Abstract and Keywords
The first chapter begins by introducing the concept of institutional change, first by defining politics as a competition and institutions as the rules that political actors play by, and second by observing that actors often try to change institutions—in particular, the rules that allocate political power. Next it proceeds to apply this general social science phenomenon to the European Union (EU), drawing a distinction between the EU's formal institutions (laws) and informal institutions (nonlegal rules), before asking why the EU's Member State governments would allow any transfer of power to other EU actors through the creation of informal institutions. The book argues that informal accords—bundles of informal institutions—paradoxically results in the reallocation of power among EU actors, thereby leading to increased European integration. There is also a literature review of the array of theories that compete to explain the European integration outcome.
Politics and institutions
When it comes to politics, is it important to play by the rules? When we think of politics, we tend to conjure up images of “office politics” or a pair of politicians squaring off in a media interview or on the floor of Congress. Politics as a social phenomenon is not confined to the hallowed halls of government. In fact, wherever there are disagreements among individuals or groups we have politics on our hands, contests among individuals or groups of some kind to get what they want. From children arguing on the playground all the way to US senators fighting it out over national budget resources, politics appear to be everywhere in social life. Often it seems that whoever is stronger or smarter tends to win the contest, sometimes in a no‐holds‐barred sort of way.
But take a closer look and you will find that just like maneuvering the checkout lines at a busy supermarket or playing a pickup game of basketball, in every sort of contest imaginable the actors are competing according to some set of rules. These can be either implicit and generally understood by those interacting, or more explicit with a written down set of rules that competitors can appeal to, if necessary. In the study of politics rules are referred to as institutions, and if politics is about playing some sort of game, then institutions constitute the rules of the game. But it goes beyond that, for virtually all aspects of social life have institutional elements that govern human behavior. For even social interactions devoid of disagreement and overt politics are governed by rules; moreover, institutions structure the behavior of actors in normal everyday situations, such as an understood rule in Japan that no employees can leave for the day until the boss goes home first.
(p.2) Institutions clearly constitute the sinews of politics, the stuff that defines a given political arena and sets out the rules for competition. While it is important how powerful or skilled political actors are, institutions are often just as important in explaining the outcome of the competition. Change the rules, and more than likely you change the outcome. Just like standard actors like politicians or nation‐states rarely play only one round of the games they participate in, the rules of the game normally do not remain static. If institutions matter to our understanding of why different actors in society behave the way they do, then institutional change may matter even more. But understanding why the rules of political contests may all of a sudden change, after having been in place and adhered to possibly for long periods of time, constitutes a puzzle.
Take the European Union (EU), for instance. The conventional wisdom that European integration is explained largely by negotiations of treaties by its Member States is something of a myth, albeit a powerful one in light of today's reigning scholarship. It seems scholars and journalists alike have trouble ascertaining what EU insiders encounter in Brussels on a daily basis. In essence, the intermittent treaties that formally transfer sovereignty from Member States to the EU's supranational level tell only part of the story.
Instead of being the sole origin for such transfers, formal treaties often function as repositories of previously arranged sovereignty transfers that have already taken place, in the EU's informal sphere. These earlier outcomes stem from efforts of the EU's three principal policy‐making actors—the Council of Ministers, the European Commission, and the European Parliament, also known as the Three—to broker informal agreements between them, which systematically serve to alter policy‐making rules. What is more, the new informal rules occasionally serve to alter the balance of power among these actors, all of which occurs outside of the EU's cumulative Treaty. As such the amending treaties not only create new formal rules, but they also serve to gather together extant informal rules and infuse them with a legal component they lack—in a word, they formalize them. Even prior to this step, however, to the extent that informal rules have already transferred power from the Council's Member States to the Parliament, Europe has previously become more integrated.
This is the untold story of European integration. While these mundane matters for EU policy‐makers remain fairly obscure to the scholarly ranks, national politicians have in recent years begun to take notice, particularly in the Danish and British parliaments. What they have grown concerned about is the mushrooming phenomenon of informal horse‐trading in Brussels, for in the eyes of critics what began as a way of making formal (p.3) legislation work in practice has become a threat to democracy. Take the EU's most recent informal agreement, for example. Bilateral in nature, it was negotiated between the Council and Parliament as a result of the Parliament's long‐standing desire to augment its feeble authority over policy implementation—known in EU circles as comitology. In traditional democracies, legislatures have a system of holding the executive branch accountable for the ways in which it implements legislation, but in the EU the Parliament has for much of its existence lacked such a system to hold the Commission to task for its implementing decisions.
As of 2006, the Parliament has made major inroads into the Council's sturdy redoubt, whose committees of national civil servants have long held singular sway over their Commission counterparts when it comes to comitology. But pressure from the Parliament boiled over after the Member States failed to ratify the recently proposed Constitutional treaty due to French and Dutch vetoes the year before. Informal bargaining went on for months before the Council capitulated, and in an informal agreement granted the Parliament a newfound veto power (over Commission implementation decisions for all legislation created under the EU's codecision policy‐making procedure, that is, the vast majority of EU legislation).1 This is not a formal institutional change; instead it constitutes an informal change in the rules, and one that is not prescribed by the Treaty and therefore technically not even legal.
Informality is important not only because informal rules are ubiquitous, but also because they frequently serve as the direct forerunner to formal institutional change. In other words, as evidenced repeatedly in the EU, formal laws are frequently tried out first as informal rules; as such, the political contest to create them occurs much earlier than most observers realize. The study of informal rules is surprisingly rare given that they are fought over just as fiercely as formal rules are; EU actors engage in contentious bargaining sessions, not only over treaties but informal agreements as well. The informal rules comprising them are neglected largely due to scholars' erroneous assumption that political actors will refuse being bound by them in light of their nonlegal status; in fact, actors pay a price for violating them. In the EU, weaker actors in fact will cease cooperation across the board if stronger actors do this.2 Informal rules are nonetheless frequently created either because they constitute a tryout for formal (p.4) institutional change or because the formidable creation of laws proves too prohibitive.3
The new rules bundled together play a critical role in shaping the strategic interaction among the Three. In the context of an institutional framework of rules that structure their interaction, the Three bargain competitively not only over policy outcomes, but also over the rules that allocate the very powers they use to make policy. In the course of this incessant strategic interaction, whenever such a power game outcome cannot be fed into an amending treaty in the making, they take the form of new informal agreements. The intermittent result of a single round of this competition is a bundle of new rules, that is, informal institutions—which then recursively feed back to and become a part of the institutional framework that structures the next round; actors thus comply with an altered set of rules in making their subsequent strategic choices.
This book makes two major inquiries. On one level it examines the widely regarded but vaguely understood phenomenon of institutional change, seeking to map uncharted territory with application across various social and political arenas. This book maintains that informality, understood as the dynamics surrounding nonlegal rule creation, offers an insight into how institutions change. More fundamentally, it employs a rationalist theory of institutional change in which institutions are not taken as given, or exogenous. Instead, the rules of the game so to speak are supplied by the players themselves, or endogenous. An institution comprises shared expectations among actors to interact with one another in accordance with a particular pattern. This equilibrium persists until actors alter them, either at the behest of a power play by a strong actor—perhaps a coalition of actors—or as a result of bargaining among actors of various strength.
