Dynamics of EU Legislative Decision-­‐
Making – a Review Article By Amy Verdun and the NIAS Themegroup team 1 December 2015 Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS) Meijboomlaan 1 2242 PR Wassenaar 1 Dynamics of EU Legislative Decision-Making – a Review Article Amy Verdun and the NIAS Themegroup team
Abstract:
This review article spells out the state of the literature on the theme of dynamics of
European Union (EU) legislative decision-making. In this review we refer to the term
‘dynamics’ to indicate the process of change from proposal to adoption of legislative acts.
We examine how this process is influenced by various mechanisms that lead to a variety
of speeds and different legislative decision-making outcomes.
Within this literature we examine four aspects of the legislative decision-making
process. The first is the literature that focuses on decision-making within the Council.
What influences that process? A second strand that is examined is the role of time. In
particular the time it takes for legislative acts to be adopted and what influences that
timing. Next we look at the literature that examines the differences between the content
of proposals at the outset, the content of the eventually adopted act and what mechanisms
influence that process. Finally there is a strand in the literature that examines the role of
ideology and how it influences outcomes of legislative bargaining.
What we also include under the term ‘dynamics’ of legislative bargaining are the
interactions between the supranational levels but also within supranational institutions
(such as the Council and the European Parliament) insofar as the legislative decisionmaking process is concerned. Furthermore we examine to what extent salience influences
the dynamics of legislative bargaining.
Keywords: Commission, Council, consensus seeking, dynamics, legislative bargaining,
Lisbon, voting
2 1. Introduction
How can we understand the dynamics of legislative bargaining? What factors impact the
process of change from proposal to adoption of legislative acts? What mechanisms lead
to a variety of speeds and different legislative decision-making outcomes? These are
questions that this review article seeks to keep in mind when reviewing various parts of
the literature on European Union (EU) decision making.
In recent years there has been a considerable amount of attention placed on the
legislative decision-making process in the EU. The increased interest herein was in part
due to the changes in the institutional rules of decision-making in the EU that resulted in
increased complexity but also a normalisation of EU in terms of being more of a statelike entity (Kreppel 2012) including an increasing role for the European Parliament (EP)
in the legislative process (Christiansen and Dobbels 2013).
Before the 1986 Single European Act (SEA), entered into force in 1987, the
Council was the main legislative body and decisions were usually taken by unanimity. In
those early years, the voting weights were such that France and the Federal Republic of
Germany would have had almost half of all the votes (in terms of their qualified majority
voting weight) even though voting usually did not take place. After 1987, there was more
opportunity for voting by qualified majority in the Council on legislative proposals,
especially for those related to completing the Single Market, and a restoring of more
formal voting procedures (Golub 1999). During the decade from the SEA to the Treaty of
Amsterdam three new member states joined, which slightly changed the voting weights.
Still there was not even always explicit voting taking place because there usually was
3 ‘consensus’. Hayes-Renshaw, van Aken and Wallace (2006) find that for the period
1998-2004, in those cases where there was explicit voting, in almost half the cases there
was only one member state voting against.
Following the SEA until and including the Treaty of Amsterdam the main actors
were Commission and Council, with the Commission proposing, the Council deciding
and the European Parliament (EP) having mostly only an advisory role. Co-decision had
started in some areas after the entering into force of the 1992 Maastricht Treaty in 1993
and was further expanded with the Treaty of Amsterdam increasing the importance of the
role of the EP (Costello and Thomson 2013). Since the Nice Treaty the rules have
changed importantly: there have been changes in voting weights within the Council that
occurred with the different treaty changes, with Nice and most recently with the Lisbon
treaty. Furthermore, with every treaty change the role of the EP as co-legislator has
become more important and with that the complexity around coming to agreement on
legislative proposals. The provisions in the Lisbon treaty that change the voting rules
have entered into effect on 1 November 2014 and will only be in full force by 31 March
2017 (any member who wishes the old rules to apply may request this until the latter
date). However, even though these rules only come into effect fully in the future, it does
not mean we cannot study what the effect might be, as some scholars have done (see
Thomson, 2013).
Much of the literature focused on the process of decision-making within the
Council: is it a process of seeking consensus? If so, is it consensus in the ‘shadow of the
vote’ Golub (1999)? Do those members with more voting power effectively have veto
power? Do subsystems wield exceptional influence? How does the process of member
4 states influencing each other work? Is it important for the Council that as many members
as possible agree to the final proposal? If so, how does that process work? For instance is
the proposed legislative text amended considerable so as to accommodate a minority? Is
the process delayed in order to buy more time to find a broader basis for agreement?
