By: Desiree Iersel

At the moment, the European Union faces many challenges: the refugee crisis and the aftermath of the financial crisis of 2008. The Union faces a crisis that is even tougher to tackle than all the others though it is of a less visible nature. This challenge, the legitimacy deficit of the Union, underlies all others, partially due to the severe shortcomings on the output side. Even though the European Union is generally thought of as output focused and capable of making common policies, this is actually not the case. This is sometimes due to what Scharpf calls “the joint-decision trap.”

Generally, it is thought that crises or other focusing events lead to a policy-window opening up and opportunities for policy-making. This is supposed to propel the member states out of the joint-decision trap. Although it is often accepted as fact that crises propel the member states of the European Union forward from a joint-decision trap, this is not always the case as they sometimes remain in gridlock or end up in another joint-decision trap. To test this theory, two case-studies were conducted on the aforementioned Euro Crisis and the Refugee Crisis.

Scharpf’s Joint-Decision Trap

According to Scharpf’s theory, the incompetence of the EU when dealing with matters of high politics is caused by the institutional setup. In the European Union, the sub governmental levels play a direct role in decision-making on the level of the central government. The central government is dependent upon the sub level because these sub governments are the institutions that have to implement policies (Scharpf, 1988). This dependency upon sublevel governments is the cause of these deficiencies in the policy-making area. In the European Union, the sublevel consists of the members states and the central government consists of the core European institutions. According to Scharpf, the importance of the national governments are reflected in the (still rather) limited capacity of the European Parliament and the fact that the European Commission, the executive power in the Union, is not directly elected or chosen by the Parliament (Scharpf, 1988).

The main source of power of the Union is the Council of Ministers, which represents the national governments. The governments of the member states have veto-power over the European policy decisions, and use those especially in matters of so-called ‘high politics’ (Scharpf, 1988). In these joint-decision systems, central governments cannot simply act or respond to external events as they are bound directly to the interests of the sub governments that have to reach a decision by negotiation (Scharpf, 1988). What this may result in is a vulnerability of the joint system. Because of the fact that the sub governments keep their national interests in mind, it can sometimes be impossible to reach an agreement on the central level. This is what Sharpf called the joint-decision trap. Power has been handed over to the central institutions and the member states cannot act by themselves, but due to the national interests that the states keep in mind during the decision-making process, the Union cannot act either.

Besides this, it is also the case that the sub governments have given up a part of their decision-making powers to the central government and such a non-agreement may result in a decline of the sub government’s problem-solving capacity (Scharpf, 1988).

Generally, the way to negotiate policy decisions in the European Union should be focused on problem-solving. What this means is that it should have “an orientation towards common interests, values or norms which are distinct from the individual self-interest of participants (Bonoma, 1976, 507) and which, therefore, may facilitate voluntary agreement even when sacrifices in terms of individual self-interest are necessary and cannot be immediately compensated through “side payments” or “package deals””(Scharpf, 1988, 45). Only when this approach is taken is it possible to circumvent the joint-decision trap.

The difficulty with this is the fact that this problem-solving approach often only occurs when there is a common identity or a common vulnerability. This is problematic due to the fact that there is no ‘European Demos’ in place that gives the member state governments the common identity they need, nor is there a common vulnerability as after the failure of the European Defense Community, the EU entrusted NATO with its protection (Scharpf, 1988). This fact may still result in problems with decision-making in the joint system.

When circumstances change, or opinions are challenged, the sub level governments will hold on to their national interests instead of first thinking about the common interests.

The fact that this is the system in which the member states and European institutions have to negotiate decisions, often with standstill as result, does not help with the further integration and acceptance of the Union as an institution (Scharpf, 1988).

However, this does not mean that these multi-level systems are doomed to be stuck in a joint-decision trap forever, but only that bargaining will play a greater role in getting out of the trap (Scharpf, 1988). This means that for instance the practice of log rolling, or package deals will increase in systems that are faced with this trade-off between interests (Scharpf, 1988). But even if this is the case, the institutional setup of the European Union seems almost geared toward the occurrence of this joint-decision trap. As Scharpf notes, the two most powerful institutional conditions are that the member states in fact make European decisions on high politics and that these decisions (often) have to be unanimous (Scharpf, 1988). An institutional set-up like this seems geared toward unachievable aspirations and inaction at times when action is needed the most.

