Who is deciding in the EU?: The growing role of EU`s institutional

Who is deciding in the EU?:
The growing role of EU’s institutional culture and informal
procedures in decision-making
Sercan Gidisoglu
PhD Candidate, Bogazici University, Turkey
Political Science and International Relations Departement
Paper prepared for the Fifth Pan-European Conference on EU Politics,
Porto, Portugal, 23-26 June 2010.
Work in progress – Please do not quote without permission of the author –
[email protected]
Who is deciding in the EU? The growing role of EU’s institutional culture and informal procedures_Gidisoglu
Who is deciding in the EU?:
The growing role of EU’s institutional culture and informal procedures in
decision-making 1
Sercan Gidisoglu2
Abstract
This paper intends to examine the specific role of EU’s institutional
culture as well as the impact of informal procedures in decision-making
in the Council. Thus, it will attempt to describe the particular informal
mechanisms within the context of the specific institutional decisionmaking culture and to discuss their influence. Unlike some rationalist
hypotheses that rely on formal procedures and favor solely national
positioning of Member States and their bilateral bargaining as the main
decision-making mechanism, this paper argues that informal negotiation
mechanisms became a determining actor (at least as important as
classical bilateral negotiations) and thus a constructivist approach might
help us better understand their important impact on EU decisionmaking. Finally, it might be argued that the most important role of EU
institutions as well as informal norms and procedures in decision-making
consists on constructing the rules and the play garden of the decisionmaking game.
Keywords
EU decision-making, EU institutions, Informal procedures, Power relations, Constructivism
1
th
This paper is prepared to be presented in the Fifth Pan-European Conference on EU Politics, the 24 of June,
2010, in Porto, Portugal.
2
PhD Candidate, Bogazici University, Istanbul, Turkey
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Who is deciding in the EU? The growing role of EU’s institutional culture and informal procedures_Gidisoglu
Introduction
This study constitutes a small part of a larger doctoral research project that aims to
understand the particular role of EU institutions and informal procedures in EU decision-making,
notably in the field of enlargement. This paper however intends to discuss the specific role of EU’s
institutional culture as well as the impact of informal procedures in decision-making in the Council.
Thus, it will attempt to describe the particular informal mechanisms within the European Council
such as ‘consensus, isolation, intra-institutional negotiations, issues linkages, cross-bargaining,
reiterated games, trust issue, etc…’ and to discuss their influence on decision-making.
Explaining how the EU institutions exercise in practice their formal role of decision-making is
very important for understanding EU politics. Meanwhile, the mechanisms through which they play
their formal role constitute the content of informal power relations and inter-institutional
procedures. In other words, what is finally perceived as formal decisions is constructed through
informal procedures and power relations. Therefore, in order to understand formal procedures it is
necessary to look at informal relations. In addition, there is a relation of mutual construction
between these informal procedures and EU’s institutional decision-making culture. In other words,
informal norms produce, and are mutually produced by, institutional decision-making culture in the
EU. That is why this study focuses specifically on informal procedures and mechanisms as well as
institutional policy-making culture at the same time. These informal practices are numerous and as
they are produced by continual informal relations there is not a formal list of all possible informal
procedures affecting the decision-making. Rather, they can be better identified and understood in
the context in which they occur. Therefore, it will be aimed in this study to conceptualize some
important informal norms and practices. In that sense, a tiny contribution is hoped to emerge from
this effort.
However, this paper presents some important contextual limitations. First of all, it should be
noted that this is not an empirical article which aims to prove its arguments with empirical evidences
issued through an original research – either a case study or a quantitative analysis – and gathered
data. Rather, it can be perceived as a descriptive and interpretative attempt to speculate a
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theoretical discussion about the EU decision-making and to demonstrate the importance of informal
procedures with examples from secondary sources in EU decision-making literature. Without denying
the central place of empirical research, the importance of theory (Wolin, 1969; Evans et al., 1996)
and conceptualization (Sartori, 1970) is well recognized in social sciences. Conceptualization is thus
undeniably an important part of the scientific inquiry; finding the right theoretical framework and
describing rightly the concepts that will make subject of one’s research is crucial for arriving at
reliable conclusions. It should also be reminded that this paper emanates from only a very small part
of a larger doctoral research project and the author will certainly try, in the future, to further
demonstrate the arguments mentioned in this paper with reliable empirical evidences.
Unlike some rationalist hypotheses that rely on formal procedures and favor solely national
positioning of Member States and their bilateral bargaining as the main decision-making mechanism,
this paper argues that informal negotiation mechanisms became a determining actor (at least as
important as classical bilateral negotiations) and thus a constructivist approach might help us better
understand their important impact on EU decision-making. Therefore, in the first part, a theoretical
discussion about how to frame the study of EU decision-making will be resumed. Afterward,
particular informal mechanisms affecting the outcome of decisions within the Council will be defined
and finally their possible influences will be discussed within the context of institutional culture
decision-making culture and practices, notably in the Council.
