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The Joint-Decision Trap: Lessons From German Federalism and European Integration



Compared to early expectations, the process of European integration has resulted in a paradox: frustration without disintegration and resilience without progress. The article attempts to develop an institutional explanation for this paradox by exploring the similarities between joint decision making (‘Politikverflechtung’) in German federalism and decision making in the European Community. In both cases, it is argued, the fact that member governments are directly participating in central decisions, and that there is a de facto requirement of unanimous decisions, will systematically generate sub-optimal policy outcomes unless a ‘problem-solving’ (as opposed to a ‘bargaining’) style of decision making can be maintained. In fact, the ‘bargaining’ style has prevailed in both cases. The resulting pathologies of public policy have, however, not resulted either in successful strategies for the further Europeanization of policy responsibilities or in the disintegration of unsatisfactory joint-decision systems. This ‘joint-decision trap’ is explained by reference to the utility functions of member governments for whom present institutional arrangements, in spite of their sub-optimal policy output, seem to represent ‘local optima’ when compared to either greater centralization or disintegration.
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JCMS 2006 Volume 44. Number 4. pp. 845–64
The Joint-Decision Trap Revisited
Max-Planck-Institut für Gesellschaftsforschung
The original analysis appears as a basically valid – if simplified account of the
institutional conditions of political policy choices in the EU and their consequences.
It needs to be complemented, however, by a similar account of non-political policy-
making in the supranational-hierarchical mode of governance by the ECB or ECJ.
Introduction: A Successfully Deficient Contribution
In re-reading the ‘Joint-Decision Trap’ (1988), I find it worth noting that the
text is older than it seems. The original manuscript was written in 1983–84
for a study group of the Western Europe Committee of the American Social
Science Research Council. Headed by Philippe Schmitter, the group was sup-
posed to reflect on some vague and ambitious theme like ‘Reconstituting the
Boundaries of the Political’. I had been co-opted to write something about
recent changes in German federalism, but Schmitter suggested that I should
also explore possible parallels in European integration – a subject which, until
that time, had not been among my academic concerns. Since the edited volume
which the group was to produce was not yet in sight, I published a German
version of my essay in 1985 which was followed by an Italian translation in
1986. By 1988, when the edited volume had finally evaporated altogether, I
agreed to have a slightly amended version of the original English text published
by Public Administration.
MPIfG Journal Article
Fritz W. Scharpf: The Joint-Decision Trap Revisited. In: Journal of Common Market Studies 44(4), 845 - 864 (2006). Wiley-Blackwell
The original publication is available at the publisher’s web site:
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This genesis suggests that the article should have suffered from three
limitations. First, it was shaped by the excitement of a neophyte exploring
a new field. Second, it was drafted well before the Single European Act and
the success of the single market programme, let alone monetary union, would
have empirically disturbed the stark simplicity of the original sketch. Finally,
it was written from a German perspective, highlighting the characteristics of
European integration that I could see from that vantage point. As it turned
out, however, some of these deficiencies actually contributed to the apparent
success of the article on the citation index.
In itself, the fact that the European Community was approached from the
study of German federalism implied a comparative perspective that avoided
the sui generis premises that had tended to isolate the work on European inte-
gration from the mainstream of political science research and theory. Instead,
the article suggested that the European polity might be usefully compared to
the institutions and politics of federal nation-states – an idea which has since
developed into an important strain in the Europeanist literature (Sbragia,
1993; Nicolaïdis and Howse, 2001). In fact, however, my original research on
Germany had focused more narrowly on the consequences of policy-making
through intergovernmental negotiations – which we had originally discussed
and explained in the framework of Coasian negotiation theory (Scharpf et al.,
1976). Hence the comparison was also focused on intergovernmental nego-
tiations at the European level, and the article tried to show that some of the
manifest failures of German and European policy could be explained by the
same negotiation-theoretic hypotheses. Compared to more holistic treatments
of European integration, therefore, the narrow empirical focus of my contribu-
tion made it more amenable to the application of an explanatory model derived
from general theory.1
Given the purposes of the article and the context in which it was drafted,
the model was presented in a rudimentary and informal fashion. But the
more precise specification of the ‘joint-decision trap’ (or what I later called
a ‘compulsory negotiation system’) and its consequences proved to be quite
straightforward (Scharpf, 1997) and very much in line with George Tsebelis’
analyses of the policy implications of ‘veto players systems’ (Tsebelis, 1995,
Yet even though it was intended to focus on a particular aspect of policy-
making, the article was sometimes read as if it were meant as a comprehen-
sive representation of the workings of the German political system or of the
1 That I was not primarily interested in explaining European integration as such is also demonstrated by
the concluding section which tries to specify the abstract conditions of a ‘joint-decision trap’ and suggests
some possible applications of the model in constellations as diverse as self-governing university faculties,
joint ventures, or political coalitions (Scharpf, 1988, pp. 271–3).
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European Community. For Germany, such over-extended interpretations were
relatively rare and generally innocuous: most readers knew that not all policy
areas were caught in the federal joint-decision trap some were obviously
governed in a mode of neo-corporatist concertation between the government
and large interest organizations, others evolved in common-law fashion under
the guidance of specialized labour or administrative courts, and some were
indeed shaped by the politics of parliamentary majorities (Katzenstein, 1987;
Schmidt, 2003; Hesse and Ellwein, 2004).
With regard to Europe, however, the article’s ranking on the citation index
was significantly enhanced by interpretations that ignored its intended domain.
For authors reporting empirical work, it became a must citation in the introduc-
tory discussion of theories which they would then proceed to ‘falsify’ by their
own findings. Worse yet, the article was conscripted in the ontological battle
that ‘intergovernmentalists’ and ‘supranationalists’ were waging over the true
nature of the European polity. On this front, I saw no reason to take sides. Since
my later work focused on the political economy and legitimacy of European
policy, my view of the institutional framework of European policy-making had
become too complex for simple dichotomies.
If pushed to present a greatly simplified model of the overall conditions
shaping policy processes in the European Union, I would now insist on the
co-existence of at least three distinct modes of European governance – which
I have recently described as the ‘intergovernmental’ mode, the ‘joint-decision’
mode, and the ‘supranational-hierarchical’ mode (Scharpf, 2001). Of these,
only the first and, arguably, the second were treated in the ‘Joint-Decision
Trap’ in an analysis which still appears to me as an empirically valid applica-
tion of Coasian negotiation theory under institutional conditions constituting
an extreme variant of a multiple-veto player system. I will begin with a brief
restatement of what I consider the still valid arguments and then proceed to a
discussion of what is missing.
