Regulatory Delegation in the European Union

Networks, Committees and Agencies

Emmanuelle Mathieu

• Publisher: Palgrave Macmillan
• Year: 2016
• Print ISBN:
  9781137578341
• eBook ISBN:
  9781137578358
• Topic: Politics & International Relations
• Subtopic: European Politics
• Index: Politics & International Relations

This book addresses the regulatory capacity of the EU as it responds to the huge challenge of realizing the single market. It explores its weaknesses, the EU regulatory networks, expert committees and EU agencies formed in response, and the exceptionally large and complex transnational regulatory system which has resulted. It defines the EU regulatory space as a multi-faceted phenomenon of institutional expansion whose shape varies across sectors and changes over time. Empirically based on the exploration of how regulatory delegation has emerged and evolved in three key EU policies (food safety, electricity, and telecommunications), the book disentangles and links together the functional, institutional and power-distributional factors and their interplay over time into a unified explanation of the many faces of the EU regulatory space.

© The Editor(s) (if applicable) and the Author(s) 2016

Emmanuelle MathieuRegulatory Delegation in the European UnionEuropean Administrative Governance10.1057/978-1-137-57835-8_1

Begin Abstract

1. Regulatory Delegation in the EU

Emmanuelle Mathieu¹

(1)

German Research Institute for Public Administration, Speyer, Germany

End Abstract

The realization of the single market programme adopted in the mid-1980s required a dramatic increase in the regulatory capacity of the European Union (EU). This need was addressed through delegation: several kinds of regulatory actors have been created (Dehousse 2002): committees, regulatory networks and EU regulatory agencies. The increasing array of these regulatory agents has spurred considerable interest among scholars of EU governance and EU regulation who, however, have tended to address this phenomenon in a fragmented way by specializing by type of regulatory agent. We thus find a juxtaposition of bodies of research on regulatory networks, committees and comitology and on EU agencies that hardly dialogue with each other.

It is only recently that scholars of EU public administration and regulatory governance have adopted a wider perspective and pointed at how the accumulation of regulatory and administrative actors in the EU formed what can be called an ‘EU regulatory space’ (Levi-Faur 2011), a ‘multilevel union administration’ (Egeberg 2006) or an ‘emergent European executive order’ (Trondal 2010). The overall picture of this EU regulatory space is dauntingly complex and has, so far, received only very little attention. The few pieces addressing EU regulatory space as a whole have unveiled some of its general characteristics such as its multi-level character (Egeberg 2006; Hofmann and Türk 2006), its compound structure (Trondal 2010), the central role played by the EU Commission (Egeberg 2006) and the growing importance of EU agencies in it (Levi-Faur 2011).

While these works should be praised for opening an important research avenue by identifying and describing EU regulatory space, they do not engage in the more fine-grained task of explaining the variety of its manifestations across sectors and over time. Hence, a middle-range approach is still missing between the literature specializing by type of agent and the emerging scholarship dealing with EU regulatory space as a whole. How can we explain the variation in the types of delegation patterns and regulatory actors across sectors and their evolution over time?

Answering these questions requires a preliminary mapping of the major delegation patterns involved in EU regulatory governance and their trajectories over time. Based on a review of the existing literature on delegation and EU regulatory governance, I identify three delegation patterns centred on expert committees (expertise pattern), EU regulatory networks (coordination pattern) and EU regulatory agencies (agencies pattern) and two paths of institutional change corresponding to the agencification of EU regulatory networks and the agencification of expert committees. This allows defining two more specific research questions. First, what makes a sector fall into the coordination pattern versus the expertise pattern in the first place? Second, why and under which conditions do the coordination and expertise patterns develop into the agency pattern? The chapter ends with a brief presentation of the conjectures, cases and findings of the book.

Why Delegate in the EU? The Need for Coordination and Expertise

In order to map the major delegation patterns involved in EU regulatory governance, I will start with the identification of the delegation needs that are specific to EU regulatory governance before turning to the different kinds of regulatory agents that are employed to answer those needs. This first section reviews the common delegation rationales put forward by the literature and contrasts them with the literature on EU polity, EU public administration and EU regulatory governance in order to identify those delegation rationales that are relevant in the EU context. Indeed, the usefulness of delegation depends on the institutional context in which it is employed. As will be explained below, some types of delegation that are often found in national political systems are of limited value in the context of EU politics. This contrast between the literature on delegation and that on EU politics and governance allows us to identify the two rationales that play an important role in EU regulatory delegation. The first one is the need to improve the coordination between national regulatory authorities. The second one is the provision of expertise and information to the Commission.

Why do policy-makers resort to delegation? First, international relations scholars have shown that the delegation of power to international organizations is generally explained by the need to guarantee a credible commitment to cooperation. Here, delegation steps in as a solution to a collective action problem. While states may have an interest in cooperating with other states (Keohane 1984), international agreements are not self-enforcing and countries may have reasons not to trust the credibility of their cooperation partners’ commitment. First, countries often have divergent preferences. In case of agreement adopted with a majority decision-making rule, a country that has been outvoted may be tempted not to comply with the agreement (Franchino 2007: 293). Second, international agreements may present the problem of defection (Keohane 1984: 67–69). While states are interested in benefitting from other states fulfilling their engagements, they may also gain from not fulfilling their own. This may generate free-riding behaviour, when some states do not comply with the rules, undermining the overall effectiveness of the cooperation arrangement. Delegating to an international organization some tasks related to the implementation of cooperation rules is one way to prevent such a shift (Hawkins et al. 2006). In sum, when nation states entrust to a supranational body the task and powers to guarantee compliance with international agreements, they make a commitment to effective cooperation among themselves (Milward 1984; Moravcsik 1998).