Explaining the EU decision-making: Realism vs. Constructivism
There are mainly two theories explaining the everyday EU decision-making: the first is the
rationalist approach with well-known view of present and given national interests and identities and
its empirical focus on instrumental rationality in determining bargaining outcomes. The formal
attributes of an institutional environment, such as the decision rule, are generally considered more
consequential to outcomes than informal, “soft low” rules and norms or the “style” of decision-
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making (Lewis, 2003b). In the rationalists’ strategic conception of rules, actors employ language and
communication as rhetorical devices to pursue instrumental interests, manipulate incentive
structures via social influence, and so on (Schimmelfenning, 2000). Although institutional
environments have constraining and enabling effects on basic actor behaviors by altering incentives,
the impact of institutions on basic actor properties (attitudes and identities) is considered
epiphenomenal. Existing rationalist theories also claim that ‘ideas are causally epiphenomenal to
more fundamental underlying influences on state behavior’ (Moravcsik, 1999).
The second theory, broadly construed here as constructivist, gives less primacy to
instrumental rationality than in the rationalist image and supplements it with attention to
deliberative and communicative aspects of negotiation such as the role of discourse, persuasion,
collective rationality and what Ruggie (1998; 20-21) called “collective intentionality”. Here, EU
institutions are hypothesized to have “thick’ socializing effects on actors that go beyond instrumental
adaptation and the strategic conception of rules to include the internalization of norms and rules into
the definition of self-interest and its calculation. The constructivist view has two versions; in both
partial and holistic versions, the density of institutional and normative environments are considered
central features of a decision-making “style” and assumed to have independent causal effects on
bargaining outcomes (Lewis, 2003b).
There is a quite important literature especially about the Council, notably its preparatory
bodies; and most of these studies come from the sociological institutionalist perspective or other
constructivist branches. They are very important and significant for explaining the intra and interinstitutional power relations and informal decision-making outcomes together with the impact of
agency, ideational and identity factors for which the rationalist institutionalist perspective have
offered insufficient insights. However, constructivist claims are not either solely enough to
understand the whole picture of EU decision-making, contrarily they are more useful when bridged
with rationalist explanations and used mainly for completing the picture with better explanations
about more recent and proper informal (or sometimes also formal) dynamics of the EU decisionmaking that the classical rationalist approaches (even in their most refined and complicated forms
such as the liberal institutionalism of Moravcsik) suffer to explain.
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Authors like Lewis and Checkel also defend this idea of bridging rationalism and
constructivism. Because constructing European institutions is as Checkel (1999; 545) calls “a multifaced process, with both rationalist and sociological toolkits needed to unpack and understand it”. As
Lewis (2003b) claims neither image alone is capable of capturing the whole picture of the complex
EU decision-making environment and precisely the role of institutions in this process. The rationalist
image captures a great deal of the story with its focus on instrumentalism and strategic conception
of rules but misses a range of process-level dynamics, informal norms, habits, and obligations and
their constitutive effects that the constructivist account deals into. In a fundamental way, the
rationalists underestimate the impact of institutional environments on actors and their identity and
interest formation processes. The constructivist image comes to correct for these gaps and points to
a better understanding of daily EU decision-making. However, Moravcsik (1999) accuses
constructivist writers of not understanding his liberal institutionalist theory as well as other realist
accounts and underestimating their explanatory power simply just by denying realism and not
bothering themselves with honestly challenging realism through empirical validation. At that point,
some important constructivist writers themselves also recognize the necessity of further research in
this area and the need for further and better empirical evidences mainly because of the academically
under exploitation of the research area in EU decision-making and specific role of institutions and
socialization mechanisms.
To conclude this part, it can be argued that rationalist theory, notably in its more
sophisticated forms (like Moravcsik’s Liberal Institutionalism) can be a better theoretical frame to
explain member state behaviors and their domestic policy formation process; and thus still remains
to be prevalent for explaining domestic politics. Nevertheless, the construction and re-construction
of identities, ideas and interests, and consequently, of preferences necessitate that realists
assumptions should be modified, in some cases slightly while in others more fundamentally, by some
correcting claims, especially within the context of European institutions, EU politics and decisionmaking due to the special form of the EU and its decision-making mechanisms. Because in some
circumstances, sometimes in many instances in the EU, ideas and identity or the construction and redefinition of interests by ideational factors become not what Moravcsik called “causally
epiphenomenal” but the main reason and the main explanatory factor behind the output. Notably,
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the main contribution of the constructivist account becomes more visible when dealing with the
impact of informal procedures. Nevertheless, it should also be kept in mind that although rationalchoice theory seems to be less effective when depicting informal norms and procedures as well as
their coming into life, it can be quite useful in analyzing behaviors as well as motivations of agents
when acting under informal rules and procedures.
What role for informal procedures?