This theoretical approach differs from others in which institutions are assumed to be “thick” and thus difficult to change, even by powerful actors; such theories view institutions as accretions that either congeal or become malleable only gradually over time almost in the absence of actors' behavior, that is, agency. Rather, it assumes that institutions are often “thin” and thus more amenable to being changed, depending on a given arena's configuration of actors (i.e., their preferences, their power, and the nature of their strategic interaction). In deploying this variant of rational institutionalist theory, this book further seeks to compensate for the irony of how numerous rationalist scholars tend to apply the theory most ideally suited (p.5) for explaining the phenomenon of change to arenas of institutional stasis, namely the structure‐induced equilibrium approach.4
On a second level, the book illuminates institutional change in the EU, revealing a causal component of European integration not incorporated in conventional accounts of how nation‐states relinquish their sovereignty. Reigning theoretical accounts in the Regional Integration field posit that integration stems from formal intergovernmental treaties between governments, such as EU Member States. Andrew Moravcsik's tour de force is a case in point, falsely attributing the source of a trove of primary EU laws to the preferences of the EU's most powerful Member State governments.5 Moravcsik is hardly alone in this insistence; he is merely the most insistent and therefore the most open to criticism. While this book, like his, makes use of the theoretical concept of incomplete contracting, its findings about the importance of the EU's informal sphere place it along with Craig Parson's more ideas‐based approach as one of the more “anti‐Intergovernmentalist” works in the field.6
Instead, what if a broad swathe of the laws in EU treaties were not created by the Member States, let alone the most powerful ones? What if supranational actors like the European Parliament were instrumental in their creation? And what if the laws in question not only were originally conceived as informal institutions without legal force, but furthermore that whenever one of these clashes with a formal law EU actors actually were to abide by the former? Finally, what if all these things served to decrease the so‐called democratic deficit of the EU, albeit in a manner woefully lacking in legitimacy? Whatever accounts for these outcomes amounts to an enormous puzzle, and this book seeks to explain them.
Theories of European integration
As Mattli and Slaughter and others have called for a transcendence of the conventional debate over legal integration in the EU, so too there needs to be a transcendence of the conventional debate over the EU's political (p.6) integration.7 Whether transcendence can achieve synthesis some four decades on from the inception of this debate, however, is open to doubt. As long as work on European and regional integration meets rigorous methodological standards, endeavoring to explain outcomes either within or across discrete spheres of the colossal EU political system will represent a sound theoretical enterprise.
The main theoretical contenders in the ongoing effort to account for the impetus, pace, and variance of European integration amount to the Neofunctionalist, Intergovernmentalist, and Governance approaches, as well as more recent arrivals on the scene: the ideational approach, the formal modeling approach, and the “new institutionalism” approach.8 Although not altogether different, these and other late contenders cannot, as some have suggested, be equated with Neofunctionalist theory—the thoroughbred first out of the gates and the only full‐fledged theory “born and raised in EU territory.”9
Neofunctionalist theory nonetheless has proved to be considerably deficient.10 While often astute with regard to process, it has fared poorly with regard to predicted outcomes. In essence, various empirical developments exposed the inadequacies of focusing too intently on interest groups and functional linkages, while not enough on the capacity of governments to withstand the allegedly inherent momentum of integration. Despite the resurgence of formal integration in the forms of the Single European Act (SEA), the Maastricht Treaty, the Amsterdam Treaty, and most recently the Nice Treaty, Neofunctionalism remains in ill theoretical repute.
An important exception to this trend has been something of a renaissance for the theory with regard to the legal sphere of European integration, in which Mattli and Slaughter have a cogent series of arguments for (p.7) Neofunctionalism's ability to account for the ways in which the European Court of Justice (ECJ), in conjunction with national courts, has furthered the course of integration.11 Nonetheless, it would appear that any residual explanatory power of the theory is confined to the legal sphere, with the possible exceptions of several theories to be discussed below that one might construe as Neofunctionalist offshoots.
The breakdown of Neofunctionalism in the 1950s to 1970s was evident in several ways: the expanded role of the Commission did not occur; functional linkages between different economic sectors were not as extensive as predicted; the expected transfer of elites' political loyalties to a new core of officials in Brussels did not transpire; a massive blurring of what was perceived to be technical and political took place; and the economic–political continuum did not prove to be wholly linear, that is, functional spillover did not occur to the extent envisaged.
As such, Neofunctionalism's pluralistic conception of creative transnational interchange in the construction of functional coalitions did not materialize, and the few functional cross‐sectoral linkages that did develop proved unable to act as an impetus for widening the scope of EU lawmaking. Contrary to the expectations of Neofunctionalists, economic integration did not prove to be a gradual, stage‐by‐stage process leading to further and further integration, nor did the creation of the European Economic Community (EEC) customs union, among other things, lead inexorably to greater political integration.12
Over the course of the fifty‐year history of the EU, the theory of Intergovernmentalism has fared somewhat better. According to Intergovernmentalism, EU Member States generally not only prefer to retain their sovereignty, but they also possess the ability to prevent the transfer of sovereignty to supranational organizational actors whenever they wish to exercise it. Member States desire collective, or supranational, action only when the benefits are obtainable without having their sovereignty unnecessarily impinged upon. Only on rare occasion do they intend to transfer limited amounts of their sovereignty, but they always maintain the ability to oversee it—and even to recapture it if circumstances necessitate.
In other words, as principals Member States delegate specific responsibilities to organizational agents in the EU, oversee them vigilantly, and rein them in whenever they seek to exercise their delegated authority beyond the intended scope. In addition, the important bargains exist only in the (p.8) formal sphere of the EU and occur only between Member States in the form of treaties. The EU's acquis communautaire exists insofar as the treaties prescribe specific institutional designs and the procedures to which organizational actors must adhere.13 Informal agreements are insignificant in the Intergovernmentalist perspective; indeed, they go thoroughly unconsidered.
Although Intergovernmentalism fared better regarding the so‐called Eurosclerosis of the 1970s than Neofunctionalism, subsequent to the “relaunch” of European integration in the mid‐1980s it has struggled somewhat to retain its beacon status. As the principal proponent of Intergovernmentalist theory, Andrew Moravcsik has attained the status of the Kenneth Waltz of European integration. His work is, if not necessarily the omega, certainly the alpha of the European integration literature: practically all serious theoretical contenders begin with Moravcsik's Liberal Intergovernmentalism (LI) variant as their starting point—drawn from both neorealism and neoliberal institutionalism—and necessarily so.14
With its rationalist, state‐centric, and government‐motivational assumptions, LI purports to explain the enduring integration puzzle by claiming
that the broad lines of European integration since 1955 reflect three factors: patterns of commercial exchange, the relative bargaining power of important governments, and the incentives to enhance the credibility of interstate commitments. The most fundamental of these was commercial interest.…At its core, I argue, European integration has been dictated by the need to adapt through policy coordination to these trends in technology and in economic policy.…Where such interests converged, integration advanced.15
Moravcsik's important contribution has made the case for Intergovernmentalism as no one has before.
LI indeed has seemed capable of explaining a substantial amount of amending treaty outcomes. As much of an achievement as this purports to be in theoretical terms, it nonetheless fails to explain all the variance of the integration outcome. The standard and fairly sustainable critiques of LI comprise tautological problems, disagreements about the state and what constitutes it, and what has been described as the problem of sovereignty (p.9) discourse, that is, how Intergovernmentalist images of European integration are privileged ontologically.16
From an informal institutionalist perspective, the primary problem with LI is its propositional insistence that Member State preference formation is confined entirely to the domestic level of analysis, that is, domestic politics. Based on evidence of the impact on integration from the EU's informal sphere, LI's principal deficiency is two‐part. First, it fails to allow for the fact that certain Member State preferences for Intergovernmental Conference (IGC) outcomes stem not from domestic political actors—or any global economic interests that may filter through to the domestic level—but from supranational political actors; not all, but a substantial amount.17 LI allows for national governments to transfer sovereignty to supranational organizations, but, crucially, it abjures their incorporating any constitutional content from them.
