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⁴ Commission of the European Communities, Proposal for a Regulation of the European Parliament and of the Council Laying Down General Provisions Establishing a European Neighbourhood and Partnership Instrument (Brussels, 29 September 2004).

⁵ The number of recitals is an indicator of information intensity. Recitals state the principles and assumptions on which the law is based, and often refer to other laws to which the present one relates. The ENPI regulation contains twenty-three recitals, which is close to the average number of recitals found in our selection of laws.

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⁹ Epstein and O’Halloran, Delegating Powers.

¹⁰ For example, Huber, John D. and Shipan, Charles R., Deliberate Discretion? The Institutional Foundations of Bureaucratic Autonomy (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar.

¹¹ Bendor, Jon, Glazer, Amihai and Hammond, Thomas, ‘Theories of Delegation’, Annual Review of Political Science, 4 (2001), 235–269CrossRefGoogle Scholar, p. 242.

¹² Pollack, ‘Delegation, Agency, and Agenda Setting in the European Community’; Franchino, ‘Delegating Powers in the European Community’.

¹³ Franchino, ‘Delegating Powers in the European Community’; Franchino, The Powers of the Union; for a review, see Mastenbroek, Ellen and Veen, Tim, ‘Last Words on Delegation? Examining the Powers of the Union’, European Union Politics, 9 (2008), 295–311CrossRefGoogle Scholar.

¹⁴ In Franchino’s model, a member state’s loss of utility under Commission implementation is the quadratic loss incurred by the distance between the Commission’s position and the member state’s position. However, member state utility loss under member state implementation is much less straightforward: it is the average quadratic utility loss incurred by all member states; see Franchino, , The Powers of the Union, pp. 31–2Google Scholar.

¹⁵ Bendor, Jon and Meirowitz, Adam, ‘Spatial Models of Delegation’, American Political Science Review, 98 (2004), 293–310, pp. 304–305CrossRefGoogle Scholar.

¹⁶ Epstein and O’Halloran, Delegating Powers, p. 75; see also Volden, Craig, ‘A Formal Model of Delegation in a Separation of Powers System’, American Journal of Political Science, 46 (2002), 111–133CrossRefGoogle Scholar.

¹⁷ Epstein and O’Halloran, Delegating Powers.

¹⁸ We thank one of the Journal’s referees for suggesting the two types of credibility problems. See Kydland, Finn E. and Prescott, Edward C., ‘Rules Rather Than Discretion: The Inconsistency of Optimal Plans’, Journal of Political Economy, 85 (1977), 473–492CrossRefGoogle Scholar; Melumad, Nahum D. and Dilip Mookherjee, ‘Delegation as Commitment: The Case of Income Tax Audits’, RAND Journal of Economics, 20 (1989), 139–163CrossRefGoogle Scholar; Gilardi, Fabrizio, ‘Policy Credibility and Delegation to Independent Regulatory Agencies: A Comparative Empirical Analysis’, Journal of European Public Policy, 9 (2002), 873–893CrossRefGoogle Scholar; Bendor, Glazer and Hammond, ‘Theories of Delegation’, p. 260.

¹⁹ Thomson, Torenvlied and Arregui, ‘The Paradox of Compliance’; Zhelyazkova, Asya and Torenvlied, René, ‘The Time-dependent Effect of Conflict in the Council on Delays in the Transposition of EU Directives, European Union Politics, 10 (2009), 35–62CrossRefGoogle Scholar.

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²⁴ Majone, ‘Two Logics of Delegation’, pp. 111–12.

²⁵ Pollack, The Engines of European Integration, p. 106.

²⁶ Although there is little empirical evidence from the existing literature, the commitment perspective suggests that the position of the agent gauges the extent to which delegation to that agent solves the commitment problem. Economic theory posits that the ‘conservatism’ as well as ‘independence’ of central banks solves commitment problems in monetary policy making. However, while empirical studies of inflation rates reveal a strong negative correlation between central bank independence and inflation, there is no evidence of a link between central bank conservatism and inflation: Berger, Helga, Haan, Jakob and Eijffinger, Silvester, ‘Central Bank Independence: An Update of Theory and Evidence’, Journal of Economic Surveys, 15 (2001), 3–38CrossRefGoogle Scholar. When examining delegation to the Commission, we explored interaction terms between the severity of the commitment problem, as measured by conflict in the Council, and two indicators of the policy position of the Commission. The first indicator was the Commission’s incentive to deviate and the second was a dichotomous variable that indicated whether or not the Commission took an extreme position if the issue concerned the level of harmonization of a particular policy. These interactions did not yield any significant or noteworthy findings.

²⁷ Cox, Gary and McCubbins, Mathew D., ‘The Institutional Determinants of Economic Policy Outcomes’, in Stephan Haggard and Mathew D. McCubbins, eds, Presidents, Parliaments, and Democracy (Cambridge: Cambridge University Press, 2001), pp. 21–63Google Scholar; König, Thomas and Bräuniger, Thomas, ‘Decisiveness and Inclusiveness: Two Aspects of the Intergovernmental Choice of European Voting Rules’, Homo Oeconomicus, 17 (2000), 1–17Google Scholar.