This delegation rationale is highly relevant in EU regulatory governance. As EU policy-makers realized that the nationally based implementation of EU regulatory policies impeded the effective removal of internal barriers to trade and jeopardized the realization of the single market, they created EU regulatory networks and EU regulatory agencies to foster cooperation and coordination at the level of policy implementation, with a view to increase regulatory convergence (Dehousse 1997; Eberlein and Grande 2005; Coen and Thatcher 2008).

A second and often mentioned rationale for delegating power is the need, for policy-makers, to make a credible commitment to a specific policy line. This happens when policy-makers are squeezed between long-term policy objectives and short-term electoral concerns. Businesses perceive such tensions. Anticipating that a given policy will be subject to subsequent modifications, they refrain from investing, which undermines the effectiveness of the policy adopted in the first place (Levy and Spiller 1996). In order to strengthen their policy commitment with more stability and credibility, policy-makers thus often resort to delegating regulatory powers to independent regulatory agencies (IRAs) (Majone 1996a; Gilardi 2008: 30–31).

As this delegation rationale is essentially meant as protection against short-term electoral concerns in nation states, it is based on an implicit assumption about the effect of policy decisions on the outcome of elections. It is however largely acknowledged that EU citizens show very little interest for EU regulatory policies. Instead, EU elections are embedded into national politics and determined by them. Political parties use EU elections to test their domestic political agenda with the public and the policies proposed by the candidates ‘rarely have much European content’ (Franklin 2006: 228). It is thus highly unlikely that the EU ruling majority is tempted to flatter the electorate towards the end of its mandate. EU policy-makers are therefore unlikely to delegate in order to guarantee policy credibility.

A third rationale for delegating power is to preserve policy choices from political uncertainty. By freezing the policy orientation through delegation, politicians guarantee the permanence of their policy choice even if the opposition reaches the majority at the following elections (Moe 1990: 227–228). While this threat may motivate the delegation of regulatory powers to IRAs in national political systems, it is unlikely to play a significant role in the EU because the threat of policy overhaul due to a change of majority is minimal in the EU context. Three factors specific to the EU polity downplay the risk of policy overhaul: the limited impact of partisan conflicts on policy outcomes, the high number of institutional veto players, and the need to co-opt a large number of interest groups for the elaboration of EU policies.

Firstly, the coalition and conflict dynamics behind the adoption of EU legislation is complex and involves several dimensions (Egeberg 2006). Actors’ positions are not only determined by their partisan membership, but also by their preferences regarding EU integration and their nationality (Héritier 1996). Given this complexity, political leaders rarely manage to keep the policy flow entirely under control, the outcome of legislative negotiations is difficult to predict from the outset (Wallace 2005: 489) and the risk of policy overhaul driven by a new majority is relatively small. Secondly, it has been shown that a high number of institutional veto players, as is the case in the EU, is a factor of policy stability because it makes it more difficult to revise the legislation once adopted (Tsebelis 2002; Kelemen 2004). The EU policy process thus ‘displays a deep gradualism and incrementalism. It is not possible for the Commission, the Council Presidency, a national government, or anyone else, to initiate a clear and comprehensive policy proposal, incorporating bold new plans and significant departures from the status quo, and expect it to be accepted without being modified significantly—which usually means being watered down’ (Nugent 2006: 422). Thirdly, since lacking input legitimacy, the EU resorts to output legitimacy, which requires co-opting and persuading a much broader and diverse coalition of interest groups than in the nation states (Wallace 2005: 492). This further limits the possibility of departing significantly from the established Community acquis. In sum, since the risk of policy overhaul by the opposition is very limited in the EU, delegation aiming at preserving policy choices in situations of political uncertainty is rather unlikely.

A fourth delegation rationale corresponds to what is commonly referred to as a blame-shifting strategy, serving politicians’ interests in being re-elected. When policy-makers are in favour of a policy that might not please their constituency, they can shift to a third party, not submitted to electoral pressure, the responsibility for those decisions that may be electorally embarrassing and keeping for themselves the valuable function of undoing the agency’s wrong decisions when these occur (Fiorina 1977: 179–180; Thatcher and Stone Sweet 2002). Like the delegation for policy credibility, this delegation rationale assumes that EU decisions have an impact on EU elections. Yet, as explained above, EU elections are largely determined by national politics. EU policy-makers are thus unlikely to be blamed by the EU electorate for its decisions, which makes delegation driven by blame-shifting a mechanism deprived of significant benefit in the context of EU politics.

A fifth reason for delegating power is to remedy a lack of expertise. Public policy increasingly relies on ‘relevant, timely and, especially, credible information’ (Majone 1997: 264). The production of ever more technically sophisticated products present new risks that the regulator is expected to manage. Doing so requires dealing with an impressive amount of highly scientific and technical information. Besides, the liberalization process in several sectors has required the public sector to develop the resources needed to regulate highly technical sectors such as telecommunications and energy (Thatcher 2002: 131). Politicians and public officials, as generalists, do not necessarily have the appropriate technical o...

Table of contents

• Cover
• Frontmatter
• 1. Regulatory Delegation in the EU
• 2. Explaining Delegation Patterns
• 3. Food Safety
• 4. Electricity
• 5. Telecommunications
• 6. EU Regulatory Delegation and Institutional Design
• Backmatter