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Journal of European Public PolicyPublication details, including instructions for authors and subscription information:http://www.informaworld.com/smpp/title~content=t713685697

Modes of external governance: a cross-national and cross-sectoralcomparisonSandra Lavenex; Dirk Lehmkuhl; Nicole Wichmann

To cite this Article Lavenex, Sandra, Lehmkuhl, Dirk and Wichmann, Nicole(2009) 'Modes of external governance: a cross-national and cross-sectoral comparison', Journal of European Public Policy, 16: 6, 813 833

To link to this Article: DOI: 10.1080/13501760903087779URL: http://dx.doi.org/10.1080/13501760903087779

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Modes of external governance: a

cross-national and cross-sectoral

comparison

Sandra Lavenex, Dirk Lehmkuhl and Nicole Wichmann

ABSTRACT Contrary to the vast majority of studies that try to characterize EUexternal governance by looking at the macro-structures of association relations,our comparative analysis shows that overarching foreign policy initiatives such asthe EEA, SwissEU bilateralism or the ENP have little impact on the modes inwhich the EU seeks to expand its policy boundaries in individual sectors. In contrast,modes of external governance follow sectoral dynamics which are astonishinglystable across countries. These findings highlight the importance of institutionalpath-dependencies in projecting governance modes from the internal to the externalconstellation, and question the capacity to steer these functionalist patterns ofexternal governance through rationally planned foreign policy initiatives.

KEY WORDS Composite policy; environment policy; European neighbourhoodpolicy; external governance; foreign policy; justice and home affairs; Norway;research policy; Switzerland; transport policy.

INTRODUCTION

The study of European Union (EU) association relations cuts across the divisionbetween foreign policy studies and policy analyses that investigate the externaldimension of EU sectoral policies. Although the topic of external governancehas begun to be studied from both perspectives, the relationship betweenthe two has rarely been addressed. Taking a comparative view on three macro-institutional frameworks of EU neighbourhood relations and the modes ofexternal governance within five policy sectors, we seek to shed light on therelevance of differing macro-institutional frameworks of association for thesectoral dynamics of external governance. Echoing the literature on the varietyof policy modes in the EUs internal governance (Wallace 2000; Verdun andTommel 2009), we question the accuracy of generalizing the characterizationof neighbourhood policies as being quasi-colonial (Tovias 2006 with regardto the European Economic Area (EEA)) or relying on a conditionality frame-

work (Cremona and Hillion 2006; Kelley 2006; Magen 2006 with regard tothe European neighbourhood policy (ENP)). In contrast, our argument is thatEU external governance is not so much a product of high-level foreign policy

Journal of European Public PolicyISSN 1350-1763 print; 1466-4429 online # 2009 Taylor & Francis

http://www.informaworld.com/journalsDOI: 10.1080/13501760903087779

Journal of European Public Policy 16:6 September 2009: 813833

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initiatives such as the EEA or the ENP. Rather than mirroring the properties ofthe overarching association frameworks, sectoral modes of external governancereflect quite consistent legal and institutional shapes that derive from the waysin which the EU deals internally with these policies.

We substantiate the thesis of EU external governance as a decentralized, func-tionally driven and differentiated process of expanding sectoral integration with amost-dissimilar-systems design (Przeworski and Teune 1970) by comparingthree macro-institutional models applying to six heterogeneous countries interms of size, wealth, and region (Moldova, Morocco, Norway, Switzerland,Tunisia, Ukraine) and five policy sectors with varying degrees of interdepen-dence and politicization (research, transport/aviation, the environment/water,asylum policy, police co-operation). By so doing, we are able to show that theexternal modes of sectoral governance mainly reflect internal modes of sectoral

governance, quite independently from macro-institutional structures. Thiscontinuation of internal modes of governance is relatively stable even if weaccount for alternative explanations such as power constellations, situations ofinterdependence, or domestic factors.

After a short theoretical reflection on modes of governance in compositeneighbourhood policies, we start by delineating a typology of external govern-ance structures that forms the basis of the macro-institutional (section three)and sectoral (section four) comparison. We then scrutinize the links and discon-tinuities between these two levels of external governance and close with someconclusions on the relationship between the functionalist and the more politicaldynamics of EU external governance.

MODES OF GOVERNANCE IN COMPOSITE POLICIES

The notion of European external governance is indebted to an institutionalistagenda that directs attention to institutionalized patterns in which interdepen-dence between political units in the present case the EU and respective thirdcountries is co-ordinated. Comparable to the case of EU enlargement, EUneighbourhood policies are characterized by a dual structure composed of, on

the one hand, the overarching macro-policy, laying down the overall goalsand instruments of these privileged relations, and the meso-policies, relatingto the sectoral modes of interaction (Sedelmeier 2005, 2007). Whereas themacro-policies such as the EEA, Swiss EU bilateral treaties or the ENPresult from co-ordinated, political processes of foreign policy-making, themeso-policies reflect the external dimension of internal sectoral integration.These external dimensions have usually been motivated as functionally drivenanswers to situations of interdependence and to the externalities producedwithin the individual sectors such as the environment, energy, migration

management, or the fight against organized crime, and others. They thusfollow primarily internal, sectoral or functional dynamics, rather than overarch-ing foreign policy goals. The tension that arises is that, from the macro foreignpolicy perspective, EU neighbourhood relations must draw on these

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decentralized meso policies in order to fulfil their goals (Sedelmeier 2007:280). Conversely, this also means that, from a foreign policy perspective, themeso policies should be steerable and follow the macro-structures.

