Rebels with a cause? Dutch Provinces and their possibilities to influence EU decision-making

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1 Rebels with a cause? Dutch Provinces and their possibilities to influence EU decision-making Presented at the political Studies Association, Annual Conference 2014 Manchester, April Dr. Marcel Kiers Associate researcher at the University of Twente Department of Public Administration j.m.kiers@utwente.nl / marcelkiers@gmail.com This paper is based on the authors dissertation (Kiers, 2014) and contains the, as far as for this paper relevant, theoretical framework and empirical findings from that dissertation. 1. Introduction Europe of the Regions revisited Making the first steps towards European cooperation was mainly a matter on the scale of nation states. The word region did not appear in the founding treaty of the European Economic Community (EEC). But the world has changed. Europe no longer concerns member states only. The European Union (EU) claims to be more than the joint policy of the member states and points out that its regional policy strengthens the economic position of the EU as a whole (European Union, 2008, p. 4). In an increasing degree, the EU allows regional interests to play a role in the formal legislative procedures. For example, the Treaty of Lisbon changed the formal basis of influence of regions to some extent. In that Treaty the principle of subsidiarity was invigorated and the European Commission (Commission) was obliged to organize consultation-rounds prior to initiating new legislation in order to obtain an inventory of regional and local interests. 1 Regions and cities are now actors that directly attempt to influence EU decision-making based on their interests and interdependencies with the EU. They make strategic decisions with respect to resources, communication channels and cooperation with other actors. The strengthened positioning of the regions within the European arena is often referred to having resulted in a Europe of the Regions. However, this concept has declined in strength ever since the 1990s. Focusing on the expansion of the EU and the stabilization of the monetary union, the attention is aimed mainly to the member states. De activity of regional actors in Brussels increases but the focus shifts to the nation states. Moore (2007) and Jeffery (2002) state that this is the consequence of the actual regional success in participating on the European level. The regional activity became, in a way, part of reality and has normalized within the institutional structure in Brussels. Institutional and political changes within member states lead to a renewed attention for regional authorities. When national governments decentralize tasks to regions and when political parties debate the sustainability of the EU, regional authorities find themselves in a position where bypassing the nation state (Keating & Hooghe, 2006, p. 272) becomes a more prominent option. The question arises whether regional actors become more rebellious in finding their own path of influence within the European playing field due to the 1 Treaty of Lisbon, Article 2 VWEU (Protocol nr. 2). 1

2 institutional and political changes that shaped the EU and its member states ever since the downfall of the Europe of the Regions (see also: Elias, 2008). About this paper This paper addresses that question by looking at influence attempts made by Dutch provinces, as examples of regional authorities, when trying to influence the EU decision-making process. When regions (i.c. the Dutch provinces) make decisions about whether or not to cooperate with the national government, or perhaps to participate in an interregional partnership, these decisions are made within the total of available strategic options. As Callanan & Tatham (2013) indicate: cooperation with the central state is de dominant form of interaction when it comes to authorities with law-making powers. Bypassing the central state is considered a fall-back option. Whether regions use this fall-back option or rather participate in strategic alliances depends on the total strategic options at their disposal. Regions have to choose the best set of actions in order to maximize the chance of successful influencing the decision-making procedure. To gain insight in this process of deciding the strategy to exert influence, a detailed analysis of influence attempts is necessary. Some recent studies extend our knowledge about the impact of regional players on EU decision-making. For example Callanan & Tatham (2013), Donas & Beyers (2012), Haverland & Liefferink (2012), Breuer (2011), Marks, Haesly, & Mbaye (2010). But the research remains general in nature. Elsewhere (Kiers, 2014) I have assessed Dutch regional influence attempts in more detail and analyzed the causal mechanisms between the strategic choices made, the resources used and the degree in which goals are reached. Based on this research this paper looks specifically at mechanisms that involve the choice whether or not to look for cooperation and alliances. 2. The context The EU and its regions increasingly maintain direct relationships. Both take initiatives to establish and extend these relationships. This involvement is also demonstrated by the fact that many regional and local authorities nowadays have their own representatives in Brussels. Direct channels of communication with the European institutions are established and maintained. The EU exerts an active policy concerning the involvement of regional and local authorities in the European decision-making process. This policy is directed to the goal of decreasing mutual differences in prosperity between the different regions in Europe. This ideological goal with respect to solidarity is not the only reason why the EU expresses interest in its regions. More practical reasons are given by Koeppl (2001). According to Koeppl the contributions of local and regional lobbyist are of importance to the EU because they increase the public support for the EU and its policies. Interactions between the EU and regional lobbyist are often initiated by the European Commission itself. Dependence of the EU upon the regions will also occur with respect to the actual implementation of newly adopted European legislation. The European institutions itself have few personnel and therefore will depend on the member states (and its regions) to be able to implement European legislation (Reynaert, Steyvers & Van Bever, 2009). Governance studies show that the national government not necessarily acts in a coordinating role between regions and the EU (Marks & Hooghe, 2001). The playing field consists of multiple networks and structures of governments, private companies and interest groups. They all act on the basis of their own available resources and possibly their autonomous power. That regions organize their attempt to influence EU decisions under the supervision of the national government is no longer self 2

