Where does implementation lie? Assessing the determinants of delegation and discretion in post-Maastricht European Union

“I would like to be free, as a man is free.
Like a man who needs to wander with his fantasies
and who finds this space
only in his democracy,
that has the right to vote
and spends his life delegating
and in receiving commands
has found his new freedom”
(Giorgio Gaber, “la Libertà”, 1973)

Delegation is a very common act in our everyday life: We delegate tasks to our colleagues in the workplace. We delegate a technician to fix our broken laptop. We delegate a doctor to assess our health. Delegation is not limited to the private sphere, as we often delegate at the public level. As “men” – as Aristoteles would say, “political animals”– we spend our lives delegating to someone else (e.g. politicians and experts) the task to make decisions for us and implement them.

My new article is precisely about these two very crucial actions, delegation on the one hand, and implementation on the other. Who delegates to whom, and who implements what in the European Union? And why?

Answering these questions is neither trivial, nor straightforward, especially in systems that, like the European Union, are characterised by multiple levels of government. We vote in our national elections as well as in European ones. We respond to national governments, local governments, and also to a supranational one. We live under democratic regimes, yes. And yet many of us do not know where they should put their trust. Which one is the government to look at, and, eventually, to blame? Who is truly making the rules, for the sake of whom? And who implements those rules, after all?

Through my piece, I first map who are the actors in charge of legislative rulemaking in the complex EU multi-level system, including the member states reunited in the Council of the European Union and the European Parliament. In technical terms, these would be the “principals”. I then overview who is delegated the task of implementing these rules, including supranational actors (the European Commission and European agencies) and national ones (national administrations). In a word, the “agents”.

After this overview, questions remain open: Why, one may ask, do European governments sit down in a room and approve a piece of legislation saying that the European Commission has the power to negotiate trade agreements? And why do they approve food safety regulations saying that it is up to a European agency to assess how meat should be processed? And why are EU social policies generally vague and grant national administrations considerable flexibility?

I follow up to these questions with some hypotheses accounting a) for the choice of different kinds of implementers/agents and b) for the leeway given to them by the principals. These hypotheses are based on three main rationales: the first is a functional one, the second is a historical one, the other is political. The functional one is about efficiency and mainly has to do with policy complexity: when a topic is technical (think about the “fixing a computer” problem mentioned above), we may not want to deal with it, as it may result in poor/inefficient implementation. It follows that, when a law is about something “difficult”, principals are likelier to delegate tasks to experts.

The historical one relies on the assumption that political actions are subject to path dependence: previous delegation choices should affect the future ones.

The political one, in turn, is about the interplay between principals according to two dimensions: the first is, under what rules they decide. The second is whether they share similar preferences on a given topic. On the one hand, when states´ representatives reunited in the Council decide unanimously, it is less easy for pro-EU governments to change the status quo in the direction of higher supranational implementation. On the other hand, when national governments have conflicting views and do not trust each other, they may be more keen to involve more impartial, so to say, actors, in order to avoid each other’s defections.

By means of statistical analysis applied to a dataset of 309 EU laws, my main findings are the following:

  1. Under higher policy complexity, it is more likely to observe delegation to supranational actors (the Commission and EU agencies)
  2. The higher the level of EU integration of a policy, the likelier supranational actors are involved in implementation. The trend inverts for high levels of integration
  3. When national governments in the Council vote by unanimity, supranational actors are less likely to be involved in implementation, and when they are, they are more constrained.
  4. When national governments have conflicting preferences, they grant more room to manoeuvre to supranational actors
  5. When national governments and the European Parliament disagree, supranational actors are more constrained in the implementation the approved policies

What are the empirical implications of these findings?

The first one is that technical issues require the inclusion of more experts, EU-level experts in particular. While this is desirable in terms of efficiency, the question remains open as to the legitimacy of technocrats being involved in policy-making.

The second is that the process of EU integration does imply that EU actors implement more policies, but also that policy-makers are reluctant to delegate to the EU beyond a certain threshold.

The third is that, given that unanimity voting is getting less and less frequent in the European Union, the odds are in favour of a stable shift towards higher (and less constrained) supranational implementation with the increasing use of the majority rule.

Fourth and final, governments may use delegation to the European Commission and agencies as a way to make policies that are consistently implemented, in spite of the existence of conflicts among them. However, this is not the case when the European Parliament is involved- further research is still needed on this point.

I think that what we may “take home” from these findings is that the act of delegation we make, i.e., voting in national parliaments, is just the first ring of a very long chain. This means, in turn, that as citizens, we should pay a lot of attention to whom to blame for poor policy implementation. Furthermore, while technocracy might be scary to many, as obscure and not democratically legitimised, it may still be crucial to solve otherwise very cumbersome problems that politicians are unable to face.

As the quote at the top of this post says, we are free men (and women) living in democracies, who spend our lives delegating. The normative message of this post, beyond the technical language of academia, is that our acts of delegation are precious, and they should not get lost in translation. We should be aware of what happens after we have voted. Where, how, why, by whom. Only by knowing this can we evaluate, intelligently, the quality of our governments.

– Marta Migliorati, Jacques Delors Centre, Hertie School

– The authors’ Journal of Public Policy article is available free of charge until the end of August 2020.

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