Über die Autorin bzw. den Autor

Daniel Finke is assistant professor of political science at the University of Heidelberg. Thomas Konig is professor of political science and director of the Research Centre for the Political Economy of Reforms at the University of Mannheim. Sven-Oliver Proksch is a research fellow at the Mannheim Centre for European Social Research. George Tsebelis is the Anatol Rapoport Collegiate Professor of Political Science at the University of Michigan.

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"Using an impressive range of sources, methods, and data, this work is a remarkable, detailed, and comprehensive description and analysis of the complex process of European reform."--Gary Marks, University of North Carolina, Chapel Hill

"European Union treaties set the power relationships among actors and establish the standards that the Union will enjoy in the future, so their design is as important as many of the world's constitutions. This book convincingly describes and explains how the Treaty of Lisbon came into force despite what seemed at the time like an endless series of negotiations, perceived dead ends, and failed referenda. It is easily the best book on the making of Europe--and European treaties--in quite a long time."--Mark Hallerberg, Hertie School of Governance

"Through theoretical and analytical interpretation of an extraordinary collection of original data, this book addresses the important and complicated process of treaty reform in the European Union. Novel and exemplary, it explores constitutional reform, the art of political manipulation, and the empirical study of bargaining. A major achievement."--Matthew Gabel, Washington University in St. Louis

"This excellent book will command a wide audience in EU politics, comparative politics, and international relations. The book's theoretical ideas, derived from rational choice institutionalism, are at the cutting edge of modern political science, its empirical methods are highly innovative, and the normative implications about the future of the European Union are significant."--Simon Hix, London School of Economics and Political Science

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Reforming the European Union

PRINCETON UNIVERSITY PRESS

Contents

List of Figures............................................................................................................................................xiList of Tables.............................................................................................................................................xiiiAcknowledgments............................................................................................................................................xvIntroduction...............................................................................................................................................1Chapter One: From the European Convention to the Lisbon Agreement and Beyond: A Veto Player Analysis By George Tsebelis...................................28Chapter Two: Revealing Constitutional Preferences in the European Convention By Sven-Oliver Proksch.......................................................62Chapter Three: The Art of Political Manipulation in the European Convention By George Tsebelis and Sven-Oliver Proksch....................................76Chapter Four: Actors and Positions on the Reform of the Treaty of Nice By Thomas König and Daniel Finke..............................................103Chapter Five: Why (Unpopular) Leaders Announce Popular Votes By Thomas König and Daniel Finke........................................................129Chapter Six: Principals and Agents: From the Convention's Proposal to the Constitutional Treaty By Thomas König and Daniel Finke.....................151Chapter Seven: In the Aftermath of the Negative Referendums: The Irish Resistance By Thomas König and Daniel Finke...................................170Conclusion.................................................................................................................................................188Appendix: Research Design and Methodology By Thomas König and Sven-Oliver Proksch....................................................................199References.................................................................................................................................................209Index......................................................................................................................................................221

Chapter One

George Tsebelis

As was argued in the Introduction, the institutional changes introduced in the European Union (EU) between the time of the Treaty of Nice and the Treaty of Lisbon occurred along two dimensions. The first increased the jurisdictions of the EU, while the second rearranged its institutional structures and had potentially serious long-run distributional consequences. This chapter will focus in the second dimension because it was the more conflictual of the two. The chapter will provide a veto player analysis of EU decision making under different voting rules to explain the importance of these institutional confrontations on democratic legitimacy and policy stability, and explain the strategic significance of two confrontations—one in the European Convention, and one at the Brussels Intergovernmental Conference—that were decisive in the adoption of the new institutions.

There is a simple reason that agreement on expanding jurisdictions was easier to come by: while there were lots of disagreements along the first dimension (as we will see in chapters 4–7) the essence of the choice over extending EU jurisdiction to any particular area was the result of whether the positive effect generated by policy coordination in this area exceeded the negative effect generated by the abdication of national sovereignty. In other words, different actors (mainly governments) disagreed as to whether the expansion of EU jurisdiction into any particular policy area represented a Pareto improvement that more than compensated for the redistributive losses. The sign of the net outcome depends on time horizons and expectations about events the EU will face in the future. So, while there may be disagreements and high variance of positions, the intensity of preferences was low, and consequently these issues were easily used as bargaining chips in the negotiations.