I. The Intergovernmental Mode: An Exercise in Applied Negotiation Theory
In Germany as in the European Community/Union, important policy choices
at the centre, and also all institutional changes, depend on the support of con-
stituent governments (of the Länder or Member States) either by unanimous
agreement or by qualified majority votes. In contrast to the ideological or
class-based factions of national parliaments, the Bundesrat and the Council of
Ministers are supposed to represent territorially-based interests. But unlike the
US Senate and the second chambers of all other parliamentary federal states,
their members will not only represent the interests of citizens and firms in
their respective territories, but are also able to defend directly the institutional
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self-interests of their governments. This makes it useful to distinguish between
substantive policy choices and changes in the institutional architecture of these
multi-level polities.
For substantive policy, the Coase theorem postulates that, in the absence of
transaction costs, and with side-payments and package deals universally avail-
able, all potential welfare gains which a benevolent and omniscient dictator
might provide could also be realized by negotiations between self-interested
and fully informed individual actors (Coase, 1960). But of course, transaction
costs are far from zero; side-payments and package deals are often not feasi-
ble; and even if they were, complete information about the true preferences,
constraints and alternative options of all other participants would be very hard
to come by. If agreement depends on ‘all-channel negotiations’, moreover,
these difficulties would exponentially increase with the number of independent
participants. Hence it was safe to conclude that, as an empirical matter, self-
interested bargaining between the German Länder, or between the Member
States of the European Community, was likely to generate sub-optimal policy
outcomes – resulting either in blockages or in inefficient lowest-denominator
From the normative perspective of liberal political theorists, that may not
seem so bad. Their strong preference for unanimous decisions (Buchanan and
Tullock, 1962) presupposes that agreements that are in fact reached are welfare-
improving, since all participants must prefer the outcome to the status quo,
whereas the liberty of individual action will continue to prevail if negotiations
should fail. But that assumption holds only for ‘voluntary negotiation systems’
and when negotiators are still writing on a clean slate. But Germany as well as
the European Community are ‘compulsory negotiation systems’ where certain
purposes can be realized only through agreement (Scharpf, 1997). In any case,
moreover, once a binding rule is agreed upon, individual action is no longer
permitted, and the veto of one or a few governments will prevent all others
from correcting or abolishing the rule in response to changed circumstances
or preferences. Hence, as negotiating systems with multiple veto players come
to accumulate a growing acquis communautaire, they will progressively lose
the capacity for policy innovation (Tsebelis, 1995, 2002).
The obvious remedy would be a change from unanimous decisions to simple
majority voting – the one decision rule that does not discriminate between the
defenders of the status quo and the promoters of policy reform. In Germany,
the constitution would in fact allow this in many cases.2 But in the absence of
strong party-political pressures, the Länder have always tried to achieve near
2 For most legislation, absolute majorities in the Bundesrat are required. Abstentions count as no votes, and
since coalition governments often abstain, blocking minorities may actually be quite small.
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unanimity in order to present a united front vis-à-vis the federal government
(Scharpf et al., 1976). In Europe, simple majority voting on politically salient
issues would in my view lack legitimacy (Scharpf, 1999, 2003). In any case, the
best that could so far be achieved has been qualified majority voting on many,
but by no means all issues – and even after the reforms adopted at Nice, these
would still require a very high quorum of two-thirds of the votes in the Council
(Tsebelis and Yataganas, 2002). Moreover, as in Germany, EU governments
have generally been searching for consensus and avoiding decisions that would
violate the vital interests of a Member State (Hayes-Renshaw et al., 2006).
In the original article, I used the metaphor of the ‘joint-decision trap’ to
summarize the arguments explaining these practices. They start from the fact
that, on issues of institutional reform, member governments represent not only
the interests of their constituents but also their own institutional self-interest
which, in the present context, can be interpreted as a concern for autonomy
and influence. If problems within their territories can no longer be resolved
through autonomous policy choices, these governments may reluctantly del-
egate competencies to higher-level institutions. But they will nevertheless try
to maintain as much influence as possible over the exercise of these competen-
cies. In order to prevent decisions violating their own preferences, they will
insist on unanimity or qualified majority voting even though the outcomes are
likely to be inefficient from a problem-solving perspective.
Assuming that a move to simple majority voting will not be feasible, the
article then explores the possibility that the ‘style’ of self-interested bargaining
might be replaced by solidaristic ‘problem-solving’. The underlying intuition,
which anticipated the theoretical concept of the ‘negotiator’s dilemma’ (Lax
and Sebenius, 1986), is that many or most of the interest constellations involved
in intergovernmental negotiations at the European level are in the nature of
‘mixed-motive games’. Such constellations may be analytically disaggregated
into a common interest in producing the welfare gains that can only be achieved
through co-operation, and conflicting interests in the distribution of benefits
and costs. If, under these conditions, both types of interest must be pursued
simultaneously, bona fide co-operators are likely to be exploited by free riders
maximizing distributive gains. In theory, this dilemma could be overcome either
by a procedural separation of co-operative problem-solving from distributive
bargaining or by a solidaristic transformation of preferences (Scharpf, 1997)
– a possibility which has subsequently come to fascinate the ‘constructivist’
school of European studies (Christiansen et al., 1999; Checkel, 1999).3
3 Transaction costs may also be reduced by increasing empathy among negotiators. National officials located
permanently in Coreper, the Council Secretariat and the Brussels staffs of national ministries may come to
appreciate each others’ positions, and to seek solutions that will not violate highly salient national concerns
(Hayes-Renshaw and Wallace, 1997; Lewis 2003).
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II. Transaction Costs Reduced in the Joint-Decision Mode
With hindsight, however, I am embarrassed to have ignored the Commission’s
potential role in reducing the transaction costs of consensual policy solutions
through its monopoly of legislative initiative. This mechanism is central to what
I now call the ‘joint-decision mode’ and what the Commission likes to call the
‘Community method’. In order to appreciate its consensus-facilitating power
in comparison to pure intergovernmental bargaining, one needs to consider
the exponential rise of complexity (and hence transaction costs) in all-channel
negotiations that are trying to reach agreement on welfare-maximizing (or
‘problem-solving’) policy solutions:
In all-channel negotiations between (N) veto players, each of whom is try-
ing to protect (a) salient concerns, one would need [N · (N–1) · a2 ] bilateral
examinations of policy impacts in order to identify potentially consensual policy
choices (Friend and Jessop, 1969; Scharpf, 1972). However, if solutions could
be proposed by a single, central agent, that agent would need to explore only
(N · a) policy impacts to develop a win-win solution which (if the solution
space is not empty!) should be acceptable to all veto players.
