The European Commission
The Commission was designated as both secretariat and proto-executive in the EU's institutional system. In its earliest version, as the High Authority of the European Coal and Steel Community (agreed in 1951), it leaned more towards being executive in nature, with considerable autonomy. It is from this experiment that the term 'supranational' was coined. When the EEC was created in 1958, some member governments had second thoughts about the consequences of creating a strong autonomous institution. Thereafter the Commission had an ambiguous remit, with strong
powers in some fields (notably competition policy - see Chapter 5), and weaker powers in most others. The onus was left to the Commission itself to develop credibility, expertise, and the bases for a political power of its own.
The Commission exercises its responsibilities collectively. The Commissioners themselves, two from each of the 'larger' member states, and one from each of the others, constitute a 'college' of high officials, currently twenty in the EU of fifteen. Their decisions and proposals to the Council and EP have to be agreed by the whole college, voting, if necessary, by simple majority, at its weekly meetings. The Commission is chaired by a President, chosen with other colleagues, by 'common accord' in the Council, with two other commissioners as Vice-Presidents, initially for a term of four years. Those chosen are senior politicians or high officials from member states, but they swear an oath of independence on taking office. Under the TEU the term of office was extended to five years, to coincide with that of the EP, and nominations were made subject to consultation with the EP; the Treaty of Amsterdam (ToA) gave the EP the stronger power to confirm commissioners in office.
Commissioners are accountable to the EP, which has the power to censure the college with a two-thirds vote. In March 1999 the college, presided over by Jacques Santer, was forced into resignation by the EP on a charge of financial mismanagement. This prompted a decision by the European Council to nominate a stronger team under the presidency of Romano Prodi, a former Italian prime minister. It also led to a particularly intense and public scrutiny of the new team by the EP in September 1999.
The Commission as an institution is organized into Directorates General (DGs), historically known by their numbers, and one for each main area of policy activity. Table 1.2 shows the structure operative up to July 1999- Table 1.3 shows the revisions made by Romano Prodi, as he took office in summer 1999. The staff of the DGs make up the European civil service, recruited mostly in competitions across the member states, and supplemented by seconded national experts and temporary staff. The powers and 'personalities' of the DGs vary a good deal, as do their relationships with 'their' commissioners. New DGs have been added as new policy powers have been assigned to the EU, not always tidily. One DG leads on each policy topic, as chef de file, but most policy issues require coordination between several DGs, sometimes masterminded by the Secretariat-General under the aegis of the Secretary-General. Specialist services provide particular kinds of expertise, most importantly the Legal Service, and the linguistic and statistical services. The commissioners have their own private ' offices, or cabinets, who act as their eyes, ears, and voices, inside the house and vis-&覘-vis other institutions, including those of the member states.
The Commission's powers vary a good deal between policy domains. In competi¬tion policy it operates many of the rules directly; in many domains it drafts the proposals for legislation, which then have to be approved by the Council and the EP; it defines, in consultation with the member governments, the way in which spending programmes operate; it monitors national implementation of EU rules and programmes; in external economic relations it generally negotiates on behalf of the EU with third countries or in multilateral negotiations; in some areas one of its key functions is to develop cross-EU expertise, on the basis of which national policies can be compared and coordinated; and in yet other areas the Commission is a more passive observer of cooperation among member governments.
Broadly, within the classical areas of Community cooperation the Commission has a jealously guarded power of initiative, which gives it the opportunity to be the agenda-setter. For this reason it is a target for everyone who wants to influence the content of policy. One of the key questions therefore to be asked about the Commission is how it exploits the opportunities available to it. Some of the resources available to it include: the capability to build up expertise; the potential for developing policy networks and coalitions; the scope for acquiring grateful or dependent clients; and the chance to help member governments to resolve their own policy predicaments. Versions of all of these are the subject of debate in the theoretical literature, and are addressed throughout our case-studies.
However, as we shall see, in many areas of policy the Commission has a less entrepreneurial role, either because it is not able to exploit the opportunities available to it, or because the nature of the policy regime allows less room for the Commission to play a central role. In addition we should note that there is a broader problem of capacity. The Commission is quite a small institution, with only some 20,000 staff-not very many to develop or implement policies across fifteen different countries. Hence a great deal depends on how the Commission works with the national institutions, which in practice operate most Community rules and programmes. Over the years this feature of the policy process has become more explicit. Indeed, as several of our case-studies illustrate (see, for example, Chapters 5, 9, and 13), if anything the balance is tilting towards recognizing much more systematically the role of national (or local) agencies in operating Community policies.
