INTRODUCTION

In mid-1996, the Commission initiated a package of proposals on food products known as the ‘breakfast directives’, proposing regulations on honey, preserved milk, certain sugars, fruit juices and jams. Aiming to facilitate the free movement of these products in the internal market, the breakfast directives were typical examples of regular European Union legislative decision-making. The Commission sought to simplify existing legislation by harmonising the labelling of food products in the EU. Due to three disputed issues, the directive relating to honey was the last one of the package to be the object of political agreement. The final decisions on the three contested issues were taken at the working group level of the Internal Market Council. One of these issues was about the scope of implementing powers to be conferred upon the Commission through the comitology procedure, raising particular concerns by the United Kingdom and the Nordic countries. The other issues referred to the labelling and denomination of low quality honey. In the end, mutual concessions were made to member states on some issues to ensure their agreement on the directive as a whole. For instance, Germany and the UK obtained generous exceptions regarding the labelling of their products, while the other member states attached less importance to this issue because of the progress made on the other parts of the directive.

Similar examples have often been observed by case studies, which reveal two characteristics of EU legislative decision-making:

1. Member states and the Commission link issues within proposals in particular policy areas (Mattila and Lane 2001). […]

THE TWO STAGES OF POLITICAL DECISION-MAKING

Close studies of governmental decisions in democracies commonly divide the process into two stages. First, the actors bargain. As Arthur Bentley (1967 [1908]: 371) put it nearly a century ago in describing the legislative process, ‘It is compromise … It is trading. It is the adjustment of interests.’ This stage may include information-gathering and exchange, as well as threats and promises. Few rules constrain the actors. The free-form interplay puts a premium on creative interpretations and skilful compromise.

Then, when deals have been struck (or the parties to the conflict are exhausted), the second stage takes place. Here the organisational regulations and legal rules shape the process, and a test of strength is carried out according to constitutional or legal procedures. Explicit voting procedures settle differences of opinion.

The two stages of political decision-making interpenetrate and influence each other. Groups with more votes in the constitutional procedures have more power in the preliminary bargaining. Conversely, skilful bargainers at the initial stage may persuade other actors and build coalitions that control a disproportionate number of votes at the final stage. Manoeuvring at each stage takes account of the contending groups' power at the other stage. A sophisticated recent discussion that emphasises this two-step view of European Union decision-making is Van den Bos (1991, chapter 5). Students of domestic politics have repeatedly discovered the same process at work, particularly in studies of interest groups, ‘iron triangles’, policy networks, and issue coalitions.

This book examines legislative decision-making in the European Union. The analyses reported here use some of the most powerful conceptual tools available to social scientists for this task: a range of competing explanations, formalised as models, of decision-making in the European Union. Some of the explanations are grounded in previous research on legislative choice and focus on the impact of formal decision-making procedures on policy outcomes. Others draw inspiration from research on various types of informal bargaining through which actors exert influence. Most of these explanatory models have not yet been tested in the context of EU decision-making. Some have been tested on very limited data sets and in small pilot studies, while others have been developed during the course of this project.

This is not only, or even primarily, a theoretical exercise. The analyses are performed on a large data set, compiled specifically for this study, containing information on 162 controversial issues raised by recent legislative proposals in the European Union. In the following chapters, the explanatory models are presented and illustrated by applying them to examples from this broad selection of controversial issues. They are then applied to all cases in the data set. After comparing the results of these applications, we formulate insights into the processes through which controversies are resolved and decision outcomes are reached in the legislative arena of the European Union. None of the explanatory models has been tested on as large a data set as the one we have collected in this project.

INTRODUCTION

When the Council of Ministers had to decide on the so-called chocolate directive in 1999, its plan to allow vegetable fat in the production of candy products met with fierce opposition from Belgium, France, and the Netherlands. These three member states objected to the usage of vegetable fats other than cocoa in chocolate. Although they advanced some consumer-friendly arguments, continental manufacturers also tried to avoid competition from the British chocolate industry and to protect some of their traditional trading partners in the African, Caribbean and Pacific (ACP) countries. They particularly protested against the proposed derogations that would have allowed the United Kingdom and Ireland to continue the production of ‘household milk chocolate’, which contains a large amount of milk. While the Belgian government spoke of ‘à la carte harmonisation’ benefiting ‘the industries of only certain member states’ (Europe Daily Bulletins, No. 7583, 29 October 1999), French chocolate makers demonstrated against the measure during the plenary session of the European Parliament in January 2000. The massive lobbying by the Belgian and French interest groups was, however, only partially successful. The European Parliament accepted the common position of the Council, allowing some sorts of vegetable fats in chocolate as well as the derogations favouring British and Irish ‘family milk chocolate’. The legislature nevertheless added a ‘fair trade’ requirement. This successful amendment granted the industry the right to sell chocolate containing up to six sorts of vegetable fat everywhere in the European Union, as long as these ingredients came from developing countries (Europe Daily Bulletins, No. 7677, 16 March 2000).

