Intergovernmentalism as a Mode of Union Governance
II.The Negotiation of the SEA as a Case Study
A. Mode of Political process and Style of Governance
Part 2: Beyond the Monolithic Government
I. Case Study: Negotiating the SEA — The National Level (Germany)
c) Ministries, esp. Agriculture, Finance, Economics
B. Beyond the Monolithic Government
3. Factors Shaping National Policies
Part 3: Intergovernmentalism and Democracy
I. Intergovernmentalism and Consociational Democracy
II.Accounts, Accountability, Responsibility, Information — A Theoretical
A. Ambiguities about Accountability
1. The Psychology of Accountability
3. Neglecting a Long-Run Perspective
6. Simplification of Causality Through Individual Responsibility
B. The Importance of Accountability
2. “Practical” Reasons for the Persistence of the Ideal of
3. The “Kantian” Aspect of Responsibility
C. The Basis for Accountability: Information
IV.Developments and Some Further Thoughts
B. The Question of Levels: National / European
Intergovernmentalism, albeit ringing familiar in theories of integration, has never been a clearly defined concept of political theory. Various writers imply very different things when they talk of intergovernmentalism. In particular, it is unclear whether it relates to 1) institutions (“institutional intergovernmentalism”), to 2) area fields (“functional intergovernmentalism”), or to 3) the Treaty structure (three pillars — “formal intergovernmentalism”).
Mostly, scholars and practitioners refer to “intergovernmentalism” in order to describe instances in which the voices of the Member States can clearly be heard on the Community level. Of course, the voices of the Member States can be heard in ways that have only little in common. It almost is a truism to mention the fact that national influence on Community processes is directed through different channels:
As suggested by the term itself, “intergovernmentalism”, as referred to by many writers, often denotes the exercising of Member States control / influence on Community processes through governments. Here is a brief capsule version, hoping to capture the essence of that approach (1).
National governments enjoy the possibility of exercising strong influence on Community processes. This position is most obvious in relation to 1) the Commission and 2) the Council. 1) Pressure on the Commission can be exerted formally (through government involvement in expert groups, in regulatory and management committees, and Council meetings which both the Commission and the Member States governments attend) and informally (ministers ringing Commissioners; working parties representatives meeting Commission officials). Also, the procedure of appointment to the Commission plays an important role. National nomination of Commissioners institutionalizes national input; national quota systems for senior grades perform a similar function. (However, Commission officials, of course, are not open to instructions from their home country and for the most part look for Community-wide interest.) 2) Governmental control / influence in relation to the Council decision-making process depends on a variety of factors: the size of the State it represents; the importance of the State for particular negotiations; the desire of a government to play an active role (Germany, for instance, until the late 1960s, kept a low profile); the capacity of the government to play an active role (domestic policy considerations such as coalition government, key interest group opposition, or electoral damage); relations with other governments; the procedure that applies (majority vote?); the competence of national negotiators (which is often underestimated — evidence suggests, however, that variations in such competencies are less between states but between individual negotiators); the arrangements for linking representatives in the Council with national capitals (which involves two issues: (a) Do representatives in working parties or COREPER enjoy room for maneuverability and flexibility — e.g. Belgium, Italy, Luxembourg, the Netherlands — or less so — e.g. France, Greece, Ireland, UK — ? (b) Is a government able to co-ordinate its national position across different sectoral Councils? The UK, for instance, enjoys relatively favorable conditions and effective co-ordinating mechanisms, such as centralized governmental system and majority party political system. Due to the following factors, such co-ordination is more difficult in Germany: coalition government; the relative autonomy of ministers and ministries within the federal government; the lack of an authoritative decision-making center, notably in cases of overlapping ministry competences or if the Chancellor does not act; the independence of the Bundesbank; the strong powers of the Länder; and the strong sectoral specialization and loyalties to different federal ministries among the staff of the German Permanent Representation in Brussels).