Our analysis of governance modes at the macro- and meso-levels is inspired

by the governance turn in comparative politics and draws on the typologies ofgovernance developed therein (Scharpf 1997; Williamson 1975). On this basis,we distinguish between hierarchy, network and market modes of governance(Lavenex et al. 2007; Lavenex 2008; Lavenex and Schimmelfennig 2009).Each mode of governance is composed of two dimensions: on the one hand,the regulatory level of rule expansion (here, legalization) and, on the otherhand, the organizational level of rule-making (here, institutionalization).

Hierarchyis a critical terminology in the international arena given the fact thatits antonym, anarchy, is the central tenet of traditional international relations

theorizing. Hierarchy serves as a descriptor for a mode of co-ordination charac-terized by a strongly legalized and institutionalized asymmetric interconnectionbetween the EU and a third country. According to the literature, the degree oflegalization may vary in three dimensions: obligation, i.e. the degree to whichactors are bound by a rule or a set of rules; precision, i.e. the degree to whichrules define the respective conduct they require or authorize; and delegation,i.e. the delegation of the authority to implement, interpret and apply therules to a third party (Abbott et al. 2000). Adapting the distinction to thepresent context, we talk about a hierarchical mode of external governancewhen the role of European (i.e. supranational) law is strong, when theconduct of a non-member state is bound by the predetermined obligations ofthe acquis communautaire, and when there is an independent judicial reviewof the conduct of the non-member state. With respect to institutionalization,a hierarchical type of co-ordination is characterized by a profound asymmetrybetween the rulers and the ruled as well as formal and centralized macro-insti-tutions with dense interactions and little room for third countries to negotiateon their commitments (exclusiveness).

In contrast, market describes a mode of co-ordination characterized by therelative weakness of formal relationships. A market constellation corresponds

to different but generally much lower degrees of legalization and institutionali-zation. The ideal-type market corresponds to what international relations scho-lars traditionally describe as anarchy. With regard to EU external relations, thereis no overarching legal commitment to co-operation, and approximation to theacquis is not the point of reference. The contents of co-operation are thus notpredetermined but subject to negotiations, and no systematic monitoring ofcompliance occurs. Even if there is an asymmetry between the EU and athird country in terms of power or resources, relations are formally horizontaland non-exclusive. Rather than being governed by a centralized macro-

institutional structure and joint institutions, interaction occurs on a more adhoc and decentralized basis (i.e. within policy fields).

These informal processes of co-ordination still differ from networks as ourthird type of co-ordination. Parties in network constellation also act in a

S. Lavenex et al.: Modes of external governance 815

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formally symmetrical relationship. This implies that, despite a dominance of theEUs agenda, third countries have to agree with the selection of topics ofco-operation and can bring in their own priorities. The co-ordination of inter-dependence in a network type of interactions requires a certain degree of insti-

tutionalization and the existence of central co-ordination structures goes alongwith decentralized units of interaction, while ties can be formal and informal.The basis for interaction in networks is international law and voluntary agree-ments, and the norms used are inspired by the acquisbut not precisely predeter-mined. This goes along with a shared political rather than judicial monitoring ofthe implementation of agreed commitments.

Table 1 summarizes these considerations. These ideal types (see Table 2) areheuristic devices and should not be confused with the complexity of theempirical reality. One empirical observation that we need to bear in mind

when studying these modes of governance and their interaction is, forinstance, that the shadow of hierarchy may impact upon other governanceforms such as networks or markets (Scharpf 1997: 197205; Heritier andLehmkuhl 2008). Notwithstanding this caveat, the following sections usethese ideal types to characterize first the macro-level configurations of externalgovernance in order to contrast them in a second step with the sectoral modesof governance.

Table 1 Summary of analytical dimensions

Dimension of

governance Criteria Indicators

Legalization Obligation supranational law ( )

international law and voluntary

agreements ()

no legally binding obligation (2)

Precision same precision as acquis ( )

acquis but with flexibility ()subject to negotiation (2)

Delegation judicial control ( )

political monitoring ()

no monitoring (2)

Institutionalization Centralization tightly centralized ( )

loosely centralized ()

decentralized ()

Density high ( )

medium ()

ad hoc ()Exclusiveness EU agenda ( )

EU agenda but consensus required ( )

common agenda (2)


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MACRO-STRUCTURES OF EXTERNAL GOVERNANCE

European Economic Area

The EEA combines high levels of legalization with a centralized, dense andexclusive format of institutionalization and thus comes close to a hierarchicalstructure. The asymmetry of obligations was compensated by various formsof participation, yet at subordinate, technical levels of influence.

The legal homogeneity maxim requires from the EEA European Free trade Association (EFTA) states (Norway, Iceland and Liechtenstein) a constantalignment with the EU acquis in the areas covered by the Agreement. Theintensity of the obligations arising from EEA law is comparable to that ofCommunity law. This was confirmed in a ruling by the EFTA Courtaccording to which the EEA legal order is to be situated at a half-way positionbetween supranational Community law and classic international law(Lazowski 2006: 131). Control is exerted by the EFTA Surveillance Authoritywith the power to launch infringement procedures and a juridical monitoringbody, the EFTA Court. Although both institutions are not EU organs, theirpoint of reference is clearly EU jurisprudence. The compliance record demon-strated by the EEA EFTA states is similar to that of the EU member states(Jonsdottir 2008).

While formally speaking the EEA Agreement allows for country-specific dero-

gations or adaptations to EU instruments, the EEA EFTA countries have rarelyused these possibilities (van Stiphout 2007: 437). The only condition underwhich the EEA EFTA countries can insert exceptions into the Agreement iswhen they demonstrate that objective criteria (e.g. size, sparsely populated ter-ritory) are at odds with an implementation. Also, individual EEA EFTA statesmay exercise the right of reservation to avert the inclusion of predeterminednorms into the EEA acquis. However, the EUs axiomatic insistence on legalhomogeneity within the EEA territory requires the proposition of an equivalentsolution by the responsible Joint Committee which is made up of ambassadors

from the EEA EFTA states, representatives from the European Commission andEU member states. Given the complexity of and interdependence betweenpolicies, the EEA EFTA states have so far always agreed to include the contestedmeasures in the EEA acquis sooner or later.

