A procedural perspective on the sustainability of the European Union - The institutional development of the EU towards a bicameral system 1

Transcription

1 Draft Please do not cite without permission version 1.2 Paper to be presented at the workshop Sustainability and the European Union, ECPR Joint session of workshops 2004, Uppsala A procedural perspective on the sustainability of the European Union - The institutional development of the EU towards a bicameral system 1 Björn Hörl PhD student Department of Government Uppsala University Bjorn.Horl@statsvet.uu.se 5 April 2004 Abstract The legitimacy of the European Union (EU) has been widely discussed and analyzed from different normative perspectives. The European Parliament (EP) plays a prominent role in these discussions and is either seen as a catalyst of the European legitimacy gap or as a remedy against the lack of legitimacy of decisions taken at the European level. The aim of this paper is to make a positive contribution to the normative debate on EU legitimacy by evaluating the role of the EP in the legislative decision making process. It empirically analyzes the legislative influence of the EP in the conciliation committee, which has been identified as the most important stage of the codecision procedure. The findings show that the EP is well able to influence the legislative decision making process which can be explained through its cohesiveness, its coalition potential with the Commission and features of its committee system. The paper concludes that the EU has become a bicameral system with coequal legislatures when it decides under codecision. As the use of this procedure is very likely to increase in the future the debate about the legitimacy of the EU should start to analyze the implications and consequences that follow from a strong and influential Parliament at the European level. 1 This paper is based on earlier research conducted by König and Hörl (2003), which was previously presented at the annual meeting of the American Political Science Association in Philadelphia, The statistical evaluations of this study and the empirical evidence presented are based on a data gathered for König and Hörl (2003) and König, Hörl and Pohlmeier (2004). 1

2 1. Introduction Already Max Weber stated that the long-term sustainability of a democratic political system is dependent on its legitimacy (Weber 1972: 19 20, quoted in Jachtenfuchs et al. 1998:412). Following this line of thought, it can be argued that if political systems lack legitimacy their decisions will be challenged by their citizens (Karlsson 2001:104). In the debate on the future governance structure of the EU legitimacy has also played a vital role. One of the key questions put forward in the Laeken declaration was concerned with how to increase the democratic legitimacy and transparency of the present institutions" (Laeken Declaration 2001:5). Scholars have advanced several concepts of legitimacy for the EU (Beetham 1998, Jachtenfuchs et al. 1998, Scharpf 1999, Karlsson 2001, Magnette 2003, Lord and Magnette 2004). Jachtenfuchs and his collaborators construct and empirically test normative ideas about a legitimate political order at the European level (Jachtenfuchs et al. 1998: 410). They derive four ideal polity ideas legitimating the European level: two within the realm of statehood: the federal state and the intergovernmental cooperation and two ideal types going beyond the state: the economic community and the network. Magnette (2003:23ff.) distinguishes between five vectors of legitimacy in the EU, which include procedural, technocratic, corporate, indirect and federal legitimacy. The last two correspond to Jachtenfuchs et al. (1998) notion of statehood polity ideas. Thus, the federal and the intergovernmental vision of Europe figure prominently in the debate on the legitimacy of the EU. Their view of how the EU can be legitimized, however, is diametrically opposed. From an intergovernmental point of view the EU derives its legitimacy from its members states (Magnette 2003:22). Intergovernmentalists argue that the participation of the EP in the policy making process does not in itself increase the legitimacy of decisions taken at the European level. Due to the lack of a common European demos it is argued that majority decisions taken at the European level are not legitimate (Lord 1998:126). Thus, simple majority voting in the EP rather increases than decreases the legitimacy gap of the EU (Scharpf 1999). Federalist, on the other hand argue that a territorially segmented polity like the EU needs a representative structure that enables a deliberation between national interests represented in the Council and transnational interests represented in the EP (Habermas 2001). Thus the EP plays a prominent role in the debate about the legitimacy of the EU. 2 2 Analyzing the history of European integration and developing a positive theory of EU legitimacy, Rittberger corroborates that legitimacy reasons were the driving force behind member states motivations to extend the powers of the EP (Rittberger 2003, 2004). 2

