|Dr. Artur Nowak-Far, Ph. D., D. J
Warsaw School of Economics
Department of European Law
Wisniowa str. 41/46
Mission of the Republic of Poland to the European Union
Avenue de Tervuren 282-284
COORDINATION OF EUROPEAN POLICY IN POLAND:
THE IMPORTANCE OF PATH DEPENDENCE AND INCREASING RETURNS IN THE DETERMINATION OF EUROPEAN ‘VIABILITY’
Paper presented at the 9th Biennial Conference of the European Union Studies Association
Each EU member state has its own EU policy coordination system. This system is decisive for its European “viability” with regard to EU policies and decision-making procedures. This viability is its general capacity to properly fulfill all Member State obligations arising from acquis and adequately address all problems arising during the process of acquis formulation (i .e. during the negotiation phase of its formation in the Council or in the comitology procedures where relevant committees support the European Commission whenever it has delegated legislative powers). The Member State’s European viability can be considered in terms of four complementary to each other spheres which can be referred to as relational areas:
domestic EU law and policies implementation area, in which the adequate recognition of acquis by relevant national authorities and bodies as well as its complete and effective implementation on the national ground is at stake,
cooperation-negotiation area, where the identification of national interests in the EU decision-making process, their substantiation and ultimate recasting into balanced mandates and persuasive negotiation argumentation later presented at the EU level should occur,
legitimization area, where positions presented by national administration in various EU decision-making gremia are given necessary political support by adequately identified domestic groups of significant interests and/or key national authorities elected by a broad suffrage (i. e. the parliament and, usually, regional and local self-governmental bodies),
litigation area, in which proper protection of national interests within the EU judicial system (i. e. through the Court of Justice or the Court of First Instance) is at stake, irrespective of whether the state appears as a plaintiff or a defendant, or an intervenient, in a given case under these European courts’ scrutiny.
The general viability of the state’ participation in the European Union is a result of fragmentary viability in each of the four relational areas. For example, ineffectiveness and/or inefficacy in the implementation area has a paramount negative impact on the State’s credibility, and hence its negotiation effectiveness at the EU level. At national administration level, it can lead to at least temporary distortions in the distribution of resources in favor of the State’s activity in the implementation and litigation area (at expense of other components of its viability in the EU). For new Member States it is of significant importance to properly address each of the relational viability areas in a balanced and organized manner. They have to create systems which are apt to contribute to their credibility in the EU and properly promote their national interests. This task has become somewhat peculiar under specific conditions prevalent since the early 1990s where prompted by the wave of Euroscepticism, governments reinforced arguments in favor of pursuing “Realpolitik” at the EU level (Mittag and Wessels 2003: 416).
Political processes which lead to the adoption of a given national formula for the EU policy coordination (and hence, of a given equilibrium pertaining to the four areas of a state’s European viability), are often described in terms of path dependence and increasing returns theories. The former theory, in its broader version, holds that earlier decisions and their outcomes determine later course of actions. Thus, they provide for a conceptual map for decision-making processes in the future (Sewell 1996: 262-3). In its narrower, “branching tree” version, the theory of path dependence maintains that this determination of the course of action is self- reinforcing and guaranteed by high cost of its reversal (Levi 1997: 28). Based on a fairly fundamental economic argumentation, the concept of increasing returns holds that with possible economies of scale (with large set-up costs), learning curve benefits, economies of network and adaptive expectations, decision-makers are disinclined to significantly change the existing organizational and political arrangements. They rather are significantly induced to reinforce their stability and further development (North 1990: 95; Pierson 2000: 253-6). Thus, their reactions to any exogenous stimuli tend to draw from the existing mechanisms and procedures and are based on only incremental modifications of existing mechanisms and procedures. They are also reflective of the political position of organizations for which decisions are made (Dimitrakopoulos 2001: 415-9).
This opportunistic behavior giving rise to a great deal of inertia in administrative structures and processes also finds some explanation in the economic theory based on the analysis of transaction costs. This theory holds that specificity of transactions which should be undertaken under uncertainty (which is the case in multilateral EU policy) makes it imperative for their parties to create governance structures that are assessed to have the capacity to “work things out”. If these “protective” structures are adopted, their adaptation to disturbance of exogeneous origins, is remarkably slow. This is attributable to predictable increasing costs of haggling and maladaptiveness of discontinuity of such structures (Williamson 1985:79-80).
Path dependence and increasing returns theories find a worthwhile support in more reductionistic theories of group and individual decision-making. These theories hold that in highly complex contexts decisions are determined by the past course of action because of the fact that past experience is likely to predispose decision-makers to perceive any situation in a given way. Since that experience is an essential part of a learning process, it provides decision-makers with a specific cognitive map (also referred to as “mental map”). This map frames any problem which is to be solved by them thus determining possible decision outcomes (Denzau and North 1994: 3-31). It also makes decision-makers to adopt solutions which are most accessible, i. e. are well recognized or can be explained and recognized with already acquainted knowledge and/or skill (Kahneman 2003: 510-34).
