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Introduction: The EU's Decision Traps and their Exits: A Concept for Comparative Analysis

Gerda Falkner

in The EU's Decision Traps: Comparing Policies

The introductory chapter outlines the conceptual tools used throughout the volume. It presents, in brief, the original model of the joint-decision trap and the developments that ensued after its ... More

The introductory chapter outlines the conceptual tools used throughout the volume. It presents, in brief, the original model of the joint-decision trap and the developments that ensued after its conception. It extends the realm of the debate by highlighting further forms of EU decision traps, working outside the joint-decision mode under the Community method, such as in intergovernmental negotiations or supranational-hierarchical decisions. As a basis for the subsequent cross-policy study, various mechanisms to exit decision traps or to countervail their effects are discussed in depth. The chapter concludes by highlighting the overall importance of such analyses for European integration theory and outlining the research design and the chapter arrangement of the book.Less

Financial Market Regulation: A ‘Lamfalussy Exit’ from the Joint-Decision Trap

Zdenek Kudrna

in The EU's Decision Traps: Comparing Policies

The joint-decision trap complicates the adoption of financial market regulations in the EU. This chapter examines the capacity of the Lamfalussy procedure to provide an exit from the trap by ... More

The joint-decision trap complicates the adoption of financial market regulations in the EU. This chapter examines the capacity of the Lamfalussy procedure to provide an exit from the trap by supporting complex, yet consistently enforceable, technical compromises. The member states' preferences over key regulatory measures remain divided and tend to split them into two equally sized policy coalitions. In the case of the 1993 Investment Services Directive, the contested compromises proved too ambiguous to be enforced consistently across the EU. In 2001, the EU introduced the Lamfalussy procedure that delegated certain rule-making and monitoring powers to technocratic committees. As a result, the recent regulations, such as the 2004 Market in Financial Instruments Directive, are based on more complex technical compromises that are expensive to implement but can be monitored and enforced consistently, thus supporting EU regulatory integration.Less

Promoting Policy Dynamism: The Pathways Interlinking Neo-functionalism and Intergovernmentalism

Gerda Falkner

in Constructing a Policy-Making State?: Policy Dynamics in the EU

The EU’s founding fathers had the protection of the EU’s constituent units as a key concern and set up significant hurdles to policy innovation in the absence of unanimous governmental agreement. ... More

The EU’s founding fathers had the protection of the EU’s constituent units as a key concern and set up significant hurdles to policy innovation in the absence of unanimous governmental agreement. Over time, these institutional design features were somewhat eroded but not removed. Nonetheless, the problem of how to innovate has, at times, been overcome through eclectic means. There are indeed some well known and quite visible practices as well as some less expected and more obscure strategies that have propelled the EU’s policy system beyond what has for a long time been expected from a situation of ‘joint-decision trap’. This chapter argues that there are two strategic moves the European Commission and, at times, other actors such as the European Court of Justice can use to actively overcome member state opposition: first, sidelining some or even all national governments; and, second, manipulating relevant policy preferences. These two basic strategies can be seen to interconnect the diverging basic assumptions of intergovernmentalism and classic neofunctionalism as ‘passerelles’.Less

Mind the Gap! The Implications of Comitology and the Open Method of Coordination for National Parliaments

Gavin Barrett

in National Parliaments after the Lisbon Treaty and the Euro Crisis: Resilience or Resignation?

This chapter considers some of the less well-known methods of EU decision-making, namely, comitology and the Open Method of Coordination (OMC). It examines the ways in which decision-making in these ... More

This chapter considers some of the less well-known methods of EU decision-making, namely, comitology and the Open Method of Coordination (OMC). It examines the ways in which decision-making in these ‘non-standard’ fields differ from decision-making in the traditional ‘Community’ system, and the implications such differences have for national parliaments’ approach to accountability. It advances two hypotheses. The first is the high probability of strong similarities emerging between, on the one hand, the development of Member State parliaments' perspective regarding such non-standard methods of integration and, on the other hand, the evolution of the approaches of national parliaments towards the traditional ‘Community’ system. The second hypothesis is that earlier Member States’ choices regarding their parliaments' European role should be reviewed and, if necessary, adapted in the light of the proliferation of decision-making methods at EU level, so as to avoid any risk of an appropriate role for national parliaments being circumvented.Less