3 The aim of this paper, however, is not to take either side in the normative debate on the role of the EP for legitimacy of the EU but rather to make a positive contribution to the legitimacy debate through an evaluation of the legislative influence of the EP. An assessment of the legislative powers of the EP will make it possible to draw conclusion on how far the legitimacy gap of the EU has increased or decreased, depending on which side of the legitimacy debate one favors. In the following section, the paper reviews the literature on legislative decision making in the EU and finds contradictory predictions about the influence of the EP under the codecision procedure. Section three proposes seven hypotheses to evaluate the role play by the Council and the EP in the legislative decision making process under codecision. Section four introduces the research design of the study and formulates a model for the evaluation of the legislative influence of the EP and the Council under codecision. Using OLS regression analysis, section five presents the statistical results of the empirical evaluation of the conciliation committee bargaining process under codecision. The conciliation committee was used as an empirical testing ground for the evaluation of the influence of the EP as it has been argued that all equilibrium policies under codecision will mirror the legislative outcome of the conciliation committee (Tsebelis and Garrett 2000, Napel and Widgrén 2003). The findings of this study reveal that the EP is really able to put its stamp on the legislative output negotiated in the conciliation committee. The statistical evaluation of the bargaining situation shows that the influence of the EP depends on support it receive from the Commission, on its internal cohesiveness and on characteristics of the parliamentary committees with jurisdiction over the legislative proposal. The Council is most heavily influenced by the Commission support it experiences in the conciliation committee, but facing a parliamentary preference outlier committee in the negotiations does also increase its chances of influencing legislation. The paper concludes by arguing that the EP has become a co-equal legislator under codecision and has strong possibilities to influence legislative decision taken at the European level. Based on the empirical results and the strong possibility of a further increase in codecision legislation through the forthcoming constitutional treaty, a thorough evaluation of the question whether the EP contributes to an increase or decrease in legitimacy and sustainability of the EU becomes even more urgent and necessary. 3

4 2. State of the Art of the literature on legislative decision making in the EU There are three legislative decision making procedures which require the involvement of the EP: the consultation procedure, the cooperation procedure and the co-decision procedure. 3 The Treaties of Rome which founded the European Economic Community (EEC) and Euratom in 1957 introduced the consultation procedure as the first legislative procedure. The cooperation procedure followed with the introduction of the Single European Act (SEA) in In 1993, the first version of the codecision procedure was introduced with the Maastricht Treaty and later changed by the Amsterdam Treaty in Since the introduction of the Amsterdam Treaty, consultation and codecision have become the most widely used legislative decision-making procedures. 4 As of 2000, all legislation with parliamentary involvement was passed under these two procedures, each accounting for an equal share of 50% (Hix forthcoming (2): 35). In the future, however, it is very likely that an increasing amount of legislation will be passed under the codecision procedure. The Nice Treaty, which entered into force on the 1 st of February 2003, extended the use of the co-decision procedure to seven new policy areas. 5 The constitutional draft treaty drawn up by the European Convention and forwarded to the President of the European Council on the 18 th of July 2003 goes even further and demands that the codecision procedure becomes the ordinary legislative procedure of the EU (Constitutional Draft Treaty, Art III-302). The codecision procedure would thereby encompass 84 articles, whereas the consultation procedure would only apply to 50 articles (Maurer 2003: 4). 6 Due to the increasing importance of the codecision procedure, the following section will only shortly touch on the consultation procedure, before conducting an extensive investigation of the codecision procedure. The consultation procedure Under the consultation procedure the Commission issues a legislative proposal to the EP, which expresses its opinion regarding the proposed legislation. After the EP has amended the 3 Besides these procedures that actually produce legislation, there are two other decision-making procedures which require the involvement of the EP: the budgetary and the assent procedure. For a complete overview over all decision-making procedures see Corbett et al. (2000) and Maurer (1998, 2003). 4 The usage of the cooperation procedure was first reduced through the introduction of the Maastricht Treaty and later through the Amsterdam Treaty which transfer almost all legal bases of the cooperation procedure over to the codecision procedure. The procedure currently covers only four articles of the Treaty of the European Community (TEC) (Corbett et. Al. 2000:185). The Constitutional Draft Treaty of the European Convention even suggests abolishing the cooperation procedure. 5 These include the following articles of the TEC: 13 (incentives to combat discrimination), 65 (judicial cooperation in civil matters), 157 (specific industrial support measures), 159 (economic and social cohesion actions outside the Structural Funds), 191 (statute for European political parties), and 62 and 63 (visas, asylum and immigration). 6 In addition, unanimity voting in the Council would be completely abolished under codecision. 4

5 legislative proposal, the Commission forwards the proposal to the Council. The Council is not required to consider any of the parliamentary amendments. Generally, it has therefore been argued that the influence of the EP on legislation passed under consultation is very limited (Crombez 1997, Tsebelis and Garrett 2000). However, Hix (forthcoming) argues that the EP has been able to put its prints on legislation even under the consultation procedure. Due to the Isoglucose ruling of the European Court of Justice, 1980 the Council is required to await the EP statement before it can adopt legislation. Hix (forthcoming (2):6) shows how the EP was able to force the Commission to make concessions regarding an urgent piece of legislation introducing the first phase of the European Monetary Union. Thus, when the EP is more patient or less time sensitive, it gains a certain bargaining leverage towards the Commission and the Council. One should, however, not stretch this argument too far as the suspensive veto power of the EP was curbed by a later ECJ ruling, in which the Court argued that the EP needed good reasons for its delay (Corbett et al. 2000:181).The EP is therefore not allowed to postpone legislation for tactical reasons. Summarizing, it can thus be sustained that the parliamentary influence is limited under consultation. The codecision procedure Due to the complexity of the codecision procedure the following section will give an overview over all stages of the decision making process under codecision. Special emphasis will be put on the conciliation stage, as it has been identified as the decisive stage of the codecision procedure (Steunenberg 1997, Crombez 2000, Tsebelis and Garrett 2000, Tsebelis 2002, Napel and Widgrén 2003). The differences between the Maastricht version (codecision I) and the Amsterdam version (codecision II) of the procedure will also be explored. 7 Depending on the legal basis on which a legislative codecision proposal is introduced, the Council has to follow different voting requirements. The Council mostly votes with a qualified majority of its members, where 62 out of 87 possible Council votes are needed. 8 The official voting rules in the EP are less demanding. It can either be required to vote with a simple majority, which means a majority of the members that are present or with an absolute majority, equalling at least 314 of all 626 Members of the European Parliament (MEPs). However, some scholars have suggested that this threshold can be difficult to meet for the EP 7 A graphical display of the similarities and differences of codecision I and II and the different voting requirements for the EP and the Council can be found in figure 1 in the appendix. 8 As of 2004, only three articles require unanimous voting in the Council: workers social security rights (Art.42), the right to amend rules of profession for the right to of establishment (Art. 47.2), incentive measures on culture (Art ) (Hix forthcoming). 5

