1
Chapter 2:
Balancing Integration and Flexibility in the European Union:
Constitutional Dispositions and Dynamics of Coordination
Nicole Bolleyer, University of Exeter and Tanja A. Börzel, Free University of Berlin
The European Union (EU) is a multi-level system with expanding boundaries. The composition of its constituent governments changes over time and with it the institutional architecture structuring their interactions. Despite the system’s increasing complexity through enlargement, the EU is still dominated by multilateral institutions directed towards maintaining the equality of constituent units both in day-to-day decision making as in matters of competence allocation. It has made increasing usage of more flexible mechanisms (e.g. opt-out, mutual recognition and the open method of coordination [OMC]). Nonetheless, we do not find a uniform movement from ‘hard’ EU-wide regulation to ‘soft’ modes of coordination or from multilevel interaction involving all member states to diversified arrangements reflecting the equality of the member states as the constituent units in this confederal system. Party-political incongruence, in contrast, does not play a crucial role.
While member states are governed by different parties, this does not translate into patterns of conflict, since parties are disconnected and do not compete directly across the various arenas.

2
1.
Introduction: Conceptualizing the EU as a Confederation?
Constitutional categories of multi-level government are considered as important for shaping intergovernmental relations and coordination processes (e.g. Watts 1999; Fillipov et al 2004), which, in turn, affect how policies are coordinated within and across multiple levels of government. Drawing on existing categorizations, this special issue has distinguished confederations, whichhave a weak and, in principle, subordinate centre, federalized systems , in which the centre and sub-units share sovereignty and regionalized systems , in which the centre has the finalsay, notwithstanding the presence of sub-national tiers of government with legislative powers that might or might not be constitutionally entrenched.
The classification of the European Union has been a contested issue for decades and by placing the EU next to a range of federalized and regionalized national polities, the special issue raises the question whether the multilevel system of the EU can be usefully compared to federalized or regionalized regimes . It is widely acknowledged that the EU corresponds to the ‘federal principle’ without being a ‘federal state’ (e.g. McKay, 2001; Scharpf 1988;
Sbragia 1993; Börzel 2005; Swenden 2005). Like the US, Canada, and Switzerland, the EU represents what Hooghe and Marks call Type I of multi-level governance, which is characterized by general-purpose jurisdictions. It has a durable jurisdictional architecture in which competencies are bundled and distributed in packages to the constituent governments
(2003: 236-7). The EU’s lack of a monopoly over coercive force, which is often highlighted when discussing the adequacy of comparing state and non-state systems, is of minor importance for its working insofar as its supranational institutions yield significant powers of hierarchical coordination (Börzel 2010). This feature fundamentally distinguishes the EU from other international organizations and facilitates its comparison to national systems – particularly to those that disperse power across multiple governments.

3
But even if we can compare the EU to federal states, is it conceptually convincing to conceptualize it as a confederation , a system with a weak and subordinate centre? The literature that compares the EU with national multilevel systems tells us that the EU is an instance of cooperative federalism, such as Germany (e.g. Scharpf 1988; Börzel 2005), a federal system that stands out in its institutional interdependence when compared to any other long-established federal democracy. This comparison, however, targets the type of vertical power-sharing between the EU as ‘central’ decision-maker and individual member state as implementers in Europeanized areas of competence, while the concept of confederation – as the one of federalized or regionalized regime –seeks to highlight the fundamental, constitutionally defined relationship between ‘centre’ and ‘sub-units’. Taking this analytical perspective, although the supranational dimension (i.e. the ‘centre’) has been considerably strengthened over time, the EU has a much weaker centre and the member states constitute much stronger ‘sub-units’ (Bartolini 2008) than the cooperative-federalist analogy in the literature implies. In fact, it also has a weaker centre than federal systems with strong subunits such as Belgium, Switzerland or Canada (Swenden 2005; Bolleyer and Börzel 2010).
There is still a significant number of policy areas in which the EU has only limited competencies (e.g. external security, welfare state policies). Moreover, exclusive competencies of the EU are scarce (external trade and currency), and in areas of shared competencies the member states maintain their rights to enact national legislation, as long as it conforms to EU law. Thus, we would maintain that the EU can be conceptualized as a confederation.
In the following section, we provide a mapping of the coordination modes in the EU, which substantiates our classification of the EU as confederation. Starting from there, we assess whether and how the EU’s confederal imprint shapes the dominant nature of coordination processes. From there, we move on to the role of party-political incongruence in

4 the EU. In essence, our analysis shows that the constitutional category of confederation is indeed helpful when accounting for the basic dynamics inherent in the European multilevel polity and to put it in the context of other multilevel systems. In line with the first two hypotheses of the special issue, the EUis still dominated by multilateral institutionswhich are directed towards maintaining the equality of constituent units both in day-to-day decision making (H1) as – in the longer term - in matters of competence (re)allocation (H2).
Regarding the final hypothesis (H3), we find that the applicability of the concept of partypolitical incongruence as developed in the context of federal systems is limited, which implies that party-political conflict is of little relevance for the understanding of the EU’s overall dynamics.
2. Autonomy and Coordination in the European Polity – The Dominance of a
Confederal Imprint
The successive weakening of the member states in the course of European integration has been moving the EU more and more away from its initial confederate constitutional imprint, an imprint which, despite these developments, is still pronounced nowadays. While European integration has deepened, the member states have not only created institutions that facilitate joint-decision making in shared areas of competences, a development that led to insightful comparative analyses of federal and EU policy-making (e.g. McKay 2001; Hoornbeek 2004;
Kelemen 2004). They have also developed a repertoire of coordination modes to solve collective problems non-hierarchically within those areas of jurisdiction they still control which reflects the strength of the EU’s confederal imprint. European institutions can be involved in non-hierarchical coordination, which, depends on the willingness of the individual member state governments to participate in the process. Each government maintains a formal ‘exit’ right to refrain from coordination (once an agreement has been