These are some of the questions raised in the literature regarding the legislative process
within the Council. In recent years research has been done on the interaction between the
Council, the EP and the Commission to reach an agreement on a legislative proposal.
What is the relative influence of the three institutions (Thomson and Hosli 2006)? Finally,
how do other actors play a role in this process?
This review article has as goal to understand what the literature has to say about
what we call the ‘dynamics’ of legislative bargaining? These dynamics include various
mechanisms that influence the legislative act that eventually is adopted. These
mechanisms comprise the interactions within and between Council, EP and Commission.
Are some legislative proposals more salient? How does salience have an impact on the
process of legislative bargaining? What is the role of starting positions and how do
diverse starting positions impact the outcome? These are some of the questions that this
review seeks to find answers to by examining the relevant literature.
The remainder of the review article is structured as follows. The next section
discusses the European integration studies literature that has used the term ‘dynamics’.
Section three concentrates on the scholarly work that looks at decision-making in the
Council. Section four looks at the academic publications that examine the role of time in
the EU legislative process. Section five looks in more detail at the political process. It
looks at the content of proposals and template of the act and how those change during the
5 process of legislative bargaining to facilitate decision-making including the roles of the
various institutions. It also looks at role of interest groups, ideology and politicization.
The penultimate section (section six) explains how this review informs our own project.
The final section concludes.
2. ‘Dynamics’ in the literature
Let us start by examining the work that has used the term ‘dynamics’ prominently in the
literature on European integration. Since the early days of European integration studies
there have been scholars who have focused on what they themselves call the ‘dynamics’
of the process. The first major work that comes to mind that even has ‘dynamics’ in the
title is The Political Dynamics of European Economic Integration by Leon N. Lindberg.
That book used the term ‘dynamics’ to illustrate the process of integration. Lindberg
writes: ‘For the purpose of this study political integration will be defined as a process but
without reference to an endpoint’. (Lindberg 1963: 6). Then he uses ‘dynamics’ in the
context of spill-over: ‘The dynamics of spill-over are dependent upon the fact that
support for any step in integration is the result of a convergence of goals and expectations’
(Lindberg 1963: 10). Here the term ‘dynamics’ is used to describe the broader integration
process.
Another early book, edited by William Wallace (1990) that has ‘dynamics’ in the
title, also focuses on the integration process at large. Produced just before the Maastricht
6 treaty was signed, this book emphasises how integration occurred in the European
Community, with an emphasis on process and interaction. On the legislative bargaining
process Wallace indicated that it was important to realise that since voting was possible,
that even if consensus was more the rule than the exception, that consensus seeking did
take place knowing what would happen if there was a vote (what Golub 1999 later
referred to as ‘in the shadow of the vote’). It led to coalition formation in the preparatory
process. A recent study by Häge (2003) examines through a qualitative study the
coalition-building dynamics he had modelled to explain consensus decision-making in
the Council. He concludes that member states’ negotiators do not wish to be isolated and
marginalised, and thus seek to find blocking minorities. This process typically continues
until all member states are in blocking minorities. Once this equilibrium has occurred,
then in order to adopt the final proposal (that will not be blocked to any potential
blocking minority), one has to accommodate all blocking minorities. Via this dynamic
process ‘consensus emerges endogenously as an unintended by-product of the coalition
building behaviour of negotiators who seek to form blocking minorities’ (Häge 2013:
483).
Stone Sweet and Sandholtz (1997; 1998) identify the dynamics of European
integration as how supranational governance evolves over time. Their focus is more on
the overall process of European integration rather than specifically on the legislative
bargaining process. When they talk about a ‘dynamic’ theory, they focus on change over
time and on unintended consequences. Again, they concentrate on understanding the
integration process more broadly. Similarly a monograph by Derek Beach (2005) offers a
look into the major treaty negotiations zooming in on leadership. Here too the emphasis
7 is on understanding the process of integration with the term dynamics used mainly to
draw attention to interaction and time having an effect on integration as such.
Stacey and Rittberger (2003) examine the dynamics of formal and informal
institutional change by offering a rational choice historical institutionalist approach to
these matters. When they refer to ‘dynamics’ they have in mind the interaction, for
example between the formal decisions (history making integration process), and the
informal agreements made between those big moments. Again their understanding of
‘dynamics’ is interactions that lead to integration and as a process that changes over time.