In the real world, this possibility of ‘intelligent design’ may allow the
Commission to present creative proposals that go beyond the trivial exploitation
of fixed policy preferences suggested by the role of the agenda-setter in spatial-
voting theories.4 Relying on extensive consultations with interest groups,
national and sub-national officials and independent experts, the Commission
may be able to assess the hardness or pliability of the interests and constraints
defended by all member governments, and to develop innovative win-win
solutions which – though departing from the initial policy preferences of some
or all veto players – may still be preferred to the status quo by all (or at least
a qualified majority of) member governments and a majority in the European
That is, of course, not the end of the story, given the unpredictable vagaries
of national politics and intergovernmental and inter-institutional group dynam-
ics. Nevertheless, as long as the Commission is accepted as an ‘honest broker’
4 It is important to note the difference between the Coasian approach adopted here, and the role of the
agenda-setter in spatial voting theory. Coasian theory is welfare theoretic, asking if self-interested bar-
gaining between rational agents could lead to welfare-maximizing policy solutions. The positive answer
assumes fixed preferences over outcomes (i.e. ‘interests’), but totally flexible preferences over strategies
(i.e. ‘policies’). In other words, welfare gains in Coasian theory presuppose successful ‘policy learning’
and the reduction of transaction costs helps to reduce obstacles to policy learning.
Spatial voting theory, in contrast, ignores the possibility of policy learning and takes fixed preferences
over strategies (‘policies’) plus the default outcome in case of non-agreement (usually the status quo) as its
point of departure. If the solution space among policy preferences is empty, that is the end of the matter. If
not, the ‘agenda-setter’ gains the power to select its own preferred policy from the feasible set. Obviously,
this power is the greater the more the decision rule departs from unanimity (Romer and Rosenthal, 1978;
Enelow and Hinich, 1990; Tsebelis, 1994). But it is not welfare increasing.
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by the Member States, and as a politically neutral guardian of the European
public interest, its agenda-setting role should ensure more successful negotia-
tions than one should expect from strictly intergovernmental bargaining. At
the theoretical level, I would thus have to soften the pessimistic implications
of the joint-decision trap.
But not by much. Transaction costs still rise with the number of Member
States and the diversity of their preferences and, in any case, the good services
of the Commission will not help if the solution space is empty i.e. if problem-
solving solutions would require uncompensated sacrifices by at least some
participants. In theory, it is true, compensation might be achieved through side
payments or through package deals combining asymmetric solutions in different
policy areas. But side-payments, which often facilitated European compromises
in the past, are increasingly constrained by the EU budget, whereas package
deals have always been difficult to achieve in the narrowly specialized councils
of ministers. In any case, not all sacrifices can be compensated, and the difficulty
of reaching negotiated agreement increases with the heterogeneity of Member
State conditions, interests and preferences. Thus while the ‘original six’ might
perhaps have agreed on the European harmonization of their ‘Bismarckian’
welfare states, the present hope for a common commitment to the ‘European
social model’ was already destroyed with the first enlargement that had
brought Britain, Ireland and Denmark into the Community (Scharpf, 2002).
On politically salient issues, therefore, transaction cost-reducing mechanisms
have been overwhelmed by the increase in numbers of Member States and in
their heterogeneity, and the logic of the joint-decision trap must be stronger in
the EU-25 today than it was when I wrote about the EC-12 in 1984.
III. The Supranational-Hierarchical Mode
If this were all, I could content myself with clarifying the original argument and
relating it to theoretical advances in the more recent literature. But if the article
is read as an overview of EU governance modes, there is a much more serious
gap that has occupied much of my later work on European integration. The joint-
decision trap applies to the intergovernmental and joint-decision modes which
I discussed. But it does not apply to the supranational-hierarchical mode in
which the Commission, the European Court of Justice or the European Central
Bank are able to exercise policy-making functions without any involvement of
politically accountable actors in the Council or the European Parliament.
This mode of governing was completely ignored in the original article
– even though, having previously worked on the policy-making functions of
the judiciary myself (Scharpf, 1966), I should have been alerted to it by Joe
Weiler’s path-breaking analysis of the ‘Dual Character of Supranationalism’
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(1982). Its origins go back to the 1960s, when the Court had succeeded, over
the feeble opposition of some member governments, in establishing the twin
doctrines of the ‘supremacy’ and the ‘direct effect’ of European law (Alter,
2001). As a consequence, not only the ‘primary law’ of the treaties, but also
the ‘secondary law’ of European regulations and directives came to take legal
precedence over all national law, including parliamentary legislation, plebi-
scites, and the national constitution and since they also had direct effect,
European rules could be invoked as the supreme law of the land by any party
in legal proceedings before national courts. To become effective, these doc-
trines depended on the willingness of national courts to accept the decisions
and preliminary rulings of the European Court as the authoritative interpreta-
tion of European law. Once this condition was secured, however, the power to
interpret became a power to legislate that was sanctioned by the respect for the
rule of law engrained in the political cultures of Member States (Alter, 1996;
de Búrca, 2003; Stone Sweet, 2003).
By itself, of course, the Court’s power can be exercised only in cases that
happen to come before it, and on issues raised by the parties to these cases. Its
strategic value as an instrument of European legislation can thus be appreciated
only when it is seen in conjunction with the Commission’s mandate to ‘ensure
that the provisions of this Treaty and the measures taken by the institutions
pursuant thereto are applied’ (Art. 211, ex. 155 TEC) and its power to bring
violations of Treaty obligations by a Member State before the Court (Art. 226,
ex. 169 TEC) (Börzel, 2003). Given the Court’s power of judicial legislation
and its own enforcement powers, the Commission is then able to avail itself
of two distinct legislative options.
It may choose the joint-decision mode and propose European regulations
or directives that needed to be approved by the Council (and now, the Parlia-
ment). But given some of the very sweeping commitments to European eco-
nomic integration in the original treaties, it may also attempt to legislate in
the supranational-hierarchical mode. To do so, it has to assert that a particular
rule should have direct effect and that certain laws or practices in Member
States are in violation of it. If these arguments are then upheld by the Court,
the interpretation will be the law of the land in all Member States without any
further action by governments or parliaments at European or national levels.