In the second dimension (of institutional structures) there is one issue with straightforward consequences that does not require extensive analysis; that is the size of the Commission. While what matters in terms of policy is the political composition of different bodies, there was a prolonged dispute about the size of the Commission; more specifically, a debate arose as to whether every country would have at least one representative in this body. Given that there is no obvious political consequence in this decision, we have to explain why it became such a major issue. The reason is simple: the Commission drafts EU legislation, so it is not surprising that member states insisted on preserving their right to send a Commissioner to Brussels. A college of twenty-seven Commissioners can hardly be considered the most efficient way to organize a governmental organization. Therefore, the Convention discussed several options for reducing the number of directorate generals. In June 2004 (under the Irish Presidency) political leaders agreed to reduce the number of Commissioners to two-thirds the number of member states. Yet this reform remained contested four years later when, following the negative Irish referendum, a number of dissatisfied smaller member states finally got their way with each state continuing to send one Commissioner. The likely consequences of this choice are inefficient decision making in the college, as well as time-consuming coordination among the directorate generals that continues to lack transparency. While the choices over Commission size and policy competences sparked vigorous debate among the political leaders of the Union, the decision to alter qualified majority requirements in the Council and the way that weights in the Council are calculated led to a major confrontation because of the many more far-reaching consequences.

This chapter compares the policy and political outcomes that followed from the institutional structures generated by the European Convention, the Treaty of Lisbon, and the default outcome of a failure of negotiations during the process of European integration, the Treaty of Nice. The institutions produced under these different arrangements empowered different actors to create the policies of the EU. The comparison is based on the theory of veto players (Tsebelis 2002) and is aimed at demonstrating the potential differences in policy outcomes for the EU had future policies been made in each of these institutional settings. In particular, I will focus on the effects of different institutional arrangements on the democratic deficit and the extent to which they strengthen the capacity of the judiciary powers and the bureaucracy to create policies independently from electorally accountable actors.

The chapter breaks with most of the institutional literature on the EU. For a long time, study of the institutional changes that were occurring every three years (with the Single European Act, at Maastricht, Amsterdam, and Nice) has been put aside because the literature (an offshoot of the literature on international relations) was embroiled in a paradigmatic war that left the study of European political institutions largely untouched. Intergovernmentalists neglected the study of institutions in favor of major developments at intergovernmental conferences, and neofunctionalists ignored them altogether in favor of spillover processes (Garrett and Tsebelis 2001, Baldwin and Widgren 2003, 2004a, 2004b). The institutional descriptions of the EU were based on neologisms that belie the literature's focus on the Union as an international organization, ignoring its similarities to many attributes of national organization: it is "neither a state nor an international organization" (Sbragia 1992); "less than a federation, more than a regime" (Wallace 1983); "stuck between sovereignty and integration" (Wallace 1982, 57); "institutionalized intergovernmentalism in a supranational organization" (Cameron 1992); and the "middle ground between the cooperation of existing nations and the breaking in of a new one' (Scharpf 1988, 239). Some scholars have even taken advantage of the lack of theoretical grounding, like Alberta Sbragia, who approvingly quotes Saul Krislov, Claus-Dieter Ehlermann, and Joseph Weiler, claiming, "The absence of a clear model, for one thing, makes ad hoc analogies more appropriate and justifiable. If one may not specify what are clear analogies, less clear ones may be appropriate" (Sbragia 1992, 258).

In this chapter, instead of using analogies (appropriate or inappropriate), I follow my earlier study (Tsebelis 2002, chap. 11), examining legislative procedures adopted at the intergovernmental conference in Nice in 2001, at the European Convention in 2003 (Norman 2003), and at the intergovernmental conference in Brussels in light of veto-players theory (Tsebelis 2002). I analyze the outcomes of decision making generated by these procedures and discuss the policy, political, and structural implications of the different arrangements. The argument is that the procedures proposed in the Convention text resolved a series of problems facing the EU, and the rejection of these proposals could have had unfortunate consequences if the Treaty of Lisbon had not been ratified.