More recently Bølstad (2014) uses the term to indicate an influence from public opinion
on the legislative decision-making process. He uses the term ‘dynamic representation’ to
indicate the process whereby the outcome of European integration would respond to
public opinion (especially given the so-called ‘democratic deficit’) and whether the EU
may be drifting away from voter preferences from the point of view of what might be
preferences of the public in terms of public opinion (see more details in section five
below).
Thus, the term ‘dynamics’ in European integration literature has been adopted
mostly to indicate the integration process at large. The term usually is employed to refer
to the effects of time, unintended consequences and interaction. Let us now turn to
reviewing the literature that focuses more narrowly on the legislative process.
3. Dynamics in the Council
8 Most of the early literature that examined the legislative process focused on the Council
for the obvious reason that at the time this body was the most important body for
decision-making. Many authors focus on different aspects of the process of coming to a
final agreement, which include mechanisms such as side-payments (compensation given
to a bargaining party that loses from agreeing to a legislative proposal), logrolling (vote
trading), and package deals (issue trading) and the like.
A number of scholars focus on voting power in the Council in cases where
formally the vote would be by qualified majority. For instance Widgrén (1994)
investigated how two rounds of enlargement changed this voting power in the Council.
The focus here was on power indices such as the Shapley-Shubik and the Banzaf indices
that offer insights into finding coalitions that can pass a proposal (if voting were to take
place). Widgrén (1994) and others (such as Hosli 1996) found that there are coalitions
that more typically take place. Some member states have similar preferences or interests.
For instance de Schoutheete (1990) identifies subsystems (for instance the Benelux
countries; the Franco-German axis; and the Mediterranean countries). Widgrén (1994)
investigated whether the Nordic countries, once they joined, formed another subsystem.
Hosli (1996) also investigates the decision-making process in the Council. Again based
on Shapley-Shubik power indices she studies what happens if we assume that there are
voting blocs. She finds that the voting blocs increase their voting power and that the
Franco-German axis, if seen as effectively having a veto power (because empirically it
seemed that very few proposals have been adopted that did not have the support of both
France or Germany), would increase its voting power by quite a bit (double the power
9 that the UK and Italy – even if on paper they would have had equal voting power at the
time.
In recent years similar studies have been done to find out what relative voting
weights look like since the Enlargement that made the EU expand with eight Central and
Eastern European countries (and later two more) and two Mediterranean countries (Hosli,
Mattila and Uriot 2011). These studies also asked what coalitions would make effective
voting blocks and under what circumstances would interdependent states affect each
other (Arregui and Thomson 2014). Research has also been done into whether positions
of member states that are diverging at the outset come closer together and if so under
what conditions. Various scholars (e.g. Tsebelis and Yataganas 2002, König and
Bräuninger 2004, Zimmer, Schneider and Dobbins 2005, König 2008) have theorized that
the divergence of member state positions and the size of the Council of the EU are
important determining factors in the duration of the legislative process. These scholars
suggest that letting into the EU, ten or more new member states, with significantly
divergent views on many EU issue areas, one should expect the legislative decisionmaking process to slow down significantly unless the rules or practices are changed.
A study by Thomson and Hosli (2006) examines what the relative predictive
power is of models that allocate more power to the Council versus the supranational
institutions (Commission and European Parliament). They find that those models that
focus on the bargaining in the Council and what happens in that setting have more
predictive power than those that attribute more power to the EP or the Commission.
10 4. The Dynamics of Time
There has been considerable attention paid to how the legislative process occurs in the
EU by using ‘time’ effectively. Various scholars have demonstrated how time is utilised
to delay a decision. If there is insufficient support there has been a tendency to postpone a
vote so that possibly a larger basis can be found to support the proposal before having the
formal vote. Time has also been used to speed things up. The EU has a regulated time
schedule for meetings. This rhythm also works as a disciplining factor to force a decision
in case of a deadlock. The formal process foresees in having a number of readings. The
effects of time on the decision-making process in the EU was studied at length by Goetz
and others and some findings were published in a special issue of Journal of European
Public Policy (Goetz 2009; Kovats 2009 among others; for more recent work see Goetz
2014). They argue that time features affect the legislative decision-making process in a
number of ways: during crisis times (or under electoral pressures), decisions might be
made too fast for proper responsive and responsible governance. In this most recent work,
Goetz (2014) is mostly critical about ‘short-term political fire fighting’ and worries that
too little consideration is given to the ‘long-term sustainability and time consistency of
policies’.