²⁸ See, for example, Golub, Jonathan, ‘In the Shadow of the Vote? Decision making in the European Community’, International Organization, 53 (1999), 737–768CrossRefGoogle Scholar; Schultz, Heiner and König, Thomas, ‘Institutional Reform and Decision-Making Efficiency in the European Union’, American Journal of Political Science, 44 (2000), 653–666CrossRefGoogle Scholar; Thomson, Robert, ‘The Council Presidency of the European Union: Responsibility with Power’, Journal of Common Market Studies, 46 (2008), 593–617CrossRefGoogle Scholar, p. 605.

²⁹ Dimitrova and Steunenberg, ‘The Search for Convergence of National Policies in the European Union’.

³⁰ Sixty-nine of these acts were selected for a study of decision making in the EU of fifteen member states (see Thomson, Robert, Stokman, Frans N., Achen, Christopher H. and König, Thomas, eds, The European Union Decides (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar).

³¹ Franchino, ‘Delegating Powers in the European Community’; Franchino, The Powers of the Union; Epstein and O’Halloran, Delegating Powers. We followed Franchino’s procedure for identifying major provisions, discretion and constraints.

³² The discretion ratio for member states has an average of 18.19 (s.d. 14.79) for directives and 5.32 (s.d. 8.15) for other instruments (t = −4.64, p = 0.00). The discretion ratio for the Commission has an average of 1.59 (s.d. 3.13) for directives and 7.25 (s.d. 9.93) for other instruments. The correlation between the discretion ratio for the Commission and the discretion ratio for member states is −0.30, p = 0.01, n = 86. This negative correlation is consistent with Franchino, The Powers of the Union, pp.184–6. Note that Franchino’s measures of delegation to both the Commission and member states incorporate information on constraints while ours do not. In our data, there is an almost perfect correlation between the percentage of major provisions that give discretion to the Commission (or member states) and Franchino’s measure of delegation to the Commission (or member states): for delegation to the Commission, r = 0.99, p = 0.00, n = 86; for delegation to member states, r = 0.99, p = 0.00, n = 86.

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³⁴ Details of these tests can be found in an appendix to Thomson et al., eds, The European Union Decides; König, Thomas, Lindburg, Bjorn, Lechner, Sandra and Pohlmeier, Winfried, ‘Bicameral Conflict Resolution in the European Union: An Empirical Analysis of Conciliation Committee Bargains’, British Journal of Political Science, 37 (2007), 281–312CrossRefGoogle Scholar.

³⁵ Shapley, Lloyd S. and Martin Shubik, ‘A Method for Evaluating the Distribution of Power in a Committee System’, American Political Science Review, 48 (1954), 787–792CrossRefGoogle Scholar. The calculation uses Powerslave by Antti Pajala, Tommi Meskanen and Tomi Kause, ‘Powerslave Power Index Calculator: A Voting Body Analyser in the Voting Power and Power Index Website’, University of Turku (published 2002, updated 2007), <URL:http://powerslave.val.utu.fi/>.

³⁶ Kaeding, Michael, ‘Determinants of Transposition Delay in the European Union’, Journal of European Public Policy, 26 (2006), 229–253CrossRefGoogle Scholar, p. 236.

³⁷ One area for future research is the extent to which and conditions under which the Commission is able to foresee the controversies that its legislative proposals raise. This is also an essential area of research for testing models of the EU’s legislative procedures, since these models assume that the Commission crafts its legislative proposals with the benefit of detailed knowledge of member states’ policy preferences.

³⁸ The expected values in Figures 2 and 3 are based on simulations using clarify, holding the values of the other variables at their mean (for continuous) or median (for nominal) variables. See King, Gary, Tomz, Michael and Wittenberg, Jason, ‘Making the Most of Statistical Analyses: Improving Interpretation and Presentation’, American Journal of Political Science, 44 (2000), 341–355CrossRefGoogle Scholar.

³⁹ We applied two alternative measures of the Commission’s incentive to deviate, one weighted by salience, as reported in the text, and one unweighted. We also applied six different measures of conflict in the Council: first, the measure reported in the text, which is weighted by salience and member states’ Shapley–Shubik Index (SSI) scores; secondly, a similar measure using expert judgements of member states’ capabilities rather than SSI scores; thirdly, weighted only by SSI scores; fourthly, weighted only by expert judgements of states’ capabilities; fifthly, weighted only by salience; sixthly, unweighted. All variants produced substantively the same findings. We also modelled the commitment perspective as an interaction between conflict in the Council and the Commission’s incentive to deviate, with the same result. We explored interaction terms between information intensity and both the Commission’s incentive to deviate and conflict in the Council, neither of which was significant. Adding control variables for the involvement of the EP and for the post-2004 laws did not affect the results.

⁴⁰ We also experimented with different measures of conflict in the Council (see previous note), all of which indicated that conflict has a positive effect on delegation to member states when the unanimity rule applies. Adding control variables for the involvement of the EP and for the post-2004 laws did not affect the results.

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⁴² Bendor and Meirowitz, ‘Spatial Models of Delegation’, pp. 304–5. We also find no evidence that conflict in the Council leads to more delegation to the Commission, which might be expected on the basis of Epstein and O’Halloran’s model in Delegating Powers, p. 75.

⁴³ Pollack, The Engines of European Integration.

⁴⁴ Majone, ‘Two Logics of Delegation’.

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