Decision-making in the council of the European Union. The role of committees.
Häge, F.M.
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Häge, F. M. (2008, October 23). Decision-making in the council of the European Union. The role of committees. Retrieved from https://hdl.handle.net/1887/13222
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14 Conclusion
In this concluding chapter, I first discuss the normative implications of the findings of the analysis. Then I turn to the theoretical and methodological contributions of the research project to the study of Council and EU decision-making. The discussion also points to fruitful avenues for future research in this area.
14.1 The legitimacy of Council decision-making
The results of the study paint a rather benign picture of committee decision-making in the Council. If committees decide only about dossiers that are of little interest to Member States and of low priority to the Presidency, that are highly complex in legal terms or on which a consensus exists among Member States, committee decision- making might not raise any normative problems. However, some caveats to this rather positive conclusion have to be noted. Most importantly, legislative decision-making by bureaucrats can be opposed as a matter of principle. National officials are neither directly nor indirectly elected by citizens of Member States and therefore do not have a legitimate mandate to make legislative decisions. However, this position implies rather extreme demands for remedying this situation. In practise, Council decision- making without the involvement of bureaucratic committees would require radical organisational if not constitutional changes of the way the Council and the EU works.
But even if the current organisational structure of the Council is taken as a given, the results point to potential legitimacy problems. The first problem relates to the finding of legal complexity as a sufficient condition for committee decision- making. Legal complexity is not the same as a lack of importance of the issue or a lack of differences in opinions among Member States. Thus, political conflict can also revolve around legally complex issues. In such instances, ministers do not discuss these issues only because they lack the expertise and time to make informed decisions. Indeed, the case studies sometimes give the impression that only issues whose legal implications are self-evident or can be explained by officials in a few sentences make it on the agenda of ministers. Thus, the threshold for an issue to be considered too complex in legal terms to be discussed by ministers seems to be rather low.
The second problem relates to the finding that the absence of salience is a necessary condition for committee decision-making. What issues Member States find
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important is likely to be biased in favour of large and well organised domestic interests. The case studies indicate that issues are salient to Member States mainly because they affect large domestic companies or industries. The involvement of ministers in Council decision-making is related to the lobbying power of the domestic groups affected by the legislation. No reason exists to expect that the concerns of well organised and connected groups are more important than the concerns of less organised domestic groups. Thus, the fact that ministers discuss more salient issues does not necessarily mean that these issues are ‘objectively’ more important than the issues discussed exclusively at the committee level.
As pointed out by Olson (1965: 21), small and special interest groups are more likely to organise than large and general interest groups. For each individual member of a large group, such as consumers, tax-payers or the general public, the success of the organisation promoting the common good of the group does not hinge upon his or her contribution. Although each group member would benefit from realising the common good of the group, his or her incentives to contribute to this realisation are therefore minimal. In fact, each individual member benefits most when the group’s common interest is achieved without him or her bearing any cost through the contribution of the other members. In summary, the degree of organisation, funding and connectedness of a group with government authorities is not necessarily a result of the generality or importance of its interests, but rather an indication of the degree to which the group is affected by this collective action problem. Such a distortion in the mobilisation of interests has long been recognised at the European level. Indeed, the Commission directly supports social and citizen groups with financial subsidies to reduce this bias in EU policy-making (Mahoney 2004). However, the domestic level of national interest formation is just as affected by this collective action problem as the European level. The definition of Member States’ national positions and their
importance might be systematically biased towards small, well organised domestic groups at the expense of the domestic public at large1.
14.2 Challenges for future research
The general findings of the study as well as the issues just discussed point to several challenges for future research. Methodological challenges include the quantitative measurement of certain concepts. First, the study indicated the limited usefulness of general policy positions of political parties as measures of Member State preferences.
The case studies showed that Member States’ negotiation positions are mainly driven by economic and financial considerations, not by party political attitudes2. In order to facilitate the examination of preference-based explanations of Council decision- making on large-N samples, indicators of economic and financial national interests need to be developed. The increasingly common practise of using broad policy positions of the parties in government as indicators for Member State preferences (Franchino 2007; König 2007) does not allow for reliable tests of preference-based explanations. Party positions are at best only remotely connected to the positions of Member State governments actually represented in Council negotiations. Policy- specific economic and financial statistics of Member States might form a better basis for a measure of Member State preferences. The development of national economic interest indicators also promises advancements for the empirical study of Council conflict lines. Such indicators would allow for a reliable test of the hypothesis that the
1 Note that the extent to which the formation of the national negotiation position is captured by special interests is likely to be related to the extent to which domestic policy-making in general is influenced by powerful interest groups in a certain Member State. While the unrepresentative influence of organised groups on the positions taken by Member States in the Council is a problem for the legitimacy of EU policy-making, this problem is by no means restricted to decision-making on the European level. In fact, the outcome of Council decision-making might be less affected by this problem than the outcome of domestic policy-making. In the Council, the need to reach a compromise among a number of governments, which might be influenced by different types of interest groups to a different degree, should limit the influence of any single type of special interest.
2 This finding also contradicts theories that assume EU politics is characterised by a general preference configuration on a specific policy issue. For example, Tsebelis and Garrett’s (2000) claim that EU politics is about more or less European integration, that the Commission and the EP have similar preferences, and that they are both more integrationist than any of the Member States is clearly not supported by the analysis.
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north-south cleavage often found in studies of Council conflict patterns is related to similarities in the economic structures of Member States.
Another methodological problem regards the measurement of legal uncertainty.
In case studies, the researcher experiences the level of legal uncertainty at first hand.
