New modes of lobbying in new modes of governance
How interest organisations react to uncertainty and how that may foster experimentalist governance in EU policy-making.
Abstract
This research investigates how interest groups operate under uncertain and complex circumstances in the European Union that provide different opportunities for access in the policy process. More specifically, the purpose is to see how experimentalist governance structures affect the role of interest representation in the policy-making process on the one hand, and how these interest groups adjust their strategies in order to influence policy in this mode of governance on the other hand. In turn, the changed behaviour of non-state actors is considered as an important driving force for the emergence and development of experimentalist governance. By means of a comparative case study, this paper reveals how the reaction of interest groups fosters the emergence of experimentalist provisions in uncertain and complex policy-making conditions, and how it helps to improve the functioning of an existing quasi-experimentalist governance design.
Douwe Truijens, 5611237 MA Thesis, Research Master Social Sciences Supervisor: Prof. Dr. Jonathan Zeitlin Second reader: Dr. Rosa Sánchez-Salgado 24 June 2013 21.330 words
2 Table of contents
List of abbreviations 3
Introduction: Experimentalist governance and interest group advocacy 4
Theoretical framework: Reciprocal interaction between experimentalism and interest advocacy
7
Operationalisation 11
Research design and case selection 15
Case 1: Directive on combating child abuse 16
Case 2: From the IPPC to the Industrial Emissions Directive 18
Methodology and data collection 20
Conventional interest representation 22
The EU’s conventional demand for lobbying 23
The conventional supply side: Venues, arguments and access strategies 24
Combating the Sexual Abuse of Children: Advocacy under complexity and uncertainty 29
From Council Decision to Directive of the Council and Parliament: A brief history
29
Advocacy under uncertainty: Conventional lobbying in the legislative phase 32
New modes of lobbying: Focus on implementation 34
Lobbying through EIIs 36
The Industrial Emissions Directive: Advocacy in quasi-experimentalist structures 41
From the IPPC to the IED: Advocating frameworks for action 41
Dual lobbying in the IED’s experimentalist governance 45
Conclusions: New modes of lobbying in new modes of governance 50
Acknowledgements References
56 57
3 List of abbreviations
BATAELs – BAT-Associated Emission Levels BATs – Best Available Techniques
BREFs – BAT Reference Documents
Cefic – The European Chemical Industry Council DG – Directorate General
EDPS – European Data Protection Supervisor EDRi – European Digital Rights
EEB – European Environmental Bureau
EFC – European Financial Coalition against Commercial Sexual Exploitation of Children Online
EII – Experimentalist Implementation Institution ELVs – Emission Limit Values
eNACSO – European NGO Alliance on Child Safety Online EP – European Parliament
EU – European Union
EuroISPA – European Internet Service Providers Association Eurofer – European Steel Association
IDEI – Information about Domestic Encompassing Interest IED – Industrial Emissions Directive
IEEI – Information about European Encompassing Interest IEEP – Institute for European Environmental Policy IEF – Information Exchange Forum
IPPC – Integrated Pollution Prevention and Control (Directive) ISPAI – Internet Service Providers Association of Ireland ISPs – Internet Service Providers
IT – Information Technology
MEP – Member of the European Parliament NGO – Non-Governmental Organisation SID – Safer Internet Day
SIP – Safer Internet Programme TWG – Technical Working Group
4 Introduction: Experimentalist governance and interest group advocacy
The ongoing development of the European Union (EU) as a unique monetary and political project raises important academic questions about how to interpret the ways in which European policy is made and implemented amidst the diversity inherent in such a large multilateral polity. In response to developments and obstacles experienced since the establishment of the Union, new modes of European governance have emerged throughout the past decades. In general, these new modes are characterized by a shift away from hierarchy as embodied in the top-down, prescriptive and binding features of the classic community method (Craig and De Búrca, 2007: 144-146). Charles Sabel and Jonathan Zeitlin (2008; 2010; 2012) argue in this respect that over the past fifteen years European modes of governance have increasingly become characterized by what they call experimentalist governance. In this new mode, governance is “based on framework rule-making and revision through recursive review of implementation experience in different local contexts” (Sabel and Zeitlin, 2012: 3). Due to the explicit respect for differences in national and local context, in which the Member States are not required to give up (all of) their national sovereignty, this mode of governance is particularly suitable for overcoming the obstacles that the EU faces (see e.g. Zeitlin, 2011: 1).
As interest groups’ main purpose is to influence policy in a way that favours their or their constituency’s interest, they can be expected to alter their strategies to changes in circumstances as well as new policy-making processes so as to maximise effectiveness of their activities. As Coen and Richardson put it, interest organisations try to “shoot where the ducks are” (2009: 344). In the same vein, Binderkrantz has pointed out how Danish interest organisations enhanced their actions directed towards the Danish Parliament after this political institution gained a more prominent role in the national policy process (2003: 304). Likewise, studies by Pieter Bouwen (2009), Wilhelm Lehmann (2009) and Fiona Hayes-Renshaw (2009) indeed suggest that the changing structures and balances of power between the European Commission, the European Parliament and the Council of Ministers have had a clear effect on the endeavours of interest groups to influence policy outcomes in the EU. Due to the fact that the EU is an unconventional and peculiar polity, which has characteristics of an inter- and a supra-national organisation, but with a central European administration that is as small as that of a mid-sized city, the EU’s political institutions are exceptionally dependent on non-state actors (e.g. Greenwood, 2011: 4-5). This demand for bottom-up information makes the study of interest representation in the EU appealing, even more so because there is no uniform policy for consultation or involvement of non-state actors (Ibid. 7). The same
5 relevance holds for experimentalist governance, since although civil society stakeholders have a prominent role in the policy process, the way in which they are involved is not uniformly regulated and varies per case.
All this suggests that interest organisations are susceptible to changes in the environment in which they operate, referring both to the circumstances caused by the dynamics of the policy problem and the balance between demand and supply of input between state and non-state actors (cf. Bouwen, 2004) as well as the specific structure of the policy processes in which they operate. As will be elaborated on below, both the scope conditions that favour the emergence of an experimentalist governance design as well as the specific features of experimentalism itself affect the role of interest advocacy in the policy-making process on the one hand, and may be expected to affect the strategies of the interest organisations to influence policy outcomes on the other hand. This thesis therefore deals with the question whether and how interest groups alter their strategies according to new opportunities for access and influence that emerge under the conditions that favour experimentalist governance. As the functioning and design of governance processes are (especially in the EU) fundamentally dependent upon the role of interest organisations, the way in which interest organisations respond to new circumstances is also considered as a reciprocal causal factor for the emergence and development of an experimentalist governance design.