The supermajority required by the Nice rules made the passage of new legislation much more difficult than under either the Convention's proposal or the slightly amended Treaty of Lisbon. The second-order consequences were that the Council's inability to act would allow the bureaucracy and judiciary to act with a freer hand than they would have been able to under alternative institutional arrangements. As I will discuss herein, the inability of the member states to reach agreement meant that those actors charged with implementing and interpreting the law (bureaucrats and judges, respectively) would have had a larger set of policies they could choose from without the risk of being overruled by the Council. The transposition of decision making from (indirectly) elected EU politicians to (wholly unelected) judges and bureaucrats is problematic for those who argue that the EU suffers from a democratic deficit.

More specifically, the argument is that the EU is characterized by a plethora of veto players, which makes decision making very difficult. The Nice arrangements—which give most of the decision-making authority to the Council—had increased the powers of the judiciary and the bureaucracies (De Witte 2001; Persson 2001; Tsebelis and Yataganas 2002; Yataganas 2001b). Valéry Giscard d'Estaing, President of the Convention, was able to reverse all of these features with one stroke of his pen: supported by a Convention unique for its synthesis (Magnette 2001; Closa 2004), he eliminated the triple-qualified majority decision-making rule in the Council. As a result, he made political decisions easier to adopt, reduced the relative power of any individual member state, increased the role of the European Parliament, and resultantly decreased the importance of the bureaucracy and the judiciary. In the Treaty of Lisbon a compromise (exactly in the middle between Nice and the Convention proposal in terms of required qualified majorities, but much closer to the Convention in terms of the whole set of institutional solutions) was adopted. This compromise resulted in a clearer delineation of who is responsible for decisions and has led to more of the Union's important decisions being made by politically accountable individuals. The result of the French and Dutch referendums was the reversion to the institutional framework generated by the Treaty of Nice, exasperating the Union's perceived democratic deficit. Referendum results notwithstanding, this constitutional document constituted a focal point for projects of EU integration. Despite press analyses that focused on the EU's failure to integrate, national politicians realized that what was rejected in 2005 was worth resurrecting and adopting in the form of the Treaty of Lisbon, in line with the arguments of this book that no other alternative was workable within the configuration of the EU at that time.

The chapter is organized into four sections. First, I discuss the problems of the EU's democratic deficit and the implications of judicial and bureaucratic independence for democratic legitimacy. Second, I explain the differences between the decision-making arrangements introduced at Nice and the Convention and discuss how the decision-making rules impact these problems of democratic legitimacy (Tsebelis 2005). Third, I demonstrate how elements of veto players theory provide novel insights for analysis of the EU institutions on these problems (Tsebelis 2002; Yataganas and Tsebelis 2005); the conclusion of this third part is that a reversion to the Nice rules would have a negative impact on democratic legitimacy in the Union. Fourth, I use such a conclusion to explain the significance of two crucial moments in the long-lasting fight over institutional reform: Valéry Giscard d'Estaing's decision in the Convention to prohibit a discussion or vote of the Treaty of Nice rules, and Angela Merkel's decision in the Brussels meetings not to accept any changes in the existing texts.

1.1 Judges, Bureaucrats, and the Democratic Deficit

Before examining the specific institutional changes proposed by the Convention and the Brussels Intergovernmental Conference, it is relevant to discuss the underlying normative challenges faced by the EU with a view to institutional reform. In particular, this section explores two hotly discussed sets of problems that are thought to plague the EU: the Union's "democratic deficit" and the power of its bureaucracy and judiciary. These phenomena are related through the sets of institutions that shape decision making in the EU and were amplified by the use of the Nice rules.

