Understanding the European Commission’s use of politicisation in the negotiation of interinstitutional agreements: the role of consultations and issue framing

ABSTRACT

The negotiations that precede the adoption of EU interinstitutional agreements present relevant opportunities for political entrepreneurs to politicise the interinstitutional dialogue. This study asks when and how does the European Commission politicise the negotiations of EU interinstitutional agreements? Building on a classic model explaining the politicisation of EU at domestic level, the study argues that the Commission has incentives to politicise negotiations when these revolve around substantive agreements that propose relevant change, when it anticipates autonomy or power losses and opposition on behalf of negotiations counterparts. Politicisation is used as a tool for re-legitimisation with a view to strengthening the power to shape negotiation outcomes. Stakeholder consultations and issue framing are instruments used to deploy classic politicisation strategies of expanding publicity, the universe of actors and controversy. The study shows how the Commission politicised the negotiations of two most recent agreements on a mandatory Transparency Register and Better Law-making.

KEYWORDS:

• European Commission
• interinstitutional agreements
• politicisation strategies
• politicisation instruments
• stakeholder consultations
• issue framing

Introduction

Interinstitutional agreements (IIAs) are a well-established form of coordination and collaboration on procedural and substantive matters between the Commission (EC), the European Parliament (EP) and the Council. IIAs emerged as a practice in the 1960s and played a key role in building ‘the fabric of EU governance’, serving as a ‘sub-constitutional driving force of European integration’ (Riekmann, 2007, p. 4). An interesting theoretical puzzle regarding IIAs is the extent to which the negotiations preceding their adoption may be politicised. On the one hand, IIAs are an instrument offering pragmatic, ad-hoc solutions to procedural issues or substantive institutional disagreements. They allow efficient solutions to key interinstitutional tensions by circumscribing procedural hurdles and ‘avoiding the cumbersome procedures of treaty amendment’ (Monar, 1994, pp. 695–696). IIAs offer a ‘coordinating or even peace-building tool for interinstitutional conflicts’ (Eiselt, Pollak, & Slominski, 2007, p. 77). This (functionalist) perspective suggests that interinstitutional negotiations are less susceptible to politicisation. On the other hand, IIAs are opportunities used by institutional actors to pursue specific policy and political goals (e.g., enhancing their role in legislative decision-making or their oversight powers, cf. Stacey, 2010). This (political) perspective suggests that IIAs are likely to increase conflict and their negotiations are more susceptible to politicisation (Kietz & Maurer, 2007). The implications of this perspective are important insofar they suggest that politicisation is also a top-down phenomenon characterizing the EU polity and a strategy employed by supranational institutional actors (see also Blauberger & Martinsen, 2020 and Reh, Bressanelli, & Koop, 2020).

This study taps into this second perspective and asks: when and how does the European Commission politicise the negotiations of EU interinstitutional agreements? Its analytical focus on the Commission is justified in two ways. First, the literature analyzing IIAs as a legal instrument of informal constitutionalisation, parliamentarisation and institutionalisation of EU governance focuses primarily on EP’s role in negotiations and the Council-EP power dynamic (Eiselt et al., 2007). IIAs rest in-between a legal document and a political declaration and tackle various substantive and procedural issues. They can result in important changes to the institutional status quo. However, the literature pays little attention to the Commission’s role in these negotiations (exceptions are Stacey, 2012 and Cini, 2013). This neglect is surprising given that the Commission enjoyed agenda-setting (drafting) power in some negotiations and several agreements introduced additional constraints on its institutional autonomy and power. It is reasonable to assume that in some negotiations the EC has incentives to act as a political entrepreneur seizing political opportunities facilitating competence and status gains as part of interinstitutional negotiations (Wille, 2013). Second, research shows that politicisation is part of the Commission’s institutional structure and exercise of executive power (Haverland, de Ruiter, & Van de Walle, 2018) and of its policy formulation strategies (Rauh, 2019). However, we lack a study of how the EC may politicise IIAs negotiations when it enjoys drafting and agenda-setting prerogatives. Considering the Commission’s loss of power following treaty reforms (Kreppel & Oztas, 2017) and that IIAs became increasingly ‘more integrative in the last 20 years’ by ‘reallocating political power among the Three’ institutions (Stacey, 2012, p. 397), it is important to examine when and how the Commission chooses to politicise negotiations to ameliorate status and power losses and/or enhance its relevance and power. The EP set a successful example regarding the use of these negotiations to recalibrate (inter)institutional power dynamics: the 2005 Framework Agreement between the EC and EP gave ‘the EP a veto power over the nomination of individual commissioners’ (Stacey, 2010, p. 197). Therefore, it is important to understand to what extent the Commission learned from EP’s success in negotiating IIAs, and is now able to use both agenda-setting and strategic ‘politicisation management’ (Schimmelfenning, 2020) to get what it wants in negotiations.