In an effort to obtain a better understanding of the role of non-state actors in EU policy-making, the scientific contribution of this thesis is twofold. By bringing theory on experimentalism as a new mode of EU governance and theories that aim to grasp and explain variance in interest representation together, this paper contributes to both research fields. First, this paper could complement the highly relevant, contemporary and far-from-finished literature on experimentalism by exposing how this affects the role of non-state actors – which so far has not been studied so explicitly. At the same time, this may provide valuable insight into the role interest organisations play in the emergence of experimentalism, as it can be regarded a highly interdependent, mutual process in which neither official texts and arrangements nor the strategies of interest organisations can by themselves effectuate actual changes in the policy-making system. Secondly, although a considerable amount of research has focused on the relation between policy-making structures and interest representation (e.g. Greenwood, 2011; Coen and Richardson, 2009; Binderkrantz, 2003), no explicit attention has been devoted to the effect of distinctive modes of governance on interest groups’ activity, let alone the effect of experimentalist governance as a particular new mode. Looking into the
6 explicit relation with (new) opportunities for access that derive from new governance structures, this thesis could contribute to explaining variance in strategies of interest organisations. As concerns societal relevance, an adequate empirical understanding of the role of interest representation in EU policy-making allows for a sophisticated and up-to-date insight into the EU’s ability to provide effective policy. Both the role of non-state actors in itself, and the effectiveness of policy that derives from it are important inputs to new assessments of the EU’s democratic legitimacy in future research. As described above, due to its unconventional nature the EU is exceptionally dependent on the input from civil society stakeholders (Greenwood, 2011: 4-5). In response to broad critiques of the democratic deficit, the European Commission has been working out plans to improve democratic legitimacy of EU policy by involving civil society more closely in the policy-making process (e.g. Kohler-Koch and Finke, 2007: 206). Documents like the 2001 White Paper on Governance and the 2003 Public Participation Directive put explicit emphasis on the need to involve and consult civil society stakeholders more elaborately in policy-making processes. The empirical findings of this thesis are important for determining the extent to which this has been successful in different cases of EU policy-making. Considering the involvement of civil society in policy processes as an additional source of democratic legitimacy, the evidence deriving from thesis moreover provides valuable input for the debate on the EU’s (alleged) democratic deficit.
7 Theoretical framework: Reciprocal interaction between experimentalism and interest advocacy
As described by Sabel and Zeitlin, the experimentalist governance cycle consists of four elements (2010: 3). First, broad framework goals and measures that can gauge their achievement are a provisional product of joint action of central and local units, in consultation with the relevant civil society stakeholders on the subject. Secondly, significant discretion is granted to lower-level units (referring to both (sub-)national and independent agencies) to achieve these goals as they see fit. In exchange for this discretion, thirdly, these lower-level units are obliged to report regularly on their activities and performances, in which the reports are used for peer review with other lower-level units who pursue the goals in their own way. If the reports indicate unsatisfactory performance of a local unit, that unit is expected to adjust its strategy in order to improve its efforts. These peer reviews are not only used to detect poor performance and to monitor whether the lower-level units execute policy properly, they are moreover an important instrument for setting benchmarks and identifying good practices in achieving the broad policy framework goal. The final step is the periodic revision of the goals, means and procedures based on the problems and successes that the reports reveal. The description of this mode of governance can be seen as an ideal type of which no pure form exists empirically: certain processes may look very much or nothing like this ideal type but rarely exist in its most ‘extreme’ form (De Búrca et al., 2012: 3). Moreover, experimentalist arrangements may occur in hybridity with more traditional modes of governance, as it can complement and coexist with other, indeed more hierarchical procedures working simultaneously (Sabel and Zeitlin, 2010: 7-8).
There are three main scope conditions for the emergence of this mode of governance. These scope conditions refer to the circumstances of a certain policy area in which an experimentalist governance design would be suitable for overcoming difficult circumstances that aggravate policy-making. Put differently, insofar as experimentalism responds adequately and effectively to the complex circumstances, the scope conditions are expected to favour the emergence of an experimentalist governance design (De Búrca et al., 2012: 13). Due to the complex nature of contemporary policy problems, in which sometimes even the development of the problem is unpredictable (e.g. environment, IT, food safety), there is strategic uncertainty about the policy solution: adequate policy to cope with the problem is not and cannot be universal, clear-cut or static (Sabel and Zeitlin, 2010: 9). The appropriateness of solutions cannot be determined ex ante but has to be assessed on the basis of experience. Secondly, and related to the first, experimentalism is likely to occur where there is a lack of
8 central concentration of power and the polity is characterised by a polyarchic distribution of power (Ibid.) This can be, and often is, the result of several factors such as sensitivity of the policy issue, and weak or no (formal) competences for the European Commission can result in reluctance of lower-level units (e.g. Member States) to transfer authority or autonomy to the EU level. These first two scope conditions obstruct policy-makers in defining universal, one-size-fits-all policy and cause the need to develop more flexible and iterative solutions (Monar, 2008: 240). In a recent paper on experimentalist governance, De Búrca, Keohane and Sabel suggest that complex interdependence constitutes a third scope condition for the emergence of experimentalism (2012: 2). Building on Keohane and Nye’s ideal-typical conception of state relations, complex interdependence refers to a situation “in which actors other than states participate directly in world politics, in which a clear hierarchy of issues does not exist, and in which force is an ineffective instrument of policy” (Keohane and Nye, 2001 [1977]: 21). Although complex interdependence concerns an ideal-typical situation of state relations, it has direct implications for non-state actors. In addition to the different states’ bureaucracies, multinational firms as well as trade unions affect interstate relations (Ibid. 22). As De Búrca et al. suggest, this scope condition means that “state and non-state actors are both sensitive and vulnerable to the actions of others: there is mutual dependence, although it may be asymmetrical” (2012: 2). Although Greenwood suggests a high degree of such interdependence between EU state institutions and non-sate actors in the EU in general (2011: 4), the extent and complexity of this mutual dependence may vary per policy issue and is hence a useful distinctive scope condition to consider.
