Challenging the Commission's right of initiative? Conditions for institutional change and stability

Abstract

This article examines the conditions under which informal institutional change between EU Treaties becomes formalised in subsequent Treaties. Recent developments in institutional theory show how formal rule changes often result in informal rule adjustments, which feed back into the formal sphere. However, I show how such feedback has not taken place in one of the clearest examples of informal modifications of the EU Treaty, i.e. the way the agenda-setting power of the European Union has developed over time. I explain this phenomenon by developing a simple framework of change and stability, which links EU bargains with day-to-day politics and looks more closely at what determines the incentives of the decision-makers to formalise informal institutional changes. The framework emphasises that whether actors have an incentive to formalise informal changes depends on uncertainty regarding how the informal institutions might be applied, the costs of formalising them and the possible side-effects that such a change might entail. In this case, the informal changes were sufficient for the member states and the Parliament and decreased their willingness to incur the costs and risks of formal changes to the right of initiative, which would significantly affect the institutional balance of the Community.

Acknowledgements

I would like to thank Adrienne Héritier, Henry Farrell, and the other participants in the workshop on interstitial institutional change in March 2005 in Florence for comments on an earlier draft.

Notes

1. There are few exceptions to this: Title IV of the EC Treaty where the Commission shares the initiative with the member states on a transitional basis and certain specific Treaty provisions, for example amendments to the statutes of the European System of Central Banks or measures pertaining to a member state that infringes basic principles (Commission 2002a: 2).

2. There are exceptions to the second and third right, which are discussed later.

3. According to this definition, the EU Institutions are not themselves institutions, but organisations, i.e. collective actors, which are themselves institutionally constrained (North 1990: 5; Knight 1992: 3). Here, they are referred to as ‘EU bodies’.

4. A new sentence was added to the Constitutional Treaty draft requiring the Commission to inform them of the reasons if it does not fulfil their requests (Articles III 332 and 345), which can be seen as an attempt by member states to strengthen the political obligation of the Commission to live up to their requests. This Treaty draft also gave a million citizens the possibility to invite the Commission to submit a proposal (Art. I-46(4)). However, in agreement with the other respondents, one respondent noted about this citizens' initiative that, ‘it is just a sign for the Institutions to be closer to the citizens, not at all an attack on the Commission’ (Interview with Parliament official A, September 2004).

5. Examples include compound feedstuff (COD/2000/0015), ambient noise (COD/2000/0194), and two and three-wheel motor vehicles (COD/2000/0136).

6. Again the draft for a constitutional Treaty showed the intention of the member states to reinforce this trend by recognising the European Council as an actual Institution. According to Devuyst (2004: 9), ‘The Treaty-Constitution confirmed the intergovernmental preeminence of the European Council as the real engine of the European integration process’.

7. An exception to this is withdrawal by the Commission in cases when it is in the interest of the other actors and not to protect its prerogatives.

8. This holds for the first simple model accounting for the formalisation of existing informal rules, but not for the second model of a linked-arena veto (see Farrell and Héritier 2007).

9. Interview with Council official B, September 2004. In fact, there were also contributions in the last round of discussions, which aimed at expanding the right of initiative of the Commission. As an example, a French–Dutch contribution argued, ‘our goal is to extend the Community method to all legislative areas of the Union and therefore also to extend the Commission's right of initiative. It should gradually become the rule, even if exceptions are possible’ (own translation from French – http://europa.eu.int/constitution/futurum/documents/contrib/cont250303_fr.pdf); and Finland argued that the Commission's ‘right of initiative in Pillars II and III should be further developed’ (http://europa.eu.int/constitution/futurum/documents/other/oth170103_en.pdf: 8).

10. See e.g. the minority opinion in report on the division of competences from the Parliament's Committee on Constitutional Affairs (A5-0133/2002), transcripts of the plenary debate of the Convention from 12 and 13 September 2002, contributions to the Convention from Joachim Wuermeling (CONV 279/02), Timothy Kirkhope (CONV 632/03) and five proposed amendments in the Convention to change the right of initiative by 1) Voggenhuber, Lichtenberger, MacCormick and Wagener, 2) Gormley, 3) Earl of Stockton and Joachim Wuermeling, 4) David Heathcoat-Armory and 5) Timothy Kirkhope.

11. Interview with Council official B, September 2004.

12. Interview with Parliament official A, September 2004. Interestingly, this means that the Parliament is actually less interested in securing a formal right than it was in the course of the SEA negotiations, at least if its opinion is judged on the basis of the Spinelli Treaty. It included a provision to extend the power of initiative to the Council and the Parliament in the event that the Commission declined to respond to their requests for proposals (Art. 37(2)).

13. Interview with Commission official B, September 2004.

14. Interview with Parliament official B, September 2004.

15. Interview with Parliament official C, September 2004.

16. Interview with Commission official C, September 2004.

17. According to the 2003 General Report of the EU, the establishment plans comprised 21,850 permanent positions in the Commission, 3,367 in the Parliament, and 2,487 permanent posts in the Council Secretariat.

18. Interview with Parliament official C, September 2004.

19. Interview with Commission official C, September 2004.

20. See for example Commission (2002a: 2–3).

21. Interview with Parliament official C, September 2004.

22. Examples includes the German–French on the future institutional structure (http://europa.eu.int/constitution/futurum/documents/contrib/cont140103_de.pdf), the French–Dutch on strengthening the Commission (http://europa.eu.int/constitution/futurum/documents/contrib/cont250303_fr.pdf), and the Finnish on the future of the EU (http://europa.eu.int/constitution/futurum/documents/other/oth170103_en.pdf).

23. See http://europa.eu.int/constitution/futurum/documents/other/oth140303_da.pdf.

24. See COM(2002)704.

25. See COM(2002)713.

26. See also the report from the Irish National Forum on Europe (http://europa.eu.int/constitution/futurum/documents/press/pr010502_en.pdf).

27. Interview with Parliament official A, September 2004.

28. Interview with Council official B, September 2004.