The Europeanization of Domestic Legislatures: The Empirical Implications of the Delors' Myth in Nine Countries

Studies in Public Choice Series Editor Randall G. Holcombe Florida State University, Tallahassee, Florida, USA Foundin...

Author: Sylvain Brouard | Olivier Costa | Thomas König

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Studies in Public Choice

Series Editor Randall G. Holcombe Florida State University, Tallahassee, Florida, USA Founding Editor Gordon Tullock George Mason University, Fairfax, Virginia, USA

For further volumes: http://www.springer.com/series/6550

Sylvain Brouard Editors

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Olivier Costa

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Thomas Ko¨nig

The Europeanization of Domestic Legislatures The Empirical Implications of the Delors’ Myth in Nine Countries

Editors Sylvain Brouard Centre Emile Durkheim 33607 Pessac Cedex France [email protected]

Olivier Costa Centre Emile Durkheim 33607 Pessac Cedex France [email protected]

Thomas Ko¨nig Department of Political Science University of Mannheim Mannheim Germany [email protected]

ISSN 0924-4700 ISBN 978-1-4614-1501-5 e-ISBN 978-1-4614-1502-2 DOI 10.1007/978-1-4614-1502-2 Springer New York Dordrecht Heidelberg London Library of Congress Control Number: 2011941804 # Springer Science+Business Media, LLC 2012 All rights reserved. This work may not be translated or copied in whole or in part without the written permission of the publisher (Springer Science+Business Media, LLC, 233 Spring Street, New York, NY 10013, USA), except for brief excerpts in connection with reviews or scholarly analysis. Use in connection with any form of information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed is forbidden. The use in this publication of trade names, trademarks, service marks, and similar terms, even if they are not identified as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights.

Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Acknowledgments

The “Delors’ myth project” is the result of four workshops organised in Bordeaux (November 2008), The Hague (June 2009), Barcelona (January 2010) and Mannheim (May 2010). The editors would like to thank Sciences Po Bordeaux (Centre Emile Durkheim), the Montesquieu Institute, the University of Barcelona and the Mannheim Center for European Social Research (MZES) at the University of Mannheim for their support. The editors would also like to acknowledge the Comparative Agendas Project, its initiators and its members. This research would have been much more difficult to achieve without this network as well as its common framework and focus. The research on the Austrian case was funded by the Austrian “New Orientations for Democracy in Europe” (NODE) research programme. The authors are grateful to Ilse Ko¨nig and Martina Hartl of the NODE programme for their support, to their student research assistants in Mannheim and Vienna for devoted work. The French chapter is a joint output of the project “LEGIPAR: Parliamentary legitimization and democratic government in France and in the European Union” and of the project “AGENDA: the political agendas of the Fifth Republic”, both funded by the French Agence Nationale de la Recherche. The German chapter is grateful for support of the German National Science Foundation (1142 “Institutional Design of Federal Systems: Theory and Data”) and the Mannheim Center for European Social Research (MZES). We’d like to acknowledge the financial assistance of the Italian Ministry for Research and Higher Education, Prin 2007 prot. scrwt4 “Legislative process and policy arenas. Games, vetoes and networks in the age of the Italian political alternation” and Prin 2009 prot. 2009TPW4NL_002 “Institutional agenda-setting: actors, time, information”. The Luxembourgish team would like to express its sincere gratitude to Daniel Andrich (Director, Service Central de Le´gislation), Nicolas Henckes (Director, Legitech), Ben Fayot (Chairman of the Committee on Foreign and European Affairs, Defence, Cooperation and Immigration in the Luxemburgish Parliament)

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and Rita Brors (Officer, Chamber of Deputies) for their support and cooperation, which enabled them to accomplish this research. The Spanish chapter is an output of the project “The Politics of attention: West European politics in times of change: the case of Spain” (EUROCORES programme), European Science Foundation (ESF), and the Agencia de Gestio´ d’Ajuts Universitaris i de Recerca (AGAUR), Generalitat de Catalunya (SGR 536). The Swiss chapter is an output of the project “Agenda Setting in Switzerland” funded by the Swiss National Science Foundation (ref. 105511-119245/1), and part of the EUROCORES project “The Politics of Attention: West European Politics in Times of Change”, funded by the European Science Foundation.

Contents

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Delors’ Myth: The Scope and Impact of the Europeanization of Law Production. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sylvain Brouard, Olivier Costa, and Thomas Ko¨nig

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EU Legislative Activities and Domestic Politics. . . . . . . . . . . . . . . . . . . . . . . Thomas Ko¨nig, Tanja Dannwolf, and Brooke Luetgert

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Measuring the “Europeanization” of Austrian Law-Making: Legal and Contextual Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marcelo Jenny and Wolfgang C. Mu¨ller

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The Minor Impact of EU on Legislation in Finland . . . . . . . . . . . . . . . . . . Matti Wiberg and Tapio Raunio

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Are French Laws Written in Brussels? The Limited Europeanization of Law-Making in France and Its Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sylvain Brouard, Olivier Costa, and Eric Kerrouche

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Does Europeanization Change Executive–Parliament Relations? Executive Dominance and Parliamentary Responses in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thomas Ko¨nig and Lars Ma¨der Leading Governments and Unwilling Legislators: The European Union and the Italian Law Making (1987–2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enrico Borghetto, Marco Giuliani, and Francesco Zucchini

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The Europeanization of Domestic Legislation in Luxembourg . . . . . . Patrick Dumont and Astrid Spreitzer

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Myths and Milestones: The Europeanization of the Legislative Agenda in the Netherlands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gerard Breeman and Arco Timmermans

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The Europeanization of Law-Making Activities in Spain . . . . . . . . . . . . Anna M. Palau and Laura Chaque´s

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So Close, Yet So Far? The EU’s Footprint in Swiss Legislative Production . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Roy Gava and Fre´de´ric Varone

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Going Beyond: Causes of Europeanization. . . . . . . . . . . . . . . . . . . . . . . . . . . . Thomas Ko¨nig and Lars Ma¨der

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Chapter 1

Delors’ Myth: The Scope and Impact of the Europeanization of Law Production Sylvain Brouard, Olivier Costa, and Thomas K€onig

Since the beginning of the 1990s numerous theoretical and normative debates on European integration and the “democratic” distribution of power among the European Commission, the Council of Ministers, and the European Parliament have entertained scholars, politicians, and opinion leaders alike. The “democracy deficit” concept stems from the hypothesis that EU legislative activities have strengthened the power of governmental actors from the Council of Ministers at the expense of parliaments. While Moravcsik (2004, 2008) argues that these governmental agents are democratically elected agents of their national constituencies, the concerns about a democratic deficit have been reinforced by the progressive extension of qualified majority voting in the Council of Ministers since the end of the 1980s: theoretically, the possible exclusion of some governmental agents and the lack of transparency of Council deliberations made their effective control by their domestic parliamentary principals extremely difficult, as members of parliament even lack reliable information on the voting behavior of their governmental agents in the Council (Scharpf 1993; Hix 1999, 2005, Majone 1998; Moravcsik 1994, 2002; Lord 2004; Bartoloni 2005; Follesdal and Hix 2006; Siedentop 2001; Jachtenfuchs 2001; Rittberger and Schimmelfennig 2005; Follesdal and Hix 2006; Olsen 2007; Magnette and Papadopoulos 2008; K€ onig 2008). Without going into detail on the different normative views about the EU’s distribution of power, the controversies about the democratic deficit commonly state a weakness of parliamentary representation in the EU, in a system dominated by representatives of the executive and technocrats, and marked by the supremacy of law over politics. As a response, the participation of the European Parliament has steadily increased by treaty revisions and the co-decision procedure, which S. Brouard (*) • O. Costa Centre Emile Durkheim, University of Bordeaux, Bordeaux, France e-mail: [email protected]; [email protected] T. K€onig Department of Political Science, University of Mannheim, Mannheim, Germany e-mail: [email protected] S. Brouard et al. (eds.), The Europeanization of Domestic Legislatures, Studies in Public Choice, DOI 10.1007/978-1-4614-1502-2_1, # Springer Science+Business Media, LLC 2012

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established a bicameral legislature between the Council and the European Parliament, has become the standard procedure since the entry into force of the Lisbon Treaty in December 2009. This, however, does not mean that the criticism on the democratic foundations of the EU has stopped. Almost simultaneously with the continuous increase in power of the European Parliament, scholars started to discuss the topic of domestic “deparliamentarization” because the Maastricht Treaty in 1993 – the Treaty on European Union underlined the growing potential of European integration by formally extending qualified majority voting in the Council and transferring sensitive policy matters, including the introduction of the Euro, to EU legislative discretion (Norton 1996; Raunio and Hix 2000). The argument is that policy competencies are formally uploaded to the EU level by treaty revisions, negotiated and then presented as “take-it-or-leave-it” packages to domestic parliaments, who can hardly amend these packages. Thereby, it is assumed that the increased application of qualified majority voting makes it difficult for domestic parliaments to force their governmental agents to make credible ex ante commitments before adopting these packages at the EU level. Furthermore, through the technical nature of these packages, bureaucrats and interest groups rather than directly elected parliamentarians are expected to benefit from this kind of Europeanization. These formal developments by treaty revisions have shifted the focus of the debate on a democratic deficit from the interaction between the European Commission, the Council of Ministers, and the European Parliament to the impact of European integration on domestic politics (Kassim et al. 2000; Hix and Goetz 2000; Cowles et al. 2001; Featherstone and Radaelli 2003; Bulmer and Radaelli 2005; Holzhacker 2007; K€ onig 2007). Unsurprisingly, the numerous theoretical accounts on European integration and countless interpretations of the power distribution in the EU lead to divergent and controversial conclusions on this point too. For some scholars, the Delors 80% myth of a superstate, that would increasingly dominate domestic parliamentary legislatures by the constant expansion of EU legislative activities, has become reality i.e. (Herzog and Gerken 2007; H€olscheidt and Hoppe 2010). Similar to the discussion about the democratic deficit, these conclusions on the level of deparliamentarization are drawn from different theoretical and normative viewpoints on European integration rather than empirical evidence for a changing role of domestic parliaments through European integration in their legislatures. On closer inspection of domestic parliamentary legislatures of the member states, the role of their constitutive elements – the political parties in those parliaments – , the criticism addresses three factors induced by European integration: deprived of a part of their legislative powers by the EU, excluded from EU legislative decision making and subjected to growing normative obligations (Maurer and Wessels 2001; Wiberg 1997). Under this impression, the willingness to strengthen the role of domestic parliaments has, therefore, been expressed by several declarations and protocols of recent treaty revisions. Some domestic parliaments have already reacted to this by reforming their own institutional provisions, in particular in the Scandinavian countries where the parliamentary legislature is involved in the ex ante control

1 Delors’ Myth: The Scope and Impact of the Europeanization of Law Production

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of governmental agents when negotiations on Commission proposals start in the Council of Ministers (Bergman 1997; Laursen and Pappas 1995; Maurer and Wessels 2001; Norton 1996; Smith 1996; Raunio 1999; Raunio and Hix 2000; Wiberg 1997). Compared to the early years of European integration, some domestic parliaments have also established committees on European Affairs and special affairs, which strengthen their informational position vis-a`-vis their governmental agents. More recently, scholars have pointed to the dualist nature of Europeanization for members of parliament, which is both passive (Europeanization seen as something that simply happens to parliamentarians) and active (Europeanization considered as a process of adaptation or reaction of parliamentary behavior to European integration) (Saalfeld 2005; O’Brennan and Raunio 2007). According to Auel and Benz (2005), members of domestic parliaments are faced with a dilemma: a successful scrutiny can undermine the effectiveness of European governance, whereas permissive parliamentarians cause a legitimacy deficit. Other studies, for instance Zeitlin et al. (2005) and Duin and Raunio (2007), concentrate on new instruments such as the open method of coordination (OMC) and call for a more nuanced analysis of the deparliamentarization hypothesis. The OMC empowers governmental agents through executive federalism, and thus – it is feared to contribute to a further marginalization of domestic parliamentarians; but it also provides domestic legislators with opportunities that the traditional “Community method” cannot offer. A major deficit of these discussions and criticisms on the democratic deficit and deparliamentarization is the lack of solid data, which make a more robust evaluation of their empirical implications on the power distribution in the EU and the role of domestic parliaments possible. The conclusions on the democratic deficit – and deparliamentarization – hypothesis are almost exclusively drawn from the formal developments by treaty revisions, which have only increased the potential impact of Europeanization. The question however is whether and to what extent this potential has been used empirically – firstly as a necessary condition by legislative activities at the EU level, which produced Commission proposals with and without participation of the European Parliament, and secondly as a sufficient condition by the number of cases which suggest some impact of these activities for the domestic level. The empirical discourse on the evolution of these effects is still full of references to the supremacy of European law and to the casewise restriction of the freedom of action for some (domestic) actors. Regarding the impact of EU legislative activities on domestic politics, a few empirical studies investigated the casewise effect of some specific Commission proposals in distinct policy areas, such as the Europeanization by environmental (Knill and Lenschow 1998; Haverland 2000), transportation (He´ritier et al. 2001), and social standards of the EU (Falkner 2001, Falkner et al. 2005). In sum, there is little evidence for a more general cross-sectional and longitudinal effect of Europeanization on domestic parliamentary legislatures of the member states, which means that the most cited authors have no choice other than to refer to normative presuppositions or to quote the former President of the Commission (1985–1995) Jacques Delors. In 1988, Delors declared in front of the European Parliament that “in 10 years 80 per cent of the legislation related to

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economics, maybe also to taxes and social affairs, will be of Community origin” (Bulletin No-2-367/157, 6 July 1988). This declaration has been repeated on many occasions by Jacques Delors in the following years and has been widely quoted or paraphrased by scholars alike (Hix 1999, 3; Hix and Goetz 2000, 4; Greenwood 2003, 6), reported and distorted by journalists, politicians, and officials of the European institutions. Delors’ prediction lies at the heart of a persistent myth, according to which 80% of the activities of domestic parliamentary legislatures consist of a simple transposition of European norms – which is far from the initial declaration and by far more alarming. The idea that norms are almost exclusively written in Brussels comes up as soon as public debates and criticism of the EU begin, whether on the occasion of the ratification of a new treaty revision, European elections, EU legislative activities etc. (Brouard and Costa 2009). To some surprise, both opponents to European integration and representatives of EU institutions bring forward this mythical reference. Most recently, the reference that 80% of the activity of the domestic parliamentary legislatures consists of a simple transposition of European norms has largely been used by the candidates of the Eurosceptic lists “Libertas” during the campaign for the European elections in June 2009, campaigning in 10 member states, in order to denunciate an excessive European superstate. On the other hand, the press service of the European Parliament insisted on the same number in order to convince the citizens of the importance of European elections, implying that many political decisions are taken in Brussels and no longer in the national capitals. But is there any empirical evidence for this 80% myth?

Understanding Europeanization The literature on Europeanization, which has become more popular in European studies since the beginning of the 1990s, attempts to provide empirical evidence for a broad set of Europeanization issues (Graziano & Vink 2007). Some studies examine the EU’s influence on member states (so-called “downloading” or “top-down” Europeanization), others the influence of member states on EU policy-making (“uploading” or “bottom-up” Europeanization), while others concentrate on the transfer of policy from one country to several others without direct EU involvement. This broad research program has led Robert Ladrech to adopt an encompassing definition of Europeanization as “an incremental process reorienting the direction and shape of politics to the degree that EC political and economic dynamics become part of the organizational logic of national politics and policy-making” Europeanization studies thus attempt to analyze the various characteristics of how EU level dynamics are gradually taken into account at the domestic level. Thereby, the top-down approach has been criticized for reducing the role of the member states, their institutions and representatives to a purely passive one. It is questionable whether and to what extent the actors of the domestic level, in particular those in the domestic parliamentary legislatures, are only “takers” of European


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norms, models or pressures, or whether and to what extent they also actively “shape” those instruments. This mechanism can only become evident when relaxing the unitary actor assumption on member states which represent their preferences at the different stages of the Europeanization process. For example intergovernmentalism, which focuses on governmental actors, can go one step further by relaxing the unitary actor assumption and take a close look on how these actors are challenged in domestic parliamentary legislatures, in particular by their coalition partners when “Europeanized” laws are introduced and adopted. In this vein, Europeanization can be understood as a useful means for increasing ministerial power when the coalition partner can hardly scrutinize ministerial drift in the parliamentary legislature. However, rather than deepening our understanding of this mechanism, Europeanization studies have widened their field of investigation: they are no longer limited to the EU’s impact on politics and policy-making, but also analyze effects on processes, policies and institutions (policy, polity, and politics) (B€orzel and Risse 2003). On the one hand, the global definition of Claudio Radaelli attempts to incorporate all aspects of Europeanization: “Europeanization refers to processes of (a) construction, (b) diffusion, and (c) institutionalization of formal and informal rules, procedures, policy paradigms, styles, ‘ways of doing things’, and shared beliefs and norms which are first defined and consolidated in the making of EU public policy and politics and then incorporated in the logic of domestic discourse, identities, political structures, and public policies.” Such a definition encompasses the different tendencies in Europeanization literature by referring to both construction and diffusion, and to all subjects of influence. It promulgates the view that Europeanization should be understood in the broadest possible sense, whereby institutions can also refer to nonmaterial concepts such as norms, ideas, and beliefs. On the other hand, a more specific perspective on the actors involved is warranted for evaluating the empirical implications of the various factors of Europeanization, in particular those which are considered to affect the parliamentary legislatures in the member states. This specific perspective draws the attention to the causal mechanism where the formal developments by treaty revisions only establish a necessary but not a sufficient condition for the Europeanization of domestic parliamentary legislatures. Treaty revisions require the consent of both governmental and parliamentary actors, in particular in the ratification process of treaty revisions (K€onig and Hug 2000, Hug and K€ onig 2002). Until now, these treaties provide the European Commission with the sole right to draft proposals. Hence, a second necessary condition is determined by the European Commission’s initiative to draft proposals, which are binding and enforceable for the member states. In some areas, such as agricultural and common market affairs, the European Commission has been more active over time. In collaboration with the governmental agents in the Council, and to an increasing extent with the European Parliament, these proposals were almost always adopted. Some scholars have therefore spoken from a culture of consensus (Lewis 2003, Heisenberg 2005). Another explanation is that the Commission attempts to avoid conflict and preselects less controversial policies, which are often only in the Council and European Parliament. The Council itself has established a sophisticated committee system, which promotes consensus-building

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by facilitating logrolling across proposals (K€ onig and Junge 2009). This suggests that the formal development by treaty revisions and the European Commission’s initiative are two necessary conditions for the Europeanization of domestic parliamentary legislatures. They determine the potential for the Europeanization of domestic parliamentary legislatures, in which political parties pursue own interests in order to form governmental coalitions and to be re-elected. This aspect of party interests and competition has received little attention in the literature yet, even in those parts, which devotes special attention to the relationship between political parties and European integration. According to Peter Mair (2007), there are three strands in this literature, the first reflecting the emergence of political parties at the EU level (i.e., Pridham 1995; Pridham and Pridham 1981; Hix 1995), the second investigating the activities of political parties in the European Parliament (i.e., Attina´ 1990; Kreppel and Tsebelis 1999; Hix 2001; Hix et al. 2003), and the third collecting data on the positions of political parties toward Europe (Marks and Steenbergen 2004; Benoit et al. 2005). The few studies which have examined the impact of Europeanization on political parties and party systems come to the conclusion that the developments at the EU level are hollowing out policy competition between political parties at the national level (Ladrech 2005: 333, Mair 2007: 159). According to these findings, Europe has limited political parties in terms of policy space, capacities, and policy repertoire. However, these conclusions are based on impressionistic accounts rather than robust empirical evidence. This does not mean that they go into the wrong direction but it is also possible that European integration empirically increases the policy space of political parties by adding another dimension, raises capacities by offering additional strategies of “take-it-or-leave-it” packaging and enriches policy repertoire of shaming and blaming of third parties such as the European Commission or, more generally, the EU. Instead of adding another impression about the impact of Europeanization on domestic parliamentary legislatures, our aim is to contribute to a more robust empirical evaluation of the degree of Europeanization in several member states. We will thus deliberately focus on the empirical analysis of that phenomenon, based on a comprehensive dataset and operational definition which will enable us to examine the “Delors myth” and other widespread hypotheses, such as an increasing level of EU legislative activities and their impact on domestic parliamentary legislatures, and the role of political parties in those legislatures etc.. The examination of such questions has often been limited to the most evident examples of Europeanization by treaties, international agreements of the EU, jurisprudence of the European Court of Justice (ECJ) or the transposition of directives, which domestic parliamentary legislatures of the member states usually transpose into domestic law. For a long time, specialists – mainly lawyers – have concentrated on the transposition problems of implementing EU directives. The official statistics presented by the European Commission’s General Secretary suggest a high rate of successful implementation in every member state, even in the new ones (in May 2007, it was between 96.5 and 99.8%). However, those results are partly undermined by a gold-platting


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phenomenon (Falkner et al. 2004). Put differently, even if member states are obliged to transpose EU directives into domestic law, they have notable discretion for transposition and may also fail to comply with EU directives. Political scientists are particularly concerned by the extent of, and reasons for, noncompliance. In addition to many case studies, a growing number of quantitative studies prove the existence of “opposition through the backdoor” – originally theorized by intergovernmentalists – and show that member states occasionally refuse to implement directives when they have failed to assert their interests during the EU decision-making process (Thomson et al. 2007; K€onig and Luetgert 2009). It appears that such situations also arise without prior opposition, and that noncompliance is still sometimes due to administrative shortcomings, interpretation problems, and issue linkage. It is worth noting that the transposition of directives is dominated by executive implementation measures, while parliamentary activities in domestic legislatures remain rare and selective in this process (K€onig and M€ader 2008; Franchino and Hoyland 2009). There are, thus, very few studies that address the Europeanization of domestic parliamentary legislatures in a systematic way, with the exception of a recent issue of the Journal Public Administration (2010) and some contributions which are either largely theoretical or focused on a single member state (T€oller 2006, 2007, 2008; K€ onig and M€ader 2007, K€onig and M€ader 2009, Raunio and Wiberg, 2010). Concerning the number of norms adopted through the transposition of directives, very little data is available. At the national level, comparative politics scholars and constitutional lawyers emphasize the constraining element by the norms of existing directives for policy makers, and especially for parliaments. However, they have mainly focused on the strategies developed by member states to avoid the pressure of these norms (active Europeanization), and have not collected data regarding the actual percentage of law resulting from directive transposition. Like EU specialists, they seem to take Jacques Delors’ prediction as given. Jean Maıä, for instance, comes up with the impressive estimation that 60–70% of all laws originate in Brussels (Maıä 2005). And even if so, it remains an open question whether and to what extent Europeanization affects parliaments vs. governments and administrations – a necessary condition for proving the widespread hypothesis that European integration has weakened parliamentary legislatures and created a “democratic deficit” at the national level. Hence, our understanding of Europeanization is still hampered by a lack of solid empirical material and systematic studies. We have therefore chosen to take an empirical approach to analyzing the phenomena of the Europeanization of domestic legislatures.

The Empirical Approach of the Europeanization of Law Production The analysis of the Europeanization of domestic legislatures is promising but particularly challenging in practice. In the academic field, there is a heated discourse on this question. Scholars recognize that it would be more than useful to

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dispose of more solid data on the degree of Europeanization of the domestic law production. But, at the same time, as soon as research proceeds in this manner, the usual controversies on the possibilities to capture social phenomena in a quantitative way emerge. Qualitative scholars immediately raise a whole range of concerns about the relevance of “counting” laws that present such a variety of form, objectives and impact, or, the pitfalls when comparing domestic legislatures that are so different from constitutional, legal, and political points of view. One could discuss at length about the right way to identify what a “Europeanized” law is. Nevertheless, “counting laws”, is a necessary starting point of any empirical analysis of the respective features of the two categories of Europeanized and non-Europeanized laws. Hence, before qualifying laws, we are interested in counting the number of Europeanized and non-Europeanized laws. The main challenge of this study is to establish and apply an operational definition of Europeanization which is, at the same time, operational and not limited to only one aspect of Europeanization. For instance, taking account of only the laws transposing directives or binding acts would limit Europeanization to the “downloading” dimension. On the other hand, a broad definition of Europeanization as a process which globally affects the societies of the member states would lead to the impression that all national laws are more or less linked to European integration, as they are elaborated in a juridical and political framework, which is already highly Europeanized. This would risk to result in a statement that everything is Europeanized and make it impossible to distinguish the impact of European integration from the one of other phenomena such as globalization or modernization. There would thus be no interest for any empirical study at all. In order to contribute to an empirical foundation of the debate on Europeanization we decided to use reliable sample identification and indicators, which allow us to reproduce our findings. Our research design takes the whole sample of national laws into account and identifies Europeanized laws as those statutes that explicitly mention the EU or one of its institutions or instruments in their texts. Ideally, we would have an explicit reference in each national law indicating its origin from Brussels. However, such a reference only exists in Germany. By taking into account all references to the EU or one of its institutions or instruments in their texts, we may capture indirect references and perhaps overestimate the level of Europeanization. For example, if a national law only mentions the European context of policy-making and the need to be competitive, our measure will consider it as Europeanized. The same applies to a national law that makes the EU responsible for a controversial reform (blaming) without relating it explicitly to a European norm or decision. Of course, we excluded laws that mention the EU in order to emphasize that there is no EU constraint or link – which is, for instance, very often the case in Austria. Conversely, the use of EU as a framework for a national law will be considered as Europeanization, whether the aim is to anticipate a decision of the EU, to adapt policies as a reaction to the EU, or to overcome a national handicap or to get an advantage in competition within the EU.


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All of the participants in this research project agreed that there is no perfect methodology. Still, we believe that nothing is more biased than a study of a phenomenon that, in the end, would refuse any empirical analysis or try to draw general conclusion from a very small number of cases. We feel that the study of Europeanization in a systematic way will deepen our knowledge of this phenomenon, and we have chosen to face the numerous methodological problems and to best control them through our research design. We have also agreed that a qualitative analysis of a sample of texts was necessary in each national case in order to define unequivocal criteria to distinguish Europeanized and non-Europeanized laws. In spite of a clear and operational definition of Europeanization, several problems emerged and delineated the limits of this research. The comparative analysis raises further methodological concerns. First of all – and this is a frequent challenge for any comparative study – the political systems of the member states show important variation in the balance of power, the status of law, and the dynamics of its making. More precisely, the modalities of the transposition of EU law differ strongly from one country to another. Even when the transposition of a directive takes the form of a law, the national differences remain. This task is more or less part of the parliamentary responsibility and can take various forms: law, legislative act delegated to the government, regulation act, simple circular, absence of any norm. The legal texts also have different forms and status: in some countries, the exposition of motives – which often mentions diverse aspects of the political context, among others the European integration – is a fullyfledged part of the law. In other countries the law is not preceded by any text setting the background or the rationale, which reduces the probability of a EU constraint being mentioned. In the same way, while in some countries the laws implementing directives mention this fact explicitly, in others this remains inexplicit. Moreover we observe that many laws are only partially Europeanized; no more than a part of the text, often a single article, can be linked to the EU. Also, in some countries laws are especially long and detailed and can include very verbose introductions, whereas in others, the texts are reduced to a strict minimum. Those differences have a strong impact on the possible perception of their Europeanization, the references to the EU being potentially more frequent in the first case than in the second. These differences also challenge our strategy to search for keywords in all countries. This is the reason why each national team was also free to adapt the common methodology to its specific case, in order to best identify the presence of a Europeanized legislature. Also, we must be aware that there are “omnibus laws,” dealing with a whole range of topics related to diverse policies and sectors of public action, as well as laws focused on a single narrow question. The first ones are more likely to refer to EU than the second, and have generally a far greater legal and political impact. The present book is based on nine national cases: eight member states of the EU (Austria, Finland, France, Germany, Italy, Luxembourg, The Netherlands, and Spain) and one non-member (Switzerland). The eight countries of the EU present a large spectrum of situations, regarding the type of political system (parliamentary, semiparliamentary with strong or weak presidential power), the partisan situation

10 Table 1.1 List of the 21 common keywords

S. Brouard et al.

European Union European Community European economic Community Common Market Single Market European Market European Coal and Steel Community European Atomic Energy Community European monetary Union European monetary System EU

EEC EC ECSC EAEC Euratom EMU EMS Directive Community law European law

(bipolarization or no, left or right majority), territorial organization (federal or unitary) or the seniority as a member of the EU. We do not include a new member state from the last two enlargements in our sample. As regrettable as this may be, this absence is the result of two types of considerations. Firstly, the decision to analyze for each country all laws voted since 1986 excluded de facto the new member states; the exploitation of the data would also have suffered from a lack of temporal perspective. In a more prosaic way, it also seems that the data necessary for our research is not available in any of the countries which joined the EU in the last decade. We decided to include Switzerland as a control case and as a way to question Delors’ myth more critically. It indeed allows us to show that European integration not only impacts its member states, but also all its commercial partners and more specifically its neighbors. Thus, it challenges the idea that it would be possible for a member state to escape from Europeanization by quitting the EU – unless it chooses to break all ties with its former partners. At four workshops, involving all the participants of the project (Bordeaux 2008, The Hague 2009, Barcelona and Mannheim 2010), we defined a common methodology taking into account our definition of Europeanization, our object of research and the methodological constraints mentioned above. As said, the limits of this research project are mainly linked to the specificity of national legislatures. In order to gather the most useful data, we have thus collectively defined a balance between the necessity to standardize the research design and to take into account of the particularities of each national case. Since we define the Europeanization of laws as a link with the EU, we have considered as Europeanized those laws which contain an explicit reference to it. After several tests, it became clear that the most reliable solution, above all for reasons of cross-country comparability, was to look in a systematic way for the presence in laws of 21 keywords and their acronyms in relation to the EU and its politics (Table 1.1). Each team performed this task for searching these keywords in all laws voted between 1986 and 2008. The year 1986 has been chosen for four main reasons. First of all, the Single European Act, the first major revision of the Treaty of Rome, was signed in February 1986 and came into effect on 1st July 1987. This marked an important turning point in the normative production of the European Community: its powers were sensibly widened and the decision procedures modified (qualified


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majority voting at the Council, stronger implication of the European Parliament, restoration of the leadership of the Commission). 1986 stands also for the start of the legislative program which, by the implementation of 279 legislative measures, was at the origin of the Single market. The 1st January 1986 is also the date of accession of Spain and Portugal to the EU. Finally, the year 1986 corresponds in most of the countries with the creation of computerized databases; it is often difficult to get hold of the systematic data in electronic form before this date. Preliminary analysis using the raw keywords data showed very important discrepancies from one country to another due to the specificities of the national constitutional, legal, and political contexts, and to methodological problems. For example, the very specific process of directive transposition in Italy, the tendency in France to hide the European origin of laws or the systematic mentioning of the EU in Austrian laws, which always state if they are or not connected with it. With regard to methodological difficulties, we can refer to linguistic problems in Finland (each of the keyword being potentially spelled in numerous ways because of the declension system) or to the confusion in French between acronyms (EC, EU, etc.) and common words. At first, our objective was to set up a very strict common methodological frame. The first results however proved that it was not an adequate way to gather comparable data, mainly because of the high impact of national specificities. By using a highly standardized approach, results become incoherent, with a very high level of fake-hits in some cases, and important underestimation of Europeanization in others. We have thus decided to give more autonomy to each team, from a methodological point of view and regarding the definition of Europeanization they use. On that respect, this book is also a methodological reflection about the ways to study Europeanization in a comparative way. In order to overcome the difficulties induced by our research protocol, national teams have adapted it to their own cases. They were free to decide whether it was better to look for keywords in laws full text, legislative projects full text (including or not their introduction) or different kinds of summary. We have measured the impact of those choices by comparing the results of the different options on a sample of texts (1 or 2 years). Several teams have also decided to control the “keywords” indicator with another one: a manual coding of the laws by searching for a reference to an EU link in the full text of statutes, an indicator of the number of laws transposing directives, or a measurement of the EU “impulse” – i.e., the norms resulting from an EU constraint. Over several workshops, we have ensured some fine-tuning between the research designs used by the various teams. At the end of the day, the methodology used to study Europeanization in the nine national cases varies along four dimensions: the type of texts considered (law, bills, statutes, proposals, legislative-decrees. . .), the type of search in addition to keywords (manual coding, transposition of directives, EU impulse. . .), the scope of the research (full text, abstract, keywords. . .), and the conception of Europeanization (link, contextual, legal, downloading. . .). In our view, the research design provided in this book is however the best compromise available between two objectives that are partially contradictory: a realistic estimation of the level of

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Europeanization, adapted to the specificities of each national context; a common research design, allowing transnational comparisons. In sum, here are the methodological choices made by each team:

Austria

Type of document Federal laws

Type of research Scope of the research Keyword search

Federal laws

Manual coding

National council Keyword search bills National council Manual coding bills

Focus (wording) Contextual Europeanization Legal Europeanization Contextual Europeanization Legal Europeanization

Finland

Statutes

Keyword search (3)

Top-down Europeanization

France

Statutes

Keyword search Keywords associated to each law by the official Manual coding

EU link

Statutes Germany

Downloading Europeanization

Legislative initiatives

EU impulse

Federal bills EU impulse Federal laws EU impulse Statutes Statutes

Keyword search Abstract

EU impulse (constraining Europeanization) EU link

Keyword search Full text

EU link

Keyword search Abstract Keyword search Abstract

EU link EU link

Statutes Legislativedecrees

Keyword search Keyword search

EU link EU link

Luxembourg Statutes Statutes

Keyword search Full text Transposition of directives

EU impulse Transposition

Netherlands

Statutes

Keyword search Titles and preamble (extended to some related treaties)

Europeanization

Spain

Statutes

Keyword search + manual coding Keyword search + manual coding

Direct Europeanization

Legislative acts

Keyword search Full text

Legislative proposals

Keyword search Abstract

Direct and indirect footprint Direct and indirect footprint

Italy

Bills

Switzerland

Direct Europeanization


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Beyond elements on Europeanization, all teams have collected a number of additional characteristics for each law: • The type of the law (according to each national system) has systematically been coded, in order to enable an analysis of the EU link on different types of norms. • A thematic code has been attributed to each text, to allow comparisons by sector and between countries. We have used the coding of the international “Policy Agendas” project (www.policyagendas.com) in which the majority of the teams were involved, and which proposes a very detailed codebook. • We have also collected information on the amendments of the laws. For each law we know whether the bill was amended, and for most of the countries, how many times. This information enables us to test several hypotheses regarding the degree of parliamentary influence on the legislative process, for laws with or without EU link. One might assume that MPs develop more activity when faced with Europeanized texts, as they aim to control the process of Europeanization and because it represents a possibility for them to play an active role in the legislative process without giving the impression of countering government’s initiatives. The opposite hypothesis would be that the highly technical character of the transposition of European norms has a repellent effect on the MPs. The data on the amendments will help us to explore this debate. • Several national teams were also able to collect systematic data on the fate of directives and, above all, on the percentage of directives transposed by a law, an act of the executive, other type of act, or not notified. This data will allow us to measure both the degree of European constraint on parliaments and governments and the power balance among national institutional arrangements in this respect. • Using the information on the Europeanization of domestic legislatures from the country chapters we are also able to construct a dependent variable for the empirical analysis of the factors causing the share of Europeanized laws. To analyze the causes of Europeanization we use these data in a comprehensive pooled-time-series-cross-section format.

