Adrienne Héritier

The Shadow of Hierarchy and New Modes of Governance

This special issue about sectoral governance in the shadow of hierarchy focuses on two sets of questions. Firstly, do new modes of sectoral governance in themselves contribute to the efficacy of policymaking or do they require the shadow of hierarchy, i.e. legislative and executive decisions, in order to deal effectively with the problems they are supposed to solve? And, secondly, what are the institutional links between sectoral governance and territorially bounded democratic governments? How do different links contribute to the efficacy of policymaking and how do they change over time? Is there a retreat of government from policymaking and a corresponding increase of sectoral governance, or just the opposite?

Formal and Informal Institutions Under Codecision: Continuous Constitution Building in Europe

Current approaches to the understanding of institutional change in the European Union have difficulty in understanding how intergovernmental bargaining and day-to-day institutional change interact. This article develops a theoretical framework to understand this interaction, and applies it to the legislative process of codecision between European Parliament and Council. The formal Treaty changes which gave rise to codecision have in turn given rise to a plethora of informal institutions, in a process which cannot be grasped by using dominant modes of analysis. This article provides a framework for analyzing the relationship between formal and informal institutions, showing how the two may be recursively related. Formal institutional change at a particular moment in time may give rise to informal institutions, which in turn may affect the negotiation of future formal institutions. The article applies this framework to the codecision process, showing how the codecision procedure has led to the creation of informal institutions and modes of decision making, which in turn have affected subsequent Treaty negotiations. Through strategic use of the relationship between formal and informal institutions, Parliament has been successful in advancing its interests over time, and increasing its role in the legislative process.

Elements of democratic legitimation in Europe: an alternative perspective

While the lack of democratic legitimation in the European polity is striking when measured against member state parliamentarian democracies, this focus shifts attention off those less obvious empirical processes which enhance democratic legitimation in Europe. In order to compensate for the slow and incremental nature of democratization, the Commission has sought to develop elements of substitute democratic legitimation via the transparency programme which attempts to bridge the gap between Brussels and member state citizens, and the creation of supportive networks. Accountability is also strengthened by structural and processual elements inherent in European policy-making- mutual horizontal control and distrust among actors in a diverse, negotiational democracy, and competition among multiple authorities. The described strategies and processes reinforce democratic support and accountability but do not allow the democratic definition of overall goals for the European polity as such.

The Informal Politics of Legislation: Explaining Secluded Decision Making in the European Union

This article investigates a widespread yet understudied trend in EU politics: the shift of legislative decision making from public inclusive to informal secluded arenas and the subsequent adoption of legislation as “early agreements.” Since its introduction in 1999, “fast-track legislation” has increased dramatically, accounting for 72% of codecision files in the Sixth European Parliament. Drawing from functionalist institutionalism, distributive bargaining theory, and sociological institutionalism, this article explains under what conditions informal decision making is likely to occur. The authors test their hypotheses on an original data set of all 797 codecision files negotiated between mid-1999 and mid-2009. Their analysis suggests that fast-track legislation is systematically related to the number of participants, legislative workload, and complexity. These findings back a functionalist argument, emphasizing the transaction costs of intraorganizational coordination and information gathering. However, redistributive and salient acts are regularly decided informally, and the Council presidency’s priorities have no significant effect on fast-track legislation. Hence, the authors cannot confirm explanations based on issue properties or actors’ privileged institutional positions. Finally, they find a strong effect for the time fast-track legislation has been used, suggesting socialization into interorganizational norms of cooperation.

Policy-making by subterfuge: interest accommodation, innovation and substitute democratic legitimation in Europe - perspectives from distinctive policy areas

The institutional context of European policy-making, its redistributive content, sheer scope, and the need to accommodate diverse, and often conflicting, interests and goals, together tend to have a stalling effect on the policy-making process. Policy innovation continues despite this, owing to strategies of subterfuge; i.e. decision-making escape routes used by policy-makers to circumvent potential deadlock. Subterfuge is used across policy sectors and has an impact on the three interconnected polity issues of the accommodation of diversity, policy innovation and democratic legitimation.

Market-making policy in Europe: its impact on member state policies. The case of road haulage in Britain, the Netherlands, Germany and Italy

How do European policies affect national policy-making patterns and problem-solving capacity, and to what extent do national policy-makers seek to influence European politics? In particular, what impact does European road haulage policy have on national policy within the context of the Single Market Programme (SMP)? How can the domestic policy response of four member states - Britain, the Netherlands, Germany and Italy - be explained with respect to the national policy background, problem-solving approach, policy instruments, and patterns of interest intermediation? While the policy responses of Britain and the Netherlands reveal congruence and confirmation, those of Germany and Italy indicate respectively change and resistance.

Codecision and institutional change

This article examines the sources and processes of institutional change in one important aspect of EU politics – the legislative procedure of codecision – and shows how interstitial change of institutions that emerges between formal Treaty revisions and under specific conditions may be formalised in subsequent formal Treaty reforms. We develop two related models of Treaty change. First, in a ‘simple’ model, informal rules will be formalised in the Treaty text where all member states are in agreement, and will be rolled back when all member states oppose them; otherwise they will continue in existence at the informal level. Second, in a more complex framework, actors that have effective veto powers in a related arena may make credible threats that allow them to press member states into formalising informal rules, provided that member states are not unanimously opposed to this formalisation. We empirically assess our claims in the light of several instances of informal rules applied in the codecision procedure.

Introduction: Contested competences in the European Union

In this article, we set out an approach to European Union politics that seeks to explain its development using theories of institutional change. In contrast to dominant theories which assume that the Treaties, the governing texts of the European Union, faithfully ensure that the desires of member states are respected, we argue that these theories are incomplete contracts, rife with ambiguities. This means that during periods between Treaty negotiations, we may expect that collective actors in the European Union policy process – the European Commission, the European Parliament and the Council – will each seek to bargain over these ambiguities so that their effective competences are maximised. Their ability to negotiate successfully will depend on their bargaining strength. These ‘conflicts over competences’ may lead to the creation of informal institutions. They may also in the longer term lead to formal institutional change, if they become folded into Treaty texts, or otherwise influence them, in subsequent rounds of negotiation.

A rationalist-institutionalist explanation of endogenous regional integration

Abstract What is at the basis of regional integration and what are the processes that drive integration? Why do integration processes develop faster in some issue areas than in others? These questions are at the heart of our own work, just as they are the driving concerns of Ernst Haass version of neofunctionalism. While we, unlike Haas, emphasize endogenous processes of institutional change based on bargaining processes in a particular institutional context, rather than exogenously driven processes of technical needs and spillover, we believe that there is important overlap between our approach and Haass, as well as areas of disagreement. By exploring these areas of overlap in this article, we hope – by focusing on bargaining processes – to empirically illustrate on the one hand how our approach may help to answer questions that Haass version of neofunctionalism had difficulties with, and on the other how Haass emphasis on epistemic factors can alleviate some of the blind spots in our own perspective.

Refining regulatory regimes

With regulation seeking to foster competition at the same time as also having to protect essential services, the authors investigate regulatory styles, costs of new regulatory functions and how firms in the new regulatory landscape access and influence regulatory authorities. The authors consider how EU pressures may hinder or help the functioning of new regulatory markets and the establishment of business–regulator relationships, as well as the broader policy implications for these new regulatory environments. The book also determines how regulatory authorities emerge and evolve under different state traditions and assesses, over time, the degree to which there is potential for convergence, divergence and continued differences as regulatory functions mature.