Tradition and innovation: Europe's accumulated executive order

Abstract

With the advent of the European Union and its predecessors, Europe's executive order has become qualitatively different from the intergovernmental order inherited from the past. We ascribe this phenomenon in particular to the consolidation of the European Commission as a new and distinctive executive centre at the European level. This institutional innovation triggers significant centrifugal forces within national governments due to the Commission's strategy of establishing direct partnerships with semi-independent national agencies that are crucial for the implementation as well as the formulation of EU policies. The new order does not replace former orders; instead it tends to be layered around already existing orders so that the result is an increasingly compound and accumulated executive order. Such an order raises sensitive questions about which actors should be held to account: holding governments to account may no longer be enough and may need to be complemented with mechanisms and forums that focus both on the accountability of supranational executive bodies as well as national agencies with dual loyalties.

In our view the question is not whether a common European executive order is emerging or not.1 We use the term ‘executive order’ to convey our focus on the changing nature of executive power in Europe and to capture both the political level (ministers and other political office holders) and the administrative level (bureaucracy) of the order in our analysis. Europe has in fact had an executive order for centuries. After the peace of Westphalia this order became increasingly sophisticated as regards its institutional characteristics. However, it was not until the advent of the European Union and its predecessors that Europe's executive order started to transcend its basically intergovernmental pattern inherited from the past. We ascribe this phenomenon in particular to the consolidation of the European Commission (Commission) as a new and distinctive executive centre at the European level, outside of the intergovernmental locus, the Council of Ministers (Council). This institutional innovation triggers significant centrifugal forces within national governments due to the Commission's strategy of establishing direct partnerships with national (regulatory) authorities (agencies and others) that might be crucial for the implementation and formulation of EU policies.

The agencification that has taken place in most western European countries during the last couple of decades has been conducive to the development of this new administrative configuration across levels of governance. Precisely because agencies are kept at arm's length from ministerial departments they have been able to establish their own autonomous and close contacts with executive bodies at the EU level. Such new arrangements imply that although the implementation of EU legislation is still mainly in the hands of national governments, it can be questioned whose agents the semi-autonomous national agencies really are. Such an order also raises sensitive questions about which actors should be held to account: holding governments to account may no longer be enough and may need to be complemented with mechanisms and forums that focus both on the accountability of supranational executive bodies as well as national agencies with dual loyalties.

In the next section we briefly outline the executive order that prevailed in Europe from the Peace of Westphalia (1648) until the advent of the EU and its predecessors. Arguably, in comparison with bilateral diplomacy and international governmental organisations (IGOs), the emergence and consolidation of the position of the Commission as a central executive actor placed the development of the European executive order on a radically different trajectory. The following section therefore deals with the conditions under which the Commission is able to act relatively independently of national governments and thus constitutes an executive force in its own right. We then turn to how these distinctive institutional conditions at the European level seem to trigger administrative constellations across levels of governance and across national borders that challenge the coherence of national governments in an unprecedented way. We also ask how a new order and new patterns of executive politics might affect implementation practices. The subsequent sections focus on the issue of accountability as it is raised and dealt with within the shifting executive orders. Finally, as part of the conclusion, we touch briefly on the factors behind the changing orders. The new order does not seem to replace the former order; instead it tends to be layered around already existing orders so that the result is an increasingly compound and accumulated executive order at the European level. Needless to say, such a layered and cumulative order complicates the discussion on accountability of the various actors for their varied tasks.

Pre-existing executive orders

Our point of departure is the Treaty of Westphalia (1648), which in a sense semi-institutionalised a system of territorially defined states in Europe. A system of formally sovereign states presupposes information about the ideas and activities of system participants. Bilateral diplomacy was seen as the means of ensuring that the requisite information was made available. From the second half of the seventeenth century resident ambassadors became the rule even among the smaller countries (Cross 2007). Within the time frame we cover (from 1648 onwards), we consider bilateral diplomacy on a regular basis as the first executive order in Europe. It constitutes an order because it is organised and because common norms and codes of conduct gradually developed so that diplomats came to perceive themselves as being grounded in two distinct worlds: their respective home state, on the one hand, and the diplomatic community, on the other (Batora 2005; Jönsson and Hall 2005). At the Congress of Vienna in 1815, the diplomatic institution became more formalised: for example, the senior ambassador, i.e. the ambassador who had been longest at the post in a particular capital became the doyen or dean of the diplomatic body, or corps, in that particular country (Nicolson 1969). The fact that this person represents the other ambassadors in any disputes affecting their corporate rights and interests reflects very well the existence of a community. ‘Even as scientists, philatelists and other experts find, when they meet together, that the interests of their calling transcend all differences of nationality or language, so also do the diplomatic services of the several countries evolve a form of solidarity and establish certain tacit standards which they all respect’ (Nicolson 1969: 40). In her study of key international congresses from 1648 onwards Cross (2007) found that diplomats tended to share opinions more often that their respective political masters.