Others use the concept of “intergovernmentalism” in a more theoretical context, in particular as a counter-movement to neo-functionalism. (2)
I will understand “intergovernmentalism” as one of three modes of governance within the EU system (intergovernmentalism, supranationalism, infranationalism). In order to give some flesh to the bare bones of intergovernmentalism, I shall analyze some of its major distinguishing features (style of intercourse, mode of political process, principal actors and players, issues of governance, level of institutionalization, visibility, transparency) by choosing a concrete example, the negotiation of the SEA (infra II.). In Part II, I will then point to the analytical problem of a monolithic vision of government. Part III., finally, shall deal with ways of thinking about the “democracy deficit” in the intergovernmental mode of European governance.
II. The Negotiation of the Single European Act [SEA] as a Case Study (3)
A. Mode of political process and style of intercourse
The negotiating history of the SEA is one of the principal examples of interstate bargaining processes. In contrast to legislative processes, which are above all characterized through vote counting etc., the process leading to the SEA resembled multilateral diplomatic treaty negotiations. There were no formal procedures serving as a framework for the negotiations. Rather, informal “shuttle diplomacy” (above all by Mitterrand and Dumas) and bilateral (F—FRG) respectively trilateral (F—FRG—UK) prior negotiations led to the setting of the agenda and to the forming of an agreement. The Fontainebleau Summit Meeting and the Intergovernmental Conference itself were by definition hardly restrained through process rules other than those in place for multilateral negotiations.
Initiative. The initiative for negotiating the SEA came from the Member States themselves, not from Community institutions. Above all, initiative did not come from the Commission whose input, in the supranational mode of governance, is high. To be sure, Lord Cockfield’s bold White Paper and Delors’s political sensitivity and swift actions contributed a great deal to the indeed remarkable speed of decision-making at the IGC. (4) However, the Commission’s actions did not alter at all the substance of the agreement. The SEA’s broader outlines were proposed, negotiated, and, finally, approved by the Heads of State and Governments themselves, in many instances even before the Commission came into play. Neither played the Commission an important role at an earlier stage, when decisive steps were taken to overcome the Europessimism of the early eighties. It was, in contrast, first the Genscher-Colombo initiative (of 1981) which called for greater European unity (the Commission did no more than backing it), and later the French presidency and Mitterrand’s personal involvement which eventually to a turning point (a turning point, one might add, which would have been unthinkable, in the light of heavy French attacks, on the basis of the Stuttgart Declaration alone). In other words, the breakthrough in relaunching European integration occurred well before Delors became President of the Commission, and Moravcsik concludes that “Delors’ actions as Finance Minister of France may have contributed more to the SEA than those as president of the Commission.” (5) In the area where the SEA brought the most progress, the internal market, the end result departs from the Commission’s original paper more radically than anywhere else. (6)
Negotiation / Elaboration. The EP’s voice went almost unheard. The Dooge Committee, in one of its first actions, rejected the EP’s “Draft Treaty Establishing European Union” and rather began negotiations based on the French government’s draft. (7) After Fontainebleau, Parliament representatives were deliberately excluded from important fora by government representatives. Both “incidents” clearly show how little Parliament’s input was. Its protests against the “minimalist” draft treaty and against the exclusion were ignored. I cannot think of many more places where the European Parliament’s influence is so small, and where it comes close to being regarded as almost obnoxious and as an intruder of sorts. It will come as no surprise that the Parliament reacted to the outcome of the negotiations with disappointment, anger, and sharp critique. (8)
In contrast to any form of legislative bargaining, the negotiations leading to the SEA were characterized by a remarkable flexibility and the absence of firm, not to mention rigid or Community-defined, rules of procedure. Many decisions were made in prior bilateral negotiations, more or less outside the EC institutional framework. Mitterrand alone met with Kohl and Thatcher six times each during the French Council presidency in 1984. Multilateral meetings took place within a framework provided by the EC, the European Council. However, the European Council (9) is without doubt the institution in which the national voice can be heard loudest.