This study focuses on the politicisation of interinstitutional negotiations, which taps directly or indirectly into all three forms of politicisation of the EU: ‘politicisation of EU institutions, […] decision-making processes and […] of issues related to European integration’ (De Wilder, 2011, p. 560). In line with the research on the politicisation of EU integration (Grande & Hutter, 2016; Statham & Trenz, 2015), I define politicisation as a process through which: an issue becomes ‘a subject of public regulation and/or a subject of public discussion’ (De Wilde & Zürn, 2012, p. 139); the visibility/publicity of issues is significantly increased; the range of actors involved in debates is expanded; and a polarisation of actors’ positions emerges. Key to this process is the presence of one (or more) political actors that publicly present themselves as representatives and contest other representatives (De Wilder, 2011, p. 560). They fuel and drive the process forward. These actors usually face the challenge of lacking direct democratic legitimacy and a traditional representative mandate. This makes them more prone to use politicisation as a tool of re-legitimatisation. This study adopts a more complex definition of politicisation and departs from more traditional conceptualisations that define it as simply the domination exerted by ‘elected politicians’ over ‘assumed neutral bureaucratic actors’ (Smismans, 2017).

I argue that in a hostile environment marked by increasing contestation of its democratic legitimacy, the Commission chooses to use its drafting prerogatives to strategically politicise interinstitutional negotiations. The goal is to increase its legitimacy, enhance its negotiation leverage and maximise chances to shape negotiation outcomes. The Commission decides to engage in political entrepreneurship and ‘assertive politicisation’ (Bressanelli, Koop, & Reh, 2020). Politicisation is chosen and employed as an instrument of re-legitimisation and empowerment for a bureaucracy facing democratic contestation. Politicisation allows the EC to build input legitimacy, to make a claim the draft agreement was informed by public debates, reflects policy controversies, and is thus embedded in a legitimate process and constitutes an attempt to ensure representation and responsiveness to the European public demands, broadly defined. This in turn legitimatises the Commission’s negotiating position and enhances its bargaining power. When drafting the text of IIAs and setting the agenda for negotiations, the Commission can use three dimensions to politicise interinstitutional dialogue: increasing the public visibility (publicity) of issues subject to negotiations; increasing the number of actors involved in debates; increasing the level of conflict over discussed issues. Stakeholder consultations and issue framing are instruments used to implement these dimensions. Adopting a case-study research design, I show how the Commission deployed this politicisation strategy when negotiating two recent agreements: the IIA on a mandatory Transparency Register (still under negotiation since 2016) and the IIA on Better Law-making (2016).

The study builds on the extensive literature on EU agenda-setting (Kreppel & Oztas, 2017), that on the politicisation of supranational policymaking (Rauh, 2019; Van der Veer & Haverland, 2018) and that on politicisation of EU integration in domestic politics (De Wilde, Leupold, & Schmidtke, 2016). Its contribution is threefold. Conceptually, it proposes an innovative perspective over the politicisation of EU policymaking from within. It provides one of the few analytical accounts explaining how politicisation can be injected in the EU polity by supranational institutional actors (Schmidt, 2019). In line with the innovative analytical approach proposed by Bressanelli et al. in this issue, and different from the mainstream research on EU politicisation, I argue that politicisation is not confined to the realm of domestic politics. Instead, it transcends national arenas and constitutes a phenomenon that plays a key role in EU interinstitutional dialogue. Theoretically, the study contributes by illustrating how key dimensions used to politicise the EU in national and multi-level politics also work when deployed by a different kind of political entrepreneur (a supranational bureaucracy) in interinstitutional negotiations. Empirically, the study analyses politicisation strategies used in negotiating two IIAs addressing fundamental issues of EU democratic governance. This provides relevant insights illustrating the innovative re-conceptualisation of EU politicisation proposed in this special issue and presents interesting findings about an institutional actor less studied in the literatures on politicisation and IIAs.

EU interinstitutional agreements

IIAs are informal (non-sanctioned by a third party) accords used by EU institutions to coordinate and further institutionalise their cooperation (Stacey, 2010). Alongside ‘unwritten agreements, exchanges of letters, informal declarations, Rules of Procedures’ (Stacey, 2010, p. 66), IIAs allow supranational institutions to find suitable solutions to legal, procedural or substantive issues unaddressed or only partially addressed by Treaties. They contribute towards institutionalizing the EU and furthering European integration through informal constitutionalisation of supranational governance. IIAs had distributive effects and ‘enhanced the democratic quality of the EU by empowering the EP relative to both the Council and the Commission’ (Riekmann, 2007, p. 5). Research unanimously acknowledges their contribution to the parliamentarisation of EU by facilitating a continuous reallocation of powers from Council and Commission to the EP. The Parliament benefited most from agreements on budgetary issues, legislative and oversight procedures, and Council’s communication practices (Stacey, 2010). Interinstitutional negotiations helped the EP to shape interinstitutional dynamics. This raises the question of whether, how and to what extent these negotiations are also used by the Commission to address anticipated redistributive consequences of IIAs and eventual power struggles.

