Institutionalizing Representative Democracy in the European Union ...

JCMS 2012 Volume 50. Number S1. pp. 18–37

Institutionalizing Representative Democracy in the European Union: The Case of the European Parliament

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BERTHOLD RITTBERGER Ludwig-Maximilians-University, Munich

Abstract Representative democracy has been accorded constitutional status with the entry into force of the Lisbon Treaty. The European Parliament (EP) and the history of its empowerment embody this constitutional principle and its gradual institutionalization. To shed light on the EP’s empowerment and the institutionalization of the principle of representative democracy in the EU, this article adopts a ‘domain of application’ approach. Instead of presenting rival theoretical approaches competing for explanatory superiority, the article shows that a more comprehensive picture of the EP’s empowerment can be obtained by distinguishing between three types of institutional choice and associated explanations. Institutional creation, institutional change and institutional use are introduced as different types of institutional choice, and it is argued that each type gives primacy to particular explanatory mechanisms and dynamics to analyze the EP’s empowerment.

Introduction: The Parliamentarization of the EU With the entry into force of the Lisbon Treaty, the ‘Ordinary Legislative Procedure’ (OLP) has been brought to life. The OLP is based on the co-decision procedure, which accords the European Parliament (EP) co-equal legislative status alongside the Member State governments represented in the Council. The introduction of the OLP also stands for a broader trend in the history of European integration: the gradual institutionalization of representative democracy as a constitutional principle of the EU (see Rittberger and Schimmelfennig, 2006; Roederer-Rynning and Schimmelfennig, 2011). This principle posits that legislative decisions in the EU require the consent of both the Council and the EP, and hence of the representatives of the Member States as well as the peoples of the EU, to be deemed democratically legitimate. The constitutional status of representative democracy in the EU is also mirrored in the practice of naming. The co-equal status accorded to the EP in the legislative process is reflected in the attribute ‘ordinary’ and hence suggests that the EP more closely resembles a domestic parliament or chamber in a federal system than a parliamentary assembly of an international organization. For instance, the internal organization and politics of the EP are not fundamentally different from those of domestic parliamentary bodies (Hix et al., 2007). Moreover, the powers it possesses to influence EU legislation, the EU’s budget and the make-up of the Commission indicate that the EP has come a very long way since the Common Assembly of the European Coal and Steel Community (ECSC) was established in 1951. Bestowed with only few nominal powers at the outset, the EP has undergone a remarkable process of institutional empowerment. Over the decades, its powers have increased significantly: the © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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EP is on equal footing with the Council in deciding EU legislation (in an expanding number of policy areas) as well as the EU’s annual budget. The EP has also come to exercise more influence over policy-implementing measures (‘comitology’) and, in addition, it plays an increasingly important role in the investiture of the Commission and in holding the EU’s bureaucratic centre to account (including not only the Commission, but also the European Central Bank (ECB) and EU agencies). How can we account for the EP’s gradual empowerment over the past six decades? This question has been subject to a lively academic debate centring on alternative views on the key actors, mechanisms and dynamics driving the ‘parliamentarization’ of the EU (see, for example, Hix, 2002; Farrell and Héritier, 2003; Rittberger, 2003, 2005; Rittberger and Schimmelfennig, 2006; Benedetto and Hix, 2007; Bürgin, 2007; Héritier, 2007; Moury, 2007; König, 2008; Schimmelfennig, 2010; Roederer-Rynning and Schimmelfennig, 2011). The purpose of this contribution is to offer a novel conceptual angle to the study of the parliamentarization of the EU. I will argue that we obtain a more comprehensive and informative picture on the sources and dynamics of the EP’s empowerment by adopting a ‘domain of application’ approach (see Jupille et al., 2003; Checkel, 2012). Instead of presenting different theoretical approaches which compete for explanatory superiority, the domain of application logic assumes that each theory has a respective domain or ‘home turf’ where its respective explanatory power unfolds (see, for example, March and Olsen, 1998; Tannenwald, 2005). The explanatory leverage obtained with a domain of application approach is an additive one: different theories are considered to explain different aspects of the object under study and the ultimate objective of the domain of application approach is to ‘bring [. . .] together each home turf in some larger picture’ (Jupille et al., 2003, p. 21). For the ‘domain of application’ approach to yield better insights than, for example, exercises in competitive theory testing, explanatory factors should overlap and interact as little as possible between different domains (Checkel, 2012). In line with the ‘domain of application’ approach, I will demonstrate that explanations for the empowerment of the EP can be broken down into three domains characterized by different types of institutional choices: the instigation of entirely new institutions (creation), the modification of existing institutions (change) and the routine adoption of ‘focal’ institutions by political actors (use). I will then argue that these three different types of institutional choice point towards different sets of explanations, highlighting different logics and mechanisms underlying the respective institutional choice processes. For example, the use of existing institutional models tends to be activated in problematic situations, which political actors have come to classify as recurrent and where standard ‘off the shelf’ solutions to address the problem at hand are readily available. These solutions are based on shared understandings and taken-for-granted assumptions about the nature of and the solution to a particular problem. Decision contexts are characterized by very little political contestation, whether over the legitimacy, functionality or distributive implications of a particular institution. In contrast, the creation of a new institution takes place in a decision context fraught with uncertainty since no existing institution or institutional alternative is considered legitimate or functional in addressing actors’ concerns. The distributive implications of creating an entirely new institution tend to be more opaque when contrasted with the modification of already existing sets of institutions with which actors tend to be more familiar. Consequently, we expect that in contexts characterized by high levels of uncertainty, actors’ preferences tend to be more malleable and © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd

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more easily affected by processes of argumentation and deliberation. But once actors have agreed on the basic institutional structure, strategic distributive bargaining is likely to ensue over the distribution of decision-making powers. By conceptualizing the EP’s empowerment as the result of recurrent instances of different types of institutional choices, this contribution demonstrates that the application of a diverse set of theories to account for different types of institutional choice offers an additive and hence more comprehensive account of the EP’s empowerment than focusing on separate theories. While section I introduces the three different types of institutional choice and the associated institutional dynamics and mechanisms, sections II–IV offer, by means of illustration, an application of the different types of institutional choice processes to instances of the EP’s empowerment. The final section concludes with a brief discussion on the trajectory of parliamentarization beyond the EU. I. Institutions, Institutional Choice and the European Parliament To capture the empowerment of the EP theoretically, modifications of its powers are conceptualized as instances of institutional choice. The concept of ‘institutional choice’ encompasses different types of collective choices over institutions, ranging from the creation of new institutions, changing existing ones to employing and using existing institutional templates (focal institutions) to respond to collective action problems (see Jupille et al., forthcoming). Before turning to these three forms of institutional choice, some conceptual clarifications are in order. ‘Institutions’ are defined as phenomena comprising ‘regulative, normative and cultural-cognitive elements, that, together with associated activities and resources, provide stability and meaning to social life’ (Scott, 2008, p. 48). This tripartite distinction and definition of institutions is paramount to understanding and explaining different instances of institutional choice. The Regulative, Normative and Cognitive Components of Institutions Institutional economics and rational choice institutionalism in political science have traditionally emphasized the regulative element of institutions, which points to the enabling or constraining character of institutions qua ‘the rules of the game’ (North, 1990). Regulative processes comprise rulemaking, monitoring and sanctioning – all of which are activities reflected in the design of institutional arrangements devised by purposeful political actors geared towards affecting the behaviour of social and political actors. The normative component of institutions emphasizes the prescriptive dimension of institutional structures as they define appropriate and normatively desirable objectives for actors to follow and the legitimate means through which to pursue these objectives. This normative view of institutions differs from the regulative view in that the former conceptualizes actors’ motivations to design, change or follow institutional rules not simply as the result of instrumental cost–benefit calculations. Instead, it emphasizes their norm- and value-laden content, which activates behavioural roles and defines social obligations (see March and Olsen, 1998). Finally, institutions possess a cultural-cognitive component. Rooted in organizational sociology and the new institutionalism in sociology, this perspective places a premium on © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd


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the conceptions or representations of the world that actors have internalized and that have become part of their repertoire of unquestioned routines and habits (see Scott, 2008, p. 58). To explain why actors react to a particular situation by creating, modifying or maintaining institutions, researchers have to take into account the cognitive frames that determine actors’ subjective interpretations of the situation. These frames, often rooted in shared cultural beliefs, determine the type of information that actors pay attention to, how they will encode and interpret it, and what inferences they draw from it (Scott, 2008, p. 57). Particular situations will thus trigger orthodox, habitual responses that are unquestioned and uncontested by the actors.

Theories about Institutional Choice This tripartite distinction of institutions is reflected in different strands of the literature on institutional choice and design. Scholars adopting a ‘rational design’ approach stress the regulative character of institutions: actors use, modify, create and comply with institutions for reasons of expedience. Choices between alternative sets of institutions are hence shaped by actors’ cost–benefit calculations. Relevant factors to account for variation in institutional designs are, for example, the type of co-operation problem, the number of actors involved (and hence associated transaction costs), or the level of uncertainty (Koremenos et al., 2001). While not disputing the regulative character of institutions and the relevance of explanatory factors associated with the rational design approach, other scholars criticize the exclusive focus on the regulative character of institutions when explaining institutional choices (Stone Sweet et al., 2001; Wendt, 2001; Acharya and Johnston, 2007). Opting for a more eclectic approach, Acharya and Johnston (2007) argue that scholars should also pay attention to actors’ ideas and identities as well as ‘history’ when accounting for institutional choices. Having become part of actors’ ‘historical memory’, institutions often reflect normative obligations or cultural-cognitive schemes, which either serve as normative and moral constraints or as devices through which actors interpret the menu of legitimate or conceivable alternatives. Moreover, what may be perceived as efficient, legitimate or appropriate institutional order today was not necessarily considered an acceptable institutional solution in the past. It is through changes in the normative environment that actors’ perceptions and assessments of the appropriateness of particular sets of institutions are transformed over time (Wendt, 2001, pp. 1026–7; Acharya and Johnston, 2007, p. 21; Finnemore and Sikkink, 1998). Stone Sweet et al. (2001) argue that crises episodes are particularly conducive to unlocking the institutional status quo, especially when the legitimacy of the present institutional order is in question. In situations in which the ‘old order’ is perceived to be in crisis, ‘skilled social actors’ can exploit the situation to create new or use existing cultural frames to produce meaning for actors in situations in which existing institutions fail to do so (Fligstein, 2001; Fligstein and McAdam, 2011; Stone Sweet et al., 2001). Expanding the scope of theoretically relevant factors for explaining institutional choice to include ‘history’ and ideational factors not only reflects the conceptualization of institutions as phenomena comprising regulative, normative and cognitive-cultural elements more adequately, it also points to different types of causal logics and mechanisms underlying institutional choices to which I will now turn. © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd

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Mechanisms Capturing Institutional Choice Dynamics In this section, I will introduce different types of institutional choice dynamics and processes that actors employ to lock in or ‘institutionalize’ co-operation. These different types of institutionalized co-operation range from the creation of new institutions, changes or modifications to existing institutions, to the use of existing institutions to solve particular co-operation problems (Jupille et al., forthcoming). A further objective of this section is to bring together different types of institutional choices and the action theoretic logics and mechanisms underpinning these choices. Institutional creation is the most ‘radical’ form of institutional choice since it involves the creation and design of institutions in a field where none existed previously. Institutional creation is most likely when new problems arise and no ‘focal’ institution is readily available for selection or modification (Jupille et al., forthcoming). When political actors decide to engage in the creation of novel institutions, such activity often reflects a profound crisis or ‘substantial gaps in the institutional status quo’ (Jupille et al., forthcoming). Explanations stressing the regulative or normative elements of institutions and associated action theoretic mechanisms – consequential action and bargaining, on the one hand, and arguing or deliberation, on the other – should be particularly informative to explain processes of institutional innovation. Creating new institutions tends to be risky and costly for the actors involved: is the new institution adequately addressing the co-operation problem at hand? What are the stakes involved in creating a new institution? Does it reflect or (re)distribute power as intended by its creators? Consequently, we would expect that political actors follow an instrumental ‘logic of consequences’ when stakes are high, actors’ ‘preferences and consequences are precise and identities or their rules are ambiguous’ (March and Olsen, 1998, p. 952). However, when actors create new institutions, the distributive implications of proposed institutions are often unclear or hard to compute. Where actors are not able to weigh the costs and benefits of alternative options, they ‘choose on the basis of what is normatively appropriate’ (Wendt, 2001, p. 1024). This is most likely to occur when actors are confronted with a new situation in which existing institutions may be perceived as normatively problematic or even illegitimate (see Olsen, 2009, pp. 14–15). Under these conditions, the search for new institutions tends to be primarily driven ‘by an internal aspirational pressure caused by enduring gaps between high institutional ideals and actual practices’ (Olsen, 2009, p. 15). As a consequence, in situations in which neither the implications of preferences and expected consequences of alternative institutional solutions nor the identities that actors activate to address the problem at stake are clear, processes of deliberation and arguing over what constitutes the standard of legitimacy to which a new institution should live up to and hence what constitutes an appropriate institutional order, should be particularly prevalent. Institutional change occurs ‘when there is an institution that is substantially but not satisfactorily congruous with the cooperation problem at hand’ (Jupille et al., forthcoming). Assessments that stress a lack of congruity may be rooted in claims that the existing institution is ineffective or inappropriate in carrying out its designated tasks. Changing an institution involves, for instance, revising its issue scope by expanding the competencies accorded to political actors. Like processes of institutional creation, explanations for institutional change highlight the regulative and normative components of institutions. If changing existing institutions carries redistributive implications and if actors have clear © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd


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expectations about the likely consequences of changing the rules of the game, institutional changes tend to follow a logic of consequences and will be subject to distributive bargaining among the actors involved (March and Olsen, 1998, p. 952). Yet these processes of institutional change do not take place in a norm-free environment. This is where accounts for institutional change emphasize the normative component of institutions. Where political actors share a common standard of legitimacy, bargaining success is affected by argumentative and behavioural consistency with that standard. Actors violating a shared standard of legitimacy face social sanctions, such as shaming or shunning (Schimmelfennig, 2001). Actors, whose preferences are in sync with the prevailing standard of legitimacy, may strategically employ the standard of legitimacy in order to pursue their own ends more successfully, irrespective of whether or not they have internalized the standard (Schimmelfennig, 2001). Other scholars emphasize the normative component of institutions by pointing to those institutional change processes that conceptualize change as the result of norm-based argumentation and socialization and hence a concomitant change of actor preferences (Risse, 2000; Checkel, 2005). It is worth noting that processes of institutional creation and change highlight different implications of the normative component of institutions: in instances of institutional creation, actors tend to engage in deliberative and argumentative processes over the ‘right’ and ‘legitimate’ institutional order to govern a problem or solve a particular crisis (see Blyth, 2002). Institutional creation thus tends to be a ‘creative’ and deliberative process in the context of which actors attempt to define what constitutes a legitimate solution to the problem at hand. Processes whereby actors modify or change existing institutions tend to be characterized by a more stable normative environment in which standards of legitimacy already exist. Actors with fixed preferences over institutional alternatives act expediently, yet their behaviours are constrained by prevailing standards of legitimacy. Actors violating the norms associated with a standard of legitimacy face social sanctions. Moreover, actors need to defend and support their actions with reference to standards of legitimacy to act successfully by engaging in rhetorical action (Schimmelfennig, 2001). The third type of institutional choice discussed here is institutional use. It is the least costly of institutional choices since it neither involves protracted negotiations over possible institutional alternatives nor the search for entirely new institutions. Instead, actors take recourse to focal institutions, which have ‘worked well for similar problems (defined both functionally and subjectively) in the past’ (Jupille et al., forthcoming). Focal institutions tend to be activated when the stakes involved are low and when issues that have been addressed satisfactorily by the institution in the past resurface on the political agenda. Processes of institutional use display the characteristics of a co-ordination game in which the actual or perceived distributive implications of institutional choices appear to be low to the actors involved. Since institutional use represents an institutional choice that emphasizes ‘satisficing’ over ‘optimizing’ strategies, it can be best captured by theories that stress those mechanisms that render institutions ‘sticky’ and emphasize institutional continuity over radical change. Sociological institutionalism and the new institutionalism in organizational sociology, which highlight the cultural-cognitive components of institutions and processes of isomorphic change, are particularly relevant when it comes to explain instances of institutional use (see DiMaggio and Powell, 1991). The legitimacy of an institution is the key concept to capture the ‘stickiness’ or ‘focal-ness’ of existing institutions. The legitimacy © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd

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of an institution rests on the perception by socio-political actors that the actions of a particular entity are desirable or appropriate within a socially constructed belief system (see Scott, 2008, p. 59; Suchman, 1995). The cultural-cognitive perspective on institutions posits that an institution’s legitimacy ‘comes from conforming to a common definition of the situation, frame of reference, or a recognizable role or structural template’ (Scott, 2008, p. 61). In sum, the lower the stakes, the higher the legitimacy and hence the more uncontested pre-existing institutional models are, the higher the likelihood that actors use and employ focal institutions. Table 1 summarizes the three types of institutional choice and associated mechanisms triggering different institutional choice types and explanatory frameworks. II. Creating a New Institution: The Making of a Supranational Parliament The inclusion of the Common Assembly in the Treaty establishing the ECSC provides a clear-cut example of institutional creation: with the Common Assembly, a new institution was designed, bringing together elected representatives from the legislatures of the six ECSC Member States. It was bestowed with competencies to hold the newly created High Authority (the forerunner of the Commission) to account and, if deemed necessary, the members of the assembly could cast a censure motion. This section will focus on this institutional innovation. I will illustrate that the creation of the Common Assembly was driven by policy-makers’ perception that the proposed institutional arrangement for the ECSC, the creation of the High Authority in particular, posed a significant legitimacy gap that the delegates negotiating the Schuman Plan needed to address and redress. The creation of the first supranational organization in the history of international organization, the High Authority (and forerunner of the Commission), confronted the delegates of the prospective ECSC Member States with a hitherto unprecedented institutional design problem and hence a manifest gap in the institutional status quo. Traditionally decision-making in international organizations was dominated by the principle of sovereign equality: since national governments can ultimately exercise their unconditional right to veto decisions whenever they see their interests threatened, decisionmaking in international organizations does not directly threaten to undermine national sovereignty. It was the central aim of the Schuman Plan to overcome what Jean Monnet and Robert Schuman considered the paralyzing effect of unanimity by establishing a supranational body – the High Authority – whose decisions would be binding for the prospective Member States. Absent supranational institutions in international politics, there was not only a lack of blueprints for the creation of a supranational institution, but also no readily available answer to the question about how and to whom such a body should be accountable. As a result, one central institutional design problem the delegates had to solve during the Schuman Plan negotiations was to establish whether the problem of controlling the High Authority was primarily about ensuring the legitimacy and appropriateness of the new institutional structure or about preventing ‘agency loss’. Initial positions held by the delegates on this question diverged starkly. On the one hand, the Belgian and Dutch delegates addressed the control problem from an interest-based perspective, emphasizing the regulative component of institutions. Approaching the new treaty organization with a set of well-defined socio-economic preferences, the issue of control posed the following © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd

© 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd

Source: Author.

Standard of legitimacy Empirical examples

Dominant explanations

Trigger mechanisms

Type of institutional choice

Content and relevance contested Founding of EP (Common Assembly)

Crisis situations (significant gaps in status quo); novelty of the situation (lack of institutions or existing institutions ineffective/illegitimate) Regulative: policy-seeking and inter-state bargaining; Normative: legitimacy-seeking (deliberation)

Institutional creation

Table 1: Domains of Application: Types of Institutional Choice

Regulative: policy-seeking and inter-institutional bargaining; Normative: legitimacy-seeking (rhetorical action or socialization) Application of standard contested Redistribution of existing competencies (for example, extension of EP’s legislative powers)

Gaps in status quo (modifying existing institutions to meet new demands)

Institutional change

Cultural-cognitive: taken-for-granted assumptions and shared understandings/institutional isomorphism Uncontested, ‘institutionalized’ Expansion of existing competencies (for example, new areas covered under an existing legislative procedure)

Recurrent problematic situation (employing focal institutions)

Institutional use


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challenge: how can we best realize our preferences and prevent the High Authority from abusing its newly acquired competencies (Duchêne, 1994, p. 210)? On the other hand, the delegates from the other prospective Member States – most notably the delegates from Germany – attributed lesser salience to the achievement of specific economic objectives. These issues were secondary to considerations about how a legitimate institutional structure could be designed in the first place – that is, before the ‘details’ would be worked out. In conceptual terms, while the Belgian and Dutch delegations followed predominantly a logic of consequences, the German delegation followed a logic of appropriateness when it came to discussing the institutional framework of the ECSC. For the Belgian and Dutch delegates, supranationality was acceptable to the degree that it promised to help realize socio-economic objectives (logic of consequences). Control mechanisms, such as an intergovernmental council or a court, should ensure that the High Authority would not abuse its power or turn into a ‘dictatorship of experts’ (Küsters, 1988, p. 79). For the German delegates, supranationality did not primarily trigger a problem about control, but – with distributive interests secondary – posed a question about democratic accountability and legitimacy. The fusion of national sovereignties at the supranational level, mirrored in the powers bestowed upon the High Authority, raised questions about how legitimate political institutions should be designed to hold the supranational High Authority accountable (logic of appropriateness). Given the divergent positions on the question of control, how can the negotiation dynamics and the decision to create the Common Assembly be characterized and explained, respectively?1 Early on in the negotiations, French and German negotiators were expressly in favour of a parliamentary organ to control the supranational High Authority. Furthermore, the French and, more pronouncedly, the German delegations made it known that a parliamentary assembly was an essential part of what should, in the long term, amount to a federal-style European polity. Conversely, the Belgian and Dutch governments, in particular, wanted national governments to retain a central role within the new institutional structure to hold the High Authority at bay and prevent ‘agency loss’. Interestingly, it was through the ‘federal state’ analogy, which the German delegates pushed so ferociously to justify the creation of a supranational assembly, that an avenue was opened for the Benelux delegates to argue successfully for the inclusion of an intergovernmental organ: the Council. A member of the Dutch delegation pointed to the dualistic character of federal states, arguing that: ‘Even in a federation [. . .] there is such a thing as state’s right’.2 The federal state norm was hence a useful ideational resource for the Belgian and Dutch governments to justify their preference for an intergovernmental organ.3 The French and German delegates accepted the validity of this argument and some members of the German delegation even expressed their outright enthusiasm. Delegates accepted the inclusion of the Council thus not out of expedience, but were persuaded that this followed logically from complying with the federal state norm, which served as a reference point in the negotiations.4