At issue here is a crucial difference between ultimate and proximate preferences. In the context of the EU, the former constitute formal bargain preferences that have Member State governments as their sole origin, that is, preferences formed prior to any interactions with other governments or supranational organizations. These preferences are formed solely with a given state's national interests in mind, as governments interact with citizens, interests groups, and the press and weigh their needs and the strategies to meet them in the context of IGCs. Whereas proximate preferences involve shifts from certain ultimate preferences to updated preferences incorporating the results of interactions with other Member States and supranational organizations, that is, discussions with them, early negotiations with them, pressure from them, trade‐offs with them, etc. The EU's supranational organizations influence formal constitutional content through Member States' proximate preference formation, more often than not through a majority of Member States determining that a certain informal accord has worked well enough in practice that it makes sense to them to formally incorporate its rules in treaty form.
The closest LI comes to allowing for supranational influence on Member State preference formation is Moravcsik's openness to issue linkage in his theoretical framework. The problem is that LI forecloses the influence of supranational organizations because the only actors that national governments are allowed to link issues with are other national governments, (p.10) just as coalitions in his model can only comprise constellations of Member States. In fact, Member States bargain with the Parliament and the Commission through the Council on a regular basis in the informal sphere. As a result, either to exchange something with them or appease them, in certain instances this bargaining results in the incorporation of supranational preferences in formal treaty bargains. The proximate preferences of Member States act as the conduit in such cases, in ways for which LI cannot account—indeed, ways inconsistent with the LI model's assumptions and predictions.
As the evidence presented in later chapters will support, national governments in specific instances adjust their formal bargain preferences via either bargaining indirectly with supranational organizations (e.g., trading off Parliament's preference for a specific codecision treaty provision for a Council preference for a reduction in the Parliament's procedural delaying tactics) or simply being persuaded by the efficacy of the rules of a given informal accord (e.g., recognizing the utility of having the Parliament officially “invest” a new college of Commissioners and formalizing this informal accord via including a provision for such in the Treaty). Hence, the empirical record will show that a fair number of Member State preferences stem not from the preference formation process predicted by LI, but rather proximate preferences that have supranational actors as their source. To the extent that the Council formally incorporates preferences of supranational origin in treaty form, a key LI hypothesis is falsified: national governments do not control all aspects of the grand bargains that generate amending treaties; what Moravcsik terms “the process‐level intervention of institutional entrepreneurs” do, to a lesser but significant extent.
Second, LI cannot sustain empirical evidence not only that the integration process is furthered in‐between the occasional amending treaties, but also that the primary source of this type of integration is not the Member States, but rather the Council's supranational competitors (particularly the Parliament). Temporally speaking, such can be conceived of as interregnum integration—informal accords interpolated in‐between treaties during normal periods of EU activity—as opposed to history‐making integration—that which is part and parcel of formal treaty‐amending accords that radically reconfigure the EU's constitutional landscape.18 In terms of the source of integration, Member States may dominate history‐making integration—despite a certain portion of their treaty preferences being derived from (p.11) nonnational and noneconomic origins—but supranational political actors are a force in interregnum integration: formally in terms of the ECJ's jurisprudence but informally in terms of the Commission and Parliament.
It is in the course of day‐to‐day EU policy‐making, or governance, that informal institution‐building dynamics can and does engender interregnum integration. As this book will lay out below, this type of integration occurs more on the margins of normal governance, as opposed to the highly salient, headline‐grabbing IGCs that formally amend the Treaty every so often. More obscure but no less important, activities in the informal sphere of the EU have tended to be either unknown or taken for granted. LI cannot account for the vicissitudes of informal accord haggling, despite Moravcsik's contention that although his emphasis lies elsewhere LI is applicable to everyday EU decision‐making.19 Thus, on both the demand side and the supply side of integration LI is unable to take informal interorganizational dynamics into account: the preferences of EU organizational actors on the demand side, and informal agreements on the supply side.
Another contender involves Multilevel Governance (MLG) and other contributions to the Governance approach. MLG is best depicted as a valuable attempt to describe the EU accurately as the proto‐political polity that it is. Less a theory and more a complex metaphor, its principal proponents Gary Marks and Liesbet Hooghe have spearheaded what has been termed the “governance turn” in European integration literature.20 MLG and its successors have expanded our understanding of the EU with such important insights as the existence of overlapping competencies among multiple levels of governments and interaction of political actors across those levels.
Nonetheless, MLG overstates the degree to which the EU has become a political system not unlike traditional nation‐states. Moreover, three other deficiencies mark the approach: not a full‐fledged theory, it neither generates tight, testable hypotheses nor offers propositions that account for why and how sovereignty is transferred; moreover, while it casts the EU as a recently developed pattern of politics, it suffers from the fact that a great many Member State decisions are responsible for this; and most pertinent to informal interorganizational dynamics, it does not depict this putative polity as one governed by constitutional rules dictating the allotment and use of specific powers.
(p.12) Governance more generally involves a sprawling theoretical approach. It broadly depicts policy‐making arenas as those in which public and private actors engage in intentional regulation of societal relationships and nonhierarchical decision‐making. Some theoretical projects under this rubric are state‐centered, with the state driving the policy‐making process albeit in a network of nonstate actors; whereas others are society‐centered, with nonstate actors driving the process in a network that includes the state as an actor. However, useful though this approach is in conceptual and mapping terms, its potential for explaining political outcomes is rarely attained by its proponents. More often than not, applications of the Governance approach are description dominant, even moving beyond the analytical realm into all things normative such as the pursuit of the “public good.” At times, it takes the EU political system as a given and examines its impact on national political systems; at others, it argues that the EU has become a “regulatory state” akin to national governments, with certain appeals to legitimation questions.21
Supranational Governance theory amounts to a more sophisticated enterprise. Wayne Sandholtz, Neil Fligstein, and Alec Stone Sweet have served up the second installment of the project that first gave birth to the 1998 Sandholtz and Stone Sweet volume, comprising one of the more compelling reformulations of Neofunctionalist theorizing to date.22 In essence, their theory comprises five successive causal steps: Increased transnational exchange begets pressure on EU Member States to create supranational organizations, which in turn begets new rule creation by these actors, which in turn begets political spillover, which in turn begets integration.
Despite how the 2001 volume's contributors both map new empirical ground and challenge conventional perspectives, strengths notwithstanding they suffer from deficiencies that are primarily set in motion by the authors' framing chapter and echoed in the conclusion. First, despite a format apparently designed for empirical chapters to test hypotheses generated by the theory chapter, Sandholtz et al. tend to downgrade the theoretical element of their enterprise. Unlike their previous volume, which proffers a fairly rigorous causal argument with testable hypotheses, its successor does not measure up.
Even though the theoretical approach of the second volume comes right out of the first, the authors do not so much as explain the “institutionalization” process as describe it, albeit in a compelling manner. Whereas the first (p.13) line of argument in the previous volume sets out a plausible theory of the demand for supranational rules—although the authors apparently have yet to acknowledge their intellectual debt to Walter Mattli's work as they now have with Ernst Haas's—they import the more dubious second line of argument to act as the theoretical crux for the follow‐up volume. In doing so, however, the authors recoil from sound theorizing, preferring instead to “focus on” institutionalization—the creation of behavior constraining rules—rather than explain it. As such, their vaunted argument has to be ferreted out of a dense thicket of institutionalist discussion.
