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 Vertr?ge” (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.
B. Principal Actors and Players
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)
C. Typical Issues of Governance
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)
D. Level of Institutionalization
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.
E. Visibility / Transparency
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