Agenda Control and Policy Entrepreneurship in Legislative Decision-Making

Understanding EU institutions in context: Agenda control and policy entrepreneurship in legislative decision-making

***Work in progress – please do not circulate or cite without author’s permission***

Stefan Thierse

University of Duisburg-Essen

Abstract

This paper studies the implications of the broader institutional context of the European Union (EU) polity for the legislative process. To this end, the paper adopts Pollack’s (1997) distinction between formal and informal agenda-setting to link two literatures largely isolated from each other. The concept of agenda control is employed to analyze both legislative-executive relations and the distribution of agenda-setting prerogatives within the European Parliament (EP). The multiple streams approach (MSA) serves to explain the conditions and timing of policy change. Special attention is devoted to the concepts of institutional ambiguity and policy entrepreneurship. These concepts are applied to the EP arena to determine opportunities and constraints for rapporteurs, agents which are widely recognized as agenda-setters and policy entrepreneurs. A case study on the EU chemicals regulation (REACH) serves to illustrate the relevance of institutional ambiguity and policy entrepreneurship to explain the dynamics of agenda-setting and legislative decision-making.

Keywords European Parliament, agenda control, multiple streams, policy entrepreneurship

1 Introduction

There is no shortage of scholarly research that tries to grasp the EU institutions with the vocabulary of comparative government. With regard to executive-legislative relations, analogies have been drawn to separation of powers systems (Decker and Sonnicksen 2011; Kreppel 2011). With regard to the power-sharing arrangement between the EP and the Council, the EU has been likened to a bicameral system (Hagemann et al. 2010; Hix and Høyland 2011, 68ﬀ.). And the structure of the Council, a legislative institution which is composed of representatives of the

1 Member State governments has evoked parallels to the German Bundesrat (Dann 2004; Kreppel 2013). Given the diverging opinions on how far one can stretch conventional concepts of comparative government, Lord (2007, 139) perhaps offers the best definition when he characterizes the EU as a ‘decentered polity’, implying that there is no single one center from which political power is exercised over the various policy outputs and, more importantly, no single one organizing principle for the inter-institutional relationships. Unfortunately, the debate provides no answer to the question what consequences this institutional arrangement has for policy-making in the EU. Morever, it is of only limited use in offering explanations as to how the inter-institutional relationships structure the operation and organization of the European Parliament (EP) in the policy process (Farrell and Héritier 2004). This paper adopts a different approach to studying the implications of the EU polity for policy-making. First, it draws on the concept of agenda control both to situate executive-legislative relations in the EU in comparative perspective and to analyze the distribution of agenda- setting resources within the EP. Derived from rational choice theory, the concept acknowledges the impact of rules and procedures governing agenda-setting on policy output (Döring 2001, 162). Second, the approach is complemented by the multiple streams approach (MSA). The MSA constitutes an analytical lens which stresses the importance of context and time under conditions of ambiguity. More so, the MSA theorizes at the systems level while acknowledging the importance of individual agents and ideas (Zahariadis 2003, 2). This paper establishes the link between agency and institutions by devoting particular attention to rapporteurs. These legislators are generally considered to be influential agents with regard to shaping both policy process and outcome (Costello and Thomson 2010; Ringe 2010; Yoshinaka et al. 2010). While the concept of agenda control yields insight into their resources, prerogatives and constraints within the EP legislative organization, the MSA provides a conceptual and analytical framework for analyzing the conditions under which rapporteurs can exert influence on the agenda. The remainder of the paper is structured as follows: The next section introduces agenda control as a comparative category to studying legislative-executive relations and the role of the legislature in policy-making. Based on this concept, section 3 analyzes legislative-executive relations and the distribution of agenda-setting rights in the EU. Section 4 sketches the MSA and its main assumptions. Thereafter, Pollack’s distinction between formal and informal agenda-setting is used to establish a common conceptual ground. Applications to the EU are briefly reviewed with a particular focus on two modifications: institutional ambiguity and policy entrepreneurship. Section 5links both literatures and establishes a common conceptual ground. Section 6 discusses formal and informal agenda-setting resources with reference to rapporteurs, paying attention also to institutional constraints.

2 Section 7 presents a case study on the EU chemicals regulation (REACH) which is structured along the heuristic of the MSA and draws on original interview data. Section 8 concludes with a discussion and outlook.

2 Agenda control and executive-legislative relations

The concept of agenda control is readily applied in studies on parliaments and law production (Döring 1995, 2005). Following the definition advanced by Cox and McCubbins (2005, 37), agenda control refers to “the ability to decide what gets voted on, when, and how.” It encompasses the rights to propose and amend legislation (voting agenda) and the right to impose a timetable on voting (timetable agenda) which together structure the vote choices in legislative institutions. Agenda control comes in two variants: Positive agenda control refers to the ability to push a proposal to a final passage vote, while negative agenda control implies the prerogative to restrict amending activity and withhold a proposal from a final legislative vote. Agenda control can be used both to study the distribution of agenda-setting prerogatives for policy output and to capture the broader implications for legislative- executive relations Sieberer (2006, 51ff.). As to the former dimension, there is a vast literature not least in the context of EU legislative politics (see only Crombez et al. (2000), Tsebelis and Garrett (2000), and Tsebelis (1994)). But the concept also offers a relevant analytical lens to capture legislative-executive relations. For instance, Tsebelis (2002, 82) identifies agenda control as a key characteristic for distinguishing between presidential (separation of powers) and parliamentary (fused powers) forms of government. In parliamentary sytems, agenda control is more centralized than in presidential systems: The majority required to pass legislation corresponds to the majority necessary to keep the government in office (Döring 1995, 34). Under these circumstances, agenda-setting is routinely delegated to the government and its bureaucracy. In presidential forms of government, by contrast, agenda control is more fragmented. Typically, the executive is less in control of the legislative agenda, first and foremost because it cannot rely on a cohesive majority. Formal access to the voting and timetable agenda is generally limited to actors from within the legislature. The US House of Representatives is an emblematic example of a legislature where agenda control rests firmly with the legislature and is dispersed across several actors (Cox and McCubbins 2005, 24; Döring 1995, 33f.). However, while the US may be seen as a textbook separation of powers system, it is by no means representative of the presidential form of government (Mainwaring and Shugart 1997, 435). This goes above all for the status of the legislature. Following the typology proposed by Cox and Morgenstern (2001), legislatures in European parliamentary systems are originative assemblies, while the US Congress