Table 2 Summary of ideal types

Hierarchy Market Network

Legalization Obligation 2

Precision 2

Delegation 2

Institutionalization Centralization 2

Density 2

Exclusiveness 2 2


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The EEAs institutional set-up mirrors the legal hierarchy. It has strongcentral institutions (Joint Committee, EFTA Surveillance Authority, EFTACourt) which meet with high frequency. The most explicit institutional signof asymmetry is the EEA EFTA states formal exclusion from decision-

making. The so-called dynamic incorporation procedure consists of thequasi-automatic transfer of the relevant acquis to the EEA EFTA countries;by 2008, roughly 6,000 acts had been incorporated into Norwegian legislationsince the entry into force of the EEA (Bruzelius 2008). In Norway the EEAincorporation procedure has been described as a fax democracy and aca-demics have qualified the status of the EEA EFTA countries as semi-colonial(Tovias 2006).

EEA EFTA countries have been compensated for their exclusion from actualdecision-making in the EU by comparatively far-reaching decision-shaping

rights in agenda-setting and the policy formulation stage. On the one hand,either government representatives or experts from these countries may partici-pate in expert working groups convened at regular intervals to discuss the pro-posed legislative proposals. On the other hand, EEA EFTA representatives mayparticipate in comitology committees that assist the Commission in the exerciseof its executive functions. Another form of organizational inclusion is partici-pation in EU sectoral agencies. These horizontal structures are mainly limitedto expert-level deliberations which take place in the shadow cast by the EU leg-islative bodies and the EEA Joint Committee. Their potential is circumscribedby the openness of the respective acquis, on the one hand, and the respectivecompetences of these bodies, on the other. Therefore, any assessment of theseopportunities needs to look at the modes of governance within the respectivepolicy sectors. At the political stage the influence of the associate states is farmore limited, and they have to rely on informal strategies, such as lobbyingEU member states and building alliances with like-minded states instead.To conclude, the predominant macro-structure of the EEA is thus a hierarchicalsetting, in which EEA EFTA members have subordinated themselves to foreignrule by the EU.

SwissEU bilateralism

It is more difficult to categorize the bilateral agreements in terms of the domi-nant structural mode of interaction because there is no overarching frameworkagreement to lay down a shared obligation for co-operation. Rather, there are 16core bilateral agreements, concluded with the EU in two packages in 1999 and2004, and over 100 secondary agreements. As a consequence, each bilateralsectoral agreement is the result of a negotiation process in which both sidestry to minimize commitments and maximize benefits.

The EUs acquis communautaire is thus not automatically the basis of theagreements; the consensus brought about by the negotiations can be referredto as acquis helveto-communautaire. The obligations created by the bilateralagreements are precise, although they might include specified derogations


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from the acquis. With the exception of the agreements on air transport and theSchengen Association, they fall short of being integration treaties. The legalobligations arising under the bilateral agreements come closer to traditionalinternational than to supranational EU law. The maxim underlying the

relations between the two parties is not that of legal homogeneity but the rec-ognition of the equivalence of legislation. In addition there is no systematicmonitoring, neither juridical nor political. The monitoring of compliancewith the obligations contained in the bilateral agreements is ensured by eachof the parties on their respective territory.

Below these formally weak legalized structures we find a strong shadow ofhierarchy concealed behind the core principle which stipulates the recognitionof equivalence of legislation. In practice this recognition amounts to the incor-poration of EU instruments (regulations/directives) into Swiss law, because the

EU almost only accepts legislation modelled on the acquis as equivalent. TheEU instruments that will be included in Swiss legislation are listed in theannexes to the bilateral agreements. The competence to modify these technicalannexes has for the most part been delegated to the mixed committees. Themain difference to the EEA setting is the punctual nature of such updates:both the frequency of changes and the substantive reach of the changes aremore limited. Another de facto simulation of hierarchy results from the doc-trine of autonomer Nachvollzug (unilateral adaptation), which is a practiceof voluntary alignment pursued by the Swiss authorities since the late 1980s.It stipulates that each new piece of legislation is evaluated with respect to itscompatibility with EU norms.

The absence of central co-ordinating institutions or overarching macro-structures mirrors the formally weak legalization of Swiss EU association.Contrary to the EEA and Association Agreements, there is no EUSwitzerland Association Council or overarching Joint Committee. Instead, relations aremanaged decentrally within each sectoral agreement by the respective mixedcommittees. The mixed committees are in charge of managing both the technicaland the political aspects of the bilateral agreements through information exchangeand, when necessary, extension of EU legislation relevant for Switzerland. They

are also the place where problems with the implementation of the agreements arediscussed, and thus they fulfil a sort of ad hoc monitoring function. Finally, thelower degree of legalization in SwissEU relations goes along with more limiteddecision-shaping rights compared to the EEA EFTA states, although access tocommittees or EU agencies has evolved incrementally in a number of sectors.

In sum, SwissEU bilateralism is an interesting case of formally weak lega-lized and institutionalized structures, but infused by a strong informalshadow of hierarchy.

European neighbourhood policy

The ENP is different from both the EEA and the bilateral agreements withSwitzerland in that it is not a legal contract on its own.1 Next to the hard law


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Association Agreements (AAs) concluded with Mediterranean neighbours andthe Partnership and Co-operation Agreements (PCAs) signed with theEastern European neighbours, the ENP includes a multiplicity of soft lawinstruments adopted since 2003, which also differ between countries.2 The

core soft law instruments are the bilateral action plans outlining the reformmenu that each partner country has committed itself to undertake in thevarious policy domains. The action plans are process-oriented; they do not pre-scribe a specific end, such as legal homogeneity, but promote the ENP countriesapproximation to EU standards. To realize this approximation objective theEU draws on a combination of hierarchical and network modes of governance.