Moreover, without some sort of theoretical test, the claims cannot be evaluated. In order to distinguish their argument from the LI arguments they enthusiastically reject in the conclusion, the authors need to furnish something that demonstrates that the outcomes they observe cannot be explained by their nemesis. In particular, by not paying close attention to the actor sources of many of the new rules, this volume fails to recognize that amending treaties, Council common positions, and comitology committee decisions are often the sources of new rules. As such, a rigorous test should comprise two basic hurdles: Do the new rules have sources other than the Council and the Member States, and does the content of the new rules do anything other than reinforce the status quo? By contrast my own book employs a test of this type, seeking to ascertain when and whether new rules are integrative.
The Achilles heel of this work involves the argument itself. To begin with, the proposition that existing rules motivate supranational actors not only to exploit them but also to create new rules of their own accord—and expand their organizational capacity in the process—amounts to a tautology: institutions ⇒ institutions. While it is accurate that organizational actors other than the Council do indeed exploit the opportunities of status quo constellations of rules, they do not do so in a vacuum; instead, they compete and bargain with a Council that vigorously defends its prerogatives. The primary problem with this Neofunctionalist argument is that it fails to theorize the quotidian strategic interaction of the primary EU actors and demonstrate how the Commission and particularly the Parliament are occasionally able to pressure the Council to accede to their preferences. In sum, while Sandholtz et al. commendably theorize the demand for new institutions, they largely fail to explain why and when those institutions will be successfully supplied.
Mark Pollack has written the standard‐setting principal–agent (P/A) theoretical contribution to EU studies, which along with his rational institutionalist followers together comprise something of the new institutionalist (p.14) state of the art in this field.23 Pollack argues that the autonomy of the Commission varies across EU policy areas as a function of Member States control mechanisms' efficacy and their need for expert information and credible commitments (I review his book more thoroughly in Chapter 2).
Joseph Jupille's account of EU policy‐making continues the rationalist surge in EU studies.24 His original examination of what he terms “procedural politics” on the part of the Three is compelling. Jupille analyzes strategic interaction in EU policy‐making from an interesting angle, namely that of competition among the Three under conditions of policy issue jurisdictional ambiguity. Under such conditions—when a policy proposal coming down the pipeline does not fit unambiguously with a particular Treaty‐based policy‐making procedure—any of the Three can maximize their policy impact by hunting for opportunities to frame the proposal in such a way that it will get designated to adhere to a procedure that most advantages that actor. Jupille's book unlike this book is not a study of the politics of institutional change, at least as this term is traditionally understood; instead, he focuses on a designating or framing competition among the Three in an exogenous context of prevailing rules.
Jupille's account is methodologically sophisticated, incorporating both qualitative and quantitative methods and thus augmenting the convincing nature of his argument. However, his analysis necessarily leaves out a sizable swath of policy‐making instances in the EU: He only examines instances of ambiguity over policy definitions that are indicated by legal disputes in the ECJ among the Three over the appropriate policy‐making procedure to be designated for a given policy proposal. Moreover, Jupille's own statistical analysis results are weak for his hypothesis that “procedural politics” affects institutional change. Nonetheless, he provides a convincing account of a salient slice of EU policy‐making outcomes.
Jonas Tallberg carries the rational institutionalist torch farther in his important study of the critical role played by the holder of the rotating EU Presidency in policy outcomes.25 He argues that the Member State in the Council's driver seat possesses critical informational and procedural advantages in their interaction with other Member States, thereby allowing them to achieve more of their own policy preferences than their counterparts'. With these power resources in hand, the Presidency occupant is able to overcome the Council's internal collective action problems and other (p.15) bargaining impediments so as to significantly impact the outcome of EU policy negotiations. At first glance, it would appear this work lends support to Intergovernmentalist claims.
But what about others among the Three? While in his case studies Tallberg acknowledges the existence of the obvious roles played by the Parliament and Commission in EU policy‐making outcomes, his analysis of the cases diminishes the overall importance of the roles the Council's counterparts play in these very outcomes. Tallberg can thus be accused of subordinating the inter‐actor game at the next political level up to his privileged intra‐actor game that exclusively involves the Council. This exclusive emphasis on a particular unit of analysis amounts to a fundamental deficiency in the explanation namely failing to examine the game in which the intra‐Council game is nested and thereby leading to a major lacuna in his findings. Without examining the Council's strategic interaction with the Parliament and Commission, a comprehensive explanation of policy outcomes is lacking.
Fabio Franchino's tour de force involves a rational institutionalist account of delegation in the EU sphere not of policy‐making but instead of policy implementation.26 Franchino asserts not only that comitology outcomes can be systematically explained, but furthermore that comitology committee selection has an impact on subsequent policy outcomes. He specifically argues that different aspects of the executive authority regularly delegated to the Commission are explained by political and institutional factors including the degree of conflict among Member States, voting rules in the Council, the degree of conflict between the Council and the Commission, complexity of the policy area, and the occasional role played by the Parliament.
Franchino relies on the principal–agent theory P/A model to demonstrate that these causal factors account for decisions to delegate implementing powers to the Commission as well as the choice of comitology procedure, motivated chiefly by the Council's preference for credible commitment devices and policy‐making efficiency. Combining qualitative and quantitative methods involving data spanning five decades, Franchino successfully builds on a trove of recent comitology studies—including his own—to demonstrate that while most EU policies are implemented by national administrations, the exceptions to this rule are explained largely by vicissitudes in (p.16) Council dynamics. However, the Parliament has continued to make inroads in the comitology sphere, as it won a significant new power from the Council in the form of an informal accord as Franchino's book was going to press.
Rational choice institutionalist studies of the EU have proliferated in recent years, a welcome development in the literature as indicated by this series of book‐length studies. Formal modeling approaches in the rationalist vein have also come late to EU and regionalism studies, but a more robust series of debates have grown up around them. In terms of the EU, most of this work centers either on modeling the power relationships among the EU's organizational actors—the power index approach—or modeling the agenda‐setting powers of the Council, the Commission, and the Parliament.
Based on cooperative game theory, power index models not only model the voting power of actors, but also actors' ability to achieve their aims. In EU studies, they have been used to model the power of the different Member States within the Council or different political groups, that is, parties within the Parliament.27 However, this approach has proved deficient due to score normalization and misspecification problems, failure to incorporate nested games at other political levels, and a lack of dynamism in the explanatory models rendering them exercises in description rather than explanation.
Spatial modeling based on noncooperative game theory is superior to the power index approach, largely because the strategic nature of competition is modeled both within and between EU organizational actors. Yet, it is nonetheless problematic when special care is not taken with regard to microfoundations, assumptions, specifications, etc. Garrett and Tsebelis have been prolific with their attempts at modeling the agenda‐setting of EU organization actors.28 However, despite numerous publications and updated models, their efforts have largely proved somewhat deficient.29
Primarily due to overly literal interpretations of the EU's formal rules, Garrett and Tsebelis have doggedly stuck to their well‐known argument, namely that outcomes under the codecision procedure are less integrationist than those under the cooperation procedure (now defunct). Not only does this model‐based argument fly in the face of mountains of empirical evidence—the Parliament is near indisputably better off under (p.17) codecision—but it further suffers from misspecification not only of informal rules that bind the organizational actors, but also the formal rules themselves. The authors have failed to account for the fact that agenda‐setting power does not shift to the Council during the final conciliation stage of the procedure. Moreover, they have underestimated the degree to which the Parliament prefers improved policy‐making powers over specific policy outcomes, that is, they have misspecified the Parliament's choice function.
