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West European Politics
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EU Decision-Making on Inter-
Institutional Agreements:
Defining (Common) Rules of
Conduct for European Lobbyists
and Public Servants
Michelle Cini
Published online: 08 Oct 2013.
To cite this article: Michelle Cini (2013) EU Decision-Making on Inter-Institutional
Agreements: Defining (Common) Rules of Conduct for European Lobbyists and Public
Servants, West European Politics, 36:6, 1143-1158, DOI: 10.1080/01402382.2013.826022
To link to this article: http://dx.doi.org/10.1080/01402382.2013.826022
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EU Decision-Making on
Inter-Institutional Agreements: Defining
(Common) Rules of Conduct for
European Lobbyists and Public
Servants
MICHELLE CINI
The introduction of a provision in the Lisbon Treaty allowing European Union
institutions to forge binding inter-institutional agreements (IIAs) draws attention to the
limited research that exists on these instruments of EU governance. This article contrib-
utes to the development of this literature by presenting empirical evidence on two cases
of decision-making on IIAs: on lobby regulation; and on the regulation of the conduct
of EU public servants. In the first case the proposed IIA was successfully concluded; in
the second, it was not. In contrasting these cases this article explains these differing
outcomes with reference to the relevance of shared inter-institutional values and the
mutual benefits of agreement. The findings suggest that both shared values and mutual
interests are likely to be important in shaping successful IIA decision-making.
The ratification of the Lisbon Treaty in 2009 saw the introduction of a
decision-making provision, Article 295, which for the first time allowed EU
institutions to make binding inter-institutional agreements (IIAs). The introduc-
tion of this new provision makes it all the more important for researchers to
understand how such decisions are taken. Yet IIAs are under-researched. There
is no consensus on why there are now so many of these agreements –more
than 100 according to Hummer (2007) –or what functions they perform
(Brandsma 2012). IIAs have been said to be useful in filling in gaps as a
response to the Treaty’s incomplete contract, in a process labelled as ‘informal
constitutionalisation’(Christiansen and Reh 2009: 9). They have been
described as a stepping stone towards more formal decisions (Chryssochoou
2001: 153). They are claimed in some cases to improve the quality of law,
Correspondence Address: michelle.cini@bristol.ac.uk
West European Politics, 2013
Vol. 36, No. 6, 1143–1158, http://dx.doi.org/10.1080/01402382.2013.826022
Ó2013 Taylor & Francis
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transparency and democracy in the EU and to stimulate debate (Versluis et al.
2011: 63; Puntscher Riekmann 2007); they are also said to assist cooperation
(Hummer 2007; Puntscher Riekmann 2007) while at the same time allowing
institutions to side-step formal procedures (Lelieveldt and Princen 2011: 92).
IIAs may even be used to enhance the status of individual institutions such as
the European Parliament (Judge and Earnshaw 2008: 49, 66, 240).
A notable gap in the academic literature on IIAs relates to IIA decision-
making which is the focus of this article. More specifically, the research
enquires as to the conditions under which IIAs are most likely to be agreed;
and conversely under what conditions they are most likely to fail. The research
contributes to an explanation of IIA decision-making which emphasises the
importance of shared values and mutual benefits. To do this the article focuses
on two cases: the regulation of EU lobbying; and the regulation of the conduct
of EU public servants. In the first case the decision-making process culminated
in an IIA, whereas in the second –though an IIA had been proposed –no
agreement was possible.
The cases were selected because they differ in their outcomes. At the same
time the two cases have similar characteristics in that they both deal substan-
tively with public ethics issues; they both involve decision-making between the
European Commission and the European Parliament (EP); and they both took
place in the first decade of the twenty-first century. By keeping constant the
substantive content of the agreement, the actors participating in it, and the time
period, other factors which are likely to explain the variation in outcome can
more easily be identified (Yin 2009).
The case studies are based on an in-depth qualitative review of potentially
relevant texts. These texts include policy statements (speeches) by commission-
ers, Commission officials and MEPs and official documents and reports
published primarily by the European Commission and the EP. The texts were
read both for their relevance to IIA decision-making and for more explicit
references to IIAs or inter-institutional cooperation. The texts were also
reviewed to ensure that the wider context in which they had been produced
was taken into consideration. This primary literature covers the period from
1999 to 2013, though some background material dates from an earlier period.
