Review by Olivier Charnoz

 

 

 

· Two assumptions : 1) MS have diverse national regulatory traditions ('styles') and diverse economic interests 2) they seek to maximise their utility, subject to institutional constraints.

· The patchwork character of  the European regulatory policy is the result of a process of interest accommodation

· This process shows different patterns of informal co-operation :

 

Phase of policy making	Pattern of co-operation
Problem definition & Agenda setting	First move strategy
Drafting of legislation	Problem solving
Formal decision	Negative co-ordination, bargaining and compensations

 

· In section 1, the hypothetical patterns. In section 2, they are illustrated by the Directives in the field of clean air policy.

 

1. Process patterns in European Regulatory Policy making

 

1.1 First mover advantage and unilateral adjustment (problem definition, agenda setting)

· The expansion of regulatory policies can often be traced to be to the inactive of one MS. It is generally a country with a strong regulatory tradition. It approaches the Commission with a policy proposal

· The proposal put forward by the 'First mover' corresponds to its economic interest and its regulatory tradition. The initiator seek to transfer its own regulatory style to the European level.

· Four reasons. 1) avoid the costs of legal and institutional adjustment caused by EU legislation 2) establish favourable competitive condition for its own industry 3) in the case of environmental policy, enhance the part for national environmental technology industries 4) maintaining its bargaining power with its own industry, because the latter cannot point more lax European standards when required to implement national standards.

· As a result there is a regulatory competition among highly regulated MS.

 

· The Commission is therefore confronted with a variety of regulatory proposals by MS. It is free to choose whose ideas it adopts Þ the Commission functions as a « gatekeeper ».

· The Commission responsiveness is no act of generosity. 1) having few personnel of its own, it depends on MS to provide policy expertise 2) it is interested in expanding regulatory policies in order to enhance its own power.

· However the proposal must ultimately fit the overall policy-making philosophy of the EC. Currently, this means that it has to be compatible with the subsidiarity principle.

 

· A successful first mover secures a positional advantage. The iniciator anchors his problem definition and policy approach in the subsequent drafting and offers a 'frame' for 'problem solving'. Opportuities for the other MS automatically decreases. They have to respond and adapt unilaterraly.

 

· A pattern of first moving a tour de rôle emerges. The Commission carefully avoids adopting the proposals of one and the same MS. There is no structural First mover. The benefits gained by beeing the first mover spread quite evenly among the regulatory ambitious MS.

 

·. For highly regulated countries, being a first mover is very attractive The motivation has increased under the Qualified Majority Vote.

· For the less regulated MS, being a first mover is not attractive. A complete absence of European regulation is the most favourable solution (because lower standards in theire production proces cinstitute a competitive advantage). As a result, they tend to 'sit on the fence', and had their veto 'bought off' i.e. accept compensation. Calculated non-implementation is used at times.

 

1.2 Problem solving (drafting level, within the working groups)

 

· After a first mover, jointly with the Commission, has defined the problem, suggested a way of dealing with the latter and set the agenda, a co-ordinative process emerges in the early drafting process : 'problem-solving' (Scharpf, 1991).

· In 'problem solving', actores concentrate on joints production and temporarily put aside distributive issues (i.e. individual cost-benefice analysis). The emphasis is not on comparing costs and benefits of given alternative but on finding possible solution.

· Technical, scientific and legal experts dominate the debate.

· Specific institutional conditions render problem-solving easier : 1) development of 'epistemic communities' - mutual learning among national experts (HHaas 1992) - consensus building become easier 2) role of the Commission as a process manager, able to choose between policy proposals 3) the fact that the committees do not make decisions, but have only a consultative function.

· If the European Parliament obtains the right to be fully informed at the outset about the work of the committees, distributive aspects will emerge much earlier and a politicization of the debate will ensue.

1.3 Negative co-ordination, bargaining and compensation (Decision level)

· Now actors focus primarily on specific costs and benefits. The actors consider whether they are favourably or adversely affected by the measure Þ negative co-operation.

· Once the relative positions are clear, a bargaining process begin and possible compensations are proposed to overcome the resistance of the 'losers'.

· Use of package deals, in which trade-off of benefits is sought over different issues areas. (the larger the number of issues are involved, the higher the political level at which negotiations are conducted). Not an easy matter, given the incommensurability of various kinds of costs and benefits involved over several issues areas.

 

· Specific reciprocity cannot be reached in every. Diffuse reciprocity becomes ever more important. (Schmidt 1995) There is no central institution which ensure mutual fairness and equity. However there are informal mechanisms which balance costs and benefits over time. MS jealously keep a record of when and to whom concession have been made. Bargaining takes place 'under the shadow of the future'. Participants know that their relationship is not temporary, but meant to be durable. They therefore think twice before ruthlessly seeking to maximise their short-term individual interest.

1.4 Four Patterns of co-ordination (long-term perspective)

 

· Four scenarios / informal patterns of co-ordination through the entire cycle of problem definition, agenda-setting, policy drafting, formal decision-making.

1) The 'clear home run' : the first mover is totally successful. (Because the policy problem is narrowly defined, highly complex, requiring considerable expreise. Costs and benefits difficult to assess).

2) The 'shaddled home run' : other MS try to saddle the first mover's proposal, but a comprehensive piece of legislation is enacted.

3) The 'moderate home run' : the initiating state has to make a number of concessions which however do not jeopardise the basic policy approach.

4) The 'thwarted home run' plus 'policy mix' : the policy proposal of the first mover meets with the full-scale resistance of another MS. An opposing policy approach is suggested. This may be because of conflicting national regulatory traditions and/or the redistributional impacts.

· Which particular scenario emerges depends on the features of the policy issue at hand.

If an issue is technically and legally complex, not easily accessible to the public at large, epistemic communities prevail linger. If by contrast the issue involves an easily perceived redistributional effect, its potential for political consideration is considerable.

 

1.5 Regulatory competition and its outcomes : policy features.

 

· regulatory policy making is driven by competition between highly regulated MS Þ two policy results.

1) an ever increasing and thickening network of European regulation 2) no particular tradition dominates European regulation. Rather it resembles a colourful patchwork.

 

2. The example of clean air policy ('combating industrial emissions')

 

2.1 Emission standards and Best Available Technology (BAT) : Germany as a pace-setter.

 

· It was the Federal Republic which, during the 1980s, was successful in imposing its own regulatory style at the European level. After national legislation with stringent emission standards based on BAT, it was rational for Germany to carry its domestic solution to the E level, in order to avoid competitive advantage.

· German 'moderate home run' : the Large Combustion Plant Directive (initial success of a mother directive in 1994 - German home run - , but subsequent opposition voiced by Britain, which wanted to use an air-quality oriented practice)

· German 'thwarted home run' : the Volatile Organic Compounds (VOC) and the Hazardous Waste Disposal Directives. (started as a German initiative, and intervention of UK)

2.2 Self regulation of operators, access to information and integrated pollution control : the UK as a pace setter.

 

· In other areas of the same policy field, it was the British who successfully moved first, defined the policy problem, and urged the Commission to follow their national problem-solving approach.

· Eco-Audit Directive was a clear British home run (despite German opposition).

· Access to Information Directive as well (German obtained scheduled implementation).

· By contrast, the case of Integrated Pollution Control reveals a British first move supports by the Commission, but stopped by Germany.

The British proposed the introduction of quality standards which should be reached by emission standards set at the national level. Instead Germany proposed to enact community-wide emission standards and the use of BAT technology at every source.

Germany used its presidency to change the draft, by removing the 'BAT escape close' !

 

Conclusion

Patchwork character of regulatory policy-making in Europe.

 

 

 

 

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