Compared to the situation in national democracies, moreover, judicial leg-
islation at the European level is also extremely well protected against political
correction. If decisions are based on an interpretation of treaty provisions, they
could be corrected only through amendments that must be ratified by national
parliaments or referendums in all Member States. And it is hardly less difficult
to change judicial interpretations of directives and regulations – which would
require new legislation that the Commission itself would have to propose, and
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that must be adopted by at least a qualified majority in the Council and in most
cases also a majority in the European Parliament. In short, all the obstacles
to European political action in the intergovernmental or joint-decision modes
will also immunize judicial legislation against political correction.
From my present perspective, therefore, the joint-decision trap appears as
a basically valid – though simplified – account of the institutional conditions
of political policy choices in the European Union and their consequences. It
needs to be complemented, however, by a similar account of the conditions and
consequences of non-political European policy-making in the supranational-
hierarchical mode. That I did not see that at the time may be excused by the fact
that the policy-making potential of this mode had not yet become a fully-fledged
reality. The European Central Bank was not even on the horizon of realistic
proposals, and while the institutional preconditions of judicial legislation
were all in place by 1983–84, the Commission and the Court were only just
beginning to discover their strategic usefulness as an instrument of European
policy-making that was not caught in the joint-decision trap.
As it happened, this discovery coincided with a neo-liberal window of op-
portunity in the intergovernmental politics of the EU. In the early 1980s, the
recession caused by monetarist responses to the second oil-price crisis was
widely interpreted as a symptom of ‘eurosclerosis’ which the Commission
proposed to combat by a widening and deepening of market integration. In
order to facilitate the removal of non-tariff barriers and further liberalization,
not only traditionally pro-European governments but also Margaret Thatcher’s
Britain agreed to the Single European Act of 1986 which introduced qualified
majority voting in the Council for directives implementing the internal market
programme (Moravcsik, 1998). Of course, even qualified majority was still
a very high hurdle when existing regulations, public service monopolies and
legally protected cartels in the Member States had to be challenged. But by
then the Commission’s second legislative option had also come into its own.
Starting with the Cassis de Dijon decision of 1979 (ECJ Case 120/78),
the Court had signalled its willingness to intervene against national non-tariff
barriers even in the absence of harmonizing European legislation. Since the
default outcome – the mutual recognition of incompatible national regulations
would often appear undesirable or even impracticable (Schmidt, 2002),
the mere threat of Court action would greatly increase the willingness of all
governments to accept the minimum harmonization directives proposed by the
Commission. In the field of competition policy, moreover, the Commission
made strategic use of treaty violation proceedings against the public service
monopolies of some Member States – whose governments would then support
directives that would open the service and infrastructure functions of all
other Member States to market competition (Schmidt, 1998, 2000). And of
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course, each new directive extends the acquis communautaire, i.e. the body
of secondary European law which the Commission is bound to enforce and
whose interpretations by the Court cannot be reversed politically.
IV. Policy Consequences
In other words, the combination of judicial legislation and the Commission’s
monopoly of legislative initiatives was able to increase the effectiveness of
European policy-making far beyond the constraints discussed in the joint-
decision trap. But it did not and could not do so in all policy areas. Thus when
I came to appreciate the power of the supranational-hierarchical mode in the
early 1990s, my attention also turned to the substantive policy consequences
of the plural governing modes prevailing in the European Union.
My first cut was the distinction between ‘negative’ and ‘positive integration’
(Scharpf, 1996). The supranational-hierarchical mode had its strongest base in
the economic freedoms and competition rules postulated by the Treaty which
were perfectly suited to support the removal of national regulations considered
as non-tariff barriers to trade or as distortions of competition. Quite apart,
therefore, from the neo-liberal beliefs of members of the Commission and the
Court (Gerber, 1994a, b, 2001), institutional conditions were most favourable
to the widening and deepening of market-making, market-extending and
market-enhancing European law. In contrast to negative integration, market-
correcting positive integration depended on political legislation, either in the
intergovernmental or the joint-decision mode where very high consensus
requirements and the heterogeneity of Member State interests and preferences
would make agreement difficult or impossible.
Recognizing, however, that there were some policy areas where the adoption
of market-correcting rules was relatively more successful than in others, I at-
tempted to capture the difference by referring to the further distinction between
‘product’ and ‘process regulations’. Under the Treaty, Member States could not
be prevented from applying national product standards that served legitimate
safety or environmental purposes. Thus at least a minimal harmonization of
product standards was essential if the benefits of the internal market were to
be realized. By contrast, regulations of production processes, which might
affect the cost of the product, but not its quality itself, could not be used to
ban imports produced under another national regime. Hence Member States
that enjoyed the competitive advantages of lower working and employment
standards, or lower taxes on factors or production and business profits, would
have no reason to agree to the ‘levelling of the playing field’ which Member
States with more demanding regulations and higher taxes might demand.
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By and large, and with some fuzzy edges, this distinction seemed to work
reasonably well. But not all policies can be classified as being either ‘product’
or ‘process’ related. From my present perspective, therefore, I would not place
so much weight on trying to identify a substantively defined dividing line.
Instead, I would once more refer to the underlying logic of general negotia-
tion theory: given an institutional setting with high consensus requirements,
positive integration is likely to succeed in policy areas where national interests
converge and it will fail in policy areas where divergent national interests and
preferences are politically salient. In my 1999 book Governing in Europe
(Scharpf, 1999), I tried to classify policy areas according to this criterion, and
I think the ordering along the dimension of greater or lesser European capacity
to act has held up fairly well.
V. The European Problem-Solving Gap
The question which has occupied me more in recent years was what would
happen in policy areas where positive European integration seemed unlikely
or impossible. The automatic answer is, of course, given by the ‘subsidiarity’
rule: where Europe cannot act, the Member States remain in charge. But that
answer ignores the constraints on national action that are created by the success
of European economic and monetary integration. Some of these constraints
are of a legal character: many of the policy instruments which Member States
had routinely employed to manage their economies in earlier decades – from
import controls, export subsidies and the devaluation of national currencies to
regional and sectoral subsidies and the strategic use of public procurement and
the employment buffers of public-service industries are no longer available to
members of economic and monetary union. At the same time, the free movement
of goods, services, capital and labour and the liberalization of public-service
industries have created economic constraints on national tax policies and on
regulations that might increase the costs of domestic production, reduce the
post-tax rates of return of domestic investments, or create incentives for welfare
migration (Sinn and Ochel, 2003). Member States that were unable to adjust
to these constraints of economic integration would then suffer from declin-
ing investment, low economic growth, rising unemployment, higher welfare
burdens and public deficits.