All of the documents used in this study are in the public domain.
The rest of the article is organised in the following way: the first section
briefly reviews the EU literature on IIAs and draws from this a framework
which might explain successful IIA decision-making. The second and third
sections examine the two cases in light of this framework. The second section
shows how and why actors in the EP and European Commission were able to
work together to construct an inter-institutional register of EU interest groups.
The third section shows how and why actors in the Commission advocating an
inter-institutional ethics regime, with an ethics committee at its core, failed to
achieve agreement on this issue. A fourth section summarises the findings;
while the Conclusion considers how these findings contribute to the literature
on IIA decision-making.
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Framing Inter-Institutional Decision-Making on IIAs
As concrete expressions of inter-institutional cooperation, IIAs can be broadly
defined as any informal of semi-formal bilateral or multilateral agreement
involving two or more EU institutions. They cover a wide subject matter
including budgetary and scrutiny policy, legislative decision-making and issues
such as transparency, subsidiarity, comitology, the Ombudsman and democracy.
A useful instrument of EU meta-governance, IIAs have proliferated over the
past 40 years, though it is only since the 1990s that they have become a focus
for academic research.
Most of the commentary to date on IIAs has come from lawyers. Their
contribution has involved the mapping of such agreements (Hummer 2007)
with somewhat lengthy consideration given over to their legal form and effect
(Klabbers 1994; Monar 1994; Snyder 1996). For non-lawyers, the most
engaging aspect of these discussions, and one that has been further developed
since the mid-2000s, is the impact of IIAs on the EU’s‘institutional balance’.
This questions the extent to which agreements outside the framework of the
treaties serve not only functional ends but also alter in a more fundamental
way the relationships between and among the EU institutions (Driessen 2008;
Hummer 2007: 70; Johnson 2012).
A project funded by the Austrian Ministry of Education, Science and Culture
in the mid-2000s led by Sonja Puntscher-Riekmann and Johannes Pollak helped
to expand on these themes. The project was particularly interested in discovering
whether IIAs benefit the European Parliament and what impact they have had
on EU-level democracy. Much of this work was published in a special issue of
the European Law Journal in 2007 (see Slominski 2007). In that volume Kietz
and Maurer (2007) analyse cases in which IIAs have been used by the EP to
wrest control from the Commission and the Council. They show how the EP
‘created facts’on the ground in the hope that they might later be codified.
Puntscher-Riekmann (2007) agrees that IIAs may strengthen the EP and thereby
enhance EU democracy, yet she also acknowledges that there are risks involved
for EU democracy as IIAs can be rather opaque instruments of governance.
Eiselt et al. (2007) show how IIAs are useful in addressing technical issues but
are no substitute for institutional reform of a more formal kind. Beyond the
special issue, but within the wider project, Maurer et al. (2005) explore the
conditions under which the EP benefits from IIAs, arguing that this is more
likely when the initiative rests on a clearly defined treaty base. By contrast Eiselt
and Slominski (2006) take issue with the tendency in the literature on IIAs to
focus on the benefits to the EP. They argue that the Parliament is certainly not
the only institution to profit from such agreements.
While this debate in the core literature is primarily concerned with the inter-
ests that drive IIA decision-making and the benefits that result from agreement,
it is only in drawing on a broader literature that we identify an alternative
approach. Christiansen’s research on inter-institutional cooperation in the EU
suggests an ideational perspective on IIAs (Christiansen 2001). He argues that
EU Decision-Making on Inter-Institutional Agreements 1145
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while EU intra-institutional relations were becoming more fragmented over the
course of the 1990s, a counter-trend affected inter-institutional cooperation.
This saw closer relationships develop across inter-institutional boundaries.
Christiansen identifies three reasons for this: the existence of ‘a shared
allegiance as civil servants of the EU’; the ‘experience of working within a
common bureaucratic culture’; and ‘the presence of an epistemic community of
experts in the highly technical matter of EU policy-making’(Christiansen 2001:
765). All three point to the importance of shared inter-institutional values as a
driver of inter-institutional cooperation.
