concern that, for some, may counter these safeguards.
First, the Commission still holds the right of legislative initiative in all legislative processes, allowing them the ability to pursue the agenda set by the European Council in a manner reflecting its own aims. Second, national governments are often outvoted in the Council due to the lack of a requirement for unanimity. Next, national governments require the cooperation of the European Parliament, itself an independent institution that is not beholden to the preferences of these governments. Finally, national governments often find themselves at the mercy of the Court of Justice of the European Union in matters relating to EU law. Put simply, the strength of independent EU institutions has unnerved some national governments, fuelling an appetite for a new policy process that leans more towards intergovernmentalism than supranationalism.
Apart from the sentiments of national governments, arguably the greatest blow to the Community method arrived in the form of the Single European Act of 1983 and the Treaty of Maastricht, signed in 1992. Dehousse (2011) notes that the treaty made room for new forms of governance to emerge and that national governments became increasingly wary of transferring power to the newly named European Union. This provided national governments the impetus to employ new policy processes that would not rely on the blessing of EU institutions, especially the Commission. For example, the Maastricht Treaty created the procedures for the EU’s Common Foreign and Security Policy, as well as the Justice and Home Affairs (or JHA) pillar, aimed at addressing challenges in drug trafficking, terrorism and organised crime. Both the CFSP and JHA incorporated intergovernmental cooperation as their primary policy process. While the pillar structure of the EU was abolished in the Treaty of Lisbon, the policy process for important areas such as foreign policy and judicial cooperation have remained the same.
Before continuing, it is important to avoid proclaiming the Community method’s demise. The number of measures passed through this method remain steady, and it remains the only method for passing legislation aimed at several important policy areas, including the functioning of the internal market, the monetary policy for Eurozone states, and concluding international agreements among others. While its relative importance has declined to a large degree, it still holds an important place in the realm of policymaking in the EU.
After the changes of the Single European Act and Maastricht Treaty, it was clear that further changes would be needed to maximise policy making efficiency and to increase cooperation between the EU member states in new policy domains. The Open Method of Coordination has allowed national governments to form policies in numerous areas without the need for unanimous decision-making, or the threat of sanction in the event of a failure to implement policy decisions. While the effectiveness of the open method is still very much up for debate, it has been the go-to method for numerous policy areas including employment as well as research and technological development.
To summarise, we can boil down the factors behind the increasing number of policy processes into three main reasons offered by Buonanno and Nugent (2013). First, the EU has taken on a much greater number of policy responsibilities since its creation as the European Economic Community in the 1950s. From focusing its efforts and resources in protecting the internal market, the EU has since taken on responsibility in multiple policy domains, most notably foreign policy, the Economic and Monetary Union, and trade. This has necessitated the use of different policy processes in order to achieve the increasing number of policy objectives being taken on by the EU.
Second, the increased number of policy responsibilities has had the knock-on effect of increasing the number of decisions required to be taken by EU institutions, which themselves must have their own decision-making processes. Examples include major agenda-setting decisions taken by the European Council, important legislative decisions being taken by the European Parliament and Council, and non-legislative acts being decided on by the Commission. This does not include the decision-making processes of these institutions when involved in areas of an intergovernmental nature such as foreign policy or judicial cooperation. In order to improve the level of decision-making output, institutions including the Council and the European Council have liberally availed of the relatively recent QMV system and have also begun to freely avail of the use of “restricted meetings”, away from the view of the public. (Nugent, 2017 ). Debate now rages as to the merits of this approach. Critics argue that, regardless of whether decision-making output is improved or not, the lack of transparency that arises from the use of “restricted meetings” undermines the EU’s political legitimacy, and that its use should be discontinued.
Last but certainly not least, the increase of the number of member states from six to twenty-eight at the time of publication has played a major role in the increasing complexity of policymaking in the EU. Given the intergovernmental nature of much of the EU’s policymaking process in the 1950s and 60s, as well as the difficulties in making major policy decisions under this system, it was only logical that the increasing number of member states would increase the number of competing national interests, potentially grinding EU decision-making to a halt. Unable to reach a unanimous vote on politically sensitive matters, it became necessary for member states to utilise new policy processes that would offer flexibility and facilitate deeper cooperation in different policy domains, with intensive transgovernmentalism and the OMC being prominent examples. Examples of the differentiation between member states in important policy areas can be found in the refusal of several member states to change their currency to the “Euro” in the late 1990s and early 2000s as well as several “opt-outs” being utilised by the UK, Ireland, Poland and Denmark in areas such as the common currency, the CSDP and the EU’s Charter of Fundamental Rights.
Each of these factors have contributed to the state in which the EU’s policy processes exist today. The broad range of processes, the differences between them and the increase in the number of member states, especially in the 21st century, have contributed to a number of difficulties and challenges, not least the increasing differentiation between member states in several key policy areas. Nevertheless, by finding creative solutions to the problems that come with competing national interests, the EU has demonstrated a remarkable degree of versatility in fostering both deeper integration and closer cooperation between member states. This success can be credited to the emergence of new policy processes since the EU’s original foundation in 1957.
For all of their strengths and weaknesses, the EU’s numerous policy processes have allowed both member states and EU institutions to cooperate in key policy areas while allowing for independent policies in others. Through abolishing barriers, improving rights for all EU citizens and establishing a common currency among the majority of member states, the flexibility offered by having numerous policy processes has served European states well in the decades since the Second World War, and will continue to offer European leaders as many tools as possible to tackle the challenges the EU faces today and into the future.
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