As becomes clear from these characteristics of experimentalist governance, both the scope conditions and the specific features of this new mode of governance offer new access opportunities for interest organisations to participate and to assert influence in the policy process. Simultaneously, due to the complex interdependence in such situations and the flexible and continuously evolving policy outcomes that result from such interdependence, the new policy process may also take away older opportunities and may thus change the extent to which interest organisations can hold on to their conventional strategies. In a very hierarchical policy-making process, the most important political institution to address may for instance be the Commission whereas in horizontal, complex, recursive and interdependent structures the central position of the Commission is reduced and it becomes only one of the institutions to address. This however need not be a zero-sum game as new opportunities may also cause more lobbying in general, without ‘sacrificing’ existing channels (cf. Lange, 2007). It is clear that there is reason to expect changes in the strategies and activities of interest organisation as
9 a result of complex circumstances as well as the design of the policy-making process in which they operate.
Experimentalist policy-making processes often include one or several institutions that are concerned with implementation, coordination, reviewing and revising efforts on the basis of experience. It is in such institutions that civil society stakeholders are often explicitly involved and actively consulted to learn their vision and to discuss results of different courses of implementation. Such institutions are part of the post-legislative recursive experimentalist cycle, which means that they also effectively participate in the elaboration and revision of the rules, goals and means themselves and not only in developing specific strategies to implement them. Moreover, these institutions are sometimes in itself characterised by an experimentalist modus operandi, by actively stimulating an iterative, recursive learning-from-difference process. They can take various forms with quite divergent competences, ranging from regulatory agencies like European Chemicals Agency (ECHA) in the REACH regulation on the safe use of chemicals (Te Roller, 2011); with formal legislative and implementation powers, like the European Food Safety Authority (EFSA) in food safety regulation (Vos, 2010); coalitions between state and non-state actors like Technical Working Groups (TWGs) in the Integrated Pollution Prevention and Control Directive (Lange, 2007: 4); non-governmental institutions like the European Financial Coalition (EFC) in child protection policy (see below); to those mainly producing non-binding guiding documents as output, like the Common Implementation Strategy (CIS) in the Water Framework Directive (Sabel and Zeitlin, 2008: 310). It varies per case of legislation what the exact competences and composition of the institution are. This category of institutions that are concerned with the implementation of the experimentalist process will be called experimentalist implementation institutions (EIIs). Central to this concept of EIIs is that they help to implement policy in the post-legislative phase, and are experimentalist to the extent that they effectively participate in the recursive process of elaboration and revision of rules (both goals and means) on the basis of implementation experience. Such EIIs may be explicitly created and mentioned in the legislative documents as part of the implementation process, or they could be existing institutions that become involved more gradually and stumble into that position through the implementation process itself (cf. De Búrca, 2010). This will be elaborated on later, as it constitutes an important focus for tracing the course of events in the emergence of experimentalism.
Because of the prominent role of these EIIs in experimentalism it is very relevant to research how interest groups make use of them. Not only do these EIIs constitute the most
10 institutionalised form of interest organisation consultation, forming a new channel through which such groups can access the policy process, but they are also part of the larger policy cycle of reviewing efforts of lower-level units, identifying good practices and providing information to the other EU institutions (as derived for instance from the abovementioned case studies). These EU institutions, in turn, may revise the framework goals and means on the basis of them. Clearly, EIIs may turn out to be an important new channel for interest groups while their efficacy (i.e. effectively consulting the non-state actors) is simultaneously a crucial part of the experimentalist governance cycle more generally. In sum, the functioning of EIIs depends to a high degree on the extent to which interest organisations participate in them, while at the same time the functioning of EIIs is crucial for (the emergence of) experimentalism (Ibid. 222).
11 Operationalisation
This broad research question of how interest groups alter their strategies in reaction to new opportunities deriving from complex, uncertain circumstances is approached by looking at the way in which organisations make use of EIIs. The general hypothesis that has led to this research question is that interest groups alter their strategies in reaction to new access opportunities in the policy process. Whether and how that occurs in experimentalist structures, is approached through three sub-questions.
The first question concerns the effect of the scope conditions on the strategies employed by interest organisations. Although polyarchic distribution of power is an important scope condition that may encourage EU officials to have recourse to more experimentalist designs of governance, this scope condition may not have so much effect on interest organisations. In contrast, strategic uncertainty and complex interdependence may have significant effects on the way in which interest organisations operate to represent and defend their (constituency’s) interests in EU policy. The balance of efforts directed towards different institutions that are part of the policy-making cycle under the experimentalist scope conditions may be quite different from that in other, more conventional conditions. In the first empirical section the strategies and efforts of interest organisations operating in a policy process under these distinctive scope conditions are compared to those under more conventional circumstances. This first section will provide an answer the question to what extent and how interest organisations respond to the new, complex and uncertain conditions, which become to characterise more and more policy areas.
Secondly, an important question is how interest organisations react to certain concrete experimentalist arrangements that derive from a (quasi-)experimentalist directive as opposed to a situation in which a policy process lends itself to experimentalism but has not (yet) provided such arrangements. As Gráinne de Búrca points out in the case of EU anti-discrimination policy, which was clearly situated within the experimentalist scope conditions, the regime cannot be perceived as having an intentional experimentalist design (2010: 215). However, even without explicit experimentalist arrangements the active non-state actors seemed to adapt their strategies nevertheless in order to cope with the complex policy-making circumstances (Ibid. 226-8). As De Búrca argues, these adaptations in non-state actors’ behaviour have constituted an important impulse in the policy-making design stumbling into experimentalism, even though these actors were not always fully aware of this (Ibid. 227).