The said reductionistic theories find a very interesting extension in the theory of “communicative dealing” (kommunikative Handeln) formulated by Habermas (Habermas 1987: 185-90). According to his theory, those who are able to intellectually determine the par excellance semantic framework of situations can have a decisive (defining) influence on their further societal ramifications. This influence can primarily be expressed in terms of standard setting, assessment criteria formulation, and validation.
Participation in the European Union is a learning experience to an EU member states’ governmental administrations irrespective of its tenure in this supranational organization. For newcomers, it creates a series of challenges to the viability of their bureaucratic structures and procedures in all four areas relevant for the quality of the country’s participation in the European Union. The most important factors contributing to peculiarity of challenges being now faced by the countries of the 2004 accession include:
institutional density at the EU and national levels (Wright 2001: 151-2), which manifests itself in a large number of participants in the European decision-making and complexity of decision-implementation process involving vast variety of partners and interests to be reconciled,
continuous change of direction and scope of European integration (with regard to both its content and geographical dimensions) making many endeavors undertaken at the EU level unique, and thusly resulting in continuous administrative mismatch between specific European tasks and national capacities required to properly address them (Nowak-Far 2004: 79-82),
complexity and fluidity of procedures (Kassim, Peters and Wright 2000: 8) applicable in accelerated decision-making which very often takes place in various EU committees and working groups associated with frequent dynamic (time-related) mismatch between policy impulses generated at the EU level and their necessary reflection at the national level (Ekengren, 2002: 1-21),
uniqueness of coordination instruments and channels which ought to be used by national governmental administrations for policy-formulation purposes at the EU level and for subsequent implementation of decisions (which also means that even proven national arrangements used to solve policy problems at national level may and often are deficient when applied for the EU-originated tasks).
The objective of this article is to investigate the pattern of selection of EU coordination system in Poland and to assess what has influenced this choice. Based on this finding, the purpose of this article is also to evaluate to what extent the identified pattern was a result of path dependence or increasing returns considerations and to what extent it can be attributed to differently motivated phenomenon (or phenomena). The answer to this question has a paramount importance also in assessing the scope and content of policy-transfer and administrative learning caused by the EU accession between “old” EU member states and its Eastern and Central European newcomers. It can also help better understand fundamental decision-making processes in these countries and to assess to what extend they are similar with this regard to their Western counterparts.
A general view on Poland’s administrative viability at the moment of its 2004 accession
None of the new EU Eastern European member state has its genuinely own public affairs governance system. Their policy-setting and administrative practices were heavily influenced by the tradition of states which throughout the entire 19th century politically dominated this part of the European continent. These dominating powers were Austria, Prussia, and Russia. By 1918, these countries had continued tradition of governing public matters for which ideology of despotisme eclaire provided philosophical and political reasoning.
Poland provides for a very interesting illustration of difficulties and consequent deficiencies resulting from these circumstances. In 1918 the newborn Republic lacked unified administrative tradition (being a successor of Austro-Hungarian, Prussian and Russian ones). As a result, at the very beginning of independence, Polish state apparatus was a more or less chaotic alloy of different procedures and bureaucratic habits. More than twenty years of Poland’s independent development (1918–1939), albeit being a considerably successful an endeavor of building modern-type administration, did not completely overcome this negative heritage.
After the World War II, all the EU Eastern European member states, including Poland, found themselves under the political domination of the USSR. They all were ruled by Communist totalitarian regimes. Their administration was deprived any meaningful regulatory initiative (yet it was granted quite a broad scope of independence in managing its own affairs, however, without being really able to formulate administrative agenda of its own). In policy-setting terms, public administration was completely dominated by the Communist Party and had been treated as an auxiliary instrument used to reinforce the regime’s domination over the society. As a result, governmental administration was a façade rather than a real structural solution serving broad enough legitimate societal interests. Until the 90’s, it had developed strong reactive features but was lacking capacity of being sensible to public needs (and hence, to initiate any political action which would result in a formulation of a new public policy in a given area). This all manifested itself in an authoritarian administrative culture, lack of democratic legitimization of administration’s activities, and the resulting alienation of public administration from the public. Moreover, in the new democratic reality governmental administration had no well-rooted directing values, even such as genuinely apolitical character of civil service (Nowak-Far 2005: 1-14).