This article draws on both sets of arguments, treating the question of whether
values (ideas) or potential benefits (interests) shape decision-making as an
empirical question. Only one study of IIAs uses a similar framework. Maurer
et al.’s (2005: 213) foreign policy case study recognises that both ‘distributional
bargaining’or ‘interests’on the one hand and principles and ideas on the other
might be important in shaping IIAs. The authors argue, however, that ‘interests
and ideas are involved in different ways depending on the level of inter-
institutional interaction’(Maurer et al. 2006: 213); that ideas are likely to be more
important for higher level (constitutional) issues, whereas interests will matter
more at the operational level. In adapting Maurer et al.’s framework in light of
the wider literature discussed above, this research expects to find that shared
values provide a more convincing explanation of the success and failure of IIA
decision-making where matters of constitutional significance are at stake; and that
where IIAs deal primarily with operational matters, success or failure is more
likely to turn on the existence or absence of mutual benefits. The hypotheses
embedded in this theoretical framework are explored in the two cases that follow.
The Regulation of Lobbying
1
The EP first debated lobby regulation in 1989. This led to the publication of
the Galle Report (European Parliament 1991), a detailed document which
amongst other things proposed a code of conduct to prevent abuses such as the
selling of documents and the misuse of premises, the establishment of ‘no go’
areas in the EP, and the annual registration of lobbyists. In addition the Report
recommended that Members of the European Parliament (MEPs) should be
required to declare their own and their employees’financial interests.
There was substantial resistance to this initiative from within the EP. This
reflected the different national experiences of MEPs as well as their different
conceptions of their role as parliamentarians (European Parliament 2009: 94).
An absence of urgency on the issue meant that the debate became protracted,
dragging on over several years, and making it impossible for an agreement to be
reached before the end of the parliamentary term (Chabanet 2007: 2; European
Parliament 2008c: 8; Shepherd 1999: 155–58). A second attempt, after the 1994
election, watered down some of the earlier proposals (European Parliament
1996). Yet this second proposal was also contentious and almost failed. A
last-minute compromise and an emphasis placed on the symbolic nature of the
1146 M. Cini
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proposal, together with the fact that the media had begun to take some interest
in the initiative’s progress seemed to sway opinion (European Parliament 2008c:
9; 2009: 94). The Report was approved and the Parliament’s rules of procedure
were amended accordingly (European Parliament 1996). A code of conduct
based on a voluntary code already in existence was agreed in May the following
year (Chabanet 2007: 10).
Meanwhile the European Commission was troubled by the regulatory
approach adopted by the EP, fearing that the adoption of a similar system in the
Commission might undermine its ability to gather information from interest
organisations. The Commission favoured a self-regulatory approach which led it
to set up a system of guidance for interest groups, primarily public affairs con-
sultancies, to help them to develop their own industry standards in the form of a
professional code of conduct (Shepherd 1999: 157). In its 1992 Communication,
promoting an ‘Open and Structured Dialogue with Special Interest Groups’, the
Commission also agreed to set up a directory of groups later known as
CONECCS (European Commission 1992: 2–3). This was primarily established
as an internal resource, however, and was only later used as an instrument to
improve transparency externally.
Another decade passed before lobby regulation was reviewed by the EU
institutions. This happened in the context of a renewed interest in the subject
after 2005 in both the Commission and the EP, though the Commission was the
agenda-setter on this issue. Lobby reform was a key element within the
Commission’s European Transparency Initiative (ETI) (Cini 2008; Kallas 2005).
This initiative was promoted by the new commissioner, Siim Kallas, who felt
strongly that tighter control of relations between lobbyists and Commission
officials was needed (Kallas 2005). There was some disagreement between the
Commission and pro-reform NGOs over how far the Commission’s involvement
should stretch, however. Even those in the Commission like Kallas who
advocated reform were reluctant to impose mandatory registration, or get too
embroiled in the practical operation of the system. After a period of consultation
the Commission adopted a voluntary scheme and a code of conduct based on the
earlier industry code (SEAP 2000). A web-based Register was launched in May
2008. Registration was to be rewarded by early access to consultation, and a sys-
tem of monitoring and sanctions was introduced (European Commission 2007).
The Commission was keen to extend this initiative beyond its own institu-
tional walls and proposed, or as Commissioner Kallas put it at the time, ‘sug-
gested’,acommon inter-institutional register and code of conduct to cover the
Commission, EP and the Council (Kallas 2008: 3, 8). Kallas said that this has
been his original ambition from the very start of the ETI as he realised that it
was the model that stakeholders (or interest groups) preferred (Kallas 2008: 4).