A classic interpretation of IIAs is that they are instruments of informal ad-hoc problem-solving and consensus-building that facilitate compromise solutions, and improve in time collaboration and the overall quality of interinstitutional relations (Riekmann, 2007). Traditionally, IIAs involved a limited number of actors: a combination of two of the three main EU institutions. They were concluded through informal negotiations conducted behind closed doors, enjoying little publicity and formal recording. This feature makes their empirical research notoriously difficult (Stacey, 2010, p. 76). Opaqueness facilitated compromise-building, scaling-down disagreement and avoiding actors’ polarisation. This is why from a functionalist perspective IIA negotiations are a less probable venue for politicisation. This is particularly the case when negotiations revolve around technical specifications of primary law or establishing the working procedures of new institutions: i.e., the Ombudsman or comitology committees (Eiselt & Slominski, 2007, p. 214).

However, an alternative view indicates that ‘IIAs are often used by institutional actors as a lever to pursue a given political goal, thus causing interinstitutional conflict’ (Eiselt et al., 2007, p. 77). When negotiating ‘‘higher level’ issues such as general principles of democracy’ (Eiselt & Slominski, 2007, p. 215), political entrepreneurs may seek to achieve specific goals and enhance their power. They use the drafting of IIA text proposed for negotiations as an opportunity to increase the publicity surrounding negotiations, the level of policy conflict and the number of actors involved in debates. Here, negotiations are susceptible to politicisation.

Stacey (2010:, pp. 100–103) proposed a threefold typology of IIAs, using as key criteria the amount and type of institutional change introduced. Category I are procedural agreements bringing little to no institutional change or power shifts but merely ‘institutionalise the status quo’ (the 1994 IIA on the codification of legal texts). Category II are substantive agreements that ‘adjust interorganisational relations’ and introduce small institutional changes that augment authority (the 2003 IIA on better law-making). Category III are substantive agreements introducing new rules which alter significantly the balance of power and result in ‘power transfers’ between institutions (the 2007 IIA on co-decision, the 2006 IIA on comitology, the 1993 IIA on budgetary discipline). Stacey’s study shows a constant increase in the number of substantive agreements indicative of their role in furthering integration.

The Commission and the politicisation of interinstitutional negotiations

This study examines the Commission’s approach to interinstitutional negotiations. It builds on a classic model of politicisation proposed by De Wilde and Zürn (2012), filtered through the theoretical lenses of agenda-setting and bureaucratic politics. This model contends that an increase in levels of EU authority increases the likelihood that European integration issues (which are otherwise decided in elitist and secluded decision-making forums) enter the public sphere and become subject to increased levels of public scrutiny and controversy. This leads to their politicisation, evident in rising publicity and citizen awareness, increased mobilisation of actors and resources in policy controversies and a polarisation of key actors’ demands and positions (De Wilde & Zürn, 2012, p. 141).

This theoretical approach is justified in two ways. First, IIAs contribute to furthering integration by consolidating and institutionalizing the supranational institutional order. Over time, they contribute towards increasing EU’s authority by strengthening its institutional structures and ‘governance fabric’, which is fundamental in the politicisation of European integration (De Wilde & Zürn, 2012, p. 140). By strengthening the supranational order, IIAs allow EU institutions to address the pressures coming from both citizens and Member States, which demand increasing the legitimacy and efficiency of supranational institutions and decision-making. Second, IIAs are used to address key issues that remained unaddressed or were only partially addressed in Treaties. Their initiation, negotiation and adoption create a unique ‘political opportunity structure’ (De Wilde & Zürn, 2012, p. 143) for political entrepreneurs interested in shifting decision-making from secluded bargaining to public debate (Statham & Trenz, 2013, p. 967).

Incentives to politicise negotiations

Politicisation narratives feature actors that play an active role in driving politicisation by increasing ‘issue salience, actor expansion and actor polarisation’ (Grande & Hutter, 2016, p. 8). These entrepreneurs are usually parties or political elites when the EU is politicised in domestic politics (Statham & Trenz, 2013). Actors employ politicisation to serve their legitimacy needs. The link between politicisation and legitimacy is explicitly recognised: Zürn (2016, p. 244) describes politicisation as ‘the process of confronting EU governance with the normative requirements of a legitimate political order’.

Building on theories of agenda-setting, I argue the role of political entrepreneur setting the agenda of interinstitutional negotiations is played by the institutional actor enjoying the prerogative of drafting the agreement text proposed for negotiations. EP employed this strategy when negotiating IIAs on budget, legislative procedures and comitology (Stacey, 2010). When the Commission enjoys drafting prerogatives, it has incentives to act as a political entrepreneur and politicise negotiations. These incentives depend on several considerations: whether the agreement is procedural or substantive and whether it tries to institutionalise a practice, modify a procedure or ‘overhaul interorganisational rules’ (Stacey, 2010, p. 101); whether the agreement leads to a redistribution of power or resources amongst institutions; whether the Commission anticipates opposition to its draft text from counterparts; whether it needs to build a reputation for democratic legitimacy to shape negotiation outcomes.

I contend the Commission has strong incentives to politicise negotiations when the agreement is substantive and proposes a non-negligible (relevant yet moderate) amount of change to the interinstitutional power dynamics. The level of politicisation varies according to the amount of change proposed: the more significant the change of status quo, the higher the politicisation of negotiations in order to create the policy and political momentum required for a shift in the institutional status quo. The amount of change proposed constitutes the key background condition that takes precedence over all others.

