Decision rules,membership and political centralization in the European Union

The decision to enter the European Union is based on a comparison of the costs of staying out and going it alone, and the costs membership. The latter depend on the degree of preference heterogeneity between prospective members and the Union as well as the decision rules employed for “constitutional” decisions. The same calculus guides the decision, by member states, to shift policies up to the Union level, only now the decision rules refer to centrally assigned policies. Preference heterogeneity makes more inclusive rules optimal in either case while at the same time reducing the attractiveness of membership or the centralization of policies to the EU level, respectively. The analysis complements and extends both traditional fiscal federalism literature as well as the more recent political economics literature on federalism.

Voting Powers and the Efficiency of the Decision-Making Process in the European Council of Ministers

We analyse the efficiency effects in combination with some accepted fairness criteria for the voting games in the European Council of Ministers (ECM) under the qualified majority voting (QMV), before and after the Nice new scheme, in comparison with hypothetical simple majority voting rules (SMV), by jointly examining voting weights and voting powers. The differences between the voting weights and the voting powers increase considering the attitude of the Governments of the Member States of the ECM, to form voting-blocs'—historically that among France, Germany and Belgium and, more recently, the bloc between the United Kingdom and Spain. Their voting powers by blocking proposals result in stalemates and weak compromise with likely benefits for existing well organised interest groups. Unexpectedly, the enlargement of EU from 12 to 15 States, with the diminution of the voting weights of the member countries has not reduced the decisional deficit of QMV, basically because the incentive toward blocs' formation has been reinforced. And, while the power of getting a proposal approved has diminished, the veto-power has remained very high. The effects of the new dual QMV rule, based on a new distribution of votes and correcting the unbalance against the big countries with their demographic weights, for the enlargement to 27 States, seems to go in the same direction. The adoption of a dual SMV, would solve the problems of decision efficiency, with a fairness constraint to protect the major countries. To make this voting rule acceptable one might adopt the Buchanan and Tullock (1962) distinction between constitutional principles to whom the unanimity or QMV might be reserved and post constitutional rules suitable to SMV. Clubs of enhanced co-operation among countries with more homogeneous preferences could also ease the application of SMV.     

An Analysis of Institutional Change in the European Union

Institutional change is guided by rules. In the European Union these rules are given by Art. 250–252 of the Treaty of Amsterdam. We analyze these articles as games in extensive form and characterize and compare the equilibria of these games. The analysis identifies the decisive actors and the conditions under which it comes to institutional changes in the European Union. In addition we analyze the tendencies for centralization inherent in these decision procedures as well as their ability to guarantee conflict-minimizing compromises between the institutional actors. We show that the historical evolution from Art. 250 over Art. 252 to Art. 251 implies an improved position of the European Parliament. Contrary to part of the literature we show that the move from Art. 250 to Art. 252 may have important consequences for the policies to be implemented and that the move from Art. 252 to Art. 251 improved the position of the European Parliament. Hence, our model is able to resolve the empirical anomalies resulting in conditional-agenda setting model by Tsebelis and therefore points to the importance of the sequential structure of the decision procedures.     

European integration assessed in the light of the ‘rules vs. standards debate’

The interplay of various legal systems in the European Union (EU) has long triggered a debate on the tension between uniformity and diversity of Member States’ (MS) laws. This debate takes place among European legal scholars and is also paralleled by economic scholars, e.g. in the ambit of the ‘theory of federalism’. This paper takes an innovative perspective on the discrepancy between ‘centralized’ and ‘decentralized’ law-making in the EU by assessing it with the help of the rules versus standards debate. When should the EU legislator grant the national legislator leeway in the formulation of new laws and when should all be fixed ex ante at European level? The literature on the ‘optimal shape of legal norms’ shall be revisited in the light of law-making in the EU, centrally dealing with the question how much discretion shall be given to the national legislator; and under which circumstances. This paper enhances the established decisive factors for the choice of a rule or a standard in a national setting (complexity, volatility, judges’ specialization and frequency of application) by two new crucial factors (switching costs and the benefit of uniformity in terms of information costs) in order to assess law-making policies at EU level.     