We date the start of the second executive order to the Vienna Congress (1815). The congress semi-institutionalised multilateral diplomacy in the form of conferences at the ministerial and ambassadorial levels among Europe's great powers (the Concert of Europe) although they did not meet on a regular basis and there was no permanent location or secretariat attached to it (Schroeder 1994). It was the highly specialised sectoral or functional IGOs established from the second half of the nineteenth century (e.g. the International Telegraph Union and the Universal Postal Union) that gave rise to new initiatives such as a permanent secretariat with a fixed location, the division of labour between a general conference and an executive council, and regular meetings. According to Claude (1964: 175), ‘nothing essentially new has been added by the multi-lateralization and regularization of diplomacy until the secretariat is introduced; this is the innovation that transforms the series of conferences into an organization’.

One consequence of IGOs having been established in pretty much all imaginable sectoral and functional policy areas is that a huge number of non-diplomatic civil servants coming from sectoral or functional ministries and agencies have become involved in their work. In addition, national scientific experts may also be included in their work with the result that the European administrative space became much denser than before. The Organization for Economic Cooperation and Development (OECD) alone today runs 42 ‘committees’ and 98 ‘working parties’ composed of national officials (Marcussen 2004). Studies have shown that the power distribution and conflict pattern within IGOs seem to reflect very much the power distribution and territorial pattern of conflict found in the wider system (Cox and Jacobson 1973). This is hardly surprising given that they are basically structured according to geography, organisationally expressed in the pivotal role of the respective councils of ministers. However, IGOs are institutions that provide a context for the collection, elaboration and diffusion of data, analyses, visions and ideas, for agenda-setting and collective problem-solving (Barnett and Finnemore 2004; Marcussen 2004). Expert-based permanent secretariats contribute significantly to task expansion at the international level and they also may be able to forge transnational coalitions by linking previously disconnected actors (Cox and Jacobson 1973; Barnett and Finnemore 2004; Trondal et al. 2005). Thus, although IGOs have been created by states, once established they do not necessarily operate as straightforward tools or agents of those states.

Because modern states are highly specialised both in sectoral and functional terms, and since problems to be dealt with generally presuppose the availability of rather specialised expertise, specialised institutions tend to interact directly with their counterparts in other countries or in the secretariats of IGOs rather than going through their respective foreign ministries or other central state authorities. This is what Keohane and Nye (1977) term ‘complex interdependence’. Slaughter's (2004) portrayal of a ‘new world order’, consisting of disaggregated states that interact in a compound manner within and alongside IGOs, builds heavily on the complex interdependence perspective. Although such information, harmonisation and enforcement networks may encourage the formation of coalitions along functional lines, she claims that national governments retain primary power and that officials participating in those networks represent national interests (pp. 7, 262).

Executive centre formation at the European level

We attribute the birth of what may be termed the third executive order first and foremost to the consolidation of the Commission as an executive centre (Bartolini 2005). The High Authority of the European Coal and Steel Community (ECSC) and its successors were indeed an institutional innovation at the European level: for the first time an executive body with its own leadership had been established outside the national ministers' ‘council’. The Commission over time increased its actual autonomy in relation to national governments. As regards the services of the Commission, the move from an administration that had to rely heavily on seconded personnel from the member states to an administration in which a large majority are employed on a permanent basis is significant. The growing ‘internalisation’ (into the services) of recruitment and appointment processes is also indicative of such a development. The process of appointing top officials has been described as having become ‘objectivised’, meaning that a transparent procedure and clearly specified requirements have been adopted. Staff resources have been allocated to the process, and the committee, which presents the shortlist of candidates to the commissioners, is dominated by career officials. Normally, the recruiting commissioner seems to accept the candidates recommended by this committee (Egeberg 2006b). Thus, the internalisation of appointment processes means that the highly contentious practice of attaching national flags to particular posts in the various directorates general (DGs) has been considerably reduced (see also Wille 2007a).2 Consistent with this, Balint et al. (2008) show that the Commission administration, as regards the degree of politicisation of the higher management and the degree of openness of the career system, over time has moved away from its Continental origin and instead moved closer to a British or Scandinavian model, i.e. in crucial respects a more independent service.

As regards the political leadership of the Commission it, too, has gained autonomy vis-à-vis national governments over time. Concerning the college, the Amsterdam Treaty assigned more leeway to the Commission president-elect as regards the selection of commissioners. The president also acquired the final say in how portfolios are allocated and even the right to reshuffle the team during the five-year term of office by redistributing dossiers, thus making it difficult for governments to attach particular national flags to particular portfolios. Also, the president is authorised to dismiss individual commissioners. Concerning the cabinets, there must now be three nationalities in any cabinet, gender balance and three posts reserved for Commission officials rather than outsiders brought in by the commissioners or foreign ministries. ‘The resulting changes produced cabinet constellations which would be unrecognisable to old Commission hands’ (Spence 2006: 72). Given that the average size of an ‘ordinary’ (not vice-president/president) commissioner's cabinet seems to be seven members, such a composition has changed the role of entities previously portrayed as national enclaves (Michelmann 1978) and as being sensitive to national interests (Cini 1996: 111–115). We are, however, short of empirical evidence on how cabinet members actually behave.

