Towards a more Supranational Union - the post Lisbon EU and its dynamic decisional pattern -

Global Political Studies

Decision-making, States and Institutions

Towards a more Supranational Union - the post Lisbon EU and its dynamic decisional pattern -

Vlad Dan ROMAN

Abstract

The process of shaping policies and enacting social rules had always been the

attribute of state bodies which engaged themselves in an exercise intrinsically

linked with the idea of public power which aims at answering to socio-economical

needs. However, to this extent, the process developed itself in multiple shapes as the

decisional know-how shifted from the sovereign pattern to the idea of a common

supranational will that has a more complex and complete type of decision-making.

Introduction

Decision-making represents an indispensable process for the coherent

functioning of the European Union. In this matter, the Union bodies assume decisions

that can relate to the development of a new policy (e.g. supporting the introduction of

a common currency), or they may be active in the matter of developing new

legislation (e.g. Regulations, Directives).1

In contrast with Member States parliamentarian orders, the enactment of a

piece of legislation within the Union is the result of a decisional sui generis type of

procedure that involves most of its bodies. At this, the legislative process is

constructed on what the doctrine names the principle of institutional balance.2

The EU's standard decision-making procedure has a normative object and is

known as 'co-decision'. This means the European Parliament has to approve European

legislation together with the European Union Council (here and after, EU Council)

based on a proposal received from the Commission.3

In this paper I shall mostly analyze the normative dimension of the decisional

process that takes place in the Union, as this is the field where most of the work is

done. After mapping what I consider to be the classical framework, as novelty

elements of my research, I shall develop on the role that the informal decisional actors

1 John Fairhurst, Law of the European Union, 8

th edition, (Essex, Pearson Education Limited 2010) p.

125. 2 (2013) Decision Making Process In The European Union After Entry Into Force Of

The Lisbon Treaty, Union of Jurists of Romania and Universul Juridic Publishing House Volume lll

2013 p. 2. 3

http://ec.europa.eu/atwork/decision-making/index_en.htm on 2013.12.21.

(lobby firms)have on the process and also, on the growing power of the supranational

judicial authority.

Literature review, theoretical method and research design

As I am writing about the internal decision-making taking place inside each

institution and also about the decisional interaction between the Union's bodies, I

have chosen to write a big part of the paper in a law library as, besides the classical

decision making theories I wanted also to bring into the attention the more technical

legal framework that stands as a fundament and substantially influences the process as

a hall. In this matter, relevant authors are Paul Craig, Grinne de Brca and T.C.

Hartley whom, in their latest EU Law books picture the most important post-Lisbon

institutional changes. Also, when assessing the growing decision power of the

European Courts, my analysis is based on Alec Stone Sweets judicialization article

while Franziska Zibolds work was used to emphasize the indirect role of lobby firms.

On the other hand, the political science dimension of this paper is introduced

by Herman Lelieveldt, Sebastiaan Princen and other authors whom, in their works,

describe a sui generis type of decisional process.

As it can be interfered, my theoretical method pattern will focus on the clash

between law and political science in this area of decision-making; it is mostly based

on the analysis of doctrine, legislation, case law and own experiences.

When it comes to my paper structure, I have divided the decision-making

analysis in parts, each corresponding to different international relations theories: neo-

functionalism, intergovernmentalism, new institutionalism and to the policy networks

doctrine. Moreover, I will enclose each and every Union body inside a decision-

making model and bring arguments for my choice.

Neo-

decision making

One of the first theories of European integration was neo-functionalism which

explained how a cross boarder merger of economic capabilities (i.e. coal and steel

sectors) could spill over and provoke bigger economic integration in related areas

(e.g. agriculture) and, on the long term, conduct to political integration and to the

creation of a supranational dimension.4

In the actual XXl century context, after 63 year from the initiation of the

European Coal and Steel Community, the Union has prolonged its decision-making

prerogatives on a multitude of domains.

It must be said that the transfer of prerogatives has as chore values three

fundaments: the ideas of conferral proportionality, and subsidiarity. The principle of

conferral finds its substance in the application of the principles of proportionality and

subsidiarity; in this framework that Member States surrender sovereign functions on

behalf of the Union. Exemplifying, it is only where things cannot be solved in an

efficient way at the national level and where the measure does not exceed what is

strictly necessary to be attained that national sovereignties confer competences to the

Union as a sole entity.5

To exemplify, we are discussing about a Union that according to Article 3

Treaty of Functioning of the European Union (here and after the TFEU) has

exclusive competence regarding matters such as the customs union, the establishing

of the competition rules necessary for the functioning of the internal market;6 in

addition, Article 4 of the TFEU enounces the shared competences in areas like

internal market, transport, consumer protection, energy.7 As it can be seen, most of

the prerogatives are economical oriented having as main goal consumer welfare,

undistorted competition, unhindered trade and similar neo-liberal values.