Goetz and others speak about ‘political time’ which they borrow from Schedler
and Santiso (1998: 5): ‘[t]ime in its manifold manifestations represents a pervasive factor
in political life’, but ‘as a rule, reflections on politics and time have remained
unsystematic, implicit, and disperse, and our theoretical insights, conceptual tools, and
empirical knowledge have remained severely limited’ (Schedler and Santiso 1998: 5
11 quoted in Goetz & Meyer-Sahling 2009: 182). They argue that the sequencing, timetable,
composition of institutions at any given time and procedures affect the process. They
recognise the complexity of assessing the influence of political time because so many
other substantial factors also play a role. Nevertheless they make a plea for a systematic
study of political time.
Goetz and others are not the only ones to argue that time is of the essence in the
legislative decision-making process. Various scholars have examined the co-decision
procedure. They find that although in first instance the co-decision procedure enabled
various institutions to offer their insights in the first, second and third readings, in more
recent years, a process of informal readings has popped up which facilitates having more
often agreement after the first formal reading. Various scholars have found that the
Commission has more difficulties adjusting to this informal procedure than have the
Council or the European Parliament (Fuglsang and Olsen 2009). Rasmussen (2011)
examines what motivates legislators to make a decision fast (i.e., after the first reading in
the co-decision procedure). Contrary to what usually is argued in the literature, she finds
that early conclusion (after one reading) occurs not when rapporteurs push through their
opinion, but rather when there is less bargaining uncertainty. In those circumstances colegislators are more likely to conclude after the first reading, which she attributes
possibly to impatience.
Hansen (2014) examines when there is no agreement after the first reading. She
finds that second and more readings are more often necessary in circumstances that the
Council and EP ideal points are further removed from one another and the higher the
salience is of the issue on the table (Hansen 2014).
12 Costa, Dehousse, and Trakalová (2011) study why there has been a shift towards
faster agreement, that is, why since 2005 (against the logic of people like König 2008)
increasingly more legislative proposals have been agreed to after only a first reading and
whether it frustrates the legislative process. They study the role of the trialogues (the
informal get-together of the Commission, the Council and the EP in advance of the first
formal reading). They find that the institutions have found internal processes to facilitate
agreement. They find that the Council is the ‘winner’ in terms of having its ideal point
represented in the adopted legislative act. Their study suggests that the EP is less
successful at getting its ideal point agreed to, in part due to its lack of experience with
legislative bargaining. Toshkov and Rasmussen (2012) examine whether these first
reading deals are decided faster than other deals. They conclude from their study that
when issues are salient the first reading takes longer than if a non-salient file is concluded
after second or indeed third readings, which suggests that even though there is only one
reading, with more salience more time is taken to conclude a decision.
Thomas König (2007a) and others focus on what they call ‘discontinuity’ in the
EU legislative process. These authors are concerned that the duration of the legislative
process is such that effectively current day representatives commit future representatives
to legislation that they will not be around for once it comes into force. Thus, the next
round of representatives find themselves obliged to implement laws agreed to by the
previous representatives. Given that the EU process of legislative decision-making is
usually so long (König 2007b), this two-stage process is in fact part and parcel of the
process. There are various reasons why this process is so slow in the EU. Adam Chalmers
(2014) finds that the duration of the legislative process is affected (negatively) by public
13 consultation processes, especially regarding cases on which decision-makers have only
limited administrative capacity. Furthermore, the legislative process itself is subject to
different ebbs and flows due to the election cycle. Scholars such as Laszlo Kovats (2009)
have examined the particularities of the European legislative cycle in this regard.
Whereas it has been demonstrated that the national cycle of legislative output in most
liberal democracies is very closely interconnected with the election cycle, the European
cycle works a little differently. Kovats finds that an increase in legislative output
correlates with two the European Parliament dates: the half-time term and end of the
European parliament term (see also Kovats, 2009).
5. The Template of Proposals: Discretion, Salience, Interest Groups and Politicization
When the Commission proposes it does so on the basis of two different types of mandates.