The adoption of EU norms is not a legal obligation but a political commit-ment. With the exception of the provisions on the internal market and trade, thecommitments inscribed in the action plans are relatively vague. This stems from

the approximation objective according to which the EUs acquiscan, but mustnot, serve as a model for guiding third countries in the conduct of domesticreforms. Notwithstanding the lower degree of obligation and precision, moni-toring is assured at the political level. ENP countries progress in fulfilling theiraction plan commitments is assessed every 18 months by the European Com-mission in progress reports that resemble the Commissions avis and theregular progress reports issued during enlargement. This unilateral assessmentis complemented by a consensual monitoring structure in the joint AssociationCouncils.

In institutional terms the ENP is relatively centralized but less dense than theEEA and Swiss EU bilateralism. Ministerial representatives of the ENPcountries meet with the EU Troika in yearly Association/Partnership andCo-operation Council meetings. The Co-operation and Association Commit-tees at the ambassadorial level also meet on a yearly basis. In contrast to theEEA, these bodies do not have the objective of aligning the legislation in thethird country to EU standards; instead their main function is to exchangeinformation on the progress achieved in the realization of the action plancommitments. The fact that the discussions in the joint Association Councilsare the key monitoring instance shows that the highest political level wants to

keep a grip on the development of the ENP, hence preserving the centralizedcharacteristics of the policy.

An important innovation of the ENP, compared to previously establishedframeworks such as the Euro-Mediterranean policy, is the introduction oftechnical subcommittees in most policy fields. In contrast to the diplomaticmacro-structure, they are composed of civil servants of the ENP countries,EU member states and the Commission meeting at the expert level to discuss joint priorities and problems encountered during implementation. Theoreti-cally, these fora are comparable to the sectoral subcommittees working under

the EEA Joint Committee or the mixed committees with Switzerland, andthus they have the potential for more horizontal or symmetrical discussionsbased on technical expertise rather than political considerations. Yet, in practicesome ENP countries prefer to send either high-ranking officials or diplomats.3


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A further feature of the decentralized set-up is the informal networking mech-anisms, TAIEX and Twinning, that were first introduced during EU enlarge-ment. These instruments link civil servants from the member states withthose in the ENP countries with the objective of promoting approximation

in areas in which the EU lacks a precise acquis.To conclude, notwithstanding their common focus on promoting association

to the EU on the basis of its acquis communautaire, the three macro-institutionaltypes of neighbourhood policy vary quite strongly with regard to their modes ofgovernance and the degree of hierarchy reflected therein. The EEA is clearly themost hierarchical setting, emulating to a far degree the legal and institutionalsupranationalism of the EU. SwissEU bilateralism reflects a mix of formalintergovernmentalism with a strong (informal) shadow of hierarchy. Thisshadow derives from the fact that Switzerlands flexible integration mainly

occurs through legal adaptation to the acquis but less through institutions.The opposite is the case in the ENP which mainly combines a focus on insti-tutional ties with elements of network governance in a weak legalized setting.The first column of Table 3 summarizes these governance characteristics andjuxtaposes them with the sectoral modes of governance that we present in thefollowing section.

SECTORAL DIVERSITY IN EXTERNAL GOVERNANCE4

Do macro-institutional modes of external governance between the EU andassociated third countries have homogenizing effects at the sectoral policylevel, meaning that EEA countries are treated differently in research or environ-mental policy from Switzerland or individual ENP countries? Or do we findspecific sectoral modes of governance prevailing regardless of the macro-insti-tutional set-ups and the respective target countries? In order to answer thesequestions we analyse five sectors that vary with regard to their dominant typeof internal governance; two more communitarized, hence hierarchical ones(asylum and immigration control in justice and home affairs, environmentalpolicy), two intergovernmental ones (police and judicial co-operation, research

policy) as well as one with mixed competences (air transport). This sample alsoreflects a mix of more technical versus more politicized sectors and thus allowscontrolling for competing hypotheses that stress the role of interdependence andinterest constellations.

Research

Despite its recent gain in prominence as a main pillar of the EUsLisbon agenda, research policy is not communitarized. The main output of

decision-making in research is not directives, regulations or harmonizationmeasures, but pluri-annual research programmes defining broad researchfields and an overall budget for funding research that complements nationalresearch policies (Banchoff 2002: 3). The mode of policy-making can be


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characterized as a form of network governance in which the relatively open-structured overall research framework programmes are jointly specified,

implemented and monitored by national experts meeting under the comitologyprocedure in the so-called programme committees and in a special intergovern-mental advisory group working both for the Commission and the Coun-cil the Scientific and Technical Research Committee (CREST). This

Table 3 Summary of macro- and sectoral modes of governance

Macro-

policy Research

Transport:

aviation

Environment:

WFD AsylumPolice

co-operation

EEAObligation

Precision 2

Delegation 2 2 2 2

Centralization 2 2 2 2

Density

Exclusiveness 2 2 2 2 2

SwissEU bilateralism

Obligation 2

Precision 2

Delegation 2 2 2 2 2

Centralization 2 2 2 2 2Density 2

Exclusiveness 2 2 2 2 2

ENP

Obligation 2

Precision 2 2 2

Delegation

Centralization 2 2 2 2

Density (S) ,

2 (E) 2

Exclusiveness 2

2/

Internal mode of

governance

Obligation

Precision 2

Delegation 2 2

Centralization 2 2 2

Density

Exclusiveness

Notes: It should be noted that for the EEA countries and Switzerland, association in

matters relating to asylum and police co-operation is regulated in a separate,

common agreement (the Schengen Dublin association, see above). The values for the ENP countries refer to the ENP countries with the strongest form

of association in the sector (with the exclusion of Israel, see note 4). S: Southern Mediterranean neighbours; E: Eastern neighbours.