Summing up, it can be assessed that nowadays the Union, as an independent

authority, has the prerogative of decision making upon all of those areas on which

Member States gave up sovereign functions. It is only in this framework that the

Union institution can engage in the process of deciding upon common policies.

In my view, this process can be explained by the rational actor model of

decision making as, first of all, Member States behave rationally as their choices, in

our case of harmonizing legislation and of dealing with issues at a supranational level,

4 Elizabeth Bomberg, Alexander Stubb, The European Union: How Does it Work? (New York: Oxford

University Press, 2005) p. 10. 5 The principle of subsidiarity

http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0017_en.htm seen

on 2013.12.21. 6 Articles 3 and 4 of the Treaty of Functioning of the European Union [2010] OJ C/83/01.

7 Ibid.

have the purpose of reaching outcomes that are in line with their common goals (e.g.

common public procurement rules in order to achieve better value for money).8

However, even though things are moving more and more to a mechanism

where states concede the big majority of their sovereign powers, the main source of

doing so is still a matter of national governments will that, in exceptional

circumstances can be withdrawn in the same rational way.9

As it will be further developed, the Unions very complex decisional process

is primary a normative one followed by administrative coercion in cases where the

legislative will is breached.

Intergovernmentalism the classic way of interstate

interaction

On the other side, the doctrine of liberal intergovernmentalism develops

earlier writings of international relations scholars who rejected the notion that

national governments might not be supreme, or that nations would deliberately

surrender sovereignty.10

In the following subsections I shall analyze the Unions institutions that give

primacy to what is know to be the classic type of international decision-making. I

shall also emphasize on each of their roles in the Unions equilibristic.

The European Council: converging states interest for decisional guidelines

The European Council is a classic example of change in the original

institutional structure of the Treaty that has the purpose to accommodate the new

political reality. 11

Generally, the mission of setting the Unions agenda is attributed to the

European Council; its task consists in promoting sufficient incentives for the Unions

future development. The European Council establishes the general political

8 Branislav L. Slantchev, The Rational Actor Model (2005), seen on University of California San

Diegos webpage pp. 1-2: http://slantchev.ucsd.edu/courses/ps12/03-rational-decision-making.pdf on

2013.02.25. 9 Paul P. Craig, Grinne de Brca, EU Law: Text, Cases and Materials, 5th Edition (Oxford: Oxford University Press 2011) p.296. 10

Elizabeth Bomberg, Alexander Stubb, op. cit. (fn. 4) p. 10. 11

Paul P. Craig, Grinne de Brca, op. cit. (fn. 9),p..49.
http://slantchev.ucsd.edu/courses/ps12/03-rational-decision-making.pdf

directions and priorities without, however, being involved in any legislative

procedures.12

Looking back in history, in 1974 the heads of Governments from the Member

States began meeting in the Council of Ministers with the purpose of dealing with the

more sensitive political problems. However, this body was not officially recognized

as an institution of the Union until Article 2 of the Single European Act stated that it

should meet at least twice a year.13

The first European Council summits were cautious analyzed by the

Commission as, as a rule, they were confidential and the Commission was most of the

times excluded.14

Things have changed today, as the Treaty, expresis verbis states that

the President of the Commission shall participate in the meetings and implicitly in

the decision making process.15

This way, the typical inter-governmental structure of

the organization is diluted by some supranational substance given by the presence of

the Commissions head. From a historical-political perspective, this can be seen as a

slight success of the supranational idea upon the classical intergovernmental

paradigm.