Aims and Structure of the Book The use of the EU link allows us to empirically measure the extent to which the laws voted on at the national level are Europeanized and to distinguish Europeanization from other phenomena. Furthermore, we relate these hits to the overall number of national laws and distinguish between different policy areas. This will allow us to compare the share of area-specific Europeanized laws in each country over time. One advantage of our approach is that we can address several types of questions and challenges regarding Europeanization and make countryand area-specific assertions about the Europeanization processes. First of all, we are able to confront Delors’ myth of national legislation being composed of 80% of Europeanized laws with real figures. In a sample of

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eight-member states plus Switzerland, we contest this myth, which has dominated the public and scholarly debate on the impact of European integration on the member states for more than 20 years, and contribute to both robust quantification and reliable clarification. The collection of systematic data on the number of Europeanized laws allows us to contest Delors’ prediction on a very high level of Europeanization while observing and analyzing three trends. The national variation of the Europeanization of domestic parliamentary legislatures: despite the limits of such an exercise, the adoption of a common methodology allows us to observe significant differences in the degree of Europeanization between countries, due to the degree of misfit between domestic legislation and that of the EU, the respective influence of member states in the negotiation of treaties and the adoption of European norms, or specificities of law production and EU norms implementation in the different national contexts. Our data allows us to analyze the diachronic variations of the Europeanization of domestic parliamentary legislatures and to answer several questions: has the European impact got stronger over time? If yes, in what areas and what has happened over time? Is it possible to relate these variations to events of the European integration (EU enlargement, rejection of the Lisbon treaty. . .) or national political life (elections, changes of majority, constitution reforms)? With respect to the area-specific formal development by treaty revision it is important to compare the degree of Europeanization by type of law and by policy areas. By introducing a thematic code for each national law, we can answer the following questions: what types of law and policy areas are the most Europeanized? What are the diachronic trends of Europeanization per sector? Does a concordance exist between national policy priorities and European ones? Is there convergence among the various member states under study? Our cross-sectional dataset allows us to examine rivalry explanations for the area-specific share of Europeanization in these countries. One common explanation is that a (growing) number of EU legislative activities promote “deparliamentarization.” A second hypothesis comes from the literature on coalition politics and assumes that the relationship of coalition partners pursuing diverse interests is characterized by ministerial drift and parliamentary oversight. Legislative review is a means of coalition partners to overcome their delegation problems, which means that coalition partners will scrutinize Europeanized proposals by legislative review when they expect ministerial drift. The quantitative analysis of the Europeanization of domestic parliamentary legislatures is thus a way to evaluate the impact of European integration on the political systems of the member states. Here again, the collected data enable us to answer several questions, which have already been discussed in the political science literature but never looked at from that angle: what is the impact of European integration on the balance of powers at the national level? Are Europeanized laws more or less controlled (i.e., amended and discussed) by national parliaments than the others? Do laws implementing European norms reach stronger consensus in parliament and between coalition partners? How about the relationship between political parties, which must often form coalitions for building government in the


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member states but pursue different interests in policy-making? The widespread hypothesis stating that European integration weakens first and foremost the domestic parliamentary legislatures has never been refuted using solid data on lawmaking. Finally, in a more general way, this renewed perspective prompts reexamination of analyses regarding the interplay between the EU and national political systems. Therefore, the quantitative analysis of Europeanization is not an end in itself but an additional means to study the impact of European integration on political systems and domestic legislative production. The multiplicity of the European integration process, together with the empirical difficulty to distinguish them one from another has inspired our approach. Our goal is not to focus on a specific type or dimension of Europeanization or to weight the respective importance of different characteristics: it is to reestablish the order of sequences of the analysis of Europeanization. Our study aims at identifying the amount of Europeanized laws using reliable criteria and at evaluating the level of Europeanization in different political systems as well as its development through time. For this purpose, we also introduce into the data on recent EU legislative activities which are conceived as a necessary condition for the Europeanization of domestic parliamentary legislatures. This will allow us to estimate whether and to what extent there is a systematic relationship between the activities at the EU and domestic level. Furthermore, we will take a closer look at the domestic level by investigating the reasons for the parliamentary scrutinizing activities in the domestic legislatures. According to the “deparliamentarization” school of thought, domestic parliaments are increasingly lacking power for scrutinizing the activities of the executive, in particular when European laws only offer a “take-it-or-leave-it” decision on complex packages. Hence, we will evaluate whether the level of Europeanization of domestic legislatures is also determined by parliamentary responses to Europeanization. Domestic legislatures can respond to several impulses from the EU level: above all directives, but also treaties, international agreements of the EU, decisions of the European Court of Justice (ECJ). In some cases, Europeanization can be the result of more diffuse mechanisms that have no constraining effect: requests of the European Commission (before an action for failure to fulfill an obligation), objectives resulting from the OMC and other forms of soft law, reference to general principles of EU law, anticipation of EU reforms, importations of models (European or national) by the way of “mutual learning,” etc. In those cases, there is no direct measurable European constraint but the laws are nevertheless a consequence of European integration. From the domestic level, the strategic use of EU references can also impact the Europeanization of domestic legislatures. Some texts can refer to a European impulse without substantial but for strategic reason, only to justify unpopular reforms or to propose a “take-it-or-leave-it” decision. On the contrary, the advocates of a European-motivated reform can conceal its supranational dimension and claim its authorship. Nevertheless, such strategies strengthen de facto the link between domestic legislatures and the EU and fully fledged parts of the multiplicity of the Europeanization processes (downloading, blaming, anticipating, framing, etc.). The chapters gathered in this book also offer a deep insight on the consequences of Europeanization on the nine political regimes under study. Its impact on the

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balance of power and relationship between government and parliament is discussed for each country under study. Besides that, several phenomena are underlined. The chapter on the Netherlands describes two worlds of Europeanization in Dutch politics and society. The French chapter discusses the overall impact of European integration on policy-making, and argues that EU is a veto-player more than a dictator. The German chapter provides a cross-validation for the applied measure of Europeanization and furthermore examines the EU influence on governmental agenda setting and parliamentary oversight. The Austrian chapter deals with the notion of EU reference. The chapter on Italy explains why its government can be called “pro-European.” The one on Switzerland shows that Europeanization can also be a significant phenomenon outside the EU. Finally, as it is impossible to understand the Europeanization of domestic legislatures without taking into account the development of EU legislative activities, a chapter is devoted to this question. This background view is an essential precondition for the evaluation of the variations of Europeanization through time, by country, and by policy sector. The EU normative production is one of the fundamental independent variables for the study of Europeanization and its variations have to get an influence on this phenomenon. Strangely enough, even these data are difficult to access: several research projects start to propose a global view on the EU normmaking process, but the data are still relatively unknown and incomplete. Above all, EU institutions do not seem to be motivated to communicate reliable and systematic information on this topic. It was therefore necessary to propose our own global overview on the normative activity of the EU in order to interpret national results. On behalf of these results, we finally examine causes of the share of Europeanized domestic laws. Hereby, the common expectation is that the level of EU legislative activities influences the share of Europeanized domestic laws. However, as we show in the national chapters, this kind of policy growth differs across countries and policy areas. Furthermore, it remains an open question whether Europeanization only “hits” the domestic level without response of the targeted (parliamentary) actors. Looking at the share of Europeanized domestic laws from the domestic perspective, we ask whether parliamentary actors make use of the legislative review process for oversight of executive actors, in particular when the risk of ministerial drift is high in coalition governments. All these analyses on the Europeanization of domestic legislatures were made possible by a collective effort of nine research teams, which generated datasets on different legislatures, filtered their peculiarities, and searched for those laws affected by Europeanization. It is important to mention that even though technological progress eases the downloading of legislative documents, and thus the quantitative analysis of legislative production, it has been crucial to be able to count on the expertise and qualitative input of the scholars involved in this project. Hence, the European and the country chapters provide the reader with detailed insight in our data generation process and the specificities of each national case. Our common methodology however allows for the replication of our findings in other countries. We hope that this will stimulate further research and more empirical than normative discussion about Europeanization in the future.


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Chapter 2

EU Legislative Activities and Domestic Politics Thomas K€onig, Tanja Dannwolf, and Brooke Luetgert

Much of the Europeanization debate revolves around the impact of Brussels on the domestic legislatures of the member states, in particular the domination of their legislatures by the binding and enforceable activities of the EU. Because this impact is a direct result of the amount of legislative activities at the EU level, this chapter documents EU legislative decision-making and explores the consequences of treaty revisions and enlargements, which have changed the goals and conditions for EU legislative decision-making over time. The famous prediction of the former Commission president Jacques Delors, claiming that 80% of economic legislation, perhaps of taxation and social legislation, would originate in Brussels (6.7.1988. EP 2-367/157), was made at the end of the 1980s when EU legislative activities had reached a peak in the attempt to complete the Common Market by the effective application of qualified majority voting in the Council of Minister until the end of 1992. Since then the EU has experienced further enlargement rounds with the accession of a large number of countries having diverse interests, which are considered to have made the adoption of EU legislation more difficult. Moreover, the Nice treaty (2003) complicated the rules for qualified majority voting in many policy areas, which led to a higher risk of gridlock in the Council of Ministers. This prompts questions as to whether EU legislative activities have slowed down due to accessions and consensus rules in the Council of Ministers. On the other hand, Brussels impact may be

T. K€onig (*) University of Mannheim, Mannheim, Germany e-mail: [email protected] T. Dannwolf Mannheimer Zentrum f€ ur Europ€aische Sozialforschung, Universit€at Mannheim, Mannheim, Germany e-mail: [email protected] B. Luetgert Sabanci University, Istanbul, Turkey e-mail: [email protected] S. Brouard et al. (eds.), The Europeanization of Domestic Legislatures, Studies in Public Choice, DOI 10.1007/978-1-4614-1502-2_2 # Springer Science+Business Media, LLC 2012

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determined not only by the amount of legislative activities, but also by the type of instrument used. For example, it is possible that Brussels still produces a large number of legal obligations via directives, which member states must transpose into domestic law. Hence, this chapter reports on the amount of legislative activities, the type of instruments, and their area-specific application over the past 20 years. In general, the level of EU legislative activities is determined by two crucial factors, the extent of material competencies of the EU and the motivation and ability of the Commission, the member states and the European Parliament to use them. Regarding the material competencies, the EU has integrated a large number of policy areas through several treaty revisions. After the creation of the ECSC, the EEC, and EURATOM in the 1950s, in particular the Single European Act (1987), Maastricht (1993), Amsterdam (1999), and Nice (2003) treaties have significantly raised the EU’s material competencies in several policy areas. At the same time, these treaties have increased the ability of EU actors to use these competencies by introducing and expanding the application of qualified majority voting in the Council of Ministers. However, it is commonly believed that the accessions of new member states in the 1980s, mid-1990s, and beginning of 2000s have increased the diversity of interests in the Council of Ministers, which conventionally reduces the EU’s ability to act (K€ onig and Br€auninger 2004). Furthermore, the European Parliament has been equipped with veto power under the shadow of qualified majority voting in the Council of Ministers, which should also lower the amount of activities (Schulz and K€ onig 2000). These developments – the increasing level of material competencies on the one hand and the diversity of interests on the other hand, which are accompanied by the change of the Council of Minister’s voting rules and the participation of the European Parliament – demand a closer inspection of the EU’s legislative output (K€onig et al. 2006). In particular, the number and range of directives that must be transposed by the member states into domestic law, is an important indicator for the extent to which domestic legislation originates in Brussels. Hereby, member states have the discretion to implement directives by legislative or executive measures and vary considerably in their use of these transposition instruments (Franchino and Hoyland 2009; K€ onig and M€ader 2007). As a consequence, the level of Brussels executive influence is also homemade by the in- or exclusion of domestic legislatures in the implementation of directives. This chapter will take a closer look at the EU legislative activities from 1984 to 2007 using information from EURLEX. We will present the amount of binding legislation, which the EU adopts in the form of directives, regulations and decisions. These three types of legislation are adopted by the Council of Ministers under the consultation procedure, the Council of Ministers and the European Parliament under the cooperation and codecision procedures, or by the Commission alone (tertiary legislation). We will see how the use of these procedures has developed over time and across policy fields, which were concurrently complemented by treaty revisions and accessions. Furthermore, we will take a closer look at the application of qualified majority voting in the Council of Ministers and the participation of the European Parliament. In addition to these formal characteristics of EU legislative productivity, we also present indicators on the potential for conflict among the member states,

2 EU Legislative Activities and Domestic Politics

23

which provide additional insight into the nature of EU decision-making. Finally, we will pay special attention to directives, which can have a direct impact on domestic legislatures due to their required transposition into domestic law.

EU Legislation over Time The history of EU legislative activities is characterized by distinct events of enlarging and deepening. As suggested in Fig. 2.1, the treaty revisions of the past 20 years deepened the relationship among the member states by increasing the material competencies of the EU across various policy fields and expanding qualified majority voting in the Council of Ministers, while also steadily increasing the influence of the European Parliament in EU legislative politics since the Single European Act in 1987. During this period, the EU also experienced several accession rounds with the Western and Southern enlargements until the mid-1980s, followed by the Northern in the mid-1990s and the Eastern enlargement rounds in 2004 and 2007. The Lisbon treaty marks the latest treaty revision, which came into force in 2009 after a 8-year reform effort. This final event clearly demonstrated the variation in the interests of the member states in the design of qualified majority voting and the composition of the Commission. Both topics were heavily disputed among the political leaders and the public of large and smaller member states leading to several conflicts and crises, including a perennial reflection period (Finke et al. 2012, forthcoming).

Fig. 2.1 Historical development by treaty revisions and enlargement rounds. Enlargement rounds: West ‘73 accession of Denmark, Ireland and UK; South ‘81&‘86 Greece (1981), Portugal & Spain (1986); North ‘95 Austria, Sweden & Finland; East ‘04, ‘07 Estonia, Latvia, Lithuania, Poland, Czech Republic, Slovakia, Hungary, Slovenia, Malta & Cyprus (2004), Bulgaria & Romania (2007). Treaty revisions (year indicates its entry into force): EEC ‘57 European economic treaty 1957; EEA ‘87 Single European Act 1987; Maas ‘93 Treaty of Maastricht 1993; Amst ‘99 Treaty of Amsterdam 1999; Nice ‘03 Treaty of Nice 2003; Lisb ‘09 Lisbon Treaty 2009

24

T. K€onig et al.

Do we expect that these events of enlarging and deepening affected EU legislative activities and hence Brussels impact on the domestic legislatures of the member states? The answer to this question is not easy because some events have the potential for contradictory effects: while it is commonly expected that enlargement would make decision-making more difficult among the member states, the extension of qualified majority voting in the Council of Ministers could counter this enlargement effect (Schulz and K€ onig 2000). Similarly, the effects for the Commission remain an open question: on the one hand, the expansion of material competencies might overload the Commission’s capacity to act; on the other hand, it can also facilitate the proposal of package deals which find consensus among the actors involved (K€onig and Junge 2009). To determine these effects empirically, we need to take a closer look at the binding legislative activities of the EU across policy areas and over time. Our numbers stem from the Eurlex database (http://eur-lex.europa.eu/en/index.htm) that is publicly accessible and run by the Publications Office of the Commission. Eurlex documents the history of decisions, directives, and regulations. Compared to regulations and directives, decisions are directed toward specific member states. Hence, we expect the number of decisions to increase with membership size. In contrast to regulations and decisions, directives are only binding “as to the result to be achieved.” As a consequence, directives have to be transposed by member states into domestic law. This does not mean that regulations and decisions do not affect domestic legislatures (T€ oller 2008, 17). However, directives are the most direct measure for the impact of EU legislative activities on domestic legislatures, because they must be directly transposed and enforced under domestic law – either by domestic legislative or by executive measures. Compared to decisions, it is not easy to make a plausible prediction about the development of directives. If directives are more related to achieving common goals such as the completion of the internal market by providing more discretion to the member states, one would expect their heydays in the end of the 1980s. Another important distinction for the evaluation of EU legislative activities concerns tertiary and secondary legislation. Compared to secondary legislation, which is adopted by the member states in the Council of Ministers and sometimes with the participation of the European Parliament, tertiary legislation is delegated to the Commission (COM) and mainly comprises implementation and administrative matters. One reason for this delegation is the technical nature of tertiary legislation, which requires more expertise than democratic legitimization. However, once the Commission has received this delegation power, it becomes more difficult to overrule tertiary legislation when the Council of Ministers is blocked. Hence, we expect that tertiary legislation becomes more prominent when the level of conflict increases among member states. Within secondary legislation, we distinguish between legislation adopted by the Council of Ministers and the European Parliament (CM & EP) from those acts, which are only passed by the Council of Ministers (CM). Council legislation is not exposed to parliamentary veto power, which can make a difference when dominating domestic politics. Table 2.1 provides an annual overview of all binding European legislation adopted between 1984 and 2007.


25

Table 2.1 Type of legislation and instrument by year of adoption from 1984 to 2007 Decision Directive Regulation CM & EP

CM & EP

CM & EP

Total Total COM CM Total COM CM Year COM CM 1984 453 81 534 17 58 75 911 426 1,337 1985 311 77 388 22 62 84 907 500 1,407 1986 378 171 549 25 77 102 1,091 550 1,641 1987 340 110 450 24 44 68 1,121 480 1,601 1988 396 105 501 27 66 93 1,059 477 1,536 1989 387 151 538 22 83 105 961 416 1,377 1990 349 144 493 24 75 99 1,115 411 1,526 1991 431 125 556 35 71 106 1,127 336 1,463 1992 387 134 521 29 99 128 1,137 391 1,528 1993 508 155 663 52 70 122 1,072 329 1,401 1994 648 173 2 823 30 29 20 79 992 302 1 1,295 1995 483 159 6 648 34 28 10 72 2,821 267 0 3,088 1996 513 141 10 664 39 40 17 96 2,277 247 4 2,528 1997 637 178 7 822 35 24 24 83 2,405 242 1 2,648 1998 449 221 9 679 43 31 28 102 2,612 230 0 2,842 1999 531 207 15 753 60 23 19 102 2,594 176 14 2,784 2000 504 205 15 724 40 11 42 93 2,573 181 23 2,777 2001 653 208 10 871 44 18 45 107 2,440 140 16 2,596 2002 503 204 16 723 44 14 39 97 2,202 143 25 2,370 2003 495 234 24 753 62 20 46 128 2,052 159 34 2,245 2004 470 298 16 784 60 19 36 115 1,965 177 41 2,183 2005 438 240 11 689 54 10 27 91 2,026 109 19 2,154 2006 513 237 19 769 76 28 40 144 1,804 167 45 2,016 2007 458 264 19 741 53 6 18 77 1,419 122 22 1,563 Total 11,235 4,222 179 15,636 951 1,006 411 2,368 40,683 6,978 245 47,906 COM commission legislation; CM legislation adopted by the Council of Ministers (implying no EP involvement or the application of the cooperation or consultation procedure); CM & EP legislation adopted by the Council of Ministers and the European Parliament (application of the codecision procedure)

According to Table 2.1, there is an upward trend in the total numbers of decisions and regulations, while the annual adoption rate of directives has remained almost stable over time. We find a similar trend for secondary legislation whereby the annual number of decisions has increased and that of regulations and directives has decreased. The goal of completing the Common Market by the end of 1992 seems indeed to account for the high numbers of directives between 1988 and 1993. While we correctly expected a higher number of decisions due to the larger number of member states, the increase in the competencies of the Commission stemming from the Maastricht treaty as well as the Northern enlargement explains the high numbers of Commission regulations since 1995. Additionally, a shift in decisionmaking toward the Commission may have been encouraged by difficulties within interinstitutional decision-making arising from more conflict in the Council or more power of the European Parliament.

26

T. K€onig et al.

Because the deepening of the EU has been accompanied by an increase in the powers of the European Parliament and in the application of Council qualified majority voting, the decrease in the annual adoption rate of secondary legislation could be a result of these changes in formal rules for interinstitutional decisionmaking. Interinstitutional decision-making is best documented in the PreLex database, which provides more detailed insight into the involvement of the European Parliament as well as Council decision-making. PreLex documents legislative processes that are interinstitutional, but excludes tertiary legislation. Participation of the European Parliament in legislative decision-making has been brought forward as one of the remedies for the purported European democratic deficit. The involvement of the European Parliament, the application of qualified majority voting, and conflict in the Council of Ministers have changed with treaty revisions and multiple enlargement rounds. Looking at the empirical evolution of parliamentary involvement over time reveals that the share of legislative acts adopted under cooperation and/or codecision has steadily increased since 1984 but has not yet crossed the 30% mark. Compared to parliamentary involvement, the application of Council unanimity voting has decreased considerably. Thus, the application of unanimity as well as decision-making without parliamentary involvement has decreased, but the results suggest that this has not occurred to the extent that the treaty reforms might have intended. Nonetheless, these developments might explain the drop in adopted EU legislation. Treaty revisions brought institutional reforms as well as an increase in the number of policy fields delegated to the EU level, and this might contribute to the observed patterns of EU legislative output. In order to enhance the comparability with the national chapters, we recoded the directory codes provided by Eurlex to 15 policy fields according to the scheme of the policy agenda project that are important for the EU. The different material focus of EU legislation is evident from the second largest category, “Macroeconomics,” which includes legislation relating to the Common Market whereas “Banking and Finance” only lists rules relating to banks and insurances. In the EU context, the policy field of “Government Operations” accommodates legislation on general affairs and institutional matters, e.g., institutional provisions. Legislation relating to “Judicial and Police Cooperation” is assigned to the category “law” of the policy agenda project. Table 2.2 shows the distribution of EU legislation across these policy fields and also indicates the type of legislation according to instrument and responsible institution. Differences between policy fields are considerable in terms of numbers, institution involved, and type of instrument. Accordingly, the Common Agricultural Policy accounts for the largest share of EU legislation across all policy fields: 67.8% of all binding EU legislation adopted between 1984 and 2007 deals with “Agriculture and Fisheries.” The distribution over time even suggests that agricultural policy has grown in importance over the period under investigation, for which enlargement is a logical and probable explanatory factor. The large share of decisions that are member state-specific further underlines this. However, the widespread use of tertiary legislation in this policy field also points to the technical and regulative nature of this policy area. The second biggest policy field is

1,844 47 1 3,041 74 19 115 93 116 36 57 30 2,306 440 205

Macroeconomics Civil rights Health Agriculture Labor Education Environment Energy Transportation Law Social welfare Banking & finance Foreign trade International affairs Government operations Total

78.0 79.7 25.0 95.2 54.8 26.8 39.4 68.4 42.0 73.5 74.0 22.6 83.4 77.3 68.6

%

453 12 3 54 59 48 154 34 154 11 17 100 231 42 28

No.

EP

No. %

No.

QMV %

2,364 1,831 77.5 59 30 50.8 4 1 25.0 3,196 2,585 80.9 135 85 63.0 71 54 76.1 292 187 64.0 136 65 47.8 276 174 63.0 49 31 63.3 77 35 45.5 133 76 57.1 2,764 2,435 88.1 569 503 88.4 299 197 65.9

Total No. 533 29 3 611 50 17 105 71 102 18 42 57 329 66 102

No. 22.5 49.2 75.0 19.1 37.0 23.9 36.0 52.2 37.0 36.7 54.5 42.9 11.9 11.6 34.1

%

Unanimity

2,364 59 4 3,196 135 71 292 136 276 49 77 133 2,764 569 299

Total No.

8,601

2,065 45 4 2,370 99 45 215 116 211 42 62 95 2,489 510 233

No.

Item A

179 2 0 714 26 16 51 14 46 6 12 20 68 27 18

No.

82.5 1,199

87.4 76.3 100.0 74.2 73.3 63.4 73.6 85.3 76.4 85.7 80.5 71.4 90.1 89.6 77.9

%

Item B

11.5

7.6 3.4 0.0 22.3 19.3 22.5 17.5 10.3 16.7 12.2 15.6 15.0 2.5 4.7 6.0

%

396

49 1 0 86 3 5 4 3 3 0 1 6 181 22 32

No.

3.8

2.1 1.7 0.0 2.7 2.2 7.0 1.4 2.2 1.1 0.0 1.3 4.5 6.5 3.9 10.7

%

Written procedure

228

71 11 0 26 7 5 22 3 16 1 2 12 26 10 16

No.

2.2

3.0 18.6 0.0 0.8 5.2 7.0 7.5 2.2 5.8 2.0 2.6 9.0 0.9 1.8 5.4

%

Not mentioned

10,424

2,364 59 4 3,196 135 71 292 136 276 49 77 133 2,764 569 299

Total No.

QMV qualified majority, simple majority, and unclear; Item A item A on council agenda; Item B item B on council agenda; Written Procedure use of written procedure in the council meeting

5.8 10,424 8,289 79.5 2,135 20.5 10,424

19.2 67 2.8 20.3 0 0.0 75.0 0 0.0 1.7 101 3.2 43.7 2 1.5 67.6 4 5.6 52.7 23 7.9 25.0 9 6.6 55.8 6 2.2 22.4 2 4.1 22.1 3 3.9 75.2 3 2.3 8.4 227 8.2 7.4 87 15.3 9.4 66 22.1

%

Missing

8,424 80.8 1,400 13.4 600

No.

Policy fields (AP)

No EP

Table 2.2 European parliament (EP) involvement, council decision rule, and council conflict (adopted legislation in PreLex)

2 EU Legislative Activities and Domestic Politics 27

28

T. K€onig et al.

“Macroeconomics,” which accounts for 15.7% of legislation. Judged by the legislative output over time, this policy field has decreased in importance. It also includes a rather high share of tertiary legislation as well as regulations because it largely falls under Commission competence. Further 7.3% of EU legislation belongs to the policy field of “Foreign Trade.” Similar to “International Affairs” and “Law” this policy field stands out by the absence of its directives and a low share of codecision legislation. This is in striking contrast to legislation on “Banking and Finance” with many directives and codecision legislation. “International Affairs” and “Government Operations” each account for 2.5% of EU legislation and are very similar to “Foreign Trade” with low share of directives as well as low involvement of the European Parliament. The annual output of the smaller policy fields has increased steadily over the period of investigation. The EMU is also reflected in the growth of legislation in “Banking and Finance” and “Government Operations” since the end of the 1990s. First introduced by the Maastricht Treaty, Justice and Home Affairs differentiated into “Law” and “Civil Rights” presents the best example of a deepening in EU cooperation. These fields are characterized by a remarkable growth rate, whereas “Labor” and “Education” have stayed comparatively stable over time. “Law” and to a lesser degree “Civil Rights” include few directives and a large share of Council legislation. By contrast, environmental policy has been identified as one of the most Europeanized policy fields. This is reflected in the continually increasing output of environmental legislation over the years and the inclusion of a high share of Commission legislation (68.2%). Furthermore, 20.2% of environmental policies are adopted in the form of directives. Empirically as well as formally, new policy fields have been included, which are likely to have caused more conflict and reduced the legislative output. The legislative output suggests that the deepening dimension is reflected in an increase in legislation and addition of new policy fields (e.g., Law) as well as an increase in parliamentary involvement in the more established policy fields. Investigating the agenda of the Council, which is divided into A and B points can assess the degree of conflict in this phase of deepening and enlargement. A-points are deemed not to need further discussion and have been resolved by national representatives previously in COREPER prior to the ministerial meeting. Proposals listed as B points could not be resolved in preparatory meetings by the national representatives (Rules of Procedure of the Council, Decision 2004/338/EC, EURATOM, Article 3) and can therefore be regarded as controversial. Table 2.3 shows the percentage of parliamentary involvement, the application of unanimity voting as well as Council conflict within the 15 policy fields. The findings confirm that member states have protected their veto powers in some areas such as in Energy, Banking and Finance, Social Welfare and Health and that the European Parliament is represented in most legislation dealing with “Education,” “Environment,” “Banking and Finance,” and “Transport.” The numbers also suggest that the Common Agricultural Policy is contested with respect to the relatively high share of B-points. The same is true for Education.