By the same token, as has been stressed, the efficacy of experimentalism depends to a large extent on the way it is practically applied. The provision of experimentalist
12 arrangements is in itself no guarantee for a well-functioning experimentalist cycle. Therefore, whether and how interest organisations use EIIs strategically to influence policy outcomes is a crucial question to address. As experimentalism is an ongoing iterative process, the EIIs may become an important channel for access for interest organisations to influence the revision of goals and means. In her study on the implementation of the Integrated Pollution Prevention and Control (IPPC) Directive, Bettina Lange suggests that interest organisations’ efforts directed towards (the outcome of) EIIs constitute a small-scale tactic to influence policy outcomes (2007: 112). As experimentalist structures become more established, appeals to EIIs may become more important strategies for interest organisations to assert influence on the revision of policy. How much do they rely on these institutions, and how much do they focus on these institutions vis-à-vis the more common, ‘normal’ EU institutions like the Parliament, Commission, or DGs? The comparison of interest organisations’ adaptation to these two different situations (i.e. directives with and without explicit experimentalist arrangements) will show the effect of the provision of actual experimentalist arrangements on interest organisations’ strategies as opposed to the effect of the mere scope conditions paving the way for an experimentalist design. Furthermore, the power relations and strategies within the EIIs are important to examine, referring to the supply and demand question within such institutions. This concerns the power balance between the different (types of) groups participating in those EIIs on the basis of the type of information they provide. Building on resource dependency theory, in which the type of information that can be provided by groups is seen as the ‘currency’ for access to the policy process, Pieter Bouwen distinguishes three types of interests in this respect: expert knowledge, Information about the European Encompassing Interest (IEEI) and Information about the Domestic Encompassing Interest (IDEI) (2004: 340). As a consequence of strategic uncertainty, a supposed objective category like expertise becomes problematic and is moreover intrinsically linked with particular interests (cf. Mügge, 2011: 57). At the same time, due to experimentalism’s iterative process of learning from different experiences, opposing parties may be induced to rely more heavily on evidence produced by the implementation in their argumentation and lobbying strategies. So although the targets of the interest groups might be the same as in more conventional conditions, the strategies and methods in both the legislative revision as well as in the implementation phase may need to become more evidence-based and less interest-based. The balance between interest representation, expertise, and evidence-based arguments within EIIs is not only important for understanding the functioning of EIIs, but also forms a crucial aspect
13 for the assessment of the democratic legitimacy that can be produced by experimentalist governance arrangements.
The reaction of actors in the policy process is crucial for the emergence and the functioning of policy-making processes. The third part of the analysis will therefore be focused on the causal chain of events in which the activities of interest organisations are a central determinant in the emergence and development of experimentalism. What are the outcomes of interest groups’ (adjusted) efforts? By means of process tracing, this paper will expose whether interest groups foster, or rather hamper the development of an experimentalist governance design. Put differently, it will depict the role of interest representation in the emergence of experimentalist governance in EU policy making. Important in tracing back the chain of events in the emergence of an experimentalist design is not only the extent to which interest groups appeal to EIIs, but also the extent to which they lobby against the grain of these institutions. Do groups use EIIs actively to assert power, and even use these institutions to pose objections and express antagonistic voices? Or do antagonistic groups use alternative channels for access to lobby against the relevant EIIs, thereby hindering the functioning of EIIs and hence the emergence of an experimentalist design? As De Búrca et al. argue, one factor that makes experimentalist governance structures impractical or even unworkable is if key players prefer other structures, and are not willing to participate in experimentalist arrangements (2012: 49). Richardson and Coen speak of policy viruses where despite being small, players can destabilise existing arrangements (2009: 346). This means that if groups are successful in lobbying through alternative access channels, this could be a serious impediment to the functioning of experimentalist governance designs and hence its further development.
In sum, this thesis looks at how interest organisations operate under the scope conditions for experimentalism. Expectations follow the idea that these scope conditions provide potential for the emergence of horizontal, recursive, indeed experimentalist governance designs. The emergence of such a governance structure with corresponding arrangements is expected to affect the way in which interest organisations operate, seeing as it provides new and different opportunities for organisations to represent their (constituency’s) interest. The activities of interest groups in such complex circumstances form at the same time an important determinant for the course of policy-making structures. In this reciprocal causal relation therefore, the changes in interest organisations’ strategies are conceived as both an outcome of a certain governance design and an input for its emergence. The causal relations investigated in this research are schematically presented in Figure 1 below.
14
Figure 1. The causal relations researched in this thesis. Note that the causal relation from scope conditions to an experimentalist design is assumed, yet forms no focal point in this study.
• Strategic uncertainty • Polyarchic distribution of power • Complex interdependence between states
Scope
Conditions
• (Quasi-)experimentalist design with arrangements• No (explicit) experimentalist design, but potential
Governance
design
• Role of interest organisations in the implementation • Strategies of interestorganisations
• Lobbying through or against EIIs?
Interest
representation
15 Research design and case selection
Neither ‘experimentalist governance’ nor ‘interest group behaviour’ is an immediately applicable concept. Experimentalist governance is a term that has been used as an ideal type to analyse, describe and understand new structures and patterns in policy-making, rather than a pre-designed architecture used by officials to tackle a certain policy problem. Moreover, experimentalism cannot be treated as a dichotomous variable, as it often coexists with other forms of governance (Sabel and Zeitlin, 2010: 16). Certain procedures or structures can have elements of the experimentalist architecture as described in the literature, and can hence be experimentalist to a greater or lesser degree. For that reason, a large-N quantitative analysis is not feasible. Instead, reinforced by the reciprocal nature of the ‘dependent variable’, interest group behaviour and the elements this study aims to examine, a qualitative small-N comparative case study is more appropriate to answer the research questions. This means that the internal validity of a chain of events within the cases at stake is prioritised over external validity and broad generalisations (e.g. Gerring, 2001, 20; Ullrich 2013: 13-14). However, due to the selection and comparison of two typical cases (see below) the findings will be fertile ground for future research, for patterns identified here may be typical of similar cases of (quasi-)experimentalist governance (Gerring, 2007: 91).
In order to analyse how interest groups organise, act and participate differently in experimentalist structures, their ‘behaviour’ needs to be analysed in different scenarios. Therefore, two cases that approach the experimentalist ideal type to different degrees are selected and compared. In order to understand how interest organisations operate under complex and uncertain policy-making circumstances, a synthetic profile of ‘conventional lobbying’ is compared to an empirical case of legislation that is situated in such circumstances. This concerns a case that has not yet really developed an experimentalist governance design, because it should be the mere scope conditions that form the determinant of interest organisations’ strategies in that first part. In order to see whether and how EIIs become a stable part of the interest groups’ repertoire, a more established case of experimentalism is compared with a newly initiated, recently introduced case that lends itself to an experimentalist approach. The research design is a cross-sectional comparative case study with two diverse cases, in which both cases are typical as regards the scope conditions for the one, and the experimentalist features for the other case (Gerring, 2007: 89-91).
