No. 2 No. 2 June 2011 June 2011

A little discourse on method(s)

Antonio Missiroli

making - seen as either a desirable trend or an inevitable drift. Especially after the entry into force and subsequent implementation of In particular, the speech given by German the Lisbon Treaty, the traditional Chancellor on 2 November distinction (and opposition) 2010 at the College of in - between the so-called 'community' where equally seminal interventions were and 'inter-governmental' methods made in the past, starting with Margaret in EU policy-making is less and Thatcher's in 1988 - put forward the notion less relevant. Most common of a "Union method" (UM) as being more in policies entail a 'mix' between line with the current state of affairs and them and different degrees of policy development in the EU, with special mutual contamination. Even the emphasis on the role of the Member States. 'Union method' recently proposed She defined it just as “coordinated action in a by Chancellor Angela Merkel raises spirit of solidarity” - and gave energy policy more questions than it solves – as a good case in point1. although it may trigger a Nomina sunt consequentia rerum, names are a constructive debate on how best to consequence of things, one is tempted to say address today's policy challenges. following Thomas Aquinas. Speculations now abound in the international media on In the recent public debate over the direction whether - for decades the key of the process - defender of an "ever closer" Union and of following the entry into force of the Lisbon the role of common institutions and rules- Treaty and the onset of the euro zone crisis - based order - has turned its back on the arguments have somewhat polarised between Brussels executive and put all its money (not the defenders and guardians of the only metaphorically) on the European "Community method", on the one hand, and, on the other, the advocates of a more intergovernmental approach to EU policy- 1 _http://www.coleurope.eu/template.asp?pagename=s peeches

EGMONT Royal Institute for International Relations

Parliament and especially the Council - let that currently wrap the public debate in and alone the European Central Bank2. on the EU.

One is also tempted to say, however, that Ex uno plures? such polarisation and characterisations are largely instrumental, aimed as they often are What's in a name?, Shakespeare's Juliet at pulling the cover in one or the other famously said to her Romeo. Indeed, a direction at a time when crucial decisions are stringent definition and agreed description of being taken at EU level. the "Community method" (CM) is hard to find. In fact, neither "method" fully corresponds to the realities of power and policy-making in A few years ago framed what today's - which are, alas, she called the "traditional" CM – based on much more complex than that, and certainly the precedent created by the early Common difficult to encapsulate in a single, all- Agricultural Policy (CAP) – as follows: encompassing formula. Indeed the US motto, a strong role delegated to the Commission e pluribus unum, is hardly applicable here. in the design/brokering/execution of policy as well as in the management of its Even in the past, and especially over the last external ramifications; two decades, the so-called 'communitarian' an empowering role for the Council and the 'intergovernmental' approaches often through strategic bargaining and package constituted rather "ideal-types" à la Max deals; Weber than concrete methods or models - a locking-in of stakeholders (the sectoral and they rarely operated in a 'pure', interests) though a highly rewarding co- unadulterated form. Still, they have long option into the European process; monopolised (and often polarised) both academic research and public discourse. an engagement of national agencies as the subordinated operating arms of the agreed Maybe, therefore, it can be useful to resort to common regime; other methods and philosophers – starting a limitation of the influence of national with Descartes, with his drive to 'deconstruct' MPs and of the opportunities for the the acquis left by Aquinas, yet combined to (EP) to impinge; 3 some empirical evidence à la Hume - in an occasional (but defining) intrusion by order to clear the fog and unveil the myths the European Court of Justice (ECJ) to reinforce the legal authority of the Community regime; 2 It is not only a matter of „shares‟, be they counted in collective resourcing of the policy as an terms of MEPs, (re-)weighted votes in the Council, or Bundesbank clout: a German national is Secretary- expression of sustained European General of the European Parliament (Klaus Welle) 'solidarity'. and another one is about to become Secretary-General of the Council (Uwe Corsepius, a close aide to This template came to epitomise a form of Chancellor Merkel), succeeding Pierre de Boissieu. 3 René Descartes' Discours de la méthode (1637) is 'supranational' policy-making in which universally considered the turning point in the history powers were transferred from the national of modern philosophy, marking the beginning of rationalism. David Hume's A Treatise of Human Nature level to the EC/EU. How far it actually fits (1739) balanced that off with a strong plea for with reality is a moot point, even in the case empiricism.