6 and can result in a qualified majority equivalent due to the high rate of absenteeism of MEPs (Tsebelis and Money 1997:205, Kreppel 1999:1, Tsebelis and Garrett 2000:12). As for all legislative procedures the Commission has the monopoly of initiating legislative proposals under co-decision. 9 The first reading of the codecision procedure starts once the Commission sends its legislative proposal to the EP. The EP and the Council are not bound to any time limits for considering the legislative proposal in the first reading. After having adopted the proposal either with or without amendments, the EP returns it to the Commission. The Commission can then revise its original proposal and incorporate some of the parliamentary amendments before it forwards it to the Council for consideration. The Council has three options: it can adopt the proposal and it becomes law (only possible under codecision II) it can reject the proposal and it fails (only possible under codecision II) or it revises the proposal and forms a common position. If the Council formulates a common position, the proposal is send back to the Commission and the first reading ends. The second reading begins when the EP receives the common position of the Council with the comments of the Commission. Within a limited time period of three months, the EP has three possibilities to act: it can approve the common position (only codecision II), it can reject the common position (only codecision II), or it can amend the common position. If the EP does not act within the given time period the proposal is adopted. In case the EP makes amendments, the amended common position is forwarded to the Commission, which can either reject or incorporate the amendments in its proposal to the Council. After having received the Commission s new proposal, the Council also has three months time to act. Depending on the actions of the EP and the Commission, the Council has two options: it can adopt all second reading amendments of the EP, the ones that were not accepted by the Commission need unanimous approval in the Council, and the proposal becomes law, or if it fails to adopt all parliamentary amendments, a conciliation committee must be convened within six weeks (Art TEC). 9 However, the Treaty of the European Community (TEC) gives the EP and the Council the right to request the Commission to initiate a legislative proposal (Art. 192 TEC, Art. 208 TEC). 6

7 Both the Council and the EP send a delegation of 15 members each to the conciliation committee to negotiate an agreement. Once an agreement is reached in the conciliation committee, the two delegations produce a joint text. The joint text is forwarded to the parent chambers, the Council and the EP, which have another six weeks to vote on the proposal. The Council needs a qualified majority to agree to the joint text and the EP needs an absolute majority. If one of the two does not approve the joint text, the legislative proposal fails under co-decision II. Under co-decision I the Council still had the opportunity to reintroduce its common position, possibly with EP amendments, in a third reading. The EP needed an absolute majority vote to reject this reintroduced proposal, otherwise, it was adopted. The conciliation process The Council delegation to the conciliation committee compromises 15 members representing the 15 member states. The Council delegation is always chaired by a minister from the country that holds the Council presidency, but the rest of the delegation is usually made up of deputy permanent representatives (COREPER I) from each member state. The parliamentary delegation equals the Council delegation in number and its members are selected on a proportional basis to the distribution of political parties in the EP. 10 The parliamentary delegation has three permanent members, three of the twelve Vice-Presidents of the EP, who are elected for a period of twelve months. The other members of the delegation are taken from the committee with jurisdiction and do always include its chairman and the rapporteur of the legislative proposal (European Parliament 1999:48). 11 The institutionalization of the three permanent members, the three vice-presidents, was introduced so that they could become experts in the procedure, practices and precedents of conciliation and to keep an eye on horizontal issues that arise (e.g. comitology) (Corbett et al. 2000:198). The parliamentary delegation is chaired by one of the Vice-Presidents, unless the President of the Parliament himself is present. The Commission is represented by the Commissioner or the Director General responsible for the legislative proposal but has no voting rights. 10 For the fifth directly elected Parliament ( ), the delegation consists of six EPP-ED members (European People s Party European Democrats), five PES members (Party of European Socialists), one Liberal (ELDR), one Green/European Free Alliance (G/EFA) and one United European left/nordic Green Left member, with the final seat alternating between the Union for a Europe of Nations and the Europe of Democracies and Diversities groups. 11 The role and nomination of the rapporteur is further explained in Corbett et al. (2000) and Mamadouh and Raunio (2003). 7