Hence partnership between the national and the European levels of governance has become one of the marked features of EU policy-making. One key mechanism for this is the clumsily named system of 'comitology'. In essence it is very straightforward. Both to prepare policy proposals and to implement agreed policies the Commission needs regular channels for discussion with relevant national officials. Over the years a dense network of advisory, regulatory, and management committees has grown up to provide these channels, much as happens in individual countries. In the case of the EU these committees are the subject of procedural, legal, and political debate. Most of the committees are governed by legally specified arrangements, which vary according to the policy, and which strike different balances of influence between national representatives and the Commission. Some insights into the workings of these committees appear in several of our case-studies.
The Commission has had several high points of political impact, especially in the early 1960s and the mid-1980s, under the presidencies of respectively Walter Hallstein and Jacques Delors. It has also had low points, after the 1965-6 Luxembourg crisis (when President de Gaulle withdrew French ministers from Council meetings), in the late 1970s, and the late 1990s. In this most recent period the problems have partly been the result of weak internal management and coordination, overstretched staff, and lacklustre leadership. But there also seems to have been an underlying shift of influence away from the Commission towards other EU institutions and the mem¬ber governments.
The EP now consists of 626 members (MEPs) elected directly on a basis of proportional representation from across the member states. Originally it was composed of national parliamentarians, but in 1978 a treaty amendment provided for direct elections. Its location, for reasons of member state sensitivities, is divided between Luxembourg, Strasbourg, and Brussels. MEPs vary in their backgrounds, some having been national politicians, others bringing different professional experience, and a few having made the EP their primary career. The EP is organized into party groupings, of which by far the most important are the European People's Party and the European Socialists. These groupings have gained in importance over time. Much of the work of the EP is carried out in its specialist committees, which have become increasingly adept at probing particular policy issues in detail, more so than in many national parliaments.
In the early years of the EU the EP had only a marginal role in the policy process, with only consultative powers, apart from its power to dismiss the Commission in a censure motion. During the 1970s the EP gained important powers vis-à-vis the EU budget, and especially over some areas of expenditure (although significantly not over most agricultural expenditure) (see Chapter 8). In the 1980s and 1990s the role of the EP has been transformed, as it has acquired legislative powers in successive treaty reforms. These have been rationalized in the ToA into co-decision with the Council across a wide range of policy domains; cooperation with the Council in some other domains, especially on EMU-related questions; and consultation in those areas where member governments have been chary of letting MEPs into the process, including agriculture, and JHA. In addition the EP must now give its formal assent on some issues: these include certain agreements with third countries and enlargement. Box 1.1 summarizes the powers of the EP.
The net result of these changes is that the EP is now a force to be reckoned with across a wide range of policy domains. It is in important respects a necessary partner for the Council, although one with a contested electoral authority, because of the rather low participation rate in European elections (in some member states). On many areas of detailed rule-setting the EP has a real impact, as various of our case-studies show, and therefore it too is the target of those outside the institutions who seek to influence legislation (see, for example, Chapter 12). However, there are other areas - JHA, CFSP, and oddly the common agricultural policy (CAP) - where its voice is muted. In 1999 the EP acquired greater political prominence as a result of its role in provoking the resignation of the European Commission on the issue of financial mismanagement. The signs are that this may have increased the political standing of the EP such that it may influence the policy process as a whole rather more in the future.
The EU is perhaps the most important agent of change in contemporary government and policy-making in western Europe. Jacques Delors, then the President of the Euro¬pean Commission, claimed in 1988 that about 80 per cent of socio-economic legisla¬tion in the EU member states was framed by treaty commitments, policy rules, and legislation agreed through the institutions of the EU. Whether or not the percentage is precisely accurate does not matter. What matters is the acknowledgement that EU agreements pervade the policy-making activities of individual west European coun¬tries, both the member states and their neighbours. Explaining how and why this is so is the key aim of this volume.
In Part I we sketch the broad contours of the EU policy process and the institutions through which it is articulated, and then identify some of the different ways in which the policy process can be analysed. Part II consists of a series of case-studies, which cover many of the policy domains in which the EU dimension is significant. The cases cover a wide range of policy domains, both long-established and infant regimes, both overarching complex policies and specific sectoral concerns, and both more and less formally structured policies. Two new cases on biotechnology (Chapter 12) and fisher¬ies (Chapter 13) appear in this edition. Many of the case-studies carried over from previous editions have been extensively revised to illustrate either different dimen¬sions of their policy domain or major changes that have occurred over the past few years. Part III offers some conclusions on the character of the process and the directions in which it is evolving.
For convenience we have mostly used the term 'European Union' in this volume. The EU is built out of three originally separate Communities, each with different powers, characteristics, and policy domains, complemented by other 'pillars' of organized cooperation. These various elements of the EU are:
■ the European Coal and Steel Community (ECSC), founded in 1951 by the Treaty of Paris;
■ the European Economic Community (EEC), founded in 1957 by the Treaty of Rome;
■ the European Atomic Energy Community (Euratom), also founded in 1957 by another Treaty of Rome;
■ these three together came to be referred to as the European Community (EC), and in a loose sense the 'first pillar', once the term EU was introduced by the (Maastricht) Treaty on European Union (TEU) of 1992;
■ the 'second pillar' for developing the common foreign and security policy (CFSP), acknowledged in the Single European Act (SEA) of 1986, and put on to a more formal basis in the TEU; and
■ the 'third pillar' for developing cooperation injustice and home affairs (JHA), established also by the TEU in 1992.