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multi-level constellation inside the EU is complemented by independent inter-governmental research organizations such as COST and EUREKA and transna-tional fora composed of self-governing science organizations (e.g. the EuropeanScience Association) or industry (technology platforms).

In terms of external governance, research policy is a particular case, since itdoes not involve an acquis which needs to be transferred to the associatedcountries. Third countries can be fully or partially integrated in this policyarea without facing pressure for regulatory adaptation. Instead, integrationoccurs through organizational participation in the definition of fundingpriorities and/or in the established funding programmes.

With the inclusion of research policy in the EEA and the conclusion of a bilat-eral agreement, Norway and Switzerland have been fully associated with thispolicy field. Full association gives them access to the relevant policy networks

and unrestricted participation rights. Although they do not have the right tovote, both EU and country representatives confirm that Norwegian and Swissrepresentatives participate as full members and that voting never takes place.5

Also, both countries have established informal forms of co-operation with theEUs central legislative organ, the Council of Ministers. Likewise, their researchministers have been invited as observers to the informal meetings of EU researchministers since 2007.6As a consequence, for Norway and Switzerland, externalgovernance may most accurately be described as extended network governancewith a low degree of legalization and symmetric institutional ties. Interestingly,the overarching macro-structures existing in the EEA were reported to have norelevance for this co-operation.

As a geographically determined space of privileged relations, the ENP fitsuneasily with the intrinsic functional dynamics of internationalization inresearch. Despite their heterogeneity, it can be said that most ENP countriesare not natural partners for internationalization in terms of compatibility ofscience and technology systems. Nevertheless, research policy may be particu-larly suited as an integration vehicle given the apolitical nature of co-operationin science and technology and the overall absence of political obstacles to pro-gress in co-operation (European Commission 2008: 72); also because of its

conduciveness to economic growth and modernization. Therefore, the PCAs,AAs and ENP action plans all include provisions on co-operation and strength-ening research infrastructures. In addition, bilateral Science and TechnologyAgreements have been concluded with Ukraine, Moldova, Tunisia and Egypt,and relevant provisions are included for Southern neighbours in various declara-tions and instruments of the Barcelona process.

In contrast to Western neighbours, these policy documents do prescribe policyadaptation in terms of developing research and development capacities, includ-ing raising levels of funding, and preparing for integration into the European

Research Area. Commitments to Southern neighbours also include more specifictargets such as, for example, establishing independent funding institutions andpromoting industrial research. These prescriptions, however, reflect a generallylow level of legalization, given the absence of a regulatory acquis in the EU.


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Our interviews confirmed that during both the negotiation of ENP action plansand the Science and Technology Agreements the ENP countries were free to settheir own priorities.7 Thus approximation to EU standards is mainly driven bythe ENP countries different degrees of interest in modernizing their research

systems, rather than by external influence.The institutionalization of research co-operation is more developed with

Southern than with Eastern neighbours. The multilateral Monitoring Commit-tee for Euro-Mediterranean Co-operation (MoCo) meets annually to exchangeinformation and views on science and technology policy in the Mediterraneanregion; promote the co-ordination of national policies between its members andthe EU; monitor science and technology programmes and activities in theregion and propose action plans to extend the European Research Area to thewhole region some of which have found entry into relevant EU instruments,

such as EUs Seventh Framework Research Programme. This fact, as well asbalanced representation in the MoCo (members are high-level officials represent-ing the ministers responsible for research and technological development fromthe EU member states and from the Mediterranean partner countries, as wellas representatives from different Commission Directorates-General), reflectsrelatively symmetrical structures of interaction, despite the fact that Southernneighbours (and ENP countries in general) are clearly more dependent onthe EUs research market than vice versa.

Transport: aviationDespite the fact that transport was one of the few policy fields explicitly men-tioned in the Treaty of Rome, a common air transport policy developed onlyfrom the late 1980s onwards. Three so-called liberalization packages contributedbetween 1987 and 1992 to the creation of an internal market in air services. As aconsequence of market-making policies, market regulations involving issues ofair traffic management and safety became dominant. In 1999, the launching ofthe Single European Sky project signalled a new effort to communitarize theinternal dimension of air transport. Its external dimension was triggered by the

so-called open skies judgments of the European Court of Justice (ECJ) in2002, according to which member states cannot act in isolation when negotiatinginternational air service agreements (Stevens 2004). The common externalaviation policy is characterized by the EUs explicit objective of taking the EUacquis, with its two dimensions of market liberalization and control and safetypolicies and standards, as the yardstick (European Commission 2005). Themore the EU seeks to communitarize internal and external air transport govern-ance, the more it has to take into account the existence of either intergovernmen-tally or transgovernmentally organized forms of pan-European co-operation with

overlapping memberships.The EEA countries and Switzerland are closely integrated in the EUs aviation

policy. Annexe XIII of the EEA Agreement establishes full association with theEUs transport acquis. The provisions cover market-making and market-regulating