From the governance point of view, this had far reaching, negative impact on the quality of public administration which extended beyond the end of Communism (1989). A broad survey of 12 large governmental offices in Poland conducted in 2001-2002 concerning presence of strategic governance in each of them (Nowak-Far 2003: 63-76) indicated, inter alia, that these offices:
encountered significant difficulty in formulating long-run plans based on adequate identification of both internal (organization-specific) and external (policy-specific) needs which could effectively integrate political and purely organizational programs,
hence, were not fully apt to strike a balance between internal and external aspects of their strategic agenda (if they had any at all),
were prone to define their tasks in terms and within the framework of the existing legislation rather than in terms of policy directions (which reflected a weak leverage between political management of the offices covered by the survey and its civil service staff),
very often did not have a systematic approach even to reoccurring policy questions not to mention atypical ones which significantly hampered their ability to address strategic public policy questions (including these which originate from the membership in the EU).
Interestingly, the survey did not provide any strong evidence of continuity in the existing structures and procedures (since these have been subject to series of major overhauls since 1989). These findings made it possible to formulate a more general conclusion that the problems highlighted by the survey can, to a great extent, be attributed to negative strategic heritage of Polish governmental administration. However, this negative heritage manifests itself stronger in individual and group dynamics area than in structural and procedural area.
These general conclusions shade a specially interesting light on the national EU policy coordination area. This type of coordination is new for Eastern European countries public administration. Hence, structures and procedures adopted to address EU-related tasks are also new (in the sense that they all were created in the 90.). They are also specific to the extent that they cannot easily be applied to other, less specific tasks. As a result, in comparison to more “domestic” areas of public administration, replicability of the elements of negative heritage in this field was limited. If at all this negative heritage is present, it relates primarily to individual and group dynamics. Hence, in Poland, since the earliest stage of relationships with the EU, decision-making or control systems have been strongly centralized and autocratic (reflecting strong administrative tradition dated from much earlier Communist and pre-Communist periods), irrespective of the formal structures or content of procedures.
Moreover, in Poland the EU-related administrative area is most likely a feeding ground for completely new key competences. Such competences can be defined as area-specific, difficult to imitate, and difficult to substitute capabilities arising mostly from area-specific, long-term both structured and spontaneous learning. As a result, because of asymmetry of power associated with these key competences, EU-policy serving structures (and even functions within larger organizational structures such as ministries) tend to accumulate and reinforce power. Hence, they are in a position to impose rules on others thus supporting Habermas’ communicative dealing theory.
Development of the Polish EU policy coordination system
The path to the European Union was opened to Poland after the collapse of the Soviet block in 1989 (with first free elections in June 1989). Since that time Poland has maintained diplomatic relationships with the European Communities (and later, consequently to the changes introduced by the Treaty of Maastricht, the European Union). Formally, the process of bringing Poland into the EU started on the 8th of April 1994 with the application for EU membership. Accession negotiation started on the 31st of March 1998. Throughout the period starting in April 1994, the Commission (and the EU member states) made the adjustment of Polish law and administrative practices (understood to be practices of law application) to EU acquis the top priority agenda. As a result, Poland developed a good deal of expertise in the implementation area of its administrative viability. This refers also to its underlying organizational (structural) component used to make acquis implementation accurate and expedite.
The first body specifically tailored to address the needs of “coordination” of Poland’s EU-oriented policy was the Office of Plenipotentiary of the Government for European Integration and Foreign Aid (OPGEIFA) created in 1992 within the structure of the Office of the Council of Ministers. OPGEIFA’s mission was to assure that all assistance projects, such as, most prominently, PHARE, were performed according to the expectations of both the donor EU countries and Polish recipients of this aid. Another increasingly important part of its mission was to prepare adequate procedures for the implementation of acquis in Poland. At the beginning, PHARE-oriented tasks of OPGEIFA seemed politically more important (since this program was a tool for general support for the transformation of Polish economy). Later on, PHARE tasks merged with acquis implementation ones.
The expansion and rectification of acquis implementation agenda in 1995 (in a special White Book of the Commission), was reflected organizationally in Poland by the establishment of the Committee of European Integration (Komitet Integracji Europejskiej, KIE) in August 1996 assisted by a specialized office (UKIE, Urząd Komitetu Integracji Europejskiej) subordinated directly to the Prime Minister and formally being a unit in his Chancellery. KIE was a special formation of the Council of Ministers consisting of representatives of ministries most concerned with the process of European integration. UKIE was an office providing KIE with necessary logistic, analytical, and organizational support. Since its establishment until 2004, UKIE was the main actor coordinating accession negotiation. It also was responsible for gauging and monitoring acquis implementation efforts in Poland. The construction of its tasks guaranteed its role as a front-runner for the entire Polish central administration in relationship with the Commission.