Membership of the EU had expanded from six countries in 1951 to fifteen by 1995, with further enlargement in prospect, as follows:
1951 Belgium, the Federal Republic of Germany, France, Italy, Luxembourg, the
Netherlands
1973 + Denmark, Ireland, the United Kingdom
1981 + Greece
1986 + Portugal, Spain
1995 + Austria, Finland, Sweden.
Current candidates include: Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia, and Turkey.
Four broad points need to be made clear at the outset. First, the EU policy process is based on west European experience. So far the member countries of the EU, and its various precursors, have been west European countries with market economies and liberal democratic polities, even though some, notably Greece, Portugal, and Spain, had moved quite swiftly from authoritarian regimes to EU membership in the 1980s, It is not our contention that these various countries all neatly fit into a single political and economic mould, but none the less they have some strong shared characteristics which permeate the EU policy process. However, the EU now stands on the brink of an eastwards enlargement, perhaps to embrace a number (how many and how soon remains to be seen) of central and east European countries, with very different inheritances. One important question which follows is whether this fit between country characteristics and European process will be sustainable in a larger and more diverse Union.
A second preliminary point is that the west European experience, in which the EU is embedded, is one of which dense multilateralism is a strong feature. The EU consti¬tutes a particularly intense form of multilateralism, but Western Europe is a region of countries with an apparent predisposition to engage in cross-border regime-building. In part this relates to specific features of history and geography, but it seems also to be connected to a political culture of investing in institutionalized cooperation with neighbours and partners, at least in the period since the Second World War. This is part of the reason why transnational policy development has become more structured and more iterative than in most other regions of the world.
Thirdly, the EU has, since its inception, been active in a rather wide array of policy domains, and indeed has over the decades extended its policy scope. Most international or transnational regimes are more one-dimensional. Part of our contention in this volume is that this array of policy domains has generated not one, but several, modes of policy-making. Our case-studies do not reveal a single predominant mode,
but rather several interestingly different modes. Moreover, the same EU institutions, and the same national policy-makers, have different characteristics, exhibit different patterns of behaviour, and produce different kinds of outcome, depending on the policy domain and depending on the period. Thus, as we shall see, there is no single and catch-all way of capturing the essence of EU policy-making. All generalizations need to be nuanced, although, as will be argued below, five main variants of the policy process can be identified.
Fourthly, this volume goes to press at a moment when important systemic changes are taking place in the EU. Not only may the EU be altered by eastern enlargement, but even with its current membership of fifteen west European countries there are major factors of change. Three in particular stand out: the establishment of economic and monetary union (EMU) (Chapter 6); the incorporation of a new societal dimen¬sion, through the 'area of freedom, security, and justice' (Chapter 18); and the rapid moves under way to construct a form of European defence autonomy (Chapter 17). As will become clear, both from the individual accounts of these topics and from Part III, the net effect may be to change in rather fundamental ways the nature of EU policy¬making.
The patterns of policy-making in these three domains are not entirely clear, and it is premature to try to distil a clear assessment. However, one striking feature charac¬terizes all of them. Each is being constructed to a large extent outside the classical Community framework. Some EU institutions, so far at least, have been on the mar¬gins of the main developments. In particular the Commission, the European Court of Justice (ECJ), and the European Parliament (EP) have been rather passive actors, while the main dynamics have been found in the intensive interactions between national policy-makers. The investments being made in new institutional arrangements in each of these areas have been designed to underpin this intensive transgovernmentalism rather than to incorporate them within the traditional Community procedures (communitarization). The case-study chapters suggest that this may be a sustained pattern, not a mere staging-post in the transition from nationally rooted policy to 'communitarization'. Tempting though it might be to see this as the triumph of 'intergovernmentalism' (a process in which traditional states predominate) over 'supranationalism' (a process in which new European institutions enjoy political autonomy and authority), we argue that a new transnational policy mode is emerging.
Most accounts of the EU policy process, as we have noted, concentrate on the EU's own institutions. Their main features and characteristics are set out in this chapter, ahd their roles in the policy process will be a recurrent theme in this volume. We shall observe general features that are present in most areas of EU policy, as well as features that are specific to particular sectors, issues, events, and periods.
