A Responsive Technocracy?
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A Responsive Technocracy?

EU Politicisation and the Consumer Policies of the European Commission

Christian Rauh

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A Responsive Technocracy?

EU Politicisation and the Consumer Policies of the European Commission

Christian Rauh

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About This Book

This book challenges the common image of the European Commission as an insulated technocracy immune to political pressures. Based on an innovative combination of public opinion, protest and media data, it first demonstrates that European integration has become increasingly politicised since the 1990s. Against this background, the Commission is now much more concerned about the public appeal of its policies. That, however, challenges and contradicts the well-worn patterns of supranational regulation in Europe. Rauh systematically compares 17 legislative drafting processes in consumer policy between 1999 and 2009. Based on first-hand insider accounts of involved officials, his analysis indicates that the Commission's policy choices indeed become more consumer friendly under higher levels of public awareness. While this improves the democratic quality of European decision-making, the book also reveals an enhanced conflict potential within the Commission and beyond which threatens to undermine the efficiency of legislative decision-making in the EU.

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Chapter One

Introduction

For large parts of its history, European integration has been an elite-driven project. Consecutive transfers of political powers to the supranational level and the resulting policy choices of European institutions were largely a matter of executive actors negotiating behind closed doors. For a long time, political elites could safely rely on a ‘permissive consensus’ among the wider publics, which were rather unified in their generalised support for the political unification of Europe (Lindberg and Scheingold 1970; Down and Wilson 2008).
But this permissive consensus eroded over time. The public referenda that defeated the European Constitution and the social unrest following the European Union’s (EU) responses to the financial and currency crises are but two challenges to a purely executive mode of European integration (Statham and Trenz 2012; Rauh and Zürn 2014). Analysts are increasingly concerned with the extent to which European ‘decision making has shifted from an insulated elite to mass politics’ (Hooghe and Marks 2009: 13). Various recent works attest a growing politicisation of European integration (e.g. Hutter and Grande 2014; Risse 2014; De Wilde and Zürn 2012; Statham and Trenz 2012; Zürn 2006). Following the seminal definition of De Wilde (2011: 560, emphasis added), politicisation refers to a ‘polarization of opinions, interests or values, and the extent to which they are publicly advanced towards the process of policy formulation within the European Union’. It is not the fact that the supranational decisions are highly political that is decisive here – this has been the case since the infancy of European integration. Politicisation rather refers to the increasing body of empirical evidence suggesting that European integration no longer proceeds outside the wider public’s main field of vision.
Supranational decision making is more and more visible in public media (Boomgaarden et al. 2010; Sifft et al. 2007; Peters et al. 2005). This media visibility reacts systematically to specific European events (De Vreese et al. 2006; De Vreese 2003: chapter 3) and increases particularly in those areas where most national competences have been transferred to the supranational level (Koopmans 2007; Koopmans and Erbe 2004). Also contemporary public opinion is neither unified nor generally supportive of European integration, but rather responds systematically to political decisions at the supranational level (Toshkov 2011; Ecker-Ehrhardt and Weßels 2010; Down and Wilson 2008; Eichenberg and Dalton 2007; Franklin and Wlezien 1997). And the public is not only watching; it also feeds its evaluations back into the political process. Contrasting the ‘second-order’ perspective (Reif and Schmitt 1980), voters progressively consider European elections and referenda as relevant political choices in their own right (Lubbers 2008; Garry et al. 2005; Koepke and Ringe 2006; Ferrara and Weishaupt 2004). More intriguingly, the public relevance of supranational decision making transcends purely European ballots, and enters the domestic electoral arena as well (Hutter and Grande 2014; Adam and Maier 2011; Hooghe and Marks 2009; Kriesi 2007; Steenbergen et al. 2007; Marks et al. 2007; Netjes and Binnema 2007; Ray 2007; Tillman 2004). The emergence of Eurosceptic parties in almost every EU member state (Taggart and Szczerbiak 2002), a number of ‘Europrotests’ (Uba and Uggla 2011; Della Porta and Caiani 2007; Imig and Tarrow 2001), and indications of a changing cleavage structure (Teney et al. 2014; Kriesi et al. 2012) underline that politicisation challenges the well-practised elite-driven paths to the ‘ever-closer union’ that the Treaty of Rome envisioned.
Politicisation thus has a prominent place in core debates about European integration. Scholars stressing national identities see a ‘constraining dissensus’ emerging (Hooghe and Marks 2009) that cannot be fully absorbed by the current EU institutions (Bartolini 2006a). Even more blatantly, intergovernmental accounts perceive insulation from short-term political pressures as a necessary condition for the output-driven cooperation of nation states in Europe (Majone 2005, 2000; Moravcsik 2002, 1998). In these views, it is actually the de-politicisation of transnational challenges – achieved through quiet-running intergovernmental bargains and the delegation of regulatory powers to insulated technocracies – that enables credible commitments to lasting cooperative policy solutions. Seen from this angle, public politicisation is a significant peril that threatens to undermine the very decision-making efficiency that has motivated European integration in the first place.