In the Union, the options of changing the way these institutions function is entirely in the hands of the member states and is guided by their national interests. This is due to the fact that there is no real European political institution with a popular political base of its own (Scharpf, 1988). Even the most fanatic EU expansionist member states will probably try to hold back when it comes to relinquishing their veto power in the Union. The reluctant member state would, in that regard, rather accept a suboptimal policy than relinquish part of its national control (Scharpf, 1988). “To be sure, on a long list of routine decisions, qualified-majority voting in the Council (which always would have been possible) is now explicitly provided for in the Treaty—and it is apparently practiced quite frequently, with governments preferring to be outvoted, rather than having to agree formally to an inevitable but unpopular Council decision. It remains to be seen whether the weakening of the pressures toward consensus will be outweighed by the lower threshold of agreement” (Scharpf, 1988). The decision-making in which all member states retain their veto in matters that concern their national interests. At some point, the political frustration over this inability to get through this standstill will not result anymore of talk about creating a better, more perfect Union. It will develop into an exasperated attitude, create demand for national action and shape a cynical attitude toward the inability of the Union to respond properly to a crisis it may face (Scharpf, 1988). Perhaps the developmental backlog of the Union was not created by national politicians who stopped certain policies, but was simply created by the institutional setup of the system of member states and central European institutions.

To come back to the definition of the joint-decision trap, “by way of summary, it is now possible to define the “joint-decision trap” more precisely. It is an institutional arrangement whose policy outcomes have an inherent (non-accidental) tendency to be sub-optimal—certainly when compared to the policy potential of unitary governments of similar size and resources. Nevertheless, the arrangement represents a “local optimum” in the cost-benefit calculations of all participants that might have the power to change it” (Scharpf, 1988, 57).

The joint decision trap may result in a standstill in policy making, a gridlock so to speak, that the member states cannot get out of. But they can sometimes be jarred out of this unwanted equilibrium by external events or crises within. This idea is in line with van Middelaar’s theory of fortune and time. Sometimes, the timing or fortune (luck, coincidence) leads to member states in the intermediate sphere pushing for more integration or perhaps even a different institutional set-up (van Middelaar, 2013). The joint-decision trap is one of the examples that can block further integration on a massive scale, but as Scharpf muses: it may be likely that fate can open up a new policy-window and propel the member states out of the joint-decision trap. This possibility will be tested by looking into two recent crises the European Union faced, the monetary crisis of 2008 and the refugee crisis that is still happening.

The Euro Crisis

The European financial crisis was caused by a slowdown in the economy of the United States. American citizens could no longer afford their mortgages and defaulted, which impacted their banks (European Council, 2014). The fourth biggest bank in the United States, the Lehman Brothers bank, collapsed under the strain of all these people defaulting and this immediately impacted all the other banks they did business with. European banks that had invested in the American mortgage sector, were, naturally, hit hard by this collapse. Some governments tried to save their banks by bailing them out of debt, but this proved to be difficult without bankrupting themselves. This almost happened in Ireland, but the EU stepped in to prevent this.

During the recession in 2009, markets began to worry whether some governments had the capabilities to step in and bail out their national banks (European Council, 2014). This led to greater scrutiny of government finances, and it was noted that Greece’s economy in particular was not doing well as its governments had accumulated a massive debt. This government, among others, suddenly found that they could not continue spending so much borrowed money as others were less willing to keep being their creditors. This banking crisis resulted in the sovereign debt crisis in 2008 (Bloomberg, 2015). Because of the Euro, the European economy is greatly interconnected. If several countries cannot pay their debts, the countries that lend them money become financially weaker. They cannot pay their debts to other countries anymore and this results in a vicious cycle. When certain governments could no longer pay their debts, economically stronger countries like Germany bailed them out. The EU and the IMF (International Monetary Fund) imposed austerity measures on these countries to reduce the annual budget deficit without imposing on possible growth. These measures included lowering the budget deficit and cuts in the wages of the public sector (Pietras, 2009). During the crisis, the European member states found out that their plan of financial market integration led to unwanted financial contagion. This caused the massive impact of the crisis on the Eurozone.

Before this financial crisis took place, there already were some discussions and proposals that asked for the implementation of monitoring bodies that oversee member state budgets. Other proposals focused on the regulation of the financial market (Lelieveldt, 2015). These two examples of proposals were not passed by the member states and agreement on this was inconceivable.