3 evident. Regions choose which resources they activate, on which moment they want to do this and towards which actors they will direct their efforts. The result of such influence attempts is dependent on the choices regions make with respect to these strategic parameters. For subnational governments to act within governance networks implies having to act in a multilevel as well as in a multi-actor environment. Influencing the EU decision-making process involves looking for the right moment, the right place and right resources. The process of making strategic choices in governance networks is described by Baumgartner & Jones (1993) using the term venue shopping. Coen (2007) states that: Venue shopping is by its nature a dynamic perspective on lobbying. This is the context regions find themselves in. When regions want to have influence on the EU decision-making process, they have to make strategic choices with respect to where, when and how to act. This also includes the choice of participating in available strategic partnerships. Within the context of venue shopping, regional actors have to decide if, for example, they want to participate in strategic alliances or focus on cooperation with the national government. In the following section this context is elaborated into a theoretical framework for further analysis. 3. Theoretical framework The use of action arena s and the legislative procedure Subnational governments make strategic choices as to when, how and with whom they act. The integral effect of these choices eventually determines the degree in which goals are attained. Ostrom, Gardner, & Walker (2006) studied situations in which actors, confined by the options available to them, make strategic choices to reach goals amidst a network of other actors. A wellknown central notion in their framework is the concept of action arenas. An action arena is described as a conceptual unit that is subsequently the focus of analysis, prediction and explanation of behaviour and outcomes within fixed constraints. The use of action arena s proves to be an appropriate starting point for the theoretical framework. An action arena consists of: 1. An action situation: in which actors in certain positions, within the boundaries of their opportunities and abilities, make choices about the actions they want to take to reach a certain outcome; 2. Participating actors: who have certain preferences and access to information and resources. Participating actors posses a certain amount of abilities to process information and to activate resources. Ostrom identifies three factors that determine the way in which actors (who have their own knowledge and skills) initiate action. These factors also determine the way in which this action eventually leads to a certain outcome. The factors are: 1. Formal Rules Labeled rules by Ostrom. These are regulations that define which actions are necessary, prohibited or allowed. Rules are specifically applicable for a specific action arena. Rules determine which actors have access to the arena, which positions can be held and which authorities are associated with particular positions. Rules also determine whether communication and interaction between actors is regulated and how the decision-making process is defined. When actors do not act according to the rules, the rules also state the 3