Obtaining information from policy area experts was essential in this research project given that decision-making in the European Union, and particularly in the Council, is often a secretive and specialised affair. Documentation on Council decision-making on politically sensitive dossiers has, until very recently, not been available. Many experts we interviewed spoke of an unwritten rule, according to which information on other member states' positions in the Council should not be divulged. Still, many were willing to provide this information, given the scientific nature of our inquiry, and under the condition that they would be thanked not by name, but by institutional affiliation. We obtained Council documents on the discussions on some of the Commission proposals included in our selection, and these provided fascinating information that supplements, rather than substitutes the information provided by experts. Policy discussions in the Council, particularly at working group level, are often of a technical nature. This makes it difficult and often impossible to distinguish between peripheral technical matters and political issues that form the most important elements of the debate. Consultations with experts are essential to making such distinctions, and to drawing our attention to the links between apparently separate points that are in fact parts of the same issue. Furthermore, content analysis of documentation does not offer acceptable operationalisations of some of the concepts contained in our models: for instance, the level of importance actors attach to the issues being discussed.

INTRODUCTION

The Treaties of Maastrict, Amsterdam, and Nice are milestones of European integration. In each case, the negotiation and ratification processes attracted widespread media and popular attention. More recently, the Treaty Establishing a Constitution for Europe also drew sustained interest from broad sectors of European society until it failed ratification in several member states during 2005. Academics are drawn to stirring events just as the press and public are, and thus many political scientists have written engagingly about the ‘grand bargains’ embodied in the successive EU treaties (e.g. Moravcsik 1998).

Day to day, however, the business of the EU does not make front-page headlines. Like any government, the EU spends most of its time deciding routine matters, such as the wording of health warnings on tobacco products or the funding of student exchanges in Europe. Indeed, both tobacco label and student exchange decisions appear in the data set used in this book. The EU's own organs decide these issues—the Commission, the Council of Ministers, and the European Parliament (EP). Mid-level civil servants and ordinary Members of the European Parliament (MEPs) may play critical roles. Prime ministers and chancellors, who loom so large in the grand bargains, do not.

In this volume, we have directed our energies toward the explanation of everyday EU decisions. We make no apology for doing so. Although some legislative acts are merely technical correctives or minor bureaucratic rule-making, the great majority of the decisions examined here affect the lives of many Europeans.

Chapter 2 describes the criteria used to select the Commission proposals included in our study. They had to be subject to either the co-decision or consultation procedures, be pending in the years 1999 and/or 2000, and be to some extent controversial.

With regard to 14 of the 26 co-decision proposals, a change to the legislative procedure nevertheless did occur. The significance of this change is open to debate. Proposals subject to the co-decision procedure were included in the selection, even if they had been introduced as co-decision proposals before the Amsterdam Treaty came into effect, and were decided upon afterwards. Such proposals underwent a procedural change, since the co-decision procedure was amended by the Amsterdam Treaty. In particular, the previous (Maastricht) version of the co-decision procedure allowed the Council to reaffirm its common position in the face of protracted disagreement between the Council and the European Parliament (EP). The proposal was then adopted in accordance with the Council's common position unless an absolute majority of all Members of European Parliament (MEPs) voted to reject it. The Treaty of Amsterdam removed what some have interpreted as the Council's ability to make a ‘take it or leave it’ offer to the EP. In the new version of the co-decision procedure, the Council and the EP have to reach an agreement if the legislation is to pass.

INTRODUCTION

Quantitative analysis of European Union decision-making can be divided into two distinct traditions. First, there is a camp representing the cooperative approach; this includes the power index approach, the compromise model and cooperative bargaining and coalition formation models. A common feature of these models is that they do not consider explicitly how the outcome of the decision-making process is arrived at. Instead, it is assumed that a compromise among the actors is reached that is a result of their formal or informal capabilities, their information-gathering capacities, and/or the interaction and coalition formation among them. Using rather general assumptions about these elements, the cooperative approach derives solution concepts that also give predictions of decision outcomes.

As noted in Chapter 4, many studies of governmental decisions divide the process into two stages. The first stage is that of compromise-seeking or coalition-formation and has very few formal rules. The second stage consists of the application of the decision-making procedure, where there are explicit written rules and the sequence of moves is specified. The co-operative approach corresponds roughly with the first stage. It makes either no assumptions concerning the second stage at all, or it (implicitly) assumes that all aspects of the second stage of relevance to compromises or coalition formation have been taken into account during the first stage of the process. This approach also presumes that the compromises made in the first stage are binding.