As to the types of discussion in the European Council, the London Declaration spells out that there are both, “(i) informal exchanges of view of a wide-ranging nature held in the greatest privacy and not designed to lead to formal decisions or public statements. (ii) discussions which are designed to produce decisions, settle guidelines for future action or lead to the issue of public statements expressing the agreed view of the European Council”. A third function is to “settle issues outstanding from discussions at a lower level”. Many statesmen regard informal exchanges of view as the most important function of the European Council. (10) Foreign ministers are mostly excluded, and the number of interpreters and note-takers is reduced to a minimum. (11) This, of course, adds to an intimate atmosphere, keeping discussions as frank and informal as possible.
Another important factor is personal acquaintance, shaping both European Council meetings as well as diplomatic negotiations in the framework of summitry. Take into account what Putnam and Bayne write about summitry: “Personal acquaintance with their fellow leaders is the effect of summitry most often stressed by summiteers and their closest aides. Unlike bureaucrats (and academics), who are typically ‘paper-readers’, politicians are typically ‘people-readers’, for whom face-to-face exchanges are important.” (12)
Although it is difficult, in the absence of any written records, to firmly establish whether or not this informal exchange has contributed to building consensus within the European Council, there is no doubt that such type of intercourse epitomizes informal procedure and a low level of process rules — both important elements of diplomatic negotiations and intergovernmentalism in general. In this context, it is telling and helpful to notice that, unlike European Council meetings designed to lead to formal statements and decisions, there is by agreement only very little preparation for informal exchange of view, with Heads of Government informing each other or the Presidency “a few days beforehand of the subjects they will wish to discuss”. (13) This, again, is an indicator of the conspicuous lack of procedural rules, and thus of the informality and almost ad hoc-nature of the process. However, bilateralism plays an important role in the preparation. Although official bilateral meetings are not all that common (14), bilateralism most visibly occurs any time the Presidency chooses to engage in ‘shuttle diplomacy’, trying to create a package deal. Even apart from this visible bilateralism, it is understood that bilateralism, in the form of partnerships, is an important core not only of the preparation of European Council meetings, but indeed of its decision-making too. One of the most obvious examples is the creation of the EMS, the initiative seized by a close Franco-German collaboration. (15) In this regard, bilateralism is to be seen as the nucleus of intergovernmentalism, almost ruling out other modes of governance. What is more is that bilateralism is not only closely interwoven with intergovernmentalism during the preparation stage, but also during the decision-making stage. Bilateralism leads to issue linkages, log-rolling, support buying, and side payments — all elements of traditional diplomatic negotiations and intergovernmentalism. Edward Heath, for example, recalls that “the primary purpose of the [European] Council was to permit chief executives to propose compromises, issue linkages and side payments that ministers, bureaucratic factions or domestic groups might otherwise block”. (16)
The preparation of European Council meetings designed to generate public statements and official decisions is, of course, more structured and detailed. The presidency-in-office narrows down the possible points for agenda (17) as to what might be the ingredients for a successful package deal. COREPER plays a key role in putting together a list of possible agenda items, which is then discussed during an early exchange amongst foreign ministers. Here, an early indication of national viewpoints takes place. Finally, the agenda is circulated among a committee called Antici Group. Foreign ministers hold their meeting in confidential session; the final setting of priorities is conducted orally. This, again, proves the very low transparency of the whole process.
Why, then, should we not call the European Council an intergovernmental institution as such? It is evolving more and more as a genuine Union organ, and as such becomes part of the network and influences of other Community organs / procedures etc. For example, the Commission may be pressing an initiative which the Presidency and at least some of the states are sympathetic to (this was the background to the discussion and adoption of the Social Charter at the Strasbourg European Council in December 1989). In that case, we cannot properly call the mode of governance an intergovernmental one — rather, it tends to move towards supranationalism.