4 sanctions then are applicable. A more detailed description of the formal rules Ostrom distinguished is included in Appendix A. These descriptions are based on the description used by Boedeltje (2009) and Denters, Klok & Coenen (2003). Ostrom makes a distinction between formal and informal rules. Formal rules find their basis in written text, for example the treaty provisions. Informal rules find their basis in the collective legal awareness of all actors. Informal rules are valid within a certain community despite not being written down. This type of rules therefore are considered to be an important aspect of the properties Ostrom defines as properties of the community: 2. Informal rules (standards and values of the community) Refers to the standards and values that manifest themselves due to informal rules. The term culture often is used in this respect. Ostrom s framework culture can contain all types of subjective conceptions, like trust between actors of personal preferences with respect to policy areas. Informal rules can relate to the same aspects as formal rules (for example: positions, access) and also state sanctions when actors do not act accordingly. These sanctions are also informal in their nature and can damage the actor s reputation. Informal rules gain territory on the formal rules. Informal rules are effective and often have broad support among the actors involved. (Pauwelyn, Wessel & Wouters, 2011) Ostrom subsequently distinguishes the properties of the physical world: 3. Properties of the physical world This refers mainly to the type of issue at hand. The type of issue determines the procedure to be followed, which actors have formal access to the procedure, which information they posses and the physical location of the action situation. Not only the type of issue itself is important. Also the physical properties that influence the policy-making process play a role. For example, accidental circumstances can influence the outcome of the process. With the framework of action arena s in mind, the question at hand is which conceptual units (action arena s) can be identified when looking at the process of subnational influence attempts. To be able to answer that question it is necessary to look at the EU decision-making process. The main goal, that has been set to the actual start of the influence attempts, can only be achieved if successful influence attempts have been undertaken towards at least one of the sub-processes that are present in the formal EU decision-making process (the so-called ordinary legislative procedure ). This procedure consists of different steps. These steps can be identified as action arena s and are the smallest possible units in the process of influencing EU decision-making. For the analysis of influence attempts it is not required that the ordinary legislative procedure is followed in strictly one variant. The framework I used earlier (Kiers, 2014) involves a schematization of action arena s that is based on the ordinary legislative procedure (included in Appendix B). This schematization is leading in the further research. Any decision-making procedure that is in its basis comparable with the ordinary legislative procedure can therefore be the subject of analysis. 4

5 Conditions influencing the chance of success In the previous sections the basis for the theoretical framework was set out. This basis involves defining the steps in the legislative procedure in terms of action arena s. Influence attempts are aimed at one or more of these arena s. The outcome of one action arena can be the input of a following action arena. Eventually this will lead to a final outcome that is the result of all influence attempts undertaken in order to reach the intended goals. The context of venue shopping captures the exogenous variables that define the possibilities to act within the action situation. These variables are: Where to act? This refers to access (the availability of action arena s); When to act? This refers to the availability of time and possible restriction within the procedure; How to act? This refers to the availability of resources and the possibilities to cooperate with other actors. These three factors relate to the presence of action arena s and the possibilities these arena s offer to influence the outcome of the action situation. Using Ostrom s theoretical framework it is subsequently possible to give a more detailed description of the three exogenous variables as mentioned before. Hence, each action arena is defined by the following three properties: Formal rules; Informal rules; Properties of the physical world. At this point, we can refine the description of the exogenous variables by using the properties of action arena s. This leads to following table that contains the so called conditions that are influencing the outcome of an influence attempt. Conditions are defined as: the collection of factors that, used within the boundaries of the theoretical framework, increase or reduce the chance of reaching the goal of an influence attempt. 5