But how far do the particular features of the EU's institutional system produce a distinctive kind of policy process? It has been commonplace for commentators on the EU to stress its distinctive features, and indeed often to argue that they result in a unique kind of politics. Whether such an assertion is warranted is a question to keep in mind in reading subsequent chapters. In forming an answer to the question it is important to reflect on what other political arrangements might be appropriately compared with the EU. Some would say loose-knit states, such as Canada or Switzerland, mostly confederal in character. Others would say some multilateral regimes, especially those which focus on the political economy, such as the Organization for Economic Cooperation and Development (OECD), or the various regional customs unions and free trade areas elsewhere in the world. Depending on which comparators are chosen, different benchmarks will be useful for evaluating the EU institutions and their performance.
As we shall see in Chapter 3, this issue has been one of the longest-running sources of controversy among political analysts of the EU. On one side of the debate are ranged those who see the EU as one example, perhaps a particularly richly developed example, of a transnational or international organization. On the other side of the debate are the proponents of the view that the EU is a kind of polity-in-the-making, and in this sense statelike. The analyses of the EU's institutions conducted in these two camps differ considerably. A third camp argues that contemporary politics in Western Europe are changing anyway, with traditional forms of politics and government being transformed in quite radical ways. The net result, it is argued, is that it is more appropriate to talk of governance' than of government'. The EU has, according to this view, emerged as part of a reconfigured pattern of European governance, with an evolution of institutional arrangements and associated processes that have interestingly novel characteristics.
This volume starts out closer to the third camp than to either of the first two. However, subsequent chapters will reveal some policy sectors in which the EU has powers as extensive as those normally associated with country-level governance, while other chapters will describe much lighter and more fragile European regimes. The institutional patterns vary between these two kinds of cases. This chapter provides an anatomical overview, while the subsequent case-studies identify many of the variations of institutional patterns that are observable in specific areas of policy, along with the organic features of the institutional processes. These variations make the EU policy process a challenging one to characterize and hence the subject of lively argument for both practitioners and analysts.
However distinctive and unusual the EU institutions might be argued to be, we should not forget that the people, groups, and organizations which are active within these institutions are for the most part going about their 'normal' business in seeking policy and political outcomes. There is no reason to suppose that their activities have different purposes simply because the institutional arena is different from the others in which they are involved. The politics of the EU are just that, normal politics, with whatever one thinks the normal features are of domestic politics—and by extension policy-making—in west European countries. None the less, we need to be alert to differences in behaviour, in opportunities, and in constraints that arise from being involved in a multi-level and multi-layered process. It is around this feature of the EU that much of the most interesting analytical debate takes place, a point to which we return in Chapter 3.
I have summarized above some key points about the EU's own institutions and agencies. However, I stress that those institutions are in a real sense the property of the member states which comprise the EU. In addition, the institutions in the member states are also fundamental elements in the EU institutional architecture and partners in the EU policy process. The European dimension is not just an add-on to the work of national governments; in a real and tangible sense national governments, and other authorities and agencies, provide much of the operating life-blood of the EU. After all, in some senses what the EU system does is to extend the policy resources available to the member states. Our case-studies illustrate a variety of ways in which this is so. As a result, learning how to manage this extra dimension to national public policy has been one of the most important challenges faced by national governments in the past fifty years.
Much of that challenge has had to be faced by the central governments in each member state, and the patterns of response have varied a good deal from one to another. As a broad generalization we note that the experience has been somewhat different from what many commentators had expected. The trend has been not so much a defensive adjustment to the loss of policy-making powers, but rather in most member states an increasingly nuanced approach to incorporating and encapsulating the European dimension. This has not, however, meant that central governments can operate as gatekeepers between the national and the EU levels. The points of cross-border access and opportunities for building cross-national networks and coalitions have steadily proliferated for both public agencies and private actors. National actors play important and influential roles at all stages of the EU policy process.
Opportunities for access and influence are, however, not evenly distributed within member states. Economic agents and NGOs seem the most flexible in operating at both EU and national levels. Infranational authorities have become more adept, though how much influence they exert is debated. National parliaments have been much slower to adapt, and indeed are among the national institutions most displaced by the emergence of a strong European dimension to policy-making.
Most studies of the EU concentrate on describing what happens in and through the special institutions of the EU, located in Brussels, Luxembourg, and Strasbourg: the European Commission; the Council of the EU; the European Council; the EP; and the ECJ.1 However, we should be careful not to regard these EU institutions as existing in a vacuum. Most of the policy-makers who devise and operate EU rules and legisla¬tion are from the member states themselves. They are people who spend the majority
1 Those new to the subject should note the existence of the entirely separate organization the Council of Europe, created in 1949, based in Strasbourg, originally with only west European members, but now with a continent-wide membership of forty countries. It has a classical intergovernmental structure, except for the rather autonomous European Court of Human Rights.
of their time as national policy-makers, for whom the European dimension is an extended policy arena, not a separate activity. Indeed much of EU policy is prepared and carried out by national policy-makers and agents who do not spend much, if any, time in Brussels. Rather what they do is consider how EU regimes might help or hinder their regular activities, and apply the results of EU agreements on the ground in their normal daily work. If we could calculate the proportions, we might well find that in practice something like 80 per cent of that normal daily life was framed by domestic preoccupations and constraints. Much the same is true of the social and economic groups, or political representatives, who seek to influence the develop¬ment and content of EU policy.
