Political Collaboration under Pressure: Some lessons from the European Arrest Warrant Diane Payne*, University College Dublin with George Andreou, University of Athens Jussi Kinnunen, University of Helsinki Jane O’Mahony, University of Canterbury EUSA 2005 Austin, Texas * E-mail: Diane.Payne@ucd.ie Introduction In recent years, the area of Justice and Home Affairs (JHA) has become a top priority on the EU agenda. Even at a glance, one is struck by the speed with which policy issues within this broad policy area, which were usually seen as the last remaining preserve of the individual member states, are increasingly perceived and identified as European-wide policy concerns. In particular, this research paper focuses the analysis on the political negotiations for the European Arrest Warrant (EAW) framework decision. The fine balance between security, freedom and justice in the newly enlarging Europe is being rigorously tested in the current pervasive climate of fear, which is fuelled by the "global threats" of terrorism and cross-border crime. The negotiations for the European Arrest Warrant provide an excellent example of how these contrasting pressures can play out within the arena of EU policy making. In the first part of this paper, the historical context for the emergence of the European Arrest Warrant negotiations is presented. The next section presents the analytical approach used in this research, which involved the application and comparison of different explanations or models of policy making. Since the 1980s, several models of collective decision making have been developed that provide far reaching insights into the dynamics of decision making processes (for example Bueno de Mesquita et al 1985 , Stokman and Van Oosten 1994 ). The main differences between the models concern the assumptions they make regarding the behaviour of the actors involved in the decision-making process. On the basis of the accuracy of the models’ forecasts of decision outcomes, we can make inferences about the relevance of the influence strategies posited. The empirical research first examined the policy preparatory stage at the national level and in particular focused on three small member states, Greece, Ireland and Finland. This research illustrates the strong cross-national differences that exist with regard to the level of centralisation, as well as the level of transparency, which characterises the processes of EU policy preparation in the JHA arena in each country. Following this, the analysis focused on the decision-making phase at the European level for the European Arrest Warrant. The application of the modelling approach allows an insight into the kind of bargaining across issues, as well as the likely gains and losses incurred by the member states involved in these negotiations. JHA and the European Arrest Warrant Decision-making in Justice and Home Affairs (JHA) was substantially reformed with the signature of the Treaty of Amsterdam (which came into effect in 1998). The Treaty of Amsterdam brought certain areas within the Community legal order (the First Pillar), namely policy on visas, asylum, immigration and other policies connected with the free movement of persons. The Treaty stipulated the measures to be taken by the Council with a view to the progressive establishment of an area of freedom, security and justice within five years of its entry into force. The Treaty of Amsterdam laid down that, for a transitional period of five years following its entry into force, the Council would in general act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament. After this period (end 2002), the Council could act on proposals from the Commission, which acquire the sole right of initiative. From this point onwards, decision making would also be by codecision and directives, regulations and decisions would replace common positions, joint actions and conventions. However, policies on police and judicial cooperation in criminal matters (including the European Arrest Warrant) continue to fall under the Treaty of European Union or Third Pillar’s jurisdiction. According to the Amsterdam provisions on police and judicial cooperation in criminal matters, the Union’s objective is to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the member states in the field of police, judicial cooperation and criminal matters and by preventing and combating racism and xenophobia. These objectives will be achieved in a number of ways: through closer cooperation between police forces and other authorities such as Europol, between judicial and other competent authorities and through the approximation, where necessary, of rules on criminal matters. Policy making in the third pillar is intergovernmental, i.e. decisions are taken unanimously by Council (Regan, 2000, 5). The legal instruments of the new Third Pillar (common positions, framework decisions and conventions) are also binding on member states but without direct effect. Negotiation in the EU’s Third Pillar normally takes place at four main levels, namely: approximately 25 Working Parties in the field of police, customs and judicial cooperation; the Article 36 Committee (also known by its French acronym CATS) composed of national senior officials from the 15 Ministries of Justice and Home Affairs, the Committee of Permanent Representatives (COREPER II), composed of Ambassadors or Permanent Representatives , and the JHA Council of Ministers. Although the European Council was involved in the negotiations at certain stages, European negotiations on the European Arrest Warrant took place at three levels: the Article 36 Committee, COREPER II and the Justice and Home Affairs Council of Ministers. The European Arrest Warrant replaced existing extradition procedures on 1st January 2004 for all EU member states . The warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. The immediate impetus for the European Arrest Warrant lay in the terrorist attacks on the United States on 11th September 2001. The terrorist attacks not only highlighted the importance of effective EU measures on internal security, but also put enormous pressure on the EU’s justice and home affairs’ decision making system to produce substantial legislative action in a very short period of time (Monar, 2002, 121). The substantial legislative action included a Framework Decision on Combating Terrorism and a Framework Decision on the European Arrest Warrant, which would replace national extradition procedures. The idea for a European Arrest Warrant framework decision was first put forward in the Tampere European Council Conclusions of 15th and 16th October 1999. Until 11th September 2001, however, while the proposal for an arrest warrant had been in preparation, progress on achieving this objective had been extremely slow. September 11th provided a political window of opportunity for the introduction of the proposal and created considerable political momentum and pressure on member states to achieve agreement. Table 1: Events at the European level leading to agreement on the EAW Date Event 9 September 2001 European Commission adopted proposal 20 September 2001 JHA Council set deadline for agreement by 6th December 2001 21 September 2001 European Council 16 October 2001 JHA Council 19 October 2001 Informal European Council in Ghent 17 November 2001 JHA Council 6/7 December 2001 JHA Council reached agreement across all states except Italy 11 December 2001 Italy agreed to proposal 6 February 2002 European Parliament voted and approved proposal 13 February 2002 Six member states announced plans to introduce the European Arrest Warrant one year earlier than necessary In fact, on the 20th September, the Justice and Home Affairs (JHA) Council announced its determination to reach agreement on the Terrorist package, which included the warrant, by 6th December 2001. Actual negotiations between the member states were started on October 1st 2001 and while most of the controversies were resolved in the Article 36 Committee , there were also bilateral meetings at a ministerial level, as well in the COREPER and JHA Council. Fourteen of the EU member states reached an agreement at the Laeken meeting 6th-7th December 2001 and finally, an agreement which included all fifteen member states, was reached on 11th December 2001. The EAW came into force 1st January 2004. This