Studies on formal decision-making mainly focus on voting powers, Constitutional rules,
intergovernmental conferences, Council decisions, domestic factors, national policy outcomes,
influence of national and international pressure groups, etc. Golub (1999) researches trends in
formal decision-making with an important data set from the period 1974-1995 and suggests that in
1970s the decision-making became increasingly efficient, and majority voting except a few cases was
widely used. However, the ‘Single European Act’ (SEA) broadened the shadow of vote but
encumbered decision-making and then the Maastricht Treaty came to further encumber the
legislative process with the co-decision procedure. He adds that the institutional design is not the
sole cause of growing inefficiency in 90s but there are also strong indications of a growing veto
culture. But he does not give any convincing example or sign of this veto culture.
Contrarily, Heisenberg (2005) suggests that despite the formal change consisting of the
elimination of veto power in SEA, the informal culture of consensus persisted, and that informal
norms of consensus became the primary mode of decision-making in the EU. She also argues that
these informal norms challenge the fundamental assumptions of rationalist institutionalist (RI)
literature because ‘RI scholars look only at the formal institutions’ and mechanisms (Corbett, 2001).
Reh (2009) also underlines the necessity of redirecting analytical attention from formal political
decisions to informal negotiations which represent the real arena where policies and institutional
choices are shaped.
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If informal procedures are assumed to be of such an importance in decision-making, then
they should be specifically defined. We should better know what we are talking about when we say
‘informal procedures or norms, informal mechanisms or practices, etc’. For doing that, all informal
mechanisms should be identified and understood within the context in which these informal
procedures themselves are produced and influence the outcome at the same time; in other words,
the context which produces and is produced by informal relations and institutional decision-making
culture simultaneously. Therefore, there will be a part on ‘consensus and other informal
mechanisms’ followed by discussions about the factors producing and produced by institutional
cultural norms in the Council; namely the daily decision-making in its preparatory bodies (informal
role of agents), its negotiation culture (hard bargaining or problem-solving) as well as its decision
making style (supranationalism or intergovernmentalism), and finally, the socialization effect within
the Council.
Defining informal procedures: Consensus and other informal mechanisms
Eriksen (2006; 21, emphasis in the original) defines consensus as “the result of a process
during which the members have reasoned through their disagreements to such a degree that at least
one party has changed her initial position”. While searching for consensus through bargaining, Reh
(2009) suggests that there are two types of bargaining; (1) thin bargaining aiming to find agreement
by convincing co-negotiators to take a particular course of action, and (2) thick bargaining which
attempts to attain a strong or reasoned consensus on the ‘right course of action’ (Naurin, 2007; 563
in Reh, 2009; 12). Although both share the same procedural elements such as justifications and a
distinct set of speech acts used, only thick arguing has the capacity to initiate a reasoned consensus
because first, procedurally all delegations have been given the opportunity to present their
arguments equally (Reh, 2009) and second, substantively all parts regard the agreement as superior
to their initial positions (Bellamy and Hollis, 1999).
Luxembourg Compromise can be considered as the first major informal norm in EU decisionmaking procedures. Heisenberg (2005) argues that the norm of consensus established by the
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Luxembourg Compromise still prevails in the Council and MS prefer finding consensus rather than
voting. After examining the accomplished legislative acts between 1994 and 2002, she finds that in
2002, same as the overall average, 81 per cent of the decisions were made by consensus. This
number was significantly high with 97 per cent in 2000 which signifies a particularity of that year
rather than a trend of decrease in informal consensus practices. So, one might ask why there is so
much political debate about voting powers if informal consensus is the predominant rule. Heisenberg
responds that MS want to guarantee their formal power in case of a possible break-down in informal
procedures, notably about highly important politics such as enlargement, foreign policy, etc.
Meanwhile, it is certainly undeniable that formal procedures do not disappear entirely or become
totally insignificant in favor of informal norms, they are still important but the main argument is that
informal consensus culture and relevant norms and practices gained a lot of importance and most of
the time are bypassing formal rules, except may be in times of big political crisis where MS might be
more willing to use their veto power instead of compromise. However, some studies demonstrate
that informal norms and institutional practices do play an important role even in times of crisis.
Another finding of Heisenberg (2005) is that the 37 non-consensus acts during this period do
not include major political issues or new programs. This is an important and striking finding as far as
there exists a strong assumption in the prevailing literature stating that low politics can be more
easily handled with consensus whereas considering politically sensitive issues there are strong
changes for non-consensus behaviors among rational actors. As seen from this example, consensus is
the method on major issues. Consensus is not to be confused with unanimity. The major difference
between them can be explained by the fact that under consensus the ‘unhappy’ minority should be
appeased in some way. Thus, a decision on one particular proposal might force, as Sherrington points
out (2000; 67 in Heisenberg, 2005; 79), another decision on another unrelated proposal, due to
package deals or tactical maneuvering by a Member State or the Presidency.
