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Negotiation theory and the EU:
the state of the art
Andreas Dür, Gemma Mateo and Daniel C. Thomas
Abstract The once-distinct literatures on European Union politics and negotiation theory are increasingly interlinked, with each drawing upon and contributing to the other. This collection aims to stimulate even more, and more systematic, research on negotiations in the EU. In particular, it presents a state of the art of the literature at the intersection of these two fields by identifying areas of considerable research progress and by proposing a set of questions that require further research. In the introduction, we elaborate the rationale of this volume and introduce the various contributions.
Introduction
Negotiations are ubiquitous in the European Union (EU) and essential to its functioning. Virtually every EU activity involves or was set in motion through a process of negotiation. Moreover, in one way or another, these negotiations include every type of actor in the EU, including most notably the governments of member states, the Union’s supranational bodies, and national parliaments, but also civic associations and industry lobbies, at least informally. Given that the EU was born as a voluntary association of sovereign states, one could even describe negotiations as a behavioural manifestation of the EU’s fundamental identity.
Negotiations are both required to modify the EU’s institutional framework for decision-making and omnipresent in the Union’s day-to-day decisionmaking. For example, in Intergovernmental Conferences and sessions of the European Council, member states negotiate about the distribution of power across the EU’s institutions and the delegation of authority to the supranational level, as well as the geographic extent and ultimate purposes of the EU itself. Before the European Commission presents a proposal for new EU legislation, it has to negotiate with the Council of Ministers and in many cases with the European Parliament to ensure passage of the proposal. The Commission also often exchanges proposals with civil society representatives whose support may be needed to ensure the transposition and implementation of legislation. Within the Committee of Permanent Representatives (COREPER) and the Council of Ministers, governments of the member states negotiate with each other to find the super-majorities needed to pass legislation or to reach agreement on common foreign and security policies. Governments also negotiate with their national parliaments to ensure ratification of agreements reached at the EU level and transposition into national law of EU directives and regulations.
Nonetheless, the scholarly literature on European integration developed for years with scant attention to the parallel development of negotiation theory. The field of negotiation theory that has emerged since the 1970s, especially in the United States (US), examines a wide range of themes, including which strategies actors use in negotiations, which factors enhance (or reduce) the bargaining power of actors, the conditions under which negotiations are likely to be efficient, whether the preferences of actors change as they enter negotiations, the role of discourse and arguments used in negotiations, the impact of long versus short time horizons, and what role mediators can play in facilitating compromises (Fisher and Ury 1981; Hopmann 1996; Odell 2000; Raiffa 1982; Zartman 1978). Since much of this work was done by US-based scholars, it tended to focus empirically on US-Soviet arms control negotiations and the Middle East peace process (Hopmann 1974; Jensen 1963).
By contrast, relatively little theory-driven empirical research was done on negotiations in the EU. Instead, research focused on the ideas held by the EU’s founders, the commercial interests that informed national preferences, and the evolving competencies of the EU’s supranational bodies, among other topics. To the extent that EU scholars addressed negotiations prior to the late 1990s, their work tended to be heavily descriptive in nature and did not explicitly use or attempt to contribute to negotiation theory (Wallace 1990; Werts 1992).
Fortunately, the once-distinct literatures on European Union politics and negotiation theory are now increasingly interlinked, with each beginning to draw upon and contribute to the other. Especially within Europe, scholars have begun to draw explicitly on negotiation theory to analyse the predominant negotiation style in the EU and the role of specific actors in EU negotiations and to explain particular policy outcomes (Da Conceição-Heldt 2006; Dür and Mateo 2010; Elgström and Jönsson 2000; Lodge and Pfetsch 1998; Meerts and Cede 2004; Niemann 2004; Tallberg 2006; Thomas 2009). The intergovernmental conferences that have taken place since the mid-1980s with the aim of revising the EU’s treaties have provided a particular impetus to the emergence of this literature (Reh 2008). At the same time, a few scholars of international relations have started building on research on the EU when contributing to general theories of negotiation (Müller 2004; Risse 2000).
Building on these developments, this collection offers a thematic survey of cutting-edge research on negotiation dynamics in the EU and identifies research questions and methods needed to advance understanding of this critical area in EU studies. Its purpose is to give new impetus to research that applies negotiation theory to study negotiations in the EU and uses the EU as a laboratory to contribute to the development of negotiation theory. The various papers thus assess progress to date, consider new avenues for future research and propose empirical methods useful for exploring them.