6 A B C Formal rules Informal rules Properties of the physical world 1 The availability of action arena s (where to act?) Formal access Position rules Boundary rules Informal access Type of issue at hand and physical aspects related to the process 2 The availability of time and possible procedural restriction within the action arena (when to act?) Formal available moments to exert influence Scope rules (procedural) Informal available moments to exert influence Availability of time as a resource. Ability to act within the phasing of the procedure and applicable deadlines 3 The availability of resources and the possibilities to cooperate with other actors within the action arena (how to act?). Formal rights and duties, status of decisions and formal possibilities for cooperation. Authority rules Information rules Scope rules (substantive) Aggregation rules Possibilities to act informal. Possibilities for informal cooperation Availability of resources. Shared interests and mutual dependencies This table concludes the theoretical part of this paper. The table shows which conditions influence the chance of success when actors attempt to reach their goals and therefore become active participants in the action situations within the action arena s. At the same time, these conditions form the basis for the continuation of this paper. The conditions are used to analyze several cases. By indentifying the conditions in the cases and look for patterns between the cases, our next goal is to provide more insight in the causal mechanisms between the strategic choices made, the resources used and the mechanisms that involve the choice whether or not to look for cooperation and alliances. 6

7 4. Casestudies This paper focuses on the strategic decisions provinces make and their influence on the policymaking process at hand. This requires the analysis of concrete cases. The required data will therefore be obtained by performing several casestudies. The table containing the conditions to be examined will be leading in the analysis of the data gathered on the basis of the casestudies. The selection of the cases is based on three requirements. First, the cases have to refer to influence attempts performed by one or more provinces and whereby action has taken place based on a preset goal. Second, the cases must involve a decision-making process that is subjected to the ordinary legislative procedure or a procedure that is comparable in its basis. This second requirement ensures the possibility to compare the cases mutually based on the action arena s as present in the procedure. Third, to make an externally valid analysis, the cases must have a certain degree of variety. This leads to the choice to select the cases based on two requirements to ensure variety. First, variety concerning the degree in which the actions take place in cooperation with other provinces. And second, variety concerning the degree in which interests are shared by the provinces. More details about the case-selection and its validity can be found in Kiers (2014). Bases on these requirement, the following four cases are selected: Case Air Quality, in which all provinces act in cooperation (represented by the Interprovinciaal Overleg (IPO) the Dutch association of provincial authorities). In this case the interests where shared. But the extent to which the new legislation would have an impact on the regional economy was different for each province. Case Structural Funds, in which three provinces acted in cooperation with shared interests, namely: to obtain sufficient subsidy out of the European structural funds to be able to implement the regional economic program. The other provinces had different interests, they also had economic programs themselves and the amount of financial resources in the structural funds was limited. Case Emission Rights, in which one province took the initiative, supported by a second. The influence attempts were based on the interest of these two provinces. The other provinces took a neutral position. Case Cross-border Cooperation, in which three provinces acted with shared interests. Some of the other provinces also shared these interests, but did not participate in the influence attempts. Other provinces found themselves in a neutral position. First, the cases will be analyzed separately. Of each case will be determined if the gathered data gives insight into the occurrence of the conditions. Subject of research will be the role these conditions played in the influence attempt and the extent to which this role is plausible based on the available data. The analysis is directed towards finding links between the occurrence of the conditions and the strategic choices that were made by the provinces. In this way insight is obtained into the way in which the conditions influenced the outcome. Also insight is given into the extent to which the provincial influence attempts did lead to the manifestation of the conditions. Cases are described in a 7

