The question of whether and, if so, when to constitutionalise the European Union (EU) entered serious public debate with the speech of Joschka Fischer at Humboldt University in 2000. In virtually all member states, prominent politicians subsequently felt compelled to express their opinion on this issue. Not surprisingly, they came up with very different versions of what such a European constitution should contain. Some wanted it in order to limit any further expansion of the competences of the EU; others wanted it in order to provide the EU with sufficient authority to cope with a wider agenda and a large number of members. But on two things there seemed to be general agreement: (1) the EU could not continue solely on the basis of treaties that have to be revised periodically and ratified by each member state – if only because this had already become much more difficult to do with fifteen members and even more so with twenty-five; and (2) this change in the fundamental institutional basis of European integration should happen sooner rather than later.

I remain convinced that both of these assumptions were (and still are) wrong. The EU does not need a constitution, not only because it has not done badly with a quasi-constitution based on successive treaties, but also because the flexibility provided by the lack of an agreed distribution of competences between it and its member states and, especially, the absence of a common definition of its political end-state (the so-called finalité politique) are precisely what the EU will need in the coming years when it will have to face the dual challenges of governing the effects of monetary unification and coping with the dislocations generated by enlargement.

There is a state of uncertainty, not about the desirability of a European civil society (as Gandhi said of Western civilisation, it sounds like a good idea) but about its reality. I have become, if anything, somewhat more tentative about the claims one can make for the existence of anything one might want to call civil society at a European or European Union (EU) level, as distinct from the several and sometimes overlapping civil societies located in the individual member states of the EU. The existence of a section called ‘civil society’ on an EU website publicising relevant conferences and so forth provides only limited reassurance here. There are of course numerous civil society organisations with a European/EU reference, ranging from the European Trade Union Confederation (ETUC) to more informal social movements and lobbying organisations representing the interests of consumers, cyclists and others. There is also of course the European Social Forum, emerging in 2002 out of the global social movement, the World Social Forum, and playing an equally prominent if occasional role. The question is whether all this amounts to something we might meaningfully call a European or EU civil society.

Two books have had a particular influence on my thinking. One is Michael Billig's Banal Nationalism, the other is Larry Siedentop's Democracy in Europe. Referring to such everyday examples as national flags outside public buildings, Billig points out the extent to which nation-state categories frame our social experience and our most basic assumptions:

Peace and prosperity in Europe: anyone who remembers the zero hour of 1945 and all that went before it feels grateful every day for these achievements. We also know who and what can take credit for the flourishing landscapes which have replaced trenches and ruins. Above all, it is the people of Europe who have learnt the lesson of history and worked vigorously to create a better world. But then there was also the USA, safeguarding and promoting the new opportunities of the postwar era. NATO and the Marshall Plan are code words for the commitment for which we Europeans are obliged to be eternally grateful. Both the actions of the people and the USA's assistance have now been strengthened and made lasting by the process of European unification, itself one of the remarkable achievements of recent decades.

And yet precisely this process has made headway only falteringly, subject to detours and prone to occasional accidents. Churchill's splendid vision of 1945 fell on ground on which, to be sure, some flowers bloomed but where no-one had the courage – or found the right conditions – to pave the way to this royal road. There has never been political union in Europe. Should there be? This is my question here. If we do not believe in a world spirit – a spirit which was expressed in Churchill's speeches in Strasbourg and Zurich and which, inevitably if not always recognisably, clears the way for a United States of Europe – then we must ask why we should aspire to the ‘ever closer union’ of Europe as set out in the Treaty of Rome which established the European Economic Community (EEC).

In the third millennium, postnationalism looks set to replace nationalism as the dominant political paradigm. The twentieth century witnessed the break-up of the great national empires – British, French, Austro-Hungarian, Ottoman, Russian – as well as a number of devastating world wars resulting from the internecine rivalries between nation-states. The terminal death-rattles of nationalist belligerence (on the European scene at any rate) sounded on the streets of Belfast where republicans and loyalists fought their last battles before finally reaching peace in 1998, and in the villages of Croatia, Bosnia and Kosovo where Balkan ethnicities clashed in genocidal hatred before an international accord was secured. Widening the focus, the events of 11 September 2001 made it dramatically clear that wars of the twenty-first century cannot be confined to specific nation-states, or national empires, but traverse boundaries and borders with disturbing ease. Al-Queda is as postnationalist as the American Way of Life it targets.

In several writings over the last two decades, the German philosopher, Jürgen Habermas, argues for what he calls a ‘postnational constellation’ as a response to the current political situation in Europe. Noting the erosion of the territorial sovereignty of nation-states, Habermas expresses the hope that this may open up a new space for: (1) cultural hybridisation; (2) transnational mobility and emigration; (3) cosmopolitan solidarity, predicated on a neo-republican balance between private and civic liberties opposed to the neo-liberal disregard for social justice; and (4) constitutional patriotism (on a federal European scale inspired by principles of coordinated redistribution and egalitarian universalism).

INTRODUCTION

An essential ingredient of politics is winning. What counts in politics is the passing of a bill, the amendment of a proposal, getting a policy accepted, or the enforcement of a decision. However, in general, it is impossible to win by staying alone. In politics, including European politics, it is necessary to form winning coalitions in order to enforce decisions.