Despite Garrett and Tsebelis's sustained attempt to eke out a degree of traction for their original argument (2001), the evidence still demonstrates that even under the rather rare set of circumstances in which the Council is capable of putting the Parliament in a “take it or leave it position,” invariably the Council exhibits some degree of movement toward the Parliament's ideal point—namely because the Parliament consistently links issues across individual policy or power games, resorting to political sanctions whenever the Council seeks to deviate from established equilibria (see Chapter 3). Garrett and Tsebelis would be on safer ground, if they were to relax their single round of play assumption and specify their model in accordance with the gains achieved by the Parliament in the sphere of informal bargaining beyond the scope of the formal treaty.
Challenging these formal and rational institutionalist accounts, a menagerie of ideational and constructivist accounts have abounded in the field. While a considerable swathe of constructivist studies share the chief deficiency of network analysis studies—being exercises more in description than explanation—some recent ideational arguments stand out.30 Craig Parsons offers up a compelling carefully researched account primarily of the early phases of European integration that centers largely on domestic debates among French elites and nonetheless exercises a significant impact on EEC and European Community (EC) outcomes.31 Working with a trio of ideational causal models, Parsons is able to account for both the success and failure of a series of highly salient outcomes all the way up to the Maastricht Treaty. Moreover, he is particularly skilled at demonstrating how ideas get engaged in battles among the Three, leading them to redefine their interests. The only limitations relate to some minor ill‐fitting empirics, absence (p.18) of any account of how other government elites interacted with their French counterparts, and questions about the generalizability of the argument.
Historically speaking, Nicolas Jabko's work in the ideational vein practically picks up where Parsons's left off and bears a strong resemblance to Kate McNamara's important work.32 Jabko aims to explain the relaunch of European integration in the late 1980s, depicting the Commission as a catalytic agent of change that procured the support of Member States for its single market goal by framing it in politically strategic ways. Jabko underpins his argument with constructivist theory, that is, “strategic contructivism” in which ideas are used instrumentally. In his view, the content of certain ideas matters less than the degree to which they are rationally exploited to accomplish an actor's specific aims, thereby making it a more rationalist, utilitarian account than he is willing to venture.
Once Jabko extracts the causal force from the market idea—and it becomes a mere rhetorical vessel that is varied as dictated by an intentionally purposive actor relying on a shrewd, overtly political strategy—then his theoretical project ventures outside the constructivist realm. According to Jabko's evidence, the identity and values of business and government leaders are not altered; rather, they are effectively duped by being persuaded that these unchanged interests will be served by offering their support for the Commission's suggested course of action. This strategic, goal‐oriented action by Jaque Delors et al. is more redolent of rational institutionalism than the sociological institutionalism connoted by constructivism. Moreover, the timing of this absorbing and compelling account is ironic.
Perhaps Jabko's approach could be applied to how Member States attempted to play the role of catalytic actors, exploiting political language and duping their publics to believe that the seemingly doomed Lisbon Treaty was changed not just symbolically but also substantively.
Institutional change in the EU
Explanations of institutional change in Europe, including the phenomenon of European integration itself, tend to skim the surface of EU activities. Confined largely to national–supranational conflict and the ins and outs of individual policy areas, as indicated above scholarly studies generally fail to (p.19) uproot an important if somewhat obscured level of political activity in the EU.33 While most studies focus principally on the formal sphere of European integration, they pay scant attention to the informal sphere: the activities of policy‐making actors that are not subject to ECJ oversight and occur on a level parallel to but separate from the EU's formal Treaty‐based level (including the customs, routines, and various ad hoc procedural rules that often complement, and occasionally contradict, but never officially constitute the formal sphere).34
This book focuses on a prominent instance of what happens when political systems lack constitutional settlements. Unlike the US Congress, where the incidence of institutional change of even an informal sort is somewhat rare, informal dynamics in the EU are rampant despite long‐standing constitutional settlements in virtually all of its Member States. The considerable array of formal and informal rules in the EU can be nothing short of dizzying, thereby making this political arena an apt area for institutionalists to ply their trade. Precisely because the EU lacks a constitutional settlement, actors are motivated to press for advantage not only to achieve their policy aims but also to reallocate political power.35 The phenomenon institutional change is thus prevalent in the EU, an ideal laboratory for inquiring into the conditions under which we can expect both institutional change.
While the book aims to explain the causes of rule‐creating activity in the EU's informal sphere, it further seeks to determine whether or not this activity gives rise to any additional integration of the EU's Member States. That it may well lead to such an outcome lends credence to the importance of such an inquiry. Nonetheless, it is necessary to map some important segments of the EU terrain which hitherto have been hidden from view. The informal activity of the Three connotes a tension between prescription and convention in the EU, an incongruity between what is supposed to happen according to law and what actually happens in practice.
The critical components of this increasingly salient EU sphere are informal accords, that is, ad hoc agreements negotiated by the Three that have no (p.20) legal base or third‐party enforcer. Informal accords are political bargains comprised of one or more informal institutions or rules. Because they are intentionally created and bargained over, they are distinct from informal conventions: unintended rules derived from evolutionary patterns emerging from repeated actor interactions over time.36 They are also different from norms—rules encompassing standards of appropriate behavior—which many in the literature mistakenly refer to as informal institutions or conventions.37
Sometimes serving to reinforce to the formal sphere, at other times to modify it, informal accords constitute the crux of the EU's “informal interorganizational dynamics.” To reiterate, if political competition can be conceived as a game, then the Three as organizational actors constitute the players and institutions constitute the rules of the game (as opposed to being actors themselves). These dynamics do not have a unidirectional causal effect, for either the Council or its weaker counterparts may be the beneficiary of reallocated powers stemming from informal accords.
Informal accords range from agreements by the Commission to inform the Parliament about its policy‐making proposals early on, to agreements between the Council and Parliament to amend the formal budget‐making process rather substantially. Of note, none of the rules comprising informal accords had their genesis in IGCs. For example, based on a 2001 Exchange of Letters—one of a whole range of labels given to informal accords in the EU—the Commission made several commitments to the Parliament regarding the EU's nonstandard policy‐making procedure for financial securities‐related legislation. These included new informal rules involving a variety of commitments, from informing the Parliament in advance of all specific legislative proposals in the securities field to sending draft legislative proposals that are at an advanced stage at the same time as they are sent to industry and Member State officials.
As is evident, the Commission does not transfer new policy‐making powers to the Parliament in this particular accord. Typical of numerous informal accords the new rules here allow the Parliament to hold its counterpart more accountable, thereby augmenting its influence if not its power. On the other hand, certain informal accords may do nothing more than fill (p.21) in the gaps in the Treaty after it is formally amended by the Member States. As will be discussed in considerable detail below, the bundles of rules comprising informal accords range across a continuum from those that transfer sovereign powers between actors to those whose rules are inert in integration terms and merely fill a gap in the Treaty. Naturally, pressure from one actor on another to negotiate an accord may come to nothing, for the causal conditions at a specific juncture may allow such attempts to be rebuffed (in which case the reversion point remains the status quo).
This book asks the following fundamental question: Given the long‐standing antipathy toward the surrender of national sovereignty in Western European societies, even where “pro‐European” sentiment subsists, why do the most powerful actors in the EU allow any supranational creation of new institutional rules whose effects they cannot keep under their general control? Indeed, there is a significant assortment of rules generated in the EU—laws, procedures, and policies—that not only seem to run contrary to Member State interests prima facie, but are also actively opposed by most Member State governments. To create informal rules of this nature, the Three must cooperate; but such cooperation is paradoxical in light of the wide disparities among them, in terms of both power and preferences. Moreover, if there is no legal third‐party enforcer for what are technically nonlegal rules, why do the Three abide by them? A puzzle thus emerges.