29

Table 2.3 Instrument and type of legislation by policy fields (1984 to 2007) Type of legislation according to document Type of legislation title Policy fields (AP) Macroeconomics (n ¼ 10,392) Civil rights (n ¼ 148) Health (n ¼ 13) Agriculture (n ¼ 44,483) Labor (n ¼ 216) Education (n ¼ 142) Environment (n ¼ 946) Energy (n ¼ 220) Transportation (n ¼ 638) Law (n ¼ 134) Social welfare (n ¼ 136) Banking & finance (n ¼ 225) Foreign trade (n ¼ 4,875) International affairs (n ¼ 1,690) Government operations (n ¼ 1,651) Total (n ¼ 65,909)

Decision Directive Regulation COM (%) (%) (%) (%) 33.5 8.4 58.1 71.5

CM (%) 25.7

CM & EP Total (%) (%) 2.8 100.0

64.2

12.2

23.6

10.8

81.8

7.4

100.0

0.0 15.2

100.0 1.7

0.0 83.0

23.1 91.6

69.2 8.3

7.7 0.1

100.0 100.0

33.8 87.3

43.1 0.0

23.1 12.7

26.4 28.2

59.7 45.1

13.9 26.8

100.0 100.0

52.0 69.1 26.5

20.2 15.0 30.7

27.8 15.9 42.8

68.2 30.9 49.2

19.2 56.8 35.9

12.6 12.3 14.9

100.0 100.0 100.0

76.9 53.7

1.5 9.6

21.6 36.8

12.7 42.6

79.9 44.1

7.5 13.2

100.0 100.0

24.9

62.7

12.4

29.8

39.6

30.7

100.0

44.7

0.0

55.3

45.9

54.0

0.1

100.0

33.7

0.0

66.3

48.2

50.6

1.2

100.0

78.0

1.1

20.9

21.2

75.9

2.9

100.0

23.7

3.6

72.7

80.2

18.5

1.3

100.0

Implementation of Directives Different types of legislative acts have different consequences for domestic legislatures and thus for their Europeanization. Directives stand out because they are used to harmonize national legislation rather than equalize it, allowing the member states to adapt their national legislation to European policies. Directives also require transposition, application, and enforcement at the domestic level. The main data source to empirically evaluate transposition activities is provided by sector 7 of the Eurlex database (K€ onig and Luetgert 2009). Member states must notify the legal instruments they adopted in the course of transposing the directive to the Commission, and these are documented in the Eurlex online database. Even though this notification requirement only exists for directives, it allows us to investigate the level of Brussels impact on domestic legislatures from the viewpoint of EU legislative activities. For this purpose, we also disregard measures with an adoption date prior to a directive. Arguably, only an explicit reference guarantees legal accessibility for citizens.

30

T. K€onig et al.

a 3000 2800 2600 2400 2200 2000 1800 1600 1400 1200 1000 800 600 400 200 0 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07

b 800 700 600 500 400 300 200 100 0

84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 Regulations

Directives

Decisions

Total

Own calcuations based on EUR-Lex, 1984-2007.

Fig. 2.2 (a) Adopted teriary (Commission) legislation 1984–2007. (b) Adopted secondary European legislation 1984–2007

As a potential consequence of enlargement and the completion of the Common Market, the number of non-Commission directives has decreased slightly in the 1990s (Fig. 2.2a). At the same time, the use of regulations has also declined. Most likely reflecting the increase in conflict and the enlargement of the EU, the use of decisions within secondary legislation has increased (Fig. 2.2b). In contrast to policy fields that aimed at the completion of the Common Market, new EU competencies such as Justice and Home Affairs, Economic and Financial Affairs, and to some extent Education not only have low parliamentary involvement but are also dominated by decisions and regulations rather than directives. Another effect of the deepening is the increase of Commission legislation within directives, which was 25% in 1985 and constituted more than half of the adopted directives in 2006. In addition, this jump in Commission legislation, especially regulations, from 1995 onward may partially reflect the completion of the Common Market. For example,


31

the Maastricht Treaty granted the Commission more competence in the area of competition policy. This pattern is even more striking for regulations that nearly doubled from 1995 onward. Insofar, the numbers confirm our expectations about tertiary legislation and decisions, which have increased for secondary legislation. Taking a closer look at the legislative process, as documented in Prelex, also reveals that directives stand out with regard to their conflict potential. First, they have the highest share of B points in the Council of Ministers. 16.8% of directives require continued discussion in the Council of Ministers compared to 6.3% (decisions) and 13.4% (regulations). Second, the average adoption speed of a directive takes far longer than that of other legislative acts. Third, directives experience the highest share of unanimity voting among adopted interinstitutional legislation and 35.8% of directives fall under unanimity compared to 24.3% of decisions and 18.8% of regulations. This supports the notion that directives include the more contested issues and cover salient legislation even though they fail to constitute the majority of European legislation. As discussed earlier, the deepening of the EU has been accompanied by an increase in tertiary legislation and an increase of the power of the European Parliament that is most pronounced in the codecision procedure. Although the involvement of more actors on the EU level might lead to higher conflict and fewer adoption rates, another side effect could be easier transposition at the national level. The notion that legislation adopted by the codecision procedure faces fewer difficulties on the national level is supported by compliance research (e.g., Luetgert and Dannwolf 2009; Mastenbroek 2003). When looking at the share of directives that were transposed depending on the actors involved in European policy making, K€ onig and Luetgert (2009) find that the technical Commission legislation is adopted with the fewest difficulties in most member states (Austria being the only clear counter-example). A second finding of their transposition study is that directives adopted by codecision face less implementation difficulties on the national level than directives where the EP does not play a strong role. Finally, they show that transposition patterns highlight two countries where the involvement of actors during EU policy making does not seem to make a difference: Portugal and Luxembourg. This might suggest that implementation difficulties are rooted in national administrative difficulties, limited resources, and a lack of willingness. Regarding the impact of this transposition on the domestic legislatures of the member states, there is no prerequisite by the EU that directives have to be implemented by legislative measures. From a legal perspective, the requirement is that the measure be publicly accessible and enforceable for private subjects within the national legal system. Besides restrictions introduced by the limited time prescribed by the deadline, there is no restriction to the involvement of a domestic legislature from the EU level. The extent to which domestic legislatures take part in the implementation process thus depends on institutional prerequisites, governmental preferences, and practices of parliamentary decision-making. Empirically, cross-country as well as cross-sectoral differences can be observed (see K€onig and M€ader 2007; Franchino and Hoyland 2009). Figure 2.3 shows the percentages of directives that have been adopted with at least one legal instrument that formally requires the involvement of the domestic legislature.

32

T. K€onig et al. Austria

Belgium

Denmark

Finland

France

Germany

Greece

Ireland

Italy

Luxembourg

Netherlands

Portugal

Spain

Sweden

United Kingdom

100 80 60 40 20 0 100 80 60 40 20 0 100 80 60 40 20 0 1985 1990 1995 2000 2005 2010 100 80 60 40 20 0 1985 1990 1995 2000 2005 2010 1985 1990 1995 2000 2005 2010 1985 1990 1995 2000 2005 2010 Year of Deadline

Fig. 2.3 Involvement of domestic legislatures over time

Finland, Austria, and Germany have the highest shares of formal involvement of their legislatures. Ireland, Italy, Portugal, and the UK are on the other end of the scale. However, this does not capture the rights of national parliaments to influence EU legislative decision-making by exerting influence on their government via binding orders. For example, Denmark is well known for rather strong involvement of the parliament in the preparatory stage of EU decision-making (e.g., Bursens 2002) but only has a rather low share of the Danish legislature’s involvement in implementation. Even more importantly, this does not take into account institutional prerequisites some countries have taken in order to speed up the transposition process that might involve the national parliaments indirectly. For example, the Italian parliament delegates transposition to the government by the legge comunitaria (see chapter on Italy). Notably, this reform has succeeded in speeding up the transposition process (Borghetto et al. 2006). As a consequence of the deepening of the EU, an increase in the involvement of domestic legislatures could be expected due to the recent increase in new policy fields that more directly challenge issues of national sovereignty than regulative rules on agriculture. The deepening with respect to the policies decided on the EU level may also cause a rise in the importance and also the legal necessity of involvement of domestic legislatures. Looking at the share of the legislatures’ involvement in national transposition over time, we see that there is a minimal and gradual increase in their involvement in most member states. A clear increase is observable in Austria, Germany, France, the Netherlands, Belgium, and Denmark. The only country evidencing a slight decrease is Finland. Ireland, the UK, Italy, Portugal, and Luxembourg have maintained relatively stable rates of involvement of their legislatures. Turning to cross-area differences, Fig. 2.4 illustrates that these differences across countries are considerable. Policy fields are approximately sorted according to size so that small policy fields are displayed on the right side. Some countries


33

Percentage of Implemented Directives 100

Austria

Belgium

Denmark

Finland

M AEvT B L E C H S GTT

M AEvT B L E CHS GTT



France

Germany

Greece

Ireland





Italy

Luxembourg

Netherlands

Portugal





Spain

Sweden

United Kingdom

EU Average




80 60 40 20 0

100 80 60 40 20 0

100 80 60 40 20 0

100 80 60 40 20 0

M:Macroeconomics T:Transportation E:Energy S: Social Welfare

A:Agriculture B:Banking & Finance C:CivilRights G: GovernmentOperations


Ev:Environment L: Labour H:Health TT: Total

Law and Foreign Trade are excluded due to a low number of directives. Basis for the calculations are directives with transposition instruments as indicated in EUR-Lex sector 7.

Fig. 2.4 Involvement of domestic legislatures in the completed implementation process of directives

stand out by few cross-area differences, such as Finland and Austria on the upper and Greece, Italy, and the UK on the lower end measured by shares of legislative acts. Despite these different patterns between countries, some policy fields stand out due to their relative proclivity for legislative involvement in the transposition of European directives. We would expect that legislative involvement is higher in policy fields that touch on sensitive issues such as the welfare system, labor or civil rights, and financial regulations.

34

T. K€onig et al.

In line with these expectations, legislatures seem to participate relatively more often in the transposition of directives in the area “Social Welfare,” “Civil Rights,” and “Banking and Finance” in all countries. Policy fields with relatively low legislative involvement in nearly all countries include “Macroeconomics,” “Agriculture,” and “Transportation,” which also are more established policy fields that have a high share of technical Commission legislation. Earlier, we identified “Environment” as a policy field with many European directives as well as a high share of tertiary legislation. The patterns for “Environment” are quite different across countries. In stark contrast to the UK, Portugal, and Spain, especially the Austrian and German legislatures take part in the transposition process more than in other policy fields. Differences between countries may be due to different priorities as well as different institutional conditions.

Conclusion This chapter sets out to explore the developments of EU legislative decisionmaking and the consequences of the process of deepening and enlarging of the EU. We have identified three key developments at the EU level: First, there is a decrease in secondary and a slight increase in tertiary legislation. Within secondary legislation, decisions have become more prevalent whereas all other instruments have decreased in numbers. With respect to policy fields, agriculture is responsible for the bulk of EU legislation. These numbers confirm our expectation that enlargement affected the legislative activities of the EU. Most obviously, the number of decisions increased due to a larger membership size, while the increasing weight of tertiary legislation may also result from the fact that decision-making in secondary legislation has become more difficult by a larger number of member states with diverse interests. Second, the deepening of the institutional rules of the EU is reflected in day-to-day policy making. We find that parliamentary involvement as well as the application of qualified majority voting in the Council of Ministers has increased. Our findings also suggest that conflict in the Council of Ministers increased after central developments, such as the completion of the Common Market, the inclusion of Judicial Politics, and the accession of new members. This confirms our previous result that decisionmaking in secondary legislation has become more difficult. However, this development also depends on the type of instrument: the number of decisions slightly increased, while the number of regulations decreased and the number of directives remained almost stable in secondary legislation. Third, directives remain the instrument with the highest impact on domestic legislatures. Our results suggest that directives are more prone to conflict, e.g., take longer to adopt and have a higher share of B-points in the Council of Ministers. When measuring the Europeanization of domestic legislatures, directives are particularly important because their obligations must be transposed either by those legislatures or by executive measures into domestic law. We identified clear


35

country-specific patterns regarding the involvement of domestic legislatures in the transposition process. Generally, Finland, Austria, Germany, and Sweden are characterized by high formal involvement of their legislatures, although this differs across policy fields. As a result of the treaty reforms, we would expect the involvement of domestic legislatures to increase due to the inclusion of more significant policy fields. Investigating domestic legislatures’ involvement over time confirms this expectation only to some degree. Our results of EU legislative decision-making and the consequences of the process of deepening and enlarging of the EU emphasize the need for considering area-specific and cross-country differences particularly in formal institutional rules. Agricultural politics, followed by macroeconomics, considerably dominate EU legislative output. Environmental politics, by contrast, is relatively low in numbers but usually adopted with directives. Hence, we would expect an area-specific level of Europeanization in the member states. However, when the type of instrument is decisive for Europeanization, the influence of Brussels on the domestic legislatures is also homemade because they have the discretion to transpose directives either by legislative or by executive measures. From this point of view, we expect a countryand area-specific level of Europeanization which changes over time. The chapters on national policy making take the next step and clarify our expectations.

Appendix: Policy fields over time

483 416 494 502 486 474 423 444 413 555 479 366 426 549 427 456 440 501 414 363 381 286 342 272 10,392

Year of adoption

1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 Total

0 0 0 0 0 0 2 0 0 1 1 4 2 1 2 2 6 21 16 20 20 10 19 21 148

Macro Civil economics rights No. No.

0 3 2 0 0 2 1 0 0 1 0 0 0 1 2 1 0 0 0 0 0 0 0 0 13

1,069 7 1,146 3 1,432 4 1,346 7 1,356 12 1,232 8 1,327 12 1,304 10 1,396 11 1,245 9 1,300 9 2,986 8 2,409 8 2,525 9 2,656 9 2,679 12 2,594 10 2,545 8 2,241 11 2,113 17 2,023 9 2,082 10 1,946 8 1,531 5 44,483 216

2 5 2 3 4 6 3 10 11 2 5 6 2 3 6 7 7 1 2 14 11 8 12 10 142

13 18 16 7 13 15 15 19 19 67 35 23 31 43 30 54 56 68 52 60 70 68 82 72 946

Agri Edu Environ Health culture Labor cation ment No. No. No. No. No. 11 15 0 4 9 7 9 7 7 7 15 7 21 10 14 14 8 5 7 7 9 4 18 5 220

14 25 14 15 15 20 18 23 40 35 21 15 29 17 31 28 25 28 37 38 38 25 46 41 638

0 0 0 0 0 0 0 0 0 0 0 0 1 0 2 7 12 12 15 14 15 14 15 27 134

4 15 7 4 4 14 9 5 5 4 2 4 3 4 5 4 6 5 3 4 8 3 6 8 136

Trans Social Energy portation Law welfare No. No. No. No. 3 6 5 4 9 10 11 10 10 8 11 7 4 6 9 5 7 13 11 19 13 9 17 18 225

285 188 260 170 166 168 218 229 205 162 179 176 150 195 214 173 207 207 239 241 263 200 215 165 4,875

Banking & Foreign finance trade No. No. 29 15 36 36 19 24 30 31 28 41 57 119 127 117 118 121 111 93 73 114 86 103 87 75 1,690

Inter national affairs No. 26 24 20 21 37 40 40 33 32 49 83 87 75 73 98 76 105 67 68 102 136 112 116 131 1,651

1,946 1,879 2,292 2,119 2,130 2,020 2,118 2,125 2,177 2,186 2,197 3,808 3,288 3,553 3,623 3,639 3,594 3,574 3,189 3,126 3,082 2,934 2,929 2,381 65,909

Gov operation Total No. No.

36 T. K€onig et al.


37

References Borghetto E, Franchino F, Giannetti D (2006) Complying with the transposition deadlines of EU directives. Evidence from Italy. Rivista Italiana di Politiche Pubbliche 2(1):7–38 Bursens P (2002) Why Denmark and Belgium have different implementation records: on transposition laggards and leaders in the EU. Scand Polit Stud 25(2):173–195 Finke D, K€onig T, Proksch S, Tsebelis G (2012) Reforming the European Union: realizing the impossible. Princeton University Press, Princeton Franchino F, Hoyland B (2009) Legislative involvement in parliamentary systems: opportunities, conflict, and institutional constraints. Am Polit Sci Rev 103(4):607–620 K€onig T, Br€auninger T (2004) Accession and reform of the European Union. A game-theoretical analysis of eastern enlargement and the constitutional reform. Eur Union Polit 5(4):419–439 K€onig T, M€ader L (2007) B€ urokratisierung oder Politisierung? Eine Untersuchung der Umsetzungseffekte von Europ€aischen Richtlinien in den Mitgliedstaaten der Europ€aischen Union im Zeitraum von 1985–2003. In: Deutsches Forschungsinstitut f€ur €offentliche Verwaltung of Speyerer Forschungsberichte. Deutsches Forschungsinstitut f€ur €offentliche Verwaltung, Speyer K€ onig T, Junge D (2009) Why don’t veto players use their power? Eur Union Polit 10(4):507–534 K€ onig T, Luetgert B (2009) Troubles with transposition? Explaining trends in member-state notification and the delayed transposition of EU directives. Br J Polit Sci 39(1):163–194 K€onig T, Luetgert B, Dannwolf T (2006) Quantifying European legislative research: using CELEX and PreLex in EU legislative studies. Eur Union Polit 7(4):553–574 Luetgert B, Dannwolf T (2009) Mixing methods: an analysis of EU member state transposition patterns. Eur Union Polit 10(3):307–334 Mastenbroek E (2003) Surviving the deadline: the transposition of EU directives in the Netherlands. Eur Union Polit 4(4):371–395 Schulz H, K€onig T (2000) Institutional reform and decision-making efficiency in the European Union. Am J Polit Sci 44(4):653–666 T€ oller AE (2008) Mythen und Methoden. Zur Messung der Europ€aisierung der Gesetzgebung des Deutschen Bundestages jenseits des 80-Prozent-Mythos. Zeitschrift f€ur Parlamentsfragen 1:3–17

Chapter 3

Measuring the “Europeanization” of Austrian Law-Making: Legal and Contextual Factors Marcelo Jenny and Wolfgang C. M€ uller

Introduction In this chapter we subject Austrian legislation to two different approaches of measuring the extent of Europeanization. We begin by outlining the political and legal framework of legal Europeanization in Austria. Next, we address the Europeanization of lawmaking, that is, the impact of EU membership on the national laws passed immediately before and since Austria’s accession. We show the degree of Europeanization of Austrian legislation as identified by (1) manual coding and (2) by automatic coding with a keyword approach. We show how the keyword measure fares when interpreted as a substitute for the former. We then turn to the legislative process. Given that Austria has one of the most Euro-sceptical electorates we might expect that the fact of legislation being “Europeanized” would make a difference in this process. Note that the EU membership period was characterized by stiff party competition, including five elections in 15 years (1995–2009), great levels of electoral volatility, the birth and death of political parties with very distinct opinions on the EU, and the change of the basic political orientation of government both in 2000 and in 2006.

What Legislation Can Tell Us About “Europeanization” Austrian EU membership was not uncontested, and the two-thirds majority in its favour in the 1994 referendum came as something of a surprise. Yet the “honeymoon” between Austrians and the EU was short and today Austria has one of the most Euro-sceptical electorates among the member states. Indeed, the European M. Jenny (*) • W.C. M€ uller University of Vienna, Vienna, Austria e-mail: [email protected]; [email protected] S. Brouard et al. (eds.), The Europeanization of Domestic Legislatures, Studies in Public Choice, DOI 10.1007/978-1-4614-1502-2_3, # Springer Science+Business Media, LLC 2012

39

40

M. Jenny and W.C. M€uller

integration dimension impacts on party politics. At the same time, the Austrian parliament has ensured that its position in the European decision-making process is stronger than that of any other parliament (Bergman 1997; Maurer and Wessels 2001). In practice, however, its direct impact has remained somewhat limited due to the fact that the government–opposition divide has dominated over the legislative–executive divide with the government majorities being able to maintain coherence (M€uller 2000, 2001; M€ uller et al. 2001; Bl€umel and Neuhold 2001; Hegeland and Neuhold 2002; Neisser 2002; Pollak and Slominiski 2003). Over the time period covered in this chapter, two types of coalitions held government office. ¨ ) and People’s Initially, a “grand coalition” government of the Social Democrats (SPO ¨ ¨ ¨ ) in 2000 Party (OVP), then a coalition of the OVP and Freedom Party (FPO ¨ ¨ ¨ (continued as an OVP-BZO cabinet after the FPO split in 2005), and finally a ¨ and O ¨ VP came to office at the beginning of 2007. coalition of the SPO ¨ ¨ engineered EU membership, the FPO ¨ opposed it and While the OVP and SPO has transformed itself into an increasingly Euro-sceptical party. Given parliament’s unwillingness to make much out of its considerable powers to steer EU policy and the solid pro-EU majority therein, there is not much genuine political incentive for the government to use secondary legislation and thereby bypass parliament. Conversely, ¨ and its 2005 the participation in government of Euro-sceptical parties (the FPO ¨ breakaway, the BZO – the Alliance for Austria’s Future) has provided the mainstream parties with an incentive to maintain the transposition of EU rules in the hands of the parliament rather than empowering individual cabinet ministers who may belong to Euro-sceptic parties. The background for this expectation is that neither the Chancellor nor the cabinet has the formal right to give orders to individual ministers, and although the Chancellor (and the minister’s party) can, in principle, exercise political pressure, this is not always feasible. For these reasons we would expect the parliament to play a significant role in the transposition of EU rules. Establishing the “Europeanization” of lawmaking hence will provide us with a valid indicator of Europeanization in the Austrian case.

The Austrian Legal System and Process With the exception of the budget, all types of draft legislation can be introduced in parliament by either chamber, the cabinet, or the people (i.e. 100,000 citizens supporting a People’s Initiative). In practice, government proposals and private members’ bills from (a minimum of five) Nationalrat MPs prevail. The government introduces its agenda to parliament mainly via government bills. Consequently, most Austrian laws originate from government bills. Yet, the government may use private member bills (sponsored by MPs of the government parties) as a “fast track” alternative to government bills. In contrast to the latter private member bills do not require going through the established consultation procedure (with the L€ander, interest groups and other stakeholders) in the pre-parliamentary stage. Consensusseeking of the government is another reason why a considerable share of laws is

3 Measuring the “Europeanization” of Austrian Law-Making. . .

41

based on private member bills. Then, typically, a policy compromise forged with one or several opposition parties is introduced to parliament as a private member bill, rather than as an amendment to a government bill. The resulting private member bill is signed by MPs from all parties involved in the compromise. Some issues, for instance a reform of the chamber’s rules of procedure, are as a convention introduced as a private member bill. Committee bills constitute a quick “correction mechanism” for the government. Deliberations and political negotiations at the committee stage of a government bill on a complex topic may make out that additional changes to the legal order (mostly touching only marginally upon the government bill’s content) are required. These changes then are the rationale of the committee bill. The audit office submits a yearly statement of account on the execution of the national budget in form of a bill. Bills emanating from the second chamber and bills based on people’s initiatives complete the available types of bills. Second chamber bills reflect regional policy wishes that are unable to attain national support. People’s initiatives that have attained 100,000 signatures have to be deliberated in parliament, yet typically do not have much chance of getting passed into law (M€uller 1998, 1999). Any bill introduced in the Nationalrat is either passed as a law, turned down in a committee or plenary vote, or dies automatically at the end of the legislative period. Note, however, that bills that have died can quickly be resurrected in the next period simply by re-introducing them to parliament. Of course, this makes most sense if the parliamentary majority is interested in passing them. Opposition bills often die quietly in committee. To pass, ordinary legislation requires a quorum of one third of the MPs and a majority of the votes cast (50% + 1). A referendum on a law is held before it comes into force if the Nationalrat so decides (Art. 43), which has occurred only once (a referendum on the use of nuclear energy was held in 1978) (M€uller 1998). The process of budget making differs from normal law making in that it requires the government to submit a proposal at least 10 weeks before the end of the budget year. MPs may propose a budget only if the cabinet fails to do so (Art. 51). In order to be enacted, constitutional amendments require a quorum of 50% of the MPs and the support of a two-thirds majority of the votes cast. The same applies to the Nationalrat’s rules of procedure (Art. 30) and, since 1962, to school legislation (Art. 14 and 14a), which do not have constitutional status. Constitutional amendments are subject to a referendum if so demanded by one third of the MPs in either of the two chambers (Art. 43). This has, however, never occurred. In contrast, a referendum is obligatory for a “total revision” of the Constitution (Gesamt€ anderung) (Art. 43). This has happened only once. In 1994 a referendum was held on the constitutional amendments required for Austria’s accession to the European Union. Although Austria has a two-chamber system, which reflects its federal constitution, it is a very asymmetrical one (Kathrein 1986; Sch€affer 1999; Fallend 2000). The upper chamber, the Bundesrat, represents the L€ander. Its members are elected by the Land diets. The representation system in the Bundesrat takes into account the size of each Land’s population and party strength. With regard to ordinary

42


legislation passed by the Nationalrat, the Bundesrat can issue only a suspensory veto. The Nationalrat can override it with a quorum of 50% of the MPs and a majority of votes cast. By vetoing legislation, the Bundesrat can delay it for, at most, 8 weeks. With regard to constitutional amendments, the Bundesrat is more powerful for two reasons. First, since 1984, changes in the distribution of competencies between the national level (Bund) and the L€ander become effective only if the Bundesrat accepts them with a quorum of 50% and a two-thirds majority (Art. 44). Second, as already mentioned, it can enforce a referendum on any constitutional amendment, if this is demanded by a third of its members. In its own right, however, the Bundesrat cannot block constitutional amendments that do not fall under Article 44. Moreover, there are important decisions that do not involve the Bundesrat at all. In particular, it does not participate in budget-making and other financial acts (Art. 42). The Nationalrat and the Bundesrat are politically largely “congruent” (Lijphart 1999: 207), in the sense that the same parties or coalitions held majorities in both chambers. This is true despite the fact that the representational systems are different enough to have produced different plurality parties in the two chambers (during 19.5 years in the period 1945–2000, including 11.4 years when two parties in the Bundesrat were of equal strength). From 1945 to 2000 the two chambers were politically “incongruent” only for 5.1 years. Nevertheless, the Bundesrat’s limited political relevance is much more a consequence of its lack of formal powers than a result of political congruence. In practice, political parties and non-constitutional bodies consisting of Land government representatives are much more important national channels of political influence for the L€ander than is the Bundesrat (Luther 1986, 1997; Weber 1992; Fallend 2006). Constitutional and ordinary laws do not exhaust the universe of universally binding rules. At the lowest level of such rules in Austria is the government decree (Verordnung). Such decrees are issued by individual ministers or, in rare cases, by the cabinet. Some of them require the consent of Parliament’s main committee. According to the Constitution (Art. 18), the content of a government decree must, as a rule, be determined already by law. However, the decree may reduce the degrees of freedom contained in the law. It is also possible to introduce new rules (which add to those already contained in the law) by decree, however, only if this is specifically authorized by constitutional law (Antoniolli and Koja 1986: 141–164).

Federalism Austria is a federal state, comprising nine L€ander. This chapter is concerned exclusively with rule-making at the federal level. Yet, federalism should have an impact on our object of study. Everything else being equal, federal countries should have fewer rules at the federal level than unitary states and fewer EU rules should affect the federation’s jurisdiction. Provided the tasks delegated to the federation are those that can be better served by centralization, we should also expect the federal level to be more affected by Europeanization than the state (Land) level.


43

Delegating the tasks of the federation to the EU would only equate to carrying the economy-of-scale idea underlying centralization one step further. Note, however, that the optimal level of centralization may not always be the highest one. Moreover, concern for national sovereignty should weigh more heavily than concern for regional autonomy. This would suggest that member states should be more ready to transfer sub-national competencies than those of the central government. Yet, what is under central or state jurisdiction differs between member states and shifting power to the EU level is a complex game involving many actors. Notwithstanding these caveats, we expect the federal level to be more affected by legal Europeanization than the state level. The Austrian Constitution has reserved the power to decide on all matters not explicitly vested in the federation (Bund) for the L€ander. Nevertheless, their jurisdiction is extremely limited. The legislative power of the L€ander is unconstrained with regard to area planning and related issues, tourism, nature protection, agriculture and forestry, hunting and fishing, sports, youth protection, and preschool education. With regard to domains that include public welfare, hospitals, land reform, and electricity production and supply, the L€ander have the power to fill in details on the basis of national framework legislation (Fallend 2006: 1029). The remainder falls under the exclusive jurisdiction of the federation. As the EU has some competencies that fall under the jurisdiction of the L€ander domestically, Europeanization of legislation partly affects Land legislation. Yet, given the overall modest nature of Land jurisdictions, this does not have a major impact on our results. Indeed, the few empirical studies returned an average of about seven EUrelated Land laws per year in the membership period (Bussj€ager and Larch 2004; Jenny and M€uller 2010).

Legal Tradition Austria is a civil law country: legislation is the primary source of law and courts decide cases by identifying the general principles underlying the specific case (rather than drawing on preceding cases, as in the case law tradition). Civil law countries, however, do not form a homogeneous group but fall into three distinct categories: the French, German, and Scandinavian traditions (Merryman 1969; Hausmaninger 2003). Austria belongs to the German tradition and indeed has contributed much to the legal positivism prevalent with the writings and political impact of Hans Kelsen, the main author of its 1920 constitution (Kelsen 1997). Article 18 of the Constitution requires that all acts of the public administration be based on law. In simple terms, the legality principle of Article 18 means that all relevant contents of regulations need to take the form of laws. The addressee of legal norms must be able to learn everything that is important to their position under the law from parliamentary legislation. Likewise, the law courts must be able to check administrative acts against the law (Antoniolli and Koja 1986: 215–219, 141–164; Adamovich et al. 1998: 114). This leaves little room for delegated

44


legislation for the purpose of introducing new norms. The major exceptions to this rule are specific empowerments of the administration by constitutional law (Antoniolli and Koja 1986: 153). However, enacting constitutional law requires a two-thirds majority in parliament and hence depends on building broad political consensus. While other civil law countries would refer to the same principles, nowhere do they seem to have been taken as literally as in the Austro-German tradition. This may be largely due to the fact that constitutional review in its European variety was the invention of the Austrian Hans Kelsen. In any case, traditionally, the Austrian Constitutional Court has enforced Article 18 rigorously. Over the post-war period, the Court’s rulings and the training of law students who fill the ranks of the bureaucracy in strict legal positivism have certainly helped to largely uphold this intention of the Constitution. While the above remains largely true, in recent years the Constitutional Court has become slightly more permissive with regard to the interpretation of Article 18 (Michalitsch 1989). It has accepted legislation that contains “final” goals to be achieved by administrative action rather than detailed prescription of administrative action. However, such rulings indicate a mere chance but no guarantee that such legislation will pass the court’s test. Indeed, constitutional lawyers agree that it is hard to predict the outcome of such court cases. The Constitutional Convention, aimed at a fundamental overhaul of the Austrian constitution and held between 2003 and 2005, made Article 18 a prominent agenda item. The government’s proposal was leaving the decision to parliament whether or not the laws themselves would incorporate all relevant details or whether the administration would be empowered to fill in substance by issuing decrees. The transposition of extremely detailed EU rules figured prominently in making the case for a greater amount of delegation to the executive. Nevertheless, the opposition considered this proposal to be a carte blanche for government by decree and consequently rejected it. This proposal would, in fact, have left it up to the then ¨ VP, whether to transpose by means of major government party, the pro-EU O delegated legislation or detailed parliamentary legislation (in a pro-EU parliament). ¨ VP probably would have opted for government transpositions with one of its The O ministers in charge and for parliamentary legislation in the case of legislation falling in the jurisdiction of one of the ministers from its Euro-sceptic coalition partner. The Constitutional Convention was also concerned with the government proposal of exempting at least those directives that already had been scrutinized by parliament in the “upstream” process from the need for parliamentary legislation. Again, this idea was rejected (Constitutional Convention 2005: 78–79). Thus, legal positivism and conditional (rather than final) steering remain the dominant features of legislation, while the leeway for delegated legislation remains narrowly constrained and not always predictable when rules are put to a test by the Constitutional Court. Delegated legislation comes in the form of government decrees (Verordnungen). The relevant law spells out which is the body in charge of issuing decrees. Decree power mostly falls in the jurisdiction of individual government ministries, but the


45

requirement of two or more government departments having to agree occurs relatively frequently. Occasionally, the entire cabinet is the body entrusted with issuing government decrees. Nevertheless, there is no hierarchy between the government decrees issued by the cabinet and those of individual ministers. This mirrors the lack of hierarchy between the various forms of constitutional law: Constitutional law comprises the Constitution in the narrow sense (the BundesVerfassungsgesetz), separate constitutional laws, and constitutional clauses in ordinary legislation. All have the same status. However, constitutional principles enjoy a superior status. They can only be derived from constitutional law by interpretation. Over the decades, Article 18 has helped weave a dense web of detailed laws. This pattern of regulation in turn requires that a considerable part of new legislation must be devoted to the more or less regular “updating” of existing laws. This includes minute textual revisions that do not exhibit any policy change. Technically, legal change often takes the form of omnibus laws that list the revisions of a number of existing laws in response to some common cause. The features of Austria’s legal tradition outlined here suggest that much transposition will take the form of parliamentary legislation. The complexity of legislation certainly constitutes a challenge to proxying measures of Europeanization.