speed and determination underlying the decision-making was remarkable in the context of JHA negotiations to date. According to Monar, ‘the agreement on the warrant represented a major breakthrough for the principle of mutual recognition in criminal matters’ (Monar, 2002, 131). An arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least twelve months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. In addition, a list of 32 offences (including terrorism, homicide, fraud, acts of trafficking in human beings and racism) give rise to surrender without verification of double criminality of the act, provided they are punishable in the issuing Member State by a custodial sentence of a maximum of at least three years. A number of member states and the Commission had hoped for the total abolition of the requirement of dual criminality (that the offence for which extradition is sought is recognised and penalised by both the requesting and requested states) but several member states were opposed to this and the above compromise was reached. The European Arrest Warrant also raised constitutional issues for some member states with regard to the possible extradition of their own nationals. The Analytical Approach The aim of this research is to examine and explain how the European Arrest Warrant framework decision was negotiated at the national and the European levels. In particular, the case studies for this research were guided by the following questions: * How do the stakeholders of the member states organise themselves at the domestic and European levels to ensure effective own policy position preparation and subsequent negotiation? * How do the stakeholders of the member states negotiate their policy positions at the domestic and European level? With regard to the first of these research questions, the rationalist literature suggests there may be both formal and informal mechanisms for understanding the nature of policy co-ordination between policy actors in a policy network (Torenvlied and Akkerman, 2001, Raub, 1997). One mechanism is the existence of formal, institutionalised procedures for monitoring and sanctioning. A second mechanism is the existence of informal, cohesive policy networks of decision making. With regard to the second of these research questions, this research suggests that the key to understanding policy decision outcomes is to focus on the dynamics underlying the collective decision-making process. The policy process is perceived as a chain of collective decision-making processes around important issues. In such processes, outcomes are determined by the interplay of stakeholders with varying capabilities, preferences and levels of salience to shape the collective policy outcome. These stakeholders are willing to mobilise their capabilities, only if the issues are of sufficient interest to them and if their preferred outcome deviates from the one expected. In the following discussion of the research findings of the case studies, we first briefly discuss the model guided approach to data collection, applied for this research. This is followed by a discussion of the main research findings for each of the two research questions identified above. A cross-national, comparative analysis of the negotiations of the European Arrest Warrant (EAW) at the national level for Finland, Greece and Ireland is presented, followed the discussion of the analysis of the EAW negotiations at the European level. The final section draws out the main conclusions for this research. A Shared Research Design In this research, we apply a number of decision making models to examine the nature of the negotiations at the national level across the different new and old member states and at the European level. The application of this modeling approach requires a careful selection of the main policy issues involved (Thomson et al., 2002) Each of these issues belongs to one and only one decision set. The policy issues are represented as one-dimensional continua on which both the outcomes and the policy preferences of the actors can be represented. Following the selection of controversial issues, experts are used to identify the list of actors for whom these issues were salient and the list may include both public and private actors. In any case, this list includes actors who are well resourced to affect the outcome of the negotiations, that is the final decision(s) taken. The importance of an issue for an actor is denoted by the salience (importance) this actor attaches to the issue. The outcome on the issue that an actor desires is denoted by that actor's policy position on the issue. The policy position refers to the policy that is preferred by the actor, while the salience refers to the relevance of the issue in question compared to other (perhaps unspecified) issues. These two elements, position and salience, are combined in a utility function for each actor. To be able to do so, we need two auxiliary assumptions: (1) unidimensionality of the issue(s); the policy position of an actor on an issue can be represented as a point on a one- dimensional continuum, (2) the preference of an actor is a single peaked function. The utility function specifies the value that the actor attaches to each feasible alternative outcome on the issue in question. The policy position denotes the point on the continuum that has greatest utility for the actor while the utilities of the other alternatives are assumed to be a function of their distance from the actor's most preferred position, taking the salience into account (Bueno de Mesquita & Stokman, 1994). Knowing the issue(s), the policy positions and the attached salience of all the actors involved, we need a third element that enables us to model the decision-making process, the capability of the actors. The capability of an actor is its ability to influence the decision-making process in such a way that the final outcome will be as close as possible to its preferred position. The capability of actors to influence policy outcomes needs to reflect both their formal decisional power, and their informal weight in the decision- making process. The formal decisional power of the actors can be derived from their relative weight given the formal decision-making procedure in combination with the specific decision rules in force, whereas their informal weight is determined by many factors. The most important of such factors include the degree to which each actor has timely access to the decision-making and the various resources each actor can mobilise in effectuating that access (Mokken & Stokman, 1976). These resources may include such features of the decision-making process as access to exclusive or limited information and the mobilisation of supportive forces to prevent certain outcomes. The Modelling Approach The bargaining models used to explain decision making in this analysis differ from other procedural approaches in their focus on the formal and informal means by which actors exert influence. Formal decision making rules still matter in terms of accounting for the capabilities of actors, i.e. the power of each actor to influence the outcome. However, actors can also use other more informal means to influence outcomes, such as the power to influence other actors by persuasion, bargaining skills, levels of information and trust between actors. The bargaining models used in this analysis focus on how these capabilities are deployed through the particular modes of interaction between actors: the use of exchanges or challenges, through which initial positions of stakeholders are transformed into voting positions in the final voting stage. On the basis of the accuracy of the models’ forecasts of decision outcomes, we make inferences about the relevance of the influence strategies they posit. The compromise model predicts the collective decision outcome as the mean of all actors’ weighted positions, capability and salience. This model ignores the differences of utility between actors and of any exchanges in positions during negotiations (Stokman and Van den Bos 1992, Payne and Bennett, 2003). The exchange model includes power and salience, as in the compromise model, but also adds consideration of the utility of each actor for different positions (Stokman and Van Oosten 1994). It seeks to model the outcome of exchanges that occur