At that point, another informal practice comes to the scene which can be called as ‘issue
linkages’ or ‘cross-bargaining’. Issue-linkage or cross-bargaining both signify the strategy to
negotiate normally separated issues from different policy areas or even from different legal basis
together with a special interest to find compromise, to gain advantages on a specific issue, or to
blame a certain MS because of its uncooperative behavior. Even though the Council is structured
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along functional lines, in practice, issues are linked because they are treated together, especially in
the COREPER because of the particularity of this later to treat a lot of different questions on its
agenda at the same session and simultaneously. Alongside the issue-linkages, the isolation is also a
very important informal mechanism through which MS are forced to do or not to do certain things
during negotiations. Isolation signifies a process in which a particular MS remains alone in defending
one particular position – whether that is more profitable for him or it forces his red lines in foreign
policy – about any given proposal. This particular MS persists in demanding a particular amendment
or not approving a particular decision (final or intermediate). This position is mostly phrased by
representatives in Council groups as “I have a reserve from my capital”. When this reserve is
expressed only by one MS and no other delegation approves it, then it becomes ‘isolated’, and
holding an isolated reserve long time on the table depends, in most cases, on the political weight of
its holder.
This isolation becomes more and more decisive by the time for the reason that no MS is
capable of staying in an isolated position forever because of, besides other political causes, two other
informal mechanisms intervening at that stage, namely the nature of informal negotiations
containing reiterated games in time and trust issue including reputational concerns as well. As
negotiating is an ever-lasting particularity of EU decision-making and there are always almost the
same players on the table (only some new members might join in an enlarged Union, the contrary
case has never happened so far in the history of the EU), the matter of being able to trust each other
becomes central for they will always continue playing the game, at least the main intention of the
game is to make it continue. In such a context, no player can dare having a very bad reputation as the
one that constantly interrupting the game for his own interests. Therefore, if a particular MS, big or
small but especially a big one, holds a strong reserve about one major issue, he might not be easily
able to impose new reserves or impediments about other important issues at the same time or
constantly. Hence, if the decision-making about a particular issue is studied under formal rules,
independently of other issues, and according solely to the preferences of MS acting as rational
actors, the impacts of informal procedures such as the one described above cannot be understood.
In addition, a special emphasis should be granted to informal contacts between the
representatives of the Council, the Commission and the Parliament, which are called in the daily
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working terminology as tripartite meetings and trilogues. There are even less scholar information
about these informal meetings; only Reh (2009) mentions their increasing presence, notably before a
parliamentary committee has debated or voted on a proposal. The author of this paper himself also
participated to such meetings during his employment in the co-decision unit of the Secretariat
General of the Commission. Therefore, it should be noted that the observations about these informal
contacts are mainly provided not by reference to the literature but by personal experience. There is a
slight difference in the terminology concerning ‘tripartite meetings’ and ‘trilogues’. ‘Tripartite
meetings’ signify very informal contacts between representatives from the Presidency (representing
the Council), the Commission (generally one from the responsible DG and in some cases one from
the Secretariat General), and the Parliament (usually the president of the relevant committee),
especially before a proposal is voted or discussed in a parliamentary committee in its first or second
reading in order to find a pre-agreement that could be acceptable by all actors. Meanwhile,
‘trilogues’ gather the same actors; but they constitute a little bit less informal contacts with the
participation of more numerous delegations from each institution, and especially during or just after
the second reading of the Parliament in order to settle the controversial issues for reaching an
agreement without going to the conciliation process3.
As it can be seen from this picture, finding a compromise for not failing in the process is the
major occupation and major mentality of these institutions and their representatives. Sometimes
non-compromise can also be supported – overtly or closely – or tacitly accepted for having the
compromise in a later stage of negotiations where it is assumed more apt. However, the dominant
preoccupation in the mind of technocrats and politicians working in Brussels is the success of the
decision-making procedure over all other concerns. It is proposed here to label this effect as the
informal ‘shadow of compromise’; and it is believed that this informal ‘shadow of compromise’
constitutes a stronger motivation in EU decision-making than the famous formal ‘shadow of vote’. As
there are very few scholar studies showing the importance of these specific mechanisms such as
isolation, issue-linkages, trust issue, reiterated games in time, and the shadow of compromise with
convincing empirical evidences, it is not easy to cite examples. However, some examples can be
3
Conciliation process can emerge only if the formal procedure in question is co-decision.
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found in the works of Jeffrey Lewis. The fact that those issues are scholarly understudied does not
mean that they are out of significance. One reason of this lack of data is the ‘too confidential’
working style of the Council. It is very difficult to know what happens behind the doors; all of the
working documents of the Council are not yet public. Therefore, more research, especially including
in-depth interviews with insiders, are essential.
Reh (2009) proposes that all informal practices in the Council can be found in the prenegotiation phase. In her ongoing research, she tries to demonstrate the role of pre-negotiation in
complex decision-arenas such as the EU. She describes the pre-negotiation as the delegated
preparation phases ‘through which officials, experts, or technocrats “pre-cook” political choice in
multi-level decision-making’ (2009; 5). Pre-negotiation includes five steps; agenda-setting, problemdefinition and framing, causal analysis, template development and discussion, pre-agreement in the
form of compromise or consensus (Reh, 2009; 5-6). Reh also constructs a typology of preagreements: consensus, compromise and finally what she calls ‘Inclusive Agreements’ (IA). She
argues that IAs are only pre-agreements likely to be consistently effective across levels because
whereas consensus is characterized by convergence and compromise by controversy, IA is defined by
inclusiveness and accommodation. It will be accepted for two reasons: first, the underlying process is
distinguished by the logic of non-domination and thus legitimates the outcome; and second, the
outcome itself leaves no gains on the table and accommodates actors’ concerns. An IA will thus be,
according to Reh (2009; 25), “Pareto-efficient and the costs of unraveling will be high”.