COMPETITION POLICY WITH OPTIMALLY DIFFERENTIATED RULES INSTEAD OF "PER SE RULES VS RULE OF REASON"

Both in U.S. antitrust and EU competition policy, a developmentto a broader application of rule of reason instead of per serules can be observed. In the European discussion the attemptto base competition policy on a "more economic approach" ismainly viewed as improving the economic analysis in the assessmentof specific cases. In this paper it is shown from a generallaw and economics perspective that the application of rulesinstead of focussing on case-by-case analyses can have manyadvantages (lower regulation costs, rent-seeking, and knowledgeproblems), although an additional differentiation of rules througha deeper assessment can also have advantages in regard to thereduction of decision errors of type I and II. After introducingthe notion of a continuum of more or less differentiated rules,we show—based upon law and economics literature upon theoptimal complexity of rules—in a simple model that a competitionrule is optimally differentiated if the marginal reduction ofthe sum of error costs (as the marginal benefit of differentiation)equals the marginal costs of differentiation. This model alsoallows for a more detailed analysis of the most important determinantsof the optimal degree of rule-differentiation. From this lawand economics perspective, competition policy should consistmainly of (more or less differentiated) rules and should onlyrarely rely on case-by-case analysis. Therefore the main taskof a "more economic approach" is to use economics for the formulationof appropriate competition rules.     

布坎南宪政规则理论研究

立宪民主是宪法性规则约束下的一种有限民主,立宪规则理论是布坎南宪政民主理论的核心内容.布坎南相信一套政治和经济活动的宪法性规则可以有效约束政府行为.但是由于布坎南的规则理论太过理想化而招致很多批评,使得布坎南不得不对其规则理论进行不断修正,其规则理论经过了一致同意规则、超多数裁定规则、普遍性原则等几种形式流变.通过对布坎南的规则内容及规则形式流变的研究,有利于我们进一步看清布坎南规则理论的困境和乌托邦色彩,有助于我们深入地把握其立宪民主理论的内容实质.     

After Enlargement: Voting Patterns in the Sixth European Parliament

We examined how voting behavior in the European Parliament changed after the European Union added ten new member‐states in 2004. Using roll‐call votes, we compared voting behavior in the first half of the Sixth European Parliament (July 2004‐December 2006) with voting behavior in the previous Parliament (1999–2004). We looked at party cohesion, coalition formation, and the spatial map of voting by members of the European Parliament. We found stable levels of party cohesion and interparty coalitions that formed mainly around the left‐right dimension. Ideological distance between parties was the strongest predictor of coalition preferences. Overall, the enlargement of the European Union in 2004 did not change the way politics works inside the European Parliament. We also looked at the specific case of the controversial Services Directive and found that ideology remained the main predictor of voting behavior, although nationality also played a role.     

The Human Rights Clause in the European Union's External Trade and Development Agreements

Abstract: Since 1992, the European Union (EU) has included in all its agreements with third countries a clause defining respect for human rights and democracy as an ‘essential element’ of its external relationship. A Council decision of May 1995 spells out the basic modalities of this clause, with the aim of ensuring consistency in the text used and its application. The human rights clause is unique to the EU's bilateral agreements, and now applies to over 120 countries. It represents a new model for EU external relations as well as for international cooperation. The EU plays a leading role in the WTO and international economic relations. The human rights clause will have implications for the development of international rules concerning trade‐related human rights policy.     

The right of withdrawal in the treaty of Lisbon: a game theoretic reflection on different decision processes in the EU

The ways of decision-making within the EU have significantly changed in the last decades: The rule of unanimity has been more and more substituted by majority voting in order to speed up decision-making processes in a Union of 27 heterogeneous member states. A third possibility is now offered by the Lisbon Treaty including a constitutional right of withdrawal. A member state encountering a loss in its benefits caused by a decision made by majority voting may now demand compensating transfers by using the right of withdrawal. It might threaten to leave the EU if the compensation is denied. Hence, does this mean that member states now have regained a negotiation power comparable to the right to veto? Using a game theoretic approach we investigate the amount of compensating transfers to be offered under majority decisions with exit option compared to decisions requiring unanimity.     