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aspects, including, for instance, horizontal transport issues such as social policy,consumer protection, the environment, statistics and company law. The bilateralaviation agreement concluded with Switzerland is comparable in legal scope.Interestingly, the lack of judicial macro-structure in Swiss EU relations is com-

pensated by the allocation of oversight functions to the European Commissionand the ECJ, equivalent to the judicial control applying for the EU memberstates. These hierarchical patterns in the legal sphere go along with intensivenetwork governance at the operational level. Both Norwegian and Swissexperts are well integrated in relevant technical bodies. Yet, given Switzerlandslocation at the heart of one of the busiest aviation areas in the world Swissrepresentatives have successfully sought closer incorporation also into decision-shaping bodies such as high-level groups and standard-setting bodies, both EUand pan-European (e.g. the European Civil Aviation Conference ECAC, the

Joint Aviation Authorities JAA, Eurocontrol or the European AviationSafety Agency EASA).ENP countries are significantly affected by the EUs objective of developing

the wider European Common Aviation Area (ECAA) by 2010. The ECAAinvolves the twin objectives of opening markets by 2010 and initiating aprocess of regulatory convergence with the EU acquis. To achieve this objective,the EU seeks to negotiate substantive aviation agreements with ENP countriesthat reach well beyond existing PCAs and AAs. The 2006 EUMorocco Euro-Mediterranean Aviation Agreement has been heralded as the prototype for anyother neighbouring countries wishing to harmonize their legislation with theCommunity. A comparable agreement is currently in negotiation withUkraine. These special agreements reflect high degrees of obligation and pre-cision, yet each contracting party remains responsible for proper implemen-tation in its territory and disputes are to be decided by the AssociationCouncil, which is a political body (Articles 21 and 22 of the EUMoroccoEuro-Mediterranean Aviation Agreement). In institutional terms the agree-ments build on the existing bodies, i.e. the Association Councils which willmeet at least once a year as Joint Committees (or additionally upon therequest of one party). A more pertinent role in providing an institutional

base for interaction is played by functional pan-European aviation agencies,at least for European neighbours who are members of the ECAC, the JAAand Eurocontrol. In so far as these organizations function on the basis of tech-nical expertise rather than political considerations, they also offer the opportu-nity for more horizontal patterns of co-operation.

The environment

Although strongly communitarized, environmental policy reflects an interesting

mix of hierarchical and so-called new modes of horizontal governance,sometimes combined within one piece of legislation. Whereas Norway is fullyassociated to the EUs environmental acquis by way of the EEA, there are noequivalent obligations with Switzerland.8 Commitments with the ENP


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countries mainly concern the so-called horizontal environmental acquis relatedto good governance, and regulatory adaptation is less explicit in overarchingpolicy documents such as action plans.

Given the variety of governance modes in EU environmental policy, we focus

on a sub-field with a strong international dimension water protection. Themain policy instrument here is the EUs Water Framework Directive (WFD)of 2000. The WFD is a typical instrument of new environmental governance,reflecting many aspects related to the open method of co-ordination. Itsemphasis is on structuring a collaborative process in which an open-endednotion of good water status is jointly defined and promoted by policy networks.These policy networks are composed of policy-makers and stakeholders fromthe relevant countries who agree on common objectives and concrete activitiesin the respective national and regional contexts. Most interestingly, the decen-

tralized regulatory structures implementing the WFD are organized along thenatural geographical and hydrological units of rivers and lakes, and not alongtheir administrative or political boundaries. The notion of integrated riverbasin districts binds the member states to involve relevant neighbouringcountries in the respective policy networks of competent authorities. Often,this occurs through the delegation of competences to pre-existing intergovern-mental water protection commissions of which both the EU countries and theirneighbours are members.

Geographical location and membership of such long-standing intergovern-mental commissions explain why third countries increasingly come under theambit of the EUs water protection policy, even if such an obligation lacksformal association agreements. The relevant acquis is the same for all countries,namely the WFD, including several other fairly precise directives that have beenintegrated therein and the political monitoring processes that go along with it(country reports and peer review). We also find relatively strong commonalitiesin the institutional parameters of this policy field. Whereas Norway and Switzer-land are integrated at both supranational (EU water directors) and regionallevels of policy networks (e.g. the International Commission for the Protectionof the River Rhine for Switzerland), the Eastern neighbours face a comparable

degree of regional institutional coupling with their participation in the Dablasprocess for the protection of the Danube and the Black Sea. Although theoreti-cally these networks allow for symmetric, horizontal relations, we find that theyoperate under the shadow of hierarchy. In the case of Norway and Switzerland,this mainly refers to other directives relevant for implementing the WFD. Co-operation in the networks is recorded as being fully symmetrical and thesecountries are acknowledged for their environmental expertise and leadership.9

In the case of the Eastern neighbours, we find asymmetry in the networks them-selves, which results less from the formal characteristics of these fora as from the

properties of the third countries, such as absence of compatible expertise andresources. In this situation, the Eastern neighbours cannot participate on anequal basis and become passive receivers of EU templates.


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Justice and home affairs

The internal governance of justice and home affairs (JHA) is marked by thecoexistence of weak hierarchical legal integration through the Communitymethod (in the first pillar) and intergovernmental procedures (in the thirdpillar) as well as the dominance of network governance through intensive trans-governmentalism (in both pillars). Integration occurs not only or primarilythrough legislation but first and foremost through operational co-operation intransgovernmental networks (Lavenex 2009).

