The interplay between agency and structure

Rational choice institutionalist (RCI) and sociological institutionalist (SI) lenses operate under individualistic / non-individualistic actor assumptions, respectively. RCI approaches accept that collective action problems create institutional lock-ins and structural rules that limit the pursuit of self-interest (Farrell & Héritier, 2007; Héritier, 2007). In turn, SI approaches are in opposition to instrumentalist understandings of norms, yet acknowledge that norms may not be equally relevant under all circumstances for all actors (Checkel, 2005). But how exactly does the institutional setting constrain or enable agency by empowering or excluding norms?

RCI approaches have in the past equated norms with irrationality and non-consequentialist behaviour ordering normatively driven action at a lower level than the pursuit of Pareto-optimizing self-interest, or have regarded irrationality as a calculated bargaining tool (Elster, 1989). Norms have often been understood in a proceduralist fashion seen as standardized practices or customs in repetitive bargaining situations, creating more calculability and stability (Axelrod, 2006; Kreps, 2001) or as tools for practicing ‘rhetorical action’ (Schimmelfennig, 2001). Alternately, it has also been argued that certain actor’s might simply have increased sensitivities to normative arguments (Héritier, 2007). However, such black box understandings of norms seem to miss the point. Social learning has played an undeniable structural role in the evolution of the EU over time (Fligstein & Stone Sweet, 2002). After all, why else would have Member States decided to complement the traditional IGC venue with the Convention if not because of a learning curve that led to the realization that the norm of ‘integration by stealth’ (Majone, 2010) was unsustainable vis-à-vis electorates?

In turn, the main criticism levelled against SI is that its isomorph all-encompassing understandings of structure leave little room for meaningful acts of agency in the pursuit of preferences or indeed change (Hay, 2006; Immergut, 2006). In recognition of these shortcomings, there have been attempts to move beyond both instrumentalism and all-encompassing isomorphism. Relaxed rationality assumptions and thin readings on SI leave room for developing more structural understandings of norms while maintaining basic assumptions of consequentialist behaviour. Importantly, here consequentialism is not synonymous with individualistic calculus but is rather the notion of agents consequentially pursuing what they perceive to be their best interests (Jupille et al., 2003; Norgaard, 1996).

In this vein it is generally accepted that through external triggers such as ruptures (Norman, 2015), societal interest aggregation (Moravcsik, 1993) or processes of socialization (Checkel, 2005) norms can come to constrain the tools that are available to consequentialist actors during processes of institutional change or can empower certain logics of appropriateness. Given that the Constitutional Convention was created to institutionalize the norm of democratic participation and transparency in formal treaty making, we can justifiably expect this norm to have some structural level effect on participants who are otherwise pursuing their self-interests.

Based on this literature, three rather unproblematic assumptions seem to stand out that fit the limits of both relaxed RCI and thin SI explanations without violating their ontological distinctiveness.

• Agency requires pre-formulated preferences – actors taking part in processes of institutional change need to posess pre-formulated preferences in order to meaningfully influence the process of change. These preferences can be individualistic or altruistic.

• The venue matters – Both proceduralist and substantive norms will impose limits to actors’ preference maximization. Consequentialist behaviour will not unfold in a void, with actors having to take account of the normative environment they are in. The distribution of resources will also limit or enable actors.

By corollary:

• Preference-maximizing action – consequentialist behaviour can be expected of any agent with pre-formulated preferences. Given the constraint of the venue, primarily individualistic actors will have to appeal to the substantive norms set by the venue in order to ground their preferences in appropriateness. By extension, primarily altruistic actors will have to be prepared to bargain within the confines of appropriateness seeing that individualistic motivations cannot be ruled out.

This expectation is based in the social psychology literature on cognitive processing tells us that in cases when an argument is not prima facie seen as problematic by individuals, they will be less likely to expend ‘attentional and cognitive resources’ (Weber, Kopelman, & Messick, 2004, p. 285) on interpreting the argument. Rather, if faced with ‘believable conclusion’ they will rely on their ‘belief biases’ (Evans, 2008) such as ‘rules of thumb, heuristics, and habit than by deliberate utility-maximization’ (Weber et al., 2004, p. 285) in making a decision on the validity of the argument. Lacking cognitive triggers that would identify issues as problematic, individuals are not likely to argue and will adhere to something akin to a logic of appropriateness or cognitive shortcuts, belief biases.

Let us now turn to process tracing which will be of use in systematically ordering these theoretical and empirical expectations into a coherent causal mechanism.