A Social Policy for the European Union

Dorte Sindbjerg Martinsen

in An Ever More Powerful Court?: The Political Constraints of Legal Integration in the European Union

The chapter presents the achievements, dynamics, and challenges of EU social policy. It examines the dynamics of EU social integration, distinguishing between negative and positive integration, and ... More

The chapter presents the achievements, dynamics, and challenges of EU social policy. It examines the dynamics of EU social integration, distinguishing between negative and positive integration, and the open methods of coordination. The chapter sets out the development of EU social policies, including healthcare, despite a weak Treaty mandate and political contestation. After thus presenting the policy area, it analyses the extent to which and conditions under which judicial decisions influence EU social policy outputs. Judicial influence is analysed over time. All social and healthcare proposals, and major amendments, adopted between 1957 and 2014 are compiled and analysed. Variation on judicial influence is identified and the association between key factors, such as time and political disagreements, and the likelihood of political codification of jurisprudence, are examined. The analysis uses qualitative examinations of three decision-making processes leading to different types of judicial influence: codifying, modifying, and overriding the CJEU case law.Less

The Legislative Procedures

Koen Lenaerts, Piet Van Nuffel, and Tim Corthaut

in EU Constitutional Law

This chapter highlights decision-making in the European Union which leads to the adoption of legislative acts. The Lisbon Treaty introduced a clear distinction between legislative and other acts of ... More

This chapter highlights decision-making in the European Union which leads to the adoption of legislative acts. The Lisbon Treaty introduced a clear distinction between legislative and other acts of the Union with the aim of making decision-making at Union level more democratic and transparent. The Treaties now unambiguously use the term 'legislative act' for acts based on a provision of the Treaties and adopted pursuant to a legislative procedure, i.e. under the 'ordinary legislative procedure' or, in specific cases, under a 'special legislative procedure'. The qualification of acts to be adopted as 'legislative acts' has direct consequences for the operation of the institutions, the scrutiny exercised by national parliaments of respect for the principle of subsidiarity, the possibility of delegating powers to the Commission, and judicial review. The EU Constitution had proposed to go one step further and distinguish between legal instruments to be used for legislative acts and non-legislative acts respectively: legislative acts would take the form of a 'European law', or a 'European framework law'. For non-legislative action, institutions were to use a 'European regulation' or a 'European decision'.Less

Non-EU Legal Instruments (EFSF, ESM, AND Fiscal Compact)

Francesco Martucci

in The EU Law of Economic and Monetary Union

‘Another Legal Monster?’ That was the question asked by the Law Department of the European University Institute on 16 February 2012 in a debate about the Treaty on Stability, Coordination and ... More

‘Another Legal Monster?’ That was the question asked by the Law Department of the European University Institute on 16 February 2012 in a debate about the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), also known as the Fiscal Compact Treaty. On 2 March 2012, twenty-five Member States of the European Union minus the United Kingdom and the Czech Republic signed the TSCG. A month before, on 2 February 2012, the euro area Member States signed the Treaty Establishing the European Stability Mechanism (ESM Treaty), another legal monster. In both cases, the monstrosity lies in the fact that Member States have preferred to conclude an international treaty, rather than to use the European Union (EU) institutional system. Why did the European Commission not propose a legislative act to establish a financial assistance mechanism in the Eurozone and strengthen the fiscal discipline in the EU? Does this mean the end of community method and a victory for the intergovernmental method? As Herman Van Rompuy commented about the crisis; ‘often the choice is not between the community method and the intergovernmental method, but between a co-ordinated European position and nothing at all’. In 2010, Angela Merkel defended her vision of a new ‘Union Method’ in a speech held at the College of Europe. This approach can be defined by the following description: ‘co-ordinated action in a spirit of solidarity–each of us in the area for which we are responsible but all working towards the same goal’. Each of us means the European institutions and Member States. The new ‘Euro-international’ treaties (or inter se treaties) raise a number of questions regarding their compatibility with EU law, implications for the Union legal system, institutional balance, national sovereignty and democratic accountability. These questions are all the more important because international treaties raise a number of questions on their compatibility with EU law, implications for the Union legal system and institutional balance. Less

Economic Policy Coordination: Foundations, Structures, and Objectives

Jean-Paul Keppenne

in The EU Law of Economic and Monetary Union

The Treaty on European Union (TEU) provides, in its Article 3(4), that ‘[t]he Union shall establish an economic and monetary union whose currency is the euro’. This Economic Monetary Union (EMU) ... More