First, it proposes when it is legally obliged to come up with legislation. Second, it
responds to what is a felt need (or a need explicitly instructed by the European Council
for instance, see Thomson 2008). The Commission points to the legal basis for a proposal,
an article in the Treaty, which in turn determines the voting procedures (ordinary
legislative procedure or unanimity for instance). But the Treaty does not always stipulate
the instruments (regulations, directives, decisions – legislative, delegated, or
implementing acts). If the Treaty does not, the institutions choose the instrument.
Before the Commission actually puts forward a proposal it seeks out advice from
various actors. Then, once the proposal is in place, the actual text is what is bargained
over. Typically there could be text that is more of a ‘complete contract’ or more open-
14 ended. Also there could be more delegated to various institutions for final execution or
less.
Paul Schure and Amy Verdun analyse the bargaining process by differentiating
between the policy choices that they bargain over. For instance, by deciding on the
degree of discretion at the application stage (more or less discretion) as well as whether
more or less discretionary power has been delegated to the Commission (or retained by
the Council) this study provides an understanding what may be rationale for different size
member states to have as their default bargaining outcome preference (Schure and
Verdun 2008). All other things equal, large member states prefer open-ended legislation
with the Council retaining discretionary power; medium-sized prefer no discretion; small
member states prefer open-ended legislation and aim for discretion to be delegated to the
Commission.
Franchino (2007) has found that because most EU laws rely on national
bureaucracies for the execution and implementation, EU legislative bodies may decide to
leave more or less of the execution to national or supranational bodies. He finds, for
instance, that when there is disagreement in the Council, some Council ministers seek to
limit national discretion by delegating implementation and execution to the Commission
(something he finds the EP also does). Some of the conciliation takes place in the
conciliation committee (Franchino and Mariotto 2013).
The importance of size of member states has also been identified in the work of
Diana Panke (2011). She highlights how states choose which issue areas to become more
actively involved in, that is which is a salient issue for them. In this way, member states
that would typically have less influence over the final decision, on occasion overcome
15 this potentially weaker position by accumulating expertise in an issue area that is
particularly salient to them, and thus in some cases can wield more influence over the
eventual legislative bargaining outcome through their extensive file-expertise that in a
way enables them to compensate for their more modest bargaining power.
Andreas Wartnjen (2012) has studied the concept of political importance or
‘salience’ more carefully. In his assessment of the term he compares three types of data to
assess how to measure salience empirically. He refers to the term in the following way
‘the more salient an issue [is] to an actor, the more he or she will influence the decision
outcome’ (Warntjen 2012: 169). Warntjen examines salience empirically by using
Thomson’s, DEU dataset, including its salience measure that is elaborated on in Thomson
and Stockman 2006.1 In Warntjen’s study of various empirical measures of salience he
finds that difference emerge (for instance between measuring salience through expert
interviews, by the number of recitals, or the number of issues of a proposals, or coverage
in the media. From this study one can conclude that in those cases that one has access to
interview-based values for the Council, that those are the most valuable. Media attention
or number of readings could give some indication but cannot be used as careful
measurement of the actual salience as held by those around the table during the
bargaining process. However, one looks at the topic, Wartnjen concludes that salience is
of crucial importance to explain the outcomes of the legislative bargaining process.
Dirk Leuffen, Thomas Malang and Sebastian Wörle (2014) have studied more
carefully the phenomenon of ‘salience’ in the particular EU legislative bargaining
process.2 Their study seeks to explain salience through an analysis of the role of interest
1
2
He states that experts received this description: ‘A score of 100 indicates that an issue is of the
They also test their claims on the DEU-II dataset.
16 groups and duration of the member states in the European Union (on the roles of interest
groups see also Roelfsema 2004). Their findings suggest that interest group mobilization
is of importance and that the experience with the political system of the EU (that is, those
that entered in 2004 have less maturity or experience with the EU’s institutional system –
their explanation for low saliences among these late-comers is that it might be that it
takes a certain amount of time to become fully immersed and familiar with the workings
of the EU, which obstructs them from being able to produce high saliences on a broad
range of issues (Leuffen et al. 2014: 628).
Salience could and is also be connect in one way or another connected to political
ideology. Amie Kreppel (2013) studied whether we could consider the Council in its
various formations to be in a way similar to what one would expect from the Council in a
legislature that adopts legislative proposals (similar to that in the national context). She is
careful not to make forceful conclusions about the actual empirical outcomes in all
Council formations. Rather offers a preliminary assessment suggesting that the ongoing
differences in ideological positions of bargainers in the Council across different policy
areas (in combination with the position of that member states’s prime minister), suggests
that there is a ‘real possibility that for at least some policy areas the Council formations
are distributive rather than purely informational in character’. (Kreppel 2013: 1194). The
importance of ideology is also stressed by numerous other studies, even if it is not always
clear how to incorporate it into the analysis on the outcome of the legislative bargaining
process.