5 entered, it might of course bind participants), in line with the EU’s confederal origin. Thus, the involvement of the Council of Ministers in coordination processes, e.g. in the context of the ‘Open Method of Coordination’, does not make them ‘hierarchical’.The crucial feature is whether individual governments can exit the collective decision-making process (or can refuse to participate in the first place) and choose their own solutions instead. Nonhierarchical modes range from mere policy emulation, over ad hoc coordination,to political agreements to formally binding treaties.In order to assess the basic institutional dynamics and, later on, the relative impact of party-political differences on coordination processes, we systematize the full range of coordination modes (both hierarchical and non-hierarchical).
The following systematization of coordination modes draws on the existing literature of
European governance (Scharpf 2001; Börzel 2007). The relative constraints on individual government action imposed by the different modes in the decision-making and the enforcement stage constitute the main ordering dimension. To solve cross-jurisdictional problems, modes of policy coordination can leave governments next to no leeway for individual action, at one end of the continuum, or grant them maximum autonomy to act unilaterally, at the other end. While studies stressing the EU’s federal nature tend to focus on similarities between federal policy-making and policy-making in Europeanized competence areas (e.g. Scharpf 1988; Hoornbeek 2004; Keleman 2004), comparisons on the level of the
‘polity’ – as suggested by the ‘comparative federalism scenario’ - requires us to look at the full repertoire of coordination modes.
[INSERT TABLE 1]
The most ‘collectivist answer’ to address common challenges is hierarchical or centralized coordination. Supranational centralization and decision-making by qualified majority voting

6 fall into this category. They are hierarchical coordination both regarding decision-making and enforcement stage. Member state governments decide to delegate the power to make collective policies to the central level, be it to regulatory agencies or the supranational legislature. Although they might participate indirectly or directly in central and supranational decision-making processes, member state governments do not have an individual vetoas a result of which they can be bound without their consent and against their individual opposition. This is the case in the EU despite the fact that the member states are still the
“Masters of the Treaties”. Like any national government, the European Commission has been empowered by the member states to take authoritative decisions, e.g. in competition policy, in which the member states have no say. The same is true for decisions of the European
Central Bank (monetary policy) and rulings of the European Court of Justice (Single Market).
Next to supranational centralization , individual member states can also be obliged against their will when the Council decides by qualified majority and they are outvoted (decisionmaking by qualified majority voting ).
Intergovernmental decision-making is non-hierarchical in the decision-stage because each participating government retains its veto. Once agreed upon, however, these decisions are binding either for all those governments were willing to agree (consensus) or if all governments in the system agreed (unanimity). The crucial requirement is that no member state can be bound to new provisions without its consent.
Intergovernmental cooperation brings us to a category particularly prominent in the EU being at least partially regulated by international law: the category includes agreements that are legally binding, although there is no third party authority that can legally force parties into compliance, since the ECJ has only jurisdiction in exceptional cases. This gives the member states a de facto opt-out. They can veto the imposition of intergovernmental sanctions
(Stability and Growth Pact).
i
Moving to the least binding mode that are non-hierarchical both in the decision-making and enforcement stage, intergovernmental coordination refers to

7 weakly constraining agreements, which are neither legally binding nor legally enforceable but which are nonetheless formalized (e.g. OMC). Still, member states are free to both join and comply with voluntary agreements at the EU level. Finally, policy emulation refers to the voluntary and unilateral adoption of measures observed in other jurisdictions without an explicit agreement between different jurisdictions at the EU level.
In essence, while the possibility of centralized and supranational decision-making reflects the EU’s capacity of hierarchical decision-making which indeed conflicts with a confederal logic, we need to consider the full range of coordination modes used in this multilevel system to characterize the European polity as a whole. And such an assessment suggests that these modes are not the dominant ones. Only centralized and supranational decision-making do neither allow for a member state veto in the decision-making stage nor for opt-out possibilities in the implementation phase, while all other modes – to varying degrees - grant member states the possibility to prevent decisions, to avoid participating in decisions or, alternatively, not to ignore them (leaving aside the possibility of member states having no interest in coordination in the first place in those areas that are hardly or not
Europeanized).
3. The Confederal Logic of the European Polity and its Long-term Consequences
Theoretical Expectations: Maintenance or Demise of Multilateralism in the EU?
According to the hypotheses presented in this special issue, the equal constitutional status of the member states as constituent units should favor the dominance of multilateral structures in day-to-day decision-making and a symmetrical (re)allocation of competencies in the

8 medium- and long term. More specifically, if multilevel systems are composed of lower-level units with constitutionally protected powers, this gives them a formal veto with regard to how power in the system is to be distributed and how this distribution should change over time.
This veto cannot be withdrawn by the central level unilaterally if preferences conflict across or within governmental levels, a situation that characterizes the EU as a confederation as well as federal systems (but is absent in regionalized states). As a consequence of this formal status of constituent governments, the creation of multilateral institutions is expected, in which the basic equality of the lower-level units is protected rather than bilateral or less inclusive structures that reflect differences (e.g. economic, cultural) across constituent units.
If this equal status is embedded in decision-making structures, special deals with central-level institutions from which individual units can profit should be relatively rare (H1). As the reallocation of competences (i.e. treaty reform) falls in the category of intergovernmental decision-making,i.e. majority-rule and hierarchical decisions are not possible, multilateralism should be the dominant feature of the EU multilevel structure, which, in turn, should create disincentives against granting opt-outs to individual governments and against a movement towards differentiated integration (H2).
These expectations derived from a constitutional classification of multilevel systems contrasts with the expectations one would derive starting from the particular nature of the EU as a system with expanding boundaries that needs to reconcile increasingly complex interest configuration among its member states. One might argue that the high costs imposed by the highly formalizedmultilateral structures in the EU protecting the equality of member states
(in federal systems these structures have often no statutory basis and constrain governments less) and the increasing number of member state embedded in them (increasing heterogeneity and thereby conflict) should generate incentives to create more flexible modes of