Kallas also highlighted the extent of the consensus on the issue by this stage and
claimed that the differences between the institutions were merely administrative
(Kallas 2008). By all accounts the EP’s response was favourable (European
Parliament 2008c: 5; Kallas 2008). The Committee on Constitutional Affairs
(AFCO) responded first by organising a workshop with stakeholders (in October
EU Decision-Making on Inter-Institutional Agreements 1147
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2007) and then by appointing Alexander Stubb as rapporteur (replaced after the
2009 election by Ingo Friedrich) (European Parliament 2008c). The Report
drafted as a result of this process included a motion for a (non-legislative)
resolution which was ultimately approved by the Plenary on 8 May 2008.
Overwhelming support for the initiative across the political spectrum is
evidenced in the voting data of the five committees that gave their Opinion on
the AFCO Report with at most one member only voting against in each commit-
tee. A similar pattern emerges from AFCO itself and in the final plenary vote
(European Parliament 2008c). In terms of the principle of having some kind of
joint lobby system both the Commission and the EP were in agreement from the
start.
Even so the EP had concerns over whether a common Register would be
mandatory, the extent of the financial information to be published, the organi-
sations that would be obliged to register, and whether the sanctions proposed
would provide an adequate deterrent to those tempted to provide misleading
information (European Parliament 2008c; Wallis 2011). The EP also wanted to
make sure that groups, especially those representing civil society, would not be
deterred by the new system from working with MEPs (European Parliament
2008a, 2008b). In an initiative unique to the EP, the voluntary application of
the ‘legislative footprint’, a list attached to a parliamentary report indicating
the interests consulted, was accepted as part of the project (European
Parliament 2008b; Wallis 2011). The Committee Report proposed that this
should also be considered by the Commission.
In accepting the Resolution, the EP expressed its support for the
Commission’s‘one-stop shop’for lobbyists. The EP called for an IIA to be
signed by the Commission, the EP and the Council (European Parliament
2008c). Diana Wallis, one of the EP’s vice-presidents at the time, has
implied that this suggestion came from her and Alexander Stubb (Wallis
2011). From the outset the IIA was expected to set up a common manda-
tory register to entail full financial disclosure,a common mechanism for
removal from the register and a common code of ethical conduct. However,
it was also stated that ‘[b]earing in mind …the essential differences
between the institutions, Parliament reserves the right to evaluate the
Commission’s proposal when it is finalised and, only then, to decide on
whether to support it’(European Parliament 2008b). It was agreed that a
joint working group be set up to consider the implications of the proposal
(European Parliament 2008c: 6).
The High-Level Working Group (HLWG) was led by Diana Wallis,
Vice-President of the Parliament, supported by MEPs Isabelle Durant, Jo
Leinen and Carlo Casini for the EP and for the Commission the responsible
commissioners, Siim Kallas, and after the 2009 election MaroŝŜefcoviĉ
(European Commission 2009a). The Council was also invited, but did not
choose to attend (Wallis 2011). The Group held meetings over the course of
2009 and 2010 to deal with concerns that were raised in the EP about the
operation of the proposed Register. There was no evidence to suggest that
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this was a very difficult process as the lines of division separating the two
institutions were very clear, and in a very short time, in fact already by April
2009, the Working Group had agreed a joint set of guidelines, a revised draft
of the code and a common webpage (European Commission 2009b). For the
Working Group to agree these initiatives so early spoke of the fundamental
support that existed across the two institutions.
Although the EP’s position was that a mandatory regime was preferable,
it accepted that in the first instance it would support the Commission’s vol-
untary framework. It was recognised that by tying registration to access to
the EP buildings the new system would be in any case be quasi-mandatory
(Wallis 2011). A further difficulty concerned the definition of the term ‘lob-
byist’which the Parliament felt had been too narrow in the Commission’s
version of their Register (Wallis 2011). Bringing lawyers, think tanks, the
churches and local and regional authorities –which baulked at being labelled
as lobbyists –into the Register led to some heated arguments and ‘a lot of
negotiations’(Wallis 2011) with the groups concerned; yet a suitable compro-
mise expanding on the Commission’s earlier definition was eventually found,
and there was no opposition in the Commission on this issue. Finally, those
leading the negotiations feared that the information provided in the Register,
especially on financial disclosure, would be too vague to be meaningful, and
that its voluntary status meant that the system as a whole would be weak.