We are somewhat better equipped as regards studies on the role conceptions and behaviour of Commission officials. From an organisational theory point of view, the most important independent variables are, under most circumstances, features of the organisational structure within which decision-makers are embedded. For example, it matters whether this structure is the actor's primary or only secondary affiliation, and according to which principle (function, geography, etc.) the structure is specialised (Egeberg 2004). The approximately 900 national experts who are seconded by national administrations to the Commission for a maximum of four years represent an interesting category since they work full-time within the Commission's administrative hierarchy, while being paid by their home government with a return to former positions in domestic ministries or agencies usually foreseen. However, even under these conditions, their primary structure–i.e. Commission affiliation–seems to be most important. A survey study of 71 national experts showed that they overwhelmingly identify with their respective DGs/Units or an independent expert role rather than with their respective national governments. Accordingly, in their daily work, they pay most attention to signals from their directors in the Commission and little attention to signals from their home governments (Trondal 2006).

Concerning Commission officials in general, Michelmann (1978), in a study based on interviews and a survey originally administered by the Commission among its personnel, analysed the flows of information across hierarchical levels within DGs. He found no statistically significant effects of nationality on these flows. Contact patterns reflected rather neatly the formal hierarchy of posts. The qualitative interview data revealed, however, that officials might be approached by their compatriots and used as ‘access points’ to the inner circles of the services. In her study of 82 officials three decades later, combining quantitative and qualitative data, Suvarierol (2008) provided support for Michelmann's conclusions. She focused on ‘task-related informal networks’ (for information and advice) as distinguishable from ‘task-related formal networks’, ‘career networks’ and ‘leisure networks’ and found that nationality is not even a factor shaping these informal (information and advice) networks which are not hierarchically predefined. Egeberg (1996) used 35 Commission trainees with at least two years' experience from national administration as informants on decision-making within 15 different DGs. Only in a clear minority of units was nationality seen to matter for officials' policy choices, and the concerns of the respective DGs constituted the dominating frame of reference for decision-making. And a questionnaire study of 218 national officials from 14 member states showed that an overwhelming majority considered the Commission's representatives in Commission expert committees, Council working parties and comitology committees as mainly independent of particular national interests (Egeberg et al. 2003).

The interview and questionnaire study of Commission top officials by Hooghe (2001) seems at first glance to contradict the results reported above. She found that officials' preferences as regards supranationalism vs. intergovernmentalism and regulated capitalism vs. market liberalism were related to their experiences before they entered the Commission and that their stay at the Commission had no significant impact on these attitudes. For example, those originating from federal states were more in favour of supranationalism than those from unitary states. But this conclusion did not hold for all Commission officials. The effect of Commission socialisation was considerably stronger for the officials who joined the institution before their thirtieth birthday. ‘The relative weight of international and national socialization is reversed’ (Hooghe 2005: 876). Hooghe's dependent variables tapped attitudes at a very general level. Arguably, therefore, her observations might be quite compatible with studies showing that the organisational setting is important as regards explaining more ‘operationalised’ preferences in actual decision situations. For example, several studies have portrayed decision-making at the Commission very much as politics between various DGs (Coombes 1970: 203; Cram 1994; Cini 2000; Hooghe 2000; Mörth 2000). Had the Commission been structured according to geography so that each member state had been served by a particular DG, and if these DGs had in addition been staffed by people from their respective ‘client countries’, we would expect the various national interests to be at the forefront of Commission decision-making. However, in a sectorally and functionally specialised Commission which is also multi-nationally staffed, even at the unit level, it is hard to see how different DG interests can be meaningfully linked to socialisation experiences at the national level.

Like national experts in the Commission services, commissioners have the Commission as their primary organisational affiliation, are on short-term ‘contracts’ and might return to posts in their home government. These features could make them more susceptible to the wishes of their respective home governments compared to those on long-term contracts. Döring (2007) and Wonka (2007) suggest that the careful selection process at the national level of candidates for a commissioner post results in a close relationship between a commissioner and his or her home government, but they do not present any data substantiating this conclusion. By examining 70 controversial legislative proposals from the Commission, Thomson (2008) tried to establish the level of agreement between a Commission proposal and the position of the home government of the commissioner in charge of the relevant portfolio. On a 100-point scale, the average distance between the Commission's position and the position of the responsible commissioner's home government was 35.92 scale points under qualified majority voting (QMV) in the Council. The distance for countries not having the prime commissioner was on average 41.17 scale points. The difference (5.25 scale points) falls short of statistical significance. For issues requiring unanimity in the Council the difference is in the opposite direction: those member states nominating the lead commissioner are further away from the Commission's position than the other member states, although this difference is not statistically significant either. According to Thomson, the Commission has no ‘favourite’ among the member states; however, its positions are on average slightly closer to those of smaller and medium-sized countries than to those of large states.

Literature emphasising the importance of extra-institutional socialisation and incentives might underestimate the role of decision-makers' primary organisational affiliation, i.e. the structure within which they are embedded on a daily basis. Egeberg (2006c) tried to map commissioners' role behaviour in college meetings by using those top officials who take the minutes as informants. The study showed that the role most frequently evoked is the ‘portfolio role’, i.e. the role in which commissioners represent their respective sectoral or functional areas of responsibility, in practice the relevant DG. They may also, although less frequently, act on behalf of the Commission as such (the ‘Commission role’), their country of origin (the ‘country role’) or their political party (‘party role’), thus not that much different from national ministers adhering to the concerns of their respective departments, local constituencies, parties and the cabinet as such.