9 coordination as well as formal opt-out mechanisms. If the latter were used extensively, this would weaken the multilateral nature of EU intergovernmental relations. Such a dynamic would, in turn, undermine the symmetry of competence allocation and initiate a movement towards a more differentiated integration process, a line of reasoning that challenges the
Special Issue framework.This expectation makes also sense looking at the basic dynamic inherent in the EU architecture, being ultimately a bottom-up formation. Regionalized systems, as confederations, rest on a constitutional hierarchy favoring one level of government over the other, yet follow a reverse logic, with centralized decision-making naturally being very pronounced reflecting a centrifugal logic of power-reallocation from the central to the regional level. The EU, by contrast, with its centripetal logic features much more prominently those modes that – to varying extents – protect and thus impinge less on the autonomy of constituent governments.
Accordingly, the use of opt-out options or other flexibility-enhancing mechanisms (or the lack thereof) either in the decision-making stage or, later on, in the enforcement stage when collective agreements ought to be implemented, are a crucial indication for how conflicts of interestsbetween constituent units affect the overall coordination dynamics in a system. In how far such mechanisms have been created and are (possibly increasingly) used in the EU help to characterize how the repertoire and the use of coordination mode has changed over time, which allows us to examine the claims put forward in the introduction.
In the following, we explore how the tension between maintaining the equal status of the member states inherent in the EU’s confederative imprint and the coherence of the EU’s legal system, on the one hand, and the increasing heterogeneity of member state preferences, on the other, has affected day-to-day decision-making (H1) and the structures that channel these processes and the dynamic of (re)allocation of formal competencies in the EU (H2).

10
Assessing the Tension between Multilateralism and Increasing Flexibility
Indeed, the EU’s institutionalized modes of coordination are clearly multilateral. The four
EU-related categories as displayed in Table 1 require the participation of all member states in decision-making. In order to facilitate collective agreement, the Treaty of Rome of 1957 introduced qualified majority voting, which was invoked for the first time in 1966 and subsequently expanded by several treaty reforms until the Lisbon Treaty made it the standard decision-making rule of the EU. Where member states have been reluctant to transfer sovereignty rights to the EU, they have established intergovernmental modes that are less intrusive but still require the consent of all to be activated. Due to the limited EU enforcement powers in intergovernmental cooperation and the voluntary nature of intergovernmental coordination, member states can de facto opt-out in the implementation of jointly agreed policies. While this allows for some flexibility, voluntary coordination is placed on formal grounds and clearly specified for particular areas of competence. Although it does not even entail legal obligations, the member state governments have made sure that any policy coordination, even in an exclusively horizontal mode, needs to be authorized by them. On the one hand, the‘principle of conferral’ is to prevent the European Commission from expanding its activities into sensitive areas, in which the member states want to coordinate their policies without transferring competencies to the EU level. Member states try to avoid a dynamic of “creeping competencies” (Pollack 1994), while at the same time ensuring effective problem-solving when confronted with problems that cross jurisdictional boundaries. On the other hand, the member states make sure that voluntary coordination does not result in a Europe à la Carte , where some member states can agree to move ahead while leaving others behind. If the member states cannot agree on joint action even voluntarily, they

11 rather create coordination mechanisms outside EU institutions, as they originally did in the area of external and internal security (European Political Cooperation, Trevi Group), the removing of border controls (Schengen), the Eureka network for research and development, or the harmonization of higher education systems (Bologna Process). Yet, the member states sooner or later decided to incorporate these issues into the Treaties.
While attempts to create flexibility outside the EU institutional framework have been limited and mostly temporary, member states have not made systematic use of ‘soft’ modes of intergovernmental coordination either.Quite on the contrary, there has been a shift towards more hierarchical decision-making. Due to the limitedeffectiveness of flexible, non-binding coordination modes, a shadow of the hierarchy – in principleabsent in the confederal structure of the EU – has been created internally by the subsequent extension of themajority rule in the
Council of Ministers and by strengthening the hierarchical powers of supranational agents, such as the Commission, the ECJ and the ECB (Börzel 2010). The management of the current financial crisis is a case in point. Since intergovernmental cooperation under the Stability and
Growth Pact proved ineffective in ensuring compliance with the Maastricht convergence criteria, the EU adopted a ‘six pack’ of Directives and Regulations under supranational decision-making to enforce greater budgetary discipline and address macroeconomic imbalances.
ii
While the possibility of hierarchical decision-making binding member state government in certain competence areas seems counterintuitive given the basic hierarchy inherent in a confederal constitutional design that in principle prioritizes lower-level units, the highly formalized checks and balance system created by the EU member states hardly allow for special deals among a subset of member states in the day-to-day decision-making.
If the member states wish to engage in collective problem-solving at the EU level, they have

12 to act as a whole. This corresponds to the most basic principle of European integration, the formal equality of member states before EU Law, which mandates that all member states participate in all EU policies (Weiler 1998: 98). It was only the Treaty of Amsterdam of 1998 that introduced the possibility of ‘enhanced cooperation’ allowing a minimum of nine member states to adopt individual policies in an area where all member states had agreed to transfer competencies but without the othershaving to be involved. Enhanced cooperation was originally confined to judicial cooperation in criminal matters and required a unanimous decision of all member states to be activated. The Treaty of Niceof 2000 simplified the mechanism, eliminated the necessary consent of the non-participating members, and extended enhanced cooperation to the area of Common Foreign and Security Policy, except for defence matters, which were included by the Treaty of Lisbon (cf. Stubb 2002; Sion-Tzidkiyahu
2008). While the scope of enhanced cooperation has been subsequently extended, it has hardly been invoked. At the time of writing, member states have only used it in two instances
– divorce law and patents.
While enhanced cooperation allows a subset of member states to move ahead in a policy area for which the EU has received the formal competence, derogations allow individual member states to stay behind. Temporary derogations are quite common in the EU, e.g. in environmental policy where member states with lower levels of socio-economic developments are exempted from the obligation to reduce their CO2 emission for a limited period of time. They pay tribute to differences in state capacity and competitiveness among the member states (Börzel 2009). Since such exemptions have a fixed deadline, they do not undermine the formal unity of the integration process.
The dominance of multilateral institutions that channel day-to-day coordination processes can be expected to have repercussions for the long-term evolution of a multilevel system on a