Until the date of accession, law implementation was indeed a priority for Poland. By then, neither UKIE, nor any other administrative body would have designed adequate and fully operational national EU policy coordination system able to address other three components of an EU member state viability in the European Union (Nowak-Far 2004: 144-146). This approach was only reinforced by the Commission, which under the lack of political vision among EU member states regarding their future relationship with the Eastern and Central European countries, applied rather short-sight, “technical” (i. e. focused on acquis implementation) policy to them (Wallace, Wallace 2000: 432). Only with the opening of accession negotiations in March 1998 this approach gradually changed. Evidently in order to enable Poland and other acceding countries to “learn” some missing viability areas, especially that pertaining to cooperation-negotiation within the EU decision-making procedures, these countries were covered by a specially designed information and consultation procedure (operational since 23rd of January 2003, albeit formally established in December 2002). Later, in the moment of signing the Accession Treaty (on 16th of April 2003 in Athens) this procedure was further modified into an “active observatory status”.
Generally speaking, within the information and consultation procedure the acceding states were informed about all legislative initiatives of the Commission (within the 1st pillar of the EU), Member States (within its 2nd and 3rd pillar), and all documents deliberated by COREPER and the Council. They were able to call for a special Interim Committee (consisting of the representative of that state, COREPER members and the representative of the Commission), whenever they were not comfortable with the proposed measures. The Interim Committee served also as a vehicle for consultations on measures adopted by the acceding countries, if these were contested by the existing EU members. The active observatory status meant for the acceding states that they were able to partake in the entire decision-making process in the EU, albeit without regular voting rights. The status had been executed until the date of accession, i. e. the 1st of May 2004 when it was replaced by full membership.
The new situation which emerged for Poland as a result of the application of the information and consultation procedure and later on observatory status caused an organizational reaction of its administration: on the 4th of March 2003 the Council of Ministers adopted a decision designing a new procedure for national decision-making with regard to EU-related matters. It made UKIE the pivotal point of consultations and decision-making, which was to coordinate the flow of information from the EU institutions (most notably from the Council) to respective ministries and back to the EU. Only marginally, the Permanent Representation was to play a role in this information-flow.
UKIE was to adopt, or at least accept, all national positions presented in the Council and COREPER I (i. e. with the exception of COREPER II agenda, where the Ministry of Foreign Affairs was to do it). In each case, proposed national positions were to be finally accepted by another high-profile body called the Preparatory Committee of the Committee of the European Integration, consisting of representatives (normally in the rank of secretaries or undersecretaries of State) of ministries most concerned with EU-related issues. Only in the case of instructions for working groups and committees, relevant ministries were to play more active role in the national position formulation. Even though, UKIE was to be informed about their positions prior to (or at least simultaneously to) providing it to the Permanent Representation. In this system, the Preparatory Committee of UKIE or the Prime Minister were to be the last resort instance to make decisions in the case of inter-ministerial conflict. The resulting system of coordination (or to say strictly, its main component pertaining to 1st Pillar) guaranteed the pivotal role of UKIE as the best informed and “channeling” body specialized in EU-related matters. This system “oriented” around UKIE can be depicted in the following way (continuous line indicates the flow of decisions, truncated one depicts transmission of documentation for information only, whether double line means power-distribution conflict solving or any other type of hierarchical intervention in decision-making process):
Transmission of the final position after it has been agreed or, if necessary, accepted by the head of UKIE
Last resort conflict solving by Preparatory Committee or the Prime Minister Ministersteerpremiera lub ZP KIE
PREPARATORY COMMITTEE OF UKIE
Transmission of the position agreed by relevant ministries międzyresortowego
Agrement between the leading ministry and UKIE (if needed)
Agreement with cooperating ministries
Figure 1: EU POLICY COORDINATION IN POLAND IN THE PREACCESSION PERIOD (ACTIVE OBSERVATORY STATUS)
(POSITION SETTING WITH INTER-MINISTERIAL CONFLICT SOLUTION)
Source: The Office of the Committee of European Integration, System koordynacji polityki europejskiej w okresie poprzedzającym członkostwo Polski do UE. Udział w procedurze informowania i konsultacji oraz status aktywnego obserwatora w procesie decyzyjnym UE (European policy coordination in the period preceding Poland’s accession to the EU: Participation in information and coordination procedure and the execution of active observatory status in the EU decision- making process). Document of 14th of February 2003.
From the point of view of organizational structures, having adopted the system depicted above in Figure 1, Poland did not depart too much from the acquis implementation-oriented system used until the accession to the EU. Only the policy content of the system changed dramatically expanding into the coordination-negotiation component of the national viability. The most striking token of the resulting system was that UKIE only broadened its de iure already existing (but so far not so much used) powers. Assigning to UKIE new tasks was, in our opinion, heavily influenced by foreseeable transactional costs which may have resulted from departing from the structural solution giving UKIE the focal position in the EU-related national decision-making system. Symptomatic of this was a brief public discussion which was held just prior to Poland’s accession to the European Union about possible dismantling UKIE (or, alternatively, making it more lean) and augmenting other ministries with its employees in order to make them perform European functions better. The deciding, and accepted by political decision-makers argumentation for leaving the matters as they were (which meant further expansion of UKIE functions and making the entire system relatively centralized) was that by doing it competence and EU-related human capital would have been lost or, at least, unduly dissolved. Needless to reiterate that that discussion invoked increasing returns and path dependence phraseology. Its argumentation in favor of “inert” solutions was especially persuasive for key Polish politicians during the final stage of accession negotiations when their perception magnified risk associated with any systemic change in the field of EU policy coordination.