Features of the organisational structure most probably explain why politics at the Commission tends to become to such a large degree sectoral politics, while politics in the Council remains mainly territorial (international) in character (Egeberg 2006a). The sectoral and functional specialisation of the Commission at all levels, from the level of the expert committees (Gornitzka and Sverdrup 2008) up to the very top makes it qualitatively different from the (basically) geographically specialised Council in which all member states are represented at all levels and within all sectoral portfolios. Thus, even if a government might succeed in making ‘its’ commissioner into its spokesperson, the primary influence will, most probably, be exercised only within his or her particular remit. However, we need studies on the extent to which commissioners and their respective cabinets are able to intervene in other commissioners' portfolios. Due to the limited size of cabinets (approximately seven members for an ordinary commissioner) and the considerable increase in the number of commissioners, it could be expected that such interference only takes place to a modest degree.3

The original conception of the Commission as an EC institution was of a technocratic and impartial body with the specific constitutional obligation to act in the ‘Community interest’. It was meant to provide the impetus for integration and to be the guardian of the common European interest. Such integration and mediating functions would be guided by the judgement of a technocratic elite rather than by political considerations. Politics was organised out of the Commission in the original conception. As Wille has pointed out, in the contemporary EU we can however discern an evolving politics–administration dichotomy in the Commission, with Commissioners increasingly considered in terms of executive politicians (Wille 2007b). The college of commissioners functions much like a ministerial cabinet (government) in that each commissioner is responsible for a particular policy area and for overseeing one or more directorates-general, which, in turn, are the functional equivalent of national government departments.

At the same time, the Commission has become more connected to the European Parliament (EP). For example, the EP has more to say on the appointment of commissioners and the outcome of the elections to the EP does seem to matter for the selection of the Commission president. European-level political parties may well play a role in this selection process. The fact that those nominated to commissioner posts are increasingly political heavyweights may add to this party politicisation (MacMullen 2000; Döring 2007). In sum, the Commission has in several respects become ‘normalised’ as a political executive with a clearer demarcation between the political and the administrative levels, in terms of both recruitment and decision-making (Egeberg 2006a; Wille 2007b).

Executive satellite formation in the EU

The European Commission is not however the only political executive under the auspices of the EU, even if it still is the most fully fledged executive actor at that level. Another instance of political administration is the growing powers and role of the General Secretariat of the Council of Ministers. When it was originally created it was designed to fulfil the functions of conference organisation and committee servicing; in recent decades a considerable expansion in its tasks and responsibilities has taken place (Hayes-Renshaw and Wallace 2006: 101). Little empirical work has been carried out on the nature of its influence on decision-making processes over and above purely secretariat-like functions. Beach (2004: 429) studied the role of the Council Secretariat General in two intergovernmental conferences (the 1996–97 and 2000 IGC) and concluded that it shifted outcomes in many issues, albeit often unseen. More recently, research into the management of EU foreign policy has demonstrated the contribution that this body has made to EU decision-making more generally (Christiansen 2006; Duke and Vanhoonacker 2006).

The Council Secretariat plays a particularly important role when it comes to the Common Foreign and Security Policy (CFSP) and the European Security and Defence Policy (ESDP). Because the member states were afraid of losing sovereignty to the supranational European Commission, they have instead delegated authority to the Council Secretariat in this policy area. Those tasks include agenda setting, policy formulation and implementation, especially in the fields of internal and external security. At the same time the General Secretariat is rather hybrid in its composition with certain policy divisions (especially those relating to defence) being almost entirely composed by national civil servants and seconded national military officers (the European Union Military Staff). Since January 2007 the Council Secretariat even has its own independent Operation Centre. It seems as if parts of the Council Secretariat in this field have very incrementally–and on the whole quietly–developed features that are more similar to those found in executive offices than in classical secretariats (Christiansen and Vanhoonacker 2008). The endowment of the Council Secretariat with executive tasks has been particularly striking since the establishment of ESDP and the appointment of Javier Solana as High Representative of CFSP and Secretary General of the Council Secretariat. The work of the executive management of foreign and security policy requires ‘more rapid reactions to changing circumstances, direct actions by Council Secretariat staff and thus a public profile to the role of the institution that is totally alien to the “old” Secretariat’ (Christiansen and Vanhoonacker 2008: 764).

There are other satellite ‘political administrations’ around the main executive actors, the Commission and the Council. Among the most important of these are ‘comitology committees’ composed of national civil servants (and independent scientific experts) who come together at the Union level in order to contribute directly to rule-making at the Union level (Bradley 2008). They are conferred with specific EU-level tasks on rule-making (largely implementation of more general legislative rules) that operate under both the auspices of the Commission and the Council of Ministers. Both lawyers and political scientists have studied empirically such committees over the years (Joerges and Neyer 1997; Joerges and Vos 1999; Vos 1999; Egeberg et al. 2003; Schaefer and Türk 2007). In addition, both the Commission and the Council have had established under their auspices–in one form or another–a whole series of EC/EU-level agencies, some of which have executive, regulatory and management tasks (Curtin 2006; Dehousse 2008; Pollak and Puntscher Riekmann 2008) and are composed of both European civil servants–and some nationals on secondment. Little empirical study has been undertaken to date on the dynamics of EU-level agencies (but see Trondal and Jeppesen 2008).

