Introduction: Contested competences in the European Union

Abstract

In this article, we set out an approach to European Union politics that seeks to explain its development using theories of institutional change. In contrast to dominant theories which assume that the Treaties, the governing texts of the European Union, faithfully ensure that the desires of member states are respected, we argue that these theories are incomplete contracts, rife with ambiguities. This means that during periods between Treaty negotiations, we may expect that collective actors in the European Union policy process – the European Commission, the European Parliament and the Council – will each seek to bargain over these ambiguities so that their effective competences are maximised. Their ability to negotiate successfully will depend on their bargaining strength. These ‘conflicts over competences’ may lead to the creation of informal institutions. They may also in the longer term lead to formal institutional change, if they become folded into Treaty texts, or otherwise influence them, in subsequent rounds of negotiation.

Acknowledgements

The authors would like to thank the anonymous reviewers, Mark Pollack, Alberta Sbragia, and the other participants in this special issue, especially James Caporaso for comments on earlier versions of this article. They would also like to thank Michael Shackleton, Jean-Paul Jacqué, and Una O'Dwyer for sharing their knowledge of the codecision process, Amber Davis for editing, and Yannis Karagiannis for research assistance.

Notes

1. For the purposes of this article, we define an informal rule as a rule which is not subject to third-party dispute resolution.

2. Indeed we would argue that the theory of interstitial institutional change that we and our co-authors develop in this volume does not only hold for the European Union. Interstitial institutional change occurs in every polity where the original institutional provisions are ambiguous, which frequently is the case. Therefore we contend that our arguments are relevant to the institutional development of other polities, and especially those where higher-order rules are periodically revised.

3. See Jupille (2004) for an important exception.

4. The degree to which the text is incomplete is likely to vary across Treaty articles. The exploration of how variance in incompleteness may lead to variance in outcomes is an important agenda for future research.

5. We seek to understand how higher-order rules (together with other factors) impact lower-order rules and vice versa in a temporally ordered sequence. For useful theoretical background, see Büthe (2002).

6. We thus seek to simplify slightly the account of bargaining strength in Héritier and Farrell (2003), while introducing the role of the ECJ.

7. To the extent that the fall-back position of an actor in case of a failure of the bargaining process is determined by other than institutional factors, exogenous factors play a role in determining the outcome of the negotiation process.

8. This disadvantage is likely to be redressed in part under the current proposal that the Council have a semi-permanent President.

9. The ECJ has occasionally issued rulings that have had dramatic consequences for actors' competences, as in the Isoglucose cases, which allowed the European Parliament to use the consultation procedure to delay legislation. (Cases 138 and 139/79 of 29 October 1980).

10. Interview with Commission Official, September 2001.