First, the policies on the regulation of possible crises will be explained as they were before the Euro crisis took place. Then, the policies that were implemented after the crisis will be discussed.

Before the crisis took place, the Treaty Excessive Deficit Procedure (1997) was in force. This treaty explained what data the European member states have to provide Eurostat, the Commission’s statistical department, with. This included data on their investment expenses, their GDP for the four previous years and the expected GDP for the current year, a file of the methods used to compile all this data and additional clarification on the data they send in (European Council, 2009). The fiscal constraints laid down in this treaty, but also in the Stability and Growth Pack, of which the TEDP is part, are strongly criticized as the constraints they impose on the member states are simply not effective (Martino, 2008). “This is amply evidenced by the “creative accounting” gimmickry used by many countries to achieve the required deficit to GDP ratio of 3 percent, and by the immediate abandonment of fiscal prudence by some countries as soon as they were included in the euro club. Also, the Stability Pact has been watered down at the request of Germany and France” (Martino, 2008). This was due to the fact that Germany and France both exceeded the deficit ratio in 2003 and did not want to be penalized for it (European Central Bank, 2011).

The Commission of the European Union was responsible for monitoring the Stability and Growth Pact. In case of infringements on this pact, the Commission was granted the power to give recommendations to the Council for Economic and Financial Affairs. This Council then decided whether the member state has respected the provisions laid down in the pact and could issue a warning or announce that there are, indeed, excessive (budgetary) deficits. The next step was to send recommendations to the member states to help them reduce their deficit (Bagus, 2010). If the member state did nothing, they would receive a fine up to a half percent of their GDP. However, these countries could simply form a block together with the other non-compliers and block sanctions. To add to this odd regulation, up until now, no country has ever had to pay for its breach of the provisions (Bagus, 2010).

The other point was that the idea of having stronger monitoring of member states budgets was rejected before the crisis took place (Lelieveldt, 2015). Effectively, there was no insight into the national efforts on this issue, nor was there a moment in which the member states could discuss a common strategy (European Central Bank, 2016).

These two are just a small proportion of all the factors that were found lacking in time of the crisis. This was changed during and after the peak of the crisis in the following ways.

First of all, there was a so-called “six-pack” of regulations enacted in 2011 that aims at strengthening the SGP. The main points of these regulations are the following: EU governments must subject their accounting systems (that cover income and expenditure) to internal and external control; they must make their financial data public; operate specific rules to make sure their budget adheres to European rules (compliance is monitored by independent organizations); establish a credible financial framework that includes a plan for the coming three years with regards to budgetary objectives and assessment of the sustainability of public finances (The Council of Ministers, 2011).

The Excessive Deficit Procedure and the six-pack of regulations have further generalized and entrenched the euro-rescuing regime in the Eurozone (Scharpf, 2014). Another relevant change in the EU’s financial policy is the new power granted to the European Central Bank, that is now able to “conduct interventions into the Euro area’s public and private debt securities markets to ensure depth and liquidity in the segments that are dysfunctional” (European Central Bank, 2010). What this means is that the ECB is now able to purchase sovereign (debt) bonds. This way, the ECB can save governments in financial distress and allow their (national) banks to sell them for money. By doing this, the ECB bailed out the governments that were severely hit by the crisis and temporary relief was granted (Belke, 2010).

Among others, these changes and the austerity measures imposed on the indebted countries helped the Eurozone deal with this crisis. However, this crisis did not truly propel the member states out of a joint-decision trap. True, before the crisis it would have been unthinkable to have monitoring of the member states budgets or the regulation of the financial market (via bonds) and this was changed by the Euro crisis, but the member states are now in an even more difficult joint-decision trap than before (Scharpf, 2014).

The rescue methods that were proposed to the indebted states came with tough conditions. But the other “choice”, insolvency, was simply not an option so the debtor states had to implement the measures. These regulations, as could be seen above, are rigid rules of fiscal austerity and demands for structural reforms. For example, there were enormous cuts in the following sectors: welfare, public employment and the public sector (Scharpf, 2014). These measures have slowed the economic growth in these states and led to more unemployment and inequality (Scharpf, 2014).