8 uniform manner in order to allow a comparison, as well as an analysis of coherence. Assessing the cases with a view to finding possible patterns will allow us to answer of the central question of this paper. 5. Empirical findings Dutch provinces have the choice whether or not to look for strategic cooperation when they decide to influence EU decision-making. The cases reveal some patterns that give more insight in the choices provinces make and the mechanisms involved. Using their partnerships provinces try to obtain access to the EU Institutions (Commission, EP, Council and the national governments). When provinces aim their goals at their own specific interests (cases Structural Funds and Cross Border Cooperation) the influence attempts are mainly focused on the Commission and the national government. The resource strategic partnership is the resource that is most commonly used when compared with all other resources. It emerges in every case. The cooperation with other actors is based on having shared interests of the occurrence of mutual dependency. Looking at the four cases, strategic partnerships are present with respect to the following actors: 1. the Dutch national government; 2. the Dutch provinces; 3. foreign authorities; 4. private actors. Ad.1: cooperation with the national government only is present in the case Air Quality. This cooperation was based on specific construction of cooperation which is used when environmental issues are involved. Within this construction the Ministry concerned also was involved. In this respect, cooperation with the national government means cooperation with the Ministry (which is not solely the representative of the national government). Cooperation with municipalities also only occurs in the case Air Quality and also is present within the specific construction used for environmental issues. Working together within the agreements of a specific structure is obviously an important way of bringing the different authorities together. In the other cases the focus was not aimed at the cooperation in this a way, but more on provinces attempting to convince other authorities to support the provincial goals. Ad.2: it is striking that in no influence attempts are found in which a province acts solely and completely apart from other provinces. Acting completely solely is obviously not in the nature of provinces. Theoretically, acting alone may be at stake sometimes. But the cooperation with other provinces is the starting point. The basis for the interprovincial cooperation is formed by regional partnerships between three to four adjacent provinces. Ad.3: the cooperation with foreign authorities is prominently present in the cases. In the cases Air Quality and Emission Rights the provinces engage in cooperation with large foreign regional authorities. Within this kind op cooperation the Dutch provinces play a minor role. Particular use is made of the power of the large foreign authorities to influence the decision-making process. The 8

9 type of cooperation in the case Cross-border Cooperation is different. Participating in a large and powerful structure is not specifically aimed at. Here, more important is the exact composition of the partnership, based on the goal of extending the possibilities for economical cooperation with specific other regions. Ad.4: cooperation with private actors only emerges in the case Emission Rights. In this case the regional authorities acted together with the companies that were functioning within the economic sector that was targeted by the new legislation. It is not clear why we only came across private actors in the strategic partnership in the case Emission Rights. In the other cases companies also did have shared interests with the provinces. On the basis of the available data, no further conclusion is possible on this specific topic. Cooperation with the national government is shaped by working together in a specific organizational structure, the so called Interbestuurlijk Dossierteam (IBD). Besides this team, no other type of institutional cooperation with the national government is found. Working together in this team gives the provinces a stronger position because this cooperation makes a larger European network available due to the involvement of the Ministry. However, the national government is fragmented. A single ministry does not represent the national government on its own. This fragmentation can lead to a less effective cooperation. When a minister, who represents the national government in the Council, has a different opinion than the representatives of the ministry in the IBD the position of the IBD is weakened. Cooperation with foreign regions leads to an advantage. The powerful positions of some of these regions with respect to their national government (like the German regions) can be used when strategic partnerships are obtained. The effectiveness of such partnerships is determined mainly by the direct lines of influence of the regional authorities with members of the EP and their minister who represents the member state in the Council. 6. Conclusions The possibilities of provinces to participate in strategic partnerships are numerous. Cooperation with others can be obtained within The Netherlands (within the region, nation-wide using the IPO of more specifically cooperation with a few other provinces). But, as indicated by the cases, also the forming of international partnerships is quite common. On the other hand, cooperating with the national government is not self-evident. To strengthen the relationship between the national government and provinces can lead to a stronger position of these provinces (Mastenbroek, Zwaan, & Liefferink, 2013). But then the question arises of whether the national government has an interest in provinces that have more influence on the European policy-making process. After all, the formal agreement between national government and provinces to work together when European legislation is involved (the so called Actieplan Europa en Decentrale Overheden), seems to be aimed at strengthening the position of the nation state as the primary actor to act when European matters are at hand. Also the fragmented nature of the Dutch national government has to be taken into account. Within this governmental structure the provinces mostly will have to deal with separate ministries, who do not represent the national government on their own. The internal structure and intergovernmental relation in The Netherlands influence the possibilities of provinces to successfully reach their goals. Keating & Hooghe (2006) indicate that cooperation 9