3 corresponds to a proactive assembly with strong independent policy-making powers. Legislatures in Latin American presidential systems lie somewhere in between. They constitute reactive assemblies, owing to the fact that the executive typically possesses the right to initiate legislation and enjoys greater leeway to shape the legislative agenda (Krumwiede and Nolte 2000, 95). Reactive assemblies more often than not respond to executive agenda-setting by amending or vetoing policy proposals originating in the executive. Under these cirumstances, legislative- executive relations depend to a large degree on the majority support of the president, the degree to which reelection fortunes are controlled by parties and the role of party ideology. As the subsequent analysis will show, the this type of legislature has the highest comparative merit for the context of the EU. Patterns of variation in the distribution of agenda control between the legislative and executive branch exist not only between presidential and parliamentary forms of government, but also within the parliamentary form (Döring 2001, 162). Where the executive possesses a high degree of agenda control, the autonomy of parliamentary standing committees tends to be low, and vice versa. All else being equal, committees are stronger vis-a-vis governments the more autonomous they are in setting their own timetable, if they have the right to initiate legislation, the power to substantially amend and redraft a government proposal, if they may convene hearings and demand from government documents for the purpose of information and deliberation. For example, the German Bundestag is a case of weak governmental agenda control. Although it is not committees but the parent chamber that sets the agenda, there is little in the way of direct government control over the plenary agenda (Sieberer 2006). Agenda control touches on the relationship between majority rule and minority rights (Döring 2001). As such, it is a useful concept to study the distribution of agenda-setting rights within legislative chambers.Legislative organization1 mirrors constitutional design and party system characteristics (Zubek 2011). By and large, minority access to the agenda is less restricted in separation of powers systems, where agenda control is dispersed. However, given the two-party sytem in the US Congress, procedural restrictions such as closed rules help the majority party get its way despite weaker party discipline. Consequently, special agenda-setting prerogatives for the majority party are a functional equivalent for high party discipline among coalition partners in parliamentary systems (Chandler et al. 2006, 37). In multiparty systems with weak government agenda control, little procedural restrictions and weaker party discipline, it is frequently surplus majorities which ensure control over legislative business (Tsebelis 2002, 184). This latter observation is particularly insightful to understand legislative politics in the EP.

1 Legislative organization is understood here as “the allocation of resources and assignment of parliamentary rights to individual legislators or groups of legislators” (Krehbiel 1991, 2).

4 3 Agenda control in EU legislative decision-making

The following section considers the distribution of agenda-setting rights under the ordinary legislative procedure, which is by now the standard procedure for adopting legislation in the EU. Particular attention will be paid to the implications of systemic features of the EU polity on agenda control within the EP. Instruments of agenda control are typically laid down in the constitution and the parliamentary standing orders (Hönnige 2009, 26). The EU is no exception: Both the EP Rules of Procedure and the Treaty on the Functioning of the European Union (TFEU) lay down regulations referring to the voting and timetable agenda. The European Commission possesses the exclusive right to initiate legislation. However, the monopoly of initiative is not be confused with a monopoly of agenda- setting, since only a marginal share of Commission proposals have been triggered without a legal requirement or stimulation by external actors.2 Before forwarding its proposal to the EP and the Council of the EU, the Commission is renowned for its receptivity to input from a wide range of private and public stakeholders. What matters most for the research question at hand, the Commission has only very limited agenda control vis-a-vis the EP. In particular, it has hardly any formal prerogatives to speed up the legislative process or to ensure the adoption of its original proposal. It cannot control the amending activity in the EP or the Council; its negative agenda control is restricted to the formal right to withdraw its proposal at any time until the Council has reached a decision.3 The character of the EU as a separation of powers system is evidenced both by the far-reaching discretion to amend the Commission proposal and the high degree of autonomy of the EP in setting its own agenda. The high degree of independence from both the Commission and the (European) Council in setting its agenda evidences the character of the EP as a “policy-shaping legislature” (Dann 2004, 387). In first reading, when the EP debates and votes on the Commission proposal, there are hardly any restrictions to the voting and timetable agenda (Rasmussen and Shackleton 2005, 9). The text is subject to an effective open amendment rule, i.e. all germane amendments are in order.4 During the committee deliberations which are concluded by a report which constitutes the draft resolution for the plenary vote, any MEP may offer amendments.5 In plenary, amendments may be introduced by the lead committee, a party group or a group of members (currently

2 Some sources estimate the ﬁgure at six percent (Härtel 2006, 329). 3 Art. 293 par. 2 TFEU. 4 However, if an exceeding number of amendments have been tabled for the plenary session, the EP President may, after consulting the Chair, ask the committee to reconvene in order to reconsider these amendments (Rule 150 EP RoP). This is one rare instance of negative agenda control. 5 Rule 208 par. 1 EP RoP.