The Formal Transposition Process The extensive participation rights and special procedures that make the Austrian parliament formally the most powerful in EU affairs of all member states, relate to the upstream process of making rules in the EU (i.e. to the period before the EU bodies make their decision). In contrast, the downstream process – the transposition of EU rules into national legislation – has not led to formal institutional adaptation (except for intra-government centralization in 2003; see further discussion below). The legal requirements for the transposition of EU directives into Austrian legislation are largely identical to national regulations that would carry the same regulatory content. The major exception is the fact that the rule-making process cannot end with a non-decision (i.e. the decision to maintain the status quo) without violating EU obligations. As our review of the law-making rules has made clear, there are three possible ways to transpose EU directives: by constitutional laws, ordinary laws, and government decrees (Verordnungen). The type of legal instrument required is decided on a case-by-case basis. According to the Constitution, the choice of the legal instrument should be exactly the same for EU-induced regulation as for regulation exclusively triggered by domestic concerns. Hence a new directive may require the enactment of a new law. This is certainly the case if the subject matter addressed by the relevant European directive is at that time unregulated nationally. If there is already a specific law, several alternatives exist. First, the law (or laws plus further decree regulation) may already include the

46


regulatory content of the European directive. In such cases, no further domestic action is required (though the relevant laws and decrees need to be notified to the European Commission and a technical reference to the EU directive needs to be incorporated in the already existing domestic legal acts). Second, if the law or even the Constitution contains regulations that conflict with those of the EU directive, amendments of the laws and/or the Constitution are required. Third, if a law exists that neither conflicts with, nor exhausts the relevant EU directive regulation by decree may be sufficient for transposing the directive’s uncovered contents. For that purpose, it is required that the law provides for decree regulation and empowers the relevant minister. If such empowerment is not already contained in the law, it needs to be introduced in order to ensure that the executive can decide on the substantive issues. Wherever frequent technical changes in EU directives are anticipated (mostly in their appendices), the general strategy of the government is to empower the relevant minister so that future (technical) changes in the European rules can be transposed by the means of government decrees. The national division of tasks, as laid down in the Constitution and the Federal Ministries Law, establishes responsibilities for the implementation of EU directives. Experience has taught that being obliged to transpose newly enacted EU law is not sufficient to make individual ministries or L€ander act. Hence, the 2003 amendment to the Federal Ministries Law (introduced in the context of ¨ VP-FPO ¨ cabinet, Sch€ussel II), has introduced a new the formation of the second O coordination competence for the Federal Chancellery. Based on this formal task, the Chancellery now takes an active part in establishing the domestic responsibilities for transposition and for monitoring that process. Austria has been a full EU member since 1995. Yet, Europeanization of legislation does not begin with formal membership. Indeed, formal membership requires that most adaptations to the acquis communautaire have already been made. We therefore begin our empirical enquiry of EU effects in 1992. This was the year when the EEA Treaty was ratified and large-scale adaptation to EU norms began at full steam. Note that these adaptations were made under special rules that were in force for the period when Austria participated in the EEA but was not yet a full EU member. The EEA Treaty was signed in May 1992 and ratified by the Austrian Parliament in September 1992. EEA accession had originally been planned for January 1993, but did not occur until 1994. Membership in the EEA required not only the ratification of the EEA Treaty but also the transposition of the relevant body of existing EU law (i.e. the complete first pillar of EU legislation dealing with the “four freedoms” – the free movement of goods, persons, services, and capital). According to an estimate by the head of the Federal Chancellery’s Constitutional Service department, about 60% of secondary EU law had to be implemented at that stage (Okresek 1998). Generally, national laws were seen as the appropriate means for the transposition of EU directives. Nevertheless, the same constitutional law (Bundesgesetzblatt 115/1993) that subscribed to the principle of using parliamentary legislation opened a window for the use of delegated legislation. Provided that the newly created EEA Joint Committee had adopted EU directives and that these directives were sufficiently detailed (hence matching what was expected from a


47

national law), the federal and Land governments were empowered to transpose these rules (Hummer 1994). Thus, in the EEA period before full membership, Austria had more permissive rules for transposition than during the membership period itself.

Measuring Europeanization by the Study of Lawmaking A growing literature provides some overall assessments on policy-making (e.g. Falkner and M€ uller 1998; Falkner 2000, 2006), the national coordination of taking positions in EU bodies (M€ uller 2000, 2001, 2002), parliamentary scrutiny of EU affairs (e.g. Bl€ umel and Neuhold 2001; M€uller et al. 2001; Pollak and Slominiski 2003), and specific policy consequences for various sectors. Notwithstanding the importance of these contributions, there is no natural metric for their integration that provides us with a comprehensive account of Austria’s Europeanization. Hence, overall assessments of the EU’s impact on Austria often take the Delors’ estimate as their point of departure. Hearsay, however, has tended to inflate the expectations. While Delors was careful to limit his claim to economic legislation (with the possible extension to fiscal and social legislation), the popular reading is just “legislation”. Interestingly, this is also reflected in the perception of Austrian political practitioners. According to the long-serving chairman of the finance committee of the Austrian parliament Ewald Nowotny (1998), about 70% of all laws passed by the Austrian Parliament are either directly or indirectly the implementation of or adaptation to EU directives (see also Wohnout 1999). Likewise, in personal interviews conducted in 1997–1998, several other Austrian MPs, in their responses to open-ended questions, have estimated shares of up to 70% (M€uller et al. 2001: 479). MPs interviewed in 2005 provided similar estimates. However, not all politicians share such extensive interpretations of Europeanization. The then president of the Austrian Parliament, Heinz Fischer, in an interview with Austrian television (“Hohes Haus” in 2002), explicitly rejected these estimates. Without providing precise figures, his own estimate was a share of EU-induced legislation of well below 50%. As the other chapters in this volume show, such “guesswork”, educated as it may be, is by no means confined to Austria. And it cannot substitute for empirical research. Thus, we really know very little about the extent to which the EU impacts the rules governing its member states. This is a highly relevant political question that, in turn, relates to issues such as the current degree of policy coordination, the potential for further integration, the popular response to “Europe”, and the relevant party political strategies. Although it is a simple question, providing answers requires both methodological rigour and painstaking empirical research. The different estimates made by the insiders referred to above need not necessarily be wrong. Indeed, they may simply reflect the time of making these estimates, the ups and downs in the regulatory output of the European Union, and the areas of special expertise of practitioners. It is well known that the EU produced fewer directives for some years after the completion of the Single Market programme (Pollack 2000: 529–537; Dehousse 2002) and that the number of directives

48


increased again in the 1990s (see Fig. 3.1). Moreover, no attempt has been made to properly operationalize the term “EU-induced”. Is a domestic law EU-induced only when it is exclusively devoted to the implementation of EU directives? Or, conversely, is a law EU-induced if it has any function of adaptation to EU rules? Obviously, such definitional issues can account for great variation in the number of EU-induced laws at the national level.

Measuring Legal Europeanization In this chapter we employ two different measurement approaches for identifying EU-related legal norms. The first measure that establishes the existence of a relation of domestic legislation to EU law is based on traditional, “manual” extracting of information from a set of different sources that indicate such relationships on a oneto-one basis. The second measure is based on automatic search of the bills’ texts and accompanying parliamentary documents with a set of EU-related keywords. We then take search “hits” as evidence that a bill is related to EU law. We report the search results for the subset of successful bills (i.e. those that turned into laws). Thus we will be able to compare the results of the two methods applied to federal laws.

Manual Coding The first measurement approach collects information from several distinct sources. The combined evidence is used to code each law or decree as EU-related or not. We have drawn on the same multi-source measurement approach used in a previous publication (Jenny and M€ uller 2010). For each of our EU-related national norms one or more of the following characteristics need to apply in order to code a national law as EU-related: A specific reference to EU rules in the introductory or final clause of the law A reference to the Eur-Lex (formerly CELEX) number in the head information of the law when published in the official law gazette A reference to the need to conform to EU rules in the official materials accompanying government bills when they are introduced to parliament (as suggested by Page 1998: 804–805) Information extracted from the parliamentary debates (particularly relevant for identifying relations between national laws and EU primary law) National authorities’ data indicating that the respective law implements EU rules and has been reported to the Commission The transposition data from the Eur-Lex database (Sector 7) provided by the EU Commission


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Table 3.1 German keywords and abbreviations used as search terms EURO keywords (German) Abbreviation EU keywords (English) Europ€aische/r/n Union EU European Union Europ€aische/r/n Gemeinschaft EG European Community Europ€aische/r/n Wirtschaftsgemeinschaft EWG European Economic Community Einheitliche/r/n Markt Common Market Binnenmarkt Single Market Europ€aische/r/n Markt European Market Europ€aische/r/n Gemeinschaft f€ ur Kohle und EGKS European Coal and Steel Stahl/Montanunion Community Europ€aische/r/n Atomgemeinschaft EURATOM/ European Atomic Energy EAG Community Europ€aische/r/n Wirtschafts und EWWU/ European monetary Union W€ahrungsunion/Europ€aische/r/n EWU W€ahrungsunion Europ€aische/r/n W€ahrungsystem EWS European monetary system Richtlinie(n) Directive Gemeinschaftsrecht/s Community law Europarecht/s European law

For various reasons, no single source is perfect. Nor are the individual sources equally reliable for each period. The two last-mentioned data sources, for example, should correspond like flipsides of a coin as only the keeper of the records differs. However, national records were quite unsystematic in the early years of membership. Reporting on implementation measures was largely left to the individual government department. This allowed different ministries to adopt different strategies, leading to inconsistencies in the reporting. This, in turn, caused some problems with regard to Austria’s early transposition record. In 2003, a change to the jurisdictions of the various government departments put the Federal Chancellery in charge of coordinating the implementation of EU directives and of the reporting of the implementation measures (Bundesgesetzblatt 17/2003).

Automatic Computer-Assisted Coding The second measurement approach uses a computer-based search of the digital texts of the bills and their accompanying material. The digital texts are available through the national parliament’s web site from the 20th legislative period (January 1996) onwards. The search terms were the list of keywords provided by the project group but we added some word flexions to them (see Table 3.1).

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Results Let us first take a look at our universe of legislation. We begin by plotting the annual production of federal laws (as published in the official law gazette, the Bundesgesetzblatt) from 1986 to 2007 (Fig. 3.1). During that period, a total of 3,001 laws were published. Of them, 68% originated from government bills, 24% from private member bills, and 7% from committee bills. The annual audit office bills amount to about 1% of the laws.

Europeanization of Laws Figure 3.2 provides a long-term view on rule production at the national and EU levels from 1945 to 2007. It plots the annual law production and the number of European directives passed per year since the Treaty of Rome. Although there

Fig. 3.1 Laws by type of bill (1986–2007)

Fig. 3.2 National and European law production (1945–2007)


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Fig. 3.3 Laws passed and Europeanized (1992–2007)

are ups and downs, overall law production at the European level by way of EU directives is still growing. In contrast, national law production looks rather stable. The federal laws’ all-time high of 191 (in 1993) fell in the busy period of preparations for EU membership. The number of national laws passed per year has declined slightly over the EU membership period (since 1995). Yet, this decline means a return to the national long-term level of output after the extraordinary legislative activity in the years immediately before and after EU accession rather than resulting from the transfer of national policy competences to the European level. There is a second domestic reason for the diminished legislative output: three coalition governments in office in the membership period broke down only about a year in the legislative term. They triggered early elections that were followed by complicated coalition negotiations. We know that legislative output tends to be lower under such conditions. Figure 3.3 provides the share of national laws related to EU laws from the 1990s onwards. The highest share of EU-related laws was 44.5% in 1993. This is far below the 80% level generally associated with Delors and the related estimates of most politicians in Austria. Yet, 1993 was an extraordinary year – the year with the most legislative acts in modern Austrian history. Over the entire period, every fourth national law is related to EU law. The mean share of EU-related federal laws is 26.4% for the period 1992–2007, and 24.5% for the membership years 1995–2007.

52 Table 3.2 Manual and automatic coding of EUrelated laws compared (1996–2008)


Type of bill Manual coding Automatic coding Government bills 31 79 Private members’ bills 12 30 Committee bills 5 23 All laws 25 63 Note: The time period covered is 15th January, 1996 to 27th October, 2008

Europeanization of Law-Making Measured by Keyword Search Next we measure the extent of Europeanization of successful legislative proposals by the computer-based keyword search introduced above. For that purpose we draw on the texts of all bills and the materials supplementing them. There is one exception: We exclude audit office bills that have no policy content and are completely “retrospective”. Our electronically readable text collection covers 99.7% of all bills (not counting audit office bills) in the four legislative periods between 1996 and 2008. Less than a dozen bills were excluded, due to faulty hyperlinks on the parliament’s web site or unreadable files. The amount of supplementary materials provided by the bill’s initiators varies considerably by the type of bill. Government bills are usually the best-documented ones as they have to be accompanied by introductory comments from the initiating ministry. The “explicating remarks” that accompany government bills include a section on the bill’s relation to EU law. If a bill is entirely nationally induced, this section will either say so or state that the bill’s content conforms to EU law. Initial keyword searches repeatedly turned up bills that on closer inspection were not EUrelated in any substantive way. To get rid of these false “hits”, we deleted this text section from each bill’s text base before running keyword searches. The initial set of keywords employed in our search is common to all chapters in the book (Table 3.1). “Directive(s)” turned out to be by far the most frequent keyword found in Austrian bills and their accompanying texts. Yet, its German translation (“Richtlinie”) means “guideline” and is a word also in frequent use outside the realm of EU law. It refers to political goals and to specific policy or administrative guidelines. Due to its nondiscriminating nature we excluded the keyword “directive(s)” from the search procedure. If any of the remaining “EU” keywords turned up at least once, a bill was coded as EU-related. The automatic, computer-assisted coding procedure returns an extremely high proportion of bills which apparently have a European link. Compared with manual coding the share of Europeanized laws is much higher. Table 3.2 presents the discrepancy between the two methods. Automatic coding identifies 63% of the Austrian laws as EU-related while manual coding gives a proportion of 25%. The largest difference is among laws


53

based on government bills (79–31%) but private member’s bills (30–12%) and committee bills (23–5%) also show significantly higher proportions of “Europeanization” when identified by automatic keyword search. Given the many indicators employed in the manual search we do not accept these results as answers to our substantive research question. Rather, they call for further examination. The two measurement approaches clearly differ in the sensitivity with which they pick up a linkage between a national law and Europe. The keyword search, at least as we have conducted it here – conforming to the common standards of our cross-national research cooperation – is hyper-sensitive. A closer inspection of a small sample of laws that have been identified in the automatic coding but not in the manual coding as being connected to “Europe” shows that there is indeed no connection to legal documents at the EU level. Rather these documents make reference to Europe as the wider context of regulation. Often legislative initiators use the European yardstick to claim necessity for their proposal (e.g. “Austria is falling behind”) or praise its merits by comparing it to the rules in force in other EU member states. There are two ways to proceed from here. One is to stick to the original aim of our enterprise: the study of legal Europeanization. Then we need to conclude that one single keyword hit with the above list of terms is not a good strategy to establish that kind of link. The logical next step would be the development of more robust measures of legal Europeanization via keywords. Such a research strategy could include using a larger minimum number of keywords that need to appear in the same document as a condition for classifying it as EU norms-related. Whether this research strategy can be developed into a robust measure, however, remains an open question. Methodologically, our research demonstrates that any such measure needs cross-validation with more conventional ways of identifying legal influences, at last for a subset of the universe of national laws. The other strategy would be to stick to the data generated by the keyword search and to make sense out of it in terms of interpretation. Clearly, “yardstick Europeanization”, as we have found it (see above), is an interesting phenomenon. Indeed, “Europeanization” has many faces (Mair 2004; Olsen 2002) and the keyword search seems to speak to many of them. We would not have expected so much “Europe” to have found its way into the law book and the documents accompanying the legislative process and 10 years earlier this may indeed have not been the case. Our keyword count thus may be valuable in its own right as an umbrella measure for all (or many) kinds of Europeanization that affect national politics and law making in particular. Yet, we are quick to add a caveat: It might be an interesting indicator for a limited time period only. Once “Europe” is so omnipresent that it finds its way into each of the documents covered here, the indicator will be of limited value only. In contrast, the hard indicator measuring (rather than assuming) a legal connection between domestic laws and European norms will remain in more narrow confines and hence continue to show a sharper picture that allows distinguishing facts from political rhetoric.

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Europeanization of Laws by Policy Area This section describes the extent of legal Europeanization by policy area. We use the policy area classification provided by the Comparative Agendas Project and our manual coding procedure for identifying EU-related national laws. Table 3.3 gives the number of laws assigned to the 20 different policy areas that make up this scheme. As expected, there is a very uneven distribution of laws by policy area. The by far largest number of laws falls into the policy area “domestic macroeconomy”. The policy field accounts for almost one quarter of the laws passed in the 15 years between 1992 and 2007. The second and third largest policy areas in terms of legislative output are domestic affairs (“law, crime and family issues”) (10.9%) and public administration (8.3%). None of them ranks particularly high with regard to Europeanization. “Domestic macroeconomy” has a share of 17.6% Europeanized laws, “law, crime and family issues” a share of 26.3%, and “public administration” 25.8%. Energy stands out as the most Europeanized policy field with a whopping 78.6% of national laws exhibiting a link to EU law. At the same time, energy is one

Table 3.3 Europeanization laws by policy area (1992–2007) Federal laws Europeanized % Europeanized % of all laws Policy area passed federal laws federal laws passed Energy 14 11 78.6 0.6 Environment 67 32 47.8 3.0 Transport 122 56 45.9 5.5 Public lands and water 11 5 45.5 0.5 Agriculture 66 29 43.9 3.0 Housing 41 17 41.5 1.8 Civil rights and liberties 5 2 40.0 0.2 Health 139 55 39.6 6.2 Foreign policy 120 40 33.3 5.4 Labour, immigration 130 38 29.2 5.8 Law, crime, family issues 243 64 26.3 10.9 Public administration 186 48 25.8 8.3 Banking and finance 85 21 24.7 3.8 Science, technology and 114 28 24.6 5.1 communication Foreign trade 13 3 23.1 0.6 Domestic macroeconomy 541 95 17.6 24.2 Education 169 28 16.6 7.6 Culture and entertainment 19 2 10.5 0.8 Social welfare 124 8 6.5 5.5 Defence 27 0 – 1.2 Total 2,236 582 26.0 100 Note: Laws were classified into Comparative Agendas Project scheme using the individual bill’s parliamentary committee assignment and its official keywords. A very small number of bills could not be classified


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Fig. 3.4 Laws passed and Europeanized by policy area (1992–2007)

of the policy fields with least output in terms of legislation. On average, just one law is passed per year. Seven policy areas have shares of Europeanized laws ranging between 40 and almost 50% (see Fig. 3.4). Among these health and transport are intermediate-sized policy areas in terms of national legislative output. Their share of total legislative output is 6.2 and 5.5%, respectively. Environment and agriculture are prominent policy fields that were transferred more or less from national to European Union jurisdiction long ago. About every second national law passed in Austria from 1992 to 2007 in these two policy fields had a European link. However, environment and agriculture accounted for only 3% of national law production each. The least Europeanized policy areas in Austria were defence (0%) – not even containing a single Europeanized law – social welfare (6.5%), and culture and entertainment (10.5%). Recall that overall the 20 large and small policy fields with their varying shares of Europeanized laws contain a share of slightly more than one quarter of the Austrian national law production related to EU law.

Conclusion In this chapter we have outlined the political and legal context of Europeanization of legislation in Austria and described the formal transposition process. We then turned to quantifying the impact of the EU on national legislation by employing two

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different measurement approaches: manual coding based on multiple sources and automatic coding based on multiple keywords. The measurement approach using manual coding identifies about one quarter of the national law as Europeanized whereas the corresponding figure for the automatic coding in its internationally coordinated form is 63%. The latter number, clearly, is inflated. Yet, it is based on an internationally agreed list of keywords that prima facie seem to make sense. To be sure, no keyword search will ever produce perfect results. To pass the test of usefulness a keyword-based indicator needs to satisfy two criteria: (1) it has to produce a number of cases reasonably similar to that obtained by more accurate (but also more expensive and time-consuming) hand-coding, (2) there must be a reasonable amount of matching of individual cases identified by the two methods. Obviously, except the most extreme distributions, meeting the first criterion is not a sufficient guarantee that the search has produced substantively meaningful results (i.e. a sufficient matching of individual cases). Yet, not meeting the first criterion is sufficient to invalidate the results of a keyword search. This is what happened in the Austrian case. Obviously “contextual” Europeanization has become an important feature of the legislative process that overlays legal Europeanization. We nevertheless consider our keyword search a valuable exercise, independent from the methodological lesson that it has told. In our understanding it results in a more general indicator of contextual Europeanization that can be meaningfully interpreted and compared to the indicator of legal Europeanization that we have cumbersomely generated from legislative process data. Unfortunately, keyword search is unlikely to do the latter job for us in the near future with a sufficient degree of accuracy. The history of science abounds of important discoveries that were not intended originally. While making such a claim would be much too strong for “contextual” Europeanization, we nevertheless consider the resulting indicator a nice by-product of our methods-driven exercise.

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Nowotny E (September 1998) Europa und wir. Wiener Journal:10–11 Okresek W (1998) Schwierigkeiten bei der Anpassung der €osterreichischen Rechtsordnung an das Rechtssystem der EU. Lecture given at the 1998 convention of the European Community Studies Association Austria. Wirtschaftsuniversit€at Wien, Vienna Olsen JP (2002) Many faces of Europeanization. J Common Market Stud 40(5):921–952 Page EC (1998) The impact of European legislation on British public policy-making: a research note. Publ Admin 76(4):803–809 Pollack M (2000) The end of creeping competence? EU policy-making since Maastricht. J Common Market Stud 38(3):519–538 Pollak J, Slominiski P (2003) Influencing EU politics? The case of the Austrian Parliament. J Common Market Stud 41(4):707–729 Sch€affer H (1999) The Austrian Bundesrat. In: Karpen U (ed) Role and function of the second chamber. Nomos, Baden-Baden, pp 25–55 Weber K (1992) Macht in Schatten? (Landeshauptm€anner-, Landesamtsdirektoren- and andere ¨ sterr Z Polit 21(4): 405–418 Landesamtsreferentenkonferenzen). O Wohnout H (1999) Die Mitwirkungsrechte des € osterreichischen Parlaments an der Willensbildung in der EU. Die Union 1:69–80

Chapter 4

The Minor Impact of EU on Legislation in Finland Matti Wiberg and Tapio Raunio

Introduction The impact of European integration and the European Union (EU) on national parliaments first received serious political and academic attention in the mid-1990s. Both members of parliament (MPs) themselves and scholars became more interested in whether and how national parliaments controlled their governments in European matters, particularly as a broader range of policies and national laws were overtaken by EU laws. The first decade of the new millennium saw the completion of several comparative research projects on the role of national parliaments in the EU (Wiberg 1997; Maurer and Wessels 2001; Auel and Benz 2005; Holzhacker and Albæk 2007; O’Brennan and Raunio 2007; Tans et al. 2007; Barrett 2008). But despite this proliferation of research, we lack empirical studies on the extent to which national parliaments have in fact been Europeanised, i.e., how much and in what ways the EU impacts national parliaments. And more specifically, we lack agreement on how to measure or operationalise the Europeanisation of national parliaments. The unicameral parliament of Finland, the Eduskunta, had good reasons to be concerned about the impact of EU on its policy influence. Recent constitutional reforms have quite radically altered the Finnish political system, with the government and the prime minister emerging from the shadow of the president as the leaders of the political process (Raunio and Wiberg 2003, 2008). The new constitution, which entered into force in 2000, completed a period of far-reaching constitutional change

M. Wiberg (*) University of Turku, Turku, Finland e-mail: [email protected] T. Raunio University of Tampere, Tampere, Finland e-mail: [email protected] S. Brouard et al. (eds.), The Europeanization of Domestic Legislatures, Studies in Public Choice, DOI 10.1007/978-1-4614-1502-2_4, # Springer Science+Business Media, LLC 2012

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M. Wiberg and T. Raunio

that curtailed presidential powers and brought the Finnish political system closer to a standard version of parliamentary democracy. While the executive branch still dominates national politics, at least now that executive is accountable to the Eduskunta. The Eduskunta is thus constitutionally stronger than ever before. Hence membership in the EU presented a challenge for the Eduskunta, as it feared seeing its position weakened as a result of the political dynamics of the EU policy process. While European integration is undoubtedly a major external constraint on national political systems, EU membership has arguably contributed to the strengthening of parliamentary democracy in Finland by consolidating the political leadership of the government and the prime minister. Most notably, with the exception of Treaty amendments, EU matters belong almost exclusively to the jurisdiction of the cabinet. The government dictates national EU policy, with the president intervening mainly when questions related to Finland’s foreign policy are on the agenda. The prime minister is the primary representative of Finland in the EU, but the president also participated in most European Council meetings. However, since the Lisbon Treaty, it appears that the prime minister will be the only representative of Finland in the European Council, thus ending the era of “dual plates” in the summits (Raunio 2008a). Hence, the constitutional reforms were an essential prerequisite for establishing parliamentary accountability in EU affairs. Examining the impact of EU membership on the Eduskunta itself, we note that while the Eduskunta has lost policy-making competencies to the European level, it has subjected the government to relatively tight scrutiny in EU matters. Comparative studies indicate that the Eduskunta has one of the strongest scrutiny systems of the national parliaments among EU countries (Raunio 2005b). The scrutiny model of the Eduskunta has four main strengths: the position of the parliament is regulated in the constitution, the Eduskunta gets involved relatively early in the processing of EU legislation, the parliament enjoys unlimited access to information from the government, and the responsibility for monitoring European matters is delegated downwards to specialised committees (J€a€askinen 2000). The Grand Committee is responsible for coordinating the Eduskunta’s positions on EU issues, while the Foreign Affairs Committee is the main body dealing with the foreign and security policy matters handled at the European level. The minister appears in the Grand Committee in person before and, when required, after the Council meeting. The standing committees are closely involved in the scrutiny of EU matters from an early stage in the policy process, and the final position of the Grand Committee is based on guidelines from the standing committees. The constitutionally regulated access to information from the government reduces informational asymmetries in EU affairs. The rules encourage the government to provide the Eduskunta with information of its own accord, without any specific requests by MPs. Moreover, the active scrutiny of European legislation has improved the overall dialogue between the government and the Eduskunta. The regular appearance of ministers before the Grand Committee has led to improved policy coordination within the cabinet and between the ministries, and has forced ministers to study the issues more thoroughly than might otherwise be the case. An often-mentioned feature of the EU policy process is bureaucratisation,

4 The Minor Impact of EU on Legislation in Finland

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the shift of power from directly elected office holders to civil servants. In Finland, civil servants perform a central role at all stages of the process, from the initial formulation of the national position in the ministries in Helsinki, to negotiations among the permanent representatives in Brussels. However, the autonomy of civil servants is at least partially counteracted by the active scrutiny of the Eduskunta in EU matters (Raunio 2007). In terms of the party system, European integration has caused divisions within most Finnish political parties. Despite the divisiveness of the 1994 EU membership referendum (in which 57% voted in favour of joining the Union; turnout was 74%), the shape of the party system has remained intact, with the same set of parties contesting elections as before integration entered the domestic political agenda. More difficult to measure, but arguably increasingly important, is the way in which European integration (and in general the opening of borders) has reshaped patterns of partisan contestation. While the left–right dimension continues to be the main cleavage in Finnish politics, Europe as a political issue has reinforced the role of the centre/periphery cleavage in political competition. Indeed, since the early 1990s the rural–urban/centre–periphery divide has become the second main cleavage in Finnish party politics, largely because the EU and globalisation issues have emerged on the political agenda (Nousiainen 2000, 265–268; Paloheimo 2005, 2008; Reunanen and Suhonen 2009). Parties that represent either peripheral areas or occupational groups that are more likely to suffer as a result of increased economic competition have thus faced serious internal divisions over integration. The office-seeking tendencies that dominate Finnish party politics have produced broad ideological consensus over Europe, with the inevitable consequence that parties are not representative of their voters on the EU dimension. Indeed, a broad partisan consensus has emerged for national European policy that can be characterised as flexible and constructive and has sought to consolidate Finland’s position in the inner core of the Union. Finland is the only Nordic country that belongs to the Economic and Monetary Union (EMU), and the single currency was adopted without much political contestation. Underlying this pro-integrationist stance is the conviction that a strong and efficient EU can best protect the rights and interests of smaller member states, as intergovernmental processes tend to favour larger member states (Raunio and Tiilikainen 2003). The commitment to integration that prevails among the elites is not shared to the same extent by the Finnish electorate. There is a notable incongruence between the citizens and the political parties. In fact, according to the European Election Study survey carried out in 2004, Finland had one of the lowest levels of party-voter congruence on integration matters, with only Great Britain, Hungary, and Luxembourg recording bigger differences (Mattila and Raunio 2006). Hence the EU has been a difficult issue for most political parties ever since European integration first entered the domestic political agenda in the early 1990s. Overall, Finnish parties have kept a fairly low profile in integration matters, and the rules of the national EU coordination system – based on building broad domestic consensus, including often between government and opposition parties in the Eduskunta and its Grand Committee – have contributed to the depoliticisation of European issues (Raunio 2005a, 2008b).

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This has applied particularly to major EU decisions, such as EMU membership in the late 1990s and Treaty reforms. Given that parties are internally divided over the EU, it was not surprising that the main parties showed little interest in subjecting the Constitutional Treaty or the Lisbon Treaty to a referendum. In this chapter, we start by discussing the theoretical and methodological challenges involved in measuring the effect of the EU on national parliaments, particularly regarding the Europeanization of law production. Our empirical analysis covers mainly Finland’s EU membership, from 1995 to 2009. The data set consists of all national legislation (N ¼ 8,719). We shall focus in particular upon the quantitative impact of EU on national legislation. We show that the actual share of EU-influenced laws, contrary to statements by prominent political and administrative figures in Finland, has been rather small. This finding is probably explained by the fact that the bulk of Finnish legislation concerns areas where the EU does not have legislative competencies.

The Impact of Europe on Domestic Laws Any meaningful study of how European integration impacts on domestic policymaking must start with a definition of Europeanization. After all, the selection of empirical indicators should be driven by the choice of the theoretical concept. In this chapter we are primarily interested in the “top-down” dimension of Europeanization and hence we stick to the original definition of Europeanisation by Ladrech (1994, 69), according to which Europeanization is “an incremental process reorienting the direction and shape of politics to the degree that [EU] political and economic dynamics become part of the organisational logic of national politics and policy-making”. This definition is useful as it contains the fundamental question we are interested in, the extent to which national law production is influenced by European integration. Before proceeding to examine how much the EU impacts Finnish domestic legislation, it is worth highlighting some common arguments and misperceptions related to the influence of Europe on national law-making and discussing some measurement problems related to our research question. The famous “80%” prediction made by the Commission President Jacques Delors in the late 1980s about the share of legislation that would flow from Brussels has proven to be overestimated. Previous research has shown this share to be much lower, even when including domestic laws that were in some way “inspired” by the EU. For example, T€oller (2008) demonstrates that while the share of EU-inspired legislation enacted by the German Bundestag has more than doubled since the mid-1980s, in the 15th election period (2002–2005) 39% of the laws were influenced by a “European impulse”. K€ onig and M€ader (2008) also show that the share of German legislation with an “EU impulse” has increased over time, with 24% of the laws enacted between 1976 and 2005 having such a European connection. According to Hegeland (2005) only 6% of the legislation adopted by the Swedish Riksdag


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between 1995 and 2004 contained a reference to an EU law. Johannesson (2005) in turn showed that between 1998 and 2003, 20% of Riksdag’s legislation was related to binding EU legislation, with an additional 10% in some way related to the Union. The most likely explanation for this relatively low share of EU-related domestic laws is that most of the legislation adopted by national parliaments deals with policy sectors where the EU has no formal competence to enact its own laws. One must also be aware of the measurement problems involved in attempting to conduct comparative research on the share of “EU-related” legislation (see T€oller 2007, 2008). First, the production of laws differs between EU member states, with some parliaments adopting considerably fewer laws than others. In some EU countries the adoption of legislation may be delegated more extensively to the government that issues decrees in place of laws processed by parliaments. Secondly, much of EU legislation consists of regulations that are directly binding and hence do not require parliamentary approval. But perhaps the most significant problem is measuring the indirect influence of European integration. Domestic legislation can be indirectly shaped or influenced by European integration, for example in the form of policy diffusion and peer pressure under the Open Method of Coordination (OMC) and other “soft law” coordination efforts (Duina and Raunio 2007). And apart from pressure and policy diffusion resulting from OMC and other forms of intergovernmental policy coordination, governments may import policies from other EU countries or follow the EU’s recommendations without this being explicitly acknowledged in the text of the initiative. This applies particularly to policy sectors – most notably foreign and defence policies – where the outputs are normally not laws but other types of decisions. Turning to the debate in Finland, both Europhiles and Eurosceptics share a common estimation of the massive legislative impact of the EU on the national legal orders of the member states. Quite commonly, as a matter of fact, on a routine basis, it is claimed and moreover believed, that the EU produces some 80% of new laws in the EU member states. Many relevant actors have their opinions on the quantitative impact of the EU on domestic law production, based on reliable and systematic empirical evidence – or, as it more often seems to be the case, on something other than empirical evidence. In the political debate many different estimates have been presented on how much the EU has influenced Finnish national legislation. Estimates vary widely from “more than 80%” (Stubb 2003) to “at least 65–70%” (Suominen 2004). “Brussels already decides half of Finnish legislation”, claimed Ville It€al€a, a Finnish member of the European Parliament (MEP), some years ago in a local newspaper (Turkulainen 28 September 2005). The Permanent Secretary of the Ministry of Justice Kirsti Rissanen claimed that “approximately one third of governmental proposals is linked either to the implementation of EU-obligations or international commitments” (Helsingin Sanomat 13 November 2006). The Finnish MEP Carl Haglund claimed in a radio interview on 7 August 2009 that “70% of our law production comes from the EU” (Sommarprat Radio Vega 7 August 2009). There are also those who insist that the Finnish parliament is not just a rubber stamp for EU legislation (J€a€askinen 2000).