However, despite these concerns, many of which were pushed into a future
review of the agreement two years on (mid-2013), an IIA was eventually
approved by both the Parliament and the Commission in May 2011
(European Parliament and European Commission 2011). The joint register
and code of conduct became operational a few weeks later on 23 June 2011
coordinated by the new and highly innovative Joint Secretariat based in the
Commission’s Secretariat-General and staffed by officials from both the
Commission and the EP (Greenwood and Dreher 2013: 143–4).
In spite of some of the technical difficulties and the different interpreta-
tions held by the two institutions, the agreement to set up an inter-institutional
Transparency Register was not particularly contentious. This marked a major
shift for both institutions when compared to the discomfort that the issue had
caused just over a decade earlier. Both institutions accepted the need to
improve the existing system; both saw efficiencies arising out of a common
approach; both saw that this initiative was acceptable to stakeholders; and both
acknowledged that working together to that end would demand some
compromise on both sides. While the Commission was able to set the agenda
with its pre-existing Transparency Register, the EP was able to do what it does
best and propose amendments to the Commission’s baseline proposal.
Ultimately the IIA that resulted involved some negotiation but without any of
the rancour that can characterise EP–Commission relations. Even if neither got
entirely what they wanted, both institutions were satisfied with the outcome.
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Regulating the Conduct of Public Servants
Since the 1990s public organisations across Europe have been developing new
ways to regulate the conduct of public servants. This has led to a proliferation
of ethics rules, codes and guidelines, ethics committees, and training and
consciousness-raising initiatives. A similar trend is visible within the EU insti-
tutions. It was only after 2000 that the EU institutions, and the Commission in
particular, began to take ethics seriously. The agenda was forced upon the
Commission as part of the reform programme that followed the resignation of
the College of Commissioners in March 1999 (see for example Macmullen
1999).
For Members of the European Commission (commissioners) the route to eth-
ical salvation was to come via internally agreed Codes of Conduct, the first of
which was formally agreed in September 1999 (European Commission 1999).
This has since been revised twice in 2004 and 2010 (European Commission
2004, 2011). The Code identifies the standards of conduct expected of commis-
sioners. It deals with financial interests and assets; business travel, receptions
and professional representation; post-employment ‘cooling off’periods; as well
as the receipt of gifts, honours and other benefits (Cini 2010, 2013; European
Commission 1999, 2004, 2011). Advising the Commission President on the
post-employment aspects of the Code is an Ad Hoc Ethical Committee
(European Commission 2003). This is a rather opaque advisory body that might
be labelled ‘semi-independent’, composed of three senior European notables.
The approach is soft and non-regulatory. It puts the Commission President at the
heart of the Commission’s ethical decision-making system.
By contrast, the post-1999 ethics regime for Commission officials was dealt
with in a more regulatory manner by means of the revisions to the EU’s Staff
Regulations (Cini 2010; European Union 2004). These were rewritten in 2004
to include reworked provisions on the loyalty obligations of officials, rules on
whistleblowing and new disciplinary procedures to apply in the event of
misconduct. Beyond these provisions other initiatives have encouraged greater
awareness of ethical issues. A network of ethics contacts was established
throughout the Commission’s services; individual departments such as the
Directorate General (DG) Competition have developed bespoke Codes; and
new training courses on ethics have been set up. The one-stop shop website on
ethics issues which is a work-in-progress provides officials with a useful
central online resource (Năstase 2012). EP officials are also subject to the Staff
Regulations. Beyond the general framework there are relatively few bespoke
initiatives on ethics relating solely to parliamentary officials, though impor-
tantly, since 2009, parliamentary assistants, now categorised as temporary
agents, are covered by these rules (with the exception of the provisions on
political neutrality) (European Parliament 2011: 27). This system is inherently
inter-institutional even if individual institutions are able to develop their own
supplementary ethics systems.