5 40 MEPs).6 A simple majority suffices to adopt an amendment. In second reading, when the EP votes on the Council common position, there is a higher quorum for the adoption of amendments, and the scope of amendments is narrowed down to three basic objectives: Asserting a position adopted in first reading, forging an inter-institutional compromise and taking into account new (legal) facts.7 Thus, as is the case in most parliaments (Heller 2001, 782), the right of members to offer amendments is increasingly constrained with every reading stage. However, in the EU this procedural restriction is to the advantage of the second chamber of the legislative branch, the Council, and not the Commission. Furthermore, it is easier for the EP to accept a Council proposal (by simple majority) than to reject or amend it (by absolute majority). This makes the Council the conditional agenda-setter (Hagemann et al. 2010, 830). In an eventual third reading, which becomes necessary if the Council does not accept amendments offered by the EP in second reading, the agenda is effectively monopolized: The common proposal agreed by a conciliation committee is put to a simple up-or-down vote, with adoption requiring a simple majority.8 Formalistically this lower quorum together with the effective closed rule helps to promote an interinstitutional compromise. The strong position of the Council is also evidenced by the regulations referring to the timetable agenda. In first reading, when the EP deals with the Commission proposal, there are no formal deadlines for deliberating and adopting a draft resolution. In second reading, however, the Council common position is automatically placed on the EP agenda after a three month period.9 The opportunity for parliamentary obstruction is further limited by the provision that the legislative act is considered adopted if the EP has not responded to the Council common position within three months.10 From a comparative perspective, this temporal restriction is in place to curb parliamentary delay (Döring 2005, 115). On the other hand, there is little in the way of the Council to obstruct or bog down legislation. Failing a qualified majority, the status quo continues. This sets the EU apart from a conventional bicameral system where nothing becomes law without the majority assent of the first chamber.

4 The multiple-streams approach

The MSA may be seen as the antithesis to the rational-choice paradigm in policy analysis. Its analytical focus is less on policy outcomes than on the timing of policy

6 Rule 169 par. 1 EP RoP. 7 Rule 69 par. 2 EP RoP. 8 Rule 72 par. 3 EP RoP 9 Rule 67 par. 1 EP RoP; Art. 294 TFEU. 10 Art. 294 par. 7a TFEU.

6 change (Herweg 2015, 325). Rejecting the notion of comprehensive rationality and a neatly ordered process of decision-making, the MSA conceives of political systems as “organized anarchies”: the relevant actors often do not have well-defined preferences and disagree on how to define, interpret and solve a given decision- making problem; they are faced with ambiguity,11 i.e. decision-making situations where social choice is not facilitated by more information; they frequently have to deal with counterparts varying according to issue-area and over time; and while they may be aware of their individual responsibilities, they possess scant knowledge of how their activities and responsibilities fit in the larger mission of their organization (Herweg 2015, 326f.). Consequently, turf wars about jurisdictional boundaries are common. As an analytical lens, the MSA rests on three major assumptions (Zahariadis 2003, 11ff.). First, policy-makers operate under significant time constraints. This implies that the range and number of alternatives which can be considered is limited, and that policy-makers must accept solutions that are ‘good enough’ (satisficing) instead of optimal. Second, decision-making is conceived of as distinct ‘streams’ that operate simultaneously and each according to its own dynamics. The problem stream consists of those issues for which a discrepancy between an observed condition and a preferred state of affairs is acknowledged to pose a problem requiring political action. The political stream encompasses public opinion, interest group campaigns and the majority constellation within the political-administrative system and determines which issues acquire prominence. The policy stream is made up of specific policy proposals and solutions brought to the fore by policy communities, i.e. think tanks, stakeholders or bureaucracies. Third, ambiguity is defining feature of the policy process. Since there may be a multitude of (potentially irreconcible) interpretations about problems and their adequate solutions, policy- makers are confronted with vagueness, uncertainty and contingency. This makes the process susceptible to manipulation by skilled and resourceful actors who generate information, control access to venues of policy-making, or synchronize institutional or organizational timetables (Ackrill et al. 2013, 872). Why do some proposals receive enough attention to be scheduled for an authoritative decision while others are not? And why do some proposals enjoy an edge over others in decision-making process? The MSA identifies policy entrepreneurs and their activities as the main causal driver (Ackrill et al. 2013, 879). Kingdon (2003, 179) defines these as “advocates who are willing to invest their resources – time, energy, reputation, money – to promote a position in return for anticipated future gain in the form of material, purposive, or solidary benefits.” A prerequiste for making a binding decision on an issue is the coupling of all three streams by a

11 Ambiguity may be understood as “a state of having many ways of thinking about the same circumstances or phenomena" (quoted in Zahariadis (2003, 2f.).).

7 policy entrepreneur. Coupling depends on two factors: The skills and resources of the entrepreneur (e.g. negotiating skills, expertise, access to decision-making positions, perseverance) and the nature of a window of opportunity. Opportunities to promote a preferred solution or to draw attention to a speciﬁc problem may arise either in the problem stream or the politics stream. For instance, a change in government or diﬀerent majorities after parliamentary elections may generate a more receptive environment for a particular policy proposal. Alternatively, there may be a focusing event in the problem stream such as a crisis or the publication of a study creating some sense of urgency for a problem.