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It is no exaggeration to claim that too many of those claiming some estimate have been far too sloppy in their arguments. What is obvious is that all seem to adhere to the formula “EU something impacts national something”, but both the “EU something” and the “national something” have been left unspecified. At least the following possibilities are possible both as a source of impact and as the object of impact: legal order (system), legal norms (collection of regulations), political system, political culture, operational procedure of decision making and policy diffusion. Ideally we should have a measure of how the EU’s legal order impacts the national legal order norm by norm at every step in the norm hierarchy. This is, unfortunately, not feasible as there is no universally accepted categorization of the legal order neither of the EU nor of the national political system. Another complication should also be addressed: are we really making claims of causality or mere correlation? It is not possible to establish with certainty whether the association between the EU and national law production is causal. After all, all co-variation is not causal in its nature. A further complication is that the EU does not work in isolation from national inputs – that is, laws of the EU are obviously often based on or strongly influenced by national positions and laws. One plausible operationalisation of the influence of the EU would consider whether there is a reference to some EU norm in the title or in the motivations for a bill. It should be noted that this selection criterion probably overestimates the EU’s influence on national legislation as the influence in question could cover only one paragraph or section of the bill in question. In the following analysis all national bills passed by the Eduskunta are classified into two categories: those influenced by the EU and those not influenced by the EU. Given that consecutive Treaty amendments enacted since the late 1980s have extended the policy reach of the EU, and in line with previous research discussed above, we hypothesise that the share of EU-related laws has increased over time. However, prior to Union accession in 1995, Finland had adapted her national legislation to the acquis communautaire. And as Finland joined the EU just after the completion of the EU’s law-intensive internal market, we expect this increase in the share of EU-related laws to be relatively small.

Empirical Analysis We turn first to the total amount of formal regulation in Finland. Since 1945, over 70,000 items have been published in the Statutory Book (S€ aa€d€ oskokoelma), comprising altogether over 174,000 pages of legal texts. These items are of five different types: Laws, Decrees, Decisions of the Council of State, Ministerial decisions and Other regulations. According to these figures Finland is one of the most industrious regulators in Europe (Fig. 4.1): the enactment of some 22,000 laws, 28,000 decrees, 8,700 Decisions of the Council of State, some 8,800 Ministerial decisions and over 3,100 other regulations (Figs. 4.1 and 4.2) has occurred in the post WWII period.


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Fig. 4.1 Items and pages in the Statutory Book by Calendar Year 1945–2009

Fig. 4.2 The number of laws (Lakeja), decrees (Asetuksia), decisions of the council of state (VNp€ aa€t€ oksi€ a), ministerial decisions (Minp€ aa€t€ oksi€ a) and other (Muu) regulations by Calendar Year 1945–2009

Let us now take a closer look at the number of laws. There are three peculiar aspects of Finnish law production that merit mentioning: almost all passed laws are initiated by the government, they are rarely voted upon, and they are typically short, mostly one paragraph modifications of existing laws. For the period 1945–2003, almost all successful bills were initiated by the government. Less than 2% of all bills were initiated by MPs. Law production is very consensual with very low levels

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Fig. 4.3 Number of enacted non-EU-impacted and EU-impacted laws 1995–2009. Sources: Wiberg (2004a, b, 2006) and own updated calculations

of conflict: only 10.4% of laws were voted upon on the floor. Finnish laws are typically very short: for the period 1945–2003 altogether, 39.5% of laws were modifications of one paragraph only. From January 1995 until the end of 2009 the Eduskunta passed 8,719 bills. Of these 8,614 (98.8%) were introduced by the government, only 102 bills (1.2%) were introduced by the individual MPs, three were introduced by the Speaker’s Council (puhemiesneuvosto) and one as a budget initiative (talousarvioaloite). Only 1,025 of these laws (Fig. 4.3) or 11.8% of bills enacted during Finnish EU membership have contained a reference to the EU. This borders on minimal proportions, not anywhere near Delors’ prediction. Although the share of EU-related laws remained around 10% until 2003, since 2004 over 15% of the laws approved by the Eduskunta have contained references to EU legislation (last year being an exception). The peak was in 2004 when 25% of the laws were related to the EU. It should be noted that our measure in fact overestimates the impact of the EU as it does cover not only direct references to EU laws in the strict legal sense, but also includes all references to all types of regulations which have stemmed from the European Community, the European Economic Community, or have been published in the Official Journal. Hence our measure even includes references to soft law declarations and other non-binding EU documents. We now turn to take a closer look at the characteristics of Finnish laws. As we have not coded all laws for the membership period 1995–2009, the following analysis is restricted to the period 1995–2007. There is huge variation among ministries and committees, with the influence for any single ministry not larger than approximately 25% (Ministry for Transportation and Communications). The Prime Minister’s Office and Ministry of Defence have the smallest share (Fig. 4.4). And when examining the share of EU-influenced bills by the standing committees of the Eduskunta, we note that two committees stand out: the Commerce Committee and the Transport and Communications Committee (Fig. 4.5). One could of course claim that even when the frequency of EU influence on national laws is not large, it could still be strong in some other way. For instance, one could speculate that entirely new bills could be more influenced by the EU. This is clearly not the case, however. All bills enacted during 1995–2007 were classified


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Fig. 4.4 Share of EU-influenced bills (%), by ministry, 1995–2007. Source: Own calculations

Fig. 4.5 Share of bills (%) influenced by the EU, by standing committee, 1995–2007 (%). Source: Own calculations

into nine categories: (1) Regulation of a new issue area; (2) Replacement law; (3) Modification or amendment to already existing bill; (4) Concerns state property; (5) Ratification of international treaty; (6) Termination of law; (7) Continuation of law; (8) Concerns state offices and posts; and (9) Other. We note that the bulk of laws (83.5%) were modifications or amendments to already existing bills. Only 4.4% of the new bills were regulations of new issue areas. The bills were also coded according to the Comparative Policy Agendas scheme into the following topics: (1) Macroeconomics; (2) Civil Rights, Minority Issues and Civil Liberties; (3) Health; (4) Agriculture; (5) Labour, Employment and Immigration; (6) Education; (7) Environment; (8) Energy; (9) IS MISSING; (10) Transportation; (11) IS MISSING; (12) Law, Crime and Family Issues; (13) Social Welfare; (14) Community Development and Housing Issues; (15) Banking, Finance

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Fig. 4.6 Number of laws by topics 1995–2007. Source: Own calculations

Fig. 4.7 Number of non-EU-impacted and EU-impacted laws by topics 1995–2007. Source: Own calculations

and Domestic Commerce; (16) Defence; (17) Space, Science, Technology and Communications; (18) Foreign Trade; (19) International Affairs and Foreign Aid; (20) Government Operations; (21) Public Lands and Water Management; (22) IS MISSING; (23) IS MISSING; (24) State and Local Government Administration; (25) IS MISSING; (26) Weather and Natural Disasters; (27) Fires; (28) Arts and Entertainment; (29) Sports and Recreation; (30) Death Notices; (31) Churches and Religion; and (99) Other, Miscellaneous and Human Interest. We conclude that the bulk of new legislation concerns welfare state regulations. And in terms of EU influence, we see that finance regulations are more strongly impacted by the EU than any other category (Figs. 4.6 and 4.7).


69

Discussion The purpose of this chapter has been to measure the Europeanisation of Finnish law production. Our analysis has some important lessons for future research. First, our analysis showed how the impact of Europe varies inside the legislature and between ministries and topics. Secondly, we have seen that the actual share of EU-influenced laws, contrary to statements by prominent political and administrative figures in Finland, is rather small. Perhaps the main explanation for this relatively low influence of EU is the simple fact that the bulk of domestic Finnish legislation concerns areas where the EU does not have competence to regulate. Our evidence supports the hypothesis that the share of EU-related laws has increased over time. However, we acknowledge that our indicators do not capture all dimensions of the potential impact of Europe on national law-making. Europe can leave its imprint on national laws without this being explicitly acknowledged in the text of the initiative. For example, national politicians may want to downplay or hide the influence of EU or other European countries in order to claim credit for (hopefully) successful laws. Nor can our quantitative approach adequately capture any policy diffusion processes taking place inside the Union. More detailed sector-specific studies are needed to investigate how such diffusion impacts on national legislation and public policies. Methodological concerns regarding both the operationalisation of EU impact and coding errors should also be seriously considered in future research. But perhaps more importantly, parliaments do much more than simply approve or amend laws. Hence future research should pay more attention to how the work of national parliaments has in fact become Europeanized (Raunio 2009). Our explorative study on the Eduskunta showed how the impact of EU varies inside the legislature, with parliamentary committees most burdened by European affairs (Raunio and Wiberg 2010). The share of committee time spent on EU issues is considerably higher than the share of domestic EU-related laws. Indeed, the Eduskunta (2005, 14) itself has estimated that nearly half of all items processed by it are related to EU matters. That same report also noticed that the workload of committees, measured by the number of agenda items, had roughly doubled as a result of EU membership. For example, in 2003 the specialised committees (excluding the Grand Committee) processed 314 EU matters, 119 of which resulted in a report. In that same year the number of domestic items handled by committees was 244 (Eduskunta 2005, 15). There was considerable variation between the committees, with this variation primarily driven by the allocation of powers between the national and European levels. Committees on Education and Culture and Future were least burdened by EU matters, while in the Environment, Commerce, and Agriculture and Forestry Committees, European questions comprised half or more of the meeting time. These findings probably result from the constitutional obligation of the specialised committees to report on EU matters, and hence the situation is likely to be different in most other national parliaments. The extent to which EU matters are centralised to the EU committee may thus be a key variable

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in explaining how Europe impacts domestic legislatures. In legislatures where European matters are mainly isolated in the EU committee, the other committees should deal more infrequently with EU questions. Future research could also explore the role of plenary debates and control instruments in the processing of EU affairs and European laws. In European affairs the Eduskunta’s plenary can become involved both before and after decisions are taken at the European level. The Speaker’s Council can decide that proposals for EU decisions be debated in the Eduskunta’s plenary, but in such cases the chamber is not entitled to make formal decisions. Plenary stage is also required when the implementation of directives requires legislation. The prime minister must provide either the plenary or the EAC information on European Council meetings both before and after the summits. The same applies to Treaty amendments, which require the Eduskunta’s approval. So far the plenary has performed a marginal role in European matters in Finland. Routine EU matters, such as the implementation of directives, are only very rarely debated on the floor. Far-reaching political decisions such as the EMU, the EU’s multi-annual budgetary frameworks, Treaty amendments, and notably the development of EU’s foreign and security policy have inspired longer plenary debates. The Eduskunta (2005, 18, 40–41) itself has paid attention to the lack of plenary debates, recommending for example that such debates could be held in connection with European Council meetings or in conjunction with the Commission’s annual legislative programmes, or that specific question-times be held on European matters. The main explanation for the brevity of plenary debates is probably the role accorded to the Grand Committee, which coordinates parliamentary work in EU issues and speaks on behalf of the Eduskunta in such matters. Regarding control instruments, between 1995 and 2007 only 3 out of 46 interpellations (7%) focused on European affairs, with two of them dealing with the EU’s agricultural policy and its impact on Finland. 467 out of 14,113 written questions (3%) were on EU matters. As for oral questions, that share was somewhat higher, 8% (209 out of 2,663 questions) (Raunio and Wiberg 2010). However, perhaps the most important result of this chapter concerns the methodological difficulties involved in separating EU affairs from other matters handled by national parliaments. What actually constitutes an EU issue? While certain questions – such as Treaty amendments, enlargements, EU budget, or EU laws – can be rather uncontestedly categorised as European matters, more typical are cases where EU and domestic spheres become so intertwined that “isolating” the EU dimension is very challenging. This applies particularly to policy-related questions (e.g. agriculture, economy, environment, etc.), regardless of whether the matter is of European or national origin. Not only does an increasing share of matters formally decided at the national level have a European dimension, but also debates on EU laws or European level processes can be dominated by domestic issues. Considering the interdependence of EU and national agendas, it is likely that these kinds of problems will only become more serious in the future. Hence these methodological concerns should be taken into account in future research.


71

Ministries VNK Valtioneuvoston kanslia UM Ulkoasiainministeri€ o OM Oikeusministeri€ o SM Sis€aministeri€o PM Puolustusministeri€ o VM Valtiovarainministeri€ o OpM Opetusministeri€ o MMM Maa- ja mets€atalousministeri€ o LM Liikenneministeri€ o KTM Kauppa- ja teollisuusministeri€ o STM Sosiaali- ja terveysministeri€ o TM Ty€oministeri€o YM Ymp€arist€oministeri€ o

Prime Minister’s Office Ministry for Foreign Affairs Ministry of Justice Ministry of the Interior Ministry of Defence Ministry of Finance Ministry of Education Ministry of Agriculture and Forestry Ministry of Transport and Communications Ministry of Trade and Industry Ministry of Social Affairs and Health Ministry of Labour Ministry of the Environment

Standing Committees SuV Suuri valiokunta Pev Perustuslakivaliokunta UaV Ulkoasiain valiokunta VaV Valtiovarain valiokunta HaV Hallintovaliokunta LaV Lakiasiainvaliokunta LiV Liikennevaliokunta MmV Maa ja mets€atalousvaliokunta PuV Puolustusvaliokunta SiV Sivistysvaliokunta Stv Sosiaali- ja terveysvaliokunta TaV Talousvaliokunta TuV Tulevaisuusvaliokunta TyV Ty€o- ja tasa-arvovaliokunta YmV Ymp€arist€ovaliokunta

The Grand Committee The Constitutional Law Committee The Foreign Affairs Committee The Finance Committee The Administration Committee The Legal Affairs Committee The Transport and Communications Committee The Agriculture and Forestry Committee The Defence Committee The Education and Culture Committee The Social Affairs and Health Committee The Commerce Committee The Committee for the Future The Employment and Equality Committee The Environment Committee

References Auel K, Benz A (eds) (2005) The Europeanisation of parliamentary democracy. J Legis Stud 11 (3–4):303–521 Barrett G (ed) (2008) National parliaments and the European Union: the constitutional challenge for the Oireachtas and other member state legislatures. Clarus Press, Dublin Duina F, Raunio T (2007) The open method of coordination and national parliaments: further marginalization or new opportunities? J Eur Publ Pol 14:489–506 Eduskunta (2005) EU-menettelyjen kehitt€aminen: EU-menettelyjen tarkistustoimikunnan mietint€o. Eduskunnan kanslian julkaisu, Helsinki, 2/2005

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Hegeland H (2005) EG-r€attens genomslag i svenska lagar och f€orordningar. Europar€attslig tidskrift 8:398–399 Holzhacker R, Albæk E (eds) (2007) Democratic governance and European integration: linking societal and state processes of democracy. Edward Elgar, Cheltenham Johannesson C (2005) EU:s inflytande € over lagstiftning i Sveriges riksdag. Statsvetenskapliga Tidskrift 107:71–84 J€a€askinen N (2000) Eduskunta – Aktiivinen sopeutuja. In: Raunio T, Wiberg M (eds) EU ja Suomi: Unionij€asenyyden vaikutukset suomalaiseen yhteiskuntaan. Edita, Helsinki K€onig T, M€ader L (2008) Das Regieren jenseits des Nationalstaates und der Mythos einer 80Prozent-Europ€aisierung in Deutschland. Politische Vierteljahresschrift 49:438–463 Ladrech R (1994) Europeanization of domestic politics and institutions: the case of France. J Common Market Stud 32:69–88 Mattila M, Raunio T (2006) Cautious voters – supportive parties: opinion congruence between voters and parties on the EU dimension. Eur Union Polit 7:427–449 Maurer A, Wessels W (eds) (2001) National parliaments on their ways to Europe: losers or latecomers? Nomos, Baden-Baden Nousiainen J (2000) Finland: the consolidation of parliamentary governance. In: M€uller WC, Strøm K (eds) Coalition governments in Western Europe. Oxford University Press, Oxford O’Brennan J, Raunio T (eds) (2007) National parliaments within the enlarged European Union: from ‘victims’ of integration to competitive actors? Routledge, Abingdon Paloheimo H (2005) Puoluevalinnan tilannetekij€at. In: Paloheimo H (ed) Vaalit ja demokratia Suomessa. WSOY, Helsinki Paloheimo H (2008) Ideologiat ja ristiriitaulottuvuudet. In: Paloheimo H, Raunio T (eds) Suomen puolueet ja puoluej€arjestelm€a. WSOY, Helsinki Raunio T (2005a) Hesitant voters, committed elite: explaining the lack of eurosceptic parties in Finland. J Eur Integrat 27:381–395 Raunio T (2005b) Holding governments accountable in European affairs: explaining crossnational variation. J Legis Stud 11:319–342 Raunio T (2007) The Finnish Eduskunta: effective scrutiny, partisan consensus. In: Tans O, Zoethout C, Peters J (eds) National parliaments and European democracy: a bottom-up approach to European constitutionalism. Europa Law Publishing, Groningen Raunio T (2008a) Parlamentaarinen vastuu ulkopolitiikkaan: Suomen ulkopolitiikan johtajuus uuden perustuslain aikana. Politiikka 50:250–265 Raunio T (2008b) The difficult task of opposing Europe: The Finnish party politics of Euroscepticism. In: Szczerbiak A, Taggart P (eds) Opposing Europe? The comparative party politics of Euroscepticism: Volume I, Case studies and country surveys. Oxford University Press, Oxford Raunio T (2009) National parliaments and European integration: what we know and agenda for future research. J Legis Stud 15:317–334 Raunio T, Tiilikainen T (2003) Finland in the European Union. Frank Cass, London Raunio T, Wiberg M (2003) Finland: polarized pluralism in the shadow of a strong president. In: Strøm K, M€uller WC, Bergman T (eds) Delegation and accountability in parliamentary democracies. Oxford University Press, Oxford Raunio T, Wiberg M (2008) The Eduskunta and the Parliamentarisation of Finnish politics: formally stronger, politically still weak? W Eur Polit 31:581–599 Raunio T, Wiberg M (2010) How to measure the Europeanisation of a national legislature? Scand Polit Stud 33:74–92 Reunanen E, Suhonen P (2009) Kansanedustajat ideologisella kartalla. In: Borg S, Paloheimo H (eds) Vaalit yleis€odemokratiassa: Eduskuntavaalitutkimus 2007. Tampere University Press, Tampere Stubb A (2003) Minne menet EU? Tammi, Helsinki Suominen I (2004) EU vaikuttaa selv€asti lakeihimme. Helsingin Sanomat 10.3.2004, A5


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Tans O, Zoethout C, Peters J (eds) (2007) National parliaments and European democracy: a bottom-up approach to European constitutionalism. Europa Law Publishing, Groningen T€ oller AE (2007) Measuring the Europeanization of public policies – but how? A research note. FoJuS-Diskussionspapiere Nr. 1/2007 T€ oller AE (2008) Mythen und Methoden: Zur Messung der Europ€aisierung der Gesetzgebung des Deutschen Bundestages jenseits des 80%-Mythos. Zeitschrift f€ur Parlamentsfragen 39:3–17 Wiberg M (ed) (1997) Trying to make democracy work: The Nordic Parliaments and the European Union. Gidlunds, Stockholm Wiberg M (2004a) Lains€a€ad€ant€ omme EU-vaikutteisuus luultua oleellisesti pienemp€a€a. Oikeus 33:200–206 Wiberg M (2004b) Lains€a€ad€ant€ otuotos Suomessa valtiop€aivill€a 1945–2002: Peruskartoitus. Valtio-opillisia tutkimuksia 58, Turun yliopiston valtio-opin laitos Wiberg M (2006) Miten paljon EU vaikuttaa Suomen normituotantoon? http://www.edilex.fi/ lakikirjasto/asiantuntijakirjoitukset/2995/

Chapter 5

Are French Laws Written in Brussels? The Limited Europeanization of Law-Making in France and Its Implications Sylvain Brouard, Olivier Costa, and Eric Kerrouche

Evaluating the power of national political systems in the European Union (EU) and the cross influence of national and European levels of governance strongly divides scholars, politicians, and citizens. Since the beginning of the 1990s, public debate surrounding European integration has often featured questions concerning its impact on the national political system and especially on the balance of power between legislative and executive bodies. The “democratic deficit” concept stems from the hypothesis that reinforcement of the European Community was weakening parliaments and giving increasing power to governments (Moravcsik 1994) via the EC Council and European Council. On another dimension, the work of Majone (1996) on the “European regulatory state” follows the famous statement of Jacques Delors about the dominance of EU over national legislation. Nevertheless, in the academic field, there is still no general agreement on the identity of “winners” and “losers” in European integration, as evidenced in the various integration theories and their divergent conclusions. One of the reasons for these ongoing controversies is the lack of solid and systematic data on Europeanization, and especially Europeanization of national laws. Using data gathered over the course of the French Agenda Project (Baumgartner et al. 2009), this chapter provides an empirical investigation of the level of Europeanization of French law-making and its evolution between 1986 and 2007. We use four different indicators to account for the phenomenon: the number of laws citing the European Union, the number of laws implementing European directives, the number of European directives implemented by bills, and the proportion of EU directives implemented by bills. In this way, we explore the variation of Europeanization according to multiple indicators.

S. Brouard (*) • O. Costa • E. Kerrouche Centre Emile Durkheim, University of Bordeaux, Bordeaux, France e-mail: [email protected]; [email protected]; [email protected] S. Brouard et al. (eds.), The Europeanization of Domestic Legislatures, Studies in Public Choice, DOI 10.1007/978-1-4614-1502-2_5, # Springer Science+Business Media, LLC 2012

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This data enables us to evaluate the impact of the EU on domestic institutions and political systems, not by looking at constitutional or institutional rules but at effective institutional outcomes. The common claim is that domestic law-making is severely constrained by the EU and that consequently, national Parliaments, the French Parliament included, are rigorously weakened by the European integration process. The idea that laws are written in Brussels is more widespread than ever in France, as recently illustrated by the campaign for the European Constitutional Treaty referendum. Following this logic, the impact of French “rationalized parliamentarism” would be intensified by European integration, and thereby the legislative powers of the French Parliament drastically limited. The way in which growing EU legislative production constrains (or fails to constrain) domestic legislative production must be empirically evaluated in order to understand not just the potentially altered balance between the legislature and the executive in France, but also how domestic and EU political systems are articulated more generally. In the first part of the chapter, we briefly present the law-making process in France. In the second part, we will define and operationalize the concept of Europeanization. We then describe the growing but limited Europeanization of legislative production in France. Finally, we analyze what the pattern of Europeanization of French law-making means for French domestic institutions and their relationships to the EU.

Law-Making, EU Decision-Making, and Parliament Under the Fifth Republic The 1958 Fifth Republican constitution, which was drawn up under de Gaulle’s influence, was intended to create a system that would prevent a recurrence of the instability of the Fourth Republic. A clearly defined specification of powers, especially those vested in the executive, was designed to play an essential part in ensuring a smooth transition. The success of the Fifth Republic is generally attributed to two main factors: First, there was the creation of a strong presidency, the foremost concern in the mind of its founder, Charles de Gaulle. Second, the “rationalization” of parliamentarism was designed to fortify the government’s position and a variety of institutional arrangements (Huber 1996; Brouard 2011) were introduced to that end. This rationalization has deeply weakened the National Assembly. Huber writes that “the rules included in the Constitution to strengthen the French government against the legislature seem formidable. The Constitution contains provisions that grant control of the legislative agenda to the government, that limit the right of deputies to submit and vote amendments, that limit opportunities for deputies to gain information and expertise, and that even limit opportunities for members of parliament to vote on bills themselves” (Huber 1996). Until 2009, the number of parliamentary committees was limited to six in order to limit legislative scrutiny.

5 Are French Laws Written in Brussels? The Limited Europeanization. . .

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100% Constitutional laws (%)

90% 80% 70%

Organic laws (%)

60% 50% 40%

Laws ratifying international agreements (%)

30% 20% 10%

Ordinary laws (%) Year 2006

Year 2004

Year 2002

Year 2000

Year 1998

Year 1996

Year 1994

Year 1992

Year 1990

Year 1988

Year 1986

0%

Fig. 5.1 French legislative production by types of laws

The two most known procedures are the package vote (vote bloque´; art. 44.3) and the confidence vote procedure (art. 49.3). The latter has the specific role of pushing through policy proposals unless a motion of censure removes the government while the former forces the assembly to have a single vote on an entire legislative proposal, rather than adopting it article by article. This closed rule is also systematically applied to the “law ratifying international agreements or conventions.” Accounting for 40% of the law production, this type of legislation is all but rare in France (Fig. 5.1). Three other types of French laws exist. Constitutional laws deal with constitutional amendments. There are more constitutional laws in France than in most of the democracies, especially in recent years. The so-called “organic laws” (lois organiques) implement institutional reforms in areas explicitly mentioned in the French constitution. Finally, ordinary laws are the most frequent type. There is another component to take into account regarding the way laws are adopted, as some laws are adopted by referendum. Beyond government control of the legislative agenda, the main peculiarity of Fifth Republic that must be underscored is the distinction between law (art. 34) and regulation (art. 37), which explicitly limits the domain of law. The remaining part is de jure the domain of regulation, controlled by the government. Thus, given these various institutional settings, the 1958 constitution reinforced the predominance of the government compared to the two previous Republics. Since these rules were written into the Constitution, the Members of Parliament cannot easily change or get rid of them. These factors explain why, under the Fifth Republic, the National Assembly is often regarded as one of the weakest legislatures in any modern democracy. These constitutional rules also explain why both cabinet dominance and specialization have become two major features of the Fifth Republic.

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The National Assembly is perhaps even weaker in the field of European involvement. The arguments given to illustrate this fact seem definitive: Bergman estimated in 2000 that the French parliament was 10th out of 15 national parliaments of the EU in terms of activity and influence (Bergman 2000). Other scholars (Raunio and Wiberg 2000) also positioned the two French assemblies in the category of “weak” parliaments regarding their European influence. During the first decades of the Fifth Republic, the Parliament paid very limited attention to European integration. The first direct election of the European Parliament (EP) in 1979, the Single Market Program (31 December 1992) and, above all, the progressive recognition of the superiority of EC legislation by the Conseil d’Etat (the highest administrative court), and the Constitutional Council were the triggers that finally caught the attention of deputies and senators. Before the Maastricht Treaty and the related amendment to the French Constitution, the power of scrutiny afforded to the French parliament was limited to treaty ratifications. Although European integration is now clearly different from other areas of international relations, it remains rooted in the area of diplomacy and foreign affairs (Grossman and Sauger 2007). The first body that monitored French European policy-making at the parliamentary level, the Delegation for European Affairs, was established by the Senate in 1973 and by the National Assembly in 1979. It is composed of 18 members from each chamber. This is comparable to the organ established by the German Parliament in 1957. The design of the De´le´gation is also its weakness because the number of permanent committees is constitutionally unchangeable. From its creation until the end of the 1990s, its role was extremely limited. The permanent committees were not very willing to make use of the expertise provided by these new De´le´gation pour les Communaute´s europeénnes, and so its performance has been more or less a failure. A change took place at the beginning of the 1990s: in 1990 membership in the Delegation for European Affairs doubled, governmental information policy became more systematic, and the ministers for European Affairs gained an informed parliamentary forum to present governmental policy in European matters in periodic hearings. Because of the impact of European integration on national policy-making, it is not surprising that national parliaments would try to increase their influence and their scrutiny powers in that field. This was exactly what happened in the French case. Each treaty ratification round has been linked to a substantial improvement in the scrutinizing powers of the two chambers (Grossman and Sauger, op. cit.). But the real shift occurred in 1992, with the constitutional reform prior to the ratification of the Maastricht Treaty, which had to pass through Parliament. A revised system of parliamentary scrutiny of European secondary law-making emerged based on the new article 88.4 of the Constitution. Since the reform implementing the constitutional revision for the ratification of the Amsterdam Treaty in 1999, this article states that: The Government shall lay before the National Assembly and the Senate any drafts of or proposals for instruments of the European Communities or the European Union containing provisions which are matters for statute as soon as they have been transmitted to the Council of the European Union. It may also lay before them other drafts of or proposals for instruments or any document issuing from a European Union institution. In the manner laid down by the rules of procedure of each assembly, resolutions may be passed, even if


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Parliament is not in session, on the drafts, proposals or documents referred to in the preceding paragraph.

With this reform/amendment the French Parliament had, for the first time in its existence, the constitutional right to be informed of, to scrutinize, and to intervene into the conduct of French European Community policy (Rizzuto 1996). The “resolutions” – which are only declarative and do not have compulsory effects – allow the two Chambers to share their opinions with the Government on acts resulting in French legislation. The scope of the article 88.4 has been extended over time (especially in 1992 and 1999), allowing the National Assembly to scrutinize the whole EU policy process in spite of government reluctance. As some scholars have indicated, scrutiny of EU affairs appears problematic in nearly all member states: most national parliaments have not just delegated the management of EU politics to their respective government; they have also given up on even attempting to merely influence the government on those issues (Grossman and Sauger 2007). Moreover, it is an understatement to write that French MPs no longer make intensive use of their right to adopt resolutions in EU matters: on average, only 2–5% of the transmitted proposals are subject to resolutions and very few resolutions are tabled during public sessions. Nevertheless, this does not mean that European integration has automatically weakened the French Parliament. European integration is not the only factor responsible for this. The effect of European integration on Parliament depends on the specific domestic institutional context. In fact, in France, the transposition is a shared competence between government and parliament according to the distribution of roles outlined in article 34 and 37 of the 1958 Constitution. In other words, the government is supposed to implement measures that concern regulation, while the National Assembly and the Senate are responsible for legislative aspects. The distinction between law and regulation is made by the Conseil d’Etat. So, the transposition of European directives is not only constraining the French Parliament’s activities but also the French government’s activities. The extent to which each of them is effectively constrained by the EU is a challenging empirical question in the French case. Beyond the scope of Europeanization of French statutes, the way MPs effectively deal with Europeanized laws deserves specific investigation. Do MPs passively accept Europeanization? Or do they try to shape it when they have an opportunity during the legislative process?