But, again, not all national policy areas would be equally affected by the
constraints of legal and economic integration an intuition which I tried to
capture in a four-fold table defined by the dimensions of high and low European
capacity crossed with high and low national capacity and in which none of the
cells was empty (Scharpf, 1999, p. 117). Of particular interest was the quadrant
where European solutions were ruled out by the heterogeneity and political
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salience of national interests and preferences, while national solutions were
impeded by the legal and economic constraints of European integration. In my
view, this field would include the taxation of mobile capital and businesses,
macroeconomic employment policy, industrial relations and social policy. In
view of the political salience of these policy areas in national democracies, the
possibility that European integration might produce a systematic ‘problem-
solving gap’ became a major concern of my later work.
Given the joint-decision trap, I never placed much hope on European
solutions for these problem areas. Instead, I joined with Vivien Schmidt in a
large-scale comparative project to examine national responses to international
economic challenges (Scharpf and Schmidt, 2000). We were able to show that
countries differed greatly in both their vulnerability to the impacts of economic
integration and their institutional capacity to cope with these impacts without
abandoning their previous employment and social-policy aspirations. In both
regards, Anglo-Saxon and Scandinavian welfare states, though very different
from each other, appear to be much better situated than the Continental wel-
fare states. Since the reasons are largely unrelated to my present theme, I will
not elaborate them here – except to say that the very generous and expensive
Scandinavian model, while immunized against international tax competition
by the dual income tax, appears still to be extremely vulnerable to potential
extensions of European competition law into the domain of publicly financed
social services (Scharpf, 2002; Geyer, 2003).
In other words, the European problem-solving gap exists not only in
Continental countries like Italy, France, Belgium and Italy which, unlike the
Netherlands, have not yet learned to cope with the challenges of economic
integration and liberalization, but it may still spread to Scandinavian welfare
states which so far have been able to combine highly competitive open econo-
mies with very high levels of employment, very low levels of social inequality
and very generous social benefits.
Conclusion: Legitimacy – The Need to Accommodate Diversity
This brings me to my final point: under the constraints of the joint-decision
trap, the European Union will not be able to do much, if anything, about filling
the problem-solving gap through European measures of positive integration.
Contrary to much of the current rhetoric, the hopes for a common ‘European
social model’ had already become unrealistic after the accession of the United
Kingdom in the early 1970s (Ferrera, 2005), and after eastern enlargement one
should not even think of reviving them (Sapir, 2006). The same seems to be
true of harmonized taxes on capital incomes, of harmonized rules on industrial
relations, or of a Keynesian concertation between European monetary policy
© 2006 The Author(s)
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Blackwell Publishing Ltd
and national fiscal and wage policies (Enderlein, 2004, 2006). European
problem-solving capacity could be increased by a switch from unanimous
or qualified majority voting to simple majority in the Council. But, as I have
argued elsewhere (Scharpf, 1999, 2003), majority decisions that violate politi-
cally salient preferences in the Member States would destroy the legitimacy
of EU institutions.5
The responses of the Parliament and the Council to recent protests against
the services directive, or the strike of dock workers, seem to show that politi-
cally accountable actors at the European level are aware of these limits of their
legitimacy. But legitimacy is also in question when supranational-hierarchical
decisions exceed the limits of the permissive consensus which, in the past, has
allowed negative integration and EU-imposed liberalization to proceed unop-
posed. There is as yet nothing in the institutional setting of the EU that would
prevent the Commission and the Court from using the instruments of judicial
legislation in ways that exceed these limits and that might, at the same time,
undermine the legitimacy bases of national welfare states. Moreover, as I said
before, even for political decisions in the intergovernmental and joint-decision
modes, high consensus requirements can only ensure the legitimacy of initial
policy choices. Once European regulations and directives are on the books, they
(and their judicial interpretations) are nearly as immune to political reversal
as is true of treaty-based ECJ judgments.
In both cases, therefore, EU law may indeed violate politically salient
preferences in Member States and may constrain national policy choices in
ways that undermine the legitimacy of the political system. Since – after east-
ern enlargement and the French and Dutch referendums – a general move to
simple majority voting is clearly out of the question, it is unlikely that present
problems could be resolved through more positive integration. Hence it seems
useful to think of other ways in which the stranglehold of existing European
law could be sufficiently relaxed to allow more room for manœuvre for na-
tional policy choices.6 In principle, this could be achieved in one of two ways
– either through controlled individual opt-outs or through a modified version
of enhanced co-operation.
Both options would take account of the fact that successive rounds of
enlargement have progressively increased the diversity of Member State
5 This is not the place for a full discussion of controversies over the democratic (i.e. ‘input-oriented’ – Scharpf,
1999) legitimacy of the European polity and its policies (e.g. Lord and Magnette, 2004; Schmidt, 2004).
In my view, the crucial issue concerns the justification of public policies that violate the highly salient
preferences of significant minorities (Scharpf, 2005a). The multiple-veto character of EU policy-making
in the intergovernmental and joint-decision modes more or less ensures that policies on which Commis-
sion, Council and European Parliament are in fact able to agree, are unlikely to lack legitimacy under this
criterion (Moravcsik, 2002). But that would not be so if simple majority voting were introduced and that is
by no means ensured when EU policies are adopted in the supranational hierarchical mode.
6 For a thoughtful and thought-provoking critique of this argument, see Moravcsik (2003).
© 2006 The Author(s)
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institutions, economic and social conditions, and political preferences. As a
consequence, the ‘goodness of fit’ of uniform European rules has been gener-
ally reduced while a growing body of ‘Europeanization’ research has docu-
mented the high economic, administrative and political costs of compliance
with European rules that do not fit (Cowles et al., 2001; Falkner et al., 2004).
With the recent accession of central and eastern European Member States plus
Cyprus and Malta, and with the imminent inclusion of Bulgaria and Romania,
let alone Turkey, the diversity of conditions is increasing to a point where it
must defy all aspirations to effectively uniform positive integration (Zielonka,
2006). Given the low level of morale in the present EU, the most likely scenario
would combine ever greater difficulties in adopting new legislation with an ero-
sion of the existing acquis through creeping non-compliance and ‘institutional
hypocrisy’ (Iankova and Katzenstein, 2003). In comparison, it might indeed
be more attractive to accommodate diversity by allowing explicit departures
from uniform European legislation law (Scharpf, 1994).