The principal rule with regard the approbation of decisions by the European

Council is consensus, except the case where the Treaties provide something else. The

work of the European Council, coordinated by an elected president, will depend, to

some extent, on the current political issues that preoccupy a majority of the heads of

state or government (e.g. nowadays, the Ukrainian revolution would most probably be

at the forefront of the agenda).16

As it can be seen, the decisional pattern of the European Council faced a

dynamic process by moving all the way from cryptic perceived reunions to a more

transparent and organized framework meant to aggregate it in the Unions

institutional logic. Its decisional pattern is based on the political actor model, as the

EU Council decision-making process comprises negotiations and later, consensus

12

Article 15 of the Treaty of the European Union [2010] OJ C 83/15. 13

Mike Cuthbert, European Union Law Nutshells, 6th

edition, (London: Sweet & Maxwell 2009)

p.20. 14

Paul P. Craig, Grinne de Brca , op. cit.,(fn. 9) p.40. 15


John Fairhurst, op. cit., (fn. 1) p.90.

between the Member States representatives. At the end of the day, they are

materialized in decisions that are the sum of diverse national political interests.17

The Council and the selfish interests of each Member State

The Council is together with the European Parliament, exercising both,

budgetary and legislative attributes.18

The Council consists of a representative of each Member State at ministerial

level, who may commit the government of the Member State in question and deliver

its vote. This union body takes its decisions, with small exceptions, by the rule of

qualified majority.19

Each country has a vote proportional with the size of its

population (e.g. 29 Germany, 27 Spain, 12 Portugal).

Also, in mores sensitive political matters unanimity and not qualified majority

is required; this is the case of direct taxation or cross border family regulations.20

Special legislative procedures also exist where the Council alone, after

consulting the Parliament but without respecting the co-decision working principles

may adopt legislation.21

On the other hand, the Councils agenda is basically, most of the times,

composed by the different legislative proposals received from the Commission fact

that makes this body add its contribution in a predetermined framework.

In the same time, the Presidency of the EU Council carries the responsibility

for assuring that Member States develop a harmonious working environment by

negotiating and acting in a pro-Union manner; its mandate is divided upon three

Member States (known as the troika) over an eighteen-month period.22

In general, the custom says that voting must not be used to push trough a

decision that causes serious harm to a crucial national interests of a given state, unless

there are imperative and objective reasons why such a decision would be needed.23

17

Neal Riemer, Douglas W. Simon, Joseph Romance, The Challenge of politics, chap. 13 seen at CQ

Presss webpage: http://college.cqpress.com/sites/challenge/Home/chapter13.aspx on 2014.20.26. 18

Aricle 16 of the Treaty of the European Union [2010] OJ C 83/15 19

Ibid. 20

Ibid. 21

European Commission at Work (fn. 3). 22

European Presidency seen on European Agency of Safety and Health at Works webpage:

https://osha.europa.eu/en/european-presidency on 2013.12.28. 23

TC Hartley, The Foundations of European Union Law, 7th

edition, (New York, Oxford University

Press 2010) p. 24.
http://college.cqpress.com/sites/challenge/Home/chapter13.aspxhttps://osha.europa.eu/en/european-presidency

Concluding, most of the doctrine considers that the Council represents the

core of the decision-making and legislative process of the Union. This union body is

seen as the stubborn determination of member governments in the EU to maximize

their involvement in framing the decisions and shaping the legislation that afterwards

would have direct influence on them. However, it is generally accepted that viewing

the importance of the Council as the victory of intergovernmentalism over

supranationalism would lead to a sever misconception the institutional constellation

of the European Union.24

As in the case of the European Council, the Council of the EU can also

accommodate its decision-making pattern with the political actor model. The

decisional structure is not essentially based on rational ideas as none of the actors has

the complete control on the facts being debated. As each and every working group

involves serious bargaining between the Member States agents, the result will always

be the pure compromise of a multitude of selfish national interest.25

At this stage, I have briefly analyzed the most intergovernamental institutions

that contribute to the decision making process of the Union. In the same time, both of

them develop a bottom-up decisional typology as most of the time the outcome

represents the result of very difficult, consistent and time-spending negotiations

between the different stakeholders involved.

However, the decision making structure is slightly different as, in the first case

(European Council) consensus is needed to pass a new policy; this happens as

participants explore solutions until the best one for all of them emerges and agree on

a decision which all can accept. In this way the decisional process can be a lengthy

one, as all of the political views must be perfectly combined.