in policy positions as a result of the negotiating process. In the conflict (expected utility) model, actors must decide whether they will challenge other actors’ policy or voting positions (Bueno de Mesquita 1994, Payne and Bennett, 2003). This decision is based on an evaluation of the expected utilities of challenging or not challenging the position of the opponent. The model uses estimates of the expect utility of each actor challenging each other actor. These various models differ in the way the transformation process takes place. In the non-cooperative conflict model, actors’ perceptions of the chances of success or failure of challenging the policy positions of opponents are modelled (Bueno de Mesquita 1994). Actors challenge opposing positions if they think this will result in utility gains for themselves. This repetitive process of evaluation, challenges and shifts of voting positions stops if a state of equilibrium is reached and a dominant outcome emerges. In an exchange model, actors try to positively influence the expected outcomes through the exchange of voting positions with opponents, under the condition that the exchange results in utility gains for both sectors. Realised exchanges between two actors on two issues at a time result in shifts of the voting positions of the two actors. As a result, the expected outcomes also shift, but not necessarily in the expected direction because of the multilateral nature of the negotiation process. After the negotiation process, the outcome is determined as if a weighted voting procedure had taken place, i.e. the outcome is an average, weighted by the capability and salience of the voting positions. European Arrest Warrant: Cross-national, comparative analysis at the National level This section presents a cross-national comparative analysis of the negotiations at the national level for the European Arrest Warrant . The three member states examined in this research with regard to the EAW negotiations include Finland, Ireland and Greece. The research findings are examined and presented first in terms of our analysis of the formal and informal mechanisms for policy co-ordination at the national level and second, with regard model insights to the conditions for alternate strategies of negotiation. Formal and Informal Mechanisms for Policy Co-ordination In this research, an important part of the decision analysis is the identification of the institutional framework at the national level within which negotiation takes place. The research showed that the Irish executive is not constrained by formal, institutionalised patterns of policy co-ordination allowing substantial flexibility in the manner of policy co-ordination at the national level. The Irish executive consists of the Prime Minister (Taoiseach), the Government, ministries known as departments (corresponding to all main areas of policy), and the civil or administrative service. The principle of the ‘responsibility of the lead department’ governs how the interface with Brussels is managed. Given the reach of the European Union, this means that the EU impinges on the business of all Government departments, albeit to varying degrees. The Department of Finance, the Department of the Taoiseach (Prime Minister’s Office) and the Department of Foreign Affairs have been referred to as the ‘holy trinity’ of Ireland’s management of EU business (Laffan, 2001) as they are the key departments involved in the macro coordination of Ireland’s European policy. A clear division is evident between these key departments and the remaining operational departments, that is between departments with considerable involvement in EU policy matters and those where the EU impinges less frequently on day-to-day business. Given the significant increase in JHA policy instruments emanating from the EU since the Maastricht Treaty, the Department of Justice, Equality and Law Reform (henceforth referred to as the Department of Justice) has become heavily involved in negotiating at the EU level. In response to the urgency of the EAW negotiations, an ad hoc interdepartmental committee was established within the Irish core executive. While the Department of Justice was the lead department on this issue at the EU level of negotiations, the Committee was chaired and serviced by the EU and International Division of the Department of the Taoiseach. Once the European Arrest Warrant negotiations were concluded, this committee became the Interdepartmental Committee on Justice and Home Affairs and generally meets before every Justice and Home Affairs Council meeting. This committee also included officials from the Departments of Foreign Affairs, Finance, Justice and the Attorney General’s office. However, the negotiation of the arrest warrant at the Irish level was characterised by a lack of civil society involvement (unlike in Finland) and the Irish Parliamentary committees cannot also not be considered important actors in the national level negotiations. By far the most formalized of the three member states examined here, the Finnish process is characterized by strong institutional norms guiding the steps involved in the policy preparation and co- ordination of the domestic position for EU negotiations. Unlike either of the other two case studies, the Finnish analysis revealed the potential for a wide range of stakeholders, both private and public to be involved in the national debate around EU legislations. The main characteristics of the Finnish mechanism for policy co-ordination are the institutionalized representation of a wide range of the relevant policy interests and a formalized structure for policy debate. Despite the rapidity of the EAW negotiations, these characteristics of the Finnish style of policy co-ordination, at the national level, are well illustrated by this case study of the EAW. Preparation of the Finnish position began with a consultation process within the Ministry of Justice, followed by broader, horizontal and formal consultation meetings with civil servants regularly concerned with EU business. Moreover these meetings were attended by the EU secretariat, which was responsible for the overall co-ordination of EU affairs on a national level in Finland. The relevant private sector interests could also attend these meetings. In the Finnish EAW negotiations, this did not happen at this juncture but was afforded by the parallel role of the committee structure within the Eduskunta (Finnish parliament). Unlike either of the other two case studies, this research showed that a considerable amount of legislative work was conducted in the Eduskunta (parliamentary) committees and this committee deliberation was a mandatory part of the Finnish legislative process preceding the plenary stage. The EAW created a debate in the Law Committee and, subsequently, in the Grand Committee of the Eduskunta. This research showed that while the Greek politico-administrative structure is officially highly centralised, it operates in a decentralised or even fragmented manner. There are very few institutional constraints which might require co-ordination of various different types of public and/or private representation and so the whole process is characterized by minimal obligations for information and co-ordination, limited mainly at the decision stage of the EU policy process. Formally, the domestic management of co- operation in the fields of Justice and Home Affairs (JHA) falls under the competence of the ministry of Justice and -when police co-operation is required- the ministry of Public Order, with the ministry of Foreign Affairs acting as co-ordinator. In practice, due to their insufficient staffing and expertise, both of the above-mentioned Ministries generally rely on the support of the ministry of Foreign Affairs (and especially its C-Directorate on JHA) and/or the support of the Permanent Representation. In addition, the responsibility for the preparation, the representation and the promotion of Greek positions at the EU level is usually delegated to ministerial advisers, who are political appointees. If formality is the key characteristic of the Finnish system, then informal networks are certainly one of the most important mechanisms for the Greek system of policy co-ordination. When important issues are at stake, the agents in charge of a particular policy dossier tend