16 Case 1: Directive on combating child abuse
The more rudimentary, potential case that might evolve in the direction of experimentalist governance through implementation is the 2010 Council Decision on Combating the Sexual Abuse and Sexual Exploitation of Children and Child Pornography and the subsequent 2011 Directive of the European Parliament and the Council. These documents repeal the 2004 Council Framework Decision on the subject (Directive 2011/92/EU: 1). On the basis of experience of implementing the Council Framework Decision that came into force in 2006 a number of amendments have been proposed, which lend themselves to experimentalist processes. Yet, the arrangements are not clearly expressed or institutionalised. As will be explained, the policy-making conditions in which this directive is situated fully resemble the scope conditions for experimentalism. This makes it an appropriate case to study for the question how interest groups respond to the mere scope conditions, and how this may play a role in the development of experimentalism and experimentalist arrangements like the emergence and functioning of EIIs.
The three scope conditions that favour the emergence of an experimentalist governance design are present in the case of the child protection directive. Due to the development of the internet and Information Technology (IT) more generally, the problem has evolved – and continues to do so – in a rapid pace, and moreover in unpredictable directions (cf. Accompanying Document, SEC2009/335, p.13). Hence IT developments cause strategic uncertainty about the problem as well as possible solutions. Secondly, as Julia Davidson (2011) indicates, difficulties are exacerbated by the transnational nature of some of the crimes covered in the Framework Decision. She states that different national legislation forms a key problem for the implementation of the 2004 Framework Decision (Davidson, 2011: 22). This is even more problematic since most of the crimes that are covered in this Directive have a cross-national history. Issues such as sex tourism and uploading child sexual abuse material from a different country than the country of residence of both perpetrator and victim are the so-called ‘third-country problems’ in this Directive. The sensitivity of the subject and the polyarchic distribution of power in this area thus make it difficult to design one-size-fits-all legislation (cf. Monar, 2008: 240). Thirdly, Davidson and Gottschalk conclude that the best way forward in this problem is close cooperation with NGOs or NGO networks because the state actors simply lack the capacity to tackle the problem (2011: 188). In turn, these NGOs and IT experts need EU and state officials in order to develop new monitoring and reporting mechanisms, which may be in tension with privacy or other human rights (cf. Davidson and Gottschalk, 2011). With this mutual, yet not necessarily symmetrical,
17 dependence between the state and non-state actors, the third scope condition of complex interdependence is also present.
The scope conditions are no guarantee for the emergence of experimentalism, but as becomes clear from the documents building up to the 2011 Directive they certainly allow for a governance design that might evolve towards experimentalism. Both the final Directive as well as the documents that precede it (i.e. Impact Assessment and Council Decision) contain hints concerning the need for a number of procedures resembling experimentalist arrangements. The Directive starts from the broad policy goal that “serious forms of sexual abuse and sexual exploitation of children should be subject to effective, proportionate and dissuasive penalties” (Directive 2011/92/EU). The discretion and respect for Member States’ legal circumstances derives from the phrase that this Directive obliges Members States to provide for penalties against such crimes in their national legislation, but does not impose obligations as regards the exact measures, or the application of it in individual cases. In other words, Member States are obliged to take appropriate measures to combat these crimes, but they are free to find the best practice given national (legal) circumstances. Due to the complexity of IT developments, the directive expresses the need for cooperation with non-state experts especially in that IT area. The Safer Internet Programme (SIP) is explicitly mentioned in the text and appointed to develop techniques for monitoring and tracing criminal activities involving child abuse on the internet. The results that derive from SIP are used for revising techniques and means in the legislation. Furthermore, the Impact Assessment adopted in the 2010 Council Framework Decision points to the need for information and experience exchange between Member States to compare different efforts and establish appropriate techniques (2010/0064 (COD): p.5). The procedure for this as expressed in the Directive, however, lacks arrangements for information exchange, comparison and review between peers – as an important element of the experimentalist cycle. Instead, the Member States report to the Commission on their initiatives and efforts to implement the directive. The Commission thus monitors the Member States’ efforts, takes the results into account and suggests amendments to the Council when necessary. This occurs recursively with a frequency of three years. There are thus no (explicit) arrangements for mutually learning from each others’ practices.
As becomes clear, the scope conditions seem to push the directive towards a more horizontal and recursive design. However, although the Impact Assessment, Council Framework Decision and the final Directive hint at the need for experimentalist-like procedures, the actual policy-making design is far from fully experimentalist in its intentions
18 and arrangements. This makes it an appropriate case to analyse, for it provides insight in the way interest organisations respond to this quite open-ended Directive that constitutes a fruitful yet implicit potential framework for experimentalism. The role and composition of the SIP is of special interest, as well as possibly other institutions that may emerge in the implementation of this directive. The extent to which interest groups’ activities contribute to the creation and functioning of EIIs in the post-legislative phase may make the Directive stumble into, or indeed away from an experimentalist governance design.
Case 2: From the IPPC Directive to the Industrial Emissions Directive
The more established case of experimentalist governance for this thesis is the Integrated Pollution Prevention and Control (IPPC) Directive, enacted in 1996 and amended in 2008. The 1996 IPPC directive was already characterised by seemingly experimentalist procedures for implementation and periodic revision on the basis of different experiences, and is characterised by a “gradual departure from traditional command-and-control instruments based on the setting of uniform, legally binding emission limit values (ELVs)” (Koutalakis et al., 2010: 331). The Directive sets broad and rather undefined framework goals, using term like “all the appropriate preventive measures are taken against pollution”; “no significant pollution is caused; “waste production is avoided”; and “energy is used efficiently” (Council Directive 96/61/EC, Art. 2). The Directive does not define the exact meaning of these goals, nor does it define the means to achieve them. These goals and means are to be established during the implementation on the basis of Best Available Techniques (BATs), which constitute the experimentalist ‘best practice’ and benchmarking idea. The Member States are granted the discretion to implement the framework goals as they see fit, establishing the BATs according to local environmental conditions (Ibid. Art. 9). Rather than producing prescriptive and uniformly binding ELVs, such BATs were indicative non-binding limits in the IPPC, which were defined through a co-regulatory process (Koutalakis et al., 2010: 331). Article 16 of the IPPC Directive stresses the need for information exchange in which Member States deliver reports to the Commission every three years, describing their efforts and the BATs they have employed. In the IPPC, Member States have the option to derogate from the BAT-based standards if, due to specific local environmental and geographical conditions or technical features of the industrial installation, compliance with such standards is not feasible (Ibid. 333). The Commission in turn organises information exchange in which these different efforts are compared and discussed. When necessary, the BATs as standard for emission
19 reduction, will be regularly revised on the basis of results as well as new available techniques (Council Directive 96/61/EC, Art. 17).