From a comparative perspective, it is not surprising that the Commission and also the Council have come to share executive functions with an increasing number of EU-level agencies, since agencification has taken place all over the western world during recent decades (Christensen and Lægreid 2006). Agencies at the European level can be viewed as a compromise between the Commission's wish to gain more powers at the EU level and expectations by the member states that they would be able to control their policies better by delegation to agencies and not the Commission (Keleman 2002). Yet their considerable growth in recent years also points to the fact that the core executives (primarily the Commission but also in certain respects the Council) are engaged in a process of either delegating executive-type powers to lower level actors (‘agents’) in the EU political and administrative system, or of creating new executive and operational tasks at the EU level and tasking newly created actors in that regard (Curtin 2007). It is not so unusual that these agencies may have multiple principals (e.g. the Commission and the Council) since in the EU one finds more power distribution among key institutions than in most parliamentary systems (Dehousse 2008). Although established as separate bodies, empirical study indicates that the Commission (and also the Council) is actually very influential vis-à-vis agencies (Busuioc 2007).

Multi-level executive governance

Implementation at the national level of rules and standards adopted by IGOs usually takes place in an indirect way. By this is meant that it is left up to the member governments to transpose and apply the rules. Implementation in the context of the EU has most commonly been perceived as indirect: transposition and application of EU legislation have on the whole been seen as part of the ‘administrative sovereignty’ that the member states enjoy. The fact that the Commission has a monitoring role in this respect does not in itself change this division of labour between levels of governance. Indirect implementation portrays the Union as a system in which the constituent states are integrated into a larger whole as coherent entities.

Even though EU legislation is mainly adopted by the ‘community method’, indirect implementation is also compatible with an intergovernmental order in which national governments constitute the basic building blocks and in which lines of conflict and cooperation strongly coincide with national borders. Such a mode of governance also has clear policy implications, making community policies highly vulnerable to distortion. Studies have revealed how indirect implementation exposes common policies to considerable influence from national politics and administrative traditions (Goetz 2000; Héritier et al. 2001; Knill 2001; Olsen 2003). In addition, it has been shown that member states' administrative capabilities are positively related to their compliance with EU rules (Sverdrup 2006).

Arguably, however, a new pattern of executive politics across levels of governance might emerge due to two features of institutional development: first the ‘emancipation’ and consolidation of the Commission as a new executive centre outside the ministers' council, and, second, the fragmentation of national governments, vertically as well as horizontally. These two developments have triggered centrifugal forces within national governments, forces that could probably not have occurred if there was simply a combination of a classical IGO and internally integrated governments (Egeberg 2006a). Since the Commission does not possess its own agencies at the member state level, it (and EU-level agencies) seems to establish a kind of partnership with those national bodies responsible for the application of EU legislation as well as some involvement in the development of EU policies. Such bodies may be found among national agencies that are already somewhat detached from their respective ministerial departments.

The term ‘Europe's integrated administration’ (Hofmann and Türk 2006; Hofmann 2008) takes on board the situation where in contemporary European integration processes the traditional distinction of direct and indirect administration has become blurred, with the levels being interwoven to form a more unitary pattern of ‘integrated administration’. The EU level is also involved in implementing activities undertaken by member state authorities, while member states' administrations are involved in creating EU legislation and implementing acts. Case studies within five different policy fields have shown that national agencies in fact seem to act in a ‘double-hatted’ manner, constituting parts of national administrations while at the same time becoming parts of a multi-level Union administration in which the Commission in particular forms the new executive centre. As parts of national administrations, serving their respective ministerial departments, agency officials play a crucial role in transposition of EU legislation as well as in Council working parties and comitology committees. However, when it comes to the application of EU legislation in particular, agencies also cooperate rather closely with their respective directorates in the Commission, often by-passing their ministerial departments (Egeberg 2006a).

Not surprisingly, in this situation agencies may face competing policy expectations from their two ‘masters’ that may be hard to reconcile. A questionnaire study showed that the importance of the ‘parent ministry’ partly depends on its organisational capacity in the field and the extent to which the legislative area is politically contested (Egeberg and Trondal forthcoming). Obviously, the role of the Commission will tend to vary as well depending on, for example, the relative strength of the DG involved (Barbieri 2006). Also, lack of knowledge and novelty make national agencies in new member states more receptive to inputs from the Commission (Martens 2007). ‘Double-hattedness’ entails new patterns of cooperation and conflict in executive politics, evoking conflicts that cut across national boundaries as well. It could also be expected to lead to more even implementation across countries compared to indirect implementation, although not as even as if the Commission had its own agencies or if the application of EU law was in the hands of EU-level bodies. We need empirical studies on how ‘double-hattedness’ impacts on implementation practices.

A third possibility is that implementation of EU legislation and other measures are networked. In the policy analysis literature of the past decade, networks is one of the most frequently used terms. Its emphasis is on informal, loose structures that extend across and beyond hierarchies and are composed of bureaucrats and other policy experts, on the one hand, and interest representatives, NGOs and purely private actors, on the other. Elected politicians are not frequently at the core of networks (Papadopoulos 2007). Social complexity often requires decision-making to be devolved to experts and the informal policy networks and epistemic communities by which they pool their existence. In other words, policy networks are a prime example of administration unbounded in the sense of eroding boundaries between government and non-government (Shapiro 2001).