13 higher level, namely in terms of the basic ways competences are reallocated, when such adaptations become necessary. If multilateral institutions effectively protect the equal status of the lower-level units, competencies should be reallocated symmetrically, assigning or leaving the same set of competences with all lower-level governments, in order not to introduce distinct relationships between individual governments and central institutions, which an asymmetrical competence distribution inevitably implies (H2).
In the EU, this hypothesized protection of a symmetrical competence distribution holds – despiteits subsequent deepening and widening that increased the pressure for more flexibility within the highly formalized multilateral institutions. The level and scope of the
EU’s competencies, on the one hand, and the composition of its constituent governments, on the other, have changedsignificantly over time increasing the heterogeneity of member states and the potential for conflict and deadlock where decisions are taken by consensus and treaty reforms require unanimity. Yet, the member states have largely refrained from engaging in differential integration to reduce intergovernmental conflict. True, the Maastricht Treaty of
1991 abandoned the formal equality of EU member states before EU Law allowing some to retain their sovereignty in particular areas where others agreed to give up theirs. The UK and
Denmark received an opt-out from the third stage of the Economic and Monetary Union.
Unlike the other member states, they do not have to join the Euro even if they fulfil the convergence criteria. The UK also opted out from the Social Charter (which it terminated, however, six years later). In order to ensure the ratification of the Maastricht Treaty,
Denmark obtained another opt-out of defence policy and Justice and Home Affairs. With the
Treaty of Amsterdam, the UK extended its privilege to ‘pick and choose’ from the EU acquis to the fields of Justice and Home Affairs that are related to the free movement of people forcing Ireland to ask for a similar opt-out due to the Common Travel Union it has with the
UK. Denmark, too, asked for a special status regarding Schengen, although, unlike the UK

14 and Ireland, it is member to the Agreement. Sweden, finally, unilaterally decided not to join the Euro without having received a formal opt-out (Stubb 2002; for an excellent overview of the different opt-outs see Sion-Tzidkiyahu 2012). These opt-outs have opened the door for differentiated integration. Yet, the EU is a far cry from becoming a
Europe à la carte
, where member states are granted permanent exemptions from the acquis .
First, despite their growing number, only two of the older and most Eurosceptic member states, the UK and Denmark, have repeatedly asked for special deals by opting-out from certain areas of the acquiscommunautaire .
iii
Unlike the UK, Denmark has de facto opted-in EMU by packing its currency to the Euro and by complying with the EU’s convergence criteria. Likewise, it has adapted its institutions and policies to almost all of the policies the EU has adopted in those areas of Justice and Home Affairs, for which Denmark obtained an opt-out. Finally, the UK has opted in about 50% of the policies the EU has adopted in Justice and Home Affairs, including all civil law measures, judicial cooperation in criminal matters and police cooperation. The UK opt-out is largely confined to EU measures concerning border control, including visa and migration (Sion-Tzidkiyahu 2012).
Second, other forms of differentiated integration constitute instances of multiple speed
Europe , where all member states agree to further integration but some simply lack the capacity to implement the policies adopted as yet (Holzinger and Schimmelfennig 2012). The two most prominent and only examples of such temporary and transitory differentiation, are the Euro, whose adoption requires compliance with the Maastricht convergence criteria, and the Schengen Agreement, which demands effective border control systems to be in place.
While most of the new member states, which joined in 2004 and 2007, respectively, are not part of either Euro- or Schengenland, they are obliged to join as soon as they fulfil the
‘membership’ criteria. Third, the member states make an effort to consult the UK and
Denmark in the decision-making on policies they received an opt-out for because the latter

15 can provide valuable expertise. Likewise, the two countries are very sensitive not to be shut out from important policy decision, they might choose later to formally opt in, in case of the
UK, or informally adopt as Denmark often does (Holzinger and Schimmelfennig 2012).
Overall, the reluctance of the member states to undermine the legal coherence of the EU has largely protected multilateral modes of day-to-day coordination and prevented an asymmetrical allocation of competencies (Stubb 2002; Sion-Tzidkiyahu 2012). While the progressive deepening and widening of the EU has exacerbated the conflict between the majority of member states supporting further integration and more ‘reluctant’ Europeans, such as the UK, Denmark or the Czech Republic, forms of differentiated integration have remained the exception and are mostly temporary. Permanent opt-out have merely been granted to four out of 27 member states, of which the UK is the only one that has been permitted a pick and choose approach to buy-off its veto against a further deepening of
European integration (Holzinger and Schimmelfennig 2012; Sion-Tzidkiyahu 2012). Yet, opt-outs are a double-edged sword. Like enhanced cooperation, they allow the other 26 member states to move ahead with new policies in day-to-day decision-making (secondary law) threatening to exclude the UK from important decisions.
The Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union
(Fiscal Pact), signed by 25 member states on March 2, 2012, illustrates the ambivalence of opt-outs. It is to reinforce the six pack agreed under supranational decision-making by obliging the member states to enshrine a debt-break into their national law, something which is not in the current competence of the EU to ask for. While the Fiscal Pact will apply to the
17 member states that adopted the Euro, it has also been endorsed by eight non-Euro countries, including Denmark and Sweden. Only the usual suspects, UK, and the Czech