4. The present national system of EU policy coordination
4. 1. General view
The resulting coordination system adopted by Poland for EU membership resembles the French or Spanish systems where the focal role was assigned to specialized, extra-ministerial bodies able to make hierarchical interventions. The system in Poland is based on relatively hard-handed coordination within a fairly centralized and hierarchically organized decision-making process with regard to positions eventually presented to COREPER and the Council and relative decentralization and lighter type coordination when it comes to comitology procedures (albeit leaving UKIE with competence to make hierarchical interventions).
Poland’s accession to the European Union was associated with some considerable pressures on the then existing national system of EU policy coordination adopted for the active observatory status. Specifically, this pressure arose because of sectorization of governance at the EU level. At the national level this was reflected in a situation where respective ministries responsible for respective areas of acquis gained more European identity. This means that their acquis implementation functions became naturally associated with their direct involvement in the decision-making at the EU level. Also regional and local self-government administration also became more powerful actor in the national policy-making since it was offered new EU fora for promoting their interests even in contradiction to the positions of governmental central administration.
These changes, however, did not have a commensurate to their importance reflection in the national system of EU policy coordination at the central level. Adjustments, semantically meant to address the increased importance of ministries and self-governmental administration were rather superfluous. It is striking that the resulting system was considerably close to its form used just prior to the date of accession (depicted in Figure 1). This especially holds true with regard to coordination-negotiation area of national EU viability. The only systemic difference is that the Preparatory Committee of the UKIE was replaced by a new body called the European Committee of the Council of Ministers (Komitet Europejski Rady Ministrów, KERM). This new body is a permanent, consulting body serving both the Council of Ministers and the Prime Minister. Its mission is to deal with “all matters pertaining to Poland’s membership in the EU”. KERM is now chaired by the head of the Office of the Committee of European Integration (UKIE). Its members are secretaries or undersecretaries of State in charge of European affairs in respective ministries. Its meetings are held on Tuesdays and Thursdays each week. In practice, the most important function of KERM is the provision of last instance solution of inter-ministerial conflicts of powers and contribution to the definition of high-profile (i. e. the most important for salient national interests) positions to be presented in the Council or COREPER. From the point of view of the Council of Ministers (or its narrower, more focused, formation called the Committee of the Council of Ministers (Komitet Rady Ministrów, KRM) having its meetings weekly on each Thursday) and the Prime Minister (both being the last-instance decision-making authorities), KERM serves as a filter sorting out problems which would otherwise have had to be solved at a higher level. At present (March 2005), it is estimated that so far only 10% of all conflicts related to the coordination of EU policy have had to be solved either by the Council of Ministers or the Prime Minister with the remainder already solved at the level of KERM.
It is worth noting that the line dividing powers of the Committee of the Council of Ministers (KRM) and the KERM is blurred. In practice, a “rule of thumb” is used to assign tasks to either of these bodies. According to this practice, if a given subject matter concerns mere acquis implementation, then it is to be decided by the KERM. In cases of a broader scope KRM (rather than KERM) is the deciding body. In such a case, KRM invites for its meetings a representative of UKIE who has consultative voice. Irrespective of this rule, the distribution of tasks in many cases is rather arbitrary – the ultimate decisions concerning this issue are then reflected in the quarterly work plan of the Council of Ministers.
Within the system, adopted for the EU membership status, UKIE still maintains pivotal role in the day-to-day management of European affairs in Poland, albeit with a slightly more active role of respective ministries. Namely, each ministry has a specialized department of EU policy coordination closely cooperating with UKIE on EU–related tasks. These EU coordination departments are to direct and monitor EU affairs in each ministry. Although subordinated to ministers, they also report to UKIE especially when it comes to acquis implementation (which is a solution meant to prevent ministries from failing to meet EU standards of law approximation and to exert an external pressure on them to fulfill all acquis-related tasks). The EU ministerial departments’ tasks include contribution to any initiative undertaken by UKIE with regard to national position formulation and any tasks within the litigation area of national viability (i. e. to the preparation of documentation needed to defend national interests in the Court of Justice of European Communities or the Court of First Instance).
With regard to comitology, respective ministries have more independence of UKIE than in other areas of national EU policy coordination. In this case, they formulate national positions with no much of UKIE involvement. Instead, UKIE has to be just kept informed. In rather extraordinary cases where there is a need to orchestrate national positions or make any corrections necessitated by salient national interests, UKIE can, nevertheless, undertake hierarchical intervention.