to seek the counsel of outside experts; the latter are selected according to personal criteria and/or affiliations, whereas the relevant consultations take place through purely informal channels. The Greek case study of the EAW provides an excellent example of this national style of policy co-ordination. The overall competence for the preparation and the negotiations on the European Arrest Warrant belonged to the Ministry of Justice. A first position paper had been completed in October 2001 under the responsibility of an adviser to the Minister of Justice. Following this advisor's retirement, a second advisor or political appointee to the Ministry of Justice, was given this responsibility. In this case study research, no issue was ranked as controversial at the Greek national level because in all cases the negotiations were handled exclusively by one actor: the political leadership of the Ministry of Justice. At the national level, it was not feasible to locate any actor apart from the Ministry of Justice. Initially, it had been assumed that the Ministry of Foreign Affairs and the Ministry of Public Order might have had an input in the national decision making process. However, the research interviews demonstrated that the role of the Ministry of Foreign Affairs was limited in monitoring developments at the Council, and that the Ministry of Public Order had no role at all. On the other hand, it was discovered that the Prime Minister did intervene in the process ; nevertheless, this intervention never took a structured form and was justified by the peculiar circumstances of the decision context ; besides, no difference of preferences between the Prime Minister and the Ministry of Justice was noted. Model insights to the Conditions for Alternate Strategies of Negotiation All national experts interviewed for the Irish case study agreed that the only issue that was negotiated extensively at the national level was that of maintaining or removing the principle of dual criminality. Figure 1: Issue Dimension for Irish issue: Principle of Dual Criminality Should Ireland agree to the Commission proposal to suppress dual criminality? 0 50 100 Figure Key: 0 No abolition of the principle of dual criminality 50 Neutral Position Play Political Game (outcome) 100 Full Agreement with Commission proposal The actors whose most favoured policy positions were obtained are the Office of the Attorney General, the Department of Foreign Affairs, the Department of the Taoiseach and the Department of Justice. The key experts we interviewed found this list of actors to be an appropriate description of the constellation of actors involved at the national level. It is important to note that the expert judgments outlined refer to the policy alternatives actors favoured most, rather than the ones they were willing to accept or eventually accepted in the form of the decision outcome. The positions taken by each of the actors are closely related to their institutional roles within the Irish executive. Table 2: Actors’ Policy Positions, Salience and Capability at the Irish National level Actors Policy Position Salience Capability Attorney General 0 100 60 Dept of Foreign Affairs 50 70 40 Dept of the Taoiseach 50 70 30 Dept of Justice 100 100 100 Experts were also asked to estimate the level or salience or importance each of the actors attached to the issue. Table 2 illustrates the salience scores on the dual criminality issue at the Irish level. The Department of Justice and the Attorney General’s Office both attached high levels of salience or importance on the issue of dual criminality. According to experts interviewed, the difference in salience between these two actors and the Departments of Foreign Affairs and the Taoiseach lay in their institutional roles. The Departments of the Taoiseach and Foreign Affairs, as coordinating, rather than operational departments, would be more concerned with the need to secure agreement at the national level and yet protect the Irish national interest, rather than maintaining the principle of dual criminality per se. Data on the overall capabilities of the actors at the national level were also collected (i.e. Table 2). In terms of overall power or capability, the Department of Justice was ranked highest of the four actors, given its role as lead department in all matters relating to Justice and Home Affairs in the EU. The Department of Justice also has considerably more informational resources than the three other actors as a result of this role. Both the Department of the Taoiseach and the Department of Foreign Affairs are stretched in their resources as they must key an eye on the extremely wide range of policies at the EU level. As a result, while their bargaining skills have been rated highly and there is a large degree of mutual trust in existence, their informational resources are poor. The lower scores of the Attorney General’s Office was also attributed to its limited operational resources Table 3: Model Outcomes, Real Outcomes and Error Term Decision Making Process Compromise Model Conflict Model* Real Outcome Decision Outcomes 50 100 50 Absolute Error Term 0 50 The model guided results for the Irish case study indicated that the Compromise model generated the most accurate prediction of the real decision outcome at the national level. This model finding illustrates the combined effectiveness of the Department of Foreign Affairs and the Taoiseach’s desire to reach a negotiating position that was flexible at the EU level. These central departments also sought a compromise position at the national level which would “save face” to some extent given the very differing views expressed by the two actors most concerned with the EAW negotiations. The Department of Justice sought a more extreme position throughout the national level negotiations but nevertheless was quite happy with this outcome. The detail of the conflict model simulation output suggested that after a number of iterative rounds, all of the actors, except the Attorney General Office moved to a similar position as that of the Department of Justice. This suggests that the process was highly unsatisfactory for the Attorney General Office and that to some extent this actor’s position was increasingly left aside, during the national level co-ordination of the Irish position of the EAW. The Finnish case study showed that the Eduskunta (Parliament) was centrally involved in the EAW negotiations at home through its political mandate . In the Finnish political system, the Eduskunta’s position are not legally binding on the Government. Nevertheless, it would be politically very unwise for the government to have open confrontations with the Eduskunta. It would decrease the popularity of the government, weaken the position of the negotiators and undermine the legitimacy of decisions as they are implemented. Moreover, the government has a constitutional duty to report to the Eduskunta, not only during the preparatory phase, but also after decisions are taken on EU level. Thus, parliamentary control takes place both before and after the EU level decisions are taken. (Boedeker and Uusikylä, 2000; Raunio and Tiilikainen, 2003). The nature of the Finnish legislative system together with the large number of parties (fragmented shape of party system) makes consensus seeking and negotiations between government and opposition essential in the Eduskunta. The EAW created a debate in the Law Committee and in the Grand Committee. The Law Committee comprised a range of different interests including representatives from the different Finnish political parties as well as representatives from a number of interest groups who were invited to participate in the debate. This was not an uncommon practise in the Finnish parliament. Many members of the Law Committee were former police officers and they formed a strong cohesive group within the committee. Across the entire group, there were really only two issues that created real controversy in the Law Committee and these were whether Finland could agree to the principle of dual criminality and to the principle of extradition to third countries, which allowed the death penalty. For the Finnish case study, the model guided analysis of the negotiations within the Law committee showed that both the Compromise and Exchange models generated much better predictions