In the second case (Council of the EU), depending on the issue at stake, the

majority rule required; however and unanimity is being the exception26

, as the cases

where everyone needs to fully agree are very few fact that makes the decisional

process slightly simpler; however, in practice, debate (including revision) on pieces of

24

Paul P. Craig, Grinne de Brca , op. cit., p.46. 25

Cristina Haruta, Bianca Radu, Liviu Radu, The Ruling Political Class?, p.78, seen on Babe Bolyai

Universitys webpage: http://www.apubb.ro/wp-content/uploads/2011/02/27E-4-HARUTA-

COBARZAN-RADU.pdf on 2014.02.26. 26

Article 86 of the Treaty of Functioning of the European Union [2010] OJ C/83/01.
http://www.apubb.ro/wp-content/uploads/2011/02/27E-4-HARUTA-COBARZAN-RADU.pdfhttp://www.apubb.ro/wp-content/uploads/2011/02/27E-4-HARUTA-COBARZAN-RADU.pdf

legislation takes up to years (e.g. the example of the Cacao directive:

73/241/EEC).27

New institutionalism and the genesis of supranational

institutions

The new new-institutionalism doctrine emphasizes the on role of institutions

in sculpting governmental decision-making. In the European Union context, this

paradigm demonstrates how the Unions common institutions are more than important

arbiters in the policy-making process by having their own agenda and delivering

their own priorities,28

above individual national preferences.

On the other side, while putting together elements from rational choice and

principal-agent theories, some institutionalism theories consider that the governments,

as principal authorities in the EU politics, engage themselves in rational choices. In

their view, national executives attribute tasks to the Union institutions, which then

become their own agents in specific policy fields.29

In the following subsections I will give an objective description of the Unions

supranational institutions and is for the reader to position himself on ether of the two

abovementioned theories.

Legitimating decision-making: the European Parliament

The European Parliament, also known as the supranational legislative is the

only directly democratically supported Union body. However, the extent to which it

can be said that it provides a solid link between the citizens and the Union is difficult

to assess.30

27

EUs Chocolate Dispute, pp. 2-3 seen on American Universitys webpage:

http://www1.american.edu/ted/chocolat.htm on 2014.02.26. 28


Paul P. Craig, Grinne de Brca, op. cit., (fn. 9) p.40. 30

Nigel Foster, Foster on EU Law (New York, Oxford University press 2009) p.62.

The European Parliament, jointly with the EU Council, is entitled with

legislative and budgetary functions; in the same time it has functions of political

control and consultation as well as it elects the President of the Commission.31

As the EU is often said to be a system of governance, this raises questions of

decisional transparency and legitimacy.

Usually, governances are made up by political representatives that are elected

and afterwards occupy governmental roles. In the Union, unlike national political

orders, there is no political class to be held responsible for what happens at the

supranational level; in the same time there does not exist any opposition that can

replace them.32

One of the arguments developed by the European Parliament years ago relates

to what is known as the democratic deficit. The argument is that the Parliament was

elected in contrast with the Council or the Commission, which were not. Further

more, it was claimed that this situation could only change by according top dog

status to the Parliament.33

In response, nowadays, the Lisbon Treaty empowers the European Parliament

with over forty new areas of competence when it comes to its decisional attributes.

For example, the Treaty provides, these areas include agriculture, energy security,

immigration, justice and home affairs, health and structural funds.34

Moreover,

article 314 TFEU places the Parliament on an equal footing with the Council in the

matter of the annual budgetary negotiation proceedings.35

On the other hand, some argue that as far as internal political procedures are in

line with existing national democratic practice and have a prima facie normative

justification, there must not be claimed that the non-participatory nature of many of

its bodies makes the Union lack legitimacy.36

Leaving the doctrinal debate and moving to procedural forms, the Parliament

meets in plenary session every month and it mainly focuses on debates and votes. The

31



Lord Cockfield, The European Union, (Chichester, Chancery Law Publishing 1994) p. 127. 34

http://www.europarl.europa.eu/aboutparliament/en/00b3f21266/At-your-

service.html;jsessionid=77E5F9D56E9AAF07DE37C692A27C0714.node1 on 2014.01.04. 35

Article 14 of the Treaty of the European Union [2010] OJ C 83/15 36

Andrew Moravcsik (2002),

European Union, Journal of Common Market Studies, Volume 40, No. 4 p.622.
http://www.europarl.europa.eu/aboutparliament/en/00b3f21266/At-your-service.html;jsessionid=77E5F9D56E9AAF07DE37C692A27C0714.node1http://www.europarl.europa.eu/aboutparliament/en/00b3f21266/At-your-service.html;jsessionid=77E5F9D56E9AAF07DE37C692A27C0714.node1

Treaty provides that, in plenary, the European Parliament normally takes decisions

by an absolute majority of votes cast.37

Studies show that there is coherence when it comes to the Members of the

European Parliaments voting and the preferences of their national parties.38

However, even though there is doctrinaire consistence between legislators coming

from the same political family (e.g. social-democrats), things change when analyzing

the intra-institutional decisional process. In my view, the political actor model

applies in this situation as well due to the fact that, amending a piece of legislation is

preceded by lots of negotiations and compromises between the stakeholders.