16
Republic have not signed onto this intergovernmental treaty. In the case of the UK, this was rather unintended. David Cameron had sought to use the British veto to receive concessions regarding future tax regulation the EU might adopt. Rather than trying to accommodate the
British concerns, the other member states decided to move ahead without the UK, giving it an opt-out from the Fiscal Pact the British government had not asked for since it would not have to comply with the treaty obligations as long as it maintained its opt-out from the Euro. The
Fiscal Pact is an international treaty meant to circumvent the need for a cumbersome reform of the EU Treaties. Nevertheless, it is part of the EU institutional structure since the
Commission is to monitor compliance and the ECJ is to enforce it, even though only the member states can bring legal action against each other.
In sum, similar to soft modes of intergovernmental coordination, temporary derogations, and enhanced cooperation in day-to-day decision-making, formal opt-outs from sovereignty transfers to the EU-level have helped to keep the EU together rather than driving it apart.
Since each member state cannot only veto the (re)allocation of competencies in the EU but also the granting of opt-outs to others, special deals for individual member states have remained limited and helped the vast majority of the member states to deepen European integration without losing those few that are not ready to move along confirming H1 and H2.
4. The Study of Party Incongruence in the EU
Having laid out the basic nature of EU coordination and its development over time, the next step is to assess how far party-political differences affect these dynamics. According to the SI framework, a constitutionally generated shadow of the hierarchy characterizing a confederative polity is expected to create incentives for central-level institutions to play down conflict and ex ante adapt their preferences to avoid clashes with the dominant lower-level

17 units, i.e. in our case the EU member states. This would imply that the disruptive effect of party-political incongruence in the interaction between supranational (e.g. EJC, EP) and intergovernmental institutions (e.g. Council) as well as within intergovernmental institutions should be reduced (H3). However, before we can assess whether the effect of party incongruence is muted and reduced in the EU as confederation, we need to clarify whether we can speak of party-political incongruence in the EU in the first place.
It is widely acknowledged that political parties play a limited role in EU politics, most visible in the analytical angle chosen by theoretically driven work on party politics in the EU.
They tend to choose approaches to US legislative politics as their starting-point and yardstick for the measure of party influence (Hix 2008: 1255) rather than the classical works on party government or on the role of parties in majoritarian conceptions of democracy (Katz 1985).
The latter tend to presuppose a tight electoral connection between citizens and political institutions as provided by disciplined political parties that compete at elections to temporarily take control over these institutions (Coultrap 2005). US parties, in contrast, being organizationally weak and highly fragmented, are a much more fitting comparison to the parties we find on the EU level. Euro parties do not ensure the integration of decision-making arenas and institutions, which simultaneously reduces the capacity of party conflict (i.e. incongruence) to disrupt decision-making and coordination (Bolleyer 2011; Lindberg et al
2008; Rasmussen 2008). In the absence of an electoral connection, the programmes of
European parties are virtually irrelevant at EP elections. Accordingly, works on EU parties focus on the influence of parties within the European parliament (e.g. the support parties can provide to MEPs when operating inside parliament). More specifically, they centre around the relationship between EP party groups, what they can do for their members and how they can influence their behaviour, lacking – as US parties – the most important mechanisms to discipline their representatives, the control over candidate selection, a power that is still with

18 the national parties (Bowler and Farrell 1999; Hix 2008; Lindberg et al 2008; Bolleyer et al
2012).
In essence, since certain necessary conditions for classical party government are not met in the European polity, scholars on parties in the EU changed their analytical yardstick to assess party influence in the EU altogether, i.e. they measure a different kind of influence that does not presuppose mechanisms of party control that are present in national democracies. If the very nature of party influence is different in the EU, this inevitably affects the nature of conflict party-political differences are able to trigger in this system and whether such conflict is likely to dominate decision-making processes able to mute rivalling sources of conflict such as territorially divisions.
In essence, for party incongruence to be present in the EU and affect intergovernmental dynamics, the nature of party competition in the EU needs to be sufficiently similar to party competition in national settings, where the concept was developed. In the following we show that similarities are too limited to sensibly apply H3 on the effect of party-political incongruence on European multilevel dynamics.
III.I Assessing the Pre-Conditions for Party-Political Incongruence in the EU
The implications of party-political incongruence tend to be predominantly assessed in federal systems composed of multiple governments with significant decision-making power.
Incongruence is considered high when rivalling parties rule across different governmental levels (i.e. the party governing in the centre faces partisan opposition in constituent units
(vertical incongruence) and across the range of constituent unit (horizontal incongruence)
(Thorlakson 2007). At first glance, one might argue that the EU operates in a state of permanent and considerable party-political incongruence: it is composed of multiple powerful

19 governments as federal systems are and these governments are ruled by a wide variety of parties. Not only is party-political incongruence given, it is extreme and due to the differences of parties and party systems operating in the member states permanent, compared to federal systems, where even in high-conflict systems we find temporary phases of congruence during which coordination is facilitated.
This line of argument neglects, however, that incongruence often creates tensions in federal and also regionalized systems not only because the parties which control governments are different but also because the party that governs in a range of constituent government also operates as major opposition party to the party in government in the centre (Lehmbruch1976).
Unlike in the EU, the internal operation of the national government and the lower-level governments in federal systems are similar both institutionally and more importantly in their partisan dynamics, i.e. in the basic types of parties that operate in them. This condition is easily overlooked since when we study the effect of party incongruence in various federal systems we can treat such similarities and the ties between parties operating on the regional and national level as a constant. These ties allowequating an increasing ideological difference between parties located on different levels with an increasing conflict potential that is fed by a relationship of competitiveness between governments across levels (vertically) and within levels (horizontally) (Thorlakson 2007; Bolleyer and Bytzek 2009). This condition also holds in face of support for regionalist parties. They might dominate only in individual regions, making the party systems and governments in place in different government units more diverse and thus more similar to the situation in the EU. Yet, at the same time, these regional parties compete with the state-wide parties in national elections (Swenden and Maddens
2009), while European elections remain dominated by national politics (Reif and Schmitt
1980; Marsh 1998; Mair 2000) and do not create a shared frame of reference between parties operating on various levels.