8 Thus, formally the conciliation meetings include only 31 members. However, there can be over one hundred people in the room when the full conciliation committee meets due to the amount of civil servants and personal advisors that are allowed as administrative support (Corbett et al. 2000: 199). Because effective discussion and agreement can be cumbersome under these circumstances, informal meetings between the key negotiators of the Council, the EP and the Commission, so called trialogues, have become common practice (Shackelton 2000 and Shackelton and Raunio 2003). 12 The conciliation committee is co-chaired by the Vice-President of the EP and the Minister or Secretary of State of the country holding the presidency of the Council. The basis for the negotiations in the conciliation committee is formed by the parliamentary amendments of the second reading. The Conciliation Committee shall have the task of reaching agreement on a joint text... In fulfilling this task, the Conciliation Committee shall address the common position on the basis of the amendments proposed by the European Parliament (Art TEC). This is an important change of the conciliation procedure, as compared to co-decision I. Whereas previously the Committee had complete discretion to come up with a joint text, its mandate is now limited (Chalmers 1999:180). 13 With the Amsterdam Treaty, the member states introduced the so called Collins amendment, named after Ken Collins the former longtime chair of the environment committee, in order to prevent MEPs from introducing topics during conciliation committee negotiations which had not been discussed at an earlier stage of the legislative process (Hix 2002). Thus, this procedural change curbed the discretionary power of the conciliation committee. The conciliation services of the EP and the Council jointly prepare a working document for the negotiations in the conciliation committee. This working document is divided into two parts. Part A lists all amendments where an agreement has been found in earlier trialogue meetings and Part B is concerned with the outstanding amendments where no agreement could be reached. In the beginning of a conciliation meeting, the A-points are adopted without discussion. The remaining controversial amendments, the B-points, are then discussed between the parliamentary and the Council delegation in the conciliation meeting. The Commission can be invited to propose compromise texts (or make declarations) to facilitate agreement (Parliamentary Conciliation Secretariat 2001b:14). If no agreement can be 12 These trialogue meetings include only a minimal number of representatives, usually for the EP the Vice- President and the responsible rapporteur and/or the Committee chair, the Council presidency is represented by a minister or a deputy permanent representative and the Commission by a Director General. 13 Amendments not voted on by the EP in the 2 nd reading cannot raised in the negotiations (Shackelton 2000: 335), see also Garman and Hilditch (1998:282). 8

9 reached during the negotiations in the conciliation committee, new trialogue meetings are held to prepare the next conciliation meeting. In principle, there is no limit on how often the conciliation committee can be convened within the six weeks in which it has to reach an agreement. 14 Concluding, it can be pointed out that the conciliation process under codecision has been a very successful tool for resolving legislative conflicts between the Council and the EP. Since the codecision procedure was introduced in 1993, the conciliation committee was convened in 135 cases and in only four cases (2%) did the conciliation procedure fail to produce legislation (see table 2). 15 It can also be stated that Art. 251 TEC does not give formal agenda setting power to either the Council or the EP in the conciliation committee. Advantages due to informal agenda setting power do neither seem to exist for the EP or the Council. Compromise proposal are either jointly prepared by the administrative conciliation units of the Council and the EP, or the Commission proposes a compromise solution for a joint text. Codecision in figures Several differences exist between the two versions of the codecision procedure. First, under co-decision II it is possible to come to an earlier agreement than under co-decision I. Second, co-decision II does not allow for a third reading after failed conciliation. The effects of these changes become evident in a comparison of codecision dossiers that were completed in the Maastricht and the Amsterdam era. First, Table 1 indicates that the amount of legislation passed under co-decision was doubled with the introduction of the Amsterdam Treaty and has continuously increased thereafter. Second, co-decision II leads to a faster decision making process because an average of 26% of the legislation could already be agreed to on in the first reading, whereas as under co-decision I this was not possible. Third, the amount of legislation that reaches the conciliation committee was also from 40% under codecision I to 24% under codecision II. The differences between codecision I and II are also reflected in the number of failed conciliations (see table 2). 14 The record for conciliations has been four meetings for the 5 th Research Framework Program dossier in 1998, which can be explained with the unanimity requirement in the Council for research programs. 15 Compared to the success rate of the US conference committee (96%) and the German Vermittlungsausschuss (90%), the EU conciliation committee (98%) is a quite effective (Hörl 2003). 9