The Commission and the idea of supranational governance

The Commission is often described as a single body with the sole agenda of

promoting European integration.39

Besides its legislative functions, it has pronounced

administrative duties as, for example assuring and undistorted internal market or

controlling the competition process within the Union.

The treaty states that the Commission shall promote the general interest of the

Union and take appropriate initiatives to that end. It shall ensure the application of the

Treaties, and of measures adopted by the institutions pursuant to them.40

The Treaty provides that the Commission is composed of the College of

Commissioners of 28 members. Also, this Union body has a President and several

vice-presidents. Moreover, the Commissioners, one from each Union country,

provide the Commission's political leadership during their 5-year term.41

The Commission is a collegiate body. This means that no Commissioner has

the right to take any decision on his own. If does so, it shall expresses the position of

the entire Commission.42

37

http://www.europarl.europa.eu/aboutparliament/en/00623fe732/How-plenary-works.html on

2014.01.04. 38

, Decision-Making in

the European Union before and after the Lisbon Treaty, West European Politics, Vol. 36, No. 6, p.

1126. 39

Damian Chalmers, Gareth Davies, Giorgio Monti, European Union Law, 2nd

edition (New York,

Cambridge University press 2010) p. 54. 40

Article 17 of the Treaty of Functioning of the European Union [2010] OJ C/83/01.. 41

The Commissioners 2010-2014

http://ec.europa.eu/commission_2010-2014/index_en.htm on 2014.01.05. 42

Alina Kaczorowska, European Union Law, 3rd

edtion, (New York, Routledge 2013) p.68.
http://ec.europa.eu/commission_2010-2014/index_en.htm

The procedure provides that the Commission takes decisions on the basis of

proposals from one or more of its Members; moreover, a vote is taken if any Member

demands so. The body decisions will be adopted if a majority of the number of

Members specified in the Treaty vote in favor.43

Regarding the agenda setting prerogatives, the Commission decides the

legislative programme for each year, in most fields it has a monopoly over the

power of legislative initiative and it also has the power of financial initiative by

starting the budgetary process.44

On the other hand, considering its administrative role, in the very recent

period, the Commission has successfully created the common lobbyists register and

is currently setting up an inter-institutional advisory committee on public ethics.45

Following this line, the institutionalism theory, one of the leading theoretical

approach in the European Union studies frames a portrait of the Commission that is

very influential in the everyday policy process.46

However, ex tunc, there is little dispute that the Commission has traditionally

had little influence over the most important decisions that took place in Europe.47

Regarding the Commissions decision-making mechanism, my view is that it

should be pictured from the organizational process model perspective. I consider

that its pure supranational collegial and depoliticized character differentiates it by the

rest of the bodies presented above. Its decisional pattern is not based on classical

bargains as its sole purpose is to promote the Union interests, which does not imply

the contradiction between member States interests.48

Summing up facts related to this section, even though both institutions

(Parliament and Commission) have pronounced supranational characteristics, the

decisional process is different. While in the Parliament decisions fallow a bottom-up

pattern as negotiations taking place alike in a national legislature, things are slightly

different when it comes to the Commission.

43

Rules of Procedure of the Commission [2000] OJ 308/26. 44

Damian Chalmers, op. cit., (fn. 39) p. 61. 45

Madeleine Hosli, Amie Kreppel , Bla Plechanovov & Amy Verdun, op. cit. p.112. 46

Ibid p. 40. 47

Paul P. Craig, Grinne de Brca, op. cit., (fn. 9) p. 40. 48

Khan Amir, Organizational Process models of decision making (2011), pp. 1-3, seen on Scribds

webpage: http://www.scribd.com/doc/50118364/Organizational-Process-models-of-decision-making

on 2014.02.26.
http://www.scribd.com/doc/50118364/Organizational-Process-models-of-decision-making

Here, in certain internal routine situations, when there is just a Directorate

General involved (e.g. imposition of a fine by Directorate General Competition to an

undertaking for breaching competition rules) the decisions can be seen as following a

top-down path as the decision is taken by top management individuals that only

consider their own intimate conviction when taking such administrative decisions.

Policy networks and private stakeholders

A final theoretical approach of use to those studying the EU is the policy

networks framework. A policy network is a collection of actors, each of which shares

an interest in a certain Union policy sector; this is why the network analysis is useful

for uncovering the behind the scenes negotiations that can shape policies.49

In the following subsections I shall consider the outside Union factors that can

have a decisive role in the decisional process that takes place in Brussels.