The Growing but Limited Europeanization of the French Laws The theoretical and empirical literature on Europeanization, which has represented a major trend in European studies since the beginning of the 1990s, addresses a broad set of issues (Graziano and Vink 2007). It not only analyzes the EU’s influence on member states (so-called “downloading” or “top-down” Europeanization), but also

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the influence of member states and their components (administrations, regions, civil society organizations, companies. . .) on EU policy-making (“uploading” or “bottom-up” Europeanization), as well as the transfer of policy from one country to several others. The top-down approach has been criticized in that it assumes a passive role for member states. Member states, however, are not only “takers” of European norms, models or pressures, but also active “shapers” of those forces. Europeanization studies have also widened their field of investigation: today they are no longer limited to the EU’s impact on politics and policy-making, but also analyze effects on processes, policies, and institutions (policy, polity, and politics).

Operational Definitions of the Europeanization of French Laws Given the complexity of Europeanization, we have adopted an approach based on the plurality of the operationalization of the phenomenon. So, four ways were explored to build variables related to Europeanization.

Europeanization as a Reference to the EU: The EU Link First, Europeanization may be conceived as a link between the EU and a specific statute. While legislating, lawmakers may use the EU as a frame. We explore the extent of Europeanization by looking for EU-related terms referenced in the laws. We have used the set of 21 keywords and acronyms described in the introduction of this volume in order to estimate the reference to the EU in French statutes. Unfortunately, the full text of French laws is only available on the Internet after 1990. Nevertheless, each law is associated with a set of keywords in the official online French law database Legifrance (http://www.legifrance.fr), which covers legislation since 1986. We ran a word search of our selected European keywords among the keywords associated with each law. We then explored the differences between both searches. First, we discovered that the search engine of the official website Legifrance has some difficulties coping with the full-text search. For example, there were no hits for six important keywords (EU, EC, ECSC, EAEC EMU, EMS), even though they appeared in the text. Briefly stated, the results of the full-text search were not reliable enough. Second, the hit rate was lower for the full-text search than for the keywords search. In addition to being more reliable and expanding the time span, using the keywords search did not underestimate the scope of the Europeanization. Thus, we have built our proxy for the EU link by searching the 21 keywords in the list of keywords associated to each French law. The EU reference keyword variable is a dichotomous variable indicating whether or not the keywords associated to a law contain at least one of the selected EU keywords.


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Europeanization as a Constraint Europeanization may be defined as the implementation of a binding European decision at the national level. Therefore, the dataset we use systematically links French laws and European decisions. For every law adopted by the French Parliament between 1986 and 2006, the EU constraint variable coded whether or not the law implemented a European decision, which could be a directive, treaty, or an international agreement. When a law was an indirect result of a European decision, we did not code it as a law affected by Europeanization. For example, in 2007, a French law reformed the Central Bank’s internal organization. The Monetary Policy Council adopted in 1993 to improve the autonomy of the French Central Bank was abolished due to the implementation of the Maastricht Treaty and the establishment of the European Central Bank. The change was not compulsory. The internal reform was an indirect but not binding change related to European integration. In fact, French MPs could have left this specific dimension of the internal organization of the French central bank unchanged, and they had done precisely that for several years. In this example, European integration gives opportunities or incentives to legislate but does not constrain law-making. It would be misleading to extend the EU constraint variable to these types of cases. A similar situation occurs when a law is adopted to adapt a national statute to a nonbinding European norm. For example, in 2006, a parliamentary bill about plant variety rights added 5 years to the national property rights. In fact, the new law allows the same length of property rights for plant variety that is acknowledged by the European Union. The text is explicitly about legal points that are not determined by European Law or international treaties. Thus, there was no legal obligation to achieve the same level of protection of property rights. Protecting certain plant varieties and remaining competitive in this economic sector were the motives behind this bill. It could be argued that it is a form of Europeanization but it is not part of the narrow meaning of Europeanization we are interested in here. Accordingly, we have not included this modality of Europeanization, as it is, in our eyes, more a result of the competitive globalization process. We extend the EU constraint variable to another type of European constraint that includes directives, treaties, and agreements. Some French laws are also motivated by the Court’s decisions, and by a desire to follow the lead of the European Commission (avis motive´). For example, the law about “concessions d’ameńagement” (concessions of development) in 2005 is an answer to the judgment C-324/98 Telaustria in 2000; the European Commission (2006) also addressed on 7 December 2004 the incompatibility between French Law and European Law. In this example, we see the process of Europeanization that we are trying to capture with our narrow definition. Europeanization does not always dictate every part of a “Europeanized” law. First, it is possible for a law to be only partly dedicated to the implementation of EU legislation, while its other parts address domestic issues. Second, the measures of implementation can be adapted to the specificities of the country. But a specific legal frame is compulsory for any legal implementation. From this point of view, what matters is what is constraining in the process of Europeanization. Consequently, in our perspective, Europeanization happens only by an a posteriori transposition of European norms.

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Our perspective on Europeanization is a good way to measure European constraint because there are cases in which legislating is not necessary given the preexisting laws or the institutional rules. In fact, some European norms only generalize the existent state of law in a specific country. When one analyzes the implementation of EU directives, for example, some cases may be found in which laws previously adopted by the country have already implemented the EU directives. For example, the 1992 EU directive 92-44 concerning the application of open network provision to leased telecommunication lines had already been partially transposed in France by an earlier 1990 law regulating telecommunications. In another example, a French law related to the employee’s advisor, voted in 1991, contains the legal basis for the implementation of an EU directive dedicated to safeguarding the rights of employees in the event of business transfers – this EU directive, however, was not enacted until 1998, 7 years after the French law. Thus, the huge increase in EU norms does not automatically lead to a similar increase in Europeanized laws. The level and evolution of the discrepancy between both trends provide crucial insights into not just the relationships between EU and national institutions, but also into the impact that the EU has on domestic political institutions. What we measure with our approach to Europeanization is only the European constraint on law-making in a specific polity. Beyond those two main approaches, for all Europeanized laws, we have also coded the number of European directives, treaties, agreements, or judicial decisions implemented by a given statute. According to the same rule, we also used a dataset established by Emiliano (Grossman 2009) that associates each directive with the presence, or absence, of at least one law among the texts of different domestic transposition instruments. Finally, both approaches of Europeanization are theoretically different but they also identify different set of laws. Contrary to our expectations, Europeanization as a constraint is not simply a subset of Europeanization as a reference. In fact 5.8% of the laws have reference to the EU without being constraining and 3.6% of the statutes are constrained by EU without containing one of the EU keywords. So it might be argued that both approaches are complementary in order to estimate the scope of the Europeanization of the French laws. This new dichotomous variable EU impulse combines the EU constraint variable and the EU reference keyword. The extent of Europeanization can be now easily measured with our four different variables: what is the scope of the EU impulse? What is the proportion of French laws with a reference to the EU? What proportion of French laws are constrained by the implementation of EU directives? Does the expansion of European norms lead to increasing constraints on the French legislative process?

The Scope of the Europeanization of French Laws From 1986 until the end of 2007, 369 laws out of 1968 (18.75%) had an EU impulse in France. The EU was referred to in 15.1% of the French statutes, and the implementation of EU legislation concerns 13% of the laws. Yearly variation


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Fig. 5.2 Europeanization of French laws (1986–2007)

aside, there has been an increase in Europeanization since 1986. In 1990, the average annual percentage of laws with an EU impulse was around 10%. From less than 7% in 1986, the proportion of the total number of laws with an EU impulse grew to 18.75% in 2007. Furthermore, in 21 years there was no clear decrease in the global trend of Europeanization (see Fig. 5.2). The trend is the same for Europeanization as a reference or as a constraint. The bulk of the Europeanized laws is the ordinary laws that accounts for 55.6% of the laws with an EU impulse. Forty percent of the laws referring to the EU are laws ratifying international treaties but the proportion reaches 48% when the EU is approached as a constraint. This pattern is part of a more general trend of the growing importance of laws ratifying international treaties in French law production. It is a sign of the impact of globalization on French law production. Regardless of the indicator, the most Europeanized part of French law production is the rarer type of law and the highest one in the hierarchy of norms: 41.2% of the 17 constitutional laws have an EU impulse. The lowest level of Europeanization is found among the organic laws. Only 3.3% of them have an EU impulse. Nondomestic statutes (18.59%) and ordinary laws (19.39%) have a similar occurrence of EU impulses. By using the policy content coding system of the Policy Agendas Project (Baumgartner and Jones 1993), it is possible for us to analyze the variation of Europeanization according to the different topics. The greatest number of laws with an EU impulse (152) is related to international affairs. In fact, most of the Europeanized laws are dedicated to regulating the way the EU works and the way the EU interacts with others countries and regional organizations. While some of these international agreements introduce important policy consequences, they are still not the most constraining part of Europeanization (see Fig. 5.3). In proportion,

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23. Culture

21. Public Lands

20. Gouvernment

18. Foreign Trade

19. International Affairs

16. Defense

17. Technologie and…

15. Finance &…

14. Housing Issues

12. Crime

13. Social Welfare

10. Transportation

8. Energy

9. Immigration

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1. Macroeconomics

45% 40% 35% 30% 25% 20% 15% 10% 5% 0%

Fig. 5.3 Proportion (in percent) of laws with an EU impulse per policy area

international affairs, of which only 20% can be described as Europeanized, is not the most Europeanized policy sector. Unsurprisingly, the topics related to the establishment of a European free market are the most Europeanized: Space, Science and Technology (45%), Banking, Finance and Domestic Commerce (39.8%), Labor and Employment (24%), Macroeconomics (27.5%), and two old European policies: Agriculture (36.7%) and Energy (20%). Policy changes in these five policy sectors are only partially driven by EU legislation. Environment (35.5%), Health (25%), and Immigration (20%) are new policy sectors that are significantly Europeanized. This is a sign of the new attention given to these issues at the European level. As for other policies, however, the impact of Europeanization is low: 7.6% for Justice and Crime, 3.9% for social welfare, 2.5% for Culture. French exceptionalism has not been as severely affected as expected by Europeanization. The prediction of Jacques Delors in 1988 at the British Trade Unions Congress that more than 80% of economic and social legislation in European countries would be Europeanized in the next 10 years is not supported by the data. Thus, international affairs are the biggest component of the Europeanization of French laws. Around half of all Europeanized law involves domestic policy issues. Among them, for the last 21 years, EU norms have dictated a significant but limited part of the changes in French laws in nearly one third of the domestic policy spectrum. Even in the most Europeanized policy sector, the majority of the laws that the French Parliament votes on is neither implementing EU decisions nor referring to EU. So empirically, the situation is far from the prominent belief in France that the French Parliament is constrained to merely voting on texts already decided in Brussels. The way in which the impact of the EU on domestic politics is commonly depicted should be drastically changed. The empirical results reverse the Delors’ myth: 80% of the French statutes are not Europeanized!


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Dynamics of EU Directives and the Constrained Europeanization of Domestic Laws in France After studying the level and nature of the Europeanization of French law-making, it is necessary to compare the evolution of the production of French domestic law and EU directives. The focus on directive production at the EU level is relevant in order to estimate the constraints induced by Europeanization – because the directives are the part of EU norms that require transposition. As the birth of the Fifth French Republic and the beginning of European integration happened roughly at the same time, the trends can easily be compared since 1959. The patterns of the evolution in the production of (a) law in France and (b) EU directives are clearly different. At an aggregate level, EU directives have been less numerous than French laws since 1959. The average number of EU directives per year (66.1) is lower than the average number of French laws (92.3). Nevertheless, since the first step of European integration in 1958 and the first directive in 1959, the number of EU directives has increased. Ten years after the beginning of European integration, there were only 20 EU directives/year. In 1979 more than 80 directives were enacted. Furthermore, after a period of global stability during the 1980s, a new wave of directive production in the early 1990s led to more than 100 EU directives/ year. The number of directives even reached as high as 122 in 1992. Since then, the EU rarely produces less than 80 directives/year, and it established a new record in 2006 with 136 directives. This evolution underlines the growth of European integration and the different steps of this process. The trend for the production of law in France, however, is radically different. There are some important yearly variations. They are first of all linked to the relative length of the parliamentary sessions according to the presence of national elections or not. On average, there was a progressive increase in the production of law in France until the beginning of the 1980s. Then, a sharp decrease reduced the average production of laws to around 90 per year, excluding a 3-year spike in the second half of the 1980s. In sum, the ratio of domestic laws to EU directives is decreasing at a regular pace. Historically, the dynamics of French law production and EU directive production appear to be divergent and provide quantitative support for the hypothesis that the EU places increasing constraints on domestic law-making. Be that as it may, if the focus of the analysis took into account the Single European Act (1986) as the point of departure, the last 21 years (1986–2006) are characterized by a higher level of similarity between the production of French laws and EU directives. Indeed, the average number of EU directives per year (98.9) exceeds the average number of French laws per year (88.4). With the Single European Act, the relative productivity of European and French institutions is reversed. Since then, the perceived dominance of the EU over domestic policymaking has become a common trope, readily denounced in different ways (loss of sovereignty, rise of a European bureaucratic state, etc.). The empirical challenge is how to estimate the effect of these trends: is there an important and increasing European constraint on French law-making?

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0 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 nb of europeanized domestic laws % of europeanized domestic laws since 1986 yearly % of europeanized domestic laws

Fig. 5.4 The level of EU constraint on French law-making (1986–2007)

Despite this dramatic change in the relative dynamics of domestic law production and EU directive production, the domestic laws do not present a different pattern and trend of Europeanization. There are important variations in the yearly percentage of Europeanized laws. Nevertheless, since the beginning of 1990s, this indicator has seldom been under 10%. The last 3 years reached a particularly high level of Europeanization with around 40% of Europeanized laws in 2004 and 2005 and more than 20% in 2006. Those specific figures are the result of a conscious effort on the part of the French government to cope with delays in the implementation of EU legislation. Moreover, the mobile average proportion of Europeanized domestic laws has been growing since 1986. Every year, the proportion of Europeanized laws out of the total number of domestic laws since 1986 is higher, but remains moderate (13.2%). Since 1986, more than 86% of domestic laws do not implement EU legislation (Fig. 5.4). Using another indicator – the number of EU directives implemented by domestic laws – the analysis shows a similar level and evolution of Europeanization. Both indicators yield highly correlated results. The main result is that beyond yearly variation, the level of Europeanization of domestic laws has increased since 1986. But, out of the nearly 100 EU directives enacted each year, only 14.5 are implemented by a French law. So the same conclusion can be drawn: the level of Europeanization is increasing, but it remains limited. Not all EU directives result in a new law implementing it in France. In fact, among the EU directives adopted between 1992 and 2004, only a minority were transposed with a law. More than 90% of the directives were not transposed by a statute. In other words, the inflation of EU directives has not been associated with a sharp increase of domestic laws implementing EU directives in France (Fig. 5.5).


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Implementation of the 1992-2004 EU directives in France 100 90 80 70 60 50 40 30 20 10 0 1992

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2004

Nb of directives implemented by at least a law mean number of directives implemented by at least a law % of directives implemented without any law

Fig. 5.5 The implementation of the 1992–2004 EU directives in France

The Pattern of Europeanization and French Domestic Institutions The pattern of the Europeanization of law-making is a very useful indicator for estimating the effect of the EU on the domestic institutional balance and for understanding the distinction between French institutions and the EU.

The Effect of Europeanization on Domestic Institutions: No Double Penalty for the French Parliament In this part, before looking at the effective impact of “downloading” Europeanization on law-making in France, we will describe the institutional settings of the Parliament in the law-making process and in the specific issues related to European affairs. First, we want to underscore that the Europeanization of French statutes is weak, or weaker than expected according to the Delors’ myth, because most transposition is assumed by the French government given its institutional supremacy in the regulation process. Although it considerably limits the role of Parliament, this process is, strictly speaking, independent from the European integration process. In fact, if the Europeanization of the French laws is correctly captured, their weak number and proportion in the production of law support the hypothesis of a limited Europeanization

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Non-Europeanized Domestic laws

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Domestic laws

50 0

Fig. 5.6 Average number of amendments per law

of law-making and invalidate the hypothesis of the French Parliament having been weakened by European integration. Whatever the origin of the policy changes, similar policy change would always be implemented through regulations. Hence, the French Parliament is comparatively weak because of the French Fifth Republic’s parlementarisme rationnalise´, but there is no double penalty induced by Europeanization. From our point of view, and contrary to Moravcsik’s argument (1994) and common wisdom, the government is paradoxically more affected by European integration than the Parliament: a growing part of the policy changes enacted by the French executive through regulations is dictated by the EU. Second, as in other political systems studied in this book, Europeanization is not only a constraint for French MPs. It also provides incentives for a more thorough scrutiny of the bills in Parliament. It is rational for MPs who fear the loss of power induced by Europeanization to check and control it. Amending the content of the Europeanized laws would thus be an obvious indicator of a parliamentary reaction to the Europeanization. Some Europeanized French laws may not be amended. In fact the laws ratifying agreements are adopted under closed rule. Nevertheless beyond these laws, Europeanization has also affected the most important part of the French law-making, the ordinary laws. Because an EU directive sets the objectives to reach, each member state must adopt a policy with the relevant means in order to reach them on its territory. Hence changes through amendments are theoretically possible. Are they empirically observable? Do MPs react to the EU incentives by scrutinizing the Europeanized laws more thoroughly? Unfortunately, the data on the number of amendments per law in France is only available after 1999. On average, the 97 Europeanized ordinary laws have 131 amendments whereas the 287 non-Europeanized laws only have 54 amendments. This result supports the idea of a strategic reaction of MPs in face of Europeanization. As shown in Fig. 5.6, the higher level of the average number of amendments is consistent over time. The mean difference is also statistically


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significant (p < 0.000). Even if in the French system all amendments are not from MPs, amendments are a reliable indicator of parliamentary scrutiny. In fact, despite the rationalized parliamentarism that gives huge agenda control to the government, most of the adopted amendments (80% on average since 1969) are proposed by the committees. Furthermore, it could also be argued that because the government introduced the bulk of adopted laws (88% on average since 1986), government amendments are also the sign of an influence of the MPs as a compromise between government and parliamentary majority. The dominance of the executive is even more pronounced on the laws with a European constraint: 95% of them are government bills. The number of amendments may also be affected by factors other than Europeanization. A first obvious factor is the length of a law. The longer a statute is, the higher the number of amendments is – provided that amendments are allowed. So the difference in the average number of amendments may only be an artifact of the length of the law: on average Europeanized laws may be longer than nonEuropeanized laws and consequently may have more amendments. In order to control for that fact, we run an OLS regression with the number of amendments as the dependent variable and the Europeanization variable and the size of the law (in number of characters) as independent variables. The coefficients of both independent variables are statistically significant. As expected, longer laws are associated with a higher number of amendments. But more importantly, the Europeanization variable is still significant. Everything else being equal, Europeanization induces nearly 9 amendments more on a given laws. On average, a law has 36.67 amendments. Thus, there is no double penalty for the French Parliament. In a system with executive dominance, Europeanization constrains the government first and foremost. Furthermore, MPs are not simply compliant with Europeanization. They react. Europeanization is a red flag that gives them incentives to scrutinize bills and amend them.

Europeanization and the Domestic Political System: Behind the Myth of a European Policy Dictator, the Reality of a New Veto Player Even if we only focus on the concrete and legal effects of Europeanization (i.e., institutional and policy changes), we must take into account the various degrees of the phenomenon. To analyze that aspect of Europeanization, B€orzel considers the notion of “misfit,” described as a necessary condition for domestic change and an explanatory factor of its degree: as long as there is no policy or institutional misfit between the national situation and what is promoted at the European level, there will be no pressure for change. This does not mean that national change cannot occur if the European and national levels fit well, but that such change does not necessarily arise

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directly from EU influence. According to B€ orzel, Europeanization has five different outcomes depending on the degree of misfit: “inertia” or the lack of change, “retrenchment” or increasing misfit, “absorption” or the incorporation of the EU’s influence without substantial national change, “accommodation” or national change at the margin, and “transformation” or the full replacement of policies and institutions. The misfit approach is useful for analyzing situations where there is a clear EU template that has to be “downloaded” if we are in a situation of “governance by hierarchy”: circumstances where the supranational institutions have a considerable amount of power delegated to them (Bulmer and Radaelli 2005, 343). It is less convincing when Europeanization is a more diffuse phenomenon, as with policies ruled through open method of coordination (OMC); in this case, the absence of a specific model, as well as the possibility for multiple horizontal policy transfers and for national discretion, make misfit an unlikely mechanism for creating change. Nevertheless, our focus on the downloading Europeanization of the production of French law fits perfectly with the ideal condition of use of the misfit approach. The extent to which Europeanization takes place depends on several factors. As we saw, there first needs be a sufficient degree of “misfit” between national and EU-proposed policy. The misfit approach was initially applied to specific policies or policy sectors. The relative level of implementation by laws vs. regulation in the French case is a way of dealing with misfit at a national level. The level of Europeanization of law production is a proxy for the degree of misfit. In the French case, a higher degree of misfit constrains a policy change implemented by law whereas a lower degree only implies transposition by regulation. So, despite the widespread belief in France that there exists a high degree of misfit between French policies and the process of European integration, the data suggest the contrary: the degree of misfit in France is low and probably concentrated on a narrow but sensitive set of issues, such as market regulation, for example. Thus the core of French policies is easily compatible with EU policies. There are two reasons for this paradoxical interpretation. France is one of the founding members of the European Communities. So it has had time to learn and adjust its policy-making process in an EU-compatible way. From this point of view, France stands in sharp contrast with the new member states that had to implement the entire aquis in a very short time. Consequently, consciously or not, an anticipatory behavior arose that limited the level of potential discrepancies between France and the EU. This is without any doubt another dimension of the process of Europeanization. For the same reason, and given France’s weight in the EU, a lot of EU policies have been either heavily influenced by French preferences or introduced by French leaders. In a lot of cases, they tried to and succeeded in generalizing their policies at the EU level. Probably, the nature of the EU has changed and the French ability to shape EU outcomes has dramatically decreased over the years. This trend would also explain why the French citizens today overestimate the level of domestic policy change brought about by the EU. While there have admittedly been some clear policy misfits with occasionally important consequences, the symbolic value of these episodes in France belies the actual, high level of congruence between EU and French legislation.


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The EU’s effect on a domestic political system can be characterized between two extremes: policy dictator or veto player. In the first case, the EU constrains numerous policy changes. This is sometimes the case with the new EU member states that were former Soviet states. Countries such as these with very different regulatory traditions need to vote in a whole new set of laws in order to be able to join the EU. In these cases, the EU narrowly dictates the policy changes. At the other extreme, the misfit between EU legislation and domestic law is null. In these cases, the EU never imposes any policy change, as the current domestic legislation already perfectly fits with European legislation. This occurs, for example, when EU norms copy domestic norms. In this case, there are no Europeanized laws. Nevertheless, change in domestic laws is conditioned by the compatibility of the new policy with the current state of European law, or by changes in relevant EU norms. Thus in this hypothesis, the EU is a veto player: its agreement is needed for any domestic policy change. Between the two poles, policy dictator or veto player, given our empirical results and their meanings, the EU’s behavior toward France has been that of a veto player, more than that of a policy dictator. The EU makes it increasingly difficult to change a growing set of existing French laws that are already compatible with European norms or that have even inspired them. The most famous examples of European constraint on French policy-making clearly fit this pattern, from the decrease of VAT for restaurants to the end of the summer-time, to the changing of the opening and closing dates of hunting season. In each case, European rules generalized at the European level the former French rules, or they had been adopted upon French initiative. The main effect of the EU on French domestic policy is to constrain and not to dictate policy changes.

Conclusion Europeanization is first of all an important component of the globalization characterized by the increasing number of Member States’ agreements. Half of the French laws dealing with EU issues are laws ratifying international treaties and agreements between the EU members about different dimensions of EU integration or between the EU and other states. Only half of all Europeanized laws concerns domestic policy issues. Among them, for the last 21 years, EU norms have dictated a significant but moderate part of the policy change. Even in the most Europeanized policy sector, a majority of the laws voted by the French Parliament are not related to the implementation of EU decisions. In domestic law, whatever indicator used – the number of laws implementing EU legislation or the amount of EU legislation implemented by laws – the result is similar and underscores an increasing but moderate Europeanization. For the last 21 years, the most important influence of the EU on France has not, contrary to popular belief, been the “forced” adoption of new French laws. The EU has only dictated a small, albeit growing, portion of new French laws.

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Our findings are far from the traditional intuition that 60 or 70% of domestic French laws are induced by the EU (Maıä 2005), and from the famous statement of Delors – which is repeated ad libidum by politicians and journalists at the occasion of each campaign for European elections. The EU is not primarily a top-down constraint on law-making. In fact, the results in the French case match those in the Danish case, leading to an obvious conclusion: the weight or power of the “European regulatory state” (Majone) should be examined more carefully, and with studies based on verifiable data as Levy-Faure convincingly advocated (2007). Given the role of the Parliament and of the government in France, Europeanization does not constrain the Parliament, but rather the government. In fact, given the inflation of EU directives, Europeanization is most constraining with regard to regulations. In the country of rationalized Parliamentarism, despite the exclusion of parliaments from EU-level decision-making (Auel and Benz 2005), the current Europeanization of the production of law does not create a double penalty for the weak French Parliament. Conversely, Europeanization fuels parliamentary involvement in the drafting of the French statutes as shown by the fact that Europeanized laws are more amended (when allowed) than non-Europeanized ones. Both results have a very clear meaning about the process of Europeanization and the way the EU interacts with the French political system. For the last 21 years, a moderate level of misfit led to a low level of Europeanization in France. Conversely, the changes induced by the EU are overestimated in France because the episodes where there were conflicting policies occasionally had important consequences, leading to a symbolic value that exaggerated the actual influence of the EU on domestic French laws. Most of the time, EU and French legislation are congruent. Only the key changes of French policies necessitate a new law. When the misfit of a current domestic policy is weak, only some new adapted regulations are required. In short, the influence of the EU on the domestic political system can be characterized as falling along a continuum between two extremes: policy dictator or veto player. Between these two poles, given the empirical results presented here, the EU has acted more as a veto player than as a policy dictator. The EU makes it increasingly difficult to change a growing set of existing French laws that had already become European norms. The main effect of the EU on French domestic policy is not to dictate policy changes but to limit policy changes or decrease the scope of the alternative policies.

References Auel K, Benz A (Autumn/Winter 2005) The politics of adaptation: the Europeanisation of national parliamentary systems. J Legis Stud 11(3/4):372–393 Baumgartner F, Jones BD (1993) Agendas and instability in American politics. Chicago, IL: University of Chicago Press Baumgartner F, Brouard S, Grossman E (2009) Agenda-setting dynamics in France: revisiting the ‘partisan hypothesis’ French politics. French Polit 7(2):75–95


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Bergman T (2000) The European Union as the next step of delegation and accountability. Eur J Polit Res 37(3):415–429 Brouard S (2011) The systematic institutional advantage of government in law-making. In: Rash BE, Tsebelis G (eds) The role of governments in legislative agenda setting. Palgrave, London Bulmer S, Radaelli C (2005) The Europeanization of national policy. In: Bulmer S, Lequesne C (eds) The member states of the European Union. Oxford University Press, Oxford, pp 338–359 European Commission (2006) XXIIIrd Report on monitoring the application of Community law. COM(2006) 416 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2006:0416: FIN:EN:PDF. Accessed 5 Oct 2011 Graziano P, Vink MP (2007) Europeanization: new research agendas. Palgrave Macmillan, New York Grossman E, Sauger N (2007) Political institutions under stress? Assessing the impact of European integration on French political institutions. J Eur Publ Pol 14:1117 Grossman Emiliano (2009) La re´sistance comme opportunite´ : les strate´gies des institutions politiques françaises face a` l’inte´gration europeénne, Revue internationale de politique compareé. 16(1):667–678 Huber JD (1996) Rationalizing parliament. Legislative institutions and party politics in France. Cambridge University Press, Cambridge Majone G (1996) A European regulatory state? In: Richardson J (ed) European Union: power and policy-making. Routledge, London Maıä J (2005) La contrainte europeénne sur la loi. Pouvoirs 114:53–71 Moravcsik A (1994) Why the European Union strengthens the state: domestic politics and international cooperation. Center for European Studies, Working Paper Series 52, Harvard University, Cambridge Raunio T, Wiberg M (2000) Does support lead to ignorance? National parliaments and the legitimacy of EU Governance. Acta Polit 35(2):146–168 Rizzuto F (1996) The French Parliament and the EU: loosening the constitutional straitjacket. In: Norton P (ed) National parliaments and the European Union. Cass, London, pp 46–59

Chapter 6

Does Europeanization Change Executive–Parliament Relations? Executive Dominance and Parliamentary Responses in Germany Thomas K€onig and Lars M€ ader

Introduction This chapter investigates the level of Europeanization of the German legislature and the consequences of Europeanization for the governmental–parliamentary relationship in the period from 1986 to 2005. Some authors fear an erosion of democratic control via Europeanization (i.e., Scharpf 1999; Z€urn and Wolf 1999), and others quote the mythical number of an 80% influence of Brussels on the German legislature (Herzog 2007). In order to provide a comprehensive and reliable picture of the Europeanization rate of the German legislature, our empirical analysis includes all federal laws. It distinguishes between domestic and “internationalized” laws, which were introduced by different types of legislative actors (government, others) in the Bundestag. Focusing on domestic lawmaking, we provide two indicators for measuring and cross-validating the level of Europeanization of these laws, which cover almost 20 years of German legislative decision making in multiple policy areas. The cross-validity of the two indicators shall provide a reliable and comparable picture of the level of Europeanization, while the coverage of all policy areas should reduce the risk of a selection bias, which is common to area-specific studies of Europeanization. In addition to measuring the Europeanization rate, we also investigate the consequences of Europeanization, which inherently create a principal agent-problem: when a growing number of member states pursue different interests and must send their governmental representatives – which often come from different parliamentary (coalition) parties and have divergent interests – to the EU in order to adopt common obligations which must be implemented into domestic law. In this delegation game, the governmental representatives play a prominent role because they are responsible for and have exclusive information on the negotiation, adoption, and

T. K€onig (*) • L. M€ader Department of Political Science, University of Mannheim, Mannheim, Germany e-mail: [email protected]; [email protected] S. Brouard et al. (eds.), The Europeanization of Domestic Legislatures, Studies in Public Choice, DOI 10.1007/978-1-4614-1502-2_6, # Springer Science+Business Media, LLC 2012

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implementation of common obligations. Whether this informational advantage of governmental actors results in a severe principal agent-problem with parliament or their (coalition) parliamentary parties is hotly debated in Germany. Most scholars argue that Europeanization promotes the empowerment of governmental actors (Moravcsik 2002; Majone 2005; Follesdal and Hix 2006). Most poignantly, Moravcsik (1997:212) points to a European “executive cartel,” which redistributes national resources by international cooperation at the expense of the powers of national parliaments. During the period of this study from 1986 to 2005, the expansion of the EU’s legislative competencies by several treaty revisions and the effective application of qualified majority voting in the Council of Ministers have promoted Europeanization, suggesting an empowerment of governmental actors at the expense of the parliament. For example, the EU adopted almost 300 measures to complete the internal market, which should have increased the Europeanization rate of the German legislature because their obligations had to be implemented into German law. However, the empirical identification of the level of Europeanization is not a trivial task. Recent empirical studies find that the level of Europeanization – measured by the reference to an EU impulse in the German legislative database – is lower than expected (T€ oller 2008; K€ onig and M€ader 2008). However, it remains unclear why the number of EU impulses has increased, even though the number of European measures is decreasing (K€ onig and M€ader 2009) This chapter will provide further insights into the level of Europeanization of the German legislature and the consequences for the relationship between governmental and parliamentary actors. The major empirical questions are to focus on the extent to which the German legislature is influenced by Brussels, and how the relationship between the government and parliament has been affected by Europeanization. For a cross-validated measure of Europeanization, we provide an alternative indicator to the European impulse-indicator by using a keyword search in the abstracts of each individual law. To analyze the consequences of this cross-validated level of Europeanization, we will investigate whether the adoption rate of proposals from governmental and other types of actors is changed when lawmaking takes place under the shadow of Europeanization. In addition to the adoption rate of proposals, we will explore the amendment rate of Europeanized and non-Europeanized laws. The amendment right endows parliamentary (coalition) actors with the power of legislative oversight, which can balance their relationship to governmental actors. Our results reveal that the level of Europeanization and the consequences for the relationship between governmental and parliamentary actors have been dramatically overstated in the past. According to our findings, the average share of Europeanized German laws is between 17.9% (EU keywords) and 26.3%, (EU impulse) ranging from 6.5% in 1995 to 40.3% in 2004. These numbers are cross-validated by two independent indicators, the first referring to a reference of an EU impulse in the database of German legislation, the second resulting from a keyword search in the abstract of each individual law. Although our findings indicate an increasing level of Europeanization over time, the more substantial question is whether and how this development is changing the

6 Does Europeanization Change Executive–Parliament Relations?. . .

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power balance between governmental and parliamentary actors in the German legislature. Our findings do not support the fears about a strong empowerment of the executive at the expense of the parliament. Because the governmental adoption rate is already very high in the German legislature, only other types of legislative actors can profit from Europeanization and increase their adoption rate. Furthermore, the amendment statistics suggest that Europeanized German laws are more frequently amended, which indicates more legislative oversight or at least more parliamentary attention to principal agent-problems in the event of Europeanization. In the following we provide a brief introduction to the German legislature and discuss the power balance between the actors involved. Hereby, we also provide a general statistical overview differentiating between different types of federal laws. We then present the numbers on the Europeanization level of the German legislature. Finally, we discuss our results of Europeanization for the executive–parliamentary power relationship.