On the face of it, it might appear that it cannot simultaneously be the case that 80 per cent of the member states' socio-economic legislation is shaped by the EU, while 80 per cent of the policy context of national policy-makers is framed by domestic concerns. Yet precisely what distinguishes the EU as a policy arena is that it rests on a kind of amalgam of these two levels of governance. Country-defined policy demands and policy capabilities are set in a shared European framework to generate collective regimes, most of which are then implemented back in the countries concerned. Moreover, as we shall see from several of the case-studies in this volume, how those European regimes operate varies a good deal between one EU member state and another. In other words, the EU policy process is one which has differentiated outcomes, with significant variations between countries. Hence it is just as important to understand the national institutional settings as to understand the EU-level institutions in order to get a grip on the EU policy process as a whole (H. Wallace 1973, 1999a).
This two-level picture does not, however, describe the whole story. In all EU countries there are other levels of infranational government, that is local or regional authorities, the responsibilities of which are to varying extents shaped by EU regimes. Many of these authorities have occasional direct contacts with the EU institutions. In addition, and increasingly, national policy processes in Western Europe depend on other kinds of agencies and institutions, which lie between the public and the private spheres and also vary a good deal in character from one country to another. One striking feature of western Europe in the past decade or so has been the proliferation of bodies with public policy functions outside the central governments. This is especially so in the regulatory arena, perhaps the most extensive domain of EU policy activity. The shift towards more autonomous or semi-autonomous agencies, or to forms of 'self-regulation', represents a move away from the inherited heavy state version of government towards a kind of partnership model. What the EU policy process does is to add another layer, making cross-agency coordination one of its key features, as we shall see in various of our case-studies.
Even this multifaceted picture does not encompass the whole story. The EU arena is only part of a wider pattern of making policy beyond the nation state. In many areas of public policy, including those within which the EU is active, there are broader transnational consultations and regimes. These vary a great deal in their robustness and intensity, but they are part of a continuum of policy-making that spreads from the country, through the European arena, to the global level. Many of the same policy-makers are active across these levels, and policy development consists of choices between these levels or the assignment of different segments of a given policy domain to different levels. Several of our policy case-studies illustrate this
phenomenon, and mostly stress its increased salience. One important question to bear in mind here is whether or not the EU institutions provide the main junction box through which connections are made between the country level and the global level.
One further preliminary point needs to be made. Most accounts of the EU policy process work from the EU treaties outwards, starting from the policy powers explicitly assigned to them, and then considering extensions of policy powers, or refusals to extend policy powers. Such accounts place the EU at the centre of the picture, and tend to make the EU appear the fulcrum of policy-making. Other European transnational policy regimes - and there are many - tend to be viewed as second-best solutions, or weaker forms of policy cooperation. This volume takes issue with this image. Instead we argue that the EU is only one, even if by far the most invasive, arena for building European policy regimes. Hence we need to compare and contrast the EU with these other policy regimes, both the highly structured (such as the North Atlantic Treaty Organization (Nato) for defence) and the relatively informal (such as in the past have enabled national police forces to develop cross-border cooperation). Then we can consider with more (nuance why the EU process is especially important in some policy domains, but not in others, just as we can examine how experiences in other kinds of European policy regime might be changing the character of the EU policy process.
In short, the EU policy process needs to be viewed through several sets of spectacles. Different lenses may be needed depending on the division of powers and influences between these different levels and arenas of policy development. To be sure we then need to focus squarely on what happens in and through the EU institutions. But we need peripheral vision to take in the country-level processes (both national and infranational), the global level, and the alternative European frameworks. And we need to be aware that policy-making shifts between these in a fluid and dynamic way.
The Council of the EO is both an institution with collective EU functions and the creature of the member governments. In principle and in law there is only one Coun¬cil, empowered to take decisions on any topic. Its usual members are ministers from incumbent governments in the member states, but which ministers attend meetings depends on the subjects under discussion and on how individual governments choose to be represented. Time and practice have sorted this out by the Council developing specialized formations according to policy domains. Figure 1.2 summarizes how these have developed. Highly specialized groupings have evolved, each with its own policy domain, and each developing its own culture of cooperation.
To the extent that there is a hierarchy among these groupings the General Affairs Council (GAC), composed of foreign ministers, is supposed to be the senior Council.