Three causal conditions

The first causal condition concerns the Convention as a structurally biased venue favouring European elites over NPCs. From a lack of adequate resources (offices & support staff) to a lack of adequate expertise in many cases, NPC’s were highly reliant on political group meetings that took place throughout the proceedings (Schönlau, 2007). These, however, were dominated by a few charismatic leaders and did not provide unbiased access to information for NPCs (Magnette, 2004). This point is substantiated by (NPC1) when talking about the difficulties that he and many of his fellow Conventioneers faced in grasping the sheer scale of the exercise, admitting to having a narrow issue focus with his opinions being overwhelmingly based on the political direction of the chairman of his political group. As Van Hecke (2012) points out, national parliamentarians were dominantly ‘socialized’ and ‘co-opted’ (p. 845) by MEPs in their respective political groups becoming reliant on not only their expertise but also their perceptions. The representatives of national governments and the EP did have agendas and were in much better positions to peruse them. Both because of their structural advantages (the Convention took place in the building of the EP and governments could rely on their institutional background) and because of their familiarity with EU jargon and legal texts (Schönlau, 2007). Albeit the EC was represented we can largely discount Commissioners ability to effectively pursue their institutional goals as in many cases they lacked institutional support for their agendas which were often at odds with the Commission’s agendas (Beach, 2003). Also, there was a general disposition in the Praesidium – the Convention’s governing body – and its Presidency, in particular, to push for more rather than less integration (PRES; Tsebelis & Proksch, 2007). This is the most certain of our conditions as there is no counter argument being presented in the literature (Allen, 2003; Closa, 2004; Magnette & Nicolaïdis, 2004).

The second condition concerns the institutional agendas of the Member States, the EC and the EP with relation to modifying the institutional framework of the CCP. The EP was the only EU institution which had a clearly developed and stated aim in this regard before the Convention actually started. This was formulated in a 2001 resolution in the run-up to the Convention:

The third condition concerns democratic traditions in European representative democracies where the ratification of external treaties – either to do with trade or other issues – is generally subject to parliamentary scrutiny and approval (Weiler, Haltern, & Mayer, 1995). Looking back at the evolution of the CCP the gradual empowerment of the EC as a negotiator had meant a simultaneous encroachment on these national parliamentary functions. Not fully eliminating their role but transferring more and more areas into the realm of community competence had meant taking more and more decisions on concluding agreements in the Council (Gstöhl, 2013). Although national constitutional setups differ, this has in many cases meant that national governments could bypass their legislatures with greater ease. Informational gatekeeping and closed-door Council bargaining generally frustrates national legislatures (MacCarthaigh, 2007). Indeed, Crum (2005) argues that the Convention was underpinned by the general notion that the EP should ‘step in’ to assume responsibility for the democratic functioning of the Union where member state legislatures competences end. Participants of the Convention acted in this spirit endeavouring to make nothing less than a Constitution based on European democratic traditions (PRES). Following this line of reasoning, we can assume that national parliamentarians would share an understanding, or would hold a belief bias that it is appropriate to have parliamentary scrutiny over executive-led trade negotiation. As such, we should expect NPCs to be sympathetic to arguments advocating for increased EP involvement in the CCP.

The causal conditions can be summarized as:

• (C1) The Convention was structurally biased to favour MEPs, Member States, and Commissioners in terms of resource availability and access to information.

• (C2) The EP had a – common – organizational level goal of modifying the CCP to include a veto.

• (C3) NPC’s coming from different national legislatures shared a belief as to the appropriateness of having parliamentary scrutiny over executive powers of trade negotiation.

Taken together, these three empirically observable causal conditions are in line with the middle ground assumptions drawn from the new institutionalist literature on change. At the start of the Convention, MEPs came prepared with pre-formulated preferences while NPCs shared an ingrained bias. The venue itself, enabled MEPs while imposing high barriers to NPC participation. The third theoretical assumption, the consequentialist pursuit of preferences remains unaddressed. Yet the causal conditions allow for the formulation of a plausible causal mechanism to (dis)confirm the third theoretical assumption and explain the puzzling empirical outcome (O).:

• (CM)because of resource and informational asymmetries (C1) and a shared sociological foundation amongst NPCs (C3) MEPs were put in a privileged position to pursue the EP’s institutional preference of self-empowerment (C2) through agenda setting at the Convention (S1) which they did through (S2) a mixed use of (rationalist) tools and an appeal to national conventioneers’ sense of appropriateness to reach the inclusion of the veto (O).

The causal conditions the two steps and the outcome are theoretically and empirically conceptualized in Table 1, and the expected observable manifestations for steps 1 and 2 (S1 and S2) are further developed in Table 2. Observable manifestations are not developed for the causal conditions as we already have a high level of certainty here.

Agenda setting and a mixed bag of tools: unpacking steps 1 and 2 of the mechanism

As Table 1 shows, the causal mechanism builds on the theoretical insights of the two brands of institutionalisms discussed above and the three causal conditions extrapolated above. As such, the first step of the CM assumes that MEPs, as consequentialist benefit maximizing agents of the EP at the Convention, will represent the EP’s pre-stated goal of institutional empowerment. In order to do so they – MEPs as a cohesive group – need to set the agenda of the proceedings and push for the acceptance of the EP’s empowerment. We can expect to see MEPs practice bargaining and a reliance on their informational and resource advantages vis-à-vis other conventioneers.