It can be argued that what Reh referred as the “pre-cook” has already become the main meal
in the EU. What is left to ministers in the Council is more like putting some spices into the meal and
coloring the dish. But is that the reality in the Council? It is very important to know how much and
what kind of decisions are left (and to what extent) to the ministers because what is left to them
might be left to be decided in a more intergovernmentalist and rationalist era. Therefore, it will be
revealing to examine the informal daily decision-making processes in the Council including the work
of COREPER, working groups as well as Secretariat General and the Presidency of the Council.
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Understanding the impact of institutional cultural norms within the Council
After having briefly described informal procedures and practices, it is necessary to
examine the institutional cultural norms and related informal practices in order to better
understand the impact of these informal and cultural elements on decision-making in the
Council. Concrete impacts of institutional cultural norms as well as informal procedures on
Council’s decision-making mechanism can be mainly perceived through analyzing the
processes that involve Council’s informal and daily way of policy-making, its negotiation
culture, the nature of its decision-making style as well as the effect of socialization into such
an informal institutional culture.
Everyday decision-making; Council and its preparatory bodies
Many important studies about Council and its preparatory bodies, most notably about
COREPER have been undertaken since the beginning of 90s. Some precursor studies were made
before 90s, but they are few in number and offer less significant insights, more of descriptive nature,
yet quite important. Especially COREPER became subject of several important researches (Bostock,
2002, Lewis, Hayes-Renshaw and Wallace, 1997, Peterson, 1995). Almost all agree on some major
specialties of this diplomatic corps. Accordingly, COREPER is not only a preparatory body for
ministers but also in itself a de facto decision-maker, even in some occasions more important than
the Council because of the density of the workload they deal with and about which they formulated
the real decision (which then is only made official by ministers).
COREPER also faces many limitations concerning its real decision-making power; for example,
according to Bostock, COREPER members cannot know in detail every policy issue in the EU, but even
more importantly they are most of the time bound by their instructions of which they cannot always
challenge the legitimacy or propose alternatives (2002; 232). Nonetheless, there are also some
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studies showing examples of situations where COREPER members protested the utility of their
instructions and strive for new policy deals in their home countries and succeeded it. Lewis (2003b)
thus offers such an example with an analysis of the case of ‘the 1994 Local Elections Directive’. The
Belgian delegation during the negotiation of this important and highly politicized Directive persuaded
others initially skeptical about it not only to admit their argumentative rationality but also to ‘go out
on a limb’ to sell the agreement back in their capital.
Members of this corpus share common norms and a specific culture which is based on
special values such as consensus seeking, efficiency and success in decision-making, a logic of
appropriateness rather than a logic of consequences, a sense of ‘dual loyalty’ (Bostock, 2002) that
imposes them a Janus-like responsibility of delivering goods at home and collectively (Lewis, 2000).
This dialectic between self and collective-self creates two anomalous to the intergovernmentalist
perspective: (1) system of instruction and internalization of this dialectic by the capitals, (2) search of
success of the Council as a whole (the effect of what I have labeled ‘the shadow of compromise’).
COREPER members therefore are wearing a Janus-face4 which is caused by “continuous tension
between the home affiliation and the pull of the collective forum” (Hayes-Renshaw and Wallace,
1997).
In addition, the Permanent Representatives have a horizontal view that Salmon (1971, in
Lewis, 1998) labels “Vue d’ensemle” which enables them to see the broader picture in the interests
of their country. This view may include extended time horizon, a more inclusive definition of national
interests by endogenizing linkages to other issue areas. In short, it is a qualitative aspect of collective
decision-making proper to COREPER (Lewis, 1998). COREPER also has its own decision-making style
which has five distinctive features through which a ‘Community Method’ is supposed to be created
(Lewis, 1998, 2000, 2005): diffuse reciprocity, thick trust, mutual responsiveness, a consensus reflex,
and a culture of compromise. The concept of a community method accurately explains the style of
decision-making found in COREPER; and the practices of such a community method develop only
under very dense and exacting levels of interstate co-operation and exchange (Lewis, 2000; 282).
4
This metaphor of the Roman God Janus having two faces is proposed by Lewis (1998).
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Moreover, the structure of the Council and consequently the de-facto delegation of decisionmaking authority to the preparatory bodies render these later also important actors of decisionmaking game; and in reality they deal with the large majority of issues on the agenda in the EU
(different percentages are offered in the literature, but almost all agree that between 75 and 90 per
cent of the agreements are prepared in these stages). Thus, for example Van Schendelen (1996) asks
the following question: “‘The Council Decides’: Does the Council Decide?”. After examining the work
of the Agriculture Council during 20 meetings between 1992-93, for answering he suggests that the
definitive significance of the CEU in decision-making cannot yet be determined; however, his
research data refutes sufficiently the theory based on formal decision-making and treaty law that the
CEU is the deciding institution.