The German Legislature: Mandatory and Non-Mandatory Domestic Laws The Germany legislature is organized along federal lines, in which the government, Bundestag, and Bundesrat act as institutional players of the Federation. In the past, governments were always based on coalitions of political parties, which had the majority of seats in the Bundestag. The number of political parties increased over time from three to five. In the Bundesrat, the L€ander are represented by their (coalition) governments, which cast their votes weighted by population size. With German unification in 1990, the number of L€ander also increased from 10(+1) to 16. According to Articles 70–74 of the German Basic Law (GG), the legislatures of the L€ander and the Federation share legislative competencies, but most legislative activities are assumed by the federal legislature. Article 76 provides the government, the Bundestag, and the Bundesrat with the right to initiate bills, which must be adopted by the Bundestag. A special feature of the German federal legislature is that it distinguishes between two types of bills, mandatory and non-mandatory bills (Article 77). For non-mandatory bills, the corresponding majority of the Bundestag can overrule the Bundesrat, while mandatory bills require the approval by the majority of (weighted) votes in the Bundesrat, because the L€ander have to implement these laws. From a comparative perspective, the German legislature is often viewed as a two-chamber system, which consists of the Bundesrat and the Bundestag. According to von Beyme (1997:96) “This classification is unavoidable in substance, but is nevertheless legally wrong: according to the Basic Law (Art. 77 Abs. 1 Satz 1 GG) the Bundestag is the only legislator.” The Bundesrat is neither part of parliament, nor a true second chamber. Apart from this terminological distinction, the Bundesrat only has veto power in about half of all federal legislation affecting L€ander interests in mandatory legislation.

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Table 6.1 German legislation between 1986 and 2005 Domestic laws Laws ratifying international treaties Year of adoption Non-mandatory 1986 39 1987 22 1988 25 1989 34 1990 51 1991 29 1992 35 1993 38 1994 61 1995 14 1996 44 1997 36 1998 55 1999 34 2000 40 2001 54 2002 69 2003 34 2004 69 2005 46 Average per year 41.5

Mandatory 48 15 21 37 68 21 50 47 71 32 30 38 74 25 46 63 74 34 55 46 44.8

Non-mandatory 7 6 14 8 14 7 11 18 26 3 11 16 33 3 15 18 17 12 18 8 13.3

Mandatory 8 8 18 11 17 17 14 20 38 7 38 40 61 9 21 20 35 16 22 19 22.0

Total 102 51 78 90 150 74 110 123 196 56 123 130 223 71 122 155 195 96 164 119 121.4

For the analysis of the activities of the German legislature, we use a dataset which we generated from the GESTA-database of the German Bundestag. GESTA is part of the Documentation and Information System for Parliamentary Processes (DIP), which was established by the Bundestag and Bundesrat in 1972. It is a full-text database available in electronic form that records all legislative initiatives from 1976 to 2005. This database provides a rich source of longitudinal information on the German legislature. It allows for the extraction of information on each individual legislative proposal: the full-text contents, the source and identifying number, the initiator, the date introduced in the Bundestag, the date of approval and the date of enactment, a reference of whether or not the respective legislative proposal was subject to the mandatory or non-mandatory procedure (K€onig and Br€auninger 2005). Table 6.1 provides a summary statistic of adopted mandatory and non-mandatory German laws in the period between 1986 and 2005. To study the level of Europeanization, we separate domestic from international laws because the international laws are exclusively negotiated by the government. Due to the EU’s increasing competencies in matters related to international law, in particular in the area of trade politics since the beginning of the 1990s, we concentrate our analysis on domestic laws. According to Table 6.1, the German legislature produces a similar number of mandatory and non-mandatory laws in domestic lawmaking. Regarding the laws related to international treaties, the share of mandatory laws is significantly higher. Furthermore, the number of adopted laws drops significantly in the first year after elections and increases at the end of each legislative term.


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Europeanization of the German legislature: A Cross-Validated Analysis The GESTA database includes a reference to European impulse which documents the linkage between each legislative act and European Community law, including detailed information about the type of European impulse. It specifies whether the respective legislative act was originally initiated based on a directive, a regulation, a decision, a recommendation of the Commission, a certain Treaty provision, a judgment of the European Court of Justice or any combinations of these possible impulse sources. Although this specification enables us to distinguish the type of Europeanization, it does not provide information about the specific directive, regulation etc. in terms of a title, a number, etc. which is responsible for the reference. In fact, the number of impulse references has increased over time, while the number of directives, regulations, etc. has decreased (K€ onig and M€ader 2008, 2009). To cross-validate the GESTA identification of European impulses, we introduce a second measure of Europeanization, which is based on a comprehensive content analysis of the abstracts of the respective legal acts. Hereby, we search for specific European keywords in the abstract of each law and code the respective law as Europeanized whenever we find at least one of these keywords. Table 6.2 provides the complete list of these keywords and their respective English translation. Using the information from both criteria for Europeanization we are able to cross-validate the percentage of Europeanized laws in the time period between 1986 and 2005 over time and across different policy areas. Table 6.3 displays the findings for both measures of Europeanization per year. Both criteria yield quiet similar results. Regarding our first measure, the European impulse reference, we find a trend toward a growing Europeanization of German laws Table 6.2 European keywords EU keywords (German) Europ€aische Union Europ€aischeGemeinschaft Europ€aischeWirtschaftsgemeinschaft EinheitlicheMarkt Binnenmarkt Europ€aischeMarkt Europ€aische Gemeinschaft f€ ur Kohle und Stahl/ Montanunion Europ€aischeAtomgemeinschaft Europ€aischen Wirtschafts- und W€ahrungsunion/ Europ€aischen W€ahrungsunion Europ€aischeW€ahrungssytem Richtlinie(n) Gemeinschaftsrecht Europarecht

Abbreviation EU keywords (English) EU European Union EG European Community European Economic EWG Community Common Market Single Market European Market European Coal and Steel EGKS Community EURATOM/ European Atomic Energy EAG Community EWWU/ EWU European monetary Union European monetary EWS System Directive Community law European law

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Table 6.3 Number and proportion of Europeanized laws per year according to EU impulse/EU keywords (Abstract) 1986–2005 and EU keywords (Full text) 1995–2005 EU impulse EU keywords (Abstract) Total EU keywords (Full text) Total % # Year of adoption # 1986 16 18.4 15 1987 6 16.2 4 1988 9 19.6 6 1989 15 21.1 12 1990 25 21.0 24 1991 7 14.0 5 1992 18 21.2 25 1993 29 34.1 19 1994 37 28.0 30 1995 3 6.5 3 1996 13 17.6 14 1997 15 20.3 11 1998 49 38.0 36 1999 14 23.7 7 2000 31 36.0 13 2001 40 34.2 17 2002 57 39.9 28 2003 24 35.3 14 2004 50 40.3 27 2005 37 40.2 22 Average per year 24.8 26.3 16.6

% 17.2 10.8 13.0 16.9 20.2 10.0 29.4 22.4 22.7 6.5 18.9 14.9 27.9 11.9 15.1 14.5 19.6 20.6 21.8 23.9 17.9

# 87 37 46 71 119 50 85 85 132 46 74 74 129 59 86 117 143 68 124 92 86.2

# – – – – – – – – – 11 21 31 64 19 37 69 71 33 68 59 43.9

% – – – – – – – – – 23.91 28.38 41.89 49.61 32.20 43.02 58.97 49.65 48.53 54.84 64.13 45.0

# – – – – – – – – – 46 74 74 129 59 86 117 143 68 124 92 50.6

over time. Relative to 1986 when only 18.4% of all adopted laws originated in Brussels, this number increased considerably to more than 30% in 1993. However, after the completion of the internal market the level of Europeanized laws dropped dramatically, reaching its lowest level of only 6.5% in 1995. Since 1998 the level of Europeanization passed again the 30% benchmark, reaching its highest level in 2004 with more than 40% of German laws having been induced by EU impulses. The second measure uses EU keywords, and we find an essentially identical trend until 1997 with a significant lower increase in the percentage of Europeanized laws thereafter. Figure 6.1 displays this trend for our second keyword measure graphically. One might criticize that we conduct our content analysis on the abstracts of the respective legislative acts. To measure the risk of an abstract-specific bias, we also conducted a keyword search in the full text for a subsample of all adopted laws between 1995 and 2005 where these full texts are available. Comparing the three measures of Europeanization with each other, we unsurprisingly find more hits of Europeanized German laws for our third measure than for either of the former two. Nevertheless, all three measures of Europeanization are highly correlated1 and show a

1 The correlation between the measure of EU impulse and EU keywords (Abstract) is 0.69; correlation between EU impulse and EU keywords (Full text) is almost 0.87; finally the correlation between EU keywords (Abstract) and EU keywords (Full text) is 0.64.


101

Fig. 6.1 Europeanized laws per year according to EU keywords (Abstract) (1986–2005)

similar trend of an increasing influence of the EU on the domestic legislation toward the end of the studied time period. One possible explanation for this trend is that the EU has increased the level of competencies after several treaty revisions in specific policy areas. For example, the EU increased its legislative activities especially in the areas of Agriculture and Environment. Table 6.4 therefore takes a closer look at the area-specific changes.2 As displayed in Table 6.4, we find considerable variation between these areas independent of our measures used. According to both of our measures, the policy areas with the highest rates of Europeanized laws are Agriculture, Environment, Energy, Transportation, and Banking and Finance. Furthermore, we find that the influence of Europeanization is considerably lower in the areas of Social Welfare, Government Operations, Housing, and Public Lands. In all of these areas, the average share of laws caused by Brussels is not higher than 15%. With the exception of foreign trade, the average share of Europeanized laws has never reached the mythical 80% level in any area. This finding is also displayed in Fig. 6.2 for our EU keyword indicator where the bar charts display the absolute number of adopted laws and the absolute number of Europeanized laws, while the line graphs show the percentage of Europeanized laws across areas. Table 6.5 compares the results of our two indicators of Europeanization with the keyword search of the full text for the specified subsample of our dataset. Unsurprisingly, we find a higher level of Europeanized laws if we use the keyword search on the full text including considerations for minor references to the EU. The differences between our different measures are most severe in terms of absolute

2 The German laws were coded according to an adapted version of the policy classification scheme originally developed by Frank R. Baumgartner and Bryan D. Jones for the Policy Agendas Project.

102

T. K€onig and L. M€ader Table 6.4 Number and proportion of Europeanized laws per policy area according to EU impulse/EU keywords (Abstract) in the time period between 1986 and 2005 EU impulse EU keywords (Abstract) Total Policy areas Macroeconomics Civil rights Health Agriculture Labor Education Environment Energy Transportation Law Social Welfare Housing Banking & Finance Defense Technology Foreign Trade International Affairs Government Operations Public Lands Total

# 66 9 30 77 36 12 28 15 43 44 13 4 81 16 10 0 3 7 1 495

% 30.0 13.4 29.7 58.8 20.5 21.4 62.2 48.4 35.2 23.0 8.0 10.3 45.0 18.4 40.0 0.0 60.0 9.3 12.5 28.7

# 44 7 24 54 25 10 19 9 32 21 11 3 51 9 6 2 1 3 1 332

% 20.0 10.4 23.8 41.2 14.2 17.9 42.2 29.0 26.2 11.0 6.7 7.7 28.3 10.3 24.0 100.0 20.0 4.0 12.5 19.3

# 220 67 101 131 176 56 45 31 122 191 163 39 180 87 25 2 5 75 8 1724

Fig. 6.2 Europeanized laws per policy area according to EU keywords (Abstract) (1986–2005)


103

Table 6.5 Number and proportion of Europeanized laws per policy area according to EU impulse/ EU keywords (Abstract)/EU keywords (Full text) in the time period between 1995 and 2005 EU keywords EU keywords (Full EU impulse (Abstract) text) Total Policy areas # Macroeconomics 45 Civil rights 5 Health 20 Agriculture 48 Labor 27 Education 7 Environment 16 Energy 14 Transportation 29 Law 30 Social Welfare 12 Housing 4 Banking & Finance 53 Defense 11 Technology 9 Foreign Trade 0 International Affairs 0 Government Operations 2 Public Lands 1 Total 333

% 32.6% 16.7% 27.4% 67.6% 24.8% 20.0% 69.6% 53.8% 38.7% 25.2% 12.9% 22.2% 52.0% 28.2% 50.0% 0.0% 0.0%

# 26 4 15 30 14 5 11 9 22 13 5 2 26 5 2 1 0

% 18.8% 13.3% 20.5% 42.3% 12.8% 14.3% 47.8% 34.6% 29.3% 10.9% 5.4% 11.1% 25.5% 12.8% 11.1% 100.0% 0.0%

5.9% 14.3% 32.9%

1 1 192

2.9% 14.3% 19.0%

# 73 16 38 54 40 15 19 15 43 44 18 7 66 16 12 0 1

% 52.9% 53.3% 52.1% 76.1% 36.7% 42.9% 82.6% 57.7% 57.3% 37.0% 19.4% 38.9% 64.7% 41.0% 66.7% 0.0% 100.0%

# 138 30 73 71 109 35 23 26 75 119 93 18 102 39 18 1 1

4 2 483

11.8% 28.6% 47.7%

34 7 1012

numbers in the policy area of Macroeconomics, Agriculture, and Transportation. However, despite these differences, all three measures are extremely highly correlated with each other. The correlation between our EU impulse references and the full text keyword search is highest with almost 0.98, followed by a correlation of 0.96 between EU impulse references and abstract keyword search, followed by the correlation between both keyword search methods of 0.94. Briefly summarized, our results suggest a lower level of Europeanization of the German legislature than the mythical fears of an 80% influence by Brussels. However, both criteria reveal quite similar results with an area-specific trend toward Europeanization over time. This drwas our attention to the consequences of this trend for the governmental-parliamentary relationship in the German legislation.

Consequences for Governmental Agenda-Setting Power and Parliamentary Scrutiny Regarding the power relationship between governmental and parliamentary actors in the German legislature, the most prominent cleavage exists when the government, based on the parliamentary majority of political parties, differs from the political party

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orientation of those of the L€ander governments. Although this party configuration has often been described as a divided government configuration, we can distinguish three types of configurations in the German legislature: the corresponding party majority as a kind of unified government, the opposing party majority as a kind of divided government, and a mixed configuration, in which the government of the pivotal actor in the Bundesrat is formed by political parties from both party camps. In particular the divided government configuration is expected to constrain governmental activities and thus to lower the adoption rate of governmental proposals. In addition to this view on the adoption rate, the amendment right of parliament has recently attracted scholarly attention (Martin and Vanberg 2005; K€onig and Br€auninger 2005). Even though coalition partners pursue different interests, they delegate ministers to the cabinet government, which has been the most successful legislative initiator in the past – independent from the configuration with the Bundesrat. However, when a minister pursues his/her own interests at the expense of the coalition partner and introduces “hostile” proposals, the partner can amend these proposals in the Bundestag – an important parliamentary prerequisite that can balance governmental agenda-setting dominance and help overcome ministerial drift at the expense of a coalition partner. Due to their informational advantage, the amendment rate of governmental proposals should decrease for Europeanized laws, in particular when these laws transpose the obligations of EU directives, which member states must implement either by laws or by regulations. In the German legislature, the formal agenda-setting power is shared between the government, a group of parliamentary members of the Bundestag, and the L€ander represented in the Bundesrat. While all of these actors can initiate a bill, the government is by far the most active and the most successful initiator in the German legislature (Br€auninger and K€onig 1999). Even in periods of divided government, i.e. when the governmental party majority of the Bundestag differs from the (party) majority of the L€ander in the Bundesrat, governmental proposals have significantly higher adoption rates than initiatives by any other type of initiator (K€onig 1999). At the same time, opposition initiatives are almost always rejected, and the few Bundesrat initiatives are only sometimes adopted. However, governmental bills are also almost always amended by the Bundestag and/or the Bundesrat (K€ onig and Br€auninger 2005). The question therefore is whether this pictures changes with an increase in Europeanization. In order to analyze the impact of EU impulses on the relationship between governmental and parliamentary actors, we take a close look at the statistics over time and assess whether the reference to EU impulses changes these major characteristics of the German legislature, namely whether legislative initiatives and governmental bills have different adoption rates and different levels of amendment activities in the event of Europeanization. Table 6.6 lists the adoption rate of all legislative initiatives and distinguishes between governmental and other proposals for all of our three measures of Europeanization in the period between 1987 and 2005 (11th–15th term).3 Note that

3 Due to the availability of the legislative full texts our third measure is limited to the time period between 1995 and 2005, the 13th to the 15th term.

6 Does Europeanization Change Executive–Parliament Relations?. . . Table 6.6 Adoption rates of legislative initiatives in the time period from (11th–15th term) No EU Legislative No EU EU No EU keywords EU keywords keywords period impulse impulse (Abstract) (Abstract) (Full text) Initiatives 11 41.3 84.6 42.6 78.9 – 12 41.5 69.0 42.0 70.9 – 13 36.7 58.6 36.5 70.8 35.6 14 39.7 71.0 43.8 75.0 36.1 15 37.1 61.4 39.4 74.1 33.6

105 1987 to 2005

EU keywords (Full text) – – 51.7 68.9 57.9

Total 39.3 Government initiatives 11 81.1 12 86.7 13 84.5 14 84.7 15 67.4

67.1

40.9

73.4

35.3

59.9

93.9 86.3 83.8 93.1 82.9

81.6 87.1 82.4 87.5 68.7

93.2 85.1 89.5 91.0 92.1

– – 85.7 86.7 69.9

– – 82.9 89.4 77.0

Total 81.3 Other initiatives 11 20.3 12 22.8 13 23.3 14 23.5 15 24.3 Total 22.9

87.8

81.7

89.8

81.6

83.3

56.3 40.8 27.1 30.0 23.9 31.4

21.6 23.3 22.8 24.3 24.3 23.3

30.8 41.7 37.5 23.8 22.7 33.1

– – 23.4 21.9 21.8 22.4

– – 24.8 34.6 30.4 29.6

the 15th term was a shorter legislative period due to early parliamentary elections. Accordingly, we find an overall increase in the number of legislative initiatives since the 11th term, with more modest numbers for the shorter legislative period. Regardless of the measure used, the comparison of the adoption rates of initiatives with and without an EU reference shows that those with a reference have a higher adoption rate over all legislative periods apart from the type of initiator. The difference in adoption rates is most pronounced for the EU keyword abstract indicator with an increase from 33.0 to 59.2%, followed by the EU full-text indicator and the EU impulse indicator. However, the differences in the adoption rates are much higher for nongovernmental proposals. While governmental proposals generally have a very high adoption rate, the likelihood of adoption is not significantly higher for governmental proposals with an EU reference. Unlike governmental proposals, the adoption rate for other parliamentary initiatives drastically increases when they refer to the European level. Using our second measure of Europeanization, EU keywords in the abstract, Fig. 6.3 illustrates the effect of the European reference on the adoption rate. Figure 6.3 plots the adoption rates of governmental and nongovernmental proposals with and without European reference. This figure distinguishes between governmental proposals with and without European reference as well as other proposals

106

T. K€onig and L. M€ader 100 90 80 70 60 50 40 30 20 10 0 11.

12.

13.

14.

15.

Government initiatives

EU government initiatives

Other initiatives

EU other initiatives

Fig. 6.3 Adoption rates of governmental and nongovernmental proposals with and without EU impulse across legislative periods (1987–2005; 11th–15th term)

Table 6.7 Amendment rates of legislative initiatives in the time period from (11th–15th term) Legislative No EU No EU period No EU EU keywords EU keywords keywords Initiatives impulse impulse (Abstract) (Abstract) (Full text) 11 35.4 69.2 36.2 66.7 – 12 35.3 57.4 34.6 65.5 – 13 30.2 43.6 30.7 46.1 28.0 14 33.0 54.5 35.4 60.2 29.3 15 24.5 50.5 27.7 58.8 20.4

1987 to 2005

Total 31.9 Government initiatives 11 76.1 12 67.8 13 57.0 14 57.6 15 43.3 Total Other initiatives 11 12 13 14 15 Total

EU keywords (Full text) – – 42.9 55.6 47.1

53.3

33.0

59.2

26.6

48.9

77.6 66.3 55.4 67.7 65.8

75.7 65.6 58.5 59.6 47.7

79.5 71.6 50.9 70.1 71.4

– – 56.2 53.1 40.9

– – 56.8 68.2 60.6

61.3

66.0

61.2

68.5

50.6

62.6

13.8 21.9 22.7 24.1 16.5 20.4

43.8 42.9 28.8 30.0 23.9 31.4

14.9 21.7 22.5 24.7 17.5 20.8

23.1 52.8 37.5 28.6 22.7 36.3

– – 21.1 22.5 13.7 19.9

– – 31.0 34.6 27.8 31.1


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with and without European reference. According to Fig. 6.3, the indication of an EU impulse has almost no impact on the adoption rate of governmental proposals, but it significantly increases the likelihood of legislative success for nongovernmental proposals for almost all legislative periods. The EU impact was especially strong in the 11th and the 12th term and only modest thereafter. Regarding the amendment rates for legislative proposals with and without European reference, we also distinguish between governmental and nongovernmental proposals. According to our results, as displayed in Table 6.7, legislative initiatives with a European reference have a higher likelihood of parliamentary action than initiatives without. This finding contrasts with our first hypothesis but does partly confirm our expectation from the parliamentary scrutinizing approaches. However, the positive effect of Europeanization on the parliamentary amendment rate is constant for both types of initiators. Regardless of whether we consider governmental or nongovernmental proposals, the parliamentary amendment rates are considerably higher for initiatives with an EU impulse. These findings suggest that Europeanization peaks the attention of parliament, who then scrutinizes these initiatives more frequently. Our explorative analysis does not confirm the literature on a strong empowerment of governmental actors in the event of Europeanization. However, Europeanization affects the German legislature. Regarding the adoption rate of initiatives, there is no evidence for a change in favor of the government. While governmental proposals always have a very high adoption rate in the German legislature, the adoption rate of nongovernmental initiatives increases for EU impulses. This indicates that other initiators may perhaps benefit more from Europeanization. Similarly, legislative initiatives with a European reference have a higher likelihood of parliamentary action than initiatives without. This suggests that legislative oversight can stabilize the relationship between governmental and parliamentary actors, respectively that parliamentary actors are aware of the principal agent-problem which inherently arises with Europeanization.

References Br€auninger T, K€onig T (1999) The checks and balances of party federalism: German federal government in a divided legislature. European Journal of Political Research 36(2):207–234 Follesdal A, Hix S (2006) Why there is a democratic deficit in the EU: a response to Majone and Moravcsik. Journal of Common Market Studies 44(3):603–634 Herzog R (2007) Hat die EU zuviel Macht? Die Welt 31.03.2008. K€ onig T (1999) Regieren im deutschen F€ oderalismus. Aus Politik und Zeitgeschichte 49 (13):24–36 K€ onig T, Br€auninger T (2005) Gesetzgebung im F€ oderalismus. In: Speyerer Forschungsberichte. ¨ ffentliche Verwaltung, Speyer Deutsches Forschungsinstitut f€ ur O K€onig T, M€ader L (2008) Das Regieren jenseits des Nationalstaates und der Mythos einer 80-Prozent-Europ€aisierung in Deutschland. Politische Vierteljahresschrift 49(3):438–463

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K€ onig T, M€ader L (2009) Antwort auf die Replik von Daniel G€oler zum Beitrag “Das Regieren jenseits des Nationalstaates und der Mythos einer 80-Prozent-Europ€aisierung in Deutschland”. Politische Vierteljahresschrift 50(1):80–85 Majone G (2005) Dilemmas of European integration: the ambiguities and pitfalls of integration by Stealth. Oxford University Press, Oxford Martin LW, Vanberg G (2005) Coalition policymaking and legislative review. American Political Science Review 99(1):93–106 Moravcsik A (1997) Warum die Europ€aische Union die Exekutive st€arkt: Innenpolitik und € internationale Kooperation. In: Wolf KD (ed) Projekt Europa im Ubergang? Probleme, Modelle und Strategien des Regierens in der Europ€aischen Union. Nomos, Baden-Baden Moravcsik A (2002) In defense of the “democratic deficit”: reassessing the legitimacy of the European Union. Journal of Common Market Studies 40(4):603–634 Scharpf FW (1999) Regieren in Europa: Effektiv und demokratisch? Frankfurt a. M, Campus T€ oller AE (2008) Mythen und Methoden. Zur Messung der Europ€aisierung der Gesetzgebung des Deutschen Bundestages jenseits des 80-Prozent-mythos. Zeitschrift f€ur Parlamentsfragen Heft 1:3–17 von Beyme K (1997) Der Gesetzgeber. Westdeutscher Verlag, Opladen Z€ urn M, Wolf D (1999) European law and International regimes: the features of law beyond the Nation State. European Law Journal 5(3):272–292

Chapter 7

Leading Governments and Unwilling Legislators: The European Union and the Italian Law Making (1987–2006) Enrico Borghetto, Marco Giuliani, and Francesco Zucchini

Introduction If there is some truth in the old saying that “you don’t marry someone you can live with but rather the one that you cannot live without,” one should not be too surprised by the firm resolve of the Italians (both at the elite and mass levels) to tie their country’s destiny to a strong and stable European Union. For most of its early Republican history, Italy’s governing coalitions considered European membership a sort of “insurance against the threat of democratic breakdown” (Cotta 1992, p.210) posed by extremist parties. Italy’s participation in the European community as one of the founding members and the rising interdependence linking the major capitals in Western Europe represented a political buttress upon which the major pro-European political forces (Christian Democratic, Socialist and Liberal) consolidated their electoral support. The symbolic force of Europe did not lose its raison d’eˆtre even after the “normalization” of the Communist party and its gradual acceptance of the principles underpinning European integration.1 Rather, it changed from a stabilizing instrument to a resource in the hands of policy-makers to drive long-needed changes. The legitimization potentials of “external European requirements” (what Dyson and Featherstone (1996) have referred to as a useful vincolo esterno) stem from the fact that short-term political costs of austerity measures were successfully outweighed by the long-term benefits promised by a significant development in supranational integration. Hence, the “European card” was regularly put on the table whenever the need

1 In the mid-1970s, the Italian Communist Party formally accepted Italy’s membership in the NATO and in the European Community. The end of this die-hard ideological bias in the domain of foreign policy foreshadowed the PCI’s strategy of widening the distance from Moscow and favouring a gradual rapprochement with the European socialist left.

E. Borghetto (*) • M. Giuliani • F. Zucchini Post-Doctoral Fellow, Dipartimento di Studi Sociali e Politici, Universita´ degli Studi di Milano, via Conservatorio 7, 20122 Milano, Italy e-mail: [email protected]; [email protected]; [email protected] S. Brouard et al. (eds.), The Europeanization of Domestic Legislatures, Studies in Public Choice, DOI 10.1007/978-1-4614-1502-2_7, # Springer Science+Business Media, LLC 2012

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for unpopular measures loomed on the horizon. Under the threat of “not keeping up with Europe,” Italy undertook reforms in a wide array of policy sectors, ranging from budget to social policy (e.g. Della Sala 1997; Ferrera and Gualmini 2004; Di Palma et al. 2000).2 The perseverance displayed by the Italian elite in making Italy one of the founding members of the European Monetary Union is the most visible example of the strategic importance of “European constraints” in the national political arena. In most cases, these constraints took on the “hard” legal form of EU directives and regulations.3 Over the decades, this ensemble of regulatory measures has progressively pervaded an increasing number of sectors, making the EU one of the main sources of primary law alongside national legislative institutions. The phenomenon has not failed to attract the attention of Italian political commentators and experts who, echoing Delors’ prediction, estimate that a large proportion (the figures differ, but are never too far from 80%) of national policies originate in Brussels. Most of the time, these statements are accompanied by two corollaries regarding the domestic impact of Europe. First, the sphere of action of primary laws adopted within the parliamentary circuit should be gradually restricted. This should be particularly apparent in the Italian case, where Article 70 of the Constitution envisages that the legislative power is jointly exercised by the two Chambers and no specific policy area is reserved to administrative measures. This provision – alongside the doctrine of the “centrality of parliament,” whereby “parliament rather than the executive was (should be) the central and supreme institution of the political system” (Cotta 1994, p.66) – contributed to making the Italian legislature one of the most prolific in Europe in terms of annual law production. If one conceives of European integration as a zero-sum game in terms of sovereignty, the supremacy of European law over national law is expected to place boundaries on the previously unlimited parliamentary mandate. In this sense, some authors understand the “democratic deficit” afflicting the EU as a phenomenon originating in the national political arena because of European membership, rather than as a deficit rooted in democratically unaccountable EU institutions (Katz and Wessels 1999; Schmidt 2006). Second, the process is expected to alter the balance of power between the executive and the legislative to the detriment of the latter (Goetz and Hix 2001; Maurer and Wessels 2001). National executives consolidate their role as gatekeepers between the supranational and domestic spheres in order to reinforce their privileged access to decision-making venues in Brussels and their control over

2

All in all, what distinguished Italy from other European countries has been the perception of Europe in most cases as the solution more than the problem (Radaelli & Franchino 2004, p.944). Others have argued that Italy was “rescued by Europe” (Ferrera & Gualmini 2004). 3 We do not dismiss the importance of “soft law” instruments, such as the various existing forms of intergovernmental policy coordination (e.g. in the framework of the Open Method of Coordination, the Common Foreign and Security Policy etc. . .) or the constraints imposed by membership in the wider EU market and monetary union. Nonetheless, our approach privileges de jure pressures over de facto ones.

7 Leading Governments and Unwilling Legislators. . .

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key areas such as the provision of information (Moravcsik 1994). Studies focusing on the Italian case reveal that these dynamics may also have affected the Italian parliament and undermined its traditional predominance in the law-making process.4 Giuliani (2006) argues that the involvement of the two chambers in defining EU policy, in coordination with executive representatives, has been by and large marginal. Italian legislators passed a variety of reforms to grant the legislature a more relevant role in both formulation and monitoring of European policies.5 But, the parliament lacked the willingness to use these powers, because it was in a mode of, what can be termed, “self-marginalization” (Giuliani 2006, p.177). The same asymmetry between formal powers and actual performance seems to apply to EU policy implementation too, the phase that underwent the most radical upgrading by the Italian policy-makers. In order to standardize and increase the periodicity of the intermittent attention being devoted to European issues by Italian legislative and administrative bodies, the legislator prescribed, toward the end of the 1980s, that the standard transposition channel would in future be an annual Community Act (legge comunitaria).6 Such an act would be drafted every year by the executive and presented to the parliament before March 31st (now January 1st). The legge comunitaria, once discussed and adopted by the parliament following the ordinary process, provides, along the lines of a voluminous package law, for the transposition of those directives that are due to expire in the first half of the following year. The peculiarity of this act is that it does not accomplish, except for some rare exceptions, transposition directly.7 Rather, the legislator has to use it as an allembracing delegation law (see below), establishing for every directive the preferred executive measure needed for its implementation: either administrative acts, regolamenti (secondary level regulations) in areas subjected to previous delegislation or, finally, decreti legislativi (legislative decrees). The last legislative option has been by far the most common. During the period under consideration, one out of every two directives was transposed through legislative decree.8 By devising this procedure, the legislator explicitly aimed at a dual goal: to allow the parliament to keep the transposition phase under its control without giving up on the swiftness and expertise of executive law-making. According to Fabbrini and Dona’s analysis (Fabbrini and Dona’ 2003), the legge comunitaria procedure

4

Hine (1993), writing in the immediate aftermath of the Maastricht Treaty, still considered the Italian parliament as an exception to the “decline of parliaments” thesis. 5 Among the most important reforms, one might single out the following: setting up of EU affairs committees; creation of a special session in the plenary working schedule devoted to the discussion of the executive EU policy; enhanced access (both in terms of timeliness and scope) to information flowing from Brussels; right to request for a temporary interruption in the Council debate of a policy so as to allow MPs to draw up a specific mandate for their governmental representatives. 6 Since the mid-80s, Italy has been among the worst performers in the rankings compiled by the Commission as far as the domestic application of Community rules is concerned. 7 This occurs mainly in two cases: when the object of the directive to be implemented is not very complex or when it is required for the abrogation or amendment of national provisions in contrast with Community Law. 8 That said, one must notice that the Community Act, though representing the primary transposition instrument in Italy, did not exclude recourse to the classic repertoire of regulatory measures.