Bølstad (2014) emphasizes how decision making in the Council and European
Parliament is influenced by ideology and public opinion. As was mentioned briefly in
17 section 2 above, Bølstad (2014) is mostly concerned with the quality of democracy in the
EU. In his study he considers the relationship between public opinion and public policy
as a possible way to assess this democratic quality. For instance, he finds not too much
support for a ‘European-wide public mood’ towards integration (Bølstad, 2014: 38). The
relationship between public opinion, elite views and those of constituents is a
complicated one. Each may be influencing each other. He finds less evidence for
dynamic representation than perhaps other terms such as consensus building (Bølstad,
2014: 40).
Hooghe and Marks (2009) offer a theory of integration by studying the role of
efficiency, distribution and identity. They argue that in recent years the integration
process has been more politicized (albeit they examine mostly elections and referendums)
thereby making preferences of the general public much more important that before. They
find in particular ‘identity’ to be a crucial factor in shaping contestation in Europe
(Hooghe and Marks 2009: 1). In their assessment an issue becomes politicized not
necessarily because the issue is of intrinsic importance (Hooghe and Marks 2009: 18).
Rather an issue can become a topic of mass politics if and when a political party picks up
the issue. Interest groups are typically more influential in areas where they are ‘by
themselves’. Likewise, they assume that political leaders politicize an issue to capitalize
on it – that is for political gain. Whether they do so can be influenced by the party’s
position on the issue relative to other parties and the electorate; the party’s ideological
reputation and the extent to which the party is divided on the issue (Hooghe and Marks
2009: 19).
18 6. Our contribution
This review article serves as an opening paper in a symposium of four papers that
examine the legislative bargaining process in the European Union from a truly
interdisciplinary perspective. Approaches and tools to understand decision-making can be
found in both the Natural and the Social Sciences, but rarely is knowledge between these
traditions exchanged and are synergies utilized. To explore and forecast decision-making
processes, we apply tools and methods developed in the Natural Sciences, such as
computer modelling and simulations, and apply them to the legislative bargaining process
in the EU. As input we use, for example, information on actor preferences, voting
weights, decision thresholds and institutional rules more generally. We have three papers
that assess different aspects of the process. The group as a whole has worked together on
all three papers but some of the team members have spent more time developing one or
more of the papers.
The paper by Arash Pourebrahimi, Paul Schure, Madeleine O. Hosli, and Jaroslaw
Kantorowicz looks at the phenomenon of consensus formation in the Council. As is well
known, in order for consensus to emerge on any proposal, bargainers of member states
need to move quite a bit from their original positions. There are various reasons why this
might occur. There are few instances where bargainers want to ‘stand out’. Thus, if they
sense that they might be in an outlier position by themselves, they may feel compelled to
join the consensus. Another reason might be that they change their mind on the topic.
They could obtain new information or make a different assessment about the issue based
on the exchange of information and positions in the negotiation process. In this paper the
authors use regression analysis to study the factors predict the inclination of member
states to change their initial positions. In terms of the empirics, they examine the
Decision-Making in the European Union (DEU) datasets which they have supplemented
with additional information. They find that various variables are key in explaining the
move towards a final position that would be far from its initial preference. They find
evidence that relative ‘isolation’ of a member state, certain aspects of salience of the
issue at various institutional levels and differences in initial positions among member
states and the European institutions are able to predict the degree of flexibility in reaching
agreement. They also find that flexibility depends on whether there is time pressure
19 involved in the decision-making process. The 2004 enlargement process has also changed
things. Even after the EU has enlarged to 24 or 27, it appears from the analysis that a
‘culture of consensus’ still characterizes the negotiation dynamics in the Council. Their
results give new insights into the explanatory power of the various theories of EU
decision-making. The paper by Běla Plechanovová looks at the EU legislative bargaining process
by examining the interplay among the legislative actors, looking particularly at the degree
of contestation among and within the legislative institutions, with particular focus the
duration of the constituent periods of the Ordinary legislative procedure (OLP). With the
Lisbon Treaty entering into force, the OLP is now the ‘normal’ procedure of EU law
making. The OLP foresees a role for the three key legislative actors in the EU context:
the Commission, the EP and the Council of the EU. All three of them are highly
interdependent on one another and we may assume therefore that they would motivated
to look for effective ways to cooperate with one another. The practice of ‘trialogues’ –
informal negotiations of the representatives of the three institutions – is one way in which
the institutions can seek to find a middle ground for legislative proposals before these are
debated in the EP in the first reading. In this paper Plechanovová tests whether the
institutional reform regarding the legislative procedures has moved the EU towards a
stronger bicameral system. In analyzing the legislative proposals launched since the
Lisbon Treaty entered into force her results indicate a change in the dynamics of
legislative decision-making – basically a shift of the EU in the direction of a stronger
bicameral system, even though the pendulum of power between the two legislators, the
Council and the EP, is swings in favour of the Council.