10 Table 1. All completed co-decision procedures from 1. November 1993 to July Codecision 1. Reading 2. Reading Conciliation codecision I Nov April 1999 codecision II May July 2000 codecision II August 2000 July 2001 codecision II August 2001 July 2002 codecision II August 2002 July 2003 Total co-decision Nov July (60%) 66 (40%) (20%) 35 (54%) 17 (26%) (29%) 27 (41%) 20 (30%) (26%) 37 (51%) 17 (23%) (27%) 49 (56%) 15 (17%) (16%) 247 (54%) 135 (30%) Source: König, Hörl, Pohlmeier (2004:7), table 1. Whereas 3 (4.5%) conciliations failed under codecision I, only 1 (1.5%) failed under codecision II. Thus, in the Amsterdam era the Council and the EP have passed a significant higher amount of legislation under codecision, at a faster speed, using a fewer conciliations and have become even more successful in the conciliation committee. Shackelton and Raunio argue that the differences between codecision I and II can be explained by a shared new culture to pass legislation which was made possible by the willingness of Parliament and Council to change the way in which they think of codecision (Shackelton and Raunio 2003:173). 10

11 EP influence under codecision The debate on the legislative influence of the EP under codecision I has been very controversial. Tsebelis (1997, 2002) and Tsebelis and Garrett (2000) claim that the legislative powers of the EP were reduced with the introduction of the Maastricht version of codecision. Their argument is based on the emphasis of legislative agenda setting and the game theoretical reasoning of backward induction. According to the Tsebelis (1994) the EP had conditional agenda setting power under cooperation, if the Commission accepted its amendments in the second reading. With the introduction of codecision I the EP lost its conditional agenda setting power to the Council because the Council can confront the EP with a take-it-or-leave-it proposal in the third reading. Tsebelis and Garrett (2000) argue that through this procedural change the EP lost an important asset in the legislative decision making process. Several scholars have argued that the EP rather possessed a conditional veto power under the cooperation procedure, than conditional agenda setting power (Steunenberg 1994, Crombez 1996, Moser 1996). According to this line of reasoning the legislative powers of the EP increased with the introduction of the Maastricht Treaty, as the EP moved from a conditional veto power under cooperation to an unconditional veto power under codecision I. The empirical evidence on whether the EP is more influential under cooperation or codecision I is equally mixed. Cases study evidence from Earnshaw and Judge (1995, 1997) and Rittberger (2000) support a stronger parliamentary role under codecision, whereas quantitative evidence from studies on Council approval rate of parliamentary amendments finds support for a stronger parliamentary role under cooperation (Tsebelis et al. 2001). More importantly, however, Corbett (2000:378) criticizes the models put forward by Tsebelis and Garrett for being "based on a lack of knowledge of the realities of decision taking." He argues that the Council de facto never had agenda setting power under codecision I, due to rule 78 of the parliamentary rules of procedure. Already shortly before the Maastricht Treaty entered into force, the EP amended its rules of procedure with rule 78.This rule states that if the Council reintroduces its common position in a third reading after a failed conciliation "Parliament shall vote on a motion to reject the Council text" (Rules of Procedure 1993:63). Corbett (2000, 2001) and Hix (2002) claim that the EP curbed the Council of its agenda setting power under codecision I through adding rule 78 to its rules of procedure. The case of the 'open network provision for voice telephony' directive in 1994 was the only time when the Council reintroduced its common position after failed conciliation. The EP rejected the proposal in its next plenary session (Rittberger 2000, Hix 2002:274). Hix shows further that 11

12 the EP successfully lobbied the member states during the Amsterdam IGC to reform the codecision procedure, by "institutionalizing the de facto operation of the procedure in the de jure procedures" (Hix 2002:275, emphasis in original). Following the conclusions of Corbett (2001) and Hix (2002) it can be argued that due to the effects of this informal rule, the EP was equally influential under codecision I as under codecision II. The legislative influence of the EP under codecision II is also uncertain. Even though there seems to be unanimous agreement in the literature that the conciliation committee is the decisive stage of the decision making process under codecision II, there is less agreement over which institutional actor profits from this arrangement (Steunenberg 1997, Steunenberg and Dimitrova 1999, Crombez 2000, Tsebelis and Garrett 2000, Farrell and Héritier 2003, Napel and Widgrén 2003, Selck and Steunenberg 2004). Some scholars attribute a stronger and more decisive role to the Council in the conciliation committee (Steunenberg and Dimitrova 1999, Crombez 2000, Napel and Widgrén 2003). Using non-cooperative game theory, Steunenberg and Dimitrova (1999) model decision making under codecision II as a sequential, three-step game with complete and perfect information. In the first stage, the Council Presidency makes a proposal for a joint text, which is then decided upon by the Council and the EP in a second and a third stage (Steunenberg and Dimitrova 1999:10). As the Council Presidency is assumed to have agenda setting power, the Council is predicted to be the more powerful actor in the conciliation committee. Napel and Widgrén (2003) support the argument that the Council is the dominant actor in the conciliation committee, however, they reject the assumption that the Council, or the Council Presidency, has agenda setting power. To us, the Amsterdam version of codecision gives neither EP nor CM [Council of Ministers] a significant direct procedural advantage (Napel and Widgrén 2003:25, emphasis in original). They predict a superiority of the Council in the conciliation committee because the internal decision mechanisms of the Council (QMV) give the Council an indirect procedural bargaining advantage. In addition, they suggest that the pivotal Council member under QMV is more likely to be positioned closer to the SQ than the majority pivot of the EP, which gives the Council a further bargaining advantage (Napel and Widgrén 2003:22f.). Similarly, Crombez (2000) suggests that either the Council or the EP can set the agenda in the conciliation committee; the Commission is seen as irrelevant. This seems to suggest that the EP and the Council are co-equal legislators and that the outcome of the conciliation committee bargain depends on who proposes the joint text. However, in the conclusion of his paper Crombez argues that the legislative powers of the EP have been 12

