Negotiating in the EU

1. Negotiating in the EU Problem solving or tough bargaining behaviour http://www.unc.edu/euce/eusa2007/papers/gonzalez-g-12c.pdf

2. 2757th ENVIRONMENT Council meeting (provisional version)- Luxembourg, 23 October 2006 From left to right:Mr Josef PROELL, Austrian Minister for the Environment,Mr Jan-Erik ENESTAM, Finnish Minister of the Environment, Chairman-in-office of the Council,Mr George PULLICINO, Minister for the Environment of Malta Ms Sulfina BARBU, Romanian Minister for the Environment

3. Main results of the Council The Council adopted a Regulation on advanced therapy medicinal products. The Council adopted conclusions which reflect the EU's position in preparation for the 13th session of the Conference of the Parties to the United Nations Framework Convention on Climate Change to be held in Bali with the aim of launching the negotiation process for a global and comprehensive post-Kyoto agreement. The Council adopted conclusions which, taking account of the seriousness and the international dimension of water scarcity and droughts, point to the need for a review of the EU's strategy in this area Luxembourg, 30 October 2007 President Mr Francisco NUNES CORREIA, Minister for the Environment, Regional Planning and Regional Development of Portugal

4. FUELS Following the presentation by the Commission of its proposal for a Directive (6145/07) aimed at reducing air pollutant and greenhouse gas emissions from fuel use in transport and increasing the use of biofuels, the Council held a major policy debate on the way its work should be continued. The proposed Directive should contribute to the implementation of Community strategies on air quality, climate change and sustainable development. The aim of the debate was essentially to enable the Ministers to express their views on the key element of the proposal. It focused on: • reduction of the greenhouse gas emissions from fuels and the setting of a target figure1 for reducing such emissions, and • the conditions for inserting such a target in the fuel-quality Directive. The delegations largely agreed in supporting the setting of a target for reducing the greenhouse gas emissions from fuels, subject to certain conditions. Among such conditions, the delegations gave particular mention to the need to establish sustainability criteria for biofuels, while stressing that it was necessary to set an objective that was realistic and viable. Legal basis proposed for the Directive: Articles 95 and 175 of the Treaty; qualified majority required for a Council Decision; co-decision procedure with the European Parliament applicable

5. The permanence of EU negotiations discourages tough bargaining behaviour, as does the prevalence of strong consensus norms. On the other hand, evidence exists of very confrontational behaviour that often leads to lowest common denominator solutions. We argue that the mode of negotiation to be found in the EU decision-making processes is contextually determined. Empirically it is demonstrated that day-to-day negotiations in the EU are to a large extent problem-solving exercises. Under certain circumstances, however, conflictual bargaining occurs. The pattern varies with, therefore, - level of politicization and • type of policy, and • according to the stage in the decision-making process. We also suggest that • processes of learning have resulted in changes in the EU's negotiation style: problem-solving has become increasingly institutionalized within the EU machinery

6. Presidency • Presidency of the Council of Ministers plays a crucial leadership role in policy making negotiations in the Council of the European Union (EU) • leadership resources available to the Presidency :Sufficient resources of coercion, reward, legitimacy, socialization, expertise and information exist to support the thesis that the Presidency plays a major role • the most effective leadership strategy of the Presidency is defined as guiding the negotiating parties toward the achievement of common ends through a cooperative process

7. Environmental Policy • An internal, confidential, Brussels document, written by the commission’s environment director general Mogens Peter Carl, highlights growing ‘environmental awareness’ (8). • ‘There will be increasing public pressure for more effective environmental action. • Security concerns - linked to pollution scares, environmental terrorism, water or resource shortage, climate change related disasters or migration) will be on the increase’, he writes. • Carl, privately, goes some way further than Barroso, publicly, in raising concerns over Europe’s workings as the EU expands to 27 - and possibly more - members without a constitution. • ‘This greater variety of contexts may lead to increased tensions as regards the objectives of EU environment policy between member states that will want a pause in environmental efforts… and others that favour an ambitious environmental agenda’, states his paper. ‘The EU will need to contain centrifugal forces

8. General features of negotiation • Actors: personalities ( Prime Minister..) behaviour patterns ( what has that been to date?), strategies ( how do the … behave in relation to EU negotiations) • Goals: what are their identifiable concerns, their needs, demands ( lobby groups..) interests? • Common framework this structures the process – is it loosely constructed or highly articulated • Outcomes actors ( politicians) are results-oriented • Cooperation or defection ….. but settlement is imaginable and acceptable

9. Key questions in relation to negotiation, ‘a dynamic and fluid process’ • Recurrent negotiations: Participants have to meet again! • The impacts of their behaviour on each other are persistent and significant • Thus – an incentive to behave constructively, according to agreed codes of conduct • Investment in the setting • Development of distinct and durable rules of behaviour

10. …recurrent negotiations • These negotiations are ‘integrative’ – • Encourage the emergence of stable and predictable relationships • Solidify shared norms – environmental policy is now a key element of Single Market • Intensify interdependence among participants

11. Number… • Number : • Bilateral forum… • Restricted multilateral forum – there is a degree of intimacy, mutual familiarity can be established and the terrain for cross-trading can be fairly easily identified - • what is a manageable number? the EU is an example of this - there are strong club rules to define its membership; the cement of multilateralism has been provided by intimated and structured bilateral relations ( the France-German axis) An EU of 25 may tip the balance?