The IPPC Directive shows some clear features of experimentalism. However, the efforts and experiences of the different Member States do not seem to be peer reviewed between the lower level units themselves, in which they require each other to improve efforts in case of poor performance (cf. Sabel and Zeitlin, 2010: 3). There seems to be a hierarchical enforcement mechanism at work in the Directive, rather than experimentalist sanctioning through destabilisation mechanisms (Ibid. 13). With the lower level units reporting and justifying their practices to the Commission (Council Directive 96/61/EC, Art. 16), the experimentalist feature of learning from each other in peer review and being accountable not to a ‘principal’ but rather towards peers is lacking (cf. Sabel and Zeitlin, 2010: 10-11). Moreover, the aforementioned option of derogating from the standards is not accompanied by clear and strict requirements, whereas this ‘comply-or-explain’ principle is indeed an important accountability mechanism in the recursive experimentalist cycle (Ibid. 12). Apart from these non-experimentalist features, the Directive works on the basis of broad framework goals with mechanisms that ensure considerable discretion for the lower level units to pursue these goals as they see fit, taking contextual factors into consideration. BATs are regularly reconsidered in order to be up-to-date with the latest and even with emerging techniques. In such revision, the emission limits can also be revised on the basis of new insight, knowledge and techniques. This ensures the experimentalist recursive revision of both procedures and (policy) goals. This quasi-experimentalist IPPC Directive thus forms a fruitful case for investigating how interest groups respond to a directive that more or less explicitly promulgates experimentalist processes. The extent to which interest organisations have made use of the EIIs introduced in the implementation process of this directive is of central concern. Moreover, the IPPC has recently been revised into the 2010 Industrial Emission Directive (IED). The problems in implementation of the IPPC are the central issues in this IED, and concern mainly the use of BATs as flexible and context-dependent implementation tools in national decision-making. The developments that have occurred in this revision process allow for the analysis of the recursive causal relation between interest organisations’ strategies and the development of experimentalist arrangements.
20 Methodology and data collection
First-hand experience is a valuable source, as it shows the respondents’ categorical subject positions (Scott, 1991: 780). Therefore, semi-structured interviews with people from interest organisations which have been active in a policy process in either of the cases, and which might participate in the EIIs, constitute the main source of data. The experiences of the respondent constitute him/her or his/her organisation as a participating party in the policy process. Semi-structured interviews seem most appropriate for the purpose of this paper because of the qualitative in-depth knowledge that they can generate (Bouwen, 2004: 350). Because of the exploratory nature of this research it would have been either too difficult or to deterministic to conduct structured interviews with closed questions. Letting the respondent talk about his/her experiences as freely as possible, with an interview guide to make sure that all necessary information would be exchanged, generates the most accurate information about the activities of interest groups in these two processes. The interviews are used for qualitative data analysis. Background information and additional statements derives from position papers and general information found on the websites of the selected interest groups.
The reciprocal causal relation between the activities of interest organisations and the emergence of an experimentalist design is analysed through the methodology of process tracing on the basis of the qualitative data derived from the interviews. Taking into consideration the complex nature of emerging and changing policy-making processes, in which circumstances vary greatly per policy area, an inference that relies heavily on the ceteris paribus assumption is inappropriate (cf. Gerring, 2007: 172). Process tracing is a detective-like method for tracing back a longer chain of causal relations leading to a certain outcome, in which individual observations are not directly comparable (Ibid. 173). As Gerring strikingly puts it, “[r]ather than multiple instances of X1 → Y (the large-N cross-case style of research), one examines a single instance of X1 → X2 → X3 → X4 → Y” (Ibid.). In this research the chain of events is seen as reciprocal, which would picture Gerring’s image of X’s and Y’s in a circular way. This methodology is suitable for unravelling causal chains of events that are highly path-dependent, as is the case in many if not all cases of EU policy-making (Coen and Richardson, 2009: 338). Again, and in line with the methodology of process tracing, the internal validity of this research is prioritised over the external validity (cf. Ullrich, 2013: 13-14).
The two empirical cases are compared with a synthetic case of conventional lobbying, referring to interest representation under circumstances that do not resemble the scope conditions for experimentalism, and in non-experimentalist structures. A synthetic account
21 based on secondary empirical data constructing a general picture of conventional lobbying is favoured over an account based on primary empirical data about one or two cases. First, interest representation is a highly diffuse and developing endeavour, which is very much dependent on policy-making, procedural as well as policy-substantive contexts. There is no single strategy employed by interest groups, and likewise there is no uniform role of organised civil society throughout all EU policy processes (Coen and Richardson, 2009; Greenwood, 2011). By the same token, there is no single context or policy process that can be categorised as conventional policy making, since each case of EU policy-making has its idiosyncrasies. Lobbying practices are too susceptible to contextual factors to use a typical empirical case that could represent all instances of ‘conventional’ lobbying in the EU. Secondly, and as a consequence of this variety in EU lobbying, it is more informative to ‘stand on the shoulders of giants’ that together provide useful and highly adequate insight in patterns as well as variety in such patterns, than to waste time and energy on developing a primary empirical account.
22 Conventional interest representation
Before turning to the way in which civil society organisations operate under complex and uncertain circumstances, and how they make use of experimentalist governance arrangements, it is important to have an account of the interest representation system in the EU in its conventional form. Conventional here refers broadly to governance in less complex and uncertain circumstances, in which the policy-making process is more hierarchical and less flexible. Following a theoretical typology of old and new modes of governance, the traditional command-and-control Community method can be seen as constituting the opposite end of the ideal-typical spectrum of EU governance than experimentalism (Craig and De Búrca, 2007: 144-146; Sabel and Zeitlin, 2008: 275). In order to provide for such a profile, this chapter depicts some overarching patterns in interest advocacy as derived from the extensive and contemporary body of literature on interest representation in the EU.