Second in importance is a consideration of whether the proposed text and status quo change will result in power or autonomy losses on behalf of any of IIA signatories. High levels of politicisation are more likely when either the Commission or its negotiation counterparts expect to incur important power or autonomy losses. If the Commission incurs losses, it has incentives to politicise negotiations in order to increase its bargaining power and try to prevent or reduce the magnitude of these losses by moving negotiations outcomes closer to its ideal point. If the EP and/or the Council incur losses, the Commission anticipates high levels of opposition during negotiations on their behalf. The Commission has incentives to politicise negotiations to increase its bargaining power, fight effectively against this opposition and shape negotiation outcomes. In both scenarios, the Commission needs to enter negotiations with a draft IIA text for which it can claim input legitimacy and a solid democratic mandate that would enhance its negotiation leverage and allow it to overcome opposition to proposed measures (Van der Veer & Haverland, 2018). Table 1 summarises this. When all or some of these conditions emerge, the Commission deploys its politicisation strategy described next.

Table 1. Conditions informing the Commission’s incentives to politicise negotiations.

Background condition	Power or autonomy losses foresight	Legitimacy need	Incentives to politicise
Substantive IIA proposing significant change	Important autonomy or power losses for any of the IIA signatories EC anticipates opposition from EP and/or Council if they incur power or autonomy losses	EC needs input legitimacy to boost its negotiation leverage/power	High
Substantive IIA proposing relevant but largely incremental change	Limited distributive consequences and autonomy or power losses for any of the IIA signatories EC anticipates limited opposition on behalf of EP and/or Council	EC does not need input legitimacy to boost its negotiation leverage/power	Low

Politicisation strategy: dimensions

Building on bureaucratic politics research, I argue the Commission has incentives to act as a ‘purposeful opportunist’ and a political entrepreneur (Kreppel & Oztas, 2017) during negotiations. It strategically uses a three-dimensional politicisation strategy, congruent with de Wilde and Zürn’s model. First, it increases the visibility/publicity of agreement’s substantive content and negotiations. Second, it expands the number and range of actors involved in debates. Third, it creates controversy and increases conflict over text and negotiations. The ultimate goal is strengthening the Commission’s input legitimacy and eventually enhancing its power to shape negotiation outcomes. The extent to which the Commission employs all three or a combination of these dimensions provides an indication of how much politicisation it decides to inject in negotiations.

Politicisation strategy: instruments

To implement this strategy, the Commission employs two key instruments available to bureaucratic agenda-setters: the prerogative to consult stakeholders during policy-formulation and the advantage of issue framing early in the policy cycle (Daviter, 2007). Stakeholder consultations contribute to politicisation by increasing publicity, facilitating the participation of the public and stakeholders in policymaking and increasing conflict and controversy (Smismans, 2017). The Commission enjoys high levels of discretion on when and how to consult (Bunea & Thomson, 2015, p. 520). Therefore, consultations may inject varying levels of politicisation, depending on their format: open vs. closed consultations. Consultation format affects levels of issue publicity, the number and types of actors involved in policy controversy and the polarisation of decision-makers’ and stakeholders’ positions. Consultations impact on all three politicisation dimensions. Open consultations are particularly well-suited to increase publicity, expand the universe of involved actors and facilitate polarisation. These consultations are likely to inject high levels of politicisation in negotiations. Conversely, closed consultations such as public hearings or advisory groups (in which participation is by invitation-only and access is restricted) decrease publicity, reduce the number of engaged actors and facilitate compromise solutions, which in turn prevents polarisation. These consultations inject a significantly lower level of politicisations in negotiations.

Issue framing represents a key EC agenda-setting strategy to increase publicity and build credibility/authority over policy issues (Princen, 2011, p. 931). The literature distinguishes generic vs. specific frames, policy vs. institutional frames (Eising, Rasch, & Rozbicka, 2015) and thematic frames (i.e., public, economic) (Klüver, Mahoney, & Opper, 2015). The distinction between political and technical frames is particularly relevant here because they capture ‘a classic choice made available to the Commission [on] whether to ‘politicise’ or ‘depoliticise’ a particular issue’ (Rhinard 2010: 31). Political frames emphasise the political weight of an issue and its alignment with political priorities. Technical frames highlight policy implications and emphasise technical details to explain or justify a policy option. These two frames contribute differently towards politicising IIA negotiations. Political frames increase publicity, augment conflict, expand mobilisation of stakeholders and facilitate polarisation. They contribute to all three politicisation dimensions. Conversely, technical frames increase issue-publicity only among specific, specialised stakeholders. They address a restricted audience and mobilise fewer actors and employ evidence-based arguments in debates. They are less partisan in nature and less polarizing. They contribute towards decreasing levels of politicisation.