EGMONT Royal Institute for International Relations 2

of agriculture - and already the fisheries and evenly, backed by national courts for regime, that was meant to imitate the CAP, local application; has turned out to be different. Nonetheless, the EP as one of several means for this particular version of the CM shaped its considering also non-economic factors, 'image' among both practitioners and with increasing legislative powers but little commentators for quite a while4. leverage on implementation.

Helen Wallace highlighted also the fact that, In addition, over the years the EU policy since the mid-1980s, the EC/EU started process has been increasingly caught in operating through at least two additional negotiations and controversies over the "methods". distributional impact of integration. In this on- going process - that indirectly involved also To begin with, as the competition regime the CAP - the introduction of "cohesion" took root and the Single Market developed, policies marked a shift towards programmes the call for and drive towards regulation aimed at tackling economic and social became ever stronger. The strength of the divergence and supporting the more European legal process, the machinery for backward regions and/or societal groups. promoting technical cooperation, and the relative distance from parliamentary In addition, various other spending interference were all factors that encouraged instruments were introduced in fields such as this trend further. Indeed, the EC/EU was research, with programmatic rather than re- particularly well equipped for generating an distributional aims. overarching regulatory framework that could combine cross-border standards with country All in all, such distributional "method" differences. comprised: the Commission as the deviser of The main features of this regulatory programmes, in partnership with sub- "method" included: national authorities and/or sectoral the Commission as the architect and stakeholders and agencies; defender (in a quasi-judicial capacity) of national governments in the Council regulatory objectives and rules, often in agreeing (under the pressure of various connection with stakeholders and experts; authorities and stakeholders) to a budget the Council as a forum for agreeing with some distributive elements; minimum standards and the direction of a Parliament in which MEPs often harmonisation, complemented by mutual constitute an additional source of pressure recognition of preferences and controls; from territorial politics in their the ECJ as the main means of ensuring constituencies; that the rules are applied reasonably fairly local and regional authorities benefiting from engaging in the EU arena and relying (since 1993) on their own institution, the

4 H.Wallace, An Institutional Anatomy and Five Policy Committee of the Regions (CoR). Modes, in H.Wallace, W.Wallace, M.A.Pollack (eds.), Policy-Making in the European Union, 5th edition, Incidentally, it was this opening for direct Oxford University Press, 2005, 49-90. Now see also contacts between the European and the sub- R.Dehousse (ed.), The 'Community Method': Obstinate or Obsolete?, Palgrave-Macmillan, 2011. national levels of government that prompted

EGMONT Royal Institute for International Relations 3

the coinage of the term "multi-level governance" involvement in policy formulation, to characterise the EU process more execution and control; generally. the adoption of special arrangements for managing cooperation (in particular the More of the same? Council Secretariat); Finally, it is arguable that - over the past the relative opaqueness of the process, decade in particular - the spectrum has notably to national parliaments and widened further by including the so-called citizens; "open method of coordination" (OMC), the capacity, on some occasions, to deliver usually associated with the 2000 Lisbon substantive joint policy in areas where Strategy on Growth and Jobs. nothing existed previously.

It involved 'soft' policy incentives to shape Yet again, even the IM presents a number of behaviour at national level though significant variations – especially if one takes 'benchmarking' and systematic policy into account such diverse areas as foreign and comparison, but without concrete security policy (CFSP/ESDP) and justice and enforcement and implementation tools. home affairs (JHA) – which, according to the Maastricht Treaty, coincided with the second Employment policy at EU level is another case and the third 'pillar', respectively, of the EU in point - albeit with some nuances. construction.

As such, the OMC can be considered as the In both cases the assets and competences of closest thing to - or just a variation on - the the Member States were (and still are) "Intergovernmental method" (IM), but from predominant. This said, even in the case of within the scope of policies that are the former it is sometimes difficult to somewhat linked to the first 'pillar'. In characterise EU "foreign policy" as 'purely' retrospect, however, its impact has proved intergovernmental: the role played by Javier quite modest, as the dismal record of the Solana in his decade in office as High Lisbon Strategy up to 2010 shows. Representative for CFSP (1999-2009) went often well beyond the representation of the For its part, what may be called "traditional" lowest common denominator among the IM implies: Member States. Also the structures resulting

the active involvement of the European from that have become of a more 'hybrid' Council in setting the overall direction of 5 nature than they used to be previously . policy; the predominance of the Council of Furthermore, the Commission played a Ministers (or equivalent) in consolidating distinctive role and carried out specific cooperation; policies in external relations, development the limited/marginal role of the and humanitarian aid, and of course trade – Commission, as compared to the CM and let alone enlargement as a sort of foreign and the other "methods" analysed above; the basic exclusion of the EP (bar the 5 See the recent reappraisal by Jolyon Howorth, budget) and the ECJ from the circle of Decision-Making in Security and Defence Policy: Towards Supranational Intergovernmentalism?, KFG Working Paper, Freie Universitaet , no.25, March 2011.