Surely, in any political system, individual preferences with respect to a decision-making problem will diverge. Consequently, conflict will be at the heart of politics. However, this does not mean that coalitions are not important. In order to resolve conflict in political decision-making processes, cooperation and hence coalition-formation is essential. Conflict and cooperation are different sides of the same coin. Indeed, even if conflict is so strong that no resolution is possible, coalition-formation is still essential: in the extreme, it is necessary in order to revolutionise the system itself.

Since cooperation is an essential ingredient of politics, coalition-building cannot be neglected in the modelling of political decision-making. A framework that explicitly deals with cooperation and coalitions is cooperative game theory. In this chapter, we will use cooperative game theory to analyse decision-making in European politics.

However, cooperative game theory has a serious drawback: it is mainly geared towards solving games in terms of payoff structures, not in terms of coalitions. For quite some time, political scientists have been aware of this fact (e.g. see Riker 1962).

The aim of this study is to apply and compare different explanations of legislative decision-making in the European Union (EU). Two features of the research design are particularly important with respect to achieving this aim. First, the selection of cases must cover a sufficient number and variety of cases to count as a test of the explanations. Second, a way of thinking about very different decision situations has to be devised, such that they can be compared, in terms of the applicability of different explanations in any given situation, and in terms of the performance of explanations in different situations. Stating explanations in the form of models is part of the endeavour to facilitate comparison. Another part is the conceptualisation of decision situations spatially. Political controversies are conceptualised as issue continua or scales, with actors placed at different positions on these issues. The Commission proposal on tobacco products will be used to illustrate the data collection process. One of the issues raised by this proposal was the size of the health warning on tobacco products: see the second issue described in Figure 2.1. At one end of this issue continuum, we find the status quo position at that time, consisting of relatively small warnings. At the other end of the continuum, we find the alternative of very large health warnings using very strong language. Intermediate alternatives are placed on positions between these two alternatives. This way of defining issues is essential to the comparison of different explanatory models' performance.

INTRODUCTION

The view that institutions are important to decision-making has led to a large number of game-theoretical models that aim to understand and explain the European Union's legislative process. As these models stress the sequential features of the legislative process as well as the differences in decision-making power of the various actors involved, they are referred to as procedural models. Departing from the ‘older’ legislative procedures, such as the consultation procedure (Steunenberg 1994a; Crombez 1996) and the cooperation procedure (Tsebelis 1994; Moser 1997a), this literature has expanded to include the more recently adopted procedures, including the two different versions of the co-decision procedure (Garrett 1995; Crombez 1997, 2000a; 2006; 2000c; Steunenberg 1997). In this chapter, we focus on the procedural models developed for the European Union and test some of these models empirically.

The procedural models of EU decision-making are related to a broader rational choice literature in which political outcomes are regarded as the combined result of political preferences and institutions (Shepsle 1989; Shepsle and Weingast 1995; Ostrom 1986; Dowding 2002). This literature developed as a response to studies, especially focused on the United States Congress, which approached politics as a simple account of majority rule. The main expectation from these studies was that voting cycles might frequently occur, which would make politics chaotic and arbitrary, and make it almost impossible to predict outcomes.

INTRODUCTION

According to the account of European Union (EU) decision-making proposed in this chapter, this is a bargaining process during which actors shift their policy positions with a view to reaching agreements on controversial issues. Formal institutions, such as the procedural rules explored in Chapter 3, matter in this process. They define the set of actors included in the process and their relative weight or power. The observation that actors shift their positions, and cajole or compel others to shift theirs, is central to our conception of political bargaining. Practitioners of European affairs reported that flexibility in actors' initial policy positions is an important feature of the decision-making process. During one interview an informant was asked why the actors were so polarised in terms of the policy alternatives they ‘favoured most’ at the outset of the discussions. He responded: ‘That's not so unusual. At the start of the negotiations, the positions tend to be more extreme. As the discussions get underway, we realise what is politically feasible, and converge gradually toward those points’. In this chapter, we compare two different models of the bargaining process in which actors shift from the policy positions they favour most at the outset of the discussions.

The models we focus on in this chapter are the position exchange model (Stokman and Van Oosten 1994) and the challenge model (in other studies this model is also referred to as ‘the expected utility model’, Bueno de Mesquita 1994).

INTRODUCTION

This book examines how legislation is made in the European Union (EU). Taking decisions in the European Union requires overcoming controversy and disagreement. European decision-makers' ability to resolve controversy has been tested by three developments. First, the number of member states increased from six to 25, with the prospect of further enlargement in the near future. Second, changes to the formal decision-making procedures increased the institutional power of the European Parliament. Third, the European Union expanded its involvement in policy areas from its focus on the internal market and freedom of movement across borders to include economic and monetary union, environmental policy, competition, and social policy among others.

There are numerous recent and high-profile examples of the challenges European decision-makers face in reaching political agreements amid controversy. One such example concerned the question of whether Germany should be given an official warning under the Stability Pact for its excessive budget deficit. Germany was not allowed to vote on the proposal to give such a warning, since the warning was directed against itself. Nonetheless, with the help of the Italian Presidency, it managed to turn unanimous support for the proposed warning into a vote against the proposal. The European Commission opposed this decision, and successfully overturned it in the European Court of Justice. This outcome, and the way it was achieved, challenged the view that important decisions need the support of all member states, even when this is not formally required.

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.