13 reduced under codecision II because the EP does not benefit from Commission involvement any longer and because the Council is supposed to have more bargaining power (Crombez 2000:55). Summarizing, all of these scholars emphasize the superiority of the Council in the conciliation process of the codecision procedure, whether by direct (Steunenberg and Dimitrova 1999) or indirect (Crombez 2000, Napel and Widgrén 2003) procedural advantages. Others, however, claim that the EP is more influential in the conciliation committee, albeit for different reasons (Steunenberg 1997, Farrell and Héritier 2003). Farrell and Héritier (2004:585) argue that the ability of the EP and the Council to influence legislation under codecision is dependent on their bargaining powers; their ability "to make credible threats to block or retard the legislative process." The bargaining power in turn depends on four factors: the procedural rules, the difference in time horizons, the sensitivity to failure and the different level of resources. The long-term effects of these factors lead to rise of informal institutions through repeated interactions and benefit the Parliament (Farrell and Héritier 2003:596). Steunenberg (1997) assumes that the EP is the agenda setter in the conciliation committee. The Commission is deemed to be irrelevant. The EP is regarded to be more successful under codecision II because the reference point in case of non decision is not the Commission proposal as under codecision I, but the status quo (Steunenberg 1997:221). This increases the QMV winset of the Council and thereby the agenda setting possibilities of the EP. Comparing the outcomes and the bargaining power of the EP under the codecision I and II, Steunenberg argues that dropping the third reading will thus increase Parliament s impact on the contents of legislative policies (Steunenberg 1997:224). Tsebelis and Garrett (2000) take an intermediate position in their analysis of the conciliation committee negotiations under codecision II. Similar to Steunenberg and Dimitrova (1999), they apply non-cooperative game theory in their analysis of the decision making process under codecision II. However, they do not assume the Council Presidency to be the agenda setter. As the conciliation committee does not give procedural advantages to either the Council or the EP, Tsebelis and Garrett (2000:25) expect the two institutional actors to "split the difference" and predict that the legislative outcome lies exactly in the middle between the ideal position of the EP (median voter position) and the ideal position of the Council (QMVpivot position). The Commission is not included in the model as its participation powers in the conciliation committee are limited. 13

14 Summarizing, it can be concluded that there is no agreement over how important and influential the EP is as a legislative actors under codecision II. As the discussed models of codecision II are based on different assumptions, e.g. the role of the agenda setter, they differ in their prediction of the legislative outcome and the influence of the EP and the Council in the conciliation committee. In order to test these predictions, this study empirically analysis the legislative influence of the Council and the EP in the conciliation committee. In a first step, this study follows the logic of the spatial modeling approach to determine which actor was able to decisively influence the legislative outcome. Spatial models measure the influence of legislative actors by calculating the distance between their ideal point and the legislative outcome: the larger this distance, the smaller is the influence (Steunenberg 1994: 645). Thus, the actor that is positioned closer to the legislative outcome is considered to have won the legislative bargaining game. In a second step, this study empirically analyzes factors that can affect the legislative bargaining influence of the EP and the Council. An index of legislative influence will be constructed for both the EP and the Council. Using OLS regression, these indices will be tested using several explanatory variables derived from the bargaining and decision making literature. The literature on codecision has emphasized two features that can influence the success of the EP and the Council under codecision: time sensitivity (Rittberger 2000, Farrell and Héritier 2003) and salience (Bueno de Mesquita and Stokman 1994, Farrell and Héritier 2003). 16 Additionally, the analysis will test if the cohesiveness of the legislative actors, the coalition potential with the Commission, or if internal institutional factors such as the rapporteur, the committees, or the Council Presidency play a decisive role for the success of the EP and the Council in the conciliation committee. The following section will generate the hypothesis for all of these explanatory variables. 16 Other factors that have been put forward in the literature are closeness to the status quo (Tsebelis and Garrett 2000, Napel and Widgrén 2003), voting requirement of the collective actors (Napel and Widgrén 2003) and the resources of the actors (Farrell and Héritier 2003). Other than Napel and Widgrén (2003) I do not expect the voting requirement in the Council and the EP to affect the bargaining situation, as it can be argued that the de facto voting requirements in the Council and the EP are the same, due to the high rate of abseenteism in the EP during the plenary sessions (see Tsebelis and Money 1997:205, Kreppel 1999:1, Tsebelis and Garrett 2000:12). Resources of the legislative actors were not taken into account as the administrative resources of the legislative actors tend to be more of a constant and do not vary on a case to case. The argument of agenda setting power due to the closeness of the status quo could not be assessed as the measurement of the SQ lead to a large pattern of non-random missing values. For similar problems and a discussion of the assessment of the SQ in the context of EU legislative decision making see Selck and Steunenberg (2004). 14