These measures are characterized by an asymmetry in bargaining powers. The debtor governments that, reluctantly, decided to adhere to the measures proposed by the EU could not reject the Memoranda of Understanding (the conditions surrounding financial aid from the rest of the Union) (Scharpf, 2014). This rescuing program was created through what was perceived as manageable for the debtors, and acceptable for the creditors. As the largest creditor, Germany had a significant say in the program (Scharpf, 2014). So the tough austerity measures that reduced wages and prices were enacted. What this shows is that there is an entrenchment in the euro-rescuing regime of asymmetrical negotiation powers (Scharpf, 2014). The creditors have all the bargaining power and the debtor countries hardly any. According to Scharpf, this is a very asymmetrical version of the joint-decision trap that is difficult to overcome (Scharpf, 2014). Therefore, this crisis did not propel the member states forward, toward more integration, but they ended up in a more complex version of the joint-decision trap.

The Migrant Crisis

Over the last few years, the EU has had to deal with a large influx of refugees and migrants from Syria, Iraq, Afghanistan, South Asia and Africa (Archick, 2016). This was due to conflict and poverty. This number rose over the last year and a half as the Syrian Civil War became more and more threatening to its civilians. According to the United Nations, there were more than 1 million refugees that went to the European Union in 2015. Most of the migrants that arrived via sea entered the EU through Greece or Italy (Archick, 2016). According to the UN, this was more than 200.000 in October 2015, and the monthly influx remained high in Greece (UNHCR, 2016). In that year, the EU tried to work toward more efficient regulation of their asylum policy. But, before this crisis took place, they already had a number of directives and legislation in place that was meant to deal with such a crisis. The main document with regards to refugee policy before the crisis is the Common European Asylum System (CEAS) that was enacted in 1999. The CEAS consisted of a multitude of directives and regulations. One of the most important directives is the Dublin Convention of 1990, that stated that the state where the asylum seeker (il)legally arrived was responsible for the application and care of an asylum seeker. This also means that this individual will be returned to that country to prevent asylum shopping from happening (European Council, 1997). This system aimed at harmonizing the treatment of asylum seekers and promoting a harmonized system that protects these individuals according to what laid down in international law (Bales, 2011).

To implement the Dublin Convention, EURODAC was set up to have a digital database of all the fingerprints of asylum seekers that will be accessible for the member states, to see who holds no status but is illegally in a country. Each member state is in fact obligated under this regulation to promptly take the fingerprint of every asylum seeker (European Council, 2000).

Besides these measures is the Temporary Protection Directive, that was enacted in response to the war in Yugoslavia. This directive aims to enhance the solidarity of the member states with regards to sharing the burden of refugees in the case of a mass influx. However, this directive that was enacted in 2001, has never been triggered (European Commission, 2016).

When the crisis took place, the European Union started working on the gaps in the CEAS that were present. They came up with numerous regulations aimed at strengthening the system. Several of these were the following: EUCO 22/15, the Integrated Political Crisis Response (IPCR) was triggered, “measures to handle the refugee and migration crisis” and the EU-Turkey deal.

The EUCO 22/15 primarily aims at relocation and resettlement of the refugees that have arrived in Greece and Italy. The member states have to relocate 40.000 individuals that are in need of protection. All the member states will cooperate and take in a certain number of refugees (European Council, 2015a). Besides this, reception facilities will be set up in those frontier member states to aid them in the administrative processes of fingerprinting, identification and registration. Next to this type of assistance comes financial assistance that will be provided to these frontier states. This regulation aims to prevent and stop the flow of illegal migrants coming to the Union. This is done by demanding that member states fully implement the Return Directive, that aims to ensure that member states end the stay of an illegal migrant in the member state by voluntary or forced return (European Parliament and the Council, 2008). Besides this, the EU will also enter into dialogue with the main countries of origin of the illegal migrants. A related point in this regulation is that it spurs on the member states to cooperate in their defense policy and fight against terrorism, as Europe’s security environment has changed drastically the last few years (European Council, 2015a).

One of the other regulations that was enacted was the IPCR, the Integrated Political Crisis Response. These arrangements aim to ensure Europe’s ability to take quick action when a crisis takes place (European Council, 2015b). This is done in three stages: 1. monitoring (that allows information to be shared among member states); 2. information-sharing mode (in which the Commission and EEAS write reports to cover the crisis); 3. extraordinary Council or European Council meetings (proposals can be made with regards to this crisis) (The EU Integrated Political Response-IPCR- Arrangements, 2016).