Table 2 summarises this argument and the theoretical expectations regarding the combination of politicisation dimensions and instruments leading to different levels of politicisation. It is worth noting that since procedural IIAs propose the institutionalisation of a procedural status quo, the Commission has no incentives to politicise their negotiations. Therefore, these agreements are not included in the analytical and theoretical focus of this analysis.

Table 2. Dimensions and instruments for politicising negotiations.

Incentives to politicise	Politicisation dimensions	Politicisation instruments	Levels of politicisation
High	Increase publicity	Open consultations & Political frames	High
	Expand universe of actors involved in debate
	Increase controversy and conflict
Low	Limit publicity	Closed consultations & Technical frames	Low
	Limit the universe of actors involved in debate
	Limit controversy and conflict

Research Design

This study examines two recently negotiated IIAs for which the Commission was agenda-setter: the 2016 IIA on Better Law-making (2016/512 OJ L 123) and the IIA on a mandatory Transparency Register (2016/2829, under negotiation). It employs a qualitative, comparative case-study approach suitable for its theory-testing focus. This design allows circumventing some important challenges in mapping and examining empirically IIAs: a high variety of their format and substantive content and, absolutely crucial, the informal character of negotiations preceding their adoption (Stacey, 2010). This makes a large-n, comparative study of IIAs negotiations virtually impossible and justifies the case-study approach and focus on recent agreements.

A complete list of IIAs is currently missing. A research team at the University of Innsbruck attempted once the task of their systematic identification. Their list includes 123 accords titles concluded between 1958–2005 and provides a brief content description. It provides no information about negotiations. This makes impossible the systematic reconstruction of the contextual variables and relevant information allowing a large-n, empirical assessment of whether, how and to what extent politicisation played a role in negotiations. Identifying the texts of agreements included in this list proved equally challenging and possible only for texts concluded after 1990.

Case selection

This study adopts a theory-centric approach (Beach & Pedersen, 2013: 144). It aims to test empirically the theoretical conjectures developed to explain when and how the European executive has incentives to politicise interinstitutional negotiations. The case selection technique employs the logic of diverse cases. This strategy allows ‘the achievement of maximum variance along relevant dimensions’ (Seawright & Gerring, 2008, p. 300). The two cases illustrate the range of values relevant for the explanans: type of substantive agreement (introducing significant vs. incremental change) and contextual conditions.

They are substantive agreements aiming to introduce new procedures and rules relevant for policymaking and institutional dynamics. Both tackled relevant issues of democratic governance. They differ with respect to the amount of change proposed. The IIA on Better Law-making proposed relevant yet incremental changes to the institutional status quo, and did not involve major shifts in the institutional power balance (Stacey’s category II agreement). The IIA on a mandatory TR proposed a significant change: it proposed a mandatory register, that the Council would join, despite it rejecting this for years, and that the EP makes all interactions between MEPs and interest groups (conducted both inside and outside EP premises) conditional upon groups’ registration. This agreement imposed more constraints on the Council and EP and resulted in important (re)distributive effects (Stacey’s category III agreement). Differences in substantive content correspond to differences in contextual conditions structuring the Commission’s incentives to politicise negotiations to different extents. This enables the empirical test and illustrating the theoretical argument.

I used qualitative content analysis of primary data sources to identify relevant information about the IIAs. I used news reports, official statements and online press releases of institutional actors to document the contextual conditions of negotiations. To document the EC’s politicisation strategies, I used official documents issued by the Commission (e.g., EC Communication on Better EU law-making, 2016 Political Guidelines, official reports on consultations, etc.) and the EP Legislative Observatory.

Analysis

Negotiating the IIA on a mandatory TR: high politicisation

This agreement proposed important status quo changes regarding the transparency of interactions between decision-makers and interest organisations. The draft agreement asked the EP and Council to increase the amount of publicly available information about their interactions with private actors. The autonomy losses incurred by the legislative actors were important, while the Commission entailed no further costs since it was already implementing similar measures and treating the Register as being de facto mandatory (Bunea, 2018). The IIA did not imply a transfer of powers between institutions but imposed significantly more formal constraints on EP and Council, which unsettled the institutional power balance. Moreover, the agreement offered the Commission the opportunity to become a champion of lobbying regulation and transparent politics and policymaking.

The Commission anticipated high levels of opposition from EP and Council to its draft text because of these constraints and because regulating the interactions between organisations and decision-makers was always a contentious issue in interinstitutional dialogue (Bunea, 2018). This is evident in the slow progress of negotiations that are still ongoing since October 2016. In a November 2018 press interview, Sylvie Guillaume, EP Vice-President and member of the Constitutional Affairs Committee negotiating the agreement, highlighted important disagreements between EC and EP regarding key issues such as definition of lobbying and what would be a suitable regulatory regime for MEPs. She openly admitted the presence of a ‘stalemate’ in negotiations (Euractiv, 2018).

Thus, the Commission had incentives and chose to politicise negotiations to a significant extent so as to increase its legitimacy and enhance its leverage to shape negotiation outcomes (scenario one in Table 1).