Characteristics of EU Negotiations
Before introducing the various papers in the collection, it is helpful to consider some of the general characteristics of EU negotiations. EU negotiations are multilateral, multi-issue, recurrent, sometimes informal, subject to a distant shadow of the future, and complicated by the fact that some of the institutions within which they occur are also negotiators in their own right. Starting with the last of these, EU negotiations are shaped significantly by the fact that some of the Union’s most important institutions function both as negotiation forums and as negotiating actors with policy preferences, strategies and the ability to deny agreements that do not satisfy them. For example, the European Commission is charged by the treaties with proposing legislation and (alongside the Court of Justice) with ensuring its implementation, which requires it to negotiate with the member states and other EU institutions. Yet the Commission is not monolithic: negotiations are common and often quite intense within the College of Commissioners and between the various Directorates-General. Similarly, while the European Parliament’s role as co-legislator requires it to negotiate with the Commission and the Council, its own party-groups negotiate amongst themselves over almost every item on the Parliament’s agenda.
Second, EU negotiations tend to be multilateral, in both senses of the word. That is, they tend to involve more than two actors (frequently more than two types of actors) and most occur in a context laden with voting rules and other generalized principles of conduct’ that impose expectations on all involved (Ruggie 1993). At the same time, many EU negotiations occur in informal settings, such as the bi-annual ‘Gymnich’ meetings of EU foreign ministers or the Presidency’s tour de capitales, where expectations about negotiating behaviour are far less stringent. EU negotiations also tend to be multi-issue in scope, either because multiple issues are formally under discussion at the same time and thus subject to explicit trade-offs or because actors’ preferences with regard to upcoming issues can be leveraged against present concessions.
Moreover, the EU’s institutional intensity ensures that negotiations among its member states and supranational institutions are recurrent in nature. As a result, officials who participate in EU negotiations, even those who are not based in Brussels, are very likely to know their counterparts and to have negotiated together before. This might be expected to facilitate co-operation by fostering trust or perhaps even a common identity (Lewis 2005). On the other hand, since EU membership does not expire and the Union shows no signs of breaking up, member states and institutions have a distant shadow of the future, meaning high confidence that their relationship will endure well into the future. This may facilitate cross-issue trade-offs, by making agreements on the exchange of concessions more credible, but actors who expect to be bound for a long time by any deal they accept are likely to drive a hard bargain at the negotiating table (Fearon 1998). Consideration of these characteristics is critical to any effort to understand EU negotiations or to explore their implications for broader theories of negotiation.
Structure of the Collection
In the first contribution, John Odell distinguishes three separate strands in the broad literature on negotiations in international organizations that so far have evolved with little cross-fertilization. Each of these strands, according to him, has the potential to provide interesting insights into negotiations in the EU. Jonas Tallberg then calls upon scholars to pay more attention to the design of the institutions within which EU negotiations are embedded. This is important, he argues, because institutions should be seen as endogenous rather than exogenous to the negotiation process.
The following five contributions all are concerned with negotiation strategies and styles in the EU. To start, Jeffrey Lewis and Andreas Warntjen concentrate on the question of whether there is a dominant negotiation style in the EU. Both come to the conclusion that styles can vary from one negotiation to the next, and both draw attention to institutional factors in explaining this variation. Andreas Dür and Gemma Mateo then argue that there is likely to be variation in the choice of bargaining strategy across EU member countries, with country characteristics such as power, preferences and culture explaining this variation. Heather McKibben, in contrast, stresses differences from one EU negotiation to the next depending on the characteristics of the issue under negotiation and the opportunities for issue linkages. The set of papers concerned with negotiation styles and strategies is completed by the contribution by Thomas Risse and Mareike Kleine, who consider the role of arguing in EU negotiations. The important research question, according to them, is not whether arguing takes place in EU negotiations but under which circumstances arguing affects actor preferences.
The final two contributions deal with the role of the Council Presidency and bargaining power. Arne Niemann and Jeannette Mak summarize research on the role of the Council Presidency as mediator in EU negotiations. They propose a research agenda aimed at providing an answer to the question of the conditions under which norms guide Presidency behaviour. Finally, Stefanie Bailer focuses on bargaining power as a key factor in explaining the outcomes of EU negotiations. She discusses the evidence related to the impact of voting power, economic size, agenda-setting power, bargaining skills and domestic constraints in the Council of Ministers and EU Council summit meetings, and recommends areas for new research.
Acknowledgements
This project was supported by grants from the Irish Research Council for the Humanities and Social Sciences (Government of Ireland Thematic Project Grants 2006/2007), the University Association for Contemporary European Studies, University College Dublin’s College of Human Sciences, and the UCD Dublin European Institute.
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