Organizing interests and making them visible

The Transparency Registers recital states that European institutions

interaction with citizens associations, NGOs, businesses, trade and professional

organizations, trade unions, think tanks, etc., is legitimate and necessary for the

quality of democracy.50

Having this as a premise, interest groups, are professional bodies, business

associations, trade unions and other groups of people whom act to maintain common

interests (e.g. financial, social).51

Lobbying at EU level has very specific characteristics. The doctrine considers

that it can be assessed on both, access to the decision-making process as well as the

success of the lobbying activity. Moreover, the activity of lobbying is considered a

49


Transparency Register webpage:

http://ec.europa.eu/transparencyregister/info/about-register/whyTransparencyRegister.do?locale=en on

2013.01.05. 51

Peter Willetts, Non-Governmental Organizations in World Politics (New York, Routledge 2011) p.

20.

positive element by EU policy-makers as far as it assures and protects the transparent

participation of social and economic actors in the policy-making.52

However, all of this decision-making process had to be somehow regulated

and made even more transparent. This is why a Transparency Register and a Code of

Conduct were created since 2011.

The Register entitles citizens with a direct and single access to information

about who is engaged in activities aiming at influencing the Union decision-making

process.53

Moreover, when exercising their job, the adopted code imposes the obligation

of honesty on the individuals lobbying.54

As it can be deduced, the two instruments have the role of assuring a

transparent and ethical intervention by different stakeholders in the decisional process

of the Unions institutions. I consider them to be very useful tools as the more

transparent and ethical the process the better and equilibrate the decisions shall be.

From the inside to the outside of influencing decisions

As part of the process of making informed choices, rational decision makers

should be good at attempting to new information that is being received while they are

making their options.55

In this matter, lobbying is defined as the advocacy of an interest that is

affected, actually or potentially, by the decisions of different leaders;56

its

methodology divides this activity into two different strategies that are called in the

specialty doctrine inside and outside lobbying.

52

Franziska Zibold, Lobbying the EU institutions, (Brussels: Library of the European Parliament

2013), p. 1. 53

Transparency Register

http://ec.europa.eu/transparencyregister/info/about-register/whyTransparencyRegister.do?locale=en on

2013.01.05. 54

Commission adopts code of conduct for EU lobbyists

http://www.euractiv.com/pa/commission-adopts-code-conduct-eu-lobbyists/article-172840 on

2014.01.07. 55

Steven Smith, Amelia Hadfield and Tim Dunne, Foreign Policy, Theories, Actors, Cases, 2nd

edition,

(Oxford, Oxford University Press 2012) p.131. 56

http://legal-

dictionary.thefreedictionary.com/Lobbying on 2014.01.08.
http://ec.europa.eu/transparencyregister/info/about-register/whyTransparencyRegister.do?locale=enhttp://legal-dictionary.thefreedictionary.com/Lobbyinghttp://legal-dictionary.thefreedictionary.com/Lobbying

Inside lobbying is a tactic in which interest groups aim at influencing policies

trough direct contact with policy makers; this way lobby takes place inside policy-

making institutions. This is the most pregnant type of lobby present at the EU level.57

An example is given by the practice of Philip Morris International (here and

after, PMI) that revealed a costly lobbying campaign to hinder the EU Tobacco

Products Directive Revision.

The company activated on different levels. Firstly, the firm gave primacy to a

two-fold technical and political strategy in order to receive help from the

Commission in order to defend itself is front of the newly unfriendly proposed

legislation. PMI also lobbied on the Council with the hope of creating a blocking

majority.58

Further more, the lobbying effort were directed at Union parliamentarians

from southern countries (e.g. Greece). By trying to postpone the adoption of a

common position in the Council of the EU, PMI wanted the outcome of the

negotiations to be established under the Greek EU presidency, that took over in

January and which is known to be more tobacco friendly.59

In my view, by engaging in this multilevel lobbing process, the undertaking

has higher chances of achieving its goal. As I mentioned above, the legislative

procedure, in contrast with what happens in national Parliaments, fallows a three steps

path (Commission EU Council Parliament) and gradual, even though slight,

changes at each stage can prove to be productive for the interested stakeholder.