HOW WELL DO THE MODELS FORECAST?

The previous chapters in this book have elaborated many different models of political decision-making in the European Union. To make their forecasts, some of these models focus on the incentives created by EU legal regulations or decision-making rules. Other models emphasise the power of bargaining in political decision-making. Still others start from logrolling, coalitions, or the spatial theory of voting.

The aim of this book is to set out all these models of EU decision-making, and then to evaluate how well the models predict actual decisions. Most of the discussion is quantitative. Yet in important respects, we mean to integrate prior case studies, formal theory, and statistical methods. For example, each of the modelling approaches represented in this book builds on one or more central aspects of political life known from dozens of skilful case studies of political decisions. All competent model-building depends on careful qualitative research in which explanatory factors are identified and tentative empirical generalisations are formulated. No model is worthwhile if, like some formal theorising, it applies to nothing in particular. Case studies have generated most of the interesting hypotheses in political science. They are the essential foundation for most model building.

Moreover, case studies play a crucial role in evaluating theory.

It is time to step back and consider how the various pieces discussed thus far fit together. We must consider first how they form a coherent project and then how the various principles are related and the ways they contribute. As a coherent project, constitutional design takes its form from political philosophy in general, because the constitutional project is historically the result of, and an offshoot from, Western political philosophy. This is not to say that constitutionalism is the central concern of political philosophy or that all political philosophers have contributed to constitutional thinking. Instead, constitutionalism is so deeply embedded in Western political philosophy that the content of constitutionalism and the method for pursuing it cannot be separated from Western philosophy. In large part, this resulted from the project being defined by early political philosophers as they engaged in defining the broader philosophical tradition. In Chapter 6 we considered some of Plato's contributions to defining and advancing constitutionalism, but it is to Aristotle we must turn for laying out the coherent project in which we are now engaged.

Political Philosophy as an Integrated Project

Aristotle notes in the Politics that political theory proceeds simultaneously at three levels: discourse about the ideal, about the best possible in the real world, and about existing political systems (1288b21). Put another way, comprehensive political theory must ask several different kinds of questions that are linked, yet distinguishable.

Why the Amendment Process Is Important in Constitutional Design

We have seen that framers of constitutional republics tend to increase the level of separation of powers as they increase the level of popular control. This principle of constitutional design seems to emerge from some logic inherent in the design process rather than from designers following explicit, articulated normative rules. It was suggested in Chapter 2 that the inherent logic of constitutional design results from humans, on the one hand, seeking to create a supreme power that allows an expanded pursuit of self-preservation, liberty, sociability, and beneficial innovation and, on the other hand, seeking to prevent that supreme power from itself threatening these pursued values. As a secondary principle, framers of constitutions tend to balance the consequences of constituency size with the consequences of legislative size to produce a primary legislature whose size approximates the cube root of the population.

Put another way, under conditions of popular control the elective legislatures that are the core of a constitutional republic should have constituencies that as are as small as possible; but also, under conditions of popular control, the legislatures should not be so large as to fall under the control of legislative elites. As the population of a constitutional republic grows to a size where the attempt to achieve this balance results in both a constituency size and legislative size too large for preventing government itself from threatening popular control, a second house is usually added to the legislature and gradually strengthened as the population grows larger.

A Recurrence to Fundamentals

Thomas Jefferson is famous for his notion that every generation should engage in revolution to preserve the blessings of liberty. The notion of “revolution” in use then, contrary to ours today, did not connote a violent break with the past but a thoughtful evolution away from the present. The early American state constitutions spoke of a “frequent recurrence to fundamental principles” as the bulwark of freedom and constitutional government. The framers of the United States Constitution included an amendment process at the end – not as an afterthought, but as the embodiment of this frequent recurrence to fundamentals, this permanent (r)evolution.

“Recurrence” does not mean “the reestablishment of” or “adherence to original intention.” The recent debate over the intentions of the American founders has been far from sterile, but that discussion is not what is meant here. Rather, “recurrence to fundamental principles” involves the action of going back mentally and in discourse to recapture the principles that inform and animate our constitutional system, to reconsider these principles in the light of altered circumstances and commitments, and either to reaffirm in contemporary language and symbols what still speaks the truth to us or to alter and then ratify formally modifications or additions to these principles.

We stand in need of such a recurrence in part, ironically, because our political system seems to have triumphed in the face of a half-century struggle with our political antithesis – the nondemocratic, anticonstitutional Soviet Union.