The synthetic account is shaped along the demand and supply chain that together forms the core of interest representation (cf. Bouwen, 2004: 341; Beyers, 2004; Coen and Richardson, 2009). From the demand side, the role that interest representation plays in the policy-making process is important. This refers to the reasons for EU policy-makers to involve organised civil society, and relatedly the position these organisations are ascribed in the process. Taking Pfeffer’s (1982: 193) doubled-edged resource dependency theory into account, the strategies on the supply side have to respond to the needs on the demand side (see Bouwen, 2004: 348). The strategies employed by interest organisations to influence policy outcomes can be seen as a function of these demands, and are (at least) composed of three dimensions, which are addressed in this synthetic account. The political institutions or venues (cf. Treib and Falkner, 2009: 268-269) that are addressed form the first part of the strategy. The composition and the role of each of the EU institutions in legislation and implementation differ greatly, and determine its relation to interest organisations. The second dimension of advocacy strategies is the type of information or the argument that is conveyed. This is not exclusively determined by the venue that is addressed, as the types of information vary between different types of groups as well as the specific issue of the policy process in which they operate. Thirdly the access strategy refers to the way in, and moment at, which civil society organisations seek to access the policy-making cycle. This concerns the phase of the legislative and implementation process in which interest groups are active to influence policy outcome. An alternative to internal access strategies targeted directly at political key figures is to address the general public (Beyers, 2004: 214). Although this public, or external, lobbying can form important additional strategies and may occur in the analysis below, the
23 focus of this research lies on the internal access strategies because these are theoretically much more directly related to policy-making structures than public advocacy strategies. It should be clear that these three different dimensions do not form separate and independent elements of the strategy, but are instead highly interrelated. Moreover, and as indicated above, it should be borne in mind that the account presented below is not intended as a static, fixed or the conventional lobbying system, for all these structures are in constant development and vary greatly in time and policy issue.
The EU’s conventional demand for lobbying
Due to lack of expertise, the considerations for EU policy-makers to involve civil society organisations are in the first place pragmatic. As a matter of resource dependency, the EU needs organised civil society as it forms an important spillover between politics and society. The importance of civil society organisations rests not only on the provision of input to policy-makers in the form of expertise and interests, but also on their role in conveying political messages to lower level authorities and society and in implementation and monitoring of EU policy (Greenwood, 2011: 5). Yet, although the reliance on non-state actors is so prominent, uniform regulation and structuring of interest representation has proven to be difficult and perhaps even undesirable (Richardson and Coen, 2009: 346). Continuous developments in governance and the context dependency of demand and supply are the two main reasons for not creating a single regulation of interest advocacy (Coen and Richardson, 2009: 28-29). So whereas Article 11 of the Treaty on European Union provides a legal basis for consultation, the format in which this should occur is open-ended and highly based on common-sense guidelines (Greenwood, 2011: 35). In effect, an overarching portrait of the EU’s interest representation system, recurring throughout the existing literature of the nature of interest representation and how it is structured, is that it concerns some form of pluralism. To specify the term, Greenwood (2011: 233-234) and Coen (2007: 335) use the term “elite pluralism” to indicate that although a wide range of interests are heard in the policy-making and implementation process, there seems to be a bias towards European-level organisations. To emphasise the elitist character, Long and Lörinczi call it a “lobbying oligopoly” (2009: 183). Coen and Richardson portray the EU’s interest representation system as “chameleon pluralism”, which refers to the continuous flux and development and adaptation that characterise advocacy practice in Brussels (2009: 346).
The strong dependency of the EU on input from the field (i.e. expertise by technical knowledge and experience) is reflected in the fact that business lobbying is seen as an
24 important source of both information and legitimacy for EU policy-makers (Coen, 2009: 145). As business actors are one of the few that follow all steps in the EU policy process in the conventional structures, they have become to be perceived as an integral policy-player. “Thus, as the EU institutions have demanded increased specialized technical expertise to formulate policy, firms have responded by developing direct representation in Brussels to coordinate their multi-level and institutional political activity” (Coen, 2009: 163-164). Their position in the policy process contributes to the conception of EU interest representation system as elite pluralism (Ibid. 151). Reflecting the pluralist element of this conception of EU’s interest representation system, the balance of views considered is translated into the subsidies that are provided to offset the position of business. Citizen interest groups and NGOs are widely subsidised by the EU, which guarantees that no single type of interest can routinely dominate the game (Greenwood, 2011: 129, 232; Long and Lörinczi, 2009: 183). Although this funding is a remarkable phenomenon, it is difficult to know how it biases the advocacy position and activities of groups, as “the effects of these European funds are neither direct nor automatic” (Sánchez-Salgado, 2007: 260). Thus, as concerns the bias of interests represented in EU policy processes, “[t]he cleavage of access is not […] between ‘privileged’ business organizations which overpower the ‘small voices’ of NGOs but between the institutionalized world of Brussels ‘insider’ organizations and ‘outsider’ organizations” (Greenwood, 2011: 234).
Amidst the lack of structural regulation, the most structured way in which interest groups can participate is through consultation, divided into expert, stakeholders and public consultation (Quittkat and Kotzian, 2011). Quittkat and Kotzian argue that openness of these consultations is inversely proportionate with their effective influence on the policy outcome (Greenwood, 2011: 210). However, in general the influence of consultation in conventional interest representation should not be exaggerated (Ibid. 212). It follows logically that if interest organisations are aware of this limited influence of consultation, the appeal to such opportunities for access will be rather limited too.
The conventional supply side: Venues, arguments and access strategies
As Greenwood (2011) suggests, decision-making structures heavily influence the opportunities for interest groups. As regards interest representation under the classic Community method, the effect of the hierarchical processes has been that interest groups had a strong supranational focus (Ibid. 24). Since the Commission is the only real supranational body in the EU, this means that conventional interest representation is highly focused around
25 the European Commission as a venue. An important way of accessing the Commission is by contributing to impact assessments. In these assessments, interest organisations can provide their own evidence anticipating on the consequences of proposed policy for the various stakeholders, which is subsequently debated in the Commission (Ibid. 33-34). This indeed shows that the Commission is best accessed by answering to its demand for technical knowledge and expertise. It should be noted that such expertise and technical knowledge may be framed around the anticipated consequences for a specific group, and is thus not an objective or value-free category of information (cf. Mügge, 2011: 57). As monitoring and implementation in the Community method is first and foremost the Commission’s job, this is an important additional incentive for interest groups to target this venue in the implementation stages of the policy process.