Its seniority rests on the presumption that foreign ministers have an overarching and coordinating role inside the member governments. It is partly because in practice foreign ministers cannot always arbitrate that prime ministers have become more involved, but on some cross-cutting issues foreign ministers remain leading decision-makers (see Chapters 8, 9, 14, and 16). The proliferation of foreign policy issues in recent years has meant that GAC meetings have been increasingly dominated by foreign policy and external affairs, leaving less time or inclination to coordinate on other subjects (see Chapter 17). As EMU has taken shape, so the Council of Economic and Finance Ministers (Ecofin) has grown in importance (see Chapter 6). As other new policy areas become active, so corresponding formations of the Council emerge - JHA is a striking recent example (see Chapter 18), and defence policy may well be the next. Table 1.4 summarizes the frequency of Council meetings.
Meetings of ministers are prepared by national officials in the committees and working groups of the Council. Traditionally the most important of these has been the Committee of Permanent Representatives (Coreper), composed of the heads (Coreper II) and deputies (Coreper I) of the member states' permanent representations in Brussels. These each meet at least weekly to agree items on the Council agenda, and to identify those that need to be discussed (and not merely endorsed) by ministers. In some other policy domains (trade policy, agriculture, EMU, JHA, CFSP) similar senior committees of national officials prepare many of the ministerial meet¬ings; often they act as the main decision-makers.
The permanent representations contain a range of national officials whose job is to follow the main subjects being negotiated in the Council, to maintain links with all of the other EU institutions, and to keep in close touch with national capitals. Numer¬ous (150 or so) working groups provide the backbone of the Council and do the detailed negotiation of policy. Their members come from the permanent representa¬tions or national capitals—practice varies. Something like 70 per cent of Council texts are agreed in working groups, another 10-15 per cent in Coreper or other senior committees, leaving 10-15 per cent to the ministers themselves. These proportions are pretty close to the normal practice in a national government.
National governments work in parallel to the Council. National officials follow each level of Council discussion and each area of Council debate, preparing ministerial positions and coordinating national positions. National ministers are involved in much of this work - how and when depends on national practices and on the degree of political interest in each subject within individual countries. Much of this involvement is at the level of individual ministries, where the relevant officials in turn consult the other branches of central, regional, or local government, public agencies, and relevant private sector or non-governmental organizations. Aggregating national positions is the responsibility of the coordinating units in each member government. Again practices vary between countries, some more centralized and some more decentralized in their approaches. Thus a comprehensive view of how the deliberations of the Council proceed needs to include that part that emanates from the continuous engagement of national administrations.
What does the Council do? Mostly it negotiates over detailed proposals for EU action, and very often it does so on the basis of a draft from the Commission. Sometimes the Council will earlier have indicated to the Commission that it would welcome a draft on a particular subject. On most of the topics where the Commission has been the primary drafter, the EP is now co-legislator with the Council (see below). In these areas of policy the decision-making outcome depends on the interactions between these three institutions. The dynamics of the process rest on the way in which coalitions emerge within the Council and between the Council members and the other EU institutions.
In some other areas the Commission and the EP play more marginal roles, and the Council itself is more in charge of its own agenda—CFSP and JHA are apt examples. Here more reliance has to be placed on the Council's own General Secretariat. This has not historically been an organ of policy-making, but rather a facilitator of collective decision-making. However, the growth of work under the second and third pillars (CFSP and JHA) has prompted the expansion of the Council Secretariat. Successive treaty reforms over the past decade have accepted that the CFSP needs administrative underpinning. Member governments have therefore chosen to expand the relevant sections of the Council Secretariat (see Chapter 17). Following the ToA a section of the Council Secretariat has been strengthened to deal with JHA (see Chapter 18). As a result we now need to consider the Council Secretariat as much more of an actor in the policy process than hitherto.
The proceedings of the Council are managed by its presidency. This rotates between member governments every six months. The Council presidency chairs meetings at all levels of ministers and officials, except for a small number of committees which have elected chairs. This involves the preparation of agendas, as well as the conduct of meetings. The presidency speaks on behalf of the Council in discussions with other EU institutions and with outside partners. Often the Council and the Commission presidencies have to work closely together, for example in external negotiations where policy powers are divided between the EU and the national levels. In the legislative field it is the Council and EP presidencies that have to work together to reconcile Council and parliamentary views on legislative amendments. A recurrent question is how far individual governments try to impose their national preferences during the presidency or whether the experience pushes them towards identifying with collective EU interests. As EU policy cooperation has developed directly between governments, rather than at the promptings of the Commission and through formal procedures, so it has fallen to successive presidencies to act as the main coordinators. This has been a particular feature of CFSP and JHA.