of the Committee’s decision outcomes than the Conflict model (see Table 4). Moreover, looking at the in-depth Exchange model analysis suggested while the model outcomes over iterations move in the right direction, the final predicted outcomes are quite unstable. Table 4 Finnish case study Model predictions, actual outcomes and error measurement for Law Committee Negotiation Issues/ Error measurement Compromise model Exchange model Challenge Model Real outcomes Issue 1: Dual criminality 38 10 (unstable) 92 20 Issue 2: Extradition to third countries 19 35 (unstable) 10 20 Error Measurement Mean Absolute error Mean Squared error 9.5 162.5 12.5 162.5 41 2642 Na This accurately reflects the real scenario where one of the key actors in the Law committee, the National Coalition, was very unhappy with the committee’s conclusions, despite the other actors involved having reached a concensus. Such conditions are not particularly favourable to a stable exchange outcome, as the results of the Exchange model suggest. Moreover, the outcomes of the Law Committee contradicted the view of the Government who wished to find a negotiating position that was acceptable at home but which would also provide the Finnish representation with some room for flexibility at the EU level. The central concern at the highest level of the Finnish government was political pragmatism and the need for solidarity with the other EU member states. At the Grand Committee stage in the Finnish case study, the aim was to find a compromise position between various views expressed. There was one overarching issue debated in the Grand Committee which related to whether acceptance of extradition to third countries could ensure that the human rights of the individual would be protected. Table 5 Model predictions and real outcomes in the Grand Committee Negotiation Issue Compromise model Challenge model Real outcome Extradition and human rights 50 70 50 As far the model predictions were concerned, the Compromise model is the most accurate (see Table 5). The Conflict model insights are also interesting and instructive, particularly the importance of the role of the Government (veto player in the Conflict model). Absence of the Government actor produces a model generated outcome, which is very different to the real outcome. The inclusion of the Government actor in the simulation process moves the model predicted outcome much closer to the real outcome, reflecting the importance of the Government view at this final stage of the Finnish national level negotiations. This model analysis predicted that the negotiations evolved into a controversial set of discussions at the Finnish national level and the more qualitative interview material collected supports this model insight. In the Greek case study, the inability to locate more than one actor at the domestic level meant that it was not possible to apply the model-guided analysis at the national level for Greece. This research rejects the argument that this is the result of the particular negotiations selected for these case studies. The Greek cases study confirmed that the adoption of the EAW did have important constitutional and political implications. As a consequence, one cannot but deduce that the presence of one actor must be the result of systemic factors. The earlier macro analysis of Greece, undertaken in the framework of the present research does offer the key for interpreting the scarcity of domestic actors in the case of the EAW. Earlier research shows thatGreek decision making tends to be fragmented, that the official co- ordinating role of the Ministry of Foreign Affairs is largely symbolic, and that this fragmentation is even greater when sectoral (i.e. non-horizontal) issues are addressed (see www.oeue.net). Rather than build up the internal capacity of the Greek administrative system, there is instead a considerable reliance across all Greek ministries on the expertise of outside experts, who bear the burden of formulating national positions and defending them at the European level and who use extensively informal contacts and networks. Finally the research demonstrated that, when highly important issues are at stake, the Prime Minister often intervenes, though not in a formal way. All these phenomena are indeed observed in the present case study. An analysis of the EAW Decision Making at the European Level The primary objective of the European Arrest Warrant was to harmonise the extradition procedures of all member states. The agreement carries through the European Council conclusions of October 1999, in Tampere, which stated that “the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced”. Following the attacks on the World Trade Center Twin Towers in New York and the desire to combat terrorism, the European Commission put forward the EAW proposal on foot of member state executives’ calls for action in response to this tragedy. At its first meeting after September 11th, the JHA Council also set itself a deadline for agreement on terrorist package, including the arrest warrant, by 6 December 2001. All those interviewed on this negotiation emphasized the sui generis nature of these EU level negotiations, the fact that an agreement had to be reached on an arrest warrant no matter what and the fact that the time to negotiate was extremely tight. Three key controversial issues were specified by the model guided research, as the most important for the EU level negotiations on the EAW . Since the EU decision on the EAW was based on a Commission proposal and the adoption of the EAW required unanimity in the Council, it was decided that the list of actors should contain the fifteen member states and the Commission. The Exchange model generated very accurate predictions of the real decision outcomes, as well as providing model insights into the potential log-rolling opportunities for actors involved to reach concensus. Issue specification at the European Level In this section the key EAW issues negotiated at the European level and salience levels attached by the stakeholders to these issues is presented below (see Figures 2-4) . Three key issues were identified which included the principle of dual criminality (issue 1), the list of offences applicable under the proposed new EAW (issue 2) and the extradition of nationals (issue 3). At the European level, Issues 1 and 2 were linked in that the compromise outcome of issue 1 (put forward by the Presidency) was to proceed and decide upon issue 2. It became clear to the Presidency by the middle of October 2001 that agreement on the full abolition of the principle of dual criminality altogether was not possible and to continue on this line of negotiation was not useful. The content of the original Commission proposal was discarded by the Presidency in late October 2001 when it became clear that it was not conducive to achieving agreement. The Presidency then proceeded with its own proposal (even though its own preferences were close to the Commission proposal). One expert interviewed for this research suggested that the Belgians are often the most integrationist on JHA matters as they look to the EU to help them solve their national difficulties. The dual criminality issue was finally settled in early November when the Belgian Presidency realised that the issue of the list (Issue 2 above), as a compromise, should be put to the November JHA Council. It is important to stress that these two linked issues were regarded by all those experts interviewed as Figure 2: European Level Issue 1 Principle of Dual Criminality (Salience scores in parentheses) Should the principle of dual criminality be removed? 0 40 50 70 100 ______________________________________________________________ Figure 3: European Level Issue 2 List (Salience scores in parentheses) How should the list of offences be constituted? 0 40 45 50 100 _____________________________________________________________________ outcome Figure 4: European Level Issue 3 Extradition of Nationals (Salience scores in parentheses) Should nationals be extradited? 