Optimal antitrust enforcement: information cost and deterrent effect

This study analyzes the optimal antitrust enforcement rule and, in doing so, presents a model that illuminates two important issues. First, it compares the per se legal and illegal judicial standards to the rule of reason judicial standard in terms of information costs and general social welfare. Second, it seeks to derive the optimal judicial standard that minimizes the problems of under- and over-deterrence. These two issues are closely related because the benefit of additional information can only be measured by its deterrent effects. In this respect, this work synthesizes economic models from decision theory and the public enforcement of law. Lastly, in addition to discussing the optimal information level, we derive the optimal permissiveness of the judicial standard, the optimal burden of proof, and the optimal punishment level. We also analyze how these policy variables are interrelated.     

论美国潜在竞争理论--兼论构筑我国混合合并控制的理论基准

潜在竞争理论作为对混合合并行为进行规制的基本理论,受到各国学者的广泛重视.从各国的司法实践和法律规定来看,以美国和欧盟的反垄断法为主要理论基础,形成了美国潜在竞争理论与欧盟潜在竞争理论两大理论体系,而目前我国学者们普遍应用的是美国潜在竞争理论,但人们在论及该理论时又经常将两大体系的理论混用.因此,有必要将美国潜在竞争理论进行较详细的介绍和分析,以避免混用现象的发生.同时,也可以为设计我国的混合合并控制理论提供有益的借鉴.     

The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand-alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.     

Legitimacy for a Supranational European Political Order—Derivative,Regulatory or Deliberative?

This paper discusses some models purported to legitimise a European supranational legal order. In particular, the author focuses on an application of the so-called regulatory model to the complex structure of the European Community and the European Union. First of all, he tackles the very concept of legitimacy, contrasting it with both efficacy and efficiency. Secondly, he summarises the most prominent positions in the long-standing debate on the sources of legitimation for the European Community. Thirdly, in this perspective, he analyses several, sometimes contradictory, notions of the rule of law. His contention is that we can single out five fundamental notions of the rule of law and that some but not all of them are incompatible with or oppose democracy. Finally, the paper addresses the regulatory model as a possible application of the rule of the law to the European supranational order. The conclusion is that the regulatory model should be rejected if it is presented as an alternative to classical democratic thought, though it might be fruitful if reshaped differently and no longer assessed from a functionalist standpoint of deliberation.     

“It Takes a Coalition”: Coalition Potential and Legislative Decision Making

This article empirically illustrates the value of coalition formation in legislative bargaining. I argue that legislators’ potential to form powerful coalitions, their coalition potential, is essential to their ability to obtain preferred policy outcomes. Using data on the European Union's legislative process, I show that coalition potential significantly increases legislators’ success. Moreover, the value of coalition potential depends on the voting rules used to pass legislation. For example, under the unanimity voting rule, the importance of coalition potential is insignificant because of the veto power held by each legislator.     

CAN RATIONAL CHOICE BE CONSIDERED A GENERAL THEORY OF CRIME? EVIDENCE FROM INDIVIDUAL‐LEVEL PANEL DATA

In the last few decades, rational choice theory has emerged as a bedrock theory in the fields of economics, sociology, psychology, and political science. Although rational choice theory has been available to criminologists for many years now, the field has not embraced it as other disciplines have. Moreover, rational choice scholars have fueled this skepticism of the theory's generality by modeling offender decision making that is one‐sided—large on the costs of crime (sanction threats), short on the benefits of crime. In this article, we directly assess the generality of rational choice theory by examining a fully specified model in a population that is often presumed to be less rational—adolescents from lower socioeconomic families who commit both instrumental (property) and expressive crimes (violence/drugs). By using a panel of N = 1,354 individuals, we find that offending behavior is consistent with rational responses to changes in the perceived costs and benefits of crime even after eliminating fixed unobserved heterogeneity and other time‐varying confounders, and these results are robust across different subgroups. The findings support our argument that rational choice theory is a general theory of crime.     