Style of Intercourse. The negotiating process resembles a lowest-common-denominator bargaining process. Due to a lack of input from EC institutions — there is no ‘European hegemon’ (18) capable of providing universal threats or incentives — the negotiation process reflects the relative power of the negotiating states and their interests. Smaller States are bought off with side-payments; larger States may exercise a de facto veto over certain items on the agenda. Therefore, the deal struck is more a lowest-common-denominator bargain between the interests of the larger states. This is certainly true for the SEA negotiation process, which overall represented a trilateral deal between France, the UK, and Germany. A closer study of the preferences of these three States between 1980 and 1986 drives this point home. (19) The only sector that France, the UK and Germany agreed on in principle was the completion of the internal market. How, then, can the procedural reform, above all the promotion of majority voting on internal market matters, be explained? After all, who would have predicted the introduction of majority voting in the Council before the SEA Intergovernmental Conference decisions? The explanation may be found in yet another ‘intergovernmental’ feature, namely the threat of exclusion. Mitterrand and Kohl repeatedly raised the prospect of some sort of free trade area between France and Germany when negotiations with UK became bogged down. The UK finally yielded to French-German pressure in order to stay in the game, reacting to the threat of being excluded and losing say (the UK was sensitive to this threat after not having joined the EC until the early 1970s, when many important decisions —relating, in particular, to the CAP and budgetary practices detrimental to Britain — had been made without its input). In addition, deep divisions within the Conservative government weakened the UK’s bargaining power in the negotiations. (20) The trilateral nature of the deal becomes even clearer from the way the other Member States behaved. The smaller States neither initiated nor vetoed a central initiative (21). The southern states and Ireland were appeased through side-payments in the form of increased structural funds (22), and the Benelux countries had been prepared to go further than the others anyhow.
In contrast to what Moravcsik, in his rich description of the SEA negotiating process (23), perceives as the borderline between ‘supranational institutionalism’ (nature of bargaining = logrolling and linkages that upgrade the common interest of Member States) and ‘intergovernmental institutionalism’ (nature of bargaining = lowest-common-denominator [veto group] decisions among the largest Member States), I see no reason why there shouldn’t be any logrolling in EU intergovernmental decision-making processes. Logrolling is a form of intertemporal do ut des (I give to get in return), and the principle is that of postponed equivalent return. The precondition for this is, therefore, a continuous decisional context, a future, so to speak. (24) Although there is a low level of institutionalization in intergovernmental bargains, the situation here is somewhat different from ‘normal’ intergovernmental (above all bilateral) bargaining in that it is clear to each participant in the negotiation that there will be renewed close contact about the same or similar issues in the near future. The intertemporal condition, therefore, is met — there is a future. Hence, logrolling can be a decisive part of intergovernmental negotiation, too, and is not confined to supranationalism (although it is, admittedly, weaker on the intergovernmental level of EU governance).
Adoption. In further contrast to legislative bargaining, negotiators had to look for consensus and could not rely, in general, on majoritarian decision-making. There were only very few exceptions, one of which occurred during the run-up to the SEA. At Milan in 1985, a formal vote was taken on the establishment of the IGC which led to the SEA, leaving the UK, Greece, and Denmark opposed. (25) As soon as the contents of declarations, reports, presidency conclusions and so forth were not based on a consensus of all Member States, the mode of decision-making ran into problems. This happened, for instance, in the case of the 1983 Solemn Declaration of Stuttgart with its series of footnotes expressing national reservations; the Dooge Report which also included footnoted national reservations; and the conclusions of the 1985 Luxembourg summit which contained a blanket reservation on the part of Denmark and a conditional acceptance only on the part of Italy (depending on examination by the Italian Parliament). In addition, the Commission does not enjoy, of course, the possibility of privileged amendment so important in the supranational mode of governance; equally, the EP does not have any say.