If continued bargaining over informal accords by the Three were capable of altering the formal status quo and therein accelerate EU integration, it would seem strange for Member States through the Council to agree to them. This is the primary paradox. After all, the majority of the world's most developed nation‐states are located in the EU, which features the top tier of former imperial powers. That the Member States would bestow any legitimacy on the informal sphere is odd, when conceivably they could confine any considerations of additional sovereignty transfers to the formal sphere where they have long functioned as the collective dictatress of European integration.
In this sense, the puzzle at the heart of this project is nearly synonymous with the enduring puzzle of the combined field of International Organization, Regionalism, and European integration: Why do powerful sovereign political entities relinquish sovereignty beyond their being violently coerced? This book's principal aims are first to make a general theoretical contribution by exhuming a previously obscured mechanism for institutional change, and second to explain specifically what accounts for why EU Member States brook any political activity in a sphere over which (p.22) they do not exercise comprehensive control. Any potential transfer of policy‐making power in the absence of a formal treaty basis demands an explanation.
A mapping of the EU's informal sphere is therefore necessary. Although a substantial portion of the EU integration outcome can be accounted for by formal EU treaty settlements, there remains a not insignificant proportion for which they cannot account. What is more, treaty contents may not be what they appear to be, for a given formal institution may not exist in its original form. Indeed, possibility turns into plausibility when one considers that a sizable number of formal treaty provisions bear more than a passing resemblance to older informal rules.
Prima facie evidence that certain formal institutions are mere reincarnations of previously extant informal institutions necessitates an examination of not only the precise numbers, but also the recursive causal process by which the informal is transformed into the formal. With verifiable evidence in hand, an adjustment in contemporary theoretical debates may be called for. The reigning theoretical contenders would be forced to grapple with the finding that seemingly new formal Treaty provisions may in fact amount to little more than an acknowledgment of a given political bargain previously arrived at in the EU's informal sphere. A further finding that certain informal institutions may not only contradict but perhaps even take practical precedence over certain formal institutions, that is, actors abiding by the informal, could make an important contribution to ongoing debates.
Parsing informal accords
Informal accords originally arose from a fairly standard scenario. When Member State governments agree to a new or amending EU treaty, they inevitably create a number of policy gray areas, as treaty language tends to specify the ends the signatories have in mind but not always the means; even the ends can be vague. Each time the Member States strike a grand bargain in the form of a treaty, they create a relatively hollow skeletal structure onto which the Three must graft the flesh and muscle of policy‐making specifications.
If policy‐making is to function adequately, that is, with at least a modicum of efficiency, then the structural gaps left after intergovernmental bargaining must be filled in relatively rapid fashion, preferably during (p.23) a treaty's implementation phase. Without being fleshed out, treaty provisions fail to work as intended and the policy‐making process becomes congested. Similarly, a treaty provision may be problematic or unworkable, in which case the Three must rectify the problem. Thus, treaties normally require not only being fleshed out, but fixed as well.
These two tasks are left to the Three which, at some point after a treaty is ratified, undertake in accordance with its provisions to establish the rules which will henceforth govern the minutiae of their interaction in the policy‐making process. The Three thereby enter into varying modes of informal negotiation. In areas of EU activity where an amending treaty's language is unambiguous and the institutional configurations are acceptable to each of the actors, a rubber stamp mode of interorganizational negotiation ensues. By contrast, in areas where either the treaty language is ambiguous or the institutional configurations are not acceptable to one or more of the Three, a more contentious mode of informal negotiation ensues which goes beyond gap‐filling.38
Informal accords also stem from a scenario, separate from treaty negotiation or implementation, in which one or more of the Three simply desire a change in the institutional framework, that is, more power. Such conditions can entice a disgruntled actor to engage in a “power‐bid” strategy. The Three may very well interpret the Treaty provisions concerning a certain aspect of interorganizational relations the same way; however, one or more of them may not be satisfied with the status quo the Treaty sets out. After all, Member State principals do not give their supranational agents seats around the formal negotiating table.
If an actor becomes dissatisfied with the formally prescribed division of power or the structure of the institutional framework, it can seek to change it in one of two ways: by trying to influence the negotiations of the next formal bargaining session involving an amending treaty or by seeking to alter the division of power through informal accords. If no formal negotiations are in process or if access to these discussions is denied, a reform‐minded actor is likely to opt for strategies in the EU's informal sphere.
Typically, under the second scenario the Parliament will indicate to the Council that it wishes to initiate negotiations over an informal accord of a specific nature. The Council normally responds in one of three ways: by rejecting the Parliament's informal influence attempt outright; by agreeing to discuss different options with the Parliament by setting up contacts at (p.24) different levels; or by agreeing to enter into informal negotiations with the aim of brokering a deal. The deals made and bargains struck, when the first response is not in effect, take the form of informal accords.
Whereas in the 1970s and 1980s most informal accords were created in the process of a conscious effort by the Three to fill the gaps in new amending treaties, in the 1990s and 2000s this trend has shifted. In contrast, recent evidence indicates the lion share of newly created accords result from informal influence attempts by the weakest among the Three, the Parliament. Being a more powerful overall actor than it was during the early 1980s, though maintaining consistent preferences, the Parliament is better placed to bargain with the Council and Commission. It also finds greater opportunities to try to pressure its counterparts to engage in informal bargaining; this is due to the more frequent contact in the policy‐making process among the Three, a factor not only of the Parliament's increased powers but also of the greater frequency of legislation being churned out of the EU's policy‐making machine.
An important effect of informal accords is to restrict the freedom of action of the Three, to channel it along specific contours. These constraint‐like contours may either be consistent with or divergent from the contours laid down by formal institutions. Thus, depending on what type of institutions they embody, the effect of informal accords is to support, refine, interpret, extend, and/or even alter formal treaty‐based institutions. By serving these functions, their frequent effect is to render the policy‐making process more operable and efficient, greasing the gears of the EU's policy‐making machinery. More important still, different types of informal institutions engender different degrees of constraint. Therefore, the type of informal accord matters.
Informal accords range from simple, tacit bargains between a handful of EU officials at one end of the spectrum, to quasi‐formal arrangements between the Three at the other end; it is a sizable continuum (Figure 1.1). They appear in four different types: basic, standard, procedural, and substantive. With a rather low level of formality, basic accords tend not to appear in written form, except perhaps in the Parliament's internal Rules of Procedure. The total number of basic accords is unknown, for by their nature they are rather esoteric and possibly completely unknown outside the narrow policy circles in which they are used. Despite the difficulty of tracking them all down, they are routinely adhered to as if at some stage they had in fact been officially codified by the Three. But there is no (p.25)
Basic accords represent something akin to so‐called gentlemen's agreements, made with the shake of a hand and the wink of an eye.40 Depending on the circumstances, all that may be required for their creation is an individual official from one organizational actor proposing a minor procedural change to an official in one of the other Three. If the other official agrees to the change, the status quo is henceforth altered as a new informal rule of conduct is established, and altered expectations of behavioral standards come into play. For example, an understanding between a Directorate General (DG) I Commission official and an official on the Parliament's Committee for External Economic Relations that, every time the Council informally requests the Commission to introduce new trade‐related legislation, the former would alert the latter by telephone, would qualify as a basic accord.41
With regard to relations among the Three basic accords are of little consequence, as even the Parliament gives little credence to them. The procedural changes they encompass are so marginal that no organizational leverage can be gained from them, that is, they are of such minor significance that they do not allow any actor to accrue influence at another's expense. Most of them involve few rules and rules that serve merely to codify the spirit of extant rules, formal or informal.