5 Formal and informal agenda-setting: Establishing a link

In order to link largely isolated literatures on MSA and agenda-setting, it seems helpful to start with the establishment of a common conceptual ground. Scholars such as Kingdon (2003, 4) employ a rather broad definition, subsuming under the term the problems and policy proposals that are subject to serious consideration and debate. Others denote by the term a “set of alternatives together with a rule that specifies the way in which votes are taken” (Ferejohn et al. 1987, 70). Hence, the term agenda touches both on the substance of an issue and the procedural regulations governing the formal vote on that issue (Rohde 1991, 43). Both dimensions can be linked by asking, first, which actors are in a position to select from among the multitude of problems and proposals within the purview of policy-makers (governmental agenda) the ones that make it on the decision agenda, i.e. are put up to a vote for an authoritative decision (Kingdon 2003, 202). Second, there is a potential connection by asking why some proposals or alternatives are favored over others. In line with Pollack (1997), one may differentiate between a formal, procedural and an informal, substantive dimension in agenda-setting. The formal dimension is closely linked to the concept of agenda control as advanced by Cox and McCubbins (2005). Informal agenda-setting is defined as “the ability of a ‘policy entrepreneur’ [emphasis added] to set the substantive agenda of an organization, not through its formal powers but through its ability to define issues and present proposals that can rally consensus among the final decision makers.” (Pollack 1997, 121) More or less explicitly, the MSA rests on the assumption that formal institutions such as governments or parliaments (“visible actors”) reign supreme in defining which proposals from a menu of alternatives are put up for a vote, when, and which rules and procedures apply (Kingdon 2003, 69f.). There is thus a connection to be drawn to the literature on formal agenda-setting. By contrast, alternative specification, i.e. the development of proposals and alternatives for public policy choices, is relegated to the wider sphere of policy communities (“hidden participants”). Thus, a

8 rather rigid distinction is made between agenda-setting and alternative specification. While this may be appropriate for the sake of conceptual clarity, it raises some problems with regard to the status of policy entrepreneurs. Kingdon himself acknowledges that these are to be found at many positions in the political system and primarily defined by their activities (2003, 204). For instance, while elected officials are associated with agenda-setting, they may perform the role of policy entrepreneur much the same as policy specialists in the government bureaucracy or academics which are assumed to be responsible for alternative specification. Consequently, the distinction between policy-makers and policy entrepreneurs becomes blurred. One way to deal with this is to conceive of the specification of a narrow set of alternatives and the actual choice from that set as the singular process of policy formulation (Zahariadis 2003, 10). This also makes it feasible to use the MSA for studying both agenda-setting and decision-making. What is more, the MSA in its orginal guise assumes policy entrepreneurs to manipulate, whereas policy-makers are the target of manipulation (Zahariadis 2003, 19f.). For the purpose of the subsequent analysis of legislative decision-making in the EU, it seems necessary to modify the MSA and its assumptions in some crucial ways. This is not least warranted because the MSA has been developed inductively with a view to policy-making in the context of the US separation of powers system. However, it has been argued that institutional structures matter with regard to the scope for manipulation. Thus, Zahariadis (2003, 16f.) argues that in fused powers systems, access to the decision-making center is more restricted and decision-makers have better defined preferences stuctured by parties or administrative expertise, making manipulation by outsiders more difficult.

Applying the MSA to the EU context The EU has been judged as an “obvious candidate” (Olsen 2001, 196) for applying the MSA. This is because the framework explicitly honors “what are normally considered to be pathologies of the EU system, such as institutional fluidity, jurisdictional overlap, endemic political conflict, policy entrepreneurship and varying time cycles” (Ackrill et al. 2013, 871). Yet the MSA has been criticized for its neglect of institutions (Bendor et al. 2001, 173). Consequently, of the many works drawing on the MSA which have surged in the recent literature on policy-making in the EU, those which devote particular attention to the role of institutions are most apt for a combination with the literature on formal-agenda setting. Thus, Ackrill and Kay (2011, 75) define ambiguity in institutional terms as “a policy-making environment of overlapping institutions lacking a clear hierarchy”. This description fits both the broader institutional context of the EU as well as the internal organization of the

9 EP.12 Institutional ambiguity may give rise to endogeneous policy spillovers: A policy issue may transcend jurisdictional and institutional boundaries, resulting in a (re)ordering of priorities between alternatives and shifting of political receptivity for certain ideas. This yields an empirical expectation as to for the policy process: Where policy issues affect several policy areas and where institutional ambiguity fosters endogenous spillovers, decision-making not be autonomous. Policy entrepreneurs may find an opportunity in endogenous spillover to push proposals on the agenda or promote alternatives in a different institutional setting (Ackrill and Kay 2011, 75f.). Institutional ambiguity is compatible with the idea that institutional resources and prerogatives epitomized in formal roles matter with regard to shaping the agenda and the process of alternative specification. At the same time, however, institutional ambiguity and policy spillovers are likely to constrain the room of maneuver for any single policy entrepreneur. The assumption also has implications for the conceptualization of policy entrepreneurs and their coupling strategies: First, policy entrepreneurs may actually be congruent with policy-makers. Second, instead of advertising a particular coupling strategy (e.g. attaching preferred policy solutions to problems) to decision-makers in a manipula- tive fashion, policy entrepreneurs may purposely select from pre-existing or known proposals in response to signals from the political environment. This is why the authors prefer the concept policy entrepreneurship to refer to a “general label for a set of behaviours in the policy process, rather than a permanent characteristic of an individual or a particular role” (Ackrill et al. 2013, 882). Why, when and how do some actors encounter an opportunity for policy entrepreneurship? And what strategies do these actors use to exploit opportunities? The empirical expectation is that formal agenda-setting prerogatives afforded to individuals are likely to be circumscribed in instances of institutional ambiguity and endogenous policy spillovers. Not least, relating to Pollack’s definition of informal agenda-setting, policy entrepreneurship should depend crucially on the ability to use institutional resources to respond to and process signals in the policy and politics stream. In other words, the selection of proposals which foster consensus among final decision- makers should be at least in part determined by institutional prerogatives. In this regard, formal agenda-setting can bring added value to the analysis. The following section will focus on rapporteurs as entrepreneurs in legislative decision-making. Both formal and informal resources, prerogatives and constraints will be considered.