With the Western neighbours, JHA co-operation forms a separate type ofmacro-institutional governance Schengen/Dublin association. It is indepen-dent from the EEA and constitutes one of the bilateral agreements with Switzer-land. The degree of obligation contained in the AAs resembles that of the EEA;these agreements are dynamic in the sense that the associates accept the

incorporation of all further developments of the relevant acquis following theconclusion of the agreement. The pressure to align with these further develop-ments is intense, provided that non-incorporation of a norm ultimately leads tothe termination of the agreement. Yet the level of delegation is lower than in theEEA since enforcement is ensured by the national authorities on their respectiveterritories. The EFTA Court has no jurisdiction under the correspondingelements of the agreements. Furthermore, the degree of legalization differsstrongly between the communitarized (asylum, immigration) and intergovern-mental parts of the JHA acquis (police and judicial co-operation in criminal

matters). In the latter area the obligations are generally weaker and less precise.In institutional terms, Schengen/Dublin association amounts to a progressed

form of flexible integration into central EU structures with far-ranging decision-shaping rights. The associated states have access to the Council of Ministers atall levels of seniority through the so-called Comite Mixte (COMIX) procedure.Given the strong convergence of interest between the Western European associ-ates and the EU member states, the formers participation in COMIX meetingsis reported as being quite symmetrical.10 In addition to these central legislativebodies, Norway and Switzerland are well integrated into policy-specific fora; for

example, in asylum the so-called DubliNet system as well as the informalDublin Contact Committee, or, in the field of police and judicial co-operation,Europol, the European Police College or Eurojust.

JHA issues have a high priority in the ENP, although the situation of inter-dependence is very different from the Western countries, given the perception ofthe EUs periphery as a source of soft security threats. ENP documents includ-ing action plans contain provisions on co-operation on asylum and immigration(i.e. readmission agreements, 1951 Geneva Convention, border control, for theEastern countries approximation to the acquis) as well as on police and judicial

co-operation. Yet the degree of obligation and precision is much weaker than inthe Schengen/Dublin association with the Western neighbours. The weaknessof the legislation undeniably constitutes a strong obstacle to efforts at policytransfer in situations with conflicts of interests, such as asylum. An additional


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difficult obstacle to EU hierarchical action is the lack of leverage on the part ofthe EU in trying to impose its acquis on the ENP countries.

Faced with these inherent limitations to hierarchical governance, the EUhas engaged in intergovernmental bargaining with ENP countries on JHA,

such as readmission by offering them financial aid or visa facilitation in returnfor co-operation. Given the difficulty of offering attractive incentives, thesemarket-based modes of governance have also faced limitations, in particularwith the Mediterranean partners. As a consequence, the EU has turned tonetwork governance such as the Soderkoping process to the East which focuseson the exchange of best practices in and information on asylum matters oroperational co-operation in border control (Lavenex and Wichmann 2009).

The limits of hierarchical interaction are even more pronounced in areas stillsubject to intergovernmentalism such as police and judicial co-operation. In the

absence of a strong legislative EU acquis, the majority of obligations in thesedomains are international law obligations such as relevant UN Conventions.To entice the third countries to comply with these international obligations,the EU has adopted a sort of positive sanction in a regulation stating that pre-ferential access to the internal market will depend on compliance with theUnited Nations instruments (Council of the European Union 2005). Themonitoring of compliance is also embedded in international fora such as, fordrugs policy, the International Narcotics Control Board or, for the fightagainst corruption, the GRECO group of the Council of Europe. In additionto these international fora, EU agencies such as Europol and Eurojust havehad first contact with ENP countries. Yet, institutional ties are not really inclus-ive as the pre-eminence of capacity-building programmes directed by the EUshows (e.g. the Belarus, Ukraine and Moldova Anti-Drugs Programme(BUMAD) and the Euromed Justice and Police programme). Apart from asym-metric interdependence, and hence often incompatible interests, inclusivenetwork governance is hampered by political considerations such as the weak-ness of civil liberties standards in the ENP countries.

SECTORAL VERSUS MACRO-STRUCTURES OF GOVERNANCEThe review of co-operation at the sectoral level shows that hierarchical, marketand network types of external governance prevail in neighbourhood relations,quite independently from the overarching macro-structures of an association.Table 3 summarizes the sectoral modes of governance and juxtaposes them tothe macro-structures as well as with internal modes of governance in the sectors.

The first important observation is that the macro-structures do not reflect thesectoral modes of governance. The clearest case of institutional decoupling isresearch policy, which is fully dissociated from the macro-structures and

where we find exactly the same patterns of network governance across countries(with the exception of the Eastern neighbours). But in the other sectors, the legaland institutional patterns also share more commonalities with the internalmodes of sectoral governance than with the macro-institutional set-up.


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Notwithstanding its hierarchical macro-institutional setting, the EEA dis-plays no strong hierarchy in the policy fields under study. An exception isthe aviation sector which clearly reflects single market legislation and itsdynamics. Furthermore, despite the very different macro-institutional relation-

ship with the EU, sectoral governance patterns with Switzerland are nearlyidentical with those in the EEA. The macro-institutional distinctionbetween integration through law and low degrees of institutionalization inSwissEU bilateralism vanishes from a sectoral perspective. Here, we find inall cases dense interaction with sector-specific EU institutions, even when aformal bilateral agreement is lacking (the environment). A remarkablefeature of the ENP is that the sectoral commitments always have highervalues of obligation and precision than those at the macro-institutional level,which only stipulate general approximation. These dimensions tend to

mirror the qualities of the respective internal acquis, especially when sectoralassociation is strong, such as, for example, in the case of MoroccanEU avia-tion co-operation. The most visible impact of the ENPs macro-structures con-cerns the dimension of delegation with the Commissions political monitoringprevailing across sectors. In institutional terms, the proliferation of decentra-lized, sectoral fora of interaction also applies to the ENP countries.However, here relations tend to be clearly more exclusive than with the Western neighbours, with the exception of some parts of environmentalco-operation and research policy.

How can we explain this dissociation between modes of governance at the sec-toral level and overarching macro-institutional association frameworks?