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proved more successful in pursuing the second objective. Interviews with public officials revealed that the level of parliamentary scrutiny, during the adoption of the legge comunitaria, leaves a lot to be desired. Their reconstruction of the policymaking process concludes that “both the elaboration and approval stages of the legge comunitaria are under government control” (ibid. p.45). This study builds on this strand of research and contributes to previous Europeanization studies on the Italian case in three ways. First, it focuses on the Europeanization of Italian law-making, a topic which has been so far relatively overlooked in literature.9 By providing a first measurement of the extent of Europeanization across different policy sectors, it offers an insight into the progress and differential impact of Europe, which has yet to be properly understood due to a lack of data. Second, this study makes the first attempt to analyze the impact of European integration on the Italian legislature’s policy influence by adopting a large-N research design. Previous work has focused on changes at the level of institutional rules and on the context in which they operated (Giuliani 2006), or adopted a qualitative approach based on interviews with experts (see, e.g., Fabbrini and Dona’ 2003). This study develops a set of indicators aimed at capturing the concept of “legislative influence” and draws inferences from a large data set containing information on the processes and characteristics of the population of legislative acts adopted in Italy across 20 years (1987–2006). Third, the analysis has been extended to decreti legislativi, a type of primary legislative instrument that has become quantitatively and qualitatively important in Italy in the last two decades but is often overlooked in the literature (Vassallo 2007). The rationale for their inclusion in this study lies in their predominant role in the transposition of EU directives, which makes them a crucial case to test the Delors’ prophecy on the Europeanization of national law-making. This chapter is organized into five sections. The next section aims at illustrating the evolution of Italian legislative activities over the last 20 years by identifying two ongoing, interconnected dynamics from the available data. The second section presents a measurement of the extent of Europeanization in Italian law-making, both in the primary legislation passed in parliament and in the legislative decrees issued by the Government. The third section examines whether the Europeanization of legislative activities benefited the government and if so, what policy-specific factor accounts for it. The last section presents our conclusions.

The Recent Evolution of Italian Law-Making Studying changes in Italian legislative processes over the last 20 years by means of quantitative indicators is complicated because of at least three factors. First, diachronic analyses have to take into account the very different durations of recent

9 An exception can be found in Borghetto, Giuliani and Zucchini (2009). Interestingly, they detected evidence of Europeanization also in administrative measures.


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Italian legislatures and their effect on law-making. Second, the political system as a whole has undergone substantial changes to such an extent that the post-1992 period is usually referred to as a “Second Republic” by political commentators (though it did not entail amendments to the Constitution). Inevitably, these changes impacted law-making too, and hence the variations observed in the number and type of laws must be considered with caution as their nature and length have been altered substantially over the years. Third, the proliferation of new countries as a consequence of the collapse of Soviet Union and the expansion of the globalization process has multiplied the number of international relationships to be ruled by laws, namely the number of ratifications of international treaties. The parliament reserves a few days in each legislature for these bills, which is considered at best to be a meaningless formality. Because the inclusion of these bills could bias our results, it was decided to exclude them from the rest of the analysis. Yet, once all of these factors are considered, two dynamics, partially interwoven, emerge clearly from the data (see Table 7.1): (a) the decrease in the number of laws (b) the increasing importance of Government’s role in the legislative process.

The Decrease in the Number of Adopted Laws In the 10th legislature the Italian parliament approved, on average, one law every two days, but in the 14th legislature, an average legislative process took twice as long. This change was caused by a variety of factors. First, the polarization and fragmentation in the last part of the first republic and during the second republic hindered the adoption of bills within committee, i.e., without reporting the proposal to the full floor (the so-called sede legislativa).10 The laws adopted through this procedure, also called leggine, used to be in general short statutes providing “pork barrel projects” and “financial benefits” to relatively narrow constituencies, geographically and/or functionally delimited. Second, the economic emergency in the early 1990s and the introduction of government alternation since the 1996 elections required ruling coalitions to focus their efforts on a few areas of reforms instead of spreading them over many incremental and marginal legislative changes (Zucchini 1997). Finally, the increase in the delegation of laws (see below) reflects that a growing proportion of binding legislative decisions has been made by the executive through legislative decrees, thus reducing the parliament’s legislative load (Vassallo 2007).

10

This decentralized legislative procedure is envisaged by the Italian Constitution and was very common during the First Republic (Zucchini 1997; De Micheli & Verzichelli 2004). Until the early 70s, over 75% of all legislation (on average) was adopted in committees

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Table 7.1 Italian legislative production (1987–2006)

Legislature Years 10th 1987 1988 1989 1990 1991 1992 Total (daily average)

Laws without international treaties (N) 42 132 174 195 204 114 861 (0.49)

Executive initiative (% over total without IT) 90.48 69.70 69.54 56.41 59.80 38.60 61.21

Average number of delegations per law 0.05 0.04 0.03 0.35 0.03 0.34 0.15

Total legislative decrees – 3 23 24 31 65 146 (0.08)

Laws converting decree laws (% over total without IT) 71.43 28.03 27.01 13.85 16.67 10.53 21.72

11th

1992 1993 1994 Total (daily average)

34 151 64 249 (0.35)

85.29 69.54 56.25 68.27

0.97 0.14 0.55 0.36

48 57 11 116 (0.16)

55.88 47.02 43.75 47.39

12th

1994 1995 1996 Total (daily average) 1996 1997 1998 1999 2000 2001 Total (daily average)

64 95 22 181 (0.24)

93.75 74.74 81.82 82.32

0.02 0.26 1.50 0.33

9 26 16 51(0.07)

82.81 57.89 63.64 67.40

80 112 113 120 104 76 605 (0.33)

78.75 75.00 73.45 67.50 63.46 50.00 68.60

0.25 0.40 0.50 0.68 0.30 0.18 0.41

28 89 79 114 76 69 455 (0.25)

58.75 28.57 17.70 27.50 26.92 18.42 28.76

2001 2002 2003 2004 2005 2006 Total (daily average)

52 89 96 92 80 47 456 (0.25)

82.69 76.40 70.83 68.48 68.75 38.30 69.08

0.15 0.48 0.73 0.28 0.76 0.26 0.48

8 38 80 62 78 54 320 (0.18)

67.31 48.31 37.50 45.65 40.00 25.53 43.86

13th

14th

The Strengthening of the Government’s Law-Making Role If having the first and/or the last say in a decision making process can be taken as evidence of a powerful role, then the data available on legislative output indicate a strengthening of the Italian government in the legislative arena in the last two


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decades. This is evidenced by the following observations: (a) a slight increase – from 61% in 10th legislature to 69% in the 14th legislature–in the proportion of laws sponsored by the government; (b) a substantial, though irregular, increase in the delegation of laws and of corresponding legislative decrees. A delegating law (Art. 76 and Art. 77[1] in the Italian Constitution) is formally a law approved by ordinary procedure and, in rare instances, by decree law procedure (see below). This type of law contains at least one provision (delega, delegation) delegating the Executive power to issue new primary legislation (called decreti legislativi, legislative decrees) according to more or less detailed criteria and within a specified period of time (both constraints have to be explicitly laid out in the delegation). Each delegating law contains a variable number of deleghe. The Constitutional Court can declare a legislative decree invalid if it crosses the limits provided by the delegating law. Once the government is granted these legislative powers, the parliament cannot take them back, and most policy-making processes will have to be undertaken exclusively in the government’s rooms. Thus, the Government has the last say in the decision making process. Delegating laws and legislative decrees were not very common during the First Republic (De Micheli and Verzichelli 2004). Mostly, they were associated with “technical” issues and only occasionally with important reforms. The recourse to this procedure has grown exponentially since the early 1990s, and both practitioners and scholars consider it to be the most apparent evidence of the increased role of the executive, vis-a`-vis the parliament, in the law-making process (Vassallo 2007; Gianniti and Lupo 2004; Kreppel 2009). Some scholars refer to it as the determining factor explaining why “compared to the previous decades, the 1990s were a period of legislative activism and of real governance” (Capano and Giuliani 2001, 24) or describe it as “the most significant change in relations between government and parliament introduced during the 1990s and maintained since” (Vassallo 2007, 699). Indeed, the growth of delegations is impressive: if at the end of the eighties, on average, there was one delegation for every seven laws, in the 14th legislature there was one delegation for every two laws. Of course, this proliferation of delegations brought about a parallel increase in legislative decrees. In the last legislature (14th), the average number of legislative decrees per day was twice that of the 10th legislature. Decree laws (Decreto legge) should not be mistaken for legislative decrees. In the decree law procedure (Art. 77[2] Italian Constitution), the Executive can issue a decree in “extraordinary cases of necessity and urgency” (in most cases, these conditions are taken for granted). Executive’s decrees come into force immediately and remain effective for 60 days since their issuance occurs without the need for parliamentary approval. If after this period, the parliament does not “ratify” the decree, then the status quo is restored. A decree law cannot, therefore, be defined as executive legislation as the last say belongs to the parliament. Certainly, this procedure allows the Executive to push its priorities through the crowded parliamentary agenda. Because of the 60-day deadline for its ratification, the bill ratifying a decree-law is granted top priority both in the Committee and in the Floor’s agenda. The other side of the coin (at least for the government) is that the parliament is not constrained in its right to amend this bill. If the executive opposes its amendments,

116 Table 7.2 European keywords EU keywords (Italian) Comunita` economica europea Comunita` europea Comunita` europea del carbone e dell’acciao Comunita` europea dell’energia atomica Diritto comunitario Diritto europeo Mercato comune Mercato europeo Mercato unico Sistema monetario europeo Unione europea Unione monetaria europea

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Abbreviation CEE CE CECA

EU keywords (English) European Economic Community European Community European Coal and Steel Community

EURATOM

European Atomic Energy Community Community law European law Common Market European Market Single Market European Monetary System European Union European monetary Union

SME UE UEM

MPs can always threaten to sink the bill.11 This situation has often resulted in the “swelling up” of ratification bills because of the number of additions to the final text. Even so, the number of decree laws has substantially increased over the decades. Whereas in the early 1990s they were about 20% of the laws approved by the parliament, in the 14th legislature they comprised more than 40%.

The Europeanization of the Italian legislative Output The objective of this section is to provide evidence on the extent of Europeanization of the Italian legislative production. For this, a keyword search was carried out on all of the legal texts. A law is classified as Europeanized if it contains at least one of the key words selected in the framework of the Delors’ Myth Research Project (see Table 7.2). As laws and legislative decrees are equal in status according to the Constitutional hierarchy of norms, and the proportion of the latter has become quite substantial over the last few decades, the unit of analysis of this study comprises both. But, because merging of the parent acts (delegating laws) with the corresponding delegated measures (legislative decrees) under the same index amounts to counting the same normative content more than once, the analysis will have to be done in two steps. Therefore, the presence of European links was inspected first in parliamentary laws and then in legislative decrees.

11

Executives used to reissue law-decrees not converted into primary law by the parliament, in which case a decree loses validity from the day of its issuance. The latter situation became more common after the mid-70s and reached its peak during the 12th legislature, when out of more than 700 decrees issued (and subsequently reiterated) only 120 became laws before expiring. Confronted with this proliferation of “emergency measures”, the Constitutional Court could no longer hold itself back from coming down heavily with a famous sentence in 1996 that reiteration was unconstitutional. This decision brought about a drastic drop in the number of law-decrees issued (or, more precisely, re-issued) and, according to some authors (see Zucchini 2010), contributed to reinforcing the executive position vis-a`-vis the parliament.


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250

50% 45%

200

40% 35%

150

30% 25%

100

20% 15%

50

10% 5%

0

X

XI

2006

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2004

2003

2001

2002

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XIII Europeanized

2000

1998

1997

1996

1995 XII

Not Europeanized

1996

1994

1993

1994

1992

1992

1991

1990

1988

1989

1987

0%

XIV % Europeanized

Fig. 7.1 Europeanization of the legislative production in Parliament (1987–2006)

Laws Adopted in Parliament In absolute terms, the number of laws with a European link has been steady over the study period, but it has been marginally increasing in terms of the overall legislative output (largely because of the contemporary decrease in the number of legislative measures). Whereas in the 10th legislature only 13% of the laws had a European link, this figure increased by only 4% in the last legislature (14th) (see Fig. 7.1). According to the chosen Europeanization measurement, Delors’ predictions went largely unfulfilled. Furthermore, we expect that the distribution of European links should also vary remarkably across policy areas (see Fig. 7.2). To answer this question, the classification of individual legislative measures was employed according to the main policy content developed by the US Policy Agendas Project and coded each law into one policy sector. To capture the varying level of EU involvement by policy area, all sectors were grouped into five ordinal classes, which resemble – with some adaptations – those of the classification proposed by Nugent (2006, p.388). Across the whole period, more than 50% of the laws relating to foreign trade have a European link, but the percentage shrinks to less than 4% for laws dealing with crime, legal codes, and family. Predictably, agriculture (28%), environment (26%), and transport (22%) are the other Europeanized sectors. The distribution of laws with a European link (in terms of both absolute and relative figures) across sectors reflects quite faithfully the order suggested by Nugent.12 However, two important exceptions

12

If the category “Extensive EU involvement” is assigned 5, the category “No EU involvement” 1, and the intermediate categories other values in between, the correlation index between Nugent’s classification and percentage of laws with European link is 0.75

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700 600 500 400 300 200

Extensive EU involv.

Considerable EU involv.

Policy responsability shared between the EU and the member states

Not Europeanized

Limited EU involv.

Law&Crime

Housing

Government Operations

Civil Rights&Liberties

Social Welfare

Public Lands

Health

Education

Defense

Culture&Media

Transportation

Science&Technology

Labor&Immigration

International Affairs

Environment

Energy

Macroeconomics

Banking&Commerce

Foreign Trade

0

Agriculture

100

Virtually no EU involv.

Europeanized

Fig. 7.2 Euopeanization of the legislative production in Parliament in terms of policy areas (1987–2006)

are found: “Civil rights” and “Science and technology.” The former is unexpectedly a Europeanized sector, and in the latter, Europeanization is weaker than expected. The dispersion of legislative measures, with or without a European Link across policy areas is more or less the same: the Duncan index is 25 and the Pearson correlation 0.592.13 Quite interestingly, this similarity increased over the years– albeit unevenly – and these figures changed from 30.5 and 0.382 in the 10th legislature to 23.5 and 0.669 in the 14th. This finding may originate from a gradual extension of EU competences as a consequence of EU treaty reforms, although it is not confirmed by data on legislative decrees.

Legislative Decrees The soaring number of legislative decrees is a recent phenomenon and it is closely connected to the acceleration of the European integration process toward the end of the 1980s. Indeed, laying out the juridical foundations of the European Union

13

The Duncan index is a measure of similarity of two distributions. It is defined as: n P xi yi 100 where i ¼ variable category, and xi(yi) ¼ frequency of the Duncan index ¼ 12 X Y i

category i in the population X (Y). If the laws sponsored by the government (X) and the laws sponsored by the parliament (Y) were divided into only two categories, A and B, then the overall number of government’s laws is X ¼ 300 and that of parliament’s laws Y ’ 200. The government’s laws of the same category are yA ¼ 75. The laws of category Aare xA ¼75100 the parliament’s and 200 125 100 ¼ 4:166: Duncan index is 12 100 300 200 þ 300 200 The Duncan index varies from 0 (maximum similarity) to 100 (minimal similarity).


119 100%

120

90% 100

80% 70%

80

60% 60

50% 40%

40

30% 20%

20

X

XII

EU link/Transposition

Only EU link

2004

2005

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2002

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1997

1996

1996

1995

1994

1993 XI

No EU link

1994

1992

1992

1991

1990

1989

1988

10% 0

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% EU link

Fig. 7.3 Proportion of legislative decrees per year and type of EU link

required every Member State to assimilate a large number of measures (mostly directives) in its domestic legislative framework over a tight time-schedule. As already mentioned, the Italian government has fulfilled its transposition obligations mainly by implementing the numerous delegations contained in the annual Community act and issuing legislative decrees.14 Figure 7.3 illustrates that, especially in the early 1990s, the existence of a EU link is strongly correlated with transposition duties. However, since the 13th legislature, an increase of norms is observed with only a European inspiration. Even so, the proportion of Europeanized legislative decrees over the total output is almost always above 50%, with peaks of 80%, thereby confirming, to some extent, Delors’ predictions. References to Europe, which are largely marginal in statutory measures, mushroom when the legislative decrees issued by the executive are taken into consideration. If one looks at the range of policy areas regulated through this instrument (Fig. 7.4), a clear-cut division of labor is discovered – as expected – between the EU and Italy. Legislative decrees with a European link (both transposition decrees and decrees with simply a European inspiration) insist on very different policy areas with respect to decrees not linked to Europe. The Duncan index calculated by comparing the two series is 51.73 and there is no significant correlation (0.13). The greatest amount of legislative effort has been put in traditionally EU-regulated areas belonging to the European Communities Pillar, namely agriculture, market regulation (Banking & Commerce), and environment.15 Similar to our analysis based on laws, the distribution

14

Besides being the main gateway between the EU and the Italian legal systems, the Community Act has been the single greatest source of legislative delegations. If one counts one delegation for every directive transposed by legislative decree authorized by the Community Act, the number of Comunitaria-related delegations outnumbers that of the other types of delegations by 586 to 449. 15 Both foreign trade and foreign policy are not normally regulated through legislative decrees, because acts in these domains appear mainly in international treaties, which - according to the Italian Constitution - require a parliamentary act to make them operative.

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140 120 100 80 60 40

Extensive EU Considerable EU Policy responsability shared between the EU and the involv member states involv. No EU link

EU link/Transposition

Limited EU involv.

Law&Crime

Housing

Government Operations

Civil Rights&Liberties

Social Welfare

Public Lands

Health

Education

Defense

Culture&Media

Transportation

Science&Technology

Labor&Immigration

International Affairs

Environment

Energy

Macroeconomics

Banking&Commerce

Foreign Trade

0

Agriculture

20

Virtually no EU involv.

Only EU link

Fig. 7.4 Number of legislative decrees by policy area and type of EU link

of Europeanized legislative decrees also fits rather satisfactorily in Nugent’s classification of sectors according to EU policy involvement.16 The impact of EU directives is extensive – albeit allegedly in more recent times – in policy areas where policy responsibility is shared between the EU and member states, or EU policy involvement is limited in health sectors. Once again, European links are detected not only when the fulfillment of transposition obligations is in order, but also otherwise. The data show that the scope of Europeanization, for reasons not related to transposition, has been wide-ranging and Europeanization has touched every sector over the last 20 years.

How the Evolution of Italian Law-Making Interacts with European Link In the first section, it is observed that the decrease in the number of laws and the strengthening of the executive role in the legislative arena are two important and uncontroversial aspects that characterize Italian law making over the past two decades. Are these trends connected to some extent with the variation in the presence of EU links in our pool of legislative acts?

16

If one assigns 5 to the category “Extensive EU involvement” and 1 to the category “Virtually no EU involvement” and the other values in between to the intermediate categories, the correlation index between Nugent’s classification and the percentage of legislative decrees with European link is 0.73.

7 Leading Governments and Unwilling Legislators. . . Table 7.3 EU link in executive-sponsored laws, delegations Executive-sponsored laws

10th 11th 12th 13th 14th

EU link (% over total laws with EU link) 54.87 53.33 84.62 73.58 77.22

No EU link (% over total laws without EU link) 62.03 70.32 82.14 67.54 67.37

121

Delegations EU link (average number) 0.96 2.20 4.38 1.88 2.46

No EU link (average number) 0.02 0.11 0.01 0.09 0.07

The two columns making up Table 7.3 suggest as follows: 1. The proportion of executive-sponsored laws in the last three legislatures is higher among the laws with the European link. 2. Delegations (and consequently legislative decrees) are much more common when bills have a European link. This is not surprising because many of them are contained in the Community Act (introduced right at the beginning of the period under consideration). These findings support the view that the gradual retrenchment of the Italian parliament in the legislative arena has been stronger when the bill originated from or was inspired by Europe. In the most recent legislatures, MPs rarely sponsor a bill with a European link. Moreover, when they do so, the odds are that they are authorizing the government to define the details of its normative content by means of legislative decrees.

Inspecting Data on Legislative Amendments That said, even though the parliament is not a major promoter of legislation with EU links, this does not necessarily mean that it cannot lead the review and discussion of Europeanized bills and change, more or less radically, their content. The same holds true for delegating laws which, once amended by the parliament, can in fact drastically restrict the discretionary powers of the executive in the postdelegation phase. Unfortunately, the present data on the parliament amendatory activity cover only the last 9 years of the period under study (roughly the 13th and 14th legislatures). On the other hand, they provide both the number of approved amendments per type of law and identity of the proposer (Government vs. MPs). As the length of bills varies substantially, one has to consider these numbers very carefully: bills with a EU link are, on average, systematically larger than others and, therefore, they are more likely to be amended a priori, regardless of whether the parliament or the government is determined to correct and change their original content. The proportion of laws (see Table 7.4), with at least one amendment, is considerably higher among laws with a EU link, but this difference disappears once

122

E. Borghetto et al.

Table 7.4 Approved amendments EU link Percentage of laws with at Years least one (legislature) amendment 1997–2001 41.24 (13th) 2001–2006 77.22 (14th) Total 57.39

No EU link

Approved total amend. per 100 words 0.25

Percentage Approved of laws parliamentary with at amendments least one per 100 words amendment 0.20 30.61

Approved total amendments per 100 words 0.25

Approved parliamentary amendments per 100 words 0.23

0.20

0.18

42.71

0.27

0.25

0.23

0.19

36.27

0.26

0.24

the totality of amendments and the length of the laws are considered. Moreover, if the focus is only on MPs-sponsored amendments, their number per 100 words is systematically lower when dealing with laws containing a EU link. This might suggest that the stronger role of the Government at the beginning (when proposing a bill) and end of the legislative process (by taking advantage of the numerous delegations), in the presence of a EU link, is not counterbalanced by a more proactive amending activity of MPs in-between.17 A more in-depth investigation reveals that the number of approved amendments varies significantly across policy areas. As has already been done for laws and legislative decrees, the classification elaborated by Nugent was adopted for assessing the level of EU policy involvement in the coding scheme developed by the US Policy Agendas Project. Considering the overall period (1997–2006), it is found that some laws with a European link have been amended more exhaustively than those concerning the same issues but without a European link, while some others remain less amended (Table 7.4). However, division of the policy areas of the last 10 years in the two legislatures (respectively ruled by a center-left and center-right coalition) into policy areas more amended and policy areas less amended shows, not too surprisingly, a change between the two. Moreover, while in the 13th legislature there is an inverse correlation between the intensity of the amendment activity and the a priori level of EU involvement,18 in the next legislature no such correlation exists. Therefore, policies that traditionally belong to the European domain have not necessarily become less controversial in the Italian legislative arena. Rather, the difference seems to have originated from policy orientation and party composition of the legislative arena, either in the EU political system or in Italy. Looking at the number of amendments per 100 words in the 13th

17

This result holds true when considering only executive-sponsored legislation. If one assigns 5 to the category “Extensive EU involvement” and 1 to the category “Virtually no EU involvement” and the other values in between to the intermediate categories, the correlation index between Nugent’s classification and average number of amendments per 100 words is 0.388 in the 13th legislature and 0.13 in the 14th Legislature.

18


123

legislature, assessing if a law is linked to Europe seems to lead to more amendments in sectors such as “Law & Crime,” “Social Welfare,” and “Transportation.” In the 14th legislature, the same dynamic concerns “Education,” “Labor, Employment and Immigration,” and “Foreign Trade.” Additionally, “Health” and “Banking & Commerce” have a similar level of amendments in both legislatures, regardless of the link with Europe. “Health” is less controversial when linked to Europe, and the reverse is true for “Banking & Commerce.” What these apparently confusing results suggest is that bills with a European link are not located in any ideological consistent dimension, from which the current parliamentary majority is systematically more or less distant. And, the distance changes according to policy areas (Table 7.5).

Has Europe Contributed to Strengthen the Italian Government? A Tentative Explanation The evidence presented so far points to a strengthened role for the government when the bills have a EU link. In many cases, Europeanized legislation was initiated and drafted directly by the government, often following a delegation by the parliament. What is more, legislative processes involving European issues do not exhibit a greater rate of approved amendments in comparison to other processes. Yet, one needs to explain what bill-specific factors may account for it. The objective of this section is to answer this with the available data by means of three a priori plausible hypotheses, the last two of which are not easy to distinguish empirically. Because of space and data limitations, the following analysis adopts an exploratory approach. H1: Bills with a European link concern more controversial issues This explanation is based on the level of conflict between government and opposition and within the government coalition. The propensity to delegate the bills that concern EU-related issues might be a strategic move by the governing coalition to take an issue outside the more exposed parliamentary arena and leave discussion on the details of the measure to the Council of ministers. Besides, the government initiative originates from the rational calculation of party leaders to prevent fragmentation and conflict inside the parliamentary majority. If bills with a EU link were more controversial, then one should find evidence of this conflict in the legislative process. Opposition MPs, as well as dissenting majority MPs, will try to put off their approval by using all delaying tactics permitted by the standing orders. The measurement of conflict followed here is the number of tabled amendments. This indicator might be taken as a sign of disagreement for two reasons: (1) it may signal a departure from the original proposal (2) it is a common device used to delay the approval of a law. Just as the approved amendments, the number of voted amendments cannot be considered independently of the length of the bills; therefore, the number of

Domestic macroeconomic issues Civil rights, minority issues, and civil liberties Health Agriculture Labor, employment, and immigration Education Environment Energy Transportation Law, crime, and family issues Social welfare Community development and housing issues

0.11 0.16 0.34

0.37 0.33 0.88 0.31 0.20

33.33

20 36.96 35.29 40.54 66.67 40

28.21 35.71 50 55.17 48.03

19.05 31.82

75

50 54.55 50 63.64 71.43

50 –

0.57 .

0.97

Laws without EL 23.91

Laws with EL 0.18

0.32 0.08

0.25 0.29 0.15 0.23 0.34

0.33 0.23 0.22

0.35

Laws without EL 0.1

Amendments per 100 words

Laws with EL 80.65

Percent of laws with at least an amendment

Table 7.5 Approved amendments per policy areas Total

50 –

16.67 25 0 57.14 33.33

14.29 20 50

66.67

Laws with EL 68.75

33.33 20

20.83 23.53 66.67 53.85 45.07

27.59 26.09 35.71

16.67



13th Legislature

0.57

0.05 0.28 – 0.35 0.5

0.08 0.05 0.29

0.99

Laws with EL 0.28

0.38 0.01

0.28 0.27 0.17 0.14 0.32

0.28 0.09 0.19

0.36



100 71.43 100 75 100

33.33 57.14 100

100

Laws with EL 93.33

0 41.67

40 54.55 45.45 56.25 51.79

52.94 64.29 43.75

44.44



14th Legislature

0.62 0.38 0.99 0.29 0.13

0.15 0.24 0.53

0.62

Laws with EL 0.10

– 0.20

0.18 0.33 0.14 0.41 0.40

0.41 0.49 0.26

0.34



2 1

2 4 3 3 1

2 5 3

1

Nugent’s classification 3

124 E. Borghetto et al.

Banking, finance, 63.64 36.36 0.31 0.17 and domestic commerce Defense 33.33 32.81 0.10 0.21 Space, science, 25 43.75 0.24 0.49 technology, and communications Foreign trade 50 25 0.26 0.16 International affairs 70.59 21.43 0.29 0.13 and foreign aid Government 66.67 45 0.15 0.43 operations Public lands and – 46.15 . 0.56 water management Culture and 0 9.3 0.00 0.05 entertainment 1 ¼ No EU involvement; 2 ¼ limited EU involvement; 3 ¼ involvement; 5 ¼ extensive EU involvement 34.21 41.67

0 11.11 29.55 57.14

8

33.33 –

33.33 55.56 57.14 –

0

0.00

0.45

0.04 0.04

0.21 –

0.30

0.03

0.40

0.4

0.00 0.08

0.30 0.53

0.17

72.73

100 87.5

33.33 100

66.67

11.11

33.33

57.14

50 31.03

30.77 50

38.71

0.00

0.28

0.66 0.17

0.01 0.48

0.32

0.12

0.88

0.46

0.24 0.16

0.11 0.39

0.16

–

2

5 3

2 3

4

Policy responsibility shared between the EU and the member states; 4 ¼ considerable EU

33.33

60

7 Leading Governments and Unwilling Legislators. . . 125

126

E. Borghetto et al.

Table 7.6 Voted amendments (1997–2006) Laws without EI Years and legislature 1997 1998 1999 2000 2001

Voted amendments 269 2,037 2,273 2,773 1,640

Laws with EI Amendments per 100 words 0.26 1.45 1.34 2.55 1.49

Voted amendments 909 3,085 3,039 4,069 940

Amendments per 100 words 0.49 2.49 2.16 2.15 1.52

Legislature 13 2001 2002 2003 2004 2005 2006

8,992 1,443 1,580 1,858 2,248 1,261 637

1.42 1.99 1.63 1.47 2.16 1.62 0.96

12,042 1,920 3,560 1,239 2,614 2,287 135

1.71 3.54 2.31 0.95 2.21 0.98 0.38

Legislature 14 Total

9,027 18,019

1.66 1.53

11,755 23,797

1.62 1.67

amendments per 100 words (Table 7.6) was calculated. During the period 1997–2006, this index does not lend much support to the conflict-based hypothesis: it is just slightly higher for laws linked to Europe. Moreover, most of the difference must be attributed to the first 5 years of the period under consideration. H2: Bills linked to the EU concern highly technical and complex issues and, generally, MPs do not have enough knowledge and expertise to deal with them This time, the decision to delegate the discussion and drafting of these norms to the government is based on the incapability of MPs. To explore this hypothesis, the pool of laws, not linked to the EU, was divided into two categories, based on whether they relate to the same issue addressed by Europeanized laws or not.19 If the issues concerning Europe were, in general, more technical or complex, one should expect a higher rate of government initiative, more delegations, and fewer approved amendments among laws without European link, but belonging to sectors where most Europeanized laws are concentrated. The results are inconclusive (Table 7.7). While laws not linked to the EU but sharing the policy fields with Europeanized laws do not seem to be remarkably less amended than the rest, they were sponsored more often by the government and they had more delegations (albeit the figure is not comparable to that of laws linked to Europe). H3: The topics of bills linked to the EU are not salient in the eyes of MPs’ Constituencies, and in any case individual MPs can hardly be considered responsible for their content

19

The authors have considered as issues the micro-topics of the U.S: policy agenda projects.


127

Table 7.7 Laws without European link

Laws about the same issues treated in the laws with EL Laws about issues not addressed in the laws with EL

% Sponsored by the government 68.9

Average number of delegations per law 0.06

Approved amendments per 100 words 0.23

57.3

0.02

0.25

Table 7.8 Similarity indexes in terms of issues: laws sponsored by MPs, laws sponsored by the government, laws with a European link Laws sponsored Laws sponsored by MPs by the government Laws with EL

Laws sponsored by MPs Laws sponsored by the government Laws with EI * p

The Europeanization of Domestic Legislatures: The Empirical Implications of the Delors' Myth in Nine Countries

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