0 50 75 100 _______________________________________________________________ the most contentious of the negotiation situation as a whole. The key focus of the negotiations was on the list, that is what crimes belonged to this list and would be subject to the new extradition arrangements under EAW. Experts also identified Issue 3 (extradition of nationals) as contentious and in particular it was regarded as particularly sensitive to two delegations (Austria and Greece). The Greeks came to this issue at the last moment of the negotiations with objections – at their national level, they had been trying to verify what it meant in the light of their constitutional requirements. The speed of the negotiations was very rapid given the desire to adhere to the negotiation timetable set out by the Council and there was an overall desire among all delegations that the negotiations be concluded at Council and not European Council level. There was also recognition that some kind of European Arrest Warrant would be produced by the Council deadline of 6 December because of the political imperative. This produced a political momentum all of its own and meant that no agreement was not an option for any of the stakeholders. In addition, the normal process whereby the Commission sounds out national delegations of the shape of a proposal before it is submitted for consideration did not occur in this case given the unusual circumstances surrounding September 11th crisis and the need for the EU to respond to it in some way and show solidarity with the US. The entry into force of the EAW was not contentious and was agreed very rapidly. There was unanimity on the part of the member states on this as they said it was too difficult to put the warrant into national legislation in the timeframe specified by the Commission, i.e. from 31 December 2001. The retroactive nature of the application of the warrant (i.e. should it only apply to crimes committed after it comes into force) was not particularly controversial, and issues related the human rights were also not very contentious. Stakeholders’ Policy Position at the European Level The issue of dual criminality was perhaps the most controversial issue of all the negotiations and was discussed right until the endgame negotiations on 6 December in the JHA Council. The Italian delegation appeared to have most objections to the Commission proposal and to the negotiations as they proceeded. All member states expressed support for the idea of a European arrest warrant in principle at the Council and European Council level given the political situation but in the Article 36 committee meetings a number of reservations became clear. The Italian objections throughout the whole negotiations were based on a number of factors, principally the position of Prime Minister Berlusconi regarding charges of fraud and corruption in other member states and also the lack of coordination of policy at the national level in Italy between the different ministries that handle Justice and Security Affairs. The Italian delegation in particular objected to the suppression of the principle of dual criminality and objected to the final agreement by the other 14 member states at the JHA Council of 6/7 December 2001. They proposed an alternative of reducing the list to 12 offences where the principle of dual criminality would not apply and that the warrant would be valid for six of these offences by 1 January 2004 and the other 6 by 1 January 2008. This was rejected and the Italians finally agreed to the EAW on 11th December 2001. The Italian negotiator in the Article 36 committee was very inexperienced compared with most of the other members of the Article 36 group. Indeed the Presidency wrote a letter to the Italians asking them not to send him again. This meant that the Italians had very little influence. The Portuguese also had difficulties with the idea of an arrest warrant as a whole because of constitutional issues. The Greeks and Austrians similarly had difficulties with the extradition of nationals and the Austrians were able to secure derogation on this issue (declaration attached to framework decision). On this issue and most other issues, member states divided into two camps, with the UK, Spain, Sweden, Belgium and the Commission most disposed to changing the status quo. Spain wanted a strong, immediate and effective measure and the situation with Basque terrorist group, ETA, was given as a possible reason for this. Spain argued vociferously for a change in the status quo regarding the principle of dual criminality and felt it was an issue of mutual trust of all member states. The UK position was surprising at the time (the UK and Ireland are often natural allies in JHA negotiations given their similar legal traditions) but most likely reflected the importance of strong relations with the US for Prime Minister Tony Blair. The Belgians, as holders of the EU Presidency, were conscious that agreement had to be achieved and that it had to be something more than the status quo (in other words the new legislation change could not be cosmetic). As mentioned earlier, it became very clear to the Presidency by the middle of October that agreement on the abolition of the principle of dual criminality was not possible. The dual criminality issue was finally settled in early November when the Belgian Presidency decided that the issue of the list, as a compromise, should be put to the November JHA Council. The discussion on dual criminality now continued under the umbrella of the discussion of the list. With regard to the list of offences, the list consisted of crimes that were already subject to instruments such as joint actions and conventions at the European level. Offences were added and taken out as negotiations proceeded but not in a systematic way. Once there was agreement in principle to establish a list, all delegations and the Presidency looked at EU instruments already in force to determine what should be included on the list. There were no real arguments over the size of the list, apart from Italian objections. The Irish delegation had a problem with the weak definitions of fraud/swindling (in French escroquerie) and the idea that racism and xenophobia on their own constituted crimes. The Irish delegation agreed to the list of 32 offences with stronger definitions of two crimes. The debate on the list was not about numbers but about definitions. Ireland was in agreement with the Netherlands and Denmark in particular on this. The different national delegations went through the list (on foot of suggestions from Presidency and Commission – working hand in hand together) looking at definitions of offences to ensure correlation. Those member states that favoured the maintenance of dual criminality were in favour of the list comprising of harmonised definitions of offences. At the other end of the continuum, those member state delegations in favour of changing the status quo favoured the position whereby offences would be defined by the requesting state. At one stage a debate took place as to the content of the list in that many offences included on the list were not related to terrorist crimes. However, they were included because of the existence of previous conventions on these crimes and because one can relate most of the definitions to terrorism in some way or another. This enabled the Presidency and the Commission to say that the list and warrant wasn’t just about terrorism. Stakeholders’ Salience at the European Level In Figures 5-7, the stakeholders’ salience levels are presented for each of the three key issues at the European level. Looking across the three figures, the relative salience level suggest that for a majority of the member states the issue of dual criminality was the most important issue and indeed as the analysis of the issue specification and stakeholders’s policy positions suggested, agreement of a compromise to this issues was central to the overall negotiation for the European Arrest Warrant legislation. As the second of the three issues, the selection of the list of offences applicable for extradition, formed the core of this compromise for the principle of dual criminality issue, it is perhaps not surprising that the salience levels across the various stakeholders is nearly as high as the spread across stakeholders for issue 1. Figure 5: European Level Salience Issue 1 Figure 6: European Level Salience Issue 2 Figure 7 presents the salience levels of the stakeholders for the third issue, the extradition of nationals. It is quite surprising that the despite the strong reservations about this issue expressed