20
One might contend that Belgium, too,lacks a state-wide party system and thus a system of party competition that spans the whole country. Leaving aside expectations of the country eventually falling apart, at least the party systems in the two main regions – Flanders and Wallonia – mirror each other, given their shared history before the state-wide parties split in half, a historically grown similarity that makes the concept of incongruence applicable to
Belgium as whole. Swenden has shown that congruence (long assured by oversized coalition governments on both levels and across the regions) in Belgium has gone down over time, increasingly complicating inter-elite negotiations (Swenden 2002). Still, intra-party linkages and inter-party negotiations are central in holding the polity together (Swenden 2005; see also
Peters 2000). The lacking linkages between parties operating in distinct member states and the limited role of party elites (acting as representatives of particular parties) in negotiating an inter-party compromise in the EU on the ‘central’ level, comparable to the Belgian configuration, mean that party differences do not feature prominently in EU decision-making.
If they feature in decision-making they tend to add to the polity’s considerable fragmentation rather than dominating intergovernmental conflict.
When moving out of the national sphere and into the EU setting, too much diversity undermines the very foundation of what party-political incongruence constitutes in national settings, a source of conflict between governments and institutions that are dominated by similar basic configurations of parties. As Thorlakson(2005) showed in her insightful comparison of party system congruence in six federations (including those with strong regional, non-state wide parties), to the European party system, the EU still stands out in the extent to which completely separateparties operate within different government units and across different governmental levels. Yet, it is the ties between parties that operate across these governments and levels that are essential for the diversity of parties operating in the EU to qualify as incongruence between them. In national democracies, party differences (or

21 similarities) translate in a source of conflict (or harmony)because major rivals that compete within the same governments simultaneously clash across levels or in case the same party dominates in several arenas assure integration(Lehmbruch 1976). In the EU, this condition is not met. Only because parties that govern on different levels are ideologically distinct in some way, this does not mean they directly compete with each other, since national parties compete with other parties ‘at home’ in their national party system, both in national and
European elections. Neither do these national parties operating in different member states relate to each other by wanting different solutions to the same sets of problems (as would be the case in truly ‘European elections’ that are run based on European-wide programmes on
European issues)(Reif and Schmitt 1980; Earnshaw and Judge 2003).
In other words, if the compositions of party systems shaping governments in a multilevel polity are too diverse, and if party competition remains widely contained within each unit and parties remain disconnected across units, this might lead to fragmentation rather than ideological clashes across layers of government. This fits with the observation that national party elites in the member states are opposed to Europe becoming a subject of partisan conflict in their national arenas (Mair 2000), not to mention a Europe-wide politicization of European issue. At the same time, Eurosceptic parties that are opposed to
European integration as such or to its current realization,have often more weight in the EP than their national parliaments. They tend to use this platform to yet again influence their own national discourse by articulating their opposition to the mainstream elites.
An alternative perspective that affects the possibility of vertical incongruence more particularly, leads us back to the source of weakness of Europarties as organizations, a weakness that makes partisan actors operating on the EU level dependent on their national parties.The parties located on the lower- and central levels need to be sufficiently

22 independent as organizations to get into conflict in the electoral arena. In other words, party incongruence presupposes two levels or units that are dominated by different party actors without core positions of one level/unit determined by the other. If this condition is not met, vertical party incongruence is not given. While the Euro-parties (i.e. the party federations on the European level operating outside the institutions) might be autonomous from individual national parties operating in the member states, the control over the selection of candidates for EP elections is still with the national parties. The EP is the main institutional locus through which partisan conflict across levels ought to become manifest when compared to the
Council or the Commission (Lindberg et al 2008). Yet even here it is doubtful that the MEPs contradict their parties in questions of high importance. While in the course of
Europeanization, the supranational logic of EU decision-making has gained more and more weight in institutional terms as compared to the intergovernmental one, the organizational underpinning of the European party system still undermines the independence of MEPs, the latter constituting a precondition for party-political incongruence to exercise an influence. As
Thorlakson puts it: “No sanction that the European party federations or EP party groups possess can compare to the power of candidate re-selection.” (2005: 480).
Reflecting this structural feature, recent MEP surveys show that the MEPs consider the representation of their national parties’ interests as more important than the representation of their EP group’s interests (Farrell et al 2011). And while, technically speaking, an EP party group could expel a whole national delegation (European Parliament 2009) that refuses to follow its lead, this practically does not happen.
iv
EP groups are still rather ad hoc structures and it is in their interest to maintain or, even better, increase its size, since benefits in terms of funds and voting power are distributed proportional to size (Bowler and Farrell 1999;
Earnshaw and Judge 2003).Thus, even when assessing party influence in the EP, where it is most pronounced, results are mixed. Party groups have become more cohesive in their voting

23 behaviour, which is striking given the increasing heterogeneity of these groups as a consequence of enlargement. Yet when being confronted with conflicting positions of their national delegation within their party group in the EP, MEPs tend to follow the national delegation (Hix 2008).
If MEPs as partisan actors have to a wide extent remained extensions of their national parties and if, as argued earlier, those national parties do not engage in multilevel competition comparable to parties in federalized and regionalist systems, party incongruence simply defined as different parties being represented differently in institutions (that located on the same or across different governmental levels) does not significantly disturb coordination processes. Although diversity of partisan actors involved in EU decision-making is high, recent work on the influence of party politics in the EU finds little partisan influence in the electoral arena, given that the composition of the core institutions – not only the EP, but also the Council and Commission - is shaped by national (i.e. territorial) politics (Lindberg et al
2008; Hagemann and Hoyland 2008; Talberg and Johansson 2008; Lindberg et al 2008;
Wonka 2008). This evidence regarding the weakness of European parties does not support
H3, which expects the disruptive effect of party-political incongruence in the interaction between European institutions and the member states to be reduced due to the constitutional hierarchy favouring the member state level. Instead, our analysis implies that the concept of party-political (in)congruence as developed in the study of federal democracies is not applicable, since several crucial pre-conditions are not met finding most visible expression in the weakness of the European party federations.