4. 2. The Role of the Ministry of Foreign Affairs
From the systemic point of view, the Ministry of Foreign Affairs (MFA) plays a somewhat ambiguous role in the Polish system of national EU policy coordination. In this system, in the field of some parts of the 1st pillar, MFA is considered equal to other ministries which are responsible for monitoring and direct participation in respective areas of the EU activity. For the purposes of position formulation at the General Affairs and External Relations Council (GAERC) and COREPER II (but only if its agenda deals with EU external relations), it can assume leading role with no direct involvement of UKIE. Similar formal independence MFA with regard to coordination pertaining to the Political and Security Committee and Relex (i. e. committee of external relations attachés responsible for preparing the EU positions concerning foreign policy at the operational level). With respect to these gremia MFA has a leading role. However, for the sake of proper coordination of the entire national EU policy, UKIE maintains its pivotal role also with regard to agenda coordinated by MFA either directly (if because of the broad nature of a given case, MFA should rather be a contributing, not a leading ministry) or indirectly, through KERM. This makes MFA’s position vis-á-vis UKIE somewhat peculiar since UKIE is able to scrutinize the content of MFA’s coordination and, in fact, make specific hierarchical interventions every time it feels MFA encroached its prerogatives.
An interesting token of the MFA’s role in the national coordination of EU policy is that concerning its relationship with the Permanent Representation in Brussels. Formally speaking, the PR remains a part of the organizational structure of the MFA. However, it was rather UKIE that dominated the policy content of the Permanent Representation work.
4. 3. The Role of Permanent Representation
The functions of Polish Permanent Representation do not differ from the functions typically performed by its counterparts established by other Member States. This conclusion refers to both upstream and downstream functions listed extensively by Kassim and Guy Peters (Kassim and Guy Peters 2001: 310-11). The main difference is the evolution of the functions and the context in which they are performed.
The Polish Permanent Representation was established in 1990. Until 1998 it had served mainly as an information channel (providing the central administration in Warsaw with information concerning EU of its concern). It was also responsible for maintaining working relationships with representations of EU Member States. The PR was also a part of a more general system of implementation of the Europe Agreement (i. e. association treaty between the EU and Poland). Within this system, Permanent Representation only complemented functions of the OPGEIFA and since 1996, UKIE. From the EU policy coordination point of view, an essential part of the Permanent Representation’s operational agenda included the provision of early warning with regard to Poland’s relationships with the EU. The political importance of this par excellance information function increased over years preceding the accession. It remains high today.
At the beginning of the observatory status (April 2003), there were 31 officers working at the Permanent Representation (all of them were diplomats employed by the MFA). The number of its employees increased considerably at the date of accession. In May 2004 the number of officers in the PR was 57 which represented 60% of the total number of employees in the PR). Out of these 57 employees, only 22 were career diplomats whereas the remainder represented ministerial officers (including some from UKIE) seconded to work in the Permanent Representation. In November 2004 the total number of employees exceeded 100 (out of which 65 had diplomatic status). In February 2005 the number of diplomats was 62 at the total number of staff 110.
In the pre-accession period, the internal division of the PR was an outright reflection of the predominance of trade issues in Poland’s relations with the EU. The economic unit of the PR dealt with the implementation of the trade provisions and related competition provisions of the Europe Agreement. Already during accession negotiations it became obvious that other areas like agriculture, finance, and JHA would be increasingly important. Accordingly, the staffing of respective sections of the PR dealing with these issues have recently increased. The MFA is a formal employer of all experts seconded by other ministries to the Permanent Representation. (The only exception in this realm is the Ministry of Economy). The overall responsibility for the budget and internal administration of the PR is up to the MFA. This, however, does not translate into supervisory powers. The MFA has lost most of its coordinating functions obtained during the accession negotiations in favor of UKIE. As a result, UKIE is a key organizational player coordinating preparations for COREPER and Council formations negotiations, albeit with significant contribution of the PR.
The resulting shape of the Polish PR’s powers and functions in the national system of EU policy coordination is an effect to some explicit referral to solutions already existing in other European Union Member States, especially Germany. It has, nevertheless, never been a direct imitation since the overall system of coordination in Poland is fundamentally different from that used in the Federal Republic.
5. Legitimisation function of the national system of EU policy coordination
5. 1. Legitimisation vis-á-vis the national Parliament
In March 2004, by virtue of a special Parliamentary Law, a special system of coordination of work related to the EU between Polish Council of Ministers and Parliament was introduced. According to this new system, the CoM is obligated to provide the two chambers of Polish Parliament (called Sejm and Senat) with semiannual information concerning „Poland’s participation in the EU”. It should also present explanatory notes on any EU-related issue to Sejm or Senat upon their request.