The important point to bear in mind is that the Council is the EU institution that belongs to the member governments. It works the way it works, because that is the way that the member governments prefer to manage their negotiations with each other. Regularity of contact and a pattern of socialization mean that the Council, and especially its specialist formations, develop a kind of insider amity. Sometimes clubs of ministers - in agriculture, or dealing with the environment, and so forth - are able to use agreements in Brussels to force on to their own governments commitments that might not have been accepted at the national level. None the less the ministers and officials who meet in the Council are servants of their governments, affiliated to national political parties, and accountable to national electorates. Thus their first priority is generally to pursue whatever seems to be the preferred objective of national policy.
The Council spends much of its time acting as the forum for discussion on the member governments' responses to the Commission's proposals. It does so through continuous negotiation, mostly by trying to establish a consensus. The formal rules of decision vary according to policy domain and over time - sometimes unanimity, sometimes qualified majority voting (QMV), sometimes simple majority. The decision rules are a subject of controversy and have been altered in successive treaty reforms. Broadly QMV has become the rule in areas where Community regimes are fairly well established, while unanimity is a requirement either in areas in which EU regimes are embryonic or in those domains where governments have tenaciously retained more control of the process. There is a great deal of misunderstanding about how the process works in practice. Habits of consensus-seeking are deeply ingrained, and actual votes relatively rare, even when technically possible. Under QMV the knowledge that votes may be called often makes doubting governments focus on seeking amendments to meet their concerns rather than on blocking progress altogether. Under unanimity rules reluctant governments are generally much more likely to delay or obstruct agreements.
The Council used to be the main legislator on EU policies. However, as the EP has acquired powers over legislation, the system has become more bicameral. Thus the Council now reaches 'common positions' which have to be frequently reconciled with amendments to legislation proposed by MEPs in a 'conciliation' procedure. This has meant that the Council is now more explicitly required to justify publicly its collective preferences, an important change in the process.
In some policy domains the Council remains the decision-maker of last resort.
Interestingly this includes some established areas, such as agriculture, where the EP still has little opportunity to intervene (see Chapter 7), and some new policy domains, where the member governments, through the Council, retain the main control of policy. JHA and CFSP are the main examples. EMU provides a different contrast: here the main control of the single currency has been assigned to the European Central Bank, leaving Ecofin and the new Euro-11 Council (including ministers only from member governments with currencies inside EMU) pushing to gain influence over decision-making (see Chapter 6).
The European Council started its existence in the occasional 'summit' meetings of heads of state (France and Finland have presidents with some policy powers) or government (i.e. prime ministers). Two especially important meetings, in The Hague in 1969 and Paris in 1972, were agenda-setters and package-makers for several succeeding years. From 1974 onwards, under the prompting of Giscard d'Estaing, then French President, European Councils were put on to a regular footing, meeting at least twice a year. Successive treaty reforms have put the European Council on to a more formal basis. It remains, however, the case that the European Council operates to an extent outside the main institutional structure. The location and preparation of its meetings, as well as the drafting of its conclusions, depend essentially on the presidency-in-office of the Council, and the agenda of its sessions is much influenced by the preferences of the government in the chair. By custom and practice national delegations in the room are restricted to the president or prime minister and the foreign ministers. Increasingly large cohorts of other ministers and officials have parallel meetings, the topics depending on the preoccupations of the moment.
Over the years the role of the European Council has varied. Conceived of initially as an informal 'fireside chat', it became in the 1970s and 1980s a forum for resolving issues that departmental ministers could not agree, or that were subjects of disagreement within the member governments. By tradition it is the European Council that has been left to resolve the periodic major arguments about EU revenue and expenditure, as Chapter 8 explains in general, and Chapter 9 illustrates in relation to the structural funds. In addition the European Council became, from the negotiations over the SEA in 1985, the key forum for determining treaty reforms. Views have varied as to whether the shifting of decision-making to so senior a political level marked a failure of the 'normal' institutional arrangements or rather a sign of suc¬cess for the EU, as its agenda has risen up the ladder of political salience.
From the late 1980s and during the 1990s the role and behaviour of the European Council have changed. It has increasingly become the venue for addressing what J. Peterson (1995a) calls the 'history-making decisions' in the EU, namely the big and more strategic questions to do with the core new tasks of the EU and those that define its 'identity' as an arena for collective action. Some of our case-studies, especially Chapter 6 on EMU, Chapter 16 on eastern enlargement, Chapter 17 on CFSP, and Chapter 18 on JHA, record European Council pronouncements as the main staging-posts in the development of policy. The level of activity has expanded, with four sessions in 1999, and what seems to be a sharply increasing concern on the part of the most senior national politicians to take control of the direction of the EU. Their
offices now have a direct electronic link (Primenet), and within their national settings it seems that they are more strongly engaged in framing national European policies. One obvious issue for future treaty reformers is whether or not to encapsulate this increasing role within the 'constitutional arrangements' of the EU.