15 3. Hypotheses 17 The detailed analysis of the conciliation process in section 3 has shown that the conciliation committee bargaining environment does not give procedural advantages to either the Council or the EP. The null-hypothesis will therefore be that none of the hypothesis advanced in the following will affect the outcome of the conciliation committee bargaining process. Under this assumption the equilibrium policy will always be assumed to be the midpoint between the ideal position of the EP and the Council. Null-Hypothesis When the EP and the Council bargain in the conciliation committee under codecision II, they will always split their differences evenly. Cohesiveness of collective actors An important factor that needs to be taken into account when collective actors are analyzed is that these actors are not always homogeneous. The party groups in the EP and the member states in the Council might have different preferences concerning certain policy issues. The following hypothesis determines how the cohesiveness of a collective actor affects its bargaining power. The effect of the cohesiveness of collective actors differ according to their internal decision making rules (Tsebelis 2002:38ff.). Here, QMV is assumed to be the internal decision making requirement for both the Council and the EP because the absolute majority requirement in the EP amounts to quasi-qualified majority due to the high rate of absenteeism in the plenary sessions of the EP. 18 Based on Tsebelis s characterization of collective actors, it can be argued that the winset of a collective actor which decides by QMV increases if the individuals that compose the collective actor have heterogeneous preferences (Tsebelis 2002:51ff.). This makes compromises with other actors more likely simply because the policy area which this collective actor can agree to increases. The opposite is true when the collective qualified majority actor has a homogeneous preference distribution. The first hypothesis, which 17 Hypotheses H1, H4, H5 and H6 were developed in earlier research by König and Hörl (2003). Additionally, they use saliency (H2) to measure impatience of legislative actors. Instead of the null-hypothesis applied in this research, they use a stronger null-model based on Tsebelis and Garrett s (2000) predictions about the effects of the closeness of legislative actors to the status quo. 18 This assumption is supported by the works of Tsebelis and Money (1997:205), Kreppel (1999:1) and Tsebelis and Garrett (2000:12). 15

16 characterizes the effects of the cohesiveness of a QMV-collective actor can therefore be summarized as follows: H1: If a collective actor that decides by qualified majority rule has a homogeneous preference distribution, he will be more likely to win in the conciliation committee. Salience The salience that an actor attaches to an issue in a bargaining situation can also affect his bargaining power. The concept of issue salience has been utilized in logrolling models, which are based on Coleman s exchange model (Coleman 1994). Bueno de Mesquita and Stokman (1994) refined Coleman s exchange model applied for the analysis of legislative decision making in the EU. In their model, logrolling is defined as a situation where actors ultimately are willing to vote for less preferred policy positions by other actors on more salient issues in exchange for a vote for their policy position by other actors on more salient decisions (Bueno de Mesquita and Stokman 1994:109). Legislative actors can achieve a higher utility through vote trading, compared to a situation where they would have voted on two proposals separately. According to the logrolling model, an actor will use the bargaining power that he gains through low salience on a proposal and will trade his vote for the vote of the other actor on another proposal. Thereby, he will increase his total utility that he derives from the two proposals. This leads to following hypothesis: H2: If an actor attaches low salience to a legislative proposal, he will be more likely to lose in the conciliation bargaining process. Time Sensitivity Game theory provides an additional feature that can influence bargaining situations: the time sensitivity of actors to achieve a legislative outcome (Rubinstein 1982). In a legislative context, the level of patience or impatience of legislative actors is important because it affects the evolution of the whole bargaining process and the bargaining power of the actors. In the context of legislative negotiations in bicameral legislatures Tsebelis and Money have argued that impatience drives the bargaining process and can arise from the desire of legislators to be viewed as efficient, the need to resolve fiscal or political crisis and the concern that 16