Networked implementation means that vertical relationships between, on the one hand, national agencies and, on the other hand, ministerial departments, Commission directorates or EU-level agencies are complemented by horizontal relationships among ‘sister agencies’ in various countries. A national agency may see itself as part of a transnational network of institutions pursuing similar objectives and facing analogous problems (Majone 1996; Slaughter 2004). Thus, the actual amount of discretion that national agencies exercise when implementing EU legislation might be circumscribed in practice through information exchange and consultation among ‘sister agencies’ rather than through ‘steering dialogues’ with ‘superior’ bodies. In this sense, strong agency networks could challenge the authority of national governments as well as that of EU-level bodies.

It follows that such networks might enhance implementation uniformity across member states, though not necessarily in accordance with the intentions of the politically superior institutions. In order to enhance its control, the Commission may itself have initiated the creation of such a network, as in the telecom sector (Nørgård 2006) or in the education area (Gornitzka 2008). However, the EU executive has also successfully linked into already existing networks that have been relatively independent in the past (Eberlein and Grande 2005: 101–102), but for which it has gradually taken over the coordinating functions, as seems to be the case for the implementation network of pollution authorities (Martens 2006). Thatcher and Coen (2008) have observed that, over time, networks have become gradually more institutionalised and centralised around EU-level bodies. This finding is underpinned by Egeberg and Trondal's (forthcoming) questionnaire study: national officials applying EU legislation find inputs from ‘sister agencies’ in other countries much less important than inputs from their respective ministries or from the Commission.

Accumulating (Democratic) accountability across orders?

Accountability is a broad term that reflects a range of understandings rather than a single paradigm. Until recently, accountability was not a term in common use, nor did it figure as a term of art outside the financial contexts of accountancy and audit (Harlow 2002). Today as Richard Mulgan (2000: 555) has aptly noted, the word ‘crops up everywhere performing all manner of analytical and rhetorical tasks and carrying most of the burdens of democratic “governance”’. What can be designated the original or ‘core’ sense of accountability is that associated with the process of being called ‘to account’ to some authority for one's actions. Such accountability has a number of features: it is external, it involves social interaction and exchange and it implies rights of authority in that those calling for an account are asserting rights of superior authority over those who are accountable, including the rights to demand answers and to draw consequences, possibly including the imposition of sanctions.

In the context of a democratic state, the key accountability relationships in this core sense are those between citizens and the holders of public office, and within the ranks of office holders, between elected politicians and bureaucrats. In a delegation model of accountability, relationships are established as a means of carrying out the delegation of tasks and the communication of expectations. The very effort of establishing such a relationship implies that there is no intention of completely surrendering authority over the exercise of the task but rather that some control will attempt to be maintained by the principal. At the same time, the need for accountability and the introduction of accountability mechanisms are relevant precisely because the principal has delegated powers to an agent and, thus, renounced direct control. Accountability is needed in order to compensate for the absence of direct control through oversight once the principal is no longer steering directly (Busuioc 2007).

One core understanding of the politics of delegation to the EU is that there was a strong element of deliberate construction by national executives in order to escape the constraints of representative democracy that applied at the national levels (Mair 2005). In terms of the core institutions of the EU today, the Commission and the Council, they still reflect the way that they were originally conceived and constructed. In transferring or delegating authority to the Commission, an executive and technocratic institution (political administration), the primary bases for legitimacy were a combination of seemingly ‘depoliticised’ expertise, ministerial oversight, as well as a (judicially enforced) respect for the tenets of administrative legality (Lindseth 2003). What has changed is the role that the European Parliament gradually acquired in being able to hold the Commission to account, both ex ante and ex post, for its actions and inactions. This role had nothing to do with it being conceived as the political ‘principal’ of the Commission (unlike national parliaments vis-à-vis national governments) but rather with it being an available and logical accountability forum at the same power level as the Commission itself, with some ‘political clout’ to bring in to a developing relationship. The coupling that has taken place between the European Parliament and the European Commission has attempted to deal with the reality that the Commission has developed in some salient respects as an autonomous actor at the level of the EU political system itself.

The central role of the Commission in the EC system was since the beginning balanced by the intergovernmental role of the Council of Ministers. Here there were no supranational technocrats and experts, but rather national government ministers, permanent representatives, national civil servants that, in theory at any rate, act under constant instruction from national executives, just as they would at home. They can be recalled or re-instructed by the national level and the ministers are subject to the general supervisory role of the national parliaments. National civil servants are subject to the chains of national administrative or hierarchical accountability, to their superiors in the civil service, ultimately to the minister and via the doctrine of ministerial responsibility back to the parliament.

Little indeed has changed in this original understanding vis-à-vis the Council of Ministers. The role that national parliaments actually play in holding their ministers (and through them their civil servants) to account ex post varies substantially from country to country and is dependent on national constitutional traditions and cultures (Auel 2007). The problem has been sharpened by the advent of and increase in qualified majority voting in the sense that government ministers can be outvoted (or until recently could claim to have been, because of secretive meetings) and ex post accountability can only be for the input of that one government minister or prime minister (in the case of the European Council). What has not changed at all in terms of the original understanding is that the Council of Ministers, as a body or institution, is not subject to any other, non-principal-based, accountability forum of a political nature. The European Parliament has no role to play of any significance in holding the Council of Ministers to account for its actions or inactions (Harlow 2002).