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While MEPs have been quick to challenge the Commission for its ethical
failures, they have been much slower and more reluctant to revise their own
ethics system. Although there were numerous criticisms of the Parliament in the
past along the lines that ‘MEPs fiddle their expenses’(van der Laan 2003: 1),
these have not until very recently reached the intensity experienced by the
Commission. Yet MEPs have had a framework to guide their conduct since
1996 (Chabanet, 2007: 8; European Parliament 1996); and since the mid-1990s
they have been required to make and update declarations of financial interests
(ECPRD 2001: 61). These and other rules on transparency were enshrined in
the Parliament’s Rules of Procedure (ECPRD 2001: 58). However, ‘for a long
time the vast majority of Members …paid no heed whatsoever to the obligation
to declare their financial interests (Chabanet 2007: 9), and the ethics rules, in
any case rather limited in scope, were poorly enforced. Since the mid-1990s
support for revisions to the existing system has grown, driven by an influx of
new and primarily young and reform-minded MEPs. The establishment of the
Campaign for Parliamentary Reform (CPR) in March 2001 coincided with
hostile press attention over the failure of some MEPs to declare their interests
(see European Voice, 7 June 2001 and 19 July 2001; see also ECPRD 2001:
61). This gave moral weight to the arguments of the reformers and provided the
context for the agreement of a Single Statute in 2005 (European Parliament
2005). This did not encompass a full-fledged ethics system, however.
It was not until 2011 that the Parliament finally agreed to overhaul it legisla-
tive ethics regime for MEPs. This was a direct response to the ‘cash-for-laws’
scandal that hit the Parliament in March of that year, the result of a ‘sting’by
the UK newspaper The Sunday Times. Undercover journalists recorded four
MEPs admitting that they would accept bribes in exchange for proposing
amendments to draft EU legislation (The Sunday Times, 20 March 2011). This
provoked the President of the Parliament, Jerzy Buzek, to set up a Working
Group of MEPs to propose reforms. There was a debate at this time over
whether an independent ethics committee ought to be set up but this proposal
was rejected by the Working Group. It was agreed, however, that a Code of
Conduct would be drafted and a five-member advisory committee (of MEPs)
would investigate alleged breaches of the Code. The new ethics system came
into force on 1 January 2012 (European Parliament 2011: 23).
Since initiating its own reform in late 1999 the Commission has twice
pushed for a joint inter-institutional ethics system with the EP (with the Council
also invited to participate). On both occasions the Parliament has rejected the
Commission’s overtures. The EP, by contrast, has preferred to rely on its powers
of scrutiny over the executive. This continues the role it has played effectively
since the 1990s, when it sought to put pressure on the Commission to respond
to accusations of ethical misconduct. In this way the EP has continued to find
new avenues for shaping the Commission’s ethics framework while rejecting
participation in joint initiatives.
At the administrative level the situation has been rather different. As
mentioned earlier, officials working in both the Commission and the Parliament
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are employed in accordance with the Staff Regulations. This means that many
of the formal ethics rules that apply to officials in the Commission also apply
to officials in the EP. When the Staff Regulations were revised from 2002 to
2003 ethical issues did not constitute a particularly contentious element in the
negotiations. Other more difficult issues dominated discussions in the planning
stage in the inter-institutional Staff Regulations Committee. At subsequent
stages of the legislative process the EP had little influence since the revision of
the Staff Regulations was governed by the consultation procedure and as such
the EP was able only to present an Opinion on the Commission’s proposal.
The idea of setting up an inter-institutional committee, provisionally labelled
the Advisory Group on Standards in Public Life after its UK equivalent was first
raised by the Committee of Independent Experts (CIE) in its highly influential
Second Report published in September 1999 (Committee of Independent
Experts 1999: para. 7.7.1–5, Recommendation 7.16.9; see also European Voice,
29 July 1999). The reference in the Report is rather vague, with little detail on
the form the Committee should take other than that it should be a ‘joint’
committee incorporating not only the Commission (Van Gerven 2000). As a
consequence, a reference to an Advisory Group appeared in the Commission’s
2000 White Paper on Reform (European Commission 2000) and this led the
Commission to draft a proposal later that same year. This was transmitted to the
Council in late 2000 and to the EP in early 2001. Although the Commission
was keen to promote inter-institutional cooperation on this matter, early attempts
to negotiate with the EP suggested that pursuing the initiative at this time would
be pointless, and it was quickly set aside (Bounds 2005).
The Commission’s proposal remained on the table to be reactivated several
years later in 2005 in the context of the European Transparency Initiative. This
was provoked by the media storm over accusations that Commission President
Barroso had taken a holiday on the yacht of an old friend who had received
substantial EU funds. Responding to this criticism, Barroso wrote a letter to
the President of the EP, Josep Borrell, stating that though he felt he had done
nothing wrong he accepted that some oversight of his role might be necessary
as he alone was responsible for his own ethical conduct under the Code of
Commissioners (European Voice, 4 May 2005). He stated that this oversight
should take the form of an inter-institutional initiative. Referring to the 2000
proposal, he argued that he was ready and willing to negotiate with the EP on
this issue (Bounds 2005).
