Key Features of EU Policy Processes

A straightforward ‘standard’ policy-making system was set out in the EEC Treaty The Commission proposes The Parliament advises….(on a restricted range of matters) The Council decides….(almost invariably by unanimity) The Court adjudicates

A highly complex and varied system now exists, as witnessed by: • Its great number of policy- and decision-making processes Its mixture of intergovernmentalism and supranationalism: with the ‘balance’ constantly disputed. Its multi-actor character – EU institutions, national actors, interests – in which the formal roles and powers of actors vary between policy areas. Its multi-level nature: EU, national, sub-national. Its multi-speed and increasingly differentiated character.

Making sense of the complexity Paul Magnette suggests the use of three criteria helps us to distinguish between, but also to identify the persistence of, distinct policy-making patterns: - the degree of involvement of institutions that are independent of government; - the decision-making rules in the Council; - the legal character of decisional outcomes. These three criteria are usually related, and result in three broad policy processes:

The three main policy processes 1: The Community Method Based on an institutional triangle in which usually: - the Commission formally takes the policy lead; - QMV is available in the Council; - the EP has the power of co-decision. Where law is being made, decisions are subject to ECJ jurisdiction.

The EU’s Law Making Procedures European Council Court of Justice Commission ‘Political’ and ‘significant’ legislation ‘Administrative’ legislation Committees European Parliament Council of Ministers Direct action Management Regulatory Advisory Legislation is adopted in one of three forms: directives, regulations, decisions.

The three main policy processes 2: Intergovernmental Cooperation - Commission’s role is less significant eg does not have exclusive initiation powers; - decisions are not subject to ECJ jurisdiction; - applies mainly in those highly sensitive policy areas in which sovereignty questions arise: foreign, defence, justice.

The three main policy processes 3: Open Method of Coordination (OMC) - It has become important in recent years as the EU has sought to find a middle way in policy areas where intergovernmental cooperation is seen to be too weak but where preservation of independence is still desired. - EU decision-makers identify policy goals, but pursue them not via compulsive regulation but via a variety of ‘gentler’ methods. - Essentially, it involves attempts to coordinate national policies with soft law instruments and mechanisms, such as peer review, benchmarking, league tables. - Applies to much of the Lisbon programme.

A fourth policy process? • To the three ‘standard’ policy processes, a fourth can be added: central regulation. • This exists where supranational institutions have not only independent implementation functions but also strong decision-making functions: usually because of a perceived need to ‘de-politicise’ decision-making. The clearest examples are the Commission’s competition powers and the ECB’s monetary powers. • Note, the new independent agencies, such as the EFSA and the EEA, do not have strong executive powers. They are mostly concerned with tasks such as information-gathering and promoting coordination.

Differentiation 1: the bases of differentiation Differentiation – policy development with not all member states fully involved – has been much discussed in recent years, not least because of enlargement and the difficulties with the Constitutional Treaty. However, differentiation has long featured in the EU, most notably through Schengen, EMU, and defence cooperation. The Nice Treaty made differentiation easier to operationalise. Enlargement makes increased differentiation likely because there are now not only more member states but also much greater variations between states in terms of their objective requirements, their political preferences, and their economic, political and administrative capacities.

Differentiation 2: factors favourable to differentiation • Variations in national preferences • Variations in national capacities • Characteristics of policies: not part of SEM core significant sovereignty implications of particular rather than general interest

Differentiation 3: forms of differentiation Differentiation can take different forms: multi-speed; à la carte; overlapping circles; concentric circles. Up to the present, only mild versions of the first two have occurred. The cross-cutting nature of differences between EU-25 states suggests that the concentric circles route – with semi-permanent inner and outer cores – is most unlikely. However, some further modest development of the first three versions of differentiation is likely –but the extent that this is sought or is likely should not be exaggerated: note, for example, the tight restrictions on derogations in the accession negotiations.

Differentiation 4: directoires In the context of differentiation, much is now heard of the possible emergence of an EU directoire or directoires. A single directoire is not possible, partly because ‘outsiders’ would resist it and partly because of the nature of internal divisions. Directoires of a loose sort may, however, be possible in a few policy areas: EMU ?; JHA?; CFSP and ESDP?

New Modes of Governance 1: What is the ‘new governance? • The so-called ‘new governance’ has impacted widely on national public policy and administration since the mid-1980s. It has increasingly impacted on the EU since the early 1990s. It involves: • Less emphasis on traditional, ‘top down’, hierarchical, legislation-based forms of operation. • Use of more flexible, often network-based, and essentially voluntary forms of policy development and practice.

New Modes of Governance 2: Forms of new governance European agencies: extensively involved in information gathering and in making policy recommendations, but have few executive powers. The open method of coordination (discussed above)

New Modes of Governance 3: Advantages and disadvantages of new governance approaches • The main advantage is that it permits policy to be developed in areas where states would be very reluctant if compulsion and EU law were involved. • The main disadvantage is that voluntarism and non binding mechanisms are not always effective.

Are EU policy processes efficient? Arguably, there are too many ‘checks’ in the system: - the Commission must propose; - differences around the Council table, and use of unanimity for many of the most contentious issues; - the heterogeneity of EU membership, and the need for support by a majority of the EU’s members on many important matters; - majorities in the Council and EP are constructed on different bases: one ‘national’, the other more ‘ideological.

But, policy processes cannot be too inefficient: • Witness the enormous policy advances since the mid-1980s: the (ongoing) single market programme, EMU, enlargement, and JHA. • Many of the so-called policy failures – such as with CAP reform, the Lisbon Process, and CFSP – are a consequence not so much of weaknesses in policy and decision-making systems as deep differences over what should be done.

The key characteristic of EU policy processes: compromise Institutional interdependency coupled with the multiplicity of actors means EU policy-making processes are characterised, perhaps above all, by compromise. Within institutions: witness, for example: a) the reluctance to vote in the College and in the Council, and the constant searches to get beyond the bare majority; b) the need for political groups in the EP to forge deals if majorities are to be obtained. Between institutions: witness, for example: a) the Commission anticipating reactions when it launches initiatives; b) the willingness of the Council and the EP to be accommodating during legislative processes – very few proposals completely fail. But, compromise can produce weaker policies than are ‘ideally desirable’.