12 While Ackrill and Kay (2011) illustrate the institutional overlap of the DG-AGRI and DG-Trade in the case of the sugar regime, the case study presented here highlights institutional overlap between standing committees.

10 6 Rapporteurs and entrepreneurship - Formal and informal resources

In many continental European parliaments, the drafting of resolutions for consideration in plenary is a task conferring substantial autonomy and responsibility on individual legislators (Arter 2003, 75; Melzer 1989, 1141). Rapporteurs in the EP are responsible for shepherding a legislative proposal all the way to a ﬁnal vote on the ﬂoor. They initiate and lead discussions in committee, take on board amendments, build majorities and present a draft report on behalf of the committee in the plenary session. Like their namesakes in the German Bundestag or the French National Assembly, rapporteurs in the EP constitute part of the committee elite. As such, they maintain close working relationships with both the Committee Chair, their colleagues from other party groups (so-called shadow rapporteurs) and, above all, the committee members of their own party group. Together with the group coordinator, they usually constitute the committee-based group leadership (Ringe 2010, 61). In addition, they are the principal point of contact for political advisors, lobbyists, interest group representatives and journalists (Corbett et al. 2011). The EP literature describes rapporteurs as (conditional) “agenda-setters” (Hix et al. 2007, 113), as “formateurs” of successful voting coalitions (Finke 2012, 491f.) and – tellingly – as “legislative entrepreneurs” (Benedetto 2005, 67).

Formal agenda-setting via committees Rapporteurs can rely on administrative support of both the committee and EP secretariat and enjoy some important procedural prerogatives: They may discharge a draft report for consideration in plenary and refer it back to the lead committee (Finke 2012, 491). In some cases rapporteurs even have the same competences as Committee Chairs. The rapporteur, too, may propose the postponement of a ﬁnal vote on the Commission text in cases where the Commission does not accept the legal basis chosen by the EP or where the Commission is not ready to accept all of the amendments adopted in the EP.13 In addition, rapporteurs can substantially shape the voting agenda provided that the committee delegates to them the task of establishing the principles of voting. For instance, they may propose compromise amendments which are given priority in the voting order; or they may tie together several amendments which are put to a vote collectively.

13 Cf. Rule 37 par. 6 and Rule 57 par. 2 RoP. Although the wording does not imply an unlimited power to obstruct the legislative process, the postponement of a ﬁnal vote is indeed judged by practitioners as an eﬀective instrument of parliamentary assertion (Corbett et al. 2011, 201).

11 Informal agenda-setting via committees Perhaps the most developed application of the concept of policy entrepreneurship in the EP comes from Ringe (2010). He regards the committee structure as significant bulwark for informal agenda-setting. Rapporteurs are conceived as key actors who invest considerable time and resources in acquiring expertise and information on a policy in the committee system. This expertise is instrumental in two ways. First, it reduces uncertainty among legislators about the relationship between a policy proposal and their outcome preference. Shared partisan (ideological) affiliation is considered as a proxy for common perceived outcome preferences. Hence, rapporteurs are viewed as instrumental in establishing a party line and fostering cohesive behavior by providing information to nonexperts. Second, expertise forms the basis of focal points, i.e. “short-hand devices for communicating information that emphasizes the respective salience of different outcome preferences” (Ringe 2010, 96). Focal points do not only reduce the dimensions considered to be salient for a decision, but they also entail an explict strategic momentum: They shift attention to particular aspects of a policy proposal by emphasizing or even exaggerating certain consequences. By deploying focal points, rapporteurs (or other ‘invested experts’) may not only influence opinions, but even swing the majorities. Nevertheless, providers of focal points are bound by the institutional structure in which they operate. Notably, EP party groups may serve as an alternative source of focal points (Ringe 2005, 734). Policy entrepreneurs within the EP may be confronted with competing focal points deployed by external actors. To the extent that these are advocated by other legislative insiders, policy entrepreneurs may find it harder to steer the decision-making process (Ringe 2010, 193).

Inter-institutional and party-political linkages as channels of influence Farrell and Héritier (2004, 1188) have coined the term “relais actors” to emphasize the central role of the rapporteur in steering interinstitutional negotiations. This also affords them significant informational advantages vis-a-vis ordinary committee members. Their agenda-setting role becomes especially prominent in the ever- increasing case of so-called early agreements, where the rapporteur negotiates on behalf of the EP with the Commission and the Council in informal trilogue meetings to ‘fast-track’ legislation.14 When the rapporteur is able to negotiate a compromise with the Council, there can be considerable pressure on MEPs to refrain from tabling amendments which could frustrate the agreement and move the decision-making process into a further second-reading stage, where the possibility to uphold amendments diminishes successively (Rasmussen and Shackleton 2005, 17).

14 Interview IP 05.

12 Although there exists an implicit norm assigning the rapporteur the role of an impartial agent of the committee, their party and national affiliation does matter.15 First of all, rapporteurships are allocated on a broadly proportional basis among the groups. This means that MEPs from the Christian Democratic/Conservative and Social Democratic party groups are most likely to be in a key agenda-setting position (Hix et al. 2007, 115). Since these parties also make for the majority of governments in the Member States, partisan linkages may facilitate inter-institutional linkage, with consequences both for the policy process and outcome. Høyland (2006, 18) finds rapporteurs from governing parties to be significantly more likely than rapporteurs from national opposition parties to finalize an agreement in first reading. Complementing this finding, Reh et al. (2013, 1134) find evidence that rapporteurs with the same nationality and/or same party-political affiliation as the Council presidency are more likely to successfully conclude “fast-track legislation”. As for the policy implications, the EP position adopted as part of an early agreement has been shown to be systematically closer to the ideal position of the Member State of the rapporteur (Costello and Thomson 2010, 230).