Opt-outs are of course not unknown in the ‘variable geometry’ of European
integration: not all EU Member States have accepted the Schengen regime,
joined monetary union or co-operate in the European security and defence
policy. The ‘social charter’ was adopted in 1989 but did not apply in the UK
until 1997 and in each of the successive rounds of enlargement, some of the
accession states were granted temporary relief from some provisions of the
acquis communautaire. But these are considered exceptions that were either
conceded under duress to avoid the veto of an unwilling member government,
or that had to be accepted as a temporary expedient in accession negotiations.
They were never considered a generally available instrument responding to the
tension between a growing body of uniform European law and the increasing
diversity of Member State economic and institutional conditions and political
If opt-outs might allow a fine-tuning of EU legislation to fit the conditions
of individual Member States, enhanced co-operation could be adapted to allow
the creation of European law that fits the conditions and political preferences
of several, but not all, Member States. Such possibilities were first introduced
with the Amsterdam Treaty, but even after the modifications adopted in Nice,
the rules governing enhanced co-operation have remained so restrictive that the
option has never as yet been used. The reason may have been a consequence
of unfortunate ‘framing’: ever since the early 1970s, proponents of a variable
geometry have been talking about a hegemonic ‘core’ group or an avant garde
proceeding with ‘different speed’ towards the ultimate goal of European political
and military integration – with the clear implication that all others would find
themselves relegated to the rearguard or the periphery. The current terminology
avoids these connotations and could be understood to mean that different groups
© 2006 The Author(s)
Journal compilation: © 2006
Blackwell Publishing Ltd
of Member States are facing different problems and would benefit from sets of
European rules that are designed to fit their specific conditions and preferences
(Scharpf, 2002). But distrust is hard to overcome.
Moreover, even when understood without hegemonic implications, distrust
may often be justified. The universal enforcement of common rules may be
essential for protecting common interests in prisoners’ dilemma constellations;
individual opt-outs by one Member State may impose negative external ef-
fects on its neighbours; and enhanced co-operation may imply protectionism
or a denial of solidaristic burden-sharing. It is clear, therefore, that opt-outs
and enhanced co-operation could not be granted as a unilateral exit option. It
should be equally clear, however, that the present regime rules out solutions
to important national problems even where deviations from the acquis would
have little or no negative effect on the interests of other Member States or of the
Union as a whole. What would be needed, therefore, are rules and procedures
for controlled deviation which focus on the merits of the specific case.
Exactly the same problem was faced in recent efforts at federalism reform
in Germany – which had finally attempted to open the joint-decision trap by
strengthening the autonomy of the Länder in response to growing interregional
diversity after German unification (Scharpf, 2005b). As initial demands for a
wholesale decentralization of legislative competencies met with strong resist-
ance, it was proposed that the Länder should instead have the right to pass
laws displacing or modifying existing federal rules (‘Abweichungsrecht’). This
proposal was in fact adopted for a few policy areas – with the proviso that a
later national statute would again prevail over the deviating Land legislation.7
If the solution works in practice,8 it may be extended to a wider range of
policy areas, allowing the Länder to deal with specific regional problems or
to experiment with novel solutions even in areas where the need for national
legislation cannot generally be denied.
Given the structural similarities between German federalism and the
institutional architecture of the European Union (which had inspired my original
article), the institutional innovation introduced in Germany might add to the
plausibility of similar proposals at the European level. Since variations in
size, economic development, institutional conditions, cultural orientations and
political preferences among EU Member States are so much greater than they
are among the German Länder, the need to accommodate diversity is also much
greater. At the same time, however, increasing international interdependence
7 Arts 72 para. 3 and 84 para. 1 of the Basic Law (Deutscher Bundestag, Drucksache 16/813). The solution
does not go very far, but it is at least a step in the direction of more flexible allocation of legislative com-
petencies between national and regional governments. In principle, it would have been possible to extend
deviation rights to most areas of federal legislation (Scharpf, 2006).
8 The most-discussed problem is a danger of ‘ping-pong legislation’ where a Land law may depart from a fed-
eral rule which is then overridden by a later federal statute, from which the Land may deviate again, etc.
© 2006 The Author(s)
Journal compilation © 2006
Blackwell Publishing Ltd
and mobility have increased the need for European-level regulations and
seem to defy all attempts to generally limit, let alone, reduce the range of EU
legislative competencies. Under these conditions, opt-outs and enhanced co-
operation appear as useful devices which could respond to national diversity
while allowing European legislation to proceed – but only if such deviations
must be reviewed and may be controlled at the European level.
In theory, such controls might be left to the Commission and the Court in a
modified version of Treaty-violation proceedings. But given their long-standing
commitment to maximal Europeanization and the extensive interpretation of
Treaty obligations, these institutions would not trusted as neutral arbiters be-
tween legitimate European and national concerns. By comparison, peer review
in the Council of Ministers seems more likely to achieve a fair balance between
the normative commitment to integration and the need to accommodate the
legitimate diversity among Member States.9 Having voted for the European
rule in question, and being suspicious of national beggar-my-neighbour poli-
cies, ministers will not lightly accept dubious arguments supporting a need for
opt-outs or for enhanced co-operation. But at the same time, ministers may
well expect to have to ask for similar concessions on other occasions, and thus
will have reason to evaluate national claims with some empathy.
Apart from their obvious potential for accommodating diversity among EU
Member States (Scharpf, 2003), these solutions would have two additional
benefits. First, the expectation that potential misfits between a European rule
and national conditions and preferences might be subsequently modified
through individual opt-outs or enhanced co-operation, might greatly reduce
opposition to proposed European rules in the first place. As a consequence,
majority decisions would be easier to accept, and increasing diversity among
Member States may not have quite the damaging impact on positive integration
which I would otherwise expect. In other words, we might at least hope for a
weakening of the joint-decision trap.
If it were understood, moreover, that deviations from the acquis could
also pertain to its interpretation by the European Court of Justice, we might
even hope for a cautious politicization of the supranational-hierarchical
mode of European governance. It would lose a bit of its dictatorial power as
democratically accountable agents at the national and European level would
gain the capacity to correct the application of judicial doctrines to specific
policy problems that were not determined by the original judgment.10 Speaking
9 A possible procedure would require the Member State to notify legislative deviations from the acquis to
the Commission before they come into force. The Commission would review the case and submit it to the
Council which, within six months after notification, could disallow the national deviation by majority vote.