24
5. Conclusions
Despite the EU’s increasing complexity through enlargement, the EU is still dominated by multilateral institutions directed towards maintaining the equality of constituent units both in day-to-day decision making as in matters of competence allocation. It has made increasing usage of more flexible mechanisms (e.g. opt-out, mutual recognition and the open method of coordination [OMC]). Nonetheless, we do not find a uniform movement from ‘hard’ EUwide regulation to ‘soft’ modes of coordination or from multi level interaction involving all member states to diversified arrangements. While the EU’s heterogeneity has increased over time, this trend has not led to the emergence of a
Europe à la carte either, where member states systematically opt out from areas subject to hierarchical modes of decision-making.
Accordingly, the first two hypotheses of the special issue that derived expectations regarding the basic nature of day-to-day decision making and patterns in the reallocation of competences starting from the EU’s constitutional, confederative imprint found support. This, in turn,stresses parallels between the EU and federalized systems, two types of regimes that are built around the protection of the constitutionally guaranteed status of constituent units.
While indicating the usefulness of comparing the EU with other multilevel systems rather than adopting an approach starting out from a sui generis assumption, our analysis also shows that basic constitutional categories– rough and simplistic as they might be – can help us to grasp the basic dynamics in multilevel systems that are linked to their constitutional imprint.
Interestingly, in the case of the EU the hypotheses derived from this constitutional perspective were not necessarily intuitive. Given the nature of the EU as a polity with expanding boundaries that over the last decades had to accommodate an increasingly complex interest configuration among its members with every round of enlargement, one might have expected a far stronger push towards differentiation than found in our analysis.

25
While we see parallels between the EU and federalized multilevel systems with regard to constitutional dynamics, H3 could not be applied. Although we have government units embedded in a multilevel structure and dominated by different parties, this diversity of parties as such is insufficient to translate into conflict, if parties are disconnected and do not compete directly. Neither do similarities under such circumstances necessarily translate in harmony.
Party incongruence is more than differences across parties. It presupposes linkages between parties that operate in a multilevel system constituted by a shared frame of reference regarding the nature of conflict and the issue dimensions along which competition between them evolves, as we find it in national federal democracies, in which the concept of party incongruence was first applied.

26
References
Bartolini, Stefano (2005) Restructuring Europe: Centre Formation , System Building and Political
Structuring between the Nation-State and the European Union . Oxford, Oxford University
Press
Börzel, Tanja A. (2005) 'What Can Federalism Teach Us About the European Union? The German
Experience', Regional and Federal Studies 15, 2:245-257.
Börzel, T. A. (2007) EU Governance - Verhandlungen im Schatten von Hierarchie und Wettbewerb.
In Tömmel, I. (Ed.) Die Europäische Union: Governance und Policy-making
(PVS
Sonderheft 40), Wiesbaden: VS Verlag für Sozialwissenschaften.
Börzel, Tanja A., ed. (2009) Coping with Accession to the European Union. New Modes of
Environmental Governance , Houndmills: Palgrave Macmillan.
Börzel, Tanja A. (2010) 'European Governance - Negotiation and Competition in the Shadow of
Hierarchy', Journal of Common Market Studies 48, 2:191-219.
Bolleyer, Nicole (2011) Party Linkage and Policy Coordination, Governance 24 (3): 467-492.
Bolleyer, Nicole and Evelyn Bytzek (2009) Government Congruence and Intergovernmental
Relations in Federal Systems’, Regional and Federal Studies, 19 (3): 371-97.
Bolleyer, Nicole and Tanja A. Börzel (2010) Non-Hierarchical Policy Coordination in Multi-level
Systems, European Political Science Review 2 (2): 157-185.
Bolleyer, Nicole, Siim Trumm and Susan Banducci (2012) Towards an Organizational Perspective on
Party Funding: Explaining Financial Transfers from MEPs to their National Parties, European
Journal of Political Research, Online First August 28.
Bowler, Shaun and David Farrell (1999) Parties and Party Discipline within the European Parliament:
A Norms-Based Approach, in: S. Bowler, D. Farrell and R.Katz (eds) Party Discipline and
Parliamentary Government, Columbus: Ohio State UP, 208-222.
Coultrap, J. (1999) From Parliamentarism to Pluralism: Models of Democracy and the European
Union's `Democratic Deficit', Journal of Theoretical Politics 11 (1), 107-35.
Earnshaw, D. and S. Judge (2003) The European Parliament , New York: Palgrave.
European Parliament (2009) Rules of Procedures of the European Parliament, www.europarl.europa.eu/, date accessed January 1 2011.
Farrell, D., Hix, S., Scully, R. 2011. ‘EPRG MEP Survey Dataset: 2011 Release’, http://www2.lse.ac.uk/government/research/resgroups/EPRG/MEPsurveyData.aspx, date accessed 20/10/2011
Hagemann, S. and B. Hoyland (2008) Parties in the Council? Journal of European Public Policy 15
(8), 1205-21.
Hix, Simon (1998) Elections, Parties and Institutional Design: A Comparative Perspective on
European Union Democracy, West European Politics 21 (3), 19-52.
Hix, Simon (2008) Towards a Partisan Theory of EU Politics, Journal of European Public Policy 15
(8), 1254-65.
Holzinger, Katharina, and Schimmelfennig, Frank (2012) Differentiated Integration in the
European Union: Many Concepts, Sparse Theory, Few Data, Journal of European
Public Policy 19, 2:292-305.
Hooghe, Lisbeth, and Gary Marks (2003) Unraveling the Central State, but How? American
Political Science Review , 97 (2): 233-43.
Hoornbeek, John A. (2004). Policy-making Institutions and Water Policy Outputs in
The European Union and the United States: A Comparative Analysis. Journal of European Public Policy 11 (3): 461-96.