Democratic Deficit

Scholars continue to discuss the issue of a "democratic deficit" connected with EU institutions. It is not entirely clear what this discussion is about. It may be that political decisions do not reflect the wishes of the public; or it may be that information about the decisions made by the European political system is not disseminated to the public. According to Andreas Follesdal and Simon Hix (2006), the "standard version" of the democratic deficit debate centers on five issues: first, the increase in executive power and decrease in national parliamentary control; second, a weak European Parliament; third, despite the increasing powers of the parliament in recent years, the absence of a "European element" in European elections; fourth, the distance between the EU and voters due to the complicated institutional framework; and fifth, neoliberal EU policies that are not supported by a majority of voters in many member states.

Recently, some scholars have argued against the existence of a democratic deficit. According to Giandomenico Majone (1998, 2000), the EU is predominantly a regulatory state and simply has a "credibility crisis." If the EU were democratized through an increase of the power of its majoritarian institutions, this development would lead to a politicization of regulatory policy making and increase redistribution rather than Pareto-efficient outcomes. Another critique comes from Andrew Moravcsik, whose intergovernmentalist view implies that the EU is unlikely to adopt policies that negatively affect any single member's national interest, that there are no unintended consequences of intergovernmental bargains, and hence no democratic deficit (Moravcsik 2002). More recently, Follesdal and Hix (2006) have rejected both Majone's and Moravcsik's critiques and claim that the two most fundamental democratic deficit issues in the EU are the absence of electoral contest for political leadership at the European level and the basic direction of the EU policy agenda. While some of these arguments are orthogonal to the arguments in this book, I will make some claims about the effect of the various institutional arrangements on the democratic deficit. In particular, I will address the two important points made by Follesdal and Hix in this debate.

The Reduced Role of National Parliaments and the Strengthening of National Executives

That there is a reduced role of the European Parliament (EP) is an inaccurate perception (Pinelli 2004, 83). Looking at EU institutions, the EP is able to make its own proposals to the Council and, according to the rules in place under the Treaty of Nice, it shares agenda-setting powers with the other policy-making institutions (European Commission and Council). In fact, as the Commission has stated, "Since the Single European Act came into force on 1 July 1987, over 50 percent of the Parliament's amendments have been accepted by the Commission and carried by the Council. No national Parliament has a comparable success rate in bending the executive to its will" (European Commission press release, 15 December 1994, quoted in Earnshaw and Judge 1996, 96). Furthermore, the codecision rule has enhanced the power of the EP since its first election in 1979. So, the term democratic deficit is not an accurate characterization if it is meant to reflect the lack of power of the EP.

One would expect a difference in the role and importance of parliaments in presidential and parliamentary systems: but the titles of these systems are misleading (Tsebelis 2002). It is parliaments in Europe that complain that they are little more than a rubber stamp for government decisions, and it is the President of the United States who complains that he cannot restrict the initiatives undertaken by the U.S. Congress. The reason for this discrepancy between titles and reality is that the parliamentary branch make proposals to the executive branch in presidential systems, while the government makes proposals to the parliament in parliamentary ones. The institution that makes the proposal enjoys greater discretion than the one that accepts or rejects the proposal. Hence, a European Parliament that has significant agenda-setting powers and a high success rate in the passage and implementation of its proposals cannot be the locus of the EU's democratic deficit.

The Lack of a European Element to EP Elections

If democratic deficit implies the ignorance of the public about decision making "in Brussels," then it is a factually correct characterization, although it covers decision making in Strasbourg (the location of the plenary sessions of the EP) as well as decision making in Luxembourg (the location of the European Court of Justice). In fact, the average European is disinterested in European decision making and is irritated by specific decisions (whenever she hears about them). This phenomenon does not reflect the intention of supranational elites to obfuscate their actions (the EP frequently tries to communicate its decisions to national parliaments and the public), but rather the predisposition of the EU population. When it becomes clearer to voters that Union decisions are transposed to the national level—that a series of national decisions are taken unanimously because they reflect European legislation and, as a result, individual countries have to adopt the specific policies—the attention of the public to the goings-on "in Brussels" may increase.

(Continues...)

Excerpted from Reforming the European Unionby Daniel Finke Thomas König Sven-Oliver Proksch George Tsebelis Copyright © 2012 by Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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