Going further in the analysis of the different lobby methods, outside lobbying

is a strategy in which interest groups aim at puting pressure on policy makers by

mobilizing public opinion. Rather than influencing policy-making from within, they

seek to put pressure on decision-makers by mobilizing groups and citizens outside of

the decision-making institutions.60

57

Herman Lelieveldt, Sebastiaan Princen, The Politics of the European Union , (Cambridge,

Cambridge University Press 2011) p. 141. 58

webpage:http://tobaccotactics.org/index.php/PMI%E2%80%99s_Lobbying_Campaign_to_Undermine

_the_TPD on 2014.01.09. 59

Andrew Rettman, Tobacco firms under fire for EU lobbying (2013) seen on Eurobserver webpage:

http://euobserver.com/social/121410 on 2014.01.11. 60

Herman Lelieveldt, Sebastiaan Princen , op. cit., (fn. 57) p. 139.

For example, labor unions and public interest groups use a wider variety of

outside lobbying tactics (e.g. strikes attracting media impact) more often than do their

business and professional counterparts.61

However, this kind of practice is not always successful. An example is the

Laval case where Swedish labor unions sabotaged a Latvian construction firm. At

stake were the dumped working conditions of Eastern Europeans whom were

providing services in the Swedish building industry. The blockade happened because

Laval refused to adhere to a collective working agreement that was seen as the

remedy for the social dumping practices. In consequence, the national Court referred

a preliminary ruling to the Court of Justice of the European Union. In the end, the

labor union was unhappy by the ECJ ruling which emphasized that the right to strike

is a fundamental right, but not as fundamental as the right of businesses to supply

cross-border services.62

For me, it is clear that the unions purpose was to restrict the possibility of

social dumping which came as a result of the low salaries accepted by the Eastern

Europeans posted workers; however, such lobbyist pressures should not conflict with

the Unions fundamental principles (e.g. free movements) as the success rate in such

situation will always be very low.

On the other hand, a very recent and useful legal instrument that can be used

by lobbyists was introduced by the Lisbon Treaty and is called the European Citizens'

Initiative. The new provision on participatory democracy requires that one million

citizens from a significant number of Member States may take the initiative to invite

the Commission to submit their proposal.63

In this way, with a very good organizing

capacity, lobby groups that represent the interest of numerous individuals can be very

effective and have a stronger say in the legislative decision-making.

61

Ken Kollman, Outside Lobbying (Princeton, Princeton University Press 1998) p. 41. 62

The Laval case

http://www.etuc.org/r/847 on 2014.01.12. 63

Dan Vtman, op. cit., (fn. 2) p. 10.
http://www.etuc.org/r/847

The sui generis decisional attributes of the judicial authority

From my point of view, a non-formal and growing supranational policy

maker, with humongous influence in the decision making process of the Union logic

are the European Courts (The Court of Justice of the European Union and the General

Court).

In his article entitled The European Court of Justice (here and after, the

CJEU) and the judicialization of EU governance, A.S. Sweet develops on the

relationship between the judicial authority and governance in the EU.

The author states that the judicialization of politics, relates to the way in

which judicial lawmaking perceived as the law produced by a judge through

normative interpretation, reason-giving, and the application of legal norms to facts in

the course of resolving disputes can impact the strategic behavior of non-judicial

bodies.64

The author perceives three different ways in which this process takes place.

Firstly, in the negative integration area, cross border actors litigate with the purpose

of removing national measure that hinder their activities. Second, by relying on Union

law, persons not directly engaged in cross-border transactions take artificial actions

before the courts in order to change national legislation in their interest. Thirdly,

European Union bodies aiming at promoting harmonization, turn to the CJEU to

impair Member State nationalistic regulatory measures.65

It is interesting to see, in

this context, how the classical legislative power will be able to overturn the new legal

instruments as these are not anymore, stricto sensu, pieces of legislation that form part

of a legislative library, but are part of binding jurisprudence.

The CJEU had been able to judicialize and as a consequence of this, become

a fifth decision maker (besides the four traditional ones) due to the fact that EU law,

the one that the Court interprets, had been empower with qualities alike supremacy

and direct effect when interacting with national provisions.66

64

Alec Stone Sweet, The European Court of Justice and the judicialization of EU governance, Living

Reviews in European Governance, Vol. 5, No. 2 (2010), p. 7. 65

Ibid, p.23. 66

ECJ, Case C-6/64 Costa vs. E.N.E.L. [1964] ECR 585 para. 3.

Having all of this solid background the Court gives binding decisions that

have the power of a law and that must be followed entirely and with no margin of

discretion by the one to whom it is addressed.