Constraints While rapporteurs enjoy considerable agenda-setting rights, they are generally not in a position to act as ‘runaway delegates’ promoting narrow partisan or national interests. First of all, their proposals are not protected by procedural restrictions: Their reports can and do sustain amendments in plenary (Finke 2012). This is especially important early on in the legislative process, when voting is governed by an open rule. In second reading, rapporteurs must be able to have the backing of an absolute majority in the plenary to defend any amendments against the Council. This is why the rapporteur’s formal agenda-setting power is conditional. At the organizational level the leeway of the rapporteurs is reduced by the fact that all party groups usually nominate shadow rapporteurs. ‘Shadows’ closely monitor the progress of legislative ﬁles, feed back information into their groups and are even represented on most trilogues themselves. Their position serves as a check and balance on the rapporteur who might otherwise advance a position in committee narrowly tailored to the linking of his own party group (Joos 2011, 124). As suggested by Tsebelis, surplus majorities in the EP – especially a “working majority” (Yordanova 2013, 23) formed by the largest two groups – can eﬀectively control the agenda. In some cases, they may even bypass the rapporteur and the lead committee when adopting amendments which serve to forge a compromise with the Council but have not received a majority in the lead committee (Ripoll Servent 2013, 977). One may suspect this form of procedural domination of the working

15 Interviews IP 08; IP 17.

13 majority to be especially prominent in legislative ﬁles that are politically salient, publicly visible and touch on conﬂicts of interest between Member States. Under these circumstances, informal negotiations between representatives of the largest two groups on both substance and procedure can prove decisive in preventing interinstitutional deadlock and even fostering compromise within the Council. As Settembri and Neuhold (2009, 145) illustrate with respect to the Services Directive, the largest two groups can wield substantial agenda control by means of setting up informal bodies to coordinate and negotiate a compromise for plenary. While the procedure was initiated by the rapporteur in that particular case,16 it did impose constraints on the lead committee and its agenda-setting prerogatives.

7 REACH – An explanation linking agenda control and informal agenda-setting

REACH is one of the most complex and technical EU legislative acts adopted the past decade. The final text was more than 800 pages long. The rapporteur and his committee alone discussed almost 5000 amendments and voted on nearly 1300 (Sacconi o.J.: 22ff.). The policy process was accompanied by intense lobbying and political intervention by Member State governments which, according to the Committee Chair, rendered consensus-finding within the EP quite difficult (Florenz 2007, 51). What makes REACH particularly interesting for an analysis drawing on the MSA is the fact that institutional ambiguity proved to be defining feature for the legislative process.

REACH - The problem stream The main impetus for a reform of the EU chemicals legislation was provided by a striking discrepancy between so-called ‘old substances’ (first marketed before 1981) and ‘new substances’ (placed on the market since that date). Old substances account for approximately 99 percent of all chemicals, but there are serious information deficits concerning their properties and uses. Testing requirements are relatively lax compared, and unlike manufacturers and importers of chemicals, so-called downstream users (e.g. industrial users and formulators) were not obliged to provide information on the handling of and exposure to substances. Furthermore, the existing procedure for risk assessment was considered time-consuming and resource-intensive because the risk assessment was up to the public authorities instead of the enterprises that produce, import or use the substances. Consequently, staff and technical resources were tied up for lengthy authorization procedures for only a fraction of substances placed on the market (Köller 2006, 143). As

16 Also Interview IP 14.

14 the burden of proof to demonstrate the risk of a substance was placed on public authorities, it was diﬃcult to obligate industrial users and manufacturers to more thorough testing requirements (European Commission 2003, 6). This discrepancy prevented the substitution of old substances, whose risks for the environment and human beings were little known, with new and safer substances which are subject to much stricter testing requirements (Lindgren and Persson 2008, 38).

The policy stream: A contested Commission proposal The regulation on REACH (Registration, Evaluation and Authorisation of Chem- icals) seeks to establish a common legal framework for both existing and new substances within a period of eleven years. The legislative act ties together regulations dispersed across 40 legislative acts. REACH introduces a general obligation to register substances manufactured or imported in quantities of one ton per year or more. Once in force, REACH would require registration of some 30.000 of the 100.000 chemical substances which are marketed across the EU. REACH establishes an evaluation regime that aims, among other things, at improving the provision of reliable data on substances by the chemicals industry. One central reform consists in the reversal of the burden of proof: Under REACH, manufacturers and importers of chemicals would be responsible for demonstrating that the risk from the use is adequately controlled or that the socio-economic beneﬁts outweigh the risks.17 The Commission presented its legislative proposal in October 2003, four years after the Council of the Ministers of Environment had issued a mandate for drafting a proposal for a coherent concept of a chemicals policy reform. In the months preceding the presentation of its proposal, the Commission engaged in an online consultation with stakeholders. It received a total of 6.400 comments, more than 40 percent of which were drafted by enterprises and associations from the chemicals industry (European Commission 2003, 8). Not surprisingly, German enterprises were among the most active and critical respondents, as Germany ranks third in the world among the producers of chemicals. Nevertheless, trade unions and NGOs were also eager in addressing the Commission. The reactions were overall critical, albeit for diﬀerent reasons.

The political stream The proposals and alternatives developed in the policy stream were deﬁned by two basic objectives laid down in the Commission proposal: One was to maintain and promote the competitiveness of the European chemicals industry, the other was to protect the environment and human health and to increase transparency (European

17 Nevertheless, it would still be the responsibility of public authorities to demonstrate that a substance was subject to an authorization due to its risk potential (Köller 2006, 159).