Others, in contrast, emphasise the opportunities that politicisation provides for European integration. Early neo-functionalists already anticipated the ‘widening of the audience […] interested and active in integration’, but ultimately expected ‘a shift in actor expectations and loyalty towards the new regional center’ in response (Schmitter 1969: 165–6). In fact, the politicisation of European integration we have observed in the recent decade not only addressed intergovernmental conflict lines, but rather entailed the articulation of direct demands from the European public towards the supranational level (Zürn 2006). For those who argue that insulated policy making in Brussels challenges ‘even the “thinnest” theories of democracy’ (Follesdal and Hix 2006), public visibility and contestation promise to make the preferences of the wider public audible in the EU’s political system (Hix and Bartolini 2006; Mair 2005; Magnette 2001b, 2001a). While national and supranational executives care predominantly about economic competitiveness, the wider public prefers a market-flanking policy that ‘protects them from the vagaries of capitalist markets’ (Hooghe 2003: 296; see also Dehousse and Monceau 2009). In such a setting of deviating public and elite preferences, an insulated decision-making system is prone to bias. The absence of public control provides specialised interests with structural lobbying advantages that can lead to capture ‘with the consequence that regulatory outcomes favour the narrow “few” at the expense of society as a whole’ (Mattli and Woods 2009: 12; see also Posner 1974; Stigler 1971; Olson 1965/1971). Seen from this angle, politicisation helps to overcome the democratic deficits of the EU and enhances the responsiveness of supranational governance to a wider set of societal interests.
Taken together, we have considerable evidence on an increasing politicisation of European issues on the one hand, and far-reaching expectations regarding its effects on the procedures and trajectories of European integration on the other. But while the scholarly community has invested intensively in the question whether European integration is and should be politicised, there is remarkably little empirical research on the actual consequences of public politicisation at the supranational level. It is exactly this gap that the present book aims to address. Does the public politicisation of European integration affect the intricacies of supranational decision making at all? Do supranational elites really adapt their choices if they ‘must look over their shoulders when negotiating European issues’ (Hooghe and Marks 2009: 5)? And if so, do their reactions indicate declining decision-making efficiency or enhanced democratic responsiveness?
To provide a hard test of the supposed politicisation effects, this book concentrates on the day-to-day policy making of the European Commission in Brussels. While the two other legislative actors of the EU – the Council of Ministers and the European Parliament (EP) – dispose of at least indirect delegation chains to the European public (e.g. Tallberg and Johansson 2008; Hobolt and Høyland 2011), the Commission is the most detached and most technocratic player in the European polity. By design, it is supposed to be insulated from short-term public pressures (e.g. Majone 2002; Nugent 2000; Radaelli 1999b; Featherstone 1994; Haas 1958/1968). However, at the same time, the European Commission holds the monopoly of legislative initiative in the EU. This renders the Commission an extraordinarily powerful administration with significant influence over the actual contents of binding European law (e.g. Pollack 1997a; Tsebelis and Garrett 2000). In other words, the European Commission itself embodies the tensions between technocratic, insulated decision making and democratically responsive supranational governance (Tsakatika 2005; Christiansen 1997). If public politicisation of European integration matters at this central institutional anchor point, we face a strong indication that it matters for the substance and procedures of supranational decision making in the EU as a whole.
The book furthermore concentrates on European consumer policy – an issue area comprised of all policy measures that aim to protect the end user of products or services against risks and disadvantages in economic life (Weatherill 2005; Cseres 2005; Mitropoulos 1997). This policy field is intrinsically linked to the original mission and the political agenda-setting powers of the European Commission (Micklitz et al. 2004). On the one hand, national consumer protection laws create barriers for producers or providers of services willing to trade across national borders. Such national laws thus threaten to undermine the aspired efficiency of the internal market that the Commission is expected to achieve. On the other hand, increasing cross-border trade in goods and services means that the economic interests, safety and health of consumers can no longer be effectively protected at the national level alone. In a European market, consumer risks often originate outside particular nation states, which eventually raises societal demand for supranational re-regulation of consumer protection. Against this two-sided pressure, it is unsurprising that consumer policy has been one of the fastest growing supranational policy fields in recent decades (Kurpas et al. 2008), which, however, attracts little interest in the political science community. What is more, the policy area is particularly suited to study politicisation effects. Consumer protection measures usually entail costs for very specific producer interests, but spread benefits over the diffuse mass of consumers. This distribution of narrowly concentrated costs and wildly dispersed benefits render the policy area exceptionally vulnerable to collective action failures and regulatory capture (Strünck 2006: chapter 2; Trumbull 2006: 45–6; Pollack 1997a; Young 1997). If the politicisation of European integration indeed has the power to counterbalance biases of insulated decision making, this should be observable in the consumer policies proposed by the European Commission.