What has changed with regard to the Council of Ministers compared to the original understanding is the manner in which the Council of Ministers has evolved as an institution at the EU level. This is as a result of the evolution of the rules applying and the manner in which it is organised as an institution. In addition, the fact that its administrative apparatus has undergone considerable institutional change has had an effect in terms of how we must understand the institution overall. The fact, for example, that the General Secretariat of the Council has acquired tasks of an executive and even operational nature in certain policy fields (defence and security issues) and exercises this in a fashion that is autonomous of a veto by individual ministers makes it difficult to understand the Council of Ministers as a complex institution in purely intergovernmental terms in the contemporary EU. Even with regard to the Council of Ministers, therefore, the notion that the only control (other than a legal one) is via the national representative circuit (leaving to one side for present the question whether it is an effective one) does not suffice.

The concept of ‘holding to account’ not only obliges actors to disclose information and justify their behaviour, but also requires a social relationship between the actor and what can be loosely termed an accountability forum of one type or another, and moreover may require the establishment of a mechanism. Bovens (2007) has defined accountability as a social relationship between an actor and a forum, in which the actor explains his conduct and gives information to the forum, in which the forum can reach a judgement or render an assessment of that conduct, and on which it may be possible for some form of sanction (formal or informal) to be imposed on the actor. The attractiveness of this rather limited definition for many of those working on accountability related issues is that it provides a clear procedural and organisational framework with a focus on the relationship between the actor, potentially any actor (including for example actors that can never be understood as agents, such as networks), and an accountability forum, potentially any kind of accountability forum (it can be legal, administrative, financial as well as the more obviously political). In addition, it limits the focus of accountability to the ex post and to those mechanisms that provide in some manner for the imposition of sanctions or consequences in a looser, not strictly legal, sense. Quite a number of those working on accountability in the EU context take the Bovens definition as their point of departure precisely because it enables them to take account of actors and forums that are not necessarily in any delegation relationship (Harlow and Rawlings 2007; Papadopoulous 2007).

The advantage of the Bovens definition is that it seems to offer many possibilities for analysis of empirical practices that are evolving in the context of the contemporary EU political system. Thus non-majoritarian agencies may not be subject to a single easily definable political principal, but they are being constructed in such a fashion, at least in recent years, that one can discern a structural coupling with a number of emerging accountability forums. Moreover, those accountability forums are themselves engaged in a process of self-construction and adaptation to ensure that they can consolidate such serial structural coupling in specific circumstances. To give one example, the powers of the European Parliament to act as a public accountability forum with regard to a number of these agencies are being given flesh and blood in the manner in which the Committee on Budgets very actively engages in processes of requiring information and insisting on mutual processes of deliberation on their actions and inactions, subject to sanctions such as withholding 10 per cent of their reserves or–in the final analysis–refusing to authorise their budget (Curtin 2006; Busuioc 2007).

Another more complicated example is provided from the annals of comitology and especially the evolving role of the European Parliament in that context. The recent (inter-institutional) agreement from July 2006 squarely recognises the role of the EP as the political accountability forum par excellence in the EU political system, despite the fact that the EP can in no sense be qualified as a principal (Bradley 2008). This is a very clear example of inter-institutional politics producing change in the political system of the EU itself, over and above and in between the ‘grand’ moments of treaty revision. Indeed, the Lisbon Treaty will go even further, conferring the EP alongside its co-legislature the Council of Ministers with a right of legislative ‘call-back’ for executive rule-making delegated in specific legislative acts.

There are many other couplings taking place between various actors in the EU firmament and accountability forums. When it comes to networks of actors, be they policy networks, enforcement networks or others, the coupling with accountability forums on the democratic or legal circuit is much more problematic. One idea has begun to be developed to couple networks of actors with networks of accountability forums and to institutionalise in some ways a developing relationship. Harlow and Rawlings (2007) have done pioneering work in mapping various emergent practices from this perspective. Examples range from networks of parliaments to networks of courts and Ombudsmen.

At the same time, it is important to recall that the rather technical and precise definition of accountability in the manner in which empirical work is now being carried out will not, in and of itself, solve the crisis of legitimacy that the EU continues to suffer. Rather, accountability is not, in and of itself, ‘the solution to the legitimacy problems of the European Union’ (Puntscher Riekmann 2007). While accountability practices and procedures are important, even essential, they do not satisfy the citizens in an institutional set-up that is fundamentally contested (Benz et al. 2007). The EU political system is arguably ‘special’ by the degree of its de-politicisation, the fact that non-majoritarianism is so rife within the EU. Instead of politicians taking decisions embedded in a democratic principal–agent relationship with a transmission model of administration and accountability in the final analysis to the citizens who can throw them out, we have civil servants of all levels, experts and stakeholders with discrete powers and tasks who are not embedded in clear lines of political accountability (as in the national system).

There is at the level of the EU political system a lack of structural transparency in the system as a whole, a lack of visibility in who is acting, in what regard and where. This has to do with the manner in which the EU political system has evolved over the years, bit by bit, by virtue of treaty change and lower level institutional practice (Curtin and Dekker 1999). That lack of visibility also has to do with the fact that for a significant part the political system is multi-level and dependent on an elaborate interaction of various actors across various territorial levels. It is very difficult to get a sense that polity, policy and politics are ‘joined up’ and that there is a holistic coupling with what can be called the (representative) democratic circuit.