From early on it became clear to close observers of the EU that the role and rule of law were going to be critical in anchoring EU policy regimes. If the legal system could ensure a high rate of compliance, a way of giving authoritative interpretation to disputed texts, and a means of redress for those for whom the law was created, then the EU process as a whole would gain a solidity and a predictability that would help it to be sustained. The ECJ was established in the first treaty texts; these have been virtually unchanged since then, except to cater for the increasing workload and successive enlargements of the EU membership.
The ECJ, sited in Luxembourg, is now composed of fifteen judges, as well as the nine advocates-general who deliver preliminary opinions on cases. The SEA in 1986 established a second Court of First Instance, composed now of fifteen judges, to help in handling the heavy flow of cases. The EU has thus something like a supreme court, able to provide an overarching framework of jurisprudence, as well as to deal with litigation, both in cases referred via the national courts and in those that are brought directly before it. The Courts' sanctions are mostly the force of their own rulings, backed up in some instances by the ability to impose fines on those (usually companies) found to have broken EU law. The TEU gave the ECJ power to fine member governments for non-application of European law. Also, as a result of its own rulings (especially one of the Factortame cases on fisheries - see Chapter 13), damages can be claimed against governments that fail to implement European law correctly. The Courts take their cases in public, but reach their judgments in private by, if necessary, majority votes; the results of their votes are not made public, and minority opinions are not issued.
A series of key cases has, since the early 1960s, established important principles of European law, such as: its supremacy over the law of the member states, its direct effect, a doctrine of proportionality, and another of non-discrimination. In doing so the ECJ has gone further in clarifying the rule and the role of law than had specifically been laid down in the treaties. In some policy domains court cases have been one of the key forces in developing EU policy regimes (see Chapters 4, 5 ,10, and 13). Tables 1.5 and 1.6 summarize the pattern and volume of cases before the two Courts.
This strong legal dimension has a large influence on the policy process. Policy¬makers pay great attention to the legal meaning of the texts that they devise; policy advocates look for legal rules to achieve their objectives, because they know that these are favoured by the institutional system; policy reformers can sometimes use cases to alter the impact of EU policies; and in general there is a presumption that rules will be more or less obeyed. Hence policy-makers have to choose carefully between treaty articles in determining which legal base to use, and to consider carefully which kind of legislation to make.
Regulations are directly applicable within the member states once promulgated by the EU institutions. Directives have to be transposed into national law, which allows some flexibility to member governments, but within limits set by the ECJ. Decisions are more limited legal instruments applied to specific circumstances or specific addressees, as in competition policy (see Chapter 5). All three kinds of law may be made either by the Commission (under delegated powers), or by the Council, or jointly by the Council and EP (under co-decision). And all are subject to challenge through the national and European courts.
The vigour of the European legal system is one of the most distinctive features of the EU. It has helped to reinforce the powers and reach of the EU process, although in recent years the ECJ has become a bit more cautious in its judgments. We should note also that in some policy domains member governments have gone to considerable lengths to keep the ECJ out of the picture. Part of the reason for the three-pillar
structure of the TEU was to keep both CFSP and JHA well away from the reach of the European legal system. Even though the ToA goes some way towards incorporating parts of JHA and Schengen more fully within the system, it remains contested how far they will be brought within the jurisdiction of the ECJ. One issue which floats in the debate is how far the other European legal order, based on the European Convention of Human Rights attached to the Council of Europe, is to be linked to the EU, and whether the EU should adopt its own Charter on Fundamental Rights.
The EU has grown out of three originally separate Communities (ECSC, EEC, and Euratom), each with its own institutions. These were formally merged in 1967. The main elements originally consisted of: a collective executive of sorts - the European Commission; a collective forum for representatives of member governments - the Council (of Ministers); a mechanism for binding arbitration and legal interpretation - the European Court of Justice; and a parliamentary Chamber - the European Parliament (originally 'Assembly')—with members drawn from the political classes of the member states, later by direct election. In addition the Economic and Social Committee provided a forum for consulting other sectors of society. The powers and responsibilities are set out in the treaties, and have been periodically revised (see Table 1.1). As this volume went to press plans were in hand for a further IGC to be held during 2000. Romano Prodi asked for a report (Dehaene et al. 1999) from a group of three 'wise men' as an early contribution to this discussion.
In the 1990s the EC was turned into what is now generally called the European Union, a term which serves two quite different purposes. One is to imply a stronger binding together of the member states. The other is to embrace within one broad framework the different Communities and also the other arenas of cooperation that have emerged, in particular the two 'pillars' of so-called intergovernmental cooperation: the 'second pillar' for CFSP (see Chapter 17); and the 'third pillar' for JHA (see Chapter 18). We summarize here some key elements of the institutional arrangements (readers already familiar with these can move on to the section dealing with the five policy modes in the EU policy process (p. 28).
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