Of somewhat greater consequence are standard accords, informal accords which fall closer to the center on the (in)formality continuum. Standard accords are more widely known than basic accords, though their role is confined to fleshing out unworkable treaty provisions and filling in gaps of amending treaties. For example, the Treaty's stipulations pertaining to the old cooperation procedure were vague with regard to the timing of one of its key elements. In response to the need to resolve the Treaty's failure to (p.26) establish the precise point at which the Parliament's three‐month period to take action on the Council's common position actually began, after ratification of the SEA the Three met informally and determined that this juncture would be designated by the day on which the Parliament receives copies of the common position in all nine working languages.42
Effectively, a typically mundane standard accord does little more than establish a legislative rule or two for the purpose of filling in an obvious gap in the Treaty text: No powers or privileges are in any way altered or transferred. However, without this particular accord the Three would have been unable to agree when the clock starts ticking, as the Parliament and the Council would jockey to interpret the Treaty in a manner detrimental to the other. But with this standard accord in place conflicting interpretations of the former Article 189c were avoided, and the cooperation procedure ran more smoothly than it otherwise would have.43
Procedural accords represent the third type of informal accord. These accords fall to the right of center on the informality continuum. They involve more substantial changes in the rules governing interorganizational relations than either basic or standard accords. Instead of filling in gaps in amending treaties, procedural accords adjust and enhance already existing rules. Whereas standard accords create new rules—albeit entirely in keeping with the spirit of the related treaty provisions—procedural accords not only create new rules but often alter long‐standing rules. Moreover, they do so in a manner that frequently serves to violate the spirit of the Treaty, that is, they organize interorganizational relations contrary to the Treaty's prescription.
Although technically correct, “violate” is perhaps too strong a term. The departures from prescription which take place as a result of procedural accords are slight, so much so that while it is clear which organization benefits from them, it is often difficult to ascertain to what degree the non‐benefiting actors are aggrieved by them. The rules contained in this type of accords tend to allow weaker actors to hold their stronger counterparts more accountable, as opposed to granting them new powers to exercise clear policy‐making power over them.
A classic example of a procedural accord is the 1964 Luns Procedure, the origin of which was a letter from the Council's President in Office (p.27) (then Dutch Foreign Minister Joseph Luns) to the Parliament, which communicated the Council's willingness to hold a discussion with the Parliament prior to the opening of negotiations for Association Agreements with non‐EU countries, as well as a pledge to keep the Parliament informed of the developments throughout the negotiation. This is accomplished by an appearance of the Council's President in Office before the relevant parliamentary committees for the purpose of briefing them, confidentially, on the results of the negotiation.
There was no Treaty‐based precedent for such an agreement; rather, the Parliament had for some time pressured the Council for additional information about negotiations with other governments. In 1964, the Council acceded to the Parliament's entreaties by agreeing to this accord. Typical of procedural accords, the Luns Procedure modifies the policy‐making process with regard to the negotiation of external agreements in a manner unforeseen by the Treaty. The effect is in no way radical, but it does place the Parliament in a better position to influence the negotiations of Association Agreements. One would be hard pressed to demonstrate how either of the other Three explicitly “loses” in any significant way, but by the same token the Parliament has clearly gained by being in a better position to exercise influence over the Council and the Commission, and in certain cases it has done so.
In the 1990s, the Three began referring to the fourth type of informal accords—substantive accords—as “interinstitutional agreements.” Interinstitutional agreements (IIAs) represent a quasi‐formal type of informal bargain which, although more formal than the accords described above, continue to be negotiated and implemented entirely separate from either the Treaty or the EU's policy‐making process. Because of their more substantive and prescriptive nature, the weaker among the Three tend to be better off as a result of this type of informal accord. IIAs have the greatest potential of the four for rearranging the status quo institutional framework.
IIAs are more consequential than the three other types of informal accords for a variety of reasons: They have a discernible political effect due to the political commitments they encompass; they deal with more substantive matters than the other informal accords; they are given considerable credence by the organizational actors; they involve specific negotiations between the Three; they attract the attention of both the press and national parliaments; and they appear in written form and are published in the Official Journal (OJ), the EU counterpart to the Congressional Record.
Thus, all told there exists a wide continuum of informal accords, ranging from the highly esoteric basic accords at one end and the quasi‐formal IIAs at the other. This book focuses primarily on the role of IIAs, for by their (p.28) nature they are more likely to have a greater impact on the changing nature of interorganizational relations. Unlike substantive accords, basic and procedural accords rarely involve rules changes of an integrative nature, that is, which serve to alter interorganizational relations in a substantial way. Standard accords involve substantive change, but not to the degree that IIAs do.
The past twenty years have provided ample evidence that IIAs have become permanent fixtures on the EU landscape.44 Beyond any doubt they have become a viable option when the Three contemplate making changes in the policy‐making process. In fact, with the advent of three amending treaties since 1992, the Parliament's increased array of formal powers has only fueled its appetite for further informal accords. The reason is not only that new treaties offer more formal treaty provisions for the Parliament to “sink its teeth into,” but also because the frequency of changes in the institutional framework in which the Three interact simply feeds the integration appetite of less‐powerful actors. As the Parliament's appetite remains far from satiated, its activity continues to defy the conventional wisdom that the more formal powers it receives in amending treaties, the less active it will need to be informally.45
In fact, in the mid‐1990s, the Three brokered six new IIAs—far more in such a short period than had ever been previously agreed. As the Member States chose not to grant the Parliament all the new formal powers it had lobbied for in the run‐up to the Maastricht Treaty, in the words of one official, “Maastricht wasn't enough.”46 The Parliament was not content to wait several years for the next IGC, especially given expectations at the time that the 1996 IGC (for the Amsterdam Treaty) might drag on for up to three years. The informal sphere was the obvious option for making further inroads.
Given their newfound legitimacy in the eyes of the Three, there is ample reason to believe that informal accords will continue to be opted for, if not always as mechanisms to flesh out treaties than as alternatives to treaty amendments when they prove too onerous for the Member States to negotiate and/or ratify.47 Right up to and throughout the mid‐2000s, IIAs and other informal accords have been bargained over and concluded by the Three (and further accords are in the pipeline).48
[T]reaty‐based inter‐institutional relations have been fleshed out by a large number of [informal] agreements with disparate scope and potentially far‐reaching consequences. Though their exact legal and constitutional status remains unclear, most have resulted in generally‐respected conventions, and many of these have proved important to the working of the Community's legislative procedures, particularly in the budgetary field and in facilitating the implementation of the Single European Act.49
He goes on to declare “it is clear that the adoption of inter‐institutional agreements [IIAs] has become an indispensable element, a sort of constitutional glue, used to fill in and flesh out the bare framework provided by the inter‐governmental conferences.”50 As evidenced by the increasing formality of IIA type informal accords and the increasing rate at which they are negotiated—the increased pace has remained in evidence after the Amsterdam and Nice treaties—this institutional mechanism has gained substantial legitimacy in the eyes of the Three, the Council included.
Aside from their occasional affect of redistributing power among the Three, another strong indicator of the significance of IIAs and informal accords in general is how often and to what extent the rule‐based procedures they encompass are subsequently transferred to the formal sphere. This occurs when they are formally incorporated in an amending treaty, effectively a formalization or “sweeping up” process. The Maastricht Treaty was the first to formalize a large number of informal accords. All of them were originally informal institutions generated by informal accords that had been used extensively prior to being “swept up” in the amending treaty and transformed into formal laws. Thus in each case the Maastricht, Amsterdam, and Nice treaties effectively enshrined already existing practices, rules that were already in place and routinely adhered to.51 In other words, as structural channels these rules did not change; however, their legitimacy increased dramatically as they were given greater stature and a definitive legal base. Whereas their legitimacy became based on the Treaty, previously it had been based largely on either unilateral Council declarations or the Parliament's internal Rules of Procedure.