15 Commission 2003, 5). Those interest groups advancing industrial interests framed especially the registration part of REACH in terms of undue financial burdens. For instance, the Confederation of German Industry (BDI) predicted the loss of two millions of jobs in the German chemical industry, and the Association of the Chemical Industry (VCI) estimated the economic costs of the registration and testing requirements to amount to 32 billion euros – ten times the Commission estimate (Die WELT 23.08.2003, 11. On the other hand, environmental associations such as the World Wildlife Fund (WWF) or Greenpeace criticized the Commission proposal as inadequate in targeting the information deficit, since the threshold of one ton per year production volume would exempt two thirds of the chemicals on the market from registration and a concomitant provision of data on the substance (Agence Presse 25.09.2003). The excessive economic burden for the chemicals industry and the effective reduction of the information deficit on chemicals were to become the two main competing focal points in the legislative process.

A policy window opened in the politics stream The original plan of the Commission to conclude the dossier on REACH by the end of the 5th legislative term was doomed to fail for several reasons: First of all, the heads of the British, German and Italian governments intervened personally and demanded a careful evaluation of the economic consequences of REACH. To emphasize their determination, the file was moved from the Environmental Council to the Council on Competitiveness under the Italian Council presidency.18 Second, the imminent accession of ten new Member States along with the EP elections made REACH a “lame duck”. The reorganization of the Council competencies was echoed by an EP-internal conflict over the competences of the Committee on Environment, Public Health and Food Safety (ENVI), which had been installed as the lead committee with Italian MEP Guido Sacconi (PES) as rapporteur. Both Social Democrats and Christian Democrats instigated this conflict to keep the proposal off the agenda until after the EP elections in June 2004 (Sacconi o.J.: 16).19 In February 2004, the Conference of Presidents was able to reach a compromise: The ENVI committee would still be the lead committee and Sacconi would remain rapporteur. However, the so-called enhanced cooperation procedure would be applied. Under this procedure, the lead committee (ENVI) would be required to integrate without a vote amendments by the associated committees falling under their competence. Once a new EP had been elected and was ready to resume work in September 2004, the dossier was transferred to the newly created Committee on Internal Market and Consumer Protection (IMCO). Along with IMCO, the Committee

18 Interview IP16. 19 Interview IP05; IP16.

16 on Industry and Research (ITRE) would be involved as part of the enhanced cooperation procedure. Both committees were staffed with long-serving MEPs from the German Christian Democrats (CDU) in key positions: Hartmut Nassauer, former Chairman of the German EPP delegation, became co-rapporteur for the IMCO committee. The Chairman of the German EPP delegation Werner Langen was full member on the ITRE committee. This constellation was to prove crucial in ensuring that the pro-environmental position advocated by the ENVI committee was not to gain the upper hand over the interests of the chemicals industry.20 Further German MEPs in key positions included Martin Schulz, then Chair of the PES group and Hans-Gert Pöttering, Chair of the EPP group. The bargaining position of the CDU improved further when a new government, the first grand coalition led by Angela Merkel, took office in October 2005. The coalition contract between Christian Democrats (CDU/CSU) and Social Democrats (SPD) even made an explicit reference to REACH, voicing the expectation that the regulation would “improve chemical safety and public health without raising the production costs of chemicals or bureaucratically hampering their use” (CDU et al. 2005, 26). The coalition partners also managed to halt the legislative process and postpone a vote in the Council scheduled for November 2004 (Agence France Presse 14.11.2005).

Coupling the streams - The impact of committee and inter-party negotiations From the outset, there was a fairly large consensus amongst the German delegations within the largest three party groups that the ﬁnancial burdens imposed by REACH needed to be limited. After all, 96 percent of all chemical producers are small and medium-sized enterprises (SMEs) which produce in relatively low quantities. Registration was to become one of the hot topics in the run-up to the ﬁrst reading in the EP. The pro-industry coalition represented by the CDU/CSU, SPD and FDP and the IMCO and ITRE committees favored a reduction in the volume of substances to be registered, as well as a relaxation of the testing requirements and a limitation of the data to be provided. The pro-environment and pro-consumer coalition, led by the Greens and MEPs from Scandinavian Member States, sought to use the reversal of the burden of proof to force manufacturers of chemicals to provide as much information as possible about the properties of substances. The involvement of the ITRE and the IMCO committees as associated committees proved an important lever for the promotion of more industry-friendly positions and as an important constraint on the rapporteur and the ENVI committee.21The ENVI committee adopted its draft report against the votes of the EPP (40:18:3), maintaining mandatory safety tests for substances produced in volumes of one ton or

20 Interview IP 05. 21 Interviews IP03; IP05; IP16.

17 more per year. On the other hand, the draft resolution adopted by IMCO committee called for raising the threshold to 10 tons. It also included an amendment making testing requirements dependent on exposition rather than production volume. However, these amendments were rejected by the ENVI committee.22 The conflict was eventually resolved at the level of the EPP and PES party group leaderships. The referral to the political level effectively constrained the room for maneuver of the rapporteur. Given that the IMCO and ITRE committees had adopted their reports with a fairly large majority and in light of the resistance mobilized by the PPE against the ENVI position, it was all but clear that the legislative resolution would receive a majority in plenary. At the behest of the EPP and PES group leaderships, the rapporteur Guido Sacconi and co-rapporteur Hartmut Nassauer were assigned the task of negotiating a compromise on registration. Aided by two representatives from DG Environment, one technical expert from the Italian Institute for Environmental Protection and Research (ISPRA) and two representatives from the chemicals industry (Sacconi o.J.: 28f.), they were able to conclude a compromise package which provided, among other things, for a prioritized registration, beginning with substances with the highest production volume and the highest hazardous potential. As had been demanded by the IMCO committee, testing requirements would also be relaxed and safety reports be made mandatory for a subset of hazardous substances. The compromise was also signed by the rapporteur of the ITRE committee and garnered the support of an absolute majority in plenary (438:144:15). Authorization, the other key issue on REACH remained a matter of controversy. The ENVI committee had substantially modified the Commission proposal in providing for mandatory substitution of dangerous substances by less dangerous ones. Moreover, the authorization was to be limited to a period of 5 years. This position was backed by a slim majority (324:263:13) in plenary in first reading. The EPP strongly rejected this approach and predicted the Council to scrap this provision. The Council accepted most of amendments that were part of the Sacconi-Nassauer-compromise on registration. However, it rejected the temporally limited authorization and the principle of mandatory substitution, two key points defended by the ENVI committee. The latter reinstated its amendments in its recommendation for second reading, making a conciliation procedure more likely. As Germany would assume the Council presidency in the first half of 2007, most MEPs were aware that the best deal they could reach would be to conclude