by countries such as Portugal, Greece and Austria during the negotiations, it is only really the member state of Greece which attaches a very high level of salience to issue, compared with these other two countries. Unlike the first two issues, there are a considerable number of the member states who do not consider this issue particularly important. Figure 7: European Level Salience Issue 3 Stakeholders’ Capability (Power) at the European Level A stakeholder’s capability is the level of potential power it has to influence other stakeholders involved in the negotiations. In Figure 8 below the overall capability of each stakeholder involved in these EAW negotiations is presented. The capability is a measure of the actor’s formal voting power in the Council of Ministers, but also a measure of the actor’s informal power, such as their skill at bargaining, their perceived level of trustworthiness by the other stakeholders and the kind of specialized information they might have about issues being negotiated. In our analysis, the most capable stakeholders included, perhaps not surprisingly, the larger member states. However actors such as Belgium were also rated as highly capable. This reflects the key role of Presidency that this member state held during these negotiations and indeed the effectiveness with which it discharged its role, in particular its ability to reach a compromise across the member states under severe time pressure. However there are also some member states who we might have expected to be more powerful. For example Spain was particularly vociferous in the negotiations but is rated quite low in terms of its level of potential capability. Figure 8: European Level Stakeholder Capability Likewise the capability score for Italy is also very low and this reflects the fact that their negotiators were very poor and quite inexperienced compared with the other members of the Article 36 committee. On the other hand Denmark is rated relatively highly, given its size and formal power. Again this high rating reflected their key ability and skill for bargaining during these particular negotiations. We also might have expected that a country such as Finland might have scored higher in terms of the capability, but in fact they were generally perceived as rather inflexible during the negotiations. The Commission’s low score reflects the Commission’s lack of astuteness in these third pillar negotiations. The Commission’s negotiators primarily had experience in dealing with first pillar issues and did not understand the difficulties which changes to fundamental constitutional concepts posed for the national negotiators. In addition, the Commission has less formal power in these third pillar negotiations, where it did not have the right to withdraw a proposal. Accuracy of the Model Predictions for the European level negotiations In our analysis of the European level negotiations, we applied the Compromise and Exchange models to test the argument that these negotiations reflected a log-rolling process where the stakeholders reached a final compromise by bargaining across the issues. The results of the analysis are presented in Table 1 below. The model accuracy is measured in terms of the average absolute error and the average error squared Table 6: Model Predictions, real outcomes and Error (error term in parenthesis) Decision Making Process Decision Outcomes Compromise Model Exchange Model Real Outcome Issue 1 (Dual Criminality) 59 (19) 54 (14) 40 Issue 2 (List) 42 (3) 46 (1) 45 Issue 3 (Extradition of nations) 82 (7) 72 (3) 75 Model Accuracy Average (Absolute) Error Average Error Squared 9.6 139.6 6 68.6 In both error measurements, the Exchange model is shown to produce the most accurate predictions across the various three issues. These results confirm the earlier findings presented and in particular the key importance of reaching agreement on a compromise issue to the most controversial debate around the principle of dual criminality. However it is also the case that the negotiating member states were working under the overriding premise that a compromise had to be found to the disagreements arising. The conditions for successful exchange negotiations were apparent in our analysis. While there were strongly held opposing views on the issues, not all stakeholders were highly salient on all three issues. Indeed some stakeholders attached quite different levels of salience to the different issues. In this kind of negotiating situation, actors have opportunities to trade across the issues, defending those positions that are most important to them and compromising on issues of less importance. Conclusions: An Overview of the Cross-national Comparative analysis Overall, the most successful models for predicting the decision outcomes at the national level were the simple Compromise and Exchange models. The Conflict model discussed was less accurate in its predictions but often generated interesting insights into the negotiating process which seem to often reflect the descriptions given of the process offered by experts during the research interviews. It is interesting to note that the model predictions of Exchange model are the most accurate at the European level. At the European level, actual legislative and binding decision were being taken, suggesting an endpoint to the decision game. At the national level, the analysis focused on the preparatory phase. Each of the national systems have put in place an accepted modus operandus for preparing their national positions. However in fact it is also the case that the role of the national level is never really finalised as such, as the negotiations evolve at the European level. A key aspect of the EAW negotiations was the speed of the negotiations and concerted, huge push given by the central governments actors to push the agreement. Nevertheless the cases all suggest that the way in which the national level preparations proceeded reflects the broader systematic patterns of handing core executive business identified for each of the member states discussed here and examined more widely at the macro level in the broader research project . In the Finnish case, for instance, the handling of the EAW on the national level displays nicely many of the findings of the macro level study. For instance, the case study pointed to the lack of political guidance and the significance of the Eduskunta in the formulation of the Finnish position. The Greek case-study for the analysis of the EAW showed the particular idiosyncratic fashion in which this administration handles cases of great political importance such as the EAW. The Greek response is at once highly centralised and, at the same time, informal. The system is one of remarkable reliance on outside experts who are not civil servants, rather than building and enhancing the expertise and resources internal to the Greek administration. Effectively the case study confirmed that the Greek co-ordination process evolves across informal channels and involves persons with no official competence to handle the issue and depends on the personal policy style of the Minister(s) involved. Looking across the results for the case studies, we recognise that in practice the member states are not unitary actors. The Pluralist model emphasises that in an open democratic system, negotiations between agents and government should allow all agents and interests to be represented (Bennett and Payne, 2000, 2003) . The advocacy of each interest should be able to act as a check or “countervaling power” on other agents and all trade-offs should be resolved as a political bargaining process. In the process agents will maximise their resources and efforts given their assessment of the effectiveness they can achieve. In the Europeanisation literature, the pluralist model has been used by researchers to explore the ability of national interest groups to influence the political processes of collective decision making and implementation of EU policy (Mazey and Richardson, 2002) . The pluralist approach also lends itself to the analysis of the impact of informal networks of communication and influence in the EU policy making processes (Heinelt and Smith, 1996, Borzel, 1997, Rhodes et al, 1996, Payne, 1999) . However this research recognises that the pluralistic network approach is also limited in so