10 with the national government can be of major importance. However, the cases indicate that in the current European Union, the cooperation with foreign regions and private actors may be even more important. It is up to the provinces, within the options they have, to choose for the most effective type in order to reach their goals. The research at hand provides a detailed overview of the conditions that influence the chance of being successful when choosing which venue to use. The research also proves that that provinces, within an influence attempt, can focus specifically on certain conditions in order to maximize the change of reaching their goals. This paper started with the question of whether regional actors become more rebellious in finding their own path of influence within the European playing field due to the institutional and political changes that shaped the EU and its member states ever since the downfall of the Europe of the Regions. Based on the empirical findings from the casestudies, the conclusion is that two factors influence the decision of the Dutch provinces whether or not to participate in cooperation in the EU and whether or not to bypass the central state. First, the extent to which goals are shared. When provinces try to achieve a specific goal, cooperation is not obvious. The cases reveal that in these situations provinces shift their focus towards the Commission and towards the central government. This leads to an interesting situation. A stronger focus on the central government indicates the intention to cooperate with the central government. Yet, at the same time, when the provinces maintain lines of communication with the Commission, this puts the possible cooperation within the government under pressure. In situations, driven by specific goals, the cooperation with the central state becomes more important. But bypassing the central government is also a more prominent topic, because of the stronger focus onto the Commission. Second, the national institutional structure is important. The cases reveal that provinces do not choose to bypass the central government as a first option. Cooperation within the state is valued. But the fragmented structure of the national government hampers this cooperation. Cooperation with the national government usually means cooperation with one or more Ministries. At the same time, the Dutch national government, is represented in Brussels by ministers who have to speak on behalf of all the ministries. Ministers do attend their own specific Council meetings, but ministers are not likely to take positions that are divergent from the collective position of the central government. Cooperation with one ministry therefore does not mean that influencing the Council becomes more attainable. Provinces therefore tend to seek strategic cooperation with international alliances of regional actors. Because of the different position en authority of foreign regional politicians (for example: the more powerful position of German ministers of Länder when compared to de Dutch regional counterpart) these alliances are necessary to obtain more chance of influencing the Council and EP. The search for international regional cooperation is strengthened by the fact that the Dutch central government emphatically points to its prerogative to represent Dutch interests in Brussels (as stated in the formal agreement between national government and provinces to work together when European legislation is involved: the Actieplan Europa en Decentrale Overheden). The overall conclusion is that the Dutch provinces are able to participate in different kinds of partnerships. Cooperation with the central government is preferred, but not self-evident. For provinces, it comes down to making the strategic choices, within the context of venue shopping, that gives them the best chance of reaching their goals. Whether of not to act rebellious is part of this process of making strategic choices. 10

11 Appendix A Description of formal rules a) Position rules: determine the formal positions participating actors can take and the amount of actors that can take these positions. These rules are the starting point for other type of rules. For example the type of rules that connect the positions to certain formal power and responsibilities. ; b) Boundary rules: determine which formal criteria are used to attribute these positions; c) Authority rules: determine which authorities are connected to the formal possible positions. Authority rules concern the allocation of rights and duties to the positions; d) Scope rules: determine the boundaries for all possible outcomes of an specific action arena. The rules can refer to the physical content at hand as well as the procedure that is followed; e) Information rules: determine what information is available (or should be available) to the various positions and to the actor outside the action arena; f) Aggregation rules: specify the function that is used to transform actions into decisions. Aggregation rules determine how decisions are being made based on the contribution of the actors with specific positions. Authority rules and aggregation rules are sometimes closely connected. For example: an authority rule can state that each actor has one vote, the aggregation rule can state that each vote carries the same weight and that the majority decides. g) Payoff-rules: determine how costs and benefits lead to a certain revenue. Looking at the specific nature of the research question of my thesis, these rules are not being looked at in the further analysis. 11

12 Appendix B The action arena s (schematization of the ordinary legislative procedure) Opinions by National Parliaments Preparation and proposal from Commission Opinions by CoR and/or ESC First reading by EP Amended proposal Commission First Reading by Council Second reading by EP Second reading by Council Conciliation procedure Implemantation by National Parliaments 12

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