Only as a reaction to new competences of the European Parliament (EP) and the Council in EU policy-making – the co-decision powers as issued in the Maastricht Treaty, Amsterdam Treaty and Lisbon treaty (Ziegler, 2012: 34) – have interest groups broadened their scope by targeting the EP and the Council as venues too (Greenwood, 2011: 24; Lehmann, 2009: 39). Since the EP has obtained its right to accept, amend or reject proposed legislation in the co-decision procedure (e.g. Archick, 2013: 2), it has become an equally important venue for interest groups to address as the Commission (Lehmann, 2009: 39). Strategically the EP is attractive to groups because, since this concerns a transnational political institution composed of directly elected representatives, it is susceptible to public opinion (Greenwood, page 24; Coen and Richardson, 2009: 9; Lehmann, 2009: 53). Framing expert information is an important strategy when addressing this venue. “The goals of these organized interests are to transmit selected and well-prepared information to Members of the European Parliament […], to underline particular aspects of a legislative project and thus to influence the regulatory environment on their behalf or on behalf of their clients” (Lehmann, 2009: 39, emphasis added). Even more than with the Commission, the strategic choice to approach the EP depends largely on the extent to which organisations’ position is in line with that of specific MEPs (Ibid. 50). As suggested by Bouwen, the EP as a representative body in the first place needs information about European as well as domestic encompassing interests, but also, though to a slightly lesser extent, expert and technical information (2004: 345; cf. Greenwood, 2011: 40). The EP is most interesting for interest groups during the committee stage, in which it can make amendments to proposed legislation (Greenwood, 2011: 41). Most lobbying activity in the EP takes place before the first reading has been completed, as intervention becomes progressively more difficult afterwards (Ibid.). Another reason for
26 addressing the EP is that it can be an important source of political information for groups (Lehmann, 2009: 65). Interest groups seem to have a clear idea about the substantive message that they want to convey in conventional lobbying, in which the information that can be gathered from the EP concerns mainly political or strategic information.
Together the Commission and the EP are the priority for interest representation. The Council of Ministers (as well as the European Council) is more difficult to approach and is third on the priority list of interest groups (Greenwood, 2011: 25). Lobbying the Council is interesting during the same stage as lobbying the EP, because of its full decision-making powers at the end of the policy-making process (Ibid.). Both due to this power and due to its relative inaccessibility, addressing the Council in conventional structures is often a last resort for exerting pressure (Beyers, 2004: 220). Furthermore, lobbying the Council is only beginning to emerge, as a reaction to its contemporary powerful position in the policy process (Greenwood, 2011: 28; Hayes-Renshaw, 2009: 70). The access good (or ‘lobbying currency’) for the Council diverges from that of the Commission and Parliament: due to its composition of national representatives, the main currency is domestic encompassing interests (Hayes-Renshaw, 2009: 75). National administrations are interesting for the implementation of adopted legislation, as these are the bodies that actually implement the policy, together with Commission who monitors the implementation in a command-and-control structure through the Member States and the regions (Greenwood, 2011: 25; 178). Finally, interest organisations can also target other institutions that are appointed by the Commission in a certain policy area and which usually have a mere advisory role (Greenwood, 2011: 46-47). In conventional structures the importance of these institutions as targets of interest representation is rather modest (Ibid.).
Coalition forming is an important access and influence strategy, which helps to establish groups’ position in the policy process (Ullrich, 2013). Coalitions are not only useful in the sense of learning from each other’s strategic and substantive insights in order to combine forces and improve the political strategy to access the process and influence policy. Ullrich, on the basis of a study by Baumgartner et al. (2009) on lobbying in the United States, explains that the chance of successfully influencing policy outcome is increased by a large and diverse coalition defending one side of the argument in a policy process, and by high frame communality of the message conveyed by the coalition (Ullrich, 2013: 11). This implies, again, that the argument that is advanced is an important determinant of lobbying success, contrary to the idea that financial resources determine success. And concerning
27 lobbying success more generally it can be concluded that access, influence, and consultation are not necessarily the same thing (Richardson and Coen, 2009: 348).
In conclusion, insofar as we can be speak of an ‘ideal type’ of conventional lobbying, it would have the following characteristics. The two most important venues for lobbying are the Commission and the European Parliament, both targeted as early as possible. The Council of Ministers and the European Council are targeted at the same early stage, but are of lower priority than the Commission and the EP (see Coen and Richardson, 2009: 20; Hayes-Renshaw, 2009: 80). After legislation is adopted, the national administrations can be targeted and the Commission remains appealing for the implementation and monitoring process. Interest organisations are well aware that EU legislation often involves fine-tuning of older policy in an ongoing iterative feedback loop (Richardson and Coen, 2009: 340). Continued involvement in monitoring implementation is therefore strategically valuable and well-known to groups (Ibid. 342). Both the Commission and the European Parliament can best be accessed by providing expertise and technical information. The Parliament as a representative body is moreover susceptible to public opinion and can thus also be put under pressure through more public, external lobbying strategies. The deliberative overtone of EU interest representation is reflected in the emphasis on public reasoning, for instance through the issuing of rationally motivated impact assessments (Greenwood, 2011: 64; Cohen, 1997: 348). Although a bias towards EU-level groups generates the perception of elite pluralism, financial resources are far from a reliable indicator of access and influence. Success rather depends on the type of information that can be provided, and the frame in which this message is presented (Greenwood, 2011: 67; Bouwen, 2004; Ullrich, 2013).
The literature seems to convey a consistent message, which is that “[l]obbying is not regulated in the [EU] in a uniform or coherent manner” (Obradovic, 2009: 298). The difficulty of regulating or structuring interest representation in conventional policy processes implies a lack of institutionalisation of checks and balances between the different state and non-state actors (Greenwood, 2011: 233). However, it is notable that procedures concerning civil society involvement are currently undergoing a process of extension and regular revision, constituting a back-and-forth-development with numerous feedback loops (Greenwood, p217-218; Coen, 2007: 337). A case in point is the Commission stimulating the development of more forums and platforms as highly formalised consultation bodies equipped with formal and informal monitoring structures (Quittkat and Kotzian, 2011: 4). Besides interest groups’ adaptation to new structures with associated arrangements, another explanation of the changing character of interest representation is their continuous
28 professionalisation (Binderkrantz, 2003: 300). The next sections analyse what these developments look like under uncertainty and complexity, what the role of interest organisations themselves is in that process and how they make use of new opportunities that may emerge in experimentalist-like governance structures.