According to specific provisions of the 2004 Law, the CoM’s informational responsibilities with regard to Sejm and Senat are very extensive. Namely, the CoM should provide the Parliament with all documentation received from the EU within the consultation procedures with its Member States (including Green Books, White Books, and opinions formulated by any EU institution or body). The CoM should also provide the Parliament with legislative plans of the EU Council, the Commission, and their assessments if such are published by the European Parliament and/or the Council. The CoM’s informational obligations cover also projects of EU legal acts as soon as they are available to the CoM and projects of national positions (with mandatory assessment of their foreseeable impact on the Polish legal system and economy).
The obligation to provide information is extended onto drafts of international agreements to which EU of EC or EU member states are to be parties, drafts of decisions to be made by the heads of states and governments acting within the Council, non-binding acts and orientations concerning EU economic and monetary policy, as well as any “other acts important for the interpretation and/or application of EU law”.
The 2004 Law provides for a special rule regarding the Parliamentary acceptance of national positions concerning EU-related issues. Namely, in 21 days from the notification of the position by the CoM, Sejm and/or Senat can present its opinion(s) on it. If the period for consultations indicated by the EU Commission is shorter than 42 days, than the Parliament should have for its disposal 2/3 of the time allowed. If the Parliament does not present any position within this time, then this is to be considered consent to the governmental decision or position.
Another very peculiar feature of this piece of the national system of EU policy coordination is that the Parliament’s consultations and opinions are not binding for the CoM. Position-formation procedures may even pass by the Parliament, if the decision has to be quick. Notwithstanding, this possibility does not extend onto matters decided by the EU Council unanimously and giving rise to serious ramifications for the national budget. It is important to note that the 2004 Law does not provide for any negative legal consequence for the CoM it fails to abide by its rules. That means that the failure to present the required information to either Sejm or Senat could only give rise to the Parliament’s dissatisfaction rather than to more serious ramifications. If at all, they would have purely political character.
5. 2. Legitimization vis-á-vis self-governmental administration and representative groups of interests
There is no equivalent to 2004 Law piece of legislation which would make the Council of Ministers responsible for providing self-governmental administration (at regional and local level) with information concerning its national policy with regard to the EU. Neither are there such specific legal rules with respect to representative groups of interests. This, however, does not mean that these important partners are excluded from the scope of the CoM’s legitimization efforts.
The most important channel of legitimization is provided by internal rules of respective ministries which require employees responsible for formulation national positions for various working groups and committees to consult them with “social partners”. Another, higher profile forum for the legitimization is, at least potentially, the Tripartite Commission for Social Dialogue (Tróstronna Komisja Dialogu Społecznego, TKDS) whose mission is quite broad and extends onto provision of a platform for dialogue among the Government, self-governmental administration and representative societal groups upon “any case of broad social concern”. However, in practical terms, this means that the TKDS is a general forum for dialogue. As such it has never been used to specifically address any significant issue arising from Poland’s membership in the EU, as yet.
Both legitimization channels have, so far, proven to be ineffective. An attempt to explain this phenomenon was offered in 2004. The survey of Polish Ministry of Agriculture undertaken at the inception stage of Poland’s membership in the EU indicated that (a) the ministry had difficulty identifying relevant fora and partners for the consultations (which was symptomatic of the lack of consultation tradition in the past), (b) that there was no reasonable criteria for selection of consultation agenda, and (c) that there was no enough time left for such consultations considering the accelerated decision-making requirements with regard to EU matters (Nowak-Far 2004: 176-9). Whereas the first two problems are systematic (in the sense that, because of the strategic heritage of the Polish administration, they create a long term improvement agenda), the third one is subject to relatively quicker positive learning process (learning curve). In our opinion, as such, it should eventually be mitigated by experience and arising from the learning curve acceleration of decision-making competences.
Interestingly, UKIE (otherwise being a key player in the entire national EU policy coordination system) is almost absent in the legitimization area of Poland’s European viability. Most likely, this reflects its fairly technical focus and authoritarian style of coordination developed throughout the pre-accession period where accurate and timely acquis implementation was the top priority agenda.
6. Litigation area
UKIE plays the key role in the litigation area of the national EU-related viability. It is responsible for the coordination of all efforts pertaining to defending national interests before the European Court of Justice and the Court of First Instance. This includes responsibility for the collection of relevant material for legal proceedings, formulation of basic orientations regarding the very trial and consultations with respective ministries. These ministries are expected to contribute to these positions and orientations but decisions regarding management of a given trial is up to UKIE (thus giving rise to some copinage technocratique in this field). Only the decision about the very involvement in legal proceedings before the ECJ or CFI is up to the Council of Ministers. The actual defense of national interests is always invested with external of governmental administration legal firms specializing in EC legislation.