National legislation not so notified would be subject to normal treaty-violations proceedings.
10 Respect for the judiciary should prevent judgments from being politically reversed in the individual case.
What can be subjected to political correction is the generalized rule derived from that judgment.
© 2006 The Author(s)
Journal compilation: © 2006
Blackwell Publishing Ltd
normatively, that would be a good thing: the powers of judicial legislation
in the European polity seem too important, and potentially too damaging, to
be left entirely to politically unaccountable bureaucrats and judges. In other
words, the weakening of the joint-decision trap would also help to reduce the
democratic deficit.
Fritz W. Scharpf
Max-Planck-Institut für Gesellschaftsforschung
Paulstr. 3
50676 Köln, Germany
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... Local structural, economic, and political environments and national expectations of solidarity will therefore be formative for the agent's (the CME's) perceptions and decisions. According to Scharpf (1988), there is great pressure in such a decentralized "joint-decision system" to reach agreement, and conflict is avoided through bargaining and economic compensation. ...
... Economic incentives and soft instruments such as networking, appeals and information are generally the corollary of decentralized decision structures (Scharpf, 1988). However, networking (in our case meetings, contacts, appeals and information) presupposes a common utility function. ...
... The negative effect of the goal conflict between national ambitions and local responses, as revealed in CME views of the appropriateness of state requests, must be accommodated by the state. As Scharpf (1988) has observed from federal and supranational multilevel systems, conflicting interests spur policy instruments such as market oriented economic incentives, the effectiveness of which is not rooted in goal consensus between principal and agents. Compliance and outcomes depend crucially on adequate economic compensation under conditions of dis-consensus and a national ideology of equity among municipalities, as in the Norwegian welfare state. ...
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The commitment to make provision for huge numbers of asylum seekers challenges Norway’s welfare state. Each year central government requests most local governments to receive a certain number of refugees. Local governments are free to accept or decline, and many are hesitant. The ensuing implementation gap stems from this central-local goal conflict and a decentralized decision-making system, embedded in an ideology of local autonomy and in local authorities seeking to accommodate state goals through feasible solutions. The focus is on the Chief Municipal Executive (CME, ‘rådmann’), the head of the municipal administration who exercises agency over government affairs. How do central state instruments influence this local agent and what are the consequences for settlement decisions? Economic incentives are the most important state tools in settlement decisions. Central information strategies, government appeals and persuasion seem, how- ever, to be less effective. In line with agency theory, CMEs’ sovereign assessments of the impact of state requests on local burdens and benefits are shown to be the main factor determining settlement decisions.
... If the representation of regions at the EU level has generated a vast body of research, the actual representation of Spanish interests towards the EU level, and more specifically the resources and processes mobilized by Spanish negotiators to influence decision outcomes, remains under-studied. The literature on national EU coordination systems and EU PermReps provides excellent insights into the role and efficiency of the mechanisms of specific Member States, including Belgium (Kassim et al., 2001;Sepos, 2005), Italy (Kassim et al., 2001;Bindi and Cisci, 2005) or Germany (Scharpf, 1988;Kassim et al., 2000;Sepos, 2005). The literature on the Permanent Representations and national EU coordination processes of Germany, France, Italy, Belgium, and the UK indeed highlights a high degree of stability over the two past decades (Scharpf, 1988;Kassim et al., 2000Kassim et al., , 2001Sepos, 2005;Bindi and Cisci, 2005;De Maillard and Smith, 2010;Dravigny et al., 2016;Kassim, 2016), emphasizing that these coordination mechanisms tend to remain stable in the medium term, as they relate to, and are determined by, a set of stable domestic factors (Jensen, 2014). ...
... The literature on national EU coordination systems and EU PermReps provides excellent insights into the role and efficiency of the mechanisms of specific Member States, including Belgium (Kassim et al., 2001;Sepos, 2005), Italy (Kassim et al., 2001;Bindi and Cisci, 2005) or Germany (Scharpf, 1988;Kassim et al., 2000;Sepos, 2005). The literature on the Permanent Representations and national EU coordination processes of Germany, France, Italy, Belgium, and the UK indeed highlights a high degree of stability over the two past decades (Scharpf, 1988;Kassim et al., 2000Kassim et al., , 2001Sepos, 2005;Bindi and Cisci, 2005;De Maillard and Smith, 2010;Dravigny et al., 2016;Kassim, 2016), emphasizing that these coordination mechanisms tend to remain stable in the medium term, as they relate to, and are determined by, a set of stable domestic factors (Jensen, 2014). ...
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To what extent is the Spanish Permanent Representation to the EU comparable to other MS in terms of capabilities? What are the indications of Spain’s strengths and weaknesses in EU legislative processes? This article investigates the resources mobilized by Spain as part of the EU policymaking processes in Brussels and its influence in shaping decision outcomes. Drawing on new qualitative and descriptive quantitative data sets, this research compares the human resources of the Spanish Permanent Representation, its internal coordination process, and its external engagement with EU stakeholders, to other member states. The article highlights possible implications of these variations for Spain’s bargaining success in the Council of the EU. The findings reveal the challenges that Spanish negotiators face in exerting influence in the EU decision-making process and show how adequate levels of administrative and human resources are sometimes not sufficient for Spain to leave the group of “spectator” member states in the governance of the EU.
... Theoretically, this contribution builds on the concept and analytical framework of the politicized decision trap in EU decision-making and its exits, which aims to understand deadlock and progress in European Union politics. The original joint decision trap concept referred to Member States who are obliged to work together, yet who cannot make comprehensive steps forward because of high decision-making thresholds (Scharpf, 1988). Scholars subsequently theorized different exits from this trap, identifying a myriad of ways in which blockage is circumvented or resolved (Falkner, 2011a;Héritier, 1999;Müller & Slominski, 2013). ...
... Yet neither 'democracy' or 'corruption' is quantifiable, nor is it certain that these lawsuits or membership procedures will materialize. Strikingly, Scharpf (1988) had anticipated the problems associated with these kinds of conflicts. He identified package deals, side payments, or log rolling as the main exits in a bargaining system under unanimity requirements. ...