Increasing publicity

The Commission employed both consultations and framing to increase the publicity of its draft agreement and its negotiation. As part of its formulation process, the Commission organised a broad public stakeholder consultation, explicitly entitled ‘Public Consultation on a proposal for a mandatory TR’ (March-June 2016). The draft agreement was sent to legislators following the consultation, in September 2016. The Commission intensely publicised the consultation which attracted a very high number of stakeholders. The important role played by this consultation in EC’s politicisation strategy is evident in the explanatory memo accompanying the press release announcing the draft agreement: ‘[t]oday’s proposal follows intensive discussions carried out with all relevant stakeholders. A 12-week public consultation concluded on 1 June, receiving 1,758 replies, with 975 responses from individual citizens and 783 from organisations Respondents shared their views on the functioning of the current TR and put forward suggestions for the design of the future regime’ (EC, 2016b). This explanatory text described at length how the Commission prepared the proposal based on stakeholders’ views expressed in the broad public consultation. This consultation helped the Commission to increase the publicity of its initiative amongst stakeholders and the European public, and to publicly signal its negotiation partners that its draft text was formulate together with and having the support of large parts of this public (Bunea, 2018). This constitutes an evident attempt to politicise negotiations and enhance EC’s input legitimacy.

The memo also mentions a public debate hosted by the EP Vice-President Sylvie Guillaume and Commission First Vice-President Timmermans, bringing together ‘stakeholders from Brussels as well as Member States, to debate key themes of the consultation’ (EC, 2016b). This closed (targeted) consultation complemented the open one and indicates their possible co-existence in the formulation of draft agreements and legislative initiatives. What is however absolutely crucial is the Commission purposely organised a broad public consultation attracting the participation of high numbers of citizens and organisations, and it could thus show its proposed measures were widely supported by the European public broadly defined.

Furthermore, the Commission framed the issue of transparency and lobbying regulation as a top political priority. President Juncker’s tenth political priority (‘A Union of Democratic Change’) and commitment was: ‘to enhanced transparency when it comes to contact with stakeholders and lobbyists. Our citizens have the right to know with whom Commissioners and Commission staff, Members of the EP or representatives of the Council meet in the context of the legislative process. I will therefore propose an Inter-Institutional Agreement to Parliament and Council to create a mandatory lobby register covering all three institutions. The Commission will lead by example in this process’ (Political Guidelines , p. 12). This signals the strong political charge of interinstitutional dialogue around a long-lasting controversy: finding an optimal regulatory regime for supranational lobbying.

Second, the Commission framed the adoption of a mandatory Register as a basic yet fundamental democratic issue of institutional credibility and openness. The press release announcing the agreement quoted Timmermans stating that: ‘EU institutions need to work together to win back the trust of our citizens. We must be more open in everything we do’ (EC, 2016a). To strengthen this political frame, the explanatory memo accompanying the press release highlights the initiative was announced in the 2014 Political Guidelines as a Commission priority and was included in its Work Programme. The agreement was ‘delivering on this [political] commitment’ (EC, 2016b).

Expanding the universe of actors

Consultations and (political) issue framing also helped expanding the universe of actors aware of the initiative and engaged in its formulation and negotiation. The public stakeholder consultation helped increasing the number and diversity of organisations involved in the public debate. The consultation attracted an unusually high number of citizens from across all EU Member States (Bunea, 2018, p. 365), and organisations representing various interests: business organisations, public interests, consultancies, professional, local and regional authorities. Some organisations had a representative mandate and participated in consultation as European, national or regional/local-level representative associations.

Issue framing helped expanding the universe of institutional actors involved in the interinstitutional debate. The EC press statement accompanying the release of the draft agreement explicitly mentioned that the agreement aims to make ‘all three institutions – including the Council – [to] be subject to the same minimum standards for the first time’ (EC, 2016a). The Commission framed transparency as a collective institutional responsibility, which is a political frame. The memo accompanying the press statement detailed all institutional and political actors covered by the register: ‘MEPs, the Secretary-General, Directors-General and Secretaries-General of political groups’, and the Council’s ‘Secretary-General and Directors-General or the Ambassador of the current or forthcoming Presidency, as well as their deputies’ (EC, 2016b). It also indicated the draft agreement ‘foresees a mechanism allowing Member States, on a voluntary basis, to make certain interactions with their Permanent Representations conditional upon prior registration’ (EC, 2016b). This explicit, detailed mention increased the universe of institutional actors involved in debate and emphasised the political stake of negotiations.

Increasing controversy

To increase controversy and conflict around negotiations, the Commission employed both consultations and issue framing. First, since the Commission knew the Council’s longstanding reluctance to join any lobbying regulation regime, it asked stakeholders participating in the public consultation to indicate whether they ‘agree with the Commission’s view that the Council of the EU should participate in the new Inter-institutional Agreement on a mandatory Register’. An overwhelming majority of respondents agreed. This increased the public legitimacy of the proposal to include the Council in a mandatory register but increased controversy and conflict around the issue of lobbying regulation in general and of lobbying the Council in particular.