If the researcher has no prior expertise in a certain policy area, a negotiation process is easier to follow and understand the less legally complex the subject of negotiations is.
For quantitative studies, measuring uncertainty poses major problems. Future research should more fully explore the possibilities of modern computerised content analysis software in this respect. The content and structure of Commission proposals are likely to give indications about the level of legal complexity of the dossier. A measure of legal complexity of dossiers should also be useful for studying delegation in other EU contexts, such as delegation from the EP plenary to its standing committees or from the Council to the Commission.
In terms of theory development, the distinction between legal and outcome uncertainty might also prove fruitful for the study of delegation. The two types of uncertainty are likely to result in different responses by principals. Delegation to specialised committees that have more time to scrutinise a proposal is a more effective response to legal uncertainty than to outcome uncertainty. In contrast, including flexible measures to adjust and update the legal act in the light of implementation problems is a more effective response in the case of outcome uncertainty. Ex ante screening mechanisms can reduce legal uncertainty but ex post adjustment measures are more effective in managing the consequences of outcome uncertainty. If principals in the real world are aware of this differentiation, we should expect that differences in the type of uncertainty are met with different institutional arrangements to best counter-act each type’s negative consequences.
Further work should also examine the effects of EP involvement on Council decision-making. Theoretically, several scenarios can be imagined in which EP involvement might affect internal Council negotiations. Empirically, the current study yielded rather inconclusive results. The quantitative analysis showed a relatively strong and stable correlation of committee decision-making with the absence of EP involvement, but the qualitative analysis yielded no insights that EP involvement resulted in a decision being made at a higher Council level. More exploratory case studies on the interaction of the EP and the Council in early stages of the co-decision
procedure should be useful for a further examination of this factor and for judging the plausibility of different causal mechanisms proposed to explain EP influence.
The study showed that committee decision-making is not related to the extent of exposure of national officials to norms in an international environment. Thus, the socialisation hypothesis was clearly rejected. The rejection of this simple hypothesis does not necessarily mean that the general theoretical argument should be discarded.
Maybe the relationship between interaction frequency and co-operative negotiation behaviour is conditioned by other factors; or factors other than interaction frequency also lead to socialisation. But if such conditional or substitutive relationships exist, they need to be spelled out clearly in an explicit theory. Otherwise the socialisation argument defies any empirical rejection through ad hoc adjustments of the theory.
More conceptual and theoretical work along the lines of Johnston (2001) and Hooghe (2005) is clearly needed in this area.
The effect of the voting rule also needs some further theoretical consideration.
The case studies show qualitatively different dynamics of Council decision-making in instances where different decision-rules apply. The Council acts adopted under the unanimity rule are clearly lowest-common-denominator solutions that satisfy even the most reluctant Member State. In contrast, Member States show much more flexible negotiation positions under the qualified majority voting rule. Still, explicit voting seems indeed to be the last resort and the Member States usually adopt Council decisions through an agreement by oversized coalitions. Therefore, the voting rule clearly matters, but the procedural voting models of Council decision-making developed so far do not really capture the resulting dynamics. In contrast, Hosli and Machover’s (2004: 512) characterisation of the Council decision-making process under qualified majority rule as “a series of unofficial divisions and straw polls”
captures several aspects of the interactions in the Council quite well. After the initial discussion of the Commission proposal, the presidency floats compromise proposals that incorporate changes in response to the positions stated by the Member States in earlier meetings. During this more or less lengthy trial-and-error process, many aspects in the proposal are effectively, although not formally, voted down by the Member States. In this view, the Council decision-making process can be interpreted as a search process by a boundedly rational presidency for a solution that is acceptable to the required majority. The fact that proposals are often adopted by oversized coalitions might then be due to incomplete information about the real positions of
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Member States. In contrast to the ‘culture of consensus’ argument (Heisenberg 2005), the straw-poll picture offers a clear causal mechanism on how Council decisions are reached. However, similar to the ‘culture of consensus’ argument, the straw-poll thesis in its current form can also not account for the observed variation in the degree of consensual decision-making across different Council formations. Thus, the apparently co-operative negotiation style in the Council, even in areas where voting is possible, remains one of the major puzzles for research on Council decision-making.
The development of national negotiation positions as well as the importance attached to them by governments also needs more empirical as well as theoretical research. The study indicated that Member State positions largely reflect economic and financial interests either of the state itself or of small and well organised special interest groups. In addition, the study showed that the importance attached to an issue by Member States played a crucial role in determining the level of decision-making in the Council. Future research should study in more detail the process through which national negotiation positions are formed and through which certain issues become salient for governments. If the resources and the degree of organisation of domestic societal groups really determines the degree to which their interests are represented and defended in Brussels, as indicated by some of the results of this study, then the real legitimacy problem of Council decision-making is not located in the decision- making process in Brussels, but in the domestic formation process of national negotiation positions.
In the preceding discussion, I pointed to many interesting aspects of Council decision-making that deserve more attention in future research. The Council is the main legislative institution in EU politics. Despite the Council’s important role in the legislative process, decision-making within the Council has received rather little consideration in empirical research. Only recent years have seen a turn away from individual case studies and anecdotal evidence to more systematic and representative studies of Council decision-making. This movement is to be welcomed. Taking full advantage of the new transparency regime of the Council, I aimed to continue and contribute to this trend. The study considered the extent of committee decision- making and the conditions under which ministers get involved in legislative decision- making of the Council. Thus, the study shed light on another corner of the black box of Council decision-making, but further research is required to illuminate it entirely.
