In Hans Christian Andersen’s short tale ‘The Emperor’s new Clothes’, it is a child pointing out the obvious fact: “But he hasn’t got anything on.” Simple truths often evade more sophisticated observers. And similarly, in academia, we often do not bother to ask and (for that matter) answer seemingly obvious questions.
Recently, in a meeting reuniting ten experts of EU decision-making, a colleague asked what actually drives the European Commission to submit its proposals either in the form of directives or regulations. While we all had an idea about the legal differences between these two provisions – regulations are binding in entirety and directly applicable in all Member States, directives leave to national authorities the choice of form and methods of transposition (Art. 288 of the Treaty on the Functioning of the European Union; former Art. 249 EC Treaty) – nobody of us, including the author, was certain about when the Commission opted for directives and when it pulled the regulations card. The legal answer is that in “most instances the Treaty leaves open the choice whether to proceed by way of regulation, directive or decision” (Craig & De Búrca 2008: 83). Fair enough. But the answer highlights that there is great room for strategic action – usually a nice playing ground for political scientists.
The graph based on our new EULO dataset (more information on this is to follow) plots the yearly amount of Commission proposals in the form of regulations, directives and decisions (decisions are binding but they are not addressed to all member states).
First, we see that the number of directives proposed per year is rather stable fluctuating around about 50 acts (don’t be bothered by the drop in 2009, we so far only have data up until last year’s June). Why this is the case is unclear. There might be an upper bound for directives that is either determined by Brussels negotiation dynamics or by the processes on national levels. Schulz and König (2000: 664) find that decisions and regulations are decided faster than directives. They argue that this is because directives require a change in domestic law and deal more often with strategic issues, often involving substantial distributional consequences.
Second, we find a stronger variance for regulations. The highest peaks fall into the period from the mid-1980ies to the early 1990ies, and thus accompany the single market program. So is the choice of the legislative instrument agenda driven? A negative binomial regression confirms that all three Delors Commissions used regulations extensively. König (2008: 149), in addition, shows that almost all legislation in the agricultural, fisheries, budget and trade sector takes the form of regulations.
Third, on the basis of our data we could call Barroso “Mr. Decision” since all other Commissions – with the exception of the Prodi Commission – made significantly less use of decisions (which, of course, might also be a function of the size of the EU). But all in all, we still today lack a clearer picture of why the Commission proposes what it proposes. There is a need for further research. This small story thus highlights one thing for me: simple questions rule.