Europe's executive order–old and new

One way of gauging whether a common European executive order is emerging or not is to observe the extent to which national administrations converge on a common European model (Olsen 2003). In this article, however, the focus has been on organised relationships among states and the advent of executive bodies at the European level. We have characterised the regularisation of bilateral diplomacy subsequent to the Peace of Westphalia as the first executive order. The gradual institutionalisation of multilateral diplomacy following the Vienna Congress and, not least, the growth of sectoral and functional IGOs from the second half of the nineteenth century on, constitute in our view a second order. However, although increasingly more subtle and sophisticated in organisational terms, and with more potential for collective problem solving, this second order did not transcend or replace the basically intergovernmental order inherited from the past.

We have argued that the EU and its predecessors have placed the development of the European executive order on a radically different trajectory. This is primarily related to the consolidation of the Commission as an executive centre with considerable integrity in its relations to governments and the Council, but also to the development of comparable executive units within the Council as regards security and defence policy and in the form of EU-level agencies as regards several other policy areas. Simultaneously, over the last couple of decades, fragmentation of national governments both vertically and horizontally has made national agencies that are responsible for policy implementation (and to some extent preparation) susceptible to ‘agency capture’ by EU-level bodies charged with similar tasks. Thus, unprecedented centrifugal forces within national executives have emerged, forces that were not likely to occur from the combination of IGOs and nationally integrated governments. The resulting ‘double-hatted’ national agencies and ‘integrated administration’ across levels of governance entail new patterns of executive politics in which conflict and cooperation may cut across national boundaries. Compared to indirect administration, we might also expect somewhat more even implementation practices across countries.

All the three executive orders dealt with in this article represent innovations as regards the ways Europe has been politically and administratively organised. Drawing on ideas from historical institutionalism on shocks as catalysts for radical institutional change (e.g. Steinmo et al. 1992; Thelen 2003), it is not that surprising that the innovations happened subsequent to major crises, namely the Thirty Years War, the Napoleonic Wars and the Second World War. Shocks provide windows of opportunity that entrepreneurs may exploit in convincing actors to accept things they would not accept under normal circumstances. In between ‘critical junctures’ institutions are changing less profoundly and incrementally, through processes of learning, design, diffusion and inter-institutional dynamics (Olsen 2007; Héritier, 2007), as we have seen as regards the Commission–EP relationship. However, path dependence and the ‘stickiness’ of pre-existing orders are also striking (see March and Olsen 1989): bilateral diplomacy among EU countries has not been declining over the last couple of decades, it has been strengthened in relation to new member states, and member states' staff at the permanent missions in Brussels has been steadily growing as well (Bratberg 2008). One could have expected that the growth of common institutions, integrated administration across levels of governance and transfer of policy tasks to the EU level would have reduced the need for embassies in member states. And, in general, IGOs seem to flourish more than ever (Schiavone 2005).

Thus, orders are co-existing in Europe (Olsen 2007). The accumulated executive order consists of qualitatively new elements that transcend the inherited intergovernmental order. The persistence of diplomacy and IGOs represents recognition and reproduction of a system of states (Jönsson and Hall 2005). Due to its complexity such an order may be rather robust and sustainable; ‘a vehicle for highly variable terrain’ (see Landau 1969). However, it raises sensitive questions about which actors should be held to account, at what level of order and to whom. It is obviously easier to establish a chain of control in relation to councils of ministers based on unanimity than to the EU Council based heavily on qualified majority voting. The consolidation of a full-fledged political executive as the Commission is particularly intricate and the advent of EU-level agencies with multiple principals challenges standard templates on how accountability should be dealt with. The same holds for the role of ‘double-hatted’ national agencies in an integrated administration across levels of governance.

Acknowledgements

We want to express our gratitude to the CONNEX Network of Excellence on ‘Efficient and Democratic Governance in a Multi-level Europe’, funded by the EU's Sixth Framework Programme. CONNEX made possible the thematic conference ‘Towards a European Administrative Space’ held at the University of London 16–18 November 2006 on which this Special Issue is based. We also appreciate very much the support of WEP's co-editor Klaus Goetz in preparing this publication and the comments by Johan P. Olsen on our introductory article.

Notes

1. The articles that form the basis of this Special Issue were prepared in the context of the ‘Connex Network of Excellence on efficient and democratic governance in the EU’, funded by the European Commission as part of its Sixth Framework Programme of Research. The publication has been made possible with its support. Most of the authors presented first versions of their articles at the ‘thematic conference’ on ‘The European Administrative Space’ held at the University of London in November 2006.

2. The Commission services' self-control of appointment processes is neatly illustrated by Commissioner Verheugen's suggestion that commissioners should have more power to pick their directors-general to ensure their loyalty to their political masters. According to European Voice, Verheugen's comments echoed criticism by Chancellor Merkel, who had said ‘commissioners’ lack of control of their directors-general was unthinkable for a German minister’ (12–18 October 2006).

3. According to a former cabinet member, the present size of the college implies that the president usually decides in consultation with the responsible commissioner, thus making it difficult for other commissioners to make themselves heard (Eppink 2007). Consistent with this, the Secretariat General of the Commission, serving the president in particular, has, from 2000, reinforced its central coordinating and monitoring role (Kassim 2006: 84).