The paper ‘Towards unveiling the mechanisms of the EU decision making
process’ by Erik Pruyt, Paul Schure and Amy Verdun, offers a truly novel and
interdisciplinary study of the EU legislative process. Many of the current studies borrow
mostly from political science and econometrics but very few venture into the models
adopted by engineers and physicists. Because the EU legislative bargaining process is so
complex, they thought to adopt insights that are derived from studies that also involve
various mechanisms that interact with each other in important ways. Using simulation
models this paper seeks to detect which subset of mechanisms might be at the heart of the
20 EU legislative bargaining process. In the simulations in of this paper, the players are once
again the three prominent one: the Commission, the EP, and the Member States (through
their activity in the Council of the European Union). The authors compare the simulation
results to observed outcomes of the legislative process and use a machine-learning
algorithm to identify the mechanisms at play. Their results reveal that three particular
processes, which they conceptualize as ‘assimilation’, ‘changing the proposal’, and of
‘learning the equilibrium’, are important mechanisms in the EU decision-making process.
7. Conclusion
We started off with a number of leading questions that would assist us in understanding
the dynamics of legislative bargaining. The review had as goal to examine the vast
literature on law making in the EU and focus in particular on the decision-making in the
Council, the role of time, the content of the proposal and ideology. We looked at the
factors impact the process of change from proposal to adoption of legislative acts as well
as the mechanisms that could lead to a variety of speeds as well as and different
legislative decision-making outcomes. This review article spells out the state of the
literature on the theme of dynamics of European Union (EU) legislative decision-making.
In this review we refer to the term ‘dynamics’ to indicate the process of change from
proposal to adoption of legislative acts. Within this literature we examined four aspects of
the legislative decision-making process. The first is the literature that focuses on
decision-making within the Council and looked at what influences that process. A lot of
the literature seeks to understand the process of consensus making but also the
phenomenon of moving positions from those that may have been outliers at first to
coming closer to where the majority might be. A second strand that was examined is the
role of time. We looked at the time it takes for legislative acts to be adopted and what
21 influences that timing. We found that the legislative process itself affects the timing - that
the cycle itself impacts the time sensitivity of the legislative process. Consultation or
(lack of) administrative capacity also affects the time. We dug deeper into this
phenomenon by examining the studies that look in more detail at the differences between
the content of proposals at the outset, the content of the eventually adopted act and what
mechanisms influence that process. We found that a priori there are some points of
departure about discretion and delegation depending on the size of a member state. We
also learnt, however, that member states may invest differently in a process depending on
whether the proposal is salient to a member states. We learnt how salience itself is
influenced by various factors, one of them being administrative capacity, which in turn is
determined by duration in the EU. Finally there is a strand in the literature that examines
the role of ideology and how it influences outcomes of legislative bargaining in particular
on topics that push the integration process firmly forward.
This review has highlighted that the ‘dynamics’ of legislative bargaining are such
that there are major interactions between the supranational levels but also within
supranational institutions (such as the Council and the EP) insofar as the legislative
decision-making process is concerned. Most of the literature still focuses on the Council
because the member states interaction is of interest and it has been a place where power
politics gets played out. In examining the changes in positions we find that numerous
factors play a role. This literature review offers a background to the symposium with
three other papers that seeks to contribute further to understanding the legislative
bargaining process in the EU. In particular it turns to the actors and mechanisms within
the Council that influence the dynamics that are at play in the process whereby a proposal
22 moves from its first stage to its final adoption and how we can capture those mechanisms
at play.
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