A telling example of informal accord‐based rules, procedures, and other precedents being swept up in amending treaties involves the EU's (p.30) procedure for handling petitions from EU citizens. Neither the Treaty of Rome nor the SEA contained any provisions for petitions. Rather, their inception came with informal practices initiated in the 1950s by the Parliament, on the basis of its Rules of Procedure. The Commission began assisting the Parliament in this regard, and over the next couple of decades an informal procedure for handling petitions evolved. By the 1980s, it had become part of the quotidian governance of the EU, and in 1989 the Three brokered the Petitions IIA. Having imbued the procedure with additional legitimacy the Three rapidly became satisfied with this institutional equilibrium, which paved the way for incorporation in drafts of Maastricht. Then in 1991, it was formally swept up in the final text of the Maastricht Treaty itself. Why did the Council allow this? Although the Council would not have initiated this reform on its own, it found the informal procedure workable, not harmful in any way and in full keeping with democratic norms.52
Thus, contrary to the theory Intergovernmentalism and its assertion that the content of amending treaties is derived almost exclusively from Member State preferences, the origins—and at times the impetus—of many changes in the EU's fluid constitutional regime are informal accords. As the empirical record appears to indicate, interregnum integration in‐between formal treaty‐making may well be rife. A substantial number of the Treaty's provisions have informal accords as their sole source. The EU appears to have returned to a mode of regular treaty revision, thus continual institutional reform is taking place in the formal sphere which has the effect of greatly facilitating the sweeping up process by providing more opportunities for it to take place.53
A guide to the rest
The rest of the book is organized as follows: Chapter 2 encompasses the theoretical framework, followed by a full‐fledged description of informal accords in Chapter 3. Chapter 4 parses informal accords further by examining actor strategies and their legal implications vis‐à‐vis such accords; this chapter functions as the beginning of the book's empirical section through an overview of public opinion evidence. The full‐fledged empirical chapters comprise Chapters 5, 6, and 7, with the first of these illuminating the (p.31) Three's strategic interaction by examining noteworthy failed attempts to negotiate informal accords. Whereas Chapter 6 examines informal accords in the budgetary sphere, Chapter 7 reviews all those that are non‐budgetary in nature. The Conclusion in Chapter 8 presents the empirical findings, constructs a taxonomy of informal accords, graphs their impact, reviews the institutionalist model that underpins the book's argument, and charts the course from here.
Do informal interorganizational dynamics matter? I argue that dynamics in the EU's informal sphere do indeed engender a significant amount of integration. The evidence I will present in the ensuing chapters supports a view, contrary to conventional wisdom and a considerable body of regional integration theory, that informal accords have altered the de facto structure of the EU and accelerated the integration of Europe's proto‐polity in the process—beyond a mere reinforcement of the formal status quo to the point of constitutional reengineering. Far from being epiphenomenal, I aver that informal strategic interaction of the Three exercises clear causal force over the nature and scope of European integration. As such, the shadowy informal sphere of supranational EU activity must be viewed in a new light.
(1) EU official, interview by the author, European Commission, Brussels, July 4, 2007.
(2) EU official, interview by the author, European Parliament, Brussels, July 6, 2007.
(3) EU official, interview by the author, European Commission, Brussels, July 4, 2007.
(4) For exemplars of the structure‐induced equilibrium approach that treats institutions as exogenous, see Shepsle (1979) and North (1990); for exemplars of the rationalist approach that threats them as endogenous, see Schotter (1981) and Calvert (1995).
(5) See Moravcsik (1998). Note that the reference is to primary law and the sources of EU treaties, as opposed to secondary legislation and the policy sphere in which the Commission and Parliament are formally involved (for all policies made according to the EU's codecision procedure, the Parliament and Council are coequals).
(8) Whereas the Political Science literature is all but silent about the role of informal accords in European integration, the Legal literature has recently produced a small spate of interesting work that does take the EU's informal sphere seriously; however, their being exercises in classification and significance highlighting, these studies do not feature causal explanations that meet customary social science standards. See Monar (1994), Driessen (2007, 2008), Eiselt et al. (2007), Hummer (2007), Keitz and Maurer (2007), and Puntscher Riekmann (2007).
(9) Despite something of a resurgence, in recent years practically any argument challenging Intergovernmentalism has had the “Neofunctionalist” label applied to it, often neglecting the actual propositions of Neofunctionalism. Leon Lindberg inter alia has cautioned scholars of European integration to avoid this blurring of theoretical clarity: Acceptance speech, European University Studies Association, seventh biennial conference, Madison, Wisconsin, June 1, 2001.
(12) The EEC was formed in 1957 and formally became the European Community (EC) in 1972.
(13) The acquis communautaire is the EU term for all the formal rules of the EU, comprising everything from the primary law of treaty provisions to the secondary law of policy‐making results and the rulings of the ECJ. Informal accords and their rules are not considered a part of the acquis.
(17) IGCs comprise the Member States' traditional formal treaty negotiating sessions (now supplemented by the European Convention).
(26) Franchino (2007). See inter alia Joerges and Neyer (1997), Heritier (1999), Hix (2000), Meunier (2000), Kelemen (2002), Ballmann et al. (2002), Franchino (2002, 2004), Hug (2003), and Jun (2003).
(30) Nonetheless, an array of constructivist accounts are noteworthy: DiMaggio and Powell (1991), Jachtenfuchs et al. (1998), Caporaso (1996), Checkel (1999, 2001), Diez (1999), Christiansen et al. (2001), Jupille et al. (2003), Risse (2004), and Diez Medrano (2006).
(33) The terms “European Union,” “European Community,” and “Community” will be used interchangeably throughout; in addition, the term “Treaty” shall refer to the Treaty establishing the EEC as amended by the SEA to become the Treaty establishing the European Community, which was further amended by the Maastricht Treaty on EU, the Amsterdam Treaty, and the Nice Treaty.
(35) EU official, interview by the author, European Commission, Brussels, July 9, 2007.
(36) Weber (1978: 34) defined a convention as “that part of custom…which is recognized as ‘binding’ and protected against violation by sanctions of disapproval.” Informal accords are more akin to a special kind of convention namely constitutional conventions. These too are unintentional; however, once established any breach thereof will necessarily invite retaliation in the form of political sanctions.
(38) EU official, interview by the author, European Parliament, Brussels, July 5, 2007.
(39) EU official, interview by the author, European Commission, Brussels, July 4, 2007.
(40) This insensitive term remains the term of choice in EU circles.
(41) A DG is one of the Commission's bureaucratic agencies; DG I is the external (i.e., foreign) relations DG more recently known as RELEX.
(42) There are currently twenty‐three working languages of the EU, though there are only three common or ‘procedural’ languages: English, French, and German.
(43) Despite a smooth appearance to the outsider, from time to time disagreement over when to start “the clock ticking” have re‐erupted; however, the interorganizational Neunreither Group has handled them sufficiently so as to avoid escalations of conflict in each case.
(44) EU official, interview by the author, European Commission, Brussels, July 7, 2007.
(45) EU official, interview by the author, European Parliament, Brussels, July 31, 1996.
(46) EU official, interview by the author, European Parliament, Brussels, July 10, 2007.
(47) EU official, interview by the author, European Commission, Brussels, August 1, 1996.
(48) EU official, interview by the author, European Parliament, Brussels, July 11, 2007.
(51) EU official, interview by the author, European Parliament, Brussels, May 1, 2003.
(52) EU official, interview by the author, Council of Ministers, Brussels, August 1, 1996.
(53) EU official, interview by the author, European Commission, Brussels, July 5, 2007.