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Abstract
This paper applies the framework developed by Farrell and Héritier to disputes over ‘legal bases’ (empowering treaty provisions) and legislative procedures in everyday EU decision-making. Using a variety of data, it largely confirms the power of the Farrell–Héritier framework. Legal bases and procedural political disputes respond to incomplete contracting problems, manifested as the jurisdictional ambiguity of specific policy issues. Parties consistently act as competence maximisers, bargaining interstitially in the pursuit of procedural power. Everyday fights over procedures appear to feed back into subsequent formal institutional (treaty) change. The results support claims of endogenous EU institutional change, while highlighting extensive legal-discursive structuring of this process.
Acknowledgements
Earlier reflections along these lines were presented at meetings of the American Political Science Association (2001), the International Studies Association (2005), and at workshops on ‘Contested Competences’ at the Swedish Institute for European Policy Studies (October 2003) and the Robert Schuman Centre for Advanced Studies at the European University Institute (May 2004 and March 2005). I would like to thank participants at those meetings, and especially Henry Farrell and Adrienne Héritier, for their helpful feedback.
Notes
1. There are a few treaty provisions entailing use of special majorities, but these are rare and rarely used in the first pillar.
3. Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/441/EEC on waste, OJ 1991 L 78. p. 32.
4. Council Regulation (EC) No. 820/97 of 21 April 1997 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products. OJ 1997 L 117, p. 1.
5. This section draws in part from Jupille Citation2004, pp. 116–9.
6. For some indications about trends in voting practice, see Hayes-Renshaw et al. (Citation2005).
7. Same- and previous-year results are also statistically significant with the same signs, though the correlations are lower.
8. This uses rankings of nine different legislative procedures deduced in Jupille (Citation2004, ch. 3). Larger rank-difference numbers reflect moves in the direction of EP empowerment.
9. Testing similar expectations about changes in voting rule proved impossible, since they were extremely rare: 3 of 103 articles from the SEA to Maastricht, 8 of 155 from Maastricht to Amsterdam. It turns out that most of the gains in majority voting come about through the creation of new articles and provisions, rather than through the modification of existing ones.
10. There is usually a year or two delay between agreement on a treaty and its entry into force. It made little sense to include cases occurring after agreement but before entry into force, since the hypothesised effects (incorporation into treaty change) could never materialise, the new treaty having already been agreed.
11. This technique effectively normalises the number of disputes for the number of legislative acts involved. Raw counts, for example, would grossly overemphasise agricultural legislation. By using the differential, we can see how many disputes occurred as compared to what one might naturally expect given the amount of legislation based on the article in question.