Our findings provide strong evidence for the pre-eminence of institutionalcontinuities between the ways in which the EU governs internally and its exter-nal modes of governance. This applies both to the legalization of commitmentsand to the institutional qualities of interactions. Although it is true that, by wayof the notion of legal homogeneity, the EEA reflects a much higher degree ofobligation towards EU norms, this legal quality has little relevance in policyareas operating by modes other than legislative policy-making, such as researchpolicy or aspects of JHA. The same is true for the precision of rules which

cannot be more precise than what is included in the acquis.Not only the legal but also the institutional characteristics of external govern-

ance are conditioned by the internal organizational context of particularpolicies. The existence of decentralized sector-specific institutions such asagencies (e.g. Europol, EASA), committees (e.g. programme committees inresearch policy) or networks (e.g. JHA networks, international water commis-sions) tends to reduce the importance of the central macro-institutions respon-sible for implementation (EEA Joint Committee, Association Councils andeven ENP subcommittees). While the agenda of these macro-level monitoring

bodies tends to be perpetually overloaded,11

the opening of sectoral fora toassociated countries allows for functional specialization and enhances signifi-cantly the density of interaction, quite independently from existing legalobligations.


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Beyond these commonalities, however, our results also show importantdifferences in the comparison between the ENP countries and the Westernneighbours. The main differences are, first, the macro-institutional system ofpolitical monitoring in the ENP, which applies to all sectors, and, second,

the lesser inclusivity of organizational ties. Are these differences a result ofsuperior EU bargaining power towards these countries, or rather a consequenceof the stronger heterogeneity of domestic political structures (Lavenex andSchimmelfennig 2009)? The contrast between the inclusive organizationalforms of JHA co-operation with the Western neighbours and the exclusivenessof corresponding ENP relations shows that asymmetric interdependencematters. In such politicized or even securitized matters, the EU does not repli-cate the inclusive network governance models practised internally or inrelations with the Western neighbours. Without doubt, the strong compatibil-

ity of domestic structures (political, economic, social, administrative) in theWestern neighbours is also conducive to the extension of internal modes ofgovernance in a non-hierarchical manner. The stronger heterogeneity of theEastern and Southern neighbours not only accounts for weaker legal commit-ments, but also for the looser and more asymmetric forms of organizationalinteraction. In addition, it may be assumed that power and domestic structureswill have consequences for the effectiveness of external governance in terms ofrule adoption and application, but this question is beyond the scope ofthis article. To sum up, whereas these variables explain the differences thatwe find between the countries, they cannot account for the variation that wefind across sectors, which is due to the reflection of internal modes ofgovernance.

CONCLUSION

Contrary to the vast majority of studies that try to characterize EU externalgovernance by looking at the macro-structures of association relations, ouranalysis has shown that overarching foreign policy initiatives, such as theEEA, SwissEU bilateralism or the ENP have little impact on the modes in

which the EU seeks to expand its policy boundaries in individual sectors. Incontrast, modes of external governance follow sectoral dynamics which areastonishingly stable across countries. Even in the light of very differentconstellations of interdependence between the EU and its Western, Easternand Southern neighbours, macro-structures remain secondary to these sectoralpatterns.

By highlighting the importance of institutional contingencies in projectinggovernance modes from the internal to the external constellation, these findingscall into question the rational capacity to steer external governance in neigh-

bourhood relations. Below these foreign policy grand designs, our analysisunderlines the decentralized and incremental character of projecting EU rulesbeyond EU borders. Although our findings confirm the pervasiveness ofpower in neighbourhood relations, in sum the dynamics and patterns of external


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governance reflect the expanding realms of functionalist regional integrationrather than a geopolitical strategy of an emerging international actor.

Biographical notes: Sandra Lavenex is Professor of International Politics at the

University of Lucerne, Switzerland. Dirk Lehmkuhl is Professor of EuropeanPolitics at the University of St Gallen, Switzerland. Nicole Wichmann is aPh.D. candidate at the University of Lucerne, Switzerland.

Address for correspondence: Sandra Lavenex, Department of PoliticalScience, University of Lucerne, Hirschmattstr. 25, Postfach 7464, 6007Lucerne, Switzerland. email: [email protected]

ACKNOWLEDGEMENTSThis paper was written in the context of the project Inside out. New modes ofgovernance in relations with non-member states within the NEWGOV consor-tium. Funding under EU contract no. CIT1-CT-2004-506392 is gratefullyacknowledged. We would like to thank our interview partners for sharingtheir insights with us as well as the participants of the EU external governanceworkshop in Lucerne and the anonymous reviewers for their helpful commentson previous versions of the text.

NOTES

1 The ENP countries are Algeria, Armenia, Azerbaijan, Belarus, Egypt, Georgia,Israel, Jordan, Lebanon, Libya, Moldova, Morocco, the Palestinian Authority,Syria, Tunisia and Ukraine.

2 For reasons of space, we do not deal with the multilateral dimension of associationpolicies (e.g. the Barcelona process and the newly launched Union for the Mediter-ranean and the Eastern Partnership). These multilateral initiatives supplement thebilateral relationships with the EU fora regrouping the neighbouring regions butdo not open additional access to EU institutions.

3 This information is based on a review of subcommittee documents as well as inter-views with participants.4 In this section, we do not deal with the special case of Israel which, although part of

the ENP, has many specific bilateral arrangements at the sectoral level.5 Interviews EU 44 47; Norway 2, 4; Switzerland 8, 10.6 Interview Norway 2.7 Interview Morocco 2.8 Switzerland has only concluded a bilateral agreement on association to the European

Environmental Agency. This covers participation in exchange of information, butno obligations of legal approximation.

9 Interviews EU 43; Norway 2,3; Switzerland 2, 4.

10 Interviews Switzerland 1216.11 For instance, the TREN-Sub Committees under the ENP are in charge of co-operation in transport, research, the environment and energy questions. It is nosurprise that agendas are overloaded and many questions are simply not discussedat this level.


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