EGMONT Royal Institute for International Relations 4

security policy "by other means" (to case the EU framework has become more paraphrase, this time, Carl von Clausewitz). accepted, in a broad sense, but the detailed institutional arrangements have also become As for JHA, different "methods" have increasingly un-typical. developed over time and still in part coexist. The Schengen Agreements were first This is also to say that all these “methods” deliberately signed and implemented outside tend also to overlap and 'migrate' - so to the EU treaty framework, then incorporated speak - in response to new policy challenges into it. Meanwhile and ever since, increased as well as to changing preferences and migration flows and mounting challenges feedback effects among the Member States. from terrorism and cross-border crime have fostered demand for trans-national policy Such overlaps and 'migrations' occur not only cooperation. across but also within the old 'pillars', and produce a patchwork of modalities and This has led to drawing together different procedures that is often cumbersome and processes of cooperation, including the illegible from outside (especially by ordinary transfer of some JHA issues to the (now old) EU citizens). Furthermore, the vector of first 'pillar'. On top of that, a mixed pattern such migrations is not always one and the of what, yet again, Helen Wallace called same: whereas a number of policies areas "trans-governmentalism" remains in place, have indeed been increasingly with the addition of a growing number of „communautarised‟ (albeit to different specialised agencies and legal agreements degrees), notably energy policy has moved in the based on conventions – not to mention the opposite direction - especially if compared so-called „Comitology‟. with the 1950s and 1960s.

Another interesting case to consider is A further factor to consider in this context is European Monetary Union (EMU). On the one the growing emphasis, also in the treaties, on hand, the European Central Bank and other so-called "subsidiarity". In retrospect, this related bodies have established a variation on can be seen as a stark warning by the the CM for monetary policy proper (with the Member States - not just their governments ECB as a functional quasi-equivalent of the but also parliaments and even some regional Commission). On the other hand, as far as bodies - to the Commission not to widen the macroeconomic policy is concerned, scope of its interventions in areas of something similar to the OMC has long primarily national competence. Containing prevailed, while the role played by the the expansion of the CM permits also to ring- Commission in the broader economic policy fence some policy domains from the area has varied over time depending on the jurisdiction of the ECJ. willingness and readiness of the Member States (starting with Germany) to have it on Last but certainly not least, with the board – at least to date. introduction in stages – from Amsterdam (1999) to Lisbon (2009) – of "enhanced It is also worth noting that the three domains cooperation" (EnCo) an additional "method" mentioned above – CFSP, JHA and EMU – has been brought to the fore: namely one have been by far the most dynamic areas of that cuts across policy areas (albeit with EU policy development since 1999. In each significant variations) and lies at the juncture

EGMONT Royal Institute for International Relations 5

between a decision-making procedure and a Lisbon and after: unity in diversity? form of policy implementation. With the Lisbon Treaty, in a way, the plot has In a previous (academic) life, former Finnish further thickened. Foreign Minister made a crucial and almost prophetic distinction In terms of decision-making proper, for between “pre-defined” and “enabling” EnCo instance, the process of extending co-decision clauses6. (now called "ordinary legislative procedure") has continued and even intensified: it now Accordingly, EMU is a case of the former – applies to some 80 % of EU legislation, ante litteram, in a way – as it spells out in including also the original CAP. In and of advance the domain it applies to, the itself, this alters significantly some of the key participation criteria and the functional features of the "traditional" CM and blurs modalities of such cooperation. What the once familiar distinctions – as it applies to Lisbon Treaty calls "permanent structured areas of both exclusive and shared EU cooperation" (PeSCo) in defence is competence. potentially another one - albeit with a less stringent format, a less precise scope, and no The recourse to qualified majority voting (QMV) evident obligation or deadline for has also widened and represents now the implementation. rule, with some significant exceptions still in place. However, all available empirical The "enabling" form of EnCo is most likely evidence from the analysis of voting to be applied within the JHA area: it was first behaviour in the Council shows that QMV threatened in late 2001 (but not put in place, works rather as a deterrent against leading instead to a compromise at 15) on the obstruction than as a proper decision-making European arrest warrant; and it has been tool. In other words, the Member States tend enforced recently for cross-border divorce to prefer consensual decisions - even when cases. they could do otherwise, as in trade matters - and resort to a vote (typically on In principle, however, the "enabling" EnCo distributional, and sometimes regulatory, clauses are applicable also to other domains – issues) only and mainly for domestic political as is happening now with the European purposes7. Patent regime and may happen one day, possibly, with the corporate tax base. And As already mentioned above, EnCo has also one cannot entirely rule out that been employed as a deterrent against gridlock "differentiated" (or flexible, or multi-speed) and as a facilitator of decisions. integration becomes - within or without EnCo proper – a recurrent "method" for an For its part, constructive [qualified] abstention has ever larger Union. been used only once since it was introduced