It is not only COREPER but also the Council General Secretariat (CGS) (see. Lewis, 2003a), the
Presidency (Tallberg, 2003), and working groups (Beyers and Dierickx, 1998, Trondal, 2001, 2004)
that play significant roles in the formation of formal decisions. Tallberg (2003) challenges on both
theoretical and empirical grounds the conventional wisdom in the literature which conceives the
Presidency of the Council as a ‘responsabilité sans pouvoir’. Theoretically, he proposes a framework
that expands the notion of influence by depicting three forms of the Presidency’s agenda shaping
power; agenda-setting, agenda-structuring and agenda-exclusion. He also demonstrates on empirical
grounds the strong influence that the Presidency as an institution has the potential to exercise, with
evidences drawn from six consecutive Presidencies in the period 1999-2001 (Germany, Finland,
Portugal, France, Sweden and Belgium). This special agenda-shaping power of the Presidency stems
primarily from informal institutional practices. An excellent example to the influence of Presidencies
(also shortly present in Tallberg) can be found in Bengtsson’s work (2001) in which he explains the
crucial role that the Swedish Presidency played in 2001 Goteborg Summit by pushing the Union to set
out two target dates for the enlargement process.
The Council General Secretariat (CGS), in its turn, has developed over years as a major actor
in producing compromise agreements. Two informal conventions came to reinforce the influence of
the CGS; first one is the fact that CGS gained greater leadership in chairing national coordination
meetings during a MS presidency; second is the growing political authority of the Secretary-General
himself (Lewis, 2003a). Lewis gives the example of the now famous ‘Trumpf-Piris Report’ prepared by
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the then Secretary-General Jurgen Trumpf, which made specific recommendations before the
Eastern enlargement and became the virtual blueprint for the formal conclusions of the 1999 Helsinki
European Council (ibid; 1005). The CGS’s de-facto authority as well as its role of compromise
producer and honest broker is almost entirely informal and largely invisible to the outside world.
Finally, the working groups in the Council are generally studied in relation to their socialization
power. The socialization issue will later be discussed. Having briefly examined the impacts of
preparatory bodies, it is more appropriate now to have a look at the particular negotiation culture
present in Council structures.
Negotiation Culture: Hard bargaining or problem-solving
May be the most important issue in the literature about the negotiation culture in the EU,
notably inside the Council is the question of the nature of bargaining. The debate on negotiation
culture has an explanatory power for the reason that according to rationalist explanations in IR,
formal rules of negotiation privilege hard-bargaining attitudes with a view to defend national
interests. Consequently, problem-solving is not the main consideration; conversely, informal
procedures entail problem-solving approach in order to find a compromise compatible with the
common interest. The predominant rationalist literature offers an image of hard-bargaining, notably
in the Council, between self-interested and utility maximizing actors according to their instrumental,
strategic interest calculation and relative power positions – and generally reflecting lowest common
denominator. Meanwhile, the problem-solving approach privileges factors such as common culture
of collective decision-making, diffuse reciprocity, mutual trust, membership effect, informal codes of
conduct, psychological effect of working together for long time, etc. It thus suggests that all those
factors provide actors with a problem-solving approach that facilitates decision-making. Lewis – with
an extensive research based mainly on in-depth interviews with COREPER members and in many
articles that he produced by the help of the data set that he gathered – reveals that the hard
bargaining image of the Council is misleading (1998). Rather exists in the COREPER a culture of
consensus and compromise with an aim of collective decision-making and a special problem-solving
approach which can overcome the pathologies of ‘joint decision trap’ (Scharpf, 1988).
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A more extensive work about the differences between these two approaches and their
existence in the EU is produced by Elgstrom and Jonsson (2000). Their most important conclusion is
that both aspects of negotiation exist, side by side, in the EU, and which one will prevail in any given
circumstances (if one becomes more dominant) depends on contextual factors. They number five
different contextual factors that they extracted from the literature for analyzing the influence of both
bargaining and problem-solving attitudes, namely; decision-making rule, level of politicization, stage
in the decision-making process, type of policy and network characteristics. Using these five
contextual factors they conclude that problem-solving has become the major mode of negotiation in
non-politicized, regulative and distributive issues areas, and especially in the agenda-setting and
implementation phases of the processes; whereas bargaining is still prevalent in redistributive and
constituent issue areas, where high levels of politicization make protection of national self-interests a
major goal. Nevertheless, they also point out to a trend of problem-solving approach towards gaining
strength since mid-80s in the EU. It became thus the predominant approach as a result of social
learning processes and environmental pressures. In this way, “the EU is changing itself into a
problem-solving apparatus” (2000; 701). Problem-solving approach develops hand to hand with the
consensus culture.