This was in line with the spirit of the ETI, which planned to develop ethi-
cal standards in the EU institutions. The Commission used this framework at
the time to channel the argument in favour of an inter-institutional approach to
ethics. Kallas even made references to the creation of a ‘European ethical
space’, though what this meant in practice was never clarified (Cini 2007:
180–96). A Commission Inter-Departmental Working Group (European
Commission 2005) tasked with drafting a Communication on ethics subse-
quently linked the inter-institutional initiative to a revised version of Code of
Conduct for Commissioners. Indeed, the College’s view was that future
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revisions of the Code ‘would only be useful if it …[was] part of an
inter-institutional debate on an inter-institutional Advisory Group’(European
Commission 2005: 7).
From the Parliament’s perspective inter-institutional decision-making on
ethics continued to be a matter of keeping the Commission in check rather than
agreeing to work cooperatively with the Commission to create some kind of
inter-institutional regime. As the issue was seen as political rather than adminis-
trative or technical, an IIA was not deemed an appropriate instrument to use to
this end. This is illustrated in the way in which the Parliament responded to
Commission requests to link the revision of the Commissioners’Code to an
inter-institutional agenda. First, the Parliament had already made sure that the
revised Inter-Institutional Framework Agreement signed between the two institu-
tions in 2010 included a reference to the Parliament’s right to scrutinise the
Code (European Parliament and European Commission 2010); and second the
Parliament asked that a confidential version of the Code –not yet in the public
domain –be given to the Conference of Presidents for consideration behind
closed doors prior to its formal approval by the College of Commissioners.
The Commission’s enthusiasm for an inter-institutional response may be
viewed rather cynically as a short-term delaying tactic or as a way of deflect-
ing attention towards the lack of an ethics system in the Parliament. The
inter-institutional approach might also allow the Commission to pre-empt
future parliamentary criticism over ethical issues if it is closely locked into a
system with the Parliament. Not surprisingly the Parliament resisted any loss
of autonomy on ethics-related issues. To agree to the Commission’s request for
an inter-institutional system would have allowed the Commission to set or at
least shape its agenda, reversing the traditional scrutiny relationship of
Commission and Parliament –and this was unacceptable to the Parliament. As
such, no inter-institutional agreement was possible in this case.
Shared Values and Mutual Benefits: The Conditions of Successful
Inter-Institutional Decision-Making
This research began by hypothesising that both shared values and mutual benefits
might be important in shaping the success or failure of IIA decision-making.
More specifically, it was posited that where IIA decision-making was of constitu-
tional significance, shared values would be more important in shaping the
outcome of the process than mutual benefits. Conversely, where only operational
matters were at stake, shared values would become less relevant to the success or
failure of IIA decision-making, with mutual benefits becoming more important.
To what extent do the two cases provide evidence in support of this hypothesis?
The findings suggest that in both cases shared values and mutual benefits
were important in conditioning the success or the failure of IIA decision-
making. The first case, on lobby regulation, primarily comprised a technical or
administrative process. There were no contested constitutional issues to
address, and the issue was not politically sensitive. The final agreement was
EU Decision-Making on Inter-Institutional Agreements 1153
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built on the back of mutual benefits, but was only possible because of an
earlier convergence of values over an appropriate lobby regulation system. The
contrast between the reform process of the 2000s and the divergent positions
of the two institutions only a decade earlier demonstrate this clearly. The sec-
ond case, that of public ethics, is constitutional in character. Here there is an
absence of both shared values and mutual benefits. It is more difficult in this
second case to prove the negative, that is, to show that the absence of shared
values and mutual benefits led to the failure of the IIA. What is clear is that
the values of the two institutions on this issue were very different, as were the
benefits that would accrue to each of them should an IIA be concluded.