12. … Scope • Scope • Single issue? • Clutch of more or related issues – this allows for issue linkage, so that gains on one issue offsets losses on others - the European Union – a constant balancing act – either get ‘package deals’, tame domestic pressures not to be maximalist on all issues – judgements are made about relative costs and benefits across a range of issues rather than absolute costs and benefits, issue by issue • Reaching judgements of this kind is a primary purpose of the national coordination procedures in each member state ( COREPER, and the national civil servant!)

13. … Layers • Layers • Does the negotiating forum engage a larger or smaller number of layers of political decision, or plurality of players, beyond the formal representatives authorized to make commitments • Realist view: state, a unitary actor, it decides when to settle or not • Pluralist view: other actors, NGOs, firms, lobby groups….hard for governments to adopt congruent or consistent preferences…. • Does it depend on the issue ( tax? Environmental policy?) • In EU, multiple layers – negotiations depend on satisfying a variety of national, sub-national and transnational players ; the negotiations concentrated in the Council are susceptible to a large number of actual or would-be policy processes within each member state

14. Coalition-building: • Coalitions • simplify complex negotiations as they reduce the range of alternatives • identify the strength/weakness of particular groups of supporters or opponents of a proposed settlement • recurrent, ad hoc, strategic, tactical, issue-specific, widely based, predictable or unpredictable

15. Contested definite legislative acts • 2006 (absolute number of acts in parentheses). • Legislative acts Other acts Total • Uncontested 85.8(357) 91.1 % (858) 89.5 % (1215) • Negative votes 8.9 % (37) 6.2 % (58) 7.0 % (95) • Abstentions 5.3 % (22) 2.8 % (26) 3.5 % (48) • Total 100 % (416) 100 % (942) 100 % (1358)

16. Pivotal players • these players are necessary to construct ‘winning coalitions’ or ‘minimum win-set’ • these players are not necessarily the ones with the most obvious gross power in the negotiation – e.g. small players, Ireland, Finland…. Can exercise high leverage as it is their marginal weight that tips the balance between a winning and losing coalition

17. Side-payments • what scope is there to devise side-payments? • Can you buy the support of some opponents?

18. Reciprocity; • this can be diffuse in a broadly based negotiating forum; a wider range of elements are considered ‘costs and benefits’… promises to pay later… the shadow of the future, the anticipated future gains all these can be factored into the preferences of participants… ( • what might some states be prepared to do if offered some kind of concrete incentive, or a promise of something into the future?

19. Contextual and contingent factors • These can be economic, political…and they impact on the climate of the negotiations • e.g. 9/11 – an EU arrest warrant was agreed within …. Weeks of the 9/11 attack • budget – France 2006, Chirac weak, election next year….new factors of friction and instability can occur within the Council and so limit/curtail negotiations…

20. …shared paradigm • A key element for building the major agreements to date has been what they term a ‘shared paradigm’, i.e. shared norms, values beliefs around the issues concerned. For example • CAP • Single Market ( all agree on benefits of market libereralization) • EMU

21. … limits to a ‘shared paradigm’! • But for each of these we can see differences emerging which show the limits of the ‘shared paradigm’: • CAP – modified efforts at reform, difficulties in WTO relating to it • Single Market – again very hard to get freedom of movement of services – look at Services Directive, and free movement of workers • EMU – a single currency but there are still major differences in the economic and fiscal policy areas

22. Stagnation and contestation: • differing national preferences • No to the new Constitutional Treaty • differing policy paradigms • Economy/military policy/immigration • Inability to enforce the Stability Pact • weak socialization of relevant policy-makers. • Social policy

23. Hard and soft Bargaining in EU... • Table 1: Typology of negotiation tactics • Hard bargaining Soft bargaining • High opening demand Flexible position, stressing common interest • Public commitment of not giving in Publicly signalling flexibility • Criticize other side Conciliatory statement • Defensive coalition Seek partners for compromise • Threat Proposal for compromise • From paper “hard and soft bargaining in the EU: Negotiating the financial perspective, 2007 – 2013 ( photo-copy available)