Exemplifying on the supranational decision making of the Court, in the

Decker and Kohll cases, the Court rejected the argument that the financial balance of

the social security scheme of a Member State would be upset when patients would

require cross-boarder health care by stating that expenses incurred were to be

reimbursed at exactly the same rate as the applicable in the home state.67

More precise, the Court decided upon a matter that had not been normative

regulated until then. Those two decisions from 1995 and 1996 were codified

afterwards in what today is Directive 2011/24/EU of the European Parliament and of

the Council of 9 March 2011 on the application of patients rights in cross-border

healthcare.

Today, paragraph 4 of article 7 of the above mentioned Directive states that

the costs of cross-border healthcare shall be reimbursed or paid directly by the

Member State of affiliation up to the level of costs that would have been assumed by

the Member State of affiliation, had this healthcare been provided in its territory

without exceeding the actual costs of healthcare received.68

This is the clearest example of decision making powers of a body that prima

facie has no involvement in the matter of making policies as the judicial authority

regulates an area where the legislative authority has not shown will.

The example I gave is a happy one where the Commission, Council and

Parliament agreed with the Courts solution and embraced as a provision in their five

years later Directive.

At this, the CJEU and the General Court becomes a second layer legislator,

whom, in a binding way, interprets the already existent legislation. Having these

humongous prerogatives, the Union Courts exceed the previous decision making

paradigms where the outcome is mostly decided after intensive political negotiations

and pressures. Their decisional pattern is close to the Commissions (organizational

process model) but it also differs fundamentally as the Commission outcome is

67 Paul P. Craig, Grinne de Brca, op. cit., (fn. 9) p. 804. 68

Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the

-border healthcare.

legislative while the Courts deliver a judicial one, which comes afterwards.69

Moreover, the Union judiciary is immune from pressures (e.g. lobby firms, other

institutions) as the decisions are given in conformity with the intimate conviction of

the judges fact that emphasizes even more its supranational character.

However, from my experience as an intern at the Councils working groups, it

can be said that the CJEUs interpretation, can give way to institutional tensions. For

example, the abovementioned EU bodies (especially the Council of the EU)

developed a tradition from recasting Directives or Regulations upon which the

supranational judiciary has ruled either to narrowly or too extensively. From my

point of view, the recast represents a legit but very lengthy remedy that is meant to

sometimes censor the Courts prerogatives.

Concluding remarks

Each of these theoretical ideas has its own strengths and weaknesses;

however, each international relations school analyzes a segment of the different key

aspects of the normative EU process.70

The institutional balance between the Commission, Council and Parliament

has always been at the forefront of decision-making within the EU. The balance is

dynamic, not static, and it has changed overtime. The increase in the European

Parliaments powers after the signing of the Lisbon Treaty has been a principal

feature in the recent institutional dynamic.71

Moreover, the balance in favor of the supranational domination is tipped by

the European Courts prerogatives. Even though the normative process per se seems

to be a balanced one (between intergovernmental and supranational cooperation), the

fact that the CJEU and the General Court, trough their binding decisions, can add a

judicial layer to the primarily legislative one, configures a supranational outcome.

69 Danny Nicol, EC Membership and the Judicialization of British Politics, (New York, Oxforn University Press) pp. 7-8. 70


Paul P. Craig, Grinne de Brca, op. cit , (fn. 9) p. 155.

In the same time, the independence of the most important supranational

institutions (Commissions and Courts) is a guarantee for long-term decisional

strategies that will not be changed at the first political struggle or change.

On the other hand, it is the negotiations that give legitimacy to a decision; in

this way, even though acting with celerity and elite expertize (in an organizational

process model), the tow institutions will be perceived as lacking the true democratic

struggle.

Extrapolating, what I also wanted to emphasize in this papers is not only the

supranational decision-making growth. As it can be seen from the last part of it,

informal decision making entities (as lobbyists) or bodies that are not considered to

take place in the normative proceedings have a growing influence in the process as a

whole; for this reason, their activity had been regulated with the clear purpose of

assuring transparency.

Adding this dimension to the actual Union geometry makes the decisional

process more complex than it looked; at stake, in most of the cases, there a big variety

of interests: of the Union as a whole, regional, national, belonging to different

categories of individuals or promoted by certain undertakings, and is hard to

configure a perfect first stage compromise.

However, summing up, it is for sure that the decision making process will

benefit the ones who have the patience to understand the complex division of powers

present in the Union nowadays and that will know to promote their interests at each

and every level.

Documents

Towards a more Supranational Union - the post Lisbon EU and its dynamic decisional pattern -