Second, the Commission used issue framing to increase the controversy around the agreement. It discarded the EP’s insistent requirement to regulate interactions between institutions and organisations with the help of a binding regulatory instrument, i.e., a regulation or directive. Instead, it proposed an interinstitutional agreement. This move indirectly yet explicitly framed transparency and lobbying regulation as a political matter pertaining to the EU constitutional order and not a matter of ordinary regulatory policymaking. This political frame elevated the matter from a low-order policy issue to a high-order political one, susceptible to more public scrutiny, controversy and conflict.

Negotiating the IIA on Better Law-making: low politicisation

This agreement aimed to enhance the transparency, accountability and efficiency of supranational policymaking. It did not imply a reallocation of power between institutions nor autonomy losses on behalf of signatories. The changes proposed were relevant but substantively incremental. For example, the provisions required the Commission to implement a set of measures to increase transparency of its decision-making: the agreement stipulated the Commission had to set up a joint public register of delegated and implementing acts to increase the public oversight of their adoption. This tackled the Commission’s prerogative to adopt non-legislative acts that change non-essential aspects of legislative decisions. Another example is the EC obligation to consult Member State experts when preparing delegated acts and allowing EP and Council experts to access all expert groups engaged in drafting these acts. These changes were relevant but incremental: the Commission was asked to essentially extend to a more diverse set of processes and acts the transparency and public information provision regime used for formulating legislative proposals.

The agreement imposed more constraints on the Commission, and significantly fewer on the EP and Council. The legislative actors were required to carry out impact assessments in relation to their substantial amendments of Commission’s proposals only ‘when they consider this appropriate and necessary for the legislative process’ (EC, 2015b). However, the constraints faced by EC also enhanced its institutional reputation and provided important benefits. The agreement increased the amount of public information about supranational governance and its provisions made the Commission a champion of transparent decision-making (EC, 2015a). The Commission secured important reputational gains from the agreement which compensated for the additional transparency and procedural constraints imposed by it. The overall distributive consequences of the agreement were limited, in line with scenario two in Table 1. Furthermore, the Commission anticipated limited opposition on behalf of EP and Council given that these actors were incurring significantly fewer constraints as part of the agreement. The Commission’s need to build input legitimacy to strengthen its negotiation leverage was much lower than in the negotiations on a mandatory TR agreement. So were its incentives to politicise the negotiations. The expectation is the Commission decided to limit publicity and controversy around its draft agreement and to limit the universe of actors involved in debate with the help of closed consultations and technical frames.

However, the empirical evidence points otherwise: the observed politicisation dimensions and instruments diverged from the expected pattern. Instead of using closed consultations and technical frames to limit publicity, the universe of actors and levels of controversy and conflict, the Commission used political frames to increase the level of publicity, expand the universe of actors responsible for the implementation of the agreement, increase public controversy but limit institutional conflict (EC, 2015a and 2015b). Although two public consultations preceded the drafting of the agreement¹, the Commission decided not to use and reference them in support of its draft text. Closed consultations were also missing from the formulation process, contrary to the expectations outlined in Table 2 regarding a scenario in which the Commission has low incentives to politicise. Overall, this case presents lower levels of politicisation than the previous one (in line with the theoretical argument) but the politicisation instruments used differ significantly from the ones expected. Issue framing played a significantly more important role in this politicisation strategy than consultations.

Managing publicity

Contrary to the theoretical expectations, the Commission used political frames to deal with the publicity of the draft agreement and its negotiation. This increased its publicity and visibility. This was evident when the new Juncker Commission defined better regulation as a key political issue at the heart of his political agenda. His political guidelines explicitly linked better regulation to ‘restoring European citizens’ confidence’ and ‘strengthening democratic legitimacy on the basis of the Community method’ (2014 Political Guidelines: 1). Adopting a new IIA on better regulation was framed as a top political priority: Juncker committed ‘to entrust the responsibility for better regulation to one of the Vice-Presidents in [his] Commission’ (Idem: 4). The Commission’s First Vice-President would become responsible for better regulation and interinstitutional relations. This signalled EC’s political commitment to the better regulation agenda and an explicit political framing of the initiative.

Later on, the EC press release announcing the proposal for an IIA on Better Law-making used a political frame by explicitly linking better regulation measures with the democratic performance of supranational policymaking: they ‘will open up the EU decision-making process, allowing for more transparency and scrutiny, and providing more opportunities for people to give their views’ (EC, 2015a).

Identifying the responsible actors

Issue framing was also used to explicitly identify and define the universe of institutional and private actors responsible for the successful implementation of the agreement. First, the EC press release introducing the draft agreement stated that: ‘Better Regulation can only work if it is a shared commitment of the Commission, Council and EP’ (EC, 2015a). Second, the release described one of it key provisions (the Regulatory Fitness and Performance Programme REFIT) by comprehensively indicating all public and private actors that would be actively engaged in its design, implementation and performance: ‘the REFIT Platform will bring together high-level experts from business, civil society, social partners, the Economic and Social Committee, the Committee of Regions and Member States’ (EC, 2015a). This ‘collective responsibility’ political frame expanded the number of relevant actors from across levels of government that were considered responsible for the design and performance of key parts of the agreement. This move aimed to increase the publicity of the agreement amongst these responsible actors.