17 legislators will defect from the political coalition supporting the bill (Tsebelis and Money 1997:146f.). They distinguish between three types of impatience: systematic impatience which arises from concerns of maintaining a governing majority, bill specific impatience, where some bills are more urgent than others, and election cycle impatience, which leads legislators to increase their legislative activity at the end of a legislative term. The two types that seem to be at work in the EU are bill specific impatience, which is general to all legislative bargaining and election cycle impatience because member states holding the Council presidency want to achieve as much as possible during their short term of presidency. Thus, it is hypothesized that H3: If an institutional actor has a high level of impatience, he will be more likely to loose in the conciliation committee. In addition to these general bargaining hypotheses, some additional hypotheses are generated in order to account for the particular context of the EU legislative decision making process. The following hypotheses take into account the internal institutional structures of the EP and the Council. Council presidency The Council delegation to the conciliation committee is always chaired by the Council presidency, which is why its influence on the negotiations in the conciliation committee should be assessed. The influential role of the Council presidency has often been noted in the literature on the EU (Westlake 1995, Hayes-Renshaw and Wallace 1997, Nugent 1999, Hix 1999, Steunenberg and Dimitrova 1999). The presidency alternates between the member states every six months. The role of Council Presidency as an agenda setter is especially crucial for its influence on the legislative process (Hix 1999: 66, Hayes-Renshaw and Wallace 1997). Every member state that holds the Council presidency tries to use this agenda setting power to impose its own ideas and beliefs on the Council. The presidency is the one clear and only occasional opportunity for a member government to imprint a particular style on the Council, to impose a particular topic on colleagues, or to ride an individual minister s particular hobbyhorse (Hayes-Renshaw and Wallace 1997:144). Mattila and Lane s (2001) empirical analysis of Council voting patterns is used to single out differences in preferences between the countries which held the Council Presidency during the time period studied. Of these countries, two differ the most in their voting positions from the other countries: Sweden 17

18 and Spain. According to the influential role of the Council presidency inside the Council, it can be expected that countries with an oppositional voting pattern in the Council will make the Council less successful in bargaining situations because the country is more likely to pursue its own interest. H4: When the Council presidency is held by a country with an oppositional voting pattern in the Council, the Council will be less successful in the conciliation negotiations. The parliamentary rapporteur A mirror image to the Council presidency is the rapporteur of the parliamentary delegation. He is the MEP from the committee with jurisdiction that deals with the legislative proposal, presents draft texts and to amends them if necessary (Corbett et al. 2000:117). He leads the legislative proposal through all the readings in the decision making process. 19 Since legislation that ends up in the conciliation committee tends to be rather important and controversial, it is necessary to control for any influence from party groups in the EP on the success rate of the parliamentary position in the conciliation negotiations. Together the two major party groups in the EP, the PES and the EPP-ED, have always controlled over 50% of the seats in the EP since its first direct election in 1979 (Hix et al. 2002:28). Together with the Liberals the EPP-ED and the PES are also the party groups with the highest cohesion in the EP (Hix et al.forthcoming:28). No legislative proposal can therefore be passed without the votes of either the PES or the EPP-ED. Hix goes even further and argues that: when an absolute majority is required it is virtually impossible to construct a winning coalition without both the EPP and PES (Hix forthcoming (2): 22). Since an absolute majority is always required under co-decision, this leads to the fifth hypothesis: H5: If the rapporteur of the parliamentary delegation to the conciliation committee is either a member of the EPP-ED or PES group, the EP will be more successful in the conciliation committee. Commission support Even though the Commission does not have a vote or formal agenda setting power in the conciliation committee, it is its duty is to attempt to reconcile the positions of the Council 19 The choice of who becomes rapporteur for a legislative proposal is determined according to a voting system in all committees. See Corbett et al and Mamadouh and Raunio (2003) for further information. 18

19 and the Parliament (Art TEC, Chalmers 1999:173). The parliamentary conciliation secretariat suggests that the Commission can be invited to propose compromise texts to the Council and the EP in the conciliation committee (Parliamentary Conciliation Secretariat 2001:14). Even scholars that do not model the Commission as a decisive actor under codecision agree that the Commission can still have an informal influence on the decision making process. The remaining influence of the Commission over legislation is thus likely to rely more on informal channels asymmetries of information, persuasion, deal-brokering than on formal roles written into the various procedures (Tsebelis and Garrett 2000:26). Pollack (1997, 2003) identifies four situations under which the Commission would be able to use its informal agenda setting power: first, in cases when information asymmetries exist to its advantage, second, when distributional consequences are low, third, when the cost of waiting is high, and, fourth, when it is supported by networks of non-legislative actors (Pollack 1997:126f and 2003:49ff.). Thus, it can be concluded that the Commission can still be an important actor in the conciliation committee, even if it does not have a formal vote or any agenda setting power. The influence of the informal role of the Commission will be assessed with the sixth hypothesis: H6: If an institutional actor holds a policy position similar to the Commission, he is more likely to succeed in the conciliation committee negotiations. Committees Committees play an important role in the internal organization and working process of legislature and have been called the backbone of the EP (Westlake 1994, Neuhold 2001). In a comparison to the committee system of other West European legislatures, Mamadouh and Raunio (2003:336) have found the EP committees to be strong and influential. A strong and important role of the committees in the legislative decision making process is also emphasized by EP insiders. McElroy (2001:10) quotes the vice-chairman of the PES-group stating that ninety-five percent of legislation is fixed in committees all deals and compromises are achieved in committees. To assess the influence of different committees on the legislative influence of the EP committee classifications of prior EP committee research are used. Bowler and Farrell (1997) analyze whether committees in the EP are heterogeneously or homogeneously composed, using occupational background and interest group affiliation of MEPs as proxies for policy preferences. Following Shepsle (1978), Bowler and Farrell identify homogenous committees as high demanding preferences outliers. This study assumes 19