Decision making style: supranationalism vs. intergovernmentalism
The discussion about decision-making style in the Council, whether it be more of a
intergovernmentalist or supranationalist nature, is also very important in the sense that the
rationalist accounts give primacy to intergovernmentalism as a mode of behavior and decisionmaking, notably in the Council whereas constructivists tent to grant a more important role to
supranational spirit within the institutional culture of the Council and its decision-making style.
Nevertheless, constructivists do not ignore the intergovernmentalist attitude and accept that it
dominates in some major areas, but remind that supranationalism is also a strong element playing an
important part in formation of decision-making outcomes.
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It is important to understand with more empirical evidences to what extent
intergovernmentalism and supranationalism co-exist in the EU institutions, (and it should be done
not only for the Council but also and especially for other institutions) and whether one prevails in any
given circumstances. Following rationalist claims, if formal rules prevail in the Council, then it is
expected to find more intergovernmentalist tendencies in Council preparatory bodies because
intergovernmentalist approach, giving possibility to defend national interests more easily not only
during pre-negotiation phases but also during negotiations in different Councils or in the European
Council, can permit agents to reason more in terms of national interests while working on the
preparation of Council positions. Meanwhile, supranationalist viewpoints might encourage agents to
reason rather in terms of common interests of the Council and the EU as a whole.
For example; Lewis (2003a) finds out a dynamic of informal rule construction that has
substantially and qualitatively increased the supranational and collective character of the Council
overtime (2003a; 1012). The Council appears to be combining significant features of an
intergovernmental and supranational design. It is de-jure intergovernmentalist in inspiration and
formal design, but de-facto has an extensive supranational character acquired through informal
integration (2003a; 1013). COREPER, for instance, creates and reproduces a shared value of
supranationality. There are two concrete manifestations of this; (1) a value in the system itself, in its
success and in maintaining the long-term relations, (2) a value in reaching agreement, collective
problem-solving, and mutual understanding (Lewis, 1998).
While analyzing the communication patterns in Council working groups Beyers and Dierickx
(1998) offer a “spider’s web” model with the institutional actors occupying the center of the web,
immediately curved by three big states (France, Germany and the UK), and the other countries
shaping the periphery. The fact that institutional actors occupy the hub of the web points to a
supranational model. However, the fact that the big states are as well present very close to this hub
weakens the supranational character of the networks.
Despite the growing body of literature on the role of arguments and deliberation in EU
decision-making and its supranational character, there are still many aspects of supranational
governance neglected by the literature. Reh (2009, 7) proposes three examples to this: (1) the multi-
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level character of negotiation and its implications (these are not only ‘intra’ but ‘inter’ levels of
negotiations and vice versa), (2) the phase of delegated decision-making rather than delegated
implementation, and (3) the types of agreements reached as well as their effectiveness.
Socialization within the informal culture of the Council
Socialization in specific EU culture through the transformative and socializing power of
institutions (Trondal, 2001, 2004, 2008, Trondal et al., 2008, Lewis, 2005) purports internalization or
endogenization of new ways of articulating, defending, and representing their self-interests (Lewis,
1998; 484). It can also be added to it; ‘defining their interests’. Socialization involves elements such
as persuasion (a cognitive process involving the change in attitudes about cause and effect in the
absence of overt coercion), social learning, redefinition of interests and identity change. Social norms
in the European level are produced and diffused by the institutions. After examining a good number
of researches about socialization, some conclusions about the outcomes of the socialization process
might be deduced.
First, COREPER members (like other Council bodies) develop most of the time a ‘logic of
appropriateness’ (doing the right thing to do) instead of a ‘logic of consequence’ (doing the most
convenient thing to maximize your gains and satisfy your national interest). Lewis (2005)
demonstrates this prevailing logic among COREPER members by hypothesizing - and then approving
by a case study (1994 local elections directive) - four measures; (1) Non-instrumental self-restraint in
demands and arguments (exp: delegations who drop demands or reservations after failing to
convince the group, especially when the veto threat is existing), (2) self-enforcing adherence to
informal decision-making norms without threats of external sanctioning, (3) empathy and otherregarding behavior not linked to calculative reasoning (exp; ‘self-binding’ or ‘unilateral initiatives with
no expectations of specific reciprocity’ (Wendt, 1999), behaviors like trying to convince the capitals
for accepting the plea or argument of another delegation: this type of practice is generally coded as
‘normative suasion’),and (4) limits on instrumentalism through the legitimization of arguments.
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Who is deciding in the EU? The growing role of EU’s institutional culture and informal procedures_Gidisoglu
Second, socialization effects are assumed to be stronger in Council preparatory bodies
because of the high density of informal contacts and interaction, the common background of their
members, and the high degree of insulation from domestic pressures as well as media and public
opinion5. The socialization factor of COREPER can be described as a mechanism through which
members are socialized into the community method. A ‘social capital’ and ‘thick trust’ are produced
in COREPER through several sources, most important of which are trips, lunches and restricted
sessions (not reported to capitals) (Lewis, 1998).