27
Kelemen, Daniel (2004) The Rules of Federalism, Institutions and Regulatory Politics in
Europe and Beyond, Cambridge: Harvard UP.
Lehmbruch, Gerhard (1976). ParteienwettbewerbimBundesstaat , Stuttgart: Opladen.
Lindberg, B., A. Rasmussen and A. Warntjen. 2008. Party Politics as usual? The Role of Political
Parties in EU Legislative Decision-making, Journal of European Public Policy 15 (8), 1107-
26.
Mair, Peter (2000) The Limited Impact of Europe on National Party Systems, West European Politics ,
23: 27-51.
Marsh, Michael (1998) Testing the Second order Election Model after Four European Elections,
British Journal of Political Science 28: 591-607.
McKay, D. (2001) Designing Europe. Comparative Lessons from the Federal Experience. Oxford:
Oxford UP.
Pollack, Mark A. (1994) 'Creeping Competence: The Expanding Agenda of the European
Community', Journal of Public Policy 14, 2:95-145.
Rasmussen, Anne (2008) Early Conclusion in the Co-decision Legislative Procedure of the European
Union, EUI Working Paper.
Reif, Karlheinz and Hermann Schmitt (1980) Nine Second Order National Elections: A Conceptual
Framework for the Analysis of European Election Results, European Journal of Political
Research 8 (1): 3-44.
Sbragia, Alberta (1993) 'The European Community: A Balancing Act', Publius 23, 3:23-38.
Scharpf, Fritz W. (1988) 'The Joint-Decision Trap: Lessons from German Federalism and European
Integration', Public Administration 66, 3:239-278.
Scharpf, Fritz W. (2001) 'European Governance: Common Concerns vs. the Challenge of Diversity', in C Joerges, Y Mény and JHH Weiler (eds), 2001: Symposium: Responses to the European
Commission's White Paper on Governance, Florence: European University Institute, Robert
Schuman Centre for Advanced Studies,
Sion-Tzidkiyahu, Maya (2008) 'Opt-Outs in the Lisbon Treaty: What Direction for Europe à la
Carte?', European Journal of Law Reform 10, 4:497-513.
Sion-Tzidkiyahu, Maya (2012) 'Europe à la Carte. Comparing the Paths of Opt-Outs in the European
Union ' , Hebrew University, Jerusalem.
Stubb, Alexander C. (2002) Negotiating Flexibility in the European Union. Amsterdam, Niece and
Beyond , Basingstoke: Palgrave.
Swenden, Wilfried (2002) Asymmetric Federalism and Coalition-Making in Belgium, Publius: The
Journal of Federalism 32 (3): 67-87
Swenden, Wilfried (2005) What - if anything - can the European Union learn from Belgium
Federalism and Vice Versa? Regional and Federal Studies 15 (2):187-204
Swenden, Wilfried and Bart Maddens (eds.) (2009) Territorial Party Politics in Western Europe,
Basingstoke: Palgrave-Macmillan.
Tallberg, J. and K.M. Johansson (2008) Party Politics in the European Council, Journal of European
Public Policy 15 (8), 1222-42.
Thorlakson, L. (2005) Federalism and the European Party System. Journal ofEuropean Public Policy ,
12(3): 468-487.
Thorlakson, Lori (2007) An Institutional Explanation of Party System Congruence: Evidence from
Six Federations, European Journal of Political Research 46 (1):65-95.
Thorlakson, L. (2009) Patterns of Party Integration, Influence and Autonomy in Seven
Federations, Party Politics 15 (2), 157-77.
Weiler, Joseph H. H. (1998) The Constitution of Europe – Do the New Clothes have an Emperor?
,
Cambridge: Cambridge University Press.
Wonka, A. (2008) Decision-making Dynamics in the European Commission: Partisan, National or
Sectoral? Journal of European Public Policy 15 (8), 1145-63.

28
Acknowledgements: The first version of this article was written during a Marie Curie
Fellowship at Leiden University held by Nicole Bolleyer (IEF project number 236894), generously funded by the European Commission. We further thank Wilfried Swenden, Siim Trumm and the anonymous CEP referee for their helpful feedback on the final version. i In the case of the new Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union
(Fiscal Pact), signed by 25 member states on March 2, 2012, infringements of the balanced budget rules can only be brought to the ECJ by another member state. ii http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/898 , last access February 27, 2012. iii The UK, Poland, and the Czech Republic received exemptions from the Charter of Fundamental Rights in the
Lisbon Treaty. However, the three opt-outs have not had any consequences yet and their legal implications are still unclear. iv Individual MEPs have been expelled though.

29
Table 1: Hierarchical and Non-Hierarchical Coordination in the European Union
Coordination Mode
Centralized and Supranational Decisionmaking
(legally binding and enforceable; no veto, no opt-out)
Intergovernmental Decision-making
(legally binding and enforceable; veto in decision-making but no opt-out in implementation)
Nature of Decision-Making Process and
Competence Areas a) Authoritative, centralized decisions of European Court of Justice, European Central Bank, European Commission b) European laws adopted by Community Method under co-decision (initiative Commission only, veto of EP, majority rule in Council, ECJ has judicial review (e.g.
Single Market)
European laws adopted by Community Method with unanimity of member state governments in Council and no veto of EP, ECJ has judicial review (e.g. taxation)
Intergovernmental Cooperation
(legally binding & only partially enforceable; veto in decision-making and de facto opt-out in implementation)
Intergovernmental Coordination
(legally non-binding & not enforceable; no veto in decision-making but de facto opt out in implementation)
Unilateral Emulation
(no involvement of EU level)
Autonomous Decision-making
Initiative Council only or shard with Commission, unanimity in Council, EP only informed or consulted; ECJ has only jurisdiction in exceptional cases (e.g. foreign, security, and defense policy); sanctions to be vetoed by qualified majority of member state governments (e.g.
Stability and Growth Pact)
Open method of coordination agreement on legally nonbinding guidelines by qualified majority of member states, limited role of Commission (proposals), and EP
(consulted), no role of ECJ); peer review (areas which are not or hardly Europeanized: economic policy, labor, employment, social policy, public health, industry, culture and education)
Adoption of policy solutions by individual governments observed in other jurisdictions (areas which are not or hardly Europeanized)
No coordination across jurisdiction (areas which are not
Europeanized)