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In the last ten years, the introduction of 'interpretative instruments' has helped to overcome political deadlock surrounding EU international agreements that have become politicized domestically after negotiations officially ended. This paper deepens our understanding of these instruments in resolving conflicts and maintaining the effectiveness of EU decision-making using the theoretical concept of the joint decision trap and its exits. The paper compares three case studies: the CETA saga in Wallonia (2016), the German CETA ratification (2022) and the Dutch ratification of the EU-Ukraine Association Agreement (2016). The findings suggest that interpretative instruments attempt to narrow the scope for interpretation about concerns that are potential and non-quantifiable, have little legal effect but important political use in exiting deadlock, while variations in outcome can be explained by assessing the political power of the blocking actor and comparing the costs of no agreement of the conflicting actors.
... Possibly the most prominent multi-level administrative structure is the European Union (EU) (Börzel and Risse, 2000;Hooghe and Marks, 2001;Marks, Hooghe and Blank, 1996;Scharpf, 1988;Vogler, 2020). Yet one of its core institutional components-the bureaucracy that is subordinated to the EU's central political bodies-has been largely ignored in the scholarly literature. ...
... Within the steadily growing literature on multi-level administrative systems (Agranoff, 2018;Hong, 2017;Hooghe and Marks, 2003), the European Union certainly is one of the most complex and internally heterogeneous cases, persistently generating intense scholarly interest (Benz, 2015;Hooghe and Marks, 2001;Marks, Hooghe and Blank, 1996;Scharpf, 1988; 37 Additionally, a more detailed empirical analysis of this issue can be found in the Online Appendix. ...
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Complex multi-level governance systems face a variety of challenges. As one of the most prominent multi-level administrative systems in the world, the EU has experienced a legitimacy crisis for several years, with many citizens displaying skeptical or even hostile views of European integration in general and the EU's central bureaucracy specifically. Despite the prevalence of such negative views of the EU public administration, citizens have almost no direct interactions with or substantive knowledge of this institution. Given these circumstances, my study seeks to answer the following question: How do citizens form their views of the EU bureaucracy? The theory presented here suggests that people use mental shortcuts—specifically a variation of the “representativeness heuristic”—to make inferences about the EU's administrative institutions. Empirically, I focus on the case of Romania and use survey data to show that perceptions of domestic bureaucracies are significant predictors of perceptions of the EU bureaucracy. These findings have wide-ranging academic and practical-political implications.
... De keerzijde van beleidsvervlechting werd duidelijk: gevestigde belangenorganisaties maakten gebruik van hun feitelijke 'vetopositie' en ontwikkelden hindermacht. De vereiste noodzaak tot consensusvorming in de vaste podia van overleg en advies ontaardde in traagheid en geblokkeerde besluitvorming (Scharpf 1988). Partijen schoven elkaar de zwartepiet toe: vakbondsvertegenwoordigers beschuldigden werkgevers van een vertrouwensbreuk, werkgevers betwistten de tegenpartij hun plaats aan de onderhandelingstafel, en beiden richtten zich tegen de politiek. ...
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Met het rapport Lerende overheid wil de raad het leervermogen van overheid en politiek versterken. Er wordt recentelijk veel gesproken over het verbeteren van het functioneren van het politieke bestel. Voorbeelden daarvan zijn een herstel van het primaat van de politiek, meer leiderschap, helder onderscheiden verantwoordelijk-heden en het vooropstellen van processen en procedures binnen de overheid. Deze 'verticale' visie op het functioneren van het politieke bestel is volgens de raad niet altijd productief. Veel problemen waarvoor de overheid komt te staan, vragen ruimte en tijd voor analyse, afweging en oordeelsvorming. Ook is vaak de inzet nodig van actoren buiten de overheid zelf: van deskundigen, burgers en maatschap-pelijke organisaties. In dit rapport-een vervolg op Bewijzen van goede dienstverlening-bepleit de raad daarom tevens gebruik te maken van de 'horizontale' traditie van politiek. Daarin staat niet het nemen van legitieme besluiten centraal, maar het wik-ken en wegen en formuleren van redelijke oplossingen. Een 'gemengde' horizontale én verticale praktijk is bij uitstek geschikt om te leren hoe problemen geformuleerd en opgelost kunnen worden. Een probleemgerichte benadering van politiek vraagt om een perspectief op de overheid waarin leervermogen centraal staat. Beslissen en doorzetten zijn belangrijk, evenals goede processen en procedures. Maar zonder het versterken en vergroten van de kennis en het oordeelsvermogen van ambtenaren en politici worden belangrijke publieke problemen ontdaan van hun inhoudelijke en normatieve lading en raakt de staat uitgehold.
... Examples are the improvement of regional economic structures, funding of universities and research infrastructures and the development of shared standards in information technology. While commitments agreed upon in intergovernmental councils are voluntary, decisions taken in the institutions of joint tasks are compulsory (Scharpf 1988). ...
The outcome of the British membership referendum came as a shock to observers in the UK and the European Union. Such moments of profound uncertainty provide policymakers with “windows of opportunity” to collectively frame and nudge policy responses onto distinct pathways. This chapter argues that the economic interests of the member states is insufficient to explain the EU’s united response to Brexit. Crucially the united and effective EU response depended on how the Union framed Brexit as a challenge. Collective framing enabled the EU to agree internally on the nature of the problem and how to respond to the challenge of the UK’s exit.
What happens once the government has outlined its spending priorities in the budget bill? Can it protect them against the intervention of the two chambers of the Italian parliament? To what extent is the European Commission able to induce changes to the nationally agreed allocation of expenditure? This chapter assesses the balance of power between the three fundamental actors intervening during the budgetary decision-making process by measuring the degree of expenditure reallocation across budget categories between the budget bill and the budget law of the same year. Findings show a blatant pattern of power concentration in the government’s hands to the detriment of the parliamentary prerogatives. The result is that the Italian budget is now nearly unmanageable even for a strong majority. Theoretically, the government would have all the tools to steer a long-term budget policy. Practically, the cognitive frictions of governing policy-makers crush any potential achievements.
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The process of European integration is characterized by a fundamental asymmetry, described accurately by Joseph Weiler (1981) as a dualism between supranational European law and intergovernmental European policy making. As Weiler (1994) points out, political scientists have for too long focused only on aspects of intergovernmental negotiations while largely ignoring the establishment, by judge-made law, of a European legal order with precedence over national law. This omission has kept us from recognizing the politically significant parallel between Weiler’s dualism and the more familiar contrast between ‘negative’ and ‘positive integration’ (Tinbergen, 1965; Rehbinder and Stewart, 1984), that is, between measures increasing market integration (by eliminating restraints on trade and distortions of competition) and common European policies to shape the conditions under which markets operate.