On the unification of legal rules in the European Union

Unification of legal rules in Europe is not a new phenomenon. However, nowadays, Europe is still an area with many different jurisdictions. This paper studies the process of unification of legal rules in the European Union within a non-cooperative game-theoretical framework. This paper contributes to the understanding of the process by concentrating on the role of the European Commission. In the law-and-economics literature, it is argued that national legal rules will converge more or less spontaneously through the works of legislators and judges. But legal convergence in the European Union is not inevitable: preferences toward legal rules differ across nation-states; substituting a legal system for another one is costly; a coordination problem may arise. We first study the interactions of two nation-states who choose non-cooperatively their legal rules. We shall argue that the action of the Commission is, at first sight, likely to eliminate the coordination problem (under certain conditions). Two factors are at work. First, the Commission has a certain expertise which enables it to propose new and perhaps more efficient rules (so that the choice of unification does not reduce to select a particular nation-state legal system). Second, the Commission may use a system of fines that induces nation-states to abide by its rules (once these rules are adopted by nation-states). Next, we refine our first model: the process of legal unification is viewed as a game where nation-states choose the game that they will play. They choose if they will try to reach an agreement without resorting to the actions of the Commission, or if they will play the game implicitely proposed by the Commission. This captures more precisely the action of the Commission, its ‘right of initiative’’, the publication of proposals in ‘green’’ or ‘white papers’’. In this second model, a coordination problem may arise. JEL Classification C72 · K00     

刑法的认同:问题、方法及机制——由一个重婚习俗引发的思考

在青海省的回族和撒拉族聚居区,近年来重婚习俗重新抬头,致使《刑法》第258条在该地区无法得到普遍认同。在刑法获得认同的方法上长期以来所坚持的规则论与决断论相结合的思维模式,无法实现刑法与民间规则的有效对话,且易在解决刑法认同问题上制造障碍。从青海省回族和撒拉族聚居区重婚习俗的运行情况来看,引入具体秩序论的思维,通过司法在国家制定法与民间规则之间建立沟通机制,是刑法获得认同的重要途径,同时也表明刑法认同在本质上首先应当是一种文化认同。     

Climate Change Policies, Energy Security and Carbon Dependency Trade-offs for the European Union in the Longer Term

Energy policy in the European Union (EU) faces two major challenges. The first challenge is posed by EUs commitment to reduce greenhouse gas emissions to the atmosphere in the context of the international agreement on climate change. The second challenge is to keep ensuring European security of energy supply, while its dependency on external sources of energy is projected to increase. In this paper, two long-term alternative climate change policy scenarios for Europe are examined. In the first scenario, EU reduces carbon dioxide emissions by domestic measures; in the second scenario EU maximizes cooperation with the countries of the former Soviet Union (FSU). Impacts on carbon flows between the EU and FSU and on the external energy dependency of the EU are assessed with an applied general equilibrium model, GTAP-E, whose set of energy commodities is expanded with combustible biomass as a renewable and carbon-neutral energy commodity. The results show that there is a trade-off between economic efficiency, energy security and carbon dependency for the EU. The FSU would unambiguously prefer cooperation.     

Granting the Right to Vote for the European Parliament to Resident Third‐Country Nationals: Civic Citizenship Revisited

The EU grants rights to third‐country nationals (TCNs) and strives to approximate their rights to those of Union citizens. Up to now, the approximation has extended to social and economic matters. This article investigates whether political rights, notably voting rights for the European Parliament (EP), should also be approximated. To this end, the analysis applies Dahl's democratic principles of ‘coercion’ and ‘all affected interests’ as well as Bauböck's principle of ‘stakeholding’ to the position of TCNs in the EU. Against that background, it explores the relevance of arguments for and against granting TCNs the right to vote in European elections and submits that voting rights should be granted to long‐term resident TCNs. The author then proposes including TCN voting rights in the legal framework for EP elections and concludes by suggesting the use of the concept of civic citizenship to express political approximation of TCNs to EU citizens.     

The European Commission's Own ‘Preliminary Reference Procedure’ in Competition Cases?

This article considers the implications of the European Commission, as primary administrative enforcer of competition law in the Union, using its own ‘preliminary reference procedure’, through observations in national court proceedings under Council Regulation 1/2003, to minimise the risks of divergent application of EU anti‐trust rules under the decentralised system of enforcement ushered in by that Regulation. It sets the scene with the relationship between the European Commission and national courts in competition law, before describing the relevant provisions of the Regulation and its accompanying Courts Notice. It then discusses the legal nature of the Commission opinion as a Union instrument. Identifying cases where the Commission has offered observations, it assesses the implications of administrative intervention in judicial decision making. It finds that greater transparency is crucial for legitimacy, legal certainty and maximum impact on consistent application.