Beyond delegation: transnational regulatory regimes and the eu regulatory state

Abstract

This article investigates the allocation of regulatory authority in the EU. By introducing the concept of a ‘regulatory regime’, it criticizes not only earlier accounts of the EU ‘regulatory state’, but also current delegation approaches. As a starting point, it identifies a dilemma for the EU regulatory policy. Despite the rising need for uniform EU-level rules in the internal market, the bulk of formal powers and the institutional focus of regulatory activities continue to be located at the national level. This results in a supranational regulatory gap. Our thesis is that this gap is partly filled by transnational regulatory networks. Under certain conditions, regulatory networks offer a back road to the informal Europeanization of government regulation. However, the informalization of governance is vulnerable to strong distributive conflict, and, if effective, it raises unresolved problems of democratic legitimacy.

Edgar Grande, Chair in Comparative Politics, Ludwig-Maximilians-Universität München, Geschwister-Scholl-Institute für Politische Wissenschaft, Oettingenstr. 67, D-80538 München, Germany. Tel: [phone]. Fax: [phone]. email: [email protected].

Keywords:

• Delegation
• informalization
• multi-level governance
• regulatory state
• transnational networks

Acknowledgements

This article is based on research supported by the Deutsche Forschungsgemeinschaft (DFG) for the project on Regulierungsstaat und Infrastuktur, directed by Edgar Grande at the Technische Universität München. The authors would like to thank Ute Hartenberger and Olivia van Riesen for their contributions to this research and for their stimulating discussions.

Notes

Edgar Grande, Chair in Comparative Politics, Ludwig-Maximilians-Universität München, Geschwister-Scholl-Institute für Politische Wissenschaft, Oettingenstr. 67, D-80538 München, Germany. Tel: [phone]. Fax: [phone]. email: [email protected].

The concept of ‘regulation’ can be found in many variants in the literature (Baldwin and Cave 1999; Mitnick 1980; Noll 1985). We use regulation to refer to a specific form of government action, i.e. the supervision and control of market actors and behaviour. Following US regulatory research, we define regulation as external, lasting, case-related supervision of markets by governmental actors who lay down and apply rules ‘in the public interest’ in a formal procedure (Selznick 1985).

The distinction between the ‘positive’ and the ‘regulatory’ state was introduced by Harold Seidman and Robert Gilmour into the scholarly debate. In their view, the rise of the ‘regulatory state’ is the very essence of a fundamental change in the way the state conducts its business: by ‘providing services without producing them’ (Seidman and Gilmour 1986: 119).

This bias may not be inherent to the theoretical perspective, but the effect remains the same. As Kelemen (2003: 194, fn. 3) notes: ‘There is nothing about rationalist analysis that precludes it from considering the impact of informal institutions on actor behavior, but rationalist analysis of the EU has focused on formal institutions.’ Within a rationalist framework, Tallberg (2002) attempts to conceptualize delegation as a dynamic process driven by feedback loops that link the consequences of first-time delegation on future rounds of delegation.

This definition connects to ‘thick-institutionalist’ concepts in the regulatory literature. Eisner (1993: 1), for example, defines regulatory regime as ‘a historically specific configuration of policies and institutions which structures the relationship between social interests, the state, and economic actors in multiple sectors of the economy’ (also see Doern and Wilks 1998).

For an up-to-date survey of these agencies, of their missions and powers, see http://europa.eu.int/agencies/index_en.htm

This has, for instance, to date prevented the long-discussed creation of an independent European regulatory authority for telecommunications.

On these aspects of the transnational regulation of the telecommunications sector, see Hartenberger (2004).

See the typology used by Rhinard (2002) who distinguishes between Commission advisory groups, Council working groups, and comitology committees. Egeberg et al. (2003) use the term expert committees instead of advisory groups.

The new Electricity Directive (2003/54/EC) and the Regulation on cross-border trade in electricity (1228/2003) were adopted by the Council and the Parliament on 26 June 2003.

For details, see website http://europa.eu.int/comm/energy/electricity/regulators_group/index_en.htm

European Commission, DG Energy and Transport Working Paper, Strategy Paper: Medium Term Vision for the Internal Electricity Market, Brussels, 1 March 2004, available as http://europa.eu.int/comm/energy/electricity/florence/doc/florence_10/strategy_paper/strategy_paper_march_2004.pdf

The position of constitutional lawyers, who describe the informal rules as ambivalent, is more differentiated (cf. Schulze-Fielitz 1998).