In the first case, that of lobby regulation, the initiation and negotiation of a
joint register for lobbyists for the two institutions was presented from the
outset as a way of resolving certain problems with the management of interest
organisations at EU level. The assumptions underpinning the lobby reform
agenda were normative in the sense that they comprised a set of beliefs about
what good governance (with regard to lobby regulation) ought to look like in a
modern public organisation (whether that organisation is an executive or a leg-
islative body). The process by which the IIA came onto the EU agenda, and
the way in which it was negotiated, with little controversy, point to the mutual
benefits for both institutions cooperating on this issue. Lobbyists would still be
able to contribute fully to EU decision-making, but they would be less able to
abuse their position in that process. This was important given that both institu-
tions were heavily dependent on the advice and expertise of interest organisa-
tions. An agreement would demonstrate to the outside world that both
institutions saw both the pitfalls and the advantages of engagement with out-
side interests, and the necessity of introducing greater transparency into the EU
decision-making process. These characteristics of the IIA decision-making
process are particularly noteworthy given the difficulties the two institutions
had in seeing eye-to-eye on the issue back in the 1990s. It is as though the
issue had shifted within the space of a decade or so from being highly
political –one might say ‘constitutionally significant’for the two bodies’–to
one which was by-and-large a matter or ironing out administrative technicali-
ties. In sum, it was both the existence of (or convergence of) shared values
and a set of uncontroversial mutual benefits that made a successful IIA
possible.
In the second case, the experience of the two institutions was very different,
and attempts to create a joint inter-institutional ethics system were unsuccessful.
This is not a matter of proving a negative (the absence of shared values) as
much as demonstrating that the values held by the two institutions were very
different with regard to this issue. In this case the values of the two institutions
were closely related to their formal constitutional roles within the EU system of
governance, that is, the EP as (co-)legislature and the Commission as executive.
It is ironic that it was pressure from the EP that shunted the Commission into its
new era of ethics reform at the end of the 1990s; and throughout the 2000s it
was pressure from the EP that effected change in the Commission when
1154 M. Cini
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enthusiasm for yet another revision of the Commissioner’s Code of Conduct
waned. But the EP’s position was very different from that of the Commission.
There was relatively little external pressure on it, even from NGOs whose focus
of attention remained primarily with the Commission. There was a continued
adherence to a view of parliamentarianism which saw the EP as answerable only
to its electorate and determined to maintain its autonomous position, subject to
as little regulation or as few accountability mechanisms as possible. Even the
new system adopted in 2011 rejected the idea of an independent committee to
oversee the conduct of MEPs.
But just as the values of the two institutions differed, so too did the interests
or likely benefits that might be derived from setting up an inter-institutional
ethics regime. The Commission had everything to gain and could see the advan-
tages in such an approach as it would make it more difficult for the EP to
criticise Commission ethics. As a consequence, the EP could only lose from any
joint agreement.
Conclusion
This article began by enquiring into the conditions under which decision-making
on IIAs succeeded or failed. The research rested empirically on two similar
issues, each of which had had IIAs proposed for them. The purpose of the article
was to examine why in the first case –on lobby regulation –a successful
decision-making process led to an IIA, whereas in the second –on public
ethics –no agreement was possible. The article adopted a framework which
identified the relative importance of interests and ideas in IIA decision-making,
conceptualising the latter as ‘mutual benefits’on the one hand and ‘shared val-
ues’on the other. It hypothesised that shared values would be more important in
cases of constitutional significance; whereas where operational matters were con-
cerned mutual benefits would determine the success or failure of the agreement.
The evidence presented in this article demonstrated that both shared values
and mutual benefits were important in determining the success or failure of
inter-institutional decision-making, regardless of whether the issues were of
constitutional significance or not. This conclusion rejects the above hypothesis.
It also differs from the thrust of much of the existing literature on IIAs, which
has focused either on the legal form and effect of the agreements or on the
benefits accruing to only one party to the agreement, the EP. While the
findings in this research do not argue that the EP does not benefit, it does
supplement the existing literature by focusing attention on a wider range of
variables than is commonly discussed with regard to IIAs. It demonstrates the
advantages of adopting a broader theoretical perspective when analysing IIA
decision-making and suggests that the way forward for research in this field is
to investigate the involvement of all parties to the agreement rather than just
one, and to be open to the possible influence of both interests (benefits) and
ideas (values) as mediating variables conditioning the success or failure of IIA
decision-making.
EU Decision-Making on Inter-Institutional Agreements 1155
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Note
1. The research in this section of the article is drawn from joint work conducted with Nieves
Pérez-Solórzano Borragán.
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