far as much of the academic literature on policy networks has discounted the ability of government and public administration to act autonomously to coerce or police networks, instead focusing exclusively on voluntary structures, social means of exchange, mutual trust and embeddedness (Atkinson and Coleman, 1992, Bennett and Payne 2000) . In this research we have also paid attention to the importance of the domestic institutional structures. The institutional model emphasises the laws and traditions within which agents must operate. As a stakeholders becomes more enmeshed in negotiations with other stakeholder in order to pursue its interests, it has to adapt its approach and views, even if this runs against the interests of its members or senior management. These mechanisms of adjustement can be formal or informal (Bennett and Payne, 2000). In the Europeanisation literature and in particular those researchers working within the historical institutionalist approach, one of the central questions is what are the characteristics of the domestic institutional structures which facilitate or block successful adaptation to EU policies and practices? (Heritier et al, 2001, Fink-Hafner and Lajh, 2004). In this research, we have adopted an encompassing theoretical approach that can combine the different strengths of the existing theories outlined above and link these macro and micro level approaches in an analysis of the accession negotiations. For example, the insights offered by macro level approaches, such as historical institutionalism, suggest that there is an inequality of opportunity of resources and ability open to different groups to represent their interests and that the variable strengths of each bargaining partner is path dependent. However historical institutionalism offers an explanation, which remains at the macro level of analysis. There is no clue given as to how we might understand the behaviour of individual actors. As regards the micro level theories, these suggest that while policy outcomes may be “politically efficient”, they are unlikely to be “optimal” for any particular agent or for all agents as a whole. They represent only the results of tradeoffs each agent makes over the period in which the negotiations took place. For these theorists, their discussion remains at the level of the actor and ignores the institutional and normative constraints under which these actors must make collective policy decisions. The most recent and useful analytical studies of collective policy making apply models of behaviour, which allow this research to incorporate the most important insights from both actor, micro-level and systemic macro-level theories. This paper has identified the key insights that have been generated by the modelling approach used in the research. This application of this type of analytical approach has lent itself easily to an identification of the main characteristic member state institutional level processes and actors level strategies, which generate opportunities and difficulties for the member state for EU policy negotiations and implementation. References Bueno de Mesquita, B., and Sokman, F. N., eds. (1994), 'European Community Decision Making. Models, Applications, and Comparisons' (New Haven and London: Yale University Press). Coleman, J.S. 1990. Foundations of Social Theory. Cambridge, MA: The Belknap Press of Harvard University Press. Fink Hafner, D., and Lajh, D. (2002), ‘Macro Management of EU Business: National Core Executives. The Case of Slovenia’, European Project ‘Organising for EU Enlargement: A Challenge for the Member States and Candidate Countries’. Hanf, K., and Soetendorp, B. (1998), Adapting to European Integration. Small States and the European Union (London, New York: Longman). Laumann, E. O., D. Knoke, and Y.H. Kim. 1987. “Event Outcomes.” Pp. 343-373. in The Organizational State. Social Choice in National Policy Domains, by E.O. Laumann and D. Knoke. Madison: The uni- versity of Wisconsin Press. Payne, D., and Bennett, J.R. ‘Regional Development Agencies in the United Kingdom. Labour’s Flagship Sailing at Half-mast?’ in Rationality and Society (London, Thousand Oaks, CA and New Delhi: Sage Publications). Pappi, F.U., and C.H.C.A. Henning. 1998. “Policy Networks: More than a Metaphor?” Journal of Theoretical Politics 10: 553-575. Stokman, F.N. and J.M.M. Van den Bos. 1992. ‘A Two-stage Model of Policy Making: With an Empirical Test in the US Energy Policy Domain’. In G. Moore and J.A. Whitt. The Political Consequences of Social Networks. Volume 4 of Research and Society. JAI Press: Greenwich, Conn. Stokman, F.N. and R. 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COREPER I consists of Deputy Permanent Representatives or Ambassadors and primarily deals with first pillar issues. The extradition procedures between EU member states have been governed by a diversity of instruments, including: the European Extradition Convention (13 December 1957, ratified by all 15 Member States) and its two additional protocols (15 December 1975, ratified by seven Member States and 17 March 1978, ratified by 11 Member States); the Convention on the simplified extradition procedure between the Member States of the EU (10 March 1995, ratified by nine Member States), the Convention on the extradition between member states of the EU (27 September 1996, ratified by eight member states); and the bilateral conventions between the EU Member States. The extradition procedures between the EU Member States and the US are governed by their bilateral agreements. The Article 36 Committee is one of the key committees of the JHA Council of Ministers, reporting to COREPER. It comprises senior officials from the national ministries of all of the member states. The more detailed presentations of the individual country specific case studies are available elsewhere (see www.oeue.net). It has been confirmed that the Prime Minister instructed the Minister of Justice to defend the principle of speciality in the Article 36 Committee negotiations. It should be reminded that the Fifteen were committed to reach a decision on the EAW as soon as possible, and that this commitment was confirmed in two extraordinary European Councils. The Finnish case study is not as detailed as the Irish study due to space limitations. A more detailed presentation is available t www.oeue.net Potential experts were identified and were asked would they be willing to be interviewed for the project. These included experts in the Office of the Attorney General, the Department of Justice, Equality and Law Reform, the EU Permanent Representation, the Department of Foreign Affairs and the Department of the Taoiseach and the former Attorney General. An interview also took place with Permanent Representative, and representatives from the Office of the Attorney General and the Department of Justice in the Permanent Representation. The Director General EU Division, was also interviewed. On foot of discussions with the Permanent Representative and her staff, letters requesting interviews for the EU level data were sent to, Council General Secretariat, DG JHA and the Belgian Federal Ministry of Justice (Article 36 Committee). Interviews were also arranged and conducted with the JHA DG of the Council Secretariat. See various occasional papers at www.oeue.net Local and Regional Economic Development: Renegotiating power under Labour. 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An exploration of the concept and the usefulness in studying European Governance” European Integration Online Papers (EioP), 1 (16). Rhodes, R.A.W, Bache, I and S. George (1996) “Policy Networks and Policy-Making in the European Union: A Critical Appraisal” in Hooghe, L (eds) Cohesion Policy and European Integration. Building Multi-level Governance. Clarendon Press. Oxford. Payne, D (1999) Policy making in the European Union. An analysis of the impact of the reform of the Structural funds in Ireland. Amsterdam: Thela Thesis. Atkinson, M.M. and Coleman, W.D. (1992) “Policy networks, Policy Communities and the Problems of Governance” Governance: An International Journal of Policy and Administration, 5 (2). pp154-180. Heritier, A., D. Kerwer, C.Knill, D. Lehmkuhl, M.Teutsch and A. Douillet (2001) Differential Europe. Lanham, Boulder, New York, Oxford: Rowman & Littlefield Publishers Inc. 2 11