Result (and Disciplinary Background). The observer will look to the outcome of intergovernmental bargaining with an IR frame of mind. However, it would not make sense, of course, to postulate that the result of the intergovernmental process is “politics” (in contrast to the result of the supranational mode as being “law”). Clearly, the SEA brought about substantial amendments to the Treaties Establishing the EC and has to be acknowledged as law. Still, we are dealing with a kind of law qualitatively different from “normal” legislative outcomes. The issue of majority voting, for instance, is a very sensitive and intractable one, and the authority of national leaders is required to tamper with it. Other areas — such as the completion of the internal market, or institutional issues such as Treaty revisions relating to the powers of the EP, to the administrative powers of the Commission, and to the architecture of the legal system (Court of First Instance) — clearly need a strong political impetus. The result is what may be characterized as changes of major political and/or economic impact. However, decisions on other levels of governance — even the infranational level — may result, by way of incrementalism, in a major political and/or economic impact. Better characterizations, therefore, would be “change of fundamental system rules” or “constitutional changes”, though this is meant in a non-technical sense. Also, there may be issues that need intergovernmental decisions although they do not share the grand “fundamental system rule” or “constitutional” flair, but merely touch upon specific Member State sensibilities, be they subtle or ludicrous. (See also infra C.)
Justiciability. The question of judicial review mirrors in a way the locus of power that transpires through our previous findings. Whereas “normally”, the principle of judicial supremacy of the Community is widely accepted, the ECJ in this case that cannot judicially pronounce itself on the outcome of the intergovernmental process. The comparison with a national constitutional court aspiring to declare unconstitutional a constitutional amendment comes to mind (and reinforces both the exceptional / constitutional nature of the result of intergovernmental decision-making). However, national constitutional courts can pronounce themselves on the result of intergovernmental bargaining, and sometimes (though rarely) they do (an obvious example is the German Maastricht decision (26)). Here, therefore, it seems the power structure is reversed: the Member States control and alter the Community structure (through their organs — on the negotiation level through their governments, on the implementation level through their parliaments or referenda, and on the judicial level through their courts). Intergovernmentalism, from this perspective, is, among the three different levels of EU governance, the one that illustrates best the nice German phrase of the Member States as “Herren der Verträge” (Masters of the Treaties).
More importantly, however, the issue of justiciabilty (through Member States constitutional courts) points to the fact that for intergovernmentalism, the main arena for possible democratic control and accountability is the domestic forum. I will come back to this point later in this study.
It is almost banal to state that the principal actors are the Member States, acting through their governments. This, however, can be specified, in a double sense, ‘internally’ and ‘externally’. On the one hand, it is not the whole Government that acts. Heads of State and of Governments and their direct representatives, not Foreign Ministers or lower branches of the governments, carried out the negotiations leading to the SEA. (27) On the other hand, other actors were generally restricted to very minor roles. I have already hinted at the marginal input of the Commission and the EP. In addition, the SEA negotiations have been launched independently from transnationally organized business interest groups (28) (which, of course, should not be mixed up with interest groups operating on the national level, exercising their influence mediated through Member States governments). The Kangaroo Group in the EP was small at the time, and formal links to the Council were not established until 1986. The Roundtable of European Industrialists focused on infrastructural issues such as the Channel tunnel, and Dekker did not deliver his speeches until after the Dooge Committee discussions were on their way and France had assumed her pathbreaking presidency for nearly a year. (29) A few business groups such as the UNICE had been pushing for liberalization for a long time — too long a time, however, to attribute to them a significant role for the now suddenly moving field. Equally, international political leaders (and here one could think above all of Delors and Cockfield) did not play decisive roles. Counter-arguments might run as follows, but turn out to be ultimately unconvincing: 1) The remarkable speed of the Conference can be attributed to Delors. Maybe, but he did not alter the substance a bit. 2) Delors (and the Commission) may have slipped new EC functions into the Treaty. However, the EC had been handling these functions (environment, research and development programs) under indirect authorization for years, and there was very little opposition from the Member States to extending them formally. 3) Delors’s conciliatory move in late September/early October 1985 to drop strong advocacy of monetary and social reform and to stress links between internal market reform, majority voting, and structural funding, has facilitated compromise. True, but his position was closely circumscribed by the views of the major States and was in part even a reaction to direct pressure from domestic officials. 4) Cockfield’s White Paper was a key act of agenda setting. True, but the White Paper was a response to a mandate from the Member States. (30)
Take into account the options Delors faced:
Procedural reform without a substantive program, he realized, would get bogged down in ideological battles over sovereignty; a plan for European monetary union would encounter the opposition of the governors of the central banks, who, led by the Germans, had just rejected an expansion of the EMS; and European defense cooperation was neither within the current competence of the EC nor widely supported among the Member States. The sole remaining option was internal market reform. (31)
All four agenda items do not emanate directly from the Treaty but constitute issues that share the features of high sensitivity, of (at best) evolving existing Treaty provisions, of being of high public awareness, of not being easy to agree on and therefore of necessitating attention from the highest political authority possible. Intergovernmental cooperation is needed when, inter alia, the following is to be achieved: defining the guidelines for integration; goal identification; policy initiation, orientation and co-ordination; scope enlargement; problem-solving.