1

The ensuing paragraphs draw from Rittberger (2005, chapter 3). US Department of State, Incoming Telegram 1160, 27 June 1950, for Ambassador William T. Nunley (The Hague). MAEF.DECE: Délégation française – conversations sur le Plan Schuman, réunion du Comité de Chefs de délégation sur les questions institutionnelles, 5 August 1950. 4 See AA/PA.SFSP – 53: Notizen für Herrn von Brentano von Hallstein, 8 October 1950. 2 3



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This episode of institutional creation not only mirrors the search for appropriate and legitimate institutional solutions. Once the delegates agreed on the principle that the nascent ECSC could not do without a representative institution, distributive bargaining ensued over a set of (regulative) institutional design issues – most notably the question about the Common Assembly’s scope of power and questions about the internal organization of the assembly (for example, the number of seats per country). The ‘smaller’ Benelux countries accepted the principle of parliamentary accountability of the High Authority only under the condition that the Common Assembly would not be able to exercise any form of legislative or policy-influencing powers. Hence, a dose of democracy was accepted in the form of the Common Assembly, but it should not make much of a difference. As mentioned above, the Benelux countries held the view that in an intergovernmental Council – where every Member State was supposed to have equal weight – they could pursue or protect their interests more effectively than in a representative parliamentary body.5 III. Changing Existing Institutions: The (Re-)allocation of Decision-Making Competencies Institutional change implies that an existing institution can be modified to meet new problems and challenges for which the current design is deemed ineffective or inappropriate. In contrast to instances of institutional creation, institutional change is considered to be less costly and accompanied with less uncertainty for the actors involved. Institutional change comprises those instances whereby existing decision-making rules are modified, as a result of which decision-making competencies and powers are being redistributed among the key decision-making actors in the EU. Focusing on the EP, inter-institutional bargaining is one central explanation to account for the dynamics and outcomes of institutional change affecting the distribution of decision-making powers between the EP and the other legislative actors – most notably the Council. Instances of institutional change feature prominently in the literature on the EP’s empowerment. Explanations that emphasize the regulative quality of institutions explore those treaty-based formal rules as well as informal rules, such as inter-institutional agreements, that confer rights and obligations on the EP and its constituent individual or collective actors, such as MEPs and party groups. For example, legislative decisionmaking procedures specify the decision-making rules and sequence that enable MEPs to influence the content of EU legislation. Changes in these institutional rules reflect political actors’ cost and benefit calculations, geared towards maximizing their respective preferences. Actors trigger institutional change and thus engage in redistributive bargaining if the existing institutional rules do not meet present demands. For the Member States, this implies that governments press for institutional change to maximize decision-making efficiency (see, for example, Hix, 2002) or obtain policies that are closer to their respective ideal points (see, for example, König, 2008). For MEPs, the most worrisome gap in the institutional status quo is traditionally the perceived lack of decision-making power that the ‘masters of treaty’ (that is, the Member 5 See AA/PA.SFSP – 63: Protokoll über die Sitzung der Vertreter der Deutschen delegation zum Europarat in Strassbourg mit den Vertretern der deutschen Delegation für den Schumanplan in Paris, 13 October 1950.


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States) accord to the EP in decision-making. As a result, MEPs have been active in the past in challenging treaty-based formal institutional rules and attempted, often successfully, to impose their interpretation of the formal treaty rules onto the Member States and the Commission, thereby unblocking the institutional status quo (see Hix, 2002; Farrell and Héritier, 2003, 2007; Héritier, 2007; Moury, 2007). According to this line of scholarship, the empowerment of the EP is an act of self-empowerment resulting from an asymmetric bargaining situation in which the EP is said to possess superior bargaining over the Member State governments in the Council. The power asymmetry has its roots primarily in differential time horizons and the EP’s institutional capacity to effectively block the decision-making process: while Member State governments are assumed to be concerned about reaping publicly visible policy gains in the short run, the re-election success of MEPs is much less dependent on their publicly displayed policy performance (given the second-order character of EP elections). Consequently, MEPs can focus on the long-term inter-institutional power game, threatening the Council to block legislation unless it grants the EP more say in inter-institutional bargains by accepting to informally alter the decision-making rules to the EP’s advantage. In her contribution to this special issue, Adrienne Héritier demonstrates that the process of institutional change is characterized by inter-institutional bargaining over the allocation of decision-making powers. The actors involved follow a logic of consequences as they possess clear expectations regarding the effects of modifying existing decisionmaking rules. While the Member States who negotiated the formal treaty rules obviously tend to prefer the continuation of the formalized institutional status quo, MEPs hold the expectation that altering the formal treaty-based rules could enhance their influence over policy outcomes. Consequently, they actively engage in power-based distributive bargaining by interpreting the formal treaty rules to their advantage and pressing the Member States in the Council to grant institutional concessions. These explanations for institutional change based on inter-institutional bargaining are less well suited to explain why Member State governments have regularly accorded new powers to the EP in treaty reforms that have no precedent with regard to previously conceded informal rules. Moreover, explanations for institutional change which focus on changes to the formal treaty rules are not convincing when it comes to explaining why Member State governments concede decision-making power to the EP by changing the treaty rules. Since empowering the EP seems to generate neither efficiency nor policy gains for Member State governments (see, inter alia, Schulz and König, 2000; Bräuninger et al., 2001; König, 2008), these analyses concede that ideas and legitimating beliefs ought to play a role in explaining the EP’s empowerment. To theorize this claim, the normative dimension of institutions has to be highlighted (see, inter alia, Rittberger and Schimmelfennig, 2006; Schimmelfennig, 2010; Roederer-Rynning and Schimmelfennig, 2011). Adopting a normative perspective on institutional change has the following implications. First, demand for institutional change is triggered because of the perceived lack of legitimacy of the existing institution and not because institutions are deemed ineffective or actors dissatisfied with an institution’s redistributive implications. Second, an institution is said to lack legitimacy if there is a gap between a commonly shared standard of legitimacy and the performance of the existing institution in the light of this standard. It has been argued that political actors in the EU are embedded in a liberal-democratic © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd


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community environment (Schimmelfennig, 2001). This implies that despite conflicting views over political objectives and desired policy outcomes, actors accept liberaldemocratic values as the fundamental standards of legitimacy (see Rittberger and Schimmelfennig, 2006). The principle of representative democracy or parliamentarism can be subsumed under this standard of legitimacy. The principle postulates that: assemblies of representatives elected by the people make and/or decide on the state’s laws and budget, appoint state officials, and hold the executive accountable. According to the system of government (parliamentary or semi-presidential), the concrete functions and competencies of the parliament vary among the member states of the EU but parliamentary legislation is a core feature of democratic systems everywhere. Legitimate laws require parliamentary approval. (Roederer-Rynning and Schimmelfennig, 2011, p. 5)

When is the principle of representative democracy activated and when does it exercise a compliance-pull on political actors resulting in an extension of the powers of the EP? The condition triggering institutional change is the existence of a legitimacy gap. This gap opens when the principle of representative democracy is undermined. When, for example, policy-making competencies are transferred from the national to the EU level in new policy areas, national executives tend to benefit most from these transfers of decisionmaking authority (Moravcsik, 1997) at the expense of domestic parliamentary institutions. Yet, as long as unanimity is the dominant decision-rule, traditional democratic accountability chains remain intact since governments continue to be accountable to their national parliaments. As soon as national governments can be outvoted (under qualified majority voting), national parliaments lose their ability to control Community legislation and to hold their governments to account for supranational policies the majority does not support (see Rittberger, 2005, pp. 46–8). Consequently, when policy-making competencies are transferred to the EU level and the Council decides by qualified majority, political actors can define or even scandalize such instances as highly problematic situations since the principle of representative democracy and hence the commonly shared standard of legitimacy is undermined. Potentially successful solutions geared towards closing the legitimacy gap have to be directed at restoring the principle of representative democracy and parliamentarism. These solutions have to pay tribute to upholding the standard of legitimacy, either by empowering the EP or by strengthening national parliaments (Rittberger, 2005; Rittberger and Schimmelfennig, 2006; Schimmelfennig, 2010). This legitimacy-seeking logic has been shown to underlie institutional change processes characterized by the extension of the EP’s legislative and budgetary powers (Rittberger, 2005, 2006). It has been shown that actors conform to the standard of legitimacy in order to escape the potential costs that accrue from social sanctions, which – in a community environment with high interaction density – accrue when actors violate the shared standard of legitimacy. Doing so would hamper their credibility as reliable negotiating partners (Schimmelfennig, 2001; Rittberger and Schimmelfennig, 2006). In order to escape social sanctions, actors are compelled to justify their actions in the light of the prevailing standard of legitimacy – that is, they have to argue that the relevant standard applies or does not apply in a particular situation. Hence, the application of a standard of legitimacy to particular instances of institutional change may be contested and generate disagreement among actors about whether the particular standard applies in the context at hand. Actors whose preferences are in line with the standard of legitimacy tend © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd

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to have superior bargaining power than actors whose preference cannot be easily squared or brought into line with the standard of legitimacy argumentatively. The successful use of arguments based on the standard of legitimacy (rhetorical action) and the concomitant emphasis on the social obligations associated with the standard of legitimacy has been shown to succeed in shaming recalcitrant EU Member State governments into compliance with the principle of parliamentarism. Successful (as well as failed) instances of institutional change, such as the extension of the EP’s competences in the budgetary and legislative spheres, offer powerful illustrations for this argument (see Rittberger 2005, 2006).6 When the European Community embarked on the reform of its system of finances to establish own resources in order to ensure a permanent financing arrangement for the common agricultural policy in the late 1960s, the question about how the distribution of the Community’s budget should be decided came to the forefront.7 Since budgetary competencies were partially transferred to the European level, they escaped the sphere of influence of national legislatures. This triggered concerns of a legitimacy deficit in the existing institutional arrangement. Government delegates and MEPs alike, who shared an interest in extending the EP’s budgetary competencies, argued that the decline in national parliaments’ prerogatives had to be compensated by strengthening the EP’s budgetary competencies. Once MEPs and government delegates – most notably those from the Netherlands – had successfully framed the situation as one in which a legitimacy gap was imminent, the other governments refrained from openly voicing arguments based on self-interest, such as status- and power-related concerns. Once all government delegations had come to accept the existence of the legitimacy gap, they were cautious not to violate the shared standard of legitimacy that accords a central role to the EP in budgetary decision-making. As a result, they engaged in rhetorical action. For example, French government delegates countered arguments to extend the EP’s powers by citing the limitations that domestic constitutions impose on the budgetary powers of domestic legislatures. In accepting the validity of the standard of legitimacy, recalcitrant governments were only able to limit the ‘maximalist’ agenda of MEPs and some government delegations by employing the standard, yet they also refrained from full opposition vis-à-vis the budgetary empowerment of the EP since this would have violated the standard of legitimacy. The same logic holds for the institutional change that bestowed the EP with ‘conditional agenda-setting powers’ (Tsebelis, 1994) in the legislative domain.8 To overcome opposition to the internal market and to speed up its completion, the Single European Act introduced qualified majority voting. However, the introduction of qualified majority voting had repercussions for the functioning of representative democracy in the Member States. It implied that national parliaments could no longer hold their governments to account in instances where they were outvoted. As a result, the ‘chain of democratic accountability was thus broken and indirect democratic legitimacy suffered’ (RoedererRynning and Schimmelfennig, 2011, p. 5). The legitimacy gap was scandalized not only 6 Due to space constraints, I cannot elaborate on instances whereby institutional changes to empower the EP have failed. The attempted creation of the European Defence Community as well as of the European Political Community in the early 1950s (Rittberger, 2006) as well as the first attempt to reform the Community’s finances in the mid-1960s are instructive in this respect (Rittberger, 2005, pp. 116–24). 7 This section draws on Rittberger (2005, pp. 114–38). 8 This section draws on Rittberger (2005, pp. 143–72).