The Polish system of EU policy coordination provides for strong argumentation supporting path dependence and increasing returns theorem. Ironically, from a very general point of view, this system is a result of the major overhaul of the entire state system necessitated by the collapse of Communism in 1989 and later extraordinarily strong pressures arising from the process of Poland’s integration with the European Union. This indicates that strategic decisions regarding structures of national administrative governance are heavily influenced by the transaction cost/benefit calculation: if there are high enough rewards, there will be more readiness to almost completely reshuffle the governance system. Upon the lack of further strong enough stimuli, the system develops along the lines predetermined by the original choices, since any departure from that path dependence guarantees at least temporary disequilibria and loss of the already acquired benefits (measured mainly in terms of organizational stability, structure-specific experience and economies of network).
At individual and group dynamics level (pertaining to individual and aggregated behavior of officers employed in public bureaucracy), the Polish system reveals more continuity. Governance habits which can be described as centralization-prone and authoritarian (and which are attributed to Poland’s negative administrative heritage), were transplanted to the new organizational and procedural arrangements having completely unknown in the past functions, such as those related to EU policy-making and implementation. This predisposition to centralization and autocracy served Poland fairly well during its pre-accession years, and were even reinforced by the European Commission which made acquis implementation in Poland (and other Eastern and Central European countries) its top priority agenda. As a result, in the moment of accession, when this agenda expanded onto other three relational areas of Poland’s viability in the European Union (i. e. the cooperation-negotiation, legitimization, and litigation areas), the arrangements adopted to serve did not prevent replication of centralization and autocracy wherever such a replication was possible.
From the theoretical point of view, the assignment of the central role in EU policy coordination to one central coordination body such as UKIE in Poland should, per se, not be considered policy transfer understood to be an imitation of a foreign organizational solution believed to be suitable on a different national ground. It is rather path dependence that explains the direct emulation of all previous system of coordination of EU-related matters in Poland into its form serving information and consultation procedure and observatory status within the European Union.
Path dependence is very visible when considered in terms of inter-area policy transfer i .e. the transfer of organizational arrangements among various relational areas of Poland’s European viability or (to set it in different terms: spill-over effects). It is obvious that heavily centralized systems adopted in the negotiation-coordination and litigation areas represent a direct replication of the system adopted in pre-accession years for acquis implementation. The defining features of this system was the central role of the special Office of the Committee of European Integration (UKIE) and an elaborate, multi-layer hierarchical intervention and inter-ministerial conflict solution system (consisting of the Committee of European Integration, the Preparatory Committee of UKIE, now replaced by the European Committee of the Council of Ministers, and Prime Minister). Only under conditions of full membership in the EU, Poland adopted an arrangement slightly departing from the system in which UKIE had a strong grip on the decision-making process relating to EU matters. This new arrangement allowed respective ministries to formulate and present their positions in comitology procedures. This departure, however, was relatively weak since UKIE has remained the monitoring body in this respect and has the power to make hierarchical interventions and even increased its corrective power vis-á-vis the Permanent Representation. Its strong positions in the entire national EU policy coordination system made UKIE’s dominant role in the litigation area only the natural consequence of its functions in the negotiation-coordination and implementation areas.
Only in the legitimization area applicability of the centralized system in which UKIE plays the pivotal role was impossible (since it would contravene the very purpose of legitimization). This, however, resulted in the establishment of the coordination solution which is the least effective if compared to arrangements adopted in other three areas of Poland’s European viability. With regard to the national Parliament, the rules of the system require that this body should be notified by the Council of Ministers of EU-related documents and decisions. Since the list of these documents and decisions is very long and the Parliament’s resources to adequately deal with them are limited, this arrangement does not serve legitimization purposes well. Even in the countries more experienced with legitimization-focused systems of EU policy coordination, such as Denmark, there is a good deal of evidence that limits-setting is crucial for their effectiveness and efficacy (Blom-Hansen and Christensen 2003: 35-40). They are all subject to diminishing returns principle. This can be depicted in the following way:
Costs marginal cost
number of information
Figure 2: Correlation between benefit from information and number of information
The Figure 2 indicates that the establishment of the present legitimization system with regard to the Parliament is associated with idealistic presumption that with the number of information conveyed by the Council of Ministers to Sejm and Senat, their general support for EU policy will increase. In practice, with no commensurate increase of resources assigned to process this information, the Parliament will not be able to give an adequate feedback. Hence, legitimization is not possible unless the Government adopts a more pragmatic practice of consulting with the Parliament only the most important orientations of its EU policy regarding salient national interests.
It is important to note that there is no evidence that the Polish system of national EU policy coordination serving legitimization needs (with respect to, respectively, the Parliament, self-governmental administration and representative groups of interests) is in any whatsoever respect influenced by path dependence or increasing returns theorem. It is quite new in the system and was motivated quite distinctively from the three other component parts of the coordination system (i. e. serving acquis implementation, negotiation-coordination, and litigation) functions. It does not mean that the Polish legitimization system should not be investigated from the point of view of path dependence and increasing returns theories. Quite opposite, it would provide an excellent survey field upon its further modifications.
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