However, theory tells us that strands of appropriateness – such as the expectation of having the formal rule-making process and its outcome be reflective of the norms of democratic accountability and transparency – do play a role next to rationalist bargaining. Indeed, the EP is seen to have used appeals to similar appropriateness during previous rounds of formal treaty change, well before the Convention venue made norms such a central consideration (Nicolaidis & Meunier, 2002; Rittberger, 2012). Therefore, it would be unreasonable to expect MEPs to not try to use a mixed bag of tools at the Convention. It is indicative that even the initial framing of the EP’s desire to modify the CCP was based on the EP being an important ‘factor for democratic participation and scrutiny’ (European Parliament, 2001). So, we should expect MEPs to consciously frame an increase in the EP’s powers as a democratizing factor. This, in turn, should activate belief biases in NPCs that as a ‘rule of thumb’ favour Parliamentary control over executive-led trade negotiations. Agenda setting (S1) and (S2) are operationalized in Table 2.

Having grounded the CM in theory and having established the expected observable manifestations, in part 3 I go on to test for the presence of the CM during the Convention. While observable manifestations have only been developed for (S1) and (S2) in Table 2, evidence to further substantiate the presence of the three causal conditions (C1), (C2) and (C3) is also pointed out. This section also touches upon why the EP veto made its way past the two IGCs that were necessary to approve the Constitution and why the veto remained unchanged in the ToL.

Working group III on the legal personality: where shared ideas become apparent

It was in this working group that the question of modifying the EP’s powers in relation to adopting international trade agreements first came up. Participants overwhelmingly agreed that giving the EP more power was desirable. A closer look at the observable manifestations highlighted in Table 2 lend credibility to the existence of the third causal condition (C3). Conventioneers shared a strand of appropriateness relating to the role of parliamentary involvement in trade policy making.

The initial tone of the discussion in WG III was set by contributions from legal advisors of the Council, Commission and the EP. All three pointed out the practical difficulties associated with having parallel legal personalities for the European Communities and the need for more effectiveness in speaking with once voice vis-à-vis negotiating partners (WG III, 2002b). The EP was only scantly mentioned. The head of the Council’s Legal Service referred to the fact that granting legal personality to the EU, would not automatically modify the role of the Parliament in adopting trade agreements (Ibid, p. 10). Nonetheless, as soon as the Group discussions started, the German Government Conventioneer suggested granting the EP more involvement in the conclusion of agreements proposing that: ‘the Council and, if necessary, the European Parliament, would decide once negotiations had been concluded whether the outcome (…) should be accepted (…)’ (WG III, 2002d, p. 2). What the term ‘decide’ meant was not elaborated upon. The first draft resolution of the WG, however, seemed already to clarify this by asserting that there was a ‘need to consult the Parliament’ (WG III, 2002c, p. 11), as ‘at the political level (…) it seems difficult to justify [the EP’s] exclusion’ (Ibid). Although the draft text also acknowledged that this was ‘not directly linked to giving explicit legal personality to the Union’ (Ibid p.11). No further discussion on the issue took place. The final resolution of the group recommended extending the Consultation procedure to the adoption of international trade agreements (WG III, 2002a).

While MEPs were present in the WG they did not submit written interventions to the issue. The German Government representative’s agency, however, is in line with the literature’s claim that there was a strong pro-supranationalizing bias amongst the German political elites in general (Kohler-Koch, 1999). Considering how the role of the EP was brought up – with specific reference being made to ‘the political level’ – and considering that Conventioneers recognized that modifying the rules of EP involvement was not linked to the question of the legal personality lends a great deal of credibility to the existence of (C3). Furthermore, NPCs were rather active on a variety of topics in WG III but did not raise objections to the expanding the EP’s involvement. This also provides added confirmation to the argument that NPCs accepted the appropriateness of the belief that the EP should have a stronger role in overseeing international agreements. As (LA) recalls the need for some sort of Parliamentary control over trade was seen to be essential by members of the WG in recognition of the effects of previous rounds of treaty making which had ‘reduced or even eliminated’ (LA) national parliaments’ involvement in the CCP. This was thought to be contrary to the aims of the Convention in proposing rules that would live up to expectations of democratic scrutiny and transparency (PRES) (NGC1).

Working groups VII on external relations and IX on simplification: a use of distinct tools

A closer examination of the developments in these two working groups reviles how MEPs agency in furthering the common organizational goal of empowerment built on rationalist tools and an appeal to NPCs shared belief of appropriateness (C3). On the one hand, MEPs exploited their resource advantages by embedding the EP veto in a complex jargon-laden rule change in WG IX. On the other hand, MEPs continued to garnish support for the EP veto through appealing to the same logic of appropriateness that became manifest through discussions in WG III. A closer look at the developments here – through a focus on the observable manifestations highlighted in Table 2