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by MEPs, but also by several delegates from the Member State governments who demanded that the legislative role of the EP be extended in order to compensate for the loss of influence experienced by domestic legislatures. In subsequent treaty reforms, the link between qualified majority voting and the concomitant demand for empowering the EP was confirmed (see also Roederer-Rynning and Schimmelfennig, 2011, p. 5). This link progressively assumed the quality of a ‘logical’ link that actors increasingly took for granted. As the following section shows, inter-state negotiations on the legislative empowerment of the EP were no longer characterized by conflict over the distribution of powers or contestation about the applicability of the principle of representative democracy (qua standard of legitimacy) to particular situations. Institutional change was transformed into institutional use. IV. Using Existing Institutions: The Institutionalization of Representative Democracy Institutionalization is a process whereby existing institutional rules assume a taken-forgranted quality and actors engage in rule-following behaviour rather than calculate the consequences of alternative courses of action (DiMaggio and Powell, 1991, p. 19). To capture processes of institutionalization highlighting the cultural-cognitive component of institutions is instructive because of its emphasis on the role of shared understandings and taken-for-granted assumptions. In an institutionalized environment, beliefs and meanings are shared and assume a taken-for-granted status so that ‘actors both consciously and unconsciously spread or reproduce’ (Fligstein, 2001, p. 110) this order and are either unwilling or unable to conceptualize alternatives. Shared meanings take on a causal role with actors assuming the status of more or less passive recipients of the meanings reflected in institutions: actors are conceived as ‘propagators of shared meanings and followers of scripts’ (Fligstein, 2001, p. 111). As a corollary, explanations of institutionalization place their focus on institutional use as a dominant type of institutional choice since taken-forgranted assumptions or shared understandings about how particular problems should be addressed facilitate and enable joint action. As argued above, focal institutions are of particular relevance in this context. Political actors opt for focal institutions when they promise to offer a ‘good enough’ or ‘satisfactory solution to a new problem as compared to [. . .] more costly and uncertain institutional alternatives’ (Jupille et al., forthcoming), which include changing existing or creating new institutions. Only more recently did scholarship on the EP begin to address and uncover processes of institutional use in the context of analyzing the EP’s empowerment. Goetze and Rittberger (2010) have attempted to show that the formula ‘no integration without representation’ has, over time, assumed a taken-for-granted quality among political actors in the EU. This formula stipulates that instances of further integration, such as the introduction or extension of qualified majority voting in the Council, should be accompanied by an extension of the legislative competencies of the EP to those areas where qualified majority voting applies. This formula proved to be hotly contested in the 1980s and early 1990s. The claim that the EP possesses a legitimate role in legislative decision-making was all but a commonly shared view among Member State governments. The degree to which the legitimacy of the EP as co-legislator is contested can be assessed with reference to actors’ perceptions about the legitimacy of the EP – more concretely, the © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd

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degree to which actors have to justify the appropriateness, acceptability or propriety of expanding the EP’s powers in a particular context. The more legitimate and hence the more institutionalized an institution becomes, the less justificatory engagement on behalf of the proponents of EP empowerment becomes necessary. Moreover, institutionalization should coincide with a high level of taken-for-grantedness, which implies that the formula ‘no integration without representation’ requires not only little justification but also hardly any articulation. As a result, the formula came to serve as a focal institution, founded on an uncontested normative principle and a standard response for political decision-makers when integration threatened to undermine the principle of representative democracy. Previously I argued that political actors were prompted to justify the EP’s empowerment in the light of the prevailing standard of legitimacy shared by the community of EU states, which – in the case at hand – is to uphold the principle of representative democracy. While political decision-makers did not contest the standard of legitimacy per se, there was stark disagreement among policy-makers about the applicability of the standard to particular contexts and situations. As Goetze and Rittberger (2010, pp. 47–8) show, the intergovernmental conferences since Maastricht displayed relatively little contestation or debate about the link invoked between qualified majority voting and parliamentary co-legislation, which culminated in the adoption of the OLP in the Lisbon Treaty. The OLP, which was introduced already in the course of the Convention process, reflects the institutionalization of the principle of representative democracy in the EU. The principle of parliamentary co-decision shifted from the realm of the ‘contested’ to the sphere of the ‘ordinary’, assuming the status of an unquestioned political principle. Already in the run-up to the Amsterdam Treaty, several Member State delegations acknowledged the existence of a logical link between the extension of qualified majority voting and the role of the EP as co-legislator. At the same time, this implied that the question of the extension of the EP’s legislative powers was not about expedience or policy-seeking motivations. Instead, a shared understanding about the legitimate functioning of the legislative process was gradually emerging. It was during the Convention process that the principle of EP co-legislation assumed a taken-for-granted status. The report issued by the Convention’s working group on ‘Simplification’ stipulated that ‘the logic of the co-decision procedure requires qualifiedmajority voting in the Council in all cases’9 and that the co-decision procedure should also ‘become the general rule for the adoption of legislative acts’.10 This also implies that wherever the treaty envisages the coincidence of co-decision and unanimity an ‘institutional oddity’ remains, which robs the procedure of its substance and legitimacy.11 In a case study on the expansion of the EP’s powers of co-legislation to the domain of agricultural policy-making, Roederer-Rynning and Schimmelfennig’s (2011) findings support this argument. They show that the shift to OLP in the area of agriculture and the implied linkage between parliamentary co-decision and qualified majority voting reflects the aspiration of political actors in the Convention to offer a consistent response to the principles of legal rationalization and representative democracy. The principle of 9

