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ESRC Project on The Informal Politics of Co-Decision

Summary

This project investigated a widespread yet understudied trend in European Union (EU) politics: the shift of legislative decision-making from public inclusive to restricted secluded arenas and the resulting “informalisation” of the political process. Informalisation is particularly prominent in the EU’s co-decision procedure, where a growing proportion of legislative acts is pre-agreed informally between the two co-legislators—the European Parliament (EP) and the Council of Ministers—and is subsequently adopted at first reading. The legislative procedure is abridged or “fast-tracked” accordingly. Since first reading conclusion became possible in 1999, “early agreements” have become ever more frequent, accounting for 77% of legislation passed under co-decision in the Sixth European Parliament. This development is puzzling: introduced to make EU decision-making more inclusive, accountable and transparent, the co-decision procedure has instead increased informalisation and seclusion from the electorate and from rank-and-file parliamentarians.

Against this backdrop, the project asked three questions:

  1. What is the extent and conduct of fast-track legislation?
  2. What are the reasons for fast-track legislation?
  3. What are the consequences of fast-track legislation?

The study used a mixed-methods design, combining theory-guided empirical research (quantitative hypothesis-testing, qualitative process-tracing, single-outcome study) with normative evaluation and policy-recommendations.

The research mainly contributes to the study of EU legislative politics and to the literature on informal governance. However, given a more general trend towards informal and secluded decision-making in domestic and global politics, the findings are of interest for a wider group of scholars in Comparative Politics and International Relations. The project also addresses questions of strategic importance for the Brussels policy-community and national parliaments, and its findings can directly feed into the political debate about the benefits and democratic costs of early agreements.

Findings

What are the reasons for informalisation?

The statistical analysis of all 797 co-decided acts between mid-1999 and mid-2009 finds that early agreements are systematically related to the number of negotiators, legislative workload and complexity; decision-makers “go informal” to reduce the transaction costs of coordination and information-gathering. The strong effect of the time fast-track legislation has been used also suggests socialisation into inter-institutional norms of cooperation. Against theoretical expectations, policy-type, media attention and the Council Presidency’s priorities have no explanatory power.

  • Christine Reh, Adrienne Héritier, Edoardo Bressanelli and Christel Koop. “The Informal Politics of Legislation: Explaining Secluded Decision-Making in the European Union”. Comparative Political Studies 46:9 (2013), 1112-1142.

What are the political consequences of fast-track legislation?

The single-outcome study of the EP’s response to informalisation shows that the attempt to regulate early agreements by controlling negotiators and information flows was highly contested. Adoption of the 2009 Code of Conduct was possible only because a critical number of early agreements coincided with a wider parliamentary reform agenda; the former increased the visibility of power shifts and reputational costs, the latter allowed package deals and the strategic use of norms.

  • Adrienne Héritier and Christine Reh. “Codecision and Its Discontents: Intra-Organisational Politics and Institutional Reform in the European Parliament”. West European Politics 35:5 (2012), 1134-1157.
What are the distributional consequences of fast-track legislation?

Early agreements enhance the efficiency of EU legislation, but they are criticised for giving “relais actors” within Parliament and Council disproportionate control over the legislative agenda and negotiation. A comparison of bargaining success across readings under co-decision in a dataset of salient files does, however, show that fast-track legislation has no distributional consequences when controlling for inter-institutional conflict and file characteristics. Where co-decision is concluded early, the final legislative outcomes are not located closer to the policy positions held by the party group of the Parliament’s rapporteur or by the Council presidency.

  • Anne Rasmussen and Christine Reh. “The Consequences of Concluding Co-Decision Early: Trilogues and Intra-Institutional Bargaining Success”. Journal of European Public Policy 20:7 (2013), 1006-1023.
What are the democratic consequences of informalisation?

As a strategy to cope with the complexity of policy-making informal politics is characterised by 1) restriction, 2) seclusion, 3) pre-decision-making, and 4) informal institutions. Our normative assessment depends on the evaluative standard applied: informal politics leaves formal representation largely in tact, increases efficiency and fosters accommodation, but comes at a cost for deliberation and accountability. This cost is particularly high where an informal decision is neither preceded nor followed by public debate; balanced representation in the informal arena is not guaranteed; pre-decisions are rubberstamped; and actors’ procedural rights are curtailed.

  • Christine Reh. “Informal Politics: The Normative Challenge”. In: Thomas Christiansen and Christine Neuhold (eds.). International Handbook on Informal Governance. Cheltenham, 2012.

So far, early agreements have been criticised for their lack of transparency and accountability, their challenge to deliberation and inclusiveness, and their differential empowerment of political actors. Little attention has, however, been paid to the representation of the parliamentary principal in trilogues. Based on Jane Mansbridge’s selection model of representation, it is argued that representation with a strong ‘selection core’ and a weak ‘sanction periphery’ is best-suited for bicameral bargaining, but that a set of normative standards must be met to make the selection model democratically tenable. The current practices and institutions of codecision fall short of ‘good deliberation at initial selection’ and ‘narrative accountability’; ‘ease of maintenance and de-selection’ is approximated; and ‘transparency in rationale’ has recently been strengthened. Future reform of the European Parliament’s Rules of Procedure should, therefore, introduce two democratically crucial yet hitherto neglected measures: open deliberation about the appointment of rapporteurs, and reason-giving and justification (in addition to reporting back) by trilogue negotiators.

  • Christine Reh. “Is Informal Politics Undemocratic? Trilogues, Early Agreements and the Selection Model of Representation”. Journal of European Public Policy 2014 (forthcoming).
What are the policy-implications of fast-track legislation?

The project’s findings stress the political relevance of early agreements and the need to regulate the legislative practice to preserve legitimacy. On this basis, policy-recommendations were made for the EP’s 2012 review of its 2009 rules of co-legislation. Given its role as a guarantor of EU legitimacy, Parliament was called upon to put a premium on inclusiveness and transparency and to adopt a set of rules that could maintain efficient negotiation for technical proposals, facilitate effective decision-making on urgent files, and strengthen the overall legitimacy of the legislative process.

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European University Institute (EUI)
Economic and Social Research Council (ESRC)

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