The Treaty on European Union (TEU) provides, in its Article 3(4), that ‘[t]he Union shall establish an economic and monetary union whose currency is the euro’. This Economic Monetary Union (EMU) finds its origin in the Treaty of Maastricht of 7 February 1992. As part of this EMU, the core provisions framing the economic policy coordination of the Union are included in the Treaty on the Functioning of the European Union (TFEU) amongst the other internal Union policies. Consequently, the so-called ‘Community method’ fully applies in this field. Less

Consultation in daily practice: An in-depth analysis

Christine Quittkat

in De-Mystification of Participatory Democracy: EU-Governance and Civil Society

Drawing from a comprehensive data base, this chapter offers a longitudinal analysis of those policy fields which are especially of interest for a broad range of civil societal actors (Social Affairs ... More

Drawing from a comprehensive data base, this chapter offers a longitudinal analysis of those policy fields which are especially of interest for a broad range of civil societal actors (Social Affairs and Inclusion; Health and Consumers). It investigates which consultation instruments are used, which groups are reached with different consultation instruments, and if biased and unbalanced consultation of specific groups is discernible. It is shown that in the beginning of the policy process, civil society is more involved in online consultations, as there is a low threshold of participation. In the later stages of the policy process, however, stakeholder and expert involvement is dominant. In terms of the participative quality, the analysis shows that despite an extension of consultation instruments, this has not alleviated or eradicated imbalances in the participation of different actors.Less

The Relationships between the Institutional Actors

Koen Lenaerts, Piet Van Nuffel, and Tim Corthaut

in EU Constitutional Law

This chapter studies the main principles governing the relationships between the European Union's institutional actors. The European Union constitutes a level of government in its own right: ... More

This chapter studies the main principles governing the relationships between the European Union's institutional actors. The European Union constitutes a level of government in its own right: institutions of the Union draw up legislation which has to be implemented and complied with within the Member States. For the sound functioning of the Union, it is important to have clear rules on the normative relationship between acts adopted at Union level, on the one hand, and national law, on the other. From a political point of view, it is equally important to adequately organize the way in which the various interests existing both within the Member States and across borders are being reconciled through the interplay of the actors involved in Union decision-making. In this connection, attention should be paid to the specific interests which are structurally embodied in the various institutions of the Union and to the balance between institutions required by the Treaties.Less

The Implementation of Union Legislation

Koen Lenaerts, Piet Van Nuffel, and Tim Corthaut

in EU Constitutional Law

This chapter explains decision-making in the European Union for the purpose of implementing legislation. It looks at implementation by the Member States and implementation by Union institutions, ... More

This chapter explains decision-making in the European Union for the purpose of implementing legislation. It looks at implementation by the Member States and implementation by Union institutions, bodies, offices, or agencies. The Treaties did not set up a uniform system for the implementation of Union legislation: where necessary, each act determines its implementation procedures itself; where the act in question does not do so, the principle applies that 'Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union'. Since the Lisbon Treaty, the Treaties state that Member States are to adopt 'all measures of national law necessary to implement legally binding Union acts'. Accordingly, Union law is implemented as a rule by administration communautaire indirecte. Whether a legislative act provides for implementation at Union level or leaves implementation entirely to the Member States, the enforcement of the rules of Union law and the imposition of sanctions for breaches thereof fall primarily to the national administrative and judicial authorities. The Commission is empowered to conduct administrative inquiries itself and to fine individuals only very exceptionally.Less

Article 322 TFEU

Bernd-Roland Killmann

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

Article 279 EC The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Court of Auditors, shall adopt by means of ... More

Article 279 EC The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Court of Auditors, shall adopt by means of regulations: Less

Article 314 TFEU

Bernd-Roland Killmann

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

Article 272(2) to (10) EC The European Parliament and the Council, acting in accordance with a special legislative procedure, shall establish the Union’s annual budget in accordance with the ... More

Article 272(2) to (10) EC The European Parliament and the Council, acting in accordance with a special legislative procedure, shall establish the Union’s annual budget in accordance with the following provisions. Less

Article 312 TFEU

Bernd-Roland Killmann

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

The ToL introduced Article 312 TFEU in order to incorporate the MFF into the Treaties. Previously, multiannual financial planning resulted from an interinstitutional agreement.