Within these cornerstones, the book’s major argument holds that public evaluation of the Commission’s policies gains a greater weight under higher levels of general EU politicisation. The more supranational decision making is publicly visible and contested, the more actual policy choices at the supranational level will matter for the public’s overall stance on further authority transfers to the EU. As an organisation with an interest in retaining supranational regulatory competences, the Commission will thus try to generate widely dispersed policy benefits during high politicisation periods. In consumer policy, this should be manifested in legal provisions that alter the existing distribution of rights among producers and consumers to the advantage of the latter. Yet devising outwardly consumer-friendly policies comes at a political cost. Such positions alienate the traditional stakeholders of the Commission, most notably the member state governments and the producers operating across borders. In addition, public attention is selective over time and over regulatory issues. A high level of general EU politicisation will thus affect the Commission’s position only if the wider public simultaneously also cares about the more specific issues that a particular Commission initiative covers: only then, the Commission faces the risk that its policy choices affect the public’s general evaluation of European integration. In a nutshell, this book claims that a sufficiently politicised context of European integration, in combination with a high degree of contemporaneous issue salience, leads to policy proposals from the European Commission that explicitly redistribute rights from the narrowly concentrated set of producer interests to the widespread mass of European consumers.
Chapter Two proposes a politicisation indicator that combines media visibility of the EU, polarisation of public opinion on EU membership and public mobilisation on European issues. These data suggest that the politicisation of European integration has increased systematically since 1991, while also being subject to significant short-term fluctuations. Against this background, Chapter Three first reviews the Commission’s institutional set-up and seminal explanations for its policy choices and then derives a theoretical model of Commission responses to an increasingly politicised context. This model is then translated to the context of European consumer policy, which results in testable hypotheses on the Commission’s policy choices under varying levels of politicisation and issue salience.
Chapters FourSix then present systematic case studies on seventeen consumer policy initiatives from the European Commission under the Prodi and Barroso presidencies between 1999 and 2008. Structured along three major subfields of European consumer policy – contractual consumer rights, product regulation, and food safety – the three chapters show whether and how politicisation and issue salience matter to the Commission’s preferred distribution of regulatory benefits. They draw on encompassing documentation of the internal process and external stakeholder positions as well as on forty-one semi-structured interviews with the directly involved Commission officials. Reconstructing the multi-annual policy formulation processes by combining this with the indicators for politicisation and issue salience generates novel insights on how the public visibility and contestation of European issues affects existing conflict lines and the intricacies of decision making within Europe’s central agenda setter.
Pulling the case study findings together, Chapter Seven finally presents a comparative perspective on consumer policy formulation in the European Commission. Co-variation across and within the analysed processes underlines that the European Commission is indeed sensitive to the political context of legislative drafting and, most notably, to the public politicisation of European integration. However, the findings also show that this effect is severely constrained. First, the anticipated preferences of national governments in the Council effectively limit the Commission’s responsiveness to wider public interest across almost all cases. Second, policy positions providing enhanced consumer protection stir partially strong turf conflicts among individual Directorates-General (DGs) of the European Commission. And third, respective legislative initiatives often profoundly challenge extant and deeply entrenched supranational policy solutions.
In the light of these results, Chapter Seven concludes on the opportunities and risks of public politicisation. The book’s findings underline that enhanced public visibility and contestation of European issues indeed open up a leeway in which Brussels’ policies can be reconnected to widely shared preferences among the European citizenry. Nonetheless, the scrutinised cases also underscore that this comes at the cost of more thorny and legally less consistent decision-making procedures within the Commission. Whether the democracy-enhancing or the efficiency-undermining effects will prevail ultimately depends on adequate institutional responses to the public politicisation of European integration: the policy formulation process analysed in this book imply that the European Commission is not yet fully able to absorb societal conflict lines and lacks institutional incentives to systematically channel them into the decision-making machinery of the EU.