7 Germany, of all countries, is a famous case in point, as it was the most frequent 'loser' in Council votes throughout the 1990s. Calling a vote and being (seen) in a minority was only meant to show to domestic stakeholders that the government had defended 6 A.C.-G.Stubb, A Categorisation of Differentiated specific national interests (albeit in vain), while the Integration, “Journal of Common Market Studies”, no.2 overarching common/general interest – as defined (34), June 1996, 283-295. also by Germany - had eventually prevailed.

EGMONT Royal Institute for International Relations 6

with the Amsterdam Treaty - notably when all traded views and conventional the EU-27 launched the EULEX operation approaches. And even the function carried in Kosovo in February 2008 (and Cyprus out (and the interpretation given to it) by abstained). Interestingly, however, it is now as President of the being considered as a tool in the framework may end up putting into of the so-called "mutual agreement" question - at least in terms of substance - the procedure just adopted for the Euro Plus contours of the "traditional" IM, as already Pact. did Solana's.

As a result, the picture is even less clear-cut There are, of course, other plausible reasons in terms of "methods". If previously the for the growing diversification and distinctions were already less of nature than multiplication of "methods" and the relative of degree8, now they are further blurred and decline of the old CM. increasingly problematic. To start with, the change in the composition On the one hand – banal as it may sound – of the Commission - with one Commissioner the treaty has given full personality to the per Member State since 2004 - has de facto Union, thus indirectly 'terminating' the entailed a political disinvestment on the part Community proper. At least formally, of the bigger EU countries, which used to therefore, it is inappropriate to continue have two representatives inside the college referring to the CM. A bit less formalistically, (and often from different political camps, it is arguable that the CM worked best when which further increased its legitimacy). the Member States agreed in advance on the Germany's progressive detachment, in policy goals to pursue through it – as a means particular, can be attributed also to the to a shared end, that is, rather than a magical resulting mismatch between its formal weight device to overcome fundamental differences. in the college (now equal to that of mini- It is equally arguable that such agreement has States) and its substantial weight in terms of been easier to achieve at 6/9/12 than at population and GDP, which is now reflected 15/25/27: in other words, the increasing both in the EP and in the new voting system „hybridisation‟ and cross-contamination of for the Council (as from 2014) - but no "methods" is also the combined effect of longer in the Commission. decreasing policy convergence and declining internal homogeneity inside the EU. Moreover, especially over the past few years, decision-making in the EU at large has On the other hand, especially in the field of become increasingly "presidentialised". This foreign policy and external relations, the is reflected in the formalisation of the multi-hatted role of HR/VP Catherine European Council as an institution in its own Ashton as well as the operation of the three- right - prompted by the Lisbon Treaty - but armed European External Action Service also in the actual transfer of political deal- (EEAS) supporting her9 do indeed challenge making from key Council formations (especially the GAERC and now also the ECOFIN) to the meetings of Heads of State 8 See the excellent analysis by Philippe de Schoutheete, Mode de decision dans l'Union, "Les Brefs", Notre and Government – which have indeed Europe, no.24. mars 2011. 9 For a preliminary assessment see A.Missiroli, The EU Papers, no.4/2010, Centre for 'Foreign Service': Under Construction, RSCAS Policy Advanced Studies, EUI.

EGMONT Royal Institute for International Relations 7

become ever more frequent. Such mounting tools rarely lie in one camp only, and the politicisation and public exposure have sheer scale of the current challenges makes further weakened the CM, which was them all indispensable. It is their most designed to find apparently technical suitable „mix‟ that should be addressed, not solutions to political problems and to project the relative size and visibility of each policy choices long rather than short term. ingredient.