European Convention, CONV 424/02, p. 14. European Convention, CONV 424/02, p. 15. 11 European Convention, CONV 271/02, p. 4. 10



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representative democracy, which obtained ‘constitutional’ status as a result of the Convention process, implied that parliamentary co-decision had to be seen as a ‘matter of principle following constitutional template for the EU polity – and not as a legitimacypreserving compensation for efficiency-oriented, policy-specific institutional reforms’ (Roederer-Rynning and Schimmelfennig, 2011, p. 14). The legislative formula linking qualified majority voting to parliamentary co-decision has been transformed into a ‘technical’ and not a ‘political’ principle (Norman, 2003, p. 102), which underscores its uncontested character and quality as a focal institution. Conclusions: Parliamentarization beyond the EU? As the EU’s ‘constitutional settlement’ is said to have approached a state of ‘equilibrium’ and ‘maturity’ (Moravcsik, 2007), it hardly comes as a surprise that the study of processes of institutionalization should be instructive for our understanding of how constitutional principles have come to be taken-for-granted features of the EU. As I have argued, in the early decades of the EP’s existence its legitimacy was hotly contested. This was reflected not only by often-derogatory use of the label ‘assembly’, but also by highly contested debates over the powers it should or should not possess. In this context, proponents of the EP have come to successfully scandalize the lack of parliamentary democracy at the EU level and succeeded in ‘shaming’ recalcitrant policy-makers into compliance with the principle of representative democracy at the EU level. Over the decades, representative democracy has assumed the status of a constitutional principle in the EU, which – when evoked – triggered less and less contestation among Member State governments. Even in seemingly ‘hard’ cases such as economic policy co-ordination and agricultural policymaking, with potentially far-reaching financial implications and heightened distributive concerns on behalf of the Member State governments, introducing parliamentary co-legislation under the OLP was not disputed on grounds of legitimacy or expediency (Roederer-Rynning and Schimmelfennig, 2011). The domain of application approach enables us to highlight two interesting dimensions of the EU’s parliamentarization. The first is temporal and characterized by a process whereby – over the course of the past decades – instances of institutional change have been increasingly complemented by instances of institutional use. As the institutionalization of the principle of representative democracy in the EU has progressed, instances of institutional use have come to assume an ever more prominent role in accounting for the EP’s empowerment. The second dimension highlights cross-sectoral dynamics. Whenever MEPs want to reap new competencies or seek to enhance their decision-making powers at the expense of other actors (for example, by pushing for the reform of existing decisionmaking structures), we tend to encounter a process of institutional change characterized by inter-institutional bargaining or rhetorical action. When it comes to extending existing decision-making structures, such as the OLP, to new issue areas, the dynamics underlying institutional use tend to dominate (see Roederer-Rynning and Schimmelfennig, 2011; Welge and Rittberger, 2010). One could assume that the institutionalization of representative democracy is a phenomenon that is unique to the EU since no other schemes of international co-operation or regional integration possess similar levels of supranational integration. If the descriptive formula ‘no integration without representation’ is correct, we would expect parliamentary © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd

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institutions to come to the rise in those international or regional co-operation schemes, where governments relinquish legislative or budgetary competencies and (partially) transfer these to a new level of authoritative decision-making. Yet, the transfer of sovereignty is not a sufficient condition for parliamentarization to ensue. It also requires that political actors come to agree that the principle of representative democracy defines a common constitutional principle or standard of legitimacy to which all actors have to subscribe. Only then can normative pressure be successfully exercised to compel political actors to comply with the principle of representative democracy and its corollary, the empowerment of a parliamentary institution at the supranational level. These conditions seem to be largely absent in regional integration schemes beyond the EU, where parliamentary institutions assume more or less a decorative function. Recent research on the parliamentary dimension of Mercosur (the Southern Common Market) demonstrates yet an additional mechanism through which international parliaments may become gradually institutionalized: the diffusion of the European ‘model’ to other regional contexts. While some scholars argue that Latin American integration schemes have deliberately rejected copying the adoption of the European ‘model’ at the outset (Dabène, 2009), there is mounting evidence that regional decision-makers have come to emulate political objectives as well as institutional models (Lenz, forthcoming). For example, the creation of the Mercosur Parliament (‘Parlasur’) is seen not only as a response to re-launching Mercosur in a period of economic and political crisis, but is also said to reflect the emerging consensus of a transgovernmental network of parliamentarians from both the legislatures of Mercosur Member States that the parliamentary dimension of Mercosur needs to be strengthened (Dabène, 2009; Dri, 2010). Both factors, uncertainty experienced by political actors in crisis situations and networking activities that take place among parliamentarians and civil servants, sharing a common professional outlook, are considered to be conducive to mimetic or normative isomorphic processes (DiMaggio and Powell, 1991). For instance, inter-parliamentary meetings and conferences between MEPs and members of Parlasur’s precursor, the Joint Parliamentary Committee of Mercosur, were organized on a regular basis and have contributed to the diffusion of the EP as model parliament (Dri, 2010). Yet, short of substantial pooling and delegation in Mercosur, Parlasur looks very much like the EP in its early days, where it was merely accorded a consultative role in legislative decision-making. Only when the members of Parlasur obtain a critical level of legislative or budgetary competencies to effectively disrupt, delay or even block decisions, will they be able to engage in a process of self-empowerment that has been characteristic of instances of institutional change analyzed previously (see also Héritier, in this issue). Correspondence: Berthold Rittberger Chair for International Politics Geschwister-Scholl-Institute Ludwig-Maximilians-University Oettingenstrasse 67 80538 Munich Germany email [email protected] © 2012 The Author(s) JCMS: Journal of Common Market Studies © 2012 Blackwell Publishing Ltd


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