Trondal (2001 and 2004) also finds similar effects of and explaining factors for socialization in
the EU instances; he conducts his research on Council working groups and Commission expert
committees. From the organization theory perspective, he finds out that national officials attending
Commission expert committees (CEC) tend to evoke an ‘independent expert’ role more strongly than
officials attending Council working groups (CWG). Conversely, officials attending CWGs enact
‘government representative’ roles more strongly than officials participating on CECs. A ‘supranational
agent’ role is less evoked in both groups. However, if the officials spend fairly enough time and
participate intensively to group work, they then start to enact supranational role conceptions more
strongly (2001; 18). In 2004, Trondal confirms that ‘intensive involvement of national officials at EU
arena may represent a trigger to supranationalism’ (2004; 24); and supranational role conceptions
and national sectoral roles may coexist because civil servants are multiple and complex selves with
different roles and action modes.
However, in another study, Trondal et al. (2008) underscore the limits of socialization,
notably on national experts working temporarily in the Commission and propose that any longlasting effect of socialization within EU’s executive machinery of government is largely absent.
Concerning socialization and supranationalism, Egeberg (1999) also supports the argument of
Trondal by stating that regarding national experts in CEC, loyalty shifts may take place but only
marginally, supranational identities among national officials working in the EU are complementary
and secondary identities. However, the main problem concerning these works of Trondal and
Egeberg stems from the fact that they deal in their sample only with second handed or national
5
For a more detailed account on these socialization hypotheses, see. Checkel, 2005.
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Who is deciding in the EU? The growing role of EU’s institutional culture and informal procedures_Gidisoglu
officials which constitute only a very small part of the personnel working in EU instances. In addition,
it is not surprising that they do not make proof of a long-lasting socialization effect of EU institutional
culture because they are not permanently attached to these institutions. Similar researches should
be orientated rather towards permanent officials of the main institutions.
Conclusion
If formal decision-making procedures can be considered as the top of an iceberg because
they signify the outcome perceived at the end of the decision-making process, then informal
mechanisms and procedures should be seen as the remaining part of the iceberg under the sea
because they, in their turn, denote unknown and invisible parts of the decision-making game.
Therefore, it is not easy to define these informal practices very clearly and with specific given
definitions. They can rather be better conceptualized within the context in which they come into life
and are exercised. It is thus attempted in this article to conceptualize some important informal
mechanisms within Council decision-making, namely consensus, isolation, intra-institutional
negotiations, issues linkages, cross-bargaining, reiterated games, trust issue, etc., within the context
of Council’s informal institutional decision-making culture and practices which contribute greatly to
the production and reproduction of these informal mechanisms and norms. The transporting
elements of this informal decision-making culture in the Council comprise the daily decision-making
practices in the preparatory bodies of the Council, the negotiation culture and the decision-making
style. In addition, socialization into these specific institutional cultural elements plays an important
role in the Council. If we take into account the impact of all these informal norms and procedures, it
might be possible to suggest that Member States are not the only actors in this decision-making
game in the Council but there exists an independent informal culture and institutional setting that
favors certain ways of deciding or prohibits certain attitudes.
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Who is deciding in the EU? The growing role of EU’s institutional culture and informal procedures_Gidisoglu
Thus, the most important role of this specific institutional culture in EU decision-making
might be found in their quasi-monopolized ability to put forward the informal rules of the decisionmaking game. They are constructing and framing the field in which the game can be played within
the limits of the possible and acceptable. Thus, they might be considered as defining what is possible.
In practice, the institutions, especially the Council (as the subject of this study), play this role of
‘norm producer’ through many informal procedures and mechanisms such as consensus, isolation,
issue-linkages,
cross-bargaining,
inter-institutional concrete
power
relations,
‘shadow
of
compromise’, role of individual agents and important personalities, as well as many informal cultural
norms such as the socializing effect of institutions, their decision-making style, and negotiation
culture. Although the member states and their preferences might still be considered as the main
sources of decision-making, the game park in which these states play is constructed and limited by
the institutions and their institutional informal culture and relations. If a member state goes out of
the park, it risks greatly being lost in the system.
Unlike some rationalist hypotheses that rely on formal procedures and favor solely national
positioning of Member States and their bilateral bargaining as the main decision-making mechanism
within the Council, this paper argued that the informal negotiation mechanisms produced through
institutional decision-making culture and informal practices became determining factors (at least as
important as classical bilateral negotiations). Thus a constructivist approach might better help us
understand their specific impact on EU decision-making when dealing with informal and cultural
procedures. Nevertheless, bringing together the strongest explanatory claims of both approaches
might be considered as the best way to explain the whole picture of EU decision-making. Overall, the
fact that informal mechanisms have gained great importance might come to invalidate main
rationalist assumptions about decision-making within the Council as well as within the EU as a whole.
However, further research and more evidences are absolutely necessary in order to open the ‘black
box’ of EU decision-making to see what is concretely happening behind the doors in Brussels and
what is the real extent and influence of informal procedures, relations, norms and mechanisms.
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