Managing controversy and conflict

To increase controversy but keep conflict low, the Commission used again the political frame of collective responsibility for the adoption of the agreement, projected over all three European institutions. The explanatory memo accompanying the press statement announcing the draft agreement publicly acknowledged that although better regulation ‘concerns its own working methods’, the Commission ‘cannot deliver this agenda alone’ and therefore ‘it relies on a commitment from the co-legislators to do their part’ (EC, 2015b). Therefore, ‘the inter-institutional agreement proposed to the Parliament and Council calls on them to take up their responsibilities for [it]’ (EC, 2015b). To increase pressure on counterparts, a timeline for reaching an agreement was mentioned: ‘the Commission’s ambition is to finalise negotiations on this agreement before the end of 2015’ (EC, 2015b).

Political frames were also used to reduce conflict by systematically explaining why and how the draft agreement does not constitute a ‘power grab’ attempt on behalf of Commission (Euractiv, 2015). The EC invoked the power conferred by Treaties to the EP and Council and explicitly stated that no power transfers would ensue following the agreement: ‘All of the measures set out today are in full respect for the imperative of the co-legislators in the EP and Council. These powers are clearly defined in the Treaties and the Commission is not seeking to change them’ (EC, 2015b). This was meant to reduce conflict by reassuring its negotiation counterparts that no direct or indirect transfer of power or authority would follow the agreement. Similarly, to tackle the potentially divisive provision demanding the EP and Council to conduct impact assessments for any major amendments of Commission proposals, the European executive publicly indicated that this measure was ‘not seeking to reduce the political scope of the Parliament or Council, it is merely asking them to consider the impact of any major amendments they propose’. This reduced conflict by subtly juxtaposing the political logic of legislative decision-making with the evidence-based fundamentals of bureaucratic policymaking (illustrated by impact assessments), while openly recognizing the primacy of the former over the latter in the context of EU decision-making.

Conclusions

This study built on theories of EU politicisation and examined the role of politicisation in the negotiation of IIAs. It focused on the Commission and argued that politicisation strategies employed in domestic politics by political elites also serve supranational entrepreneurs facing the challenge of re-legitimisation in a hostile policy environment. The study outlined the conditions under which the Commission has incentives to act as a purposeful political entrepreneur and use stakeholder consultations and issue framing to implement its (otherwise classic) politicisation strategy. Empirically, it examined two recent agreements and showed why and how the negotiations of the agreement on a mandatory TR were significantly more politicised than the ones on better law-making. The extent of politicisation varied in line with theorised background conditions, indicative that politicisation is deployed when EC’s re-legitimisation needs are high, the distributive effects of changes are significant and it anticipates hostile negotiation partners. The study refined, extended and tailored the application of concepts and arguments developed in the mainstream research on the politicisation of EU (De Wilde, Leupold, & Schmidtke, 2016; Grande & Hutter, 2016; Zürn, 2016) to a less examined yet fundamental for European integration decision-making venue: the negotiation of IIAs.

The study proposed stakeholder consultations and issue framing as relevant instruments of politicisation the Commission strategically uses as part of agenda-setting and formulation prerogatives. This contributes to the research describing the toolkit of politicisation strategies political entrepreneurs employ and deploy at supranational (and national) level (Rauh, 2019; Schmidt, 2019). The first case illustrated well the link between theorised contextual conditions and the corresponding dimensions and strategies. The evidence about the second case diverged significantly from the argument regarding politicisation instruments, suggestive that the relative and absolute importance of the two politicisation tools (consultations and framing) may vary significantly across contexts and events.

The study circumvented important challenges of empirically studying EU informal governance: the reconstruction of contextual variables describing agenda-setting and negotiation dynamics. Yet it is also marked by clear shortcomings: a limited power to generalise its findings to a broader set of IIAs. This represents a venue for further research and motivates a research agenda aiming to reconstruct in a systematic manner the complexity of negotiations for recent and future agreements by mapping the positions of institutional actors and stakeholders, actors’ moves during negotiation stages, decision-making outcomes and characteristics of policy context.

Acknowledgements

The author is grateful to Christine Reh, Christel Koop, Edoardo Bressanelli and Raimondas Ibenskas for their constant and helpful feedback on this manuscript. A special thank you goes to Christine Reh for her kind and wise advice on key conceptual and analytical aspects of the article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Adriana Bunea is Associate Professor at University of Bergen, Department of Comparative Politics. Address for correspondence: University of Bergen, Christies gate 15, Bergen 5020, Norway. Email: [email protected].

ORCID

Adriana Bunea http://orcid.org/0000-0002-2348-9676

Additional information

Funding

This article is part of a project that has received funding from the European Research Council (ERC ) under the European Union’s Horizon 2020 research and innovation programme (ERC StG 2018 CONSULTATIONEFFECTS, grant agreement no. 804288).

Notes

1 The 2012 ‘Stakeholder Consultation on Smart Regulation in the EU’ and the 2014 consultation on ‘Draft Stakeholder Consultation Guidelines’.