The last point in particular — problem-solving — has me refrain from concluding that intergovernmental processes deal essentially with “high politics” issues. The term ‘high politics’ has been repeatedly criticized. (32) However, I will understand it as having no intrinsic objective value but rather as being a matter of decision. If thus understood, the puzzle of the ‘problem-solving’ aspect of intergovernmental cooperation is easily solved. It is true, intergovernmental governance is concerned, too, with quite specific policy issues such as sectoral policy deliberations. The explanation for this is that 1) some issues are so sensitive and intractable that they require national leaders’ authority, and that 2) the intergovernmental sphere— due to its non-sectoral nature — is the best place to put together package deals that are required to reach agreement on issues that either cut across policy sectors, or that can only be resolved by linking issues in one sector with issues in another. (33)
The negotiations leading to the SEA were characterized by a variety of institutional designs none of which, however, reached a level that deserves the label ‘high’. It is equally true, on the other hand, that negotiations did not take place in complete chaos. I have already mentioned different committees with specific mandates. The summits, as also mentioned above, have been given a certain framework through the European Council. However, both the European Council meetings (lacking established rules of procedure and not acquiring a firm legal basis until the SEA was concluded) and especially bilateral or trilateral diplomacy are characterized by high informality and flexibility, and therefore only a low level of institutionalization.
The SEA negotiation process was extensively covered by the media, which is due to two features: 1) the negotiated subject-matter was sensitive, even delicate (such as defense co-operation) and of broad and immediate political interest; 2) the main actors were the Heads of State and Governments, thus providing events and actors with high visibility.
In stark contrast to this, however, negotiation transparency was low. The flipside of informal and flexible diplomatic negotiation is the fact that there are virtually no records. Commentators have to gather background material from interviews and negotiators’ memoirs. In a sense, intergovernmental process finds itself in the tradition of 19th century secret negotiations.
Part 2: Beyond the Monolithic Government
The study of intergovernmentalism within the European Union may, in part, happily and fruitfully rely on conceptions that have been developed under the label of “liberal intergovernmentalism”. While liberal intergovernmentalism has the considerable virtue of breaking up the notion of the monolithic state (which is the reason why this study speaks of “intergovernmentalism” rather than “internationalism”), it stops short of breaking up the notion of a monolithic government. In contrast, I believe that it is of vital importance to track domestic factors that, in turn, influence government action. Thus, while it is true that governments, in the intergovernmental mode of governance, are the most important actors, satisfactory analysis has to extend beyond the level of government as an actor. The claim of this study is, incidentally, that this is true for all three modes of governance.
In order to drive this point home, I will, again, engage in a case study. Choosing the same example as in Part 1 — the negotiation of the SEA — I hope to demonstrate the complexity of interests and influences beyond and below the governmental level. Infra (I.), therefore, I shall briefly analyze the network of interests that led to the German position in the SEA negotioations. Infra (II.) I shall then consider the factors that need analytic attention in abstracto.
— Legitimacy and Accountability —
Ulrich R. Haltern