Finally, the growing power(s) of the EP will Second, even if one accepts that the CM lies probably have a much bigger impact on all at one end of the spectrum and the IM at the "methods" than previously imagined. Not other - in a sort of "ideal-typical" continuum only have the new prerogatives of MEPs just - the reality and the practice of EU policy- started being exercised quite assertively, but making show that actual procedures often fall some of these are also being used to explore in-between and, even more importantly, the possibility of acquiring additional ones in continue to move and evolve along that line. the process. This would have far-reaching Indeed, it is no secret that European implications – in "methodological" as well as integration has tested and taken different systemic terms – for all other institutional avenues over time – and, with and after the players in the EU, generating unexpected Lisbon Treaty, the old set of (more or less) outcomes and unintended consequences. distinguishable "methods" is truly gone.

A tale of two methods? As a consequence, Chancellor Merkel's fairly vague reference to an emerging "Union This is why the current European public method" - yet again, unfortunately, in the "discourse on methods" and the resulting singular form - should rather be taken as an polarisation between CM and IM - with invitation to consider the impact of the ever Merkel's UM as a dark horse - appear growing areas of shared competence on EU superficial and, above all, not to the point. policy-making. It could also be seized as an They also sound artificial and mostly tactical opportunity to streamline the current (regardless of the good intentions and proliferation of 'hybrid' procedures and candour of some of the discussants). But they reassess the continuing (if ghostly) presence are also dangerous as they may blur the real and resilience of the old 'pillars', despite their terms of the policy debate and force players formal suppression by the Lisbon Treaty. to take sides, thus making the construction of a viable consensus and the enforcement of Seen by many in the CM camp as a wolf in effective policies more elusive. sheep's clothing, the UM is actually little more than a blank sheet, especially if cleared Two points deserve to be made in this of the inevitable concessions to the 2009 respect. First, the tension between the CM German Constitutional Court's ruling on the and IM has never been - and should not Lisbon Treaty. The real debate (and become now - a 'zero-sum' game. True, the controversy) should therefore focus on how Legal Services of the Council and the to fill that sheet with recipes which may Commission seem to engage sometimes in prove both effective and beneficial for the pre-emptive strikes and trench warfare - and overall integration process. to act as “guardians of the methods” - when it comes to legal competences. Yet policy

EGMONT Royal Institute for International Relations 8

This is why a strong dose of pragmatism and Family life in the EU lies somewhere in the open-mindedness is absolutely necessary - middle: while e pluribus unum appears an but probably not sufficient. impossible goal, at least for now, the pursuit of (collective) happiness remains a legitimate Former US President Bill Clinton recently and worthy one. argued that the 21st century demands a "whatever works" approach. In and for the EU, however, such naked pragmatism needs Dr. Antonio Missiroli is Adviser in the to be combined with hard evidence regarding Outreach Section of the Bureau of European policy effectiveness - which may result in Policy Advisers, . He slightly different recipes according to the writes here in a strictly personal capacity. area(s) in question - as well as robust confidence-building measures between institutions, Member States and also citizens. Mutual trust and collective determination are essential ingredients for any current or future The European Policy Brief is a publication of Egmont, recipe, and especially the former – mutual the Royal Institute for International Relations trust – has been severely dented by the EGMONT sovereign debt crisis. Royal Institute for International Relations Naamsestraat 69 One thing, however, is certain: a continuing 1000 Brussels controversy over the 'optimal' method - as though there was a one-size-fits-all approach > www.egmontinstitute.be to the complex policy challenges of our time

- is useless and even counterproductive. The opinions expressed in this Policy Brief are those of the authors and are not those of EGMONT, Royal Institute for No past or contemporary philosopher seems International Relations able to offer a convincing method to meet this particular demand, with the possible exception of Karl Popper and his evolutionary epistemology whereby not only our knowledge but also our aims and standards grow through critical tests and an unending process of "trial and error"10.

While continuing the inquiry, therefore, it may be wiser at this stage to resort to Lev Tolstoi's Anna Karenina (1877) and its famous opening line:

“happy families are all alike; every unhappy family is unhappy in its own way"

10 Articulated in his Conjectures and Refutations (1963), it is widely considered the foundation of 'critical rationalism' and the liberal approach to the evolution of scientific knowledge.

EGMONT Royal Institute for International Relations 9