Chapter Two

The Public Politicisation of European Integration

Before analysing whether and how the European Commission responds to the politicisation of European integration, we need a clearer picture of this phenomenon. During the infancy of the European Community (EC) after World War II, the integration process was by and large an exclusive affair of national and European executives as well as economic leaders. These elites hardly had to fear something like widespread politicisation as they could safely rely on a ‘permissive consensus’ among the wider citizenry (Lindberg and Scheingold 1970: especially chapters 3 and 8). During the 1950s and 1960s, citizens of the European Community founding states did not see much immediate relevance of European integration to their daily lives, and were diffusely supportive of economic coordination at the supranational level. Tacit approval among the wider publics and a correspondingly low mobilisation potential did not constrain political integration beyond the nation state. Rather, pooling and delegation of national powers in the EC were mainly driven by the interactions of the directly involved and largely freehandedly operating political elites (ibid. 250).
But even in these early days of European integration, observers did not expect the permissive consensus to be projected indefinitely into the future. Lindberg and Scheingold (1970: 277–8) themselves warned that ‘the level of support or its relationship to the political process would be significantly altered’ if the supranational polity was ‘to broaden its scope or increase its institutional capacities markedly’. Likewise, neo-functionalists argued that the accumulation of powers at the supranational level would eventually lead to a politicisation of European integration (Schmitter 1969: 165–6). The expansion of supranational competences into more salient policy domains was expected to increase ‘the controversiality of joint decision making’ leading to ‘a widening of the audience or clientele interested and active in integration’ (ibid.). Similar claims can be found in recent sociological theory of international relations. Here, scholars argue that the accumulation of political authority beyond the nation state triggers increasing societal demands for the public justification of decision making in the inter- and supranational realm (Zürn et al. 2012). Since more and more national powers have been delegated to EU institutions, or were pooled in majority votes among European governments in the meantime (Biesenbender 2011; Börzel 2005), these perspectives lead us to expect that European integration has become much more politicised among the wider citizenry since its inception. In this spirit, recent integration theory claims that the permissive consensus is increasingly superseded by a ‘constraining dissensus’ in the publics of the European member states (Hooghe and Marks 2009).
Nevertheless, we should not too hastily conclude that European integration has finally and fully entered the realm of mass politics, or that politicisation is a stab...

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