#16134 - Institutions - European Law

European integration, institutions, and limits on european Law-making 2

1 – The evolution of European Integration 2

Craig, Ch 2 Craig and De Burca 2

Para I – Theories of Integration 2

I – Neofunctionalism (Early ideology) 2

II – Liberal intergovernmentalism (1950s: Moravcsik) 3

III – Multi-Level Governance 3

IV – Rational Choice Institutionalism (1990s) and constructivism 4

Para II – Democracy and Legitimacy 5

I – Some of the deficiencies are overstated 5

II – Democratic features prioritized by particular scholars 5

Craig, Ch1 Craig and De Burca (Texts, Cases and Materials) 6

2 – Institutions 9

3 – Law-Making 9

Chapter considers two related issues:

1. Rationale for EU integration: what are the assumptions and implications of particular integration theories?

2. The nature of EU democracy

Neofunctionalism: the early ideology of Community integration embodying a pluralist theory of international politics – believed that

1. the actions of a state are the “outcome of a process in which political decision-makers were influenced by various pressures (interest groups, multinational corporations)

2. the Commission would be a decisive force in the integration process

Central tenet = spillover = two dimensions:

1. Functional spillover: integration in one sphere creates pressure for integration in others due to the interconnectedness of the economy (ex. integration of tariff barriers creates the need to deal with non-tariff barriers)

2. Political spillover: building up of political pressure for further integration within states

Challenges to neofunctionalism:

1. Empirical challenge: failure to explain the reality of the Community’s development – since the 1965 Luxemburg crisis (and resulting de facto unanimity principle), the Commission’s role changed from emerging government for a Community to a mere cautious bureaucracy, with most of the decision-making by veto

2. Theoretical challenge:

   1. Internal: empirical failures modifications within the theory that rendered it increasingly complex and indeterminate

   2. External: failure to relate to general themes within international relations that sought to explain why states engaged in international cooperation

However, neofunctionalism may have explanatory value (esp. functional spillover), though causality is difficult to determine.

Monnet’s conception of Europe: integration is based on the combination of benevolent technocrats and economic interest groups which would build transnational coalitions for European policy (=elite-led gradualism) – helps explain the structure of the ECSC (limited Assembly powers), a structure which was to be carried into the EEC.

Neofunctionalism fits neatly with Monnet’s perception of the Community –

1. it views integration as technocratic, elite-led gradualism, combined with corporalist-style engagement of affected interests. Spillover reinforces the view that gradualism is a meaningful strategy for integration.

2. it shares Monnet’s view of democracy and legitimacy (to be secured through outcomes, peace and prosperity) – peace (ECSC established to prevent a third European War) and prosperity (EEC created for the direct economic benefits of the common market) were huge concerns in the 1950s but democracy was secondary (because it was felt that the best way to secure peace and prosperity was elite-led gradualism).

The Monnet/Schumann conception no longer exists after EP (as the story of the EU is Council and Commission losing power and EP gaining power). Their theory thus dies with the EP. Now, the Commission is accountable to EP (who can force the resignation of a commissioner). Thus the institutional attitude has been changed.

Liberal intergovernmentalism (Moravcsik) = states are the driving force behind integration (in response to pressures of domestic groups), international actors are there largely at their behest and have little independent impact on the pace of integration. The supply of integration is the function of inter-state bargaining and strategic interaction.

Three elements:

1. Assumption of rational state behavior

2. Liberal theory of national preference formation

3. Intergovernmentalist analysis of interstate negotiation

Seeks to explain:

1. rationale for integration through a supranational institution: efficiency (reduction of transaction costs) – avoids costly ad hoc bargains between states.

2. the institutional features of the EC (qualified majority voting etc): following public choice theory, qualified majority voting is the result of a cost-benefit analysis of the stream of future substantive decisions expected to flow from alternate institutional designs

Role of democracy within the schema?

1. Role of the European Parliament: its existence doesn’t sit easily with liberal intergovernmentalism (which assumes that states will engage in collective action and accept some loss of autonomy for the benefits gained, but their default position is to maintain maximum collective control) because the EP is a potential constraint on state action at Community level (esp. powers under Art 251 EC)

   1. Responses:

      1. National preferences that shape the demand for integration include a preference for a democratic organ at Community level

      2. National players believe that once the EC reaches a certain degree of integration, some democratization should follow at Community level

   2. However, these responses must accord with public choice test-benefit analysis: states would have to decide that loss of autonomy from EP is worth the legitimacy gain

   3. Response: there are normative arguments for an empowered EP, irrespective of what political actors want (this is true of constitutionalism generally: the ECJ’s (judicial) role doesn’t fit well with the cost-benefit analysis – there are normative arguments for judicial control separate from what political powers might gain from it)

2. Which conception of democracy is most closely associated with liberal intergovernmentalism? Liberal intergovernmentalism is premised on economics and public choice theory (founded by pluralists like Bentley and Truman – who argue that public interest is nothing more than the outcome of the group exchange of politics. They believe that the role of the state should be narrowly confined because private markets are better at reaching optimal decisions than political markets).

   1. Normative response: a vision of politics that seeks to legitimate legislation through group bargain is consistent with the theory of justice postulated by public choice theorists themselves?

Those who saw the Community in terms of multi-level governance objected to the state-centric view (of which LI forms part) that the Community is a mechanism for strengthening state sovereignty.

1º Multi-level governance (Marks, Hooghe, Blank): integration is a polity creating process where authority is shared across multiple levels of government (subnational/national/supranational) – national governments do not have monopoly of control; the ECJ and EP have independent influence that cannot be derived from their role as agents of state executives.

Two-stage argument:

1. When might national executives lose their grip on power? Temporary political actors may not necessarily be committed to giving priority to the state as an individual, but may wish to transfer decision-making power to the supranational level (ex. shifting political responsibility for unpopular decisions)

2. Is policy-making really dominated by Member States? The four EC institutions (Council, European Council, EP, Commission) follow a pattern of mixed competence and not monopoly by one actor

2º New institutionalism (March and Olsen): political institutions serve to define and defend values, norms, interests, identities, and beliefs within society.

3º Theories of integration based on multi-level governance (Stone Sweet and Sandholtz): there is a continuum between pure intergovernmental politics (states are the central players and EC merely enhances the efficiency of their bargains) and supranational politics (supranational institutions can constrain the behavior of all actors including Member States within relevant areas.

Reason for shift is that non-state actors that transact across borders often benefit from supranational governance (common European rules) – while governments can influence the pace of integration, intergovernmental bargaining is often responsive of the interests of a nascent transnational society.

The location of a policy area on the spectrum will depend on the levels of cross-border transactions and consequential need for supranational coordination.

4º Implications for democracy and legitimacy:

1. MLG and NI are posited on the assumption that players include states, supranational institutions, subnational actors and interest groups: a conception of democracy will affect how these players interact

2. Economic analysis (that political choice is the process of aggregating individual preferences into a collective choice) is not the only possible one: preferences/interests cannot be taken as a given

1º Subtle modifications to LI: Moravcsik modified his theory to:

1. acknowledge that supranational institutions might have greater powers over agenda setting outside of major Treaty negotiations (and could be influential in...