22 This conﬂict over procedure eventually spurred a rules change. The PPE had demanded the amendments of the lead and the associated committees to be placed on the plenary agenda as three options of equal rank. This request was turned down (Interview IP 16), so that the EPP had to sponsor these amendments as a group. Today, Rule 54 stipulates that if the lead committee rejects amendments on matters which fall within the joint competence, the associated committee may table those amendments directly in plenary.

18 legislation by the end of 2006, so as to forego a further watering down of the regulation due to pressure of the chemicals industry on the German government.23 The Finnish Council presidency even put forward a compromise that maintained the mandatory substitution principle. Yet the EPP, backed by German Social Democrats, threatened to veto this proposal. Both groups found allies in the British and German delegations, who also fiercely rejected any mandatory substitution. Therefore, Sacconi was forced to make additional concessions to the EPP. The compromise reached in the trilogue meeting on November 30, 2006 maintained the mandatory substitution principle, but only for substances for which an alternative product is available. Where no substitute product exists, manufacturers must furnish a research plan outlining the development of a substitute. Certain substances which are rated as “very high concern” will require authorization, but their use will be endorsed if the producer or importer can demonstrate that the risks can be adequately controlled or where socio-economic benefits outweigh the risks of using that substance. Just five days after the EP plenary vote, the Council unanimously adopted the final legislative act, so that REACH could enter into force on June 1, 2007.

8 Discussion and Conclusion

This paper has set out to analyze the broader implications of the EU institutional set-up for legislative decision-making. To this end, it has drawn on the analytical distinction between formal and informal agenda-setting to link two theoretical strands hitherto largely distinct. While the literature on formal agenda-setting provides a useful lens to study both legislative-executive relations and the distribution of agenda-setting powers within the EP, the MSA is a useful heuristic to explore the importance of context, timing and agency in explaining agenda-setting and decision-making. For the purpose of the analysis, a modiﬁed version of the MSA was adopted to account for the particular institutional setting of the EU. Two concepts were considered instrumental: Policy entrepreneurship and institutional ambiguity. Rapporteurs were conceptualized as policy entrepreneurs by virtue of their institutional role as conditional agenda-setters within the EP and interinstitutional negotiators who can contribute to shaping a consensus among Member State governments in the Council. The link between agency and institutions was illustrated using a case study on REACH which yields some insights both into the conditions under which rapporteurs can shape the agenda and the general impact of the

23 Cf. for instance, the statement by Karin Scheele in the plenary debate on December 11, 2006. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+ 20061211+ITEM-014+DOC+XML+V0//DE&language=DE (last accessed on 02.01.2014).

19 institutional environment on intra-institutional decision-making dynamics. First, REACH illustrates the relevance of the political stream for opening a window of opportunity. The legislative proposal was effectively blocked from the agenda because both a majority within the EP and pivotal actors within the Council wished to handle the legislation in a new term. This joint obstruction by the two legislative branches also demonstrates the low degree of agenda control wielded by the Commission. The case study also highlights how policy entrepreneurs within the EP and the Council can exploit institutional ambiguity to help keep a policy window open. For instance, the skirmishes over jurisdictional competences instigated by leading committee members effectively bought actors with a stake in promoting business interests enough time to introduce competing focal points. Procedural maneuvers such as invoking an ‘enhanced cooperation’ between three committees with different outlooks on the legislative proposal imposed an effective constraint on the rapporteur and his agenda-setting prerogatives. Most importantly, it served as a gateway for political intervention by the leaderships of the working majority who assigned to the rapporteurs from ENVI and IMCO committees the task to negotiate a compromise. This compromise was supported by an absolute majority in the chamber, providing a strong signal to the Council to accept the deal reached on registration. At the same time, the showdown about the aspect of authorization and substitution of chemicals highlights the most important constraint facing any rapporteur: The need to gain the support of an absolute majority in the chamber in second reading. The threat of the EPP to veto any legislation that would enshrine an unqualified principle mandatory substitution of chemicals proved to be especially effective because of the strategic uncertainty of handling REACH under a German Council presidency and in a conciliation procedure further limiting the scope for adjustments. The case study confirms previous findings that rapporteurs who gamble for slim majorities risk being outvoted in plenary. Obviously, REACH is not a typical case of agenda-setting and decision-making in the EU. Yet it may be precisely in these unusual cases that a more intense dialogue between the MSA and neo-institutionalist perspectives on policy-making may provide a richer explanation of how institutions enable actors to exploit windows of opportunities. One of the most interesting and promising avenues for future research would be to consider the impact of timescapes both in institutional terms and in terms of creating propitious conditions for strategic action. After all, the EU is not only a polity with multiple veto points and a myriad of policy-making modes, but it is also hardly synchronized to a common timetable. This adds to institutional ambiguity and leaves ample room for actors to test and (re)structure their interactions and strategies.

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