The next set of measures focused on improving the reception facilities in the so-called hotspot areas of Greece and Italy and the returning of illegal migrants. This will be done in cooperation with FRONTEX, the European Asylum Support Office, the Commission, and the member states themselves. This measure also gives the Commission the capacity to issue further guidance on the obligation of registering refugees properly according to the Dublin regulation. The Dublin regulation must also by now be explained to migrants that they must register in the member state of arrival and that there is no right to shop for the asylum that you like best. This is done to deter people from entering into a human smuggling circle. The regulation also states that the IPCR will hereby be activated to its full extent (European Council, 2015c).

Then one of the more controversial measures that the EU has taken up is the EU-Turkey deal. In this deal, Turkey has agreed to accept the return of illegal migrants who are not in need of international protection and to take back all the migrants that were intercepted in Turkish waters. The EU and Turkey have also agreed to cooperate to counter the massive smuggling of migrants into the EU. The Union has agreed to resettle Syrians from Turkey that fall under the UN Vulnerability Criteria for every Syrian that is returned to Turkey. Next to this, the Union has agreed to a financial compensation of 6 billion to aid Turkey with this burden and to regenerate the talks of Turkish accession to the Union (European Council, 2016).

The most controversial decision that was made in this field is the decision by the Extraordinary Justice and Home Affairs Council. This is one the many configurations of the Council of Ministers that deals with cross-border policies in numerous fields. This decision imposes a certain quota of refugees that each member state has to take in from the 120.000 refugees taken from Greece and Italy (European Council, 2015). What is interesting about this decision is that it was made with QMV. This quota system is highly controversial and many Eastern European countries were strongly opposed to this. This was partly due to the fact that these Christian countries had to accept a large number of Muslim refugees and they worried that this would affect their identity and that of Europe (Archick, 2016). Even though this opposition was known, the EU still imposed the mandatory quota on each member state through QMV. The vote overruled the “no” votes from Hungary, the Czech Republic, Slovakia and Romania (Archick, 2016). This is a rather unprecedented occurrence as this issue is strongly linked to member state sovereignty and territorial integrity (Archick, 2016).

This occurrence sounds like what van Middelaar would see as a “coup” (van Middelaar, 2013). The coup consisted of using QMV instead of consensus when dealing with matters of national sovereignty and therefore overruling four member states.

Before this crisis took place, it was quite difficult to make a decision on refugee policy that might go against member state sovereignty (Guiraudon, 2000). The EU could not just impose its own regulation in this field on the member states, but it can be seen that it actually did do so when the quotas were imposed. However, the Eastern European countries that have voted “no” but were overruled now use strong anti-EU rhetoric and speak of defying the quota system. Hungary has even set up a referendum that took place in October 2016 to ask if the citizens agreed with the EU imposed quota. The answer was an overwhelming “no” but the turnout was too low for it to count (Than, 2016).

What these two case-studies show is that the notion that crises propel member states out of a joint-decision trap is not always true. In fact, a crisis such as the Euro crisis can even lead to a worse situation than before. This crisis did in fact propel the member states forward as they all saw that it was necessary to grant the ECB powers to regulate the market, and to submit their accounting to internal and external control. However, what this crisis also brought forth was an entrenched bargaining deficit on the side of the debtor states. They could do nothing else than accept the austerity and control measures imposed by the creditors. This has led to an asymmetrical joint-decision trap and it is unlikely that the member states will get out of it anytime soon.

The second case-study of the refugee crisis does indeed show that crises may propel the member states forward. This case-study shows that van Middelaar’s theory of fortune and coups is correct in this case. The vote with QMV can be seen as a coup that could only have been attempted when fortune and time were in their favor. But what now rests us is to wait and see how this coup will affect the Union the coming years.

The two case-studies show that Scharpf’s theories on crises and the joint-decision trap do have some truth in them. Right now, the member states have to take in a certain number of refugees, whether they want to or not. This crisis may actually be one that, as long as anti-EU rhetoric does not take over, will strengthen the Union and speed up integration. Therefore, it can be seen that Scharpf’s idea that crises propel the member states forward out of a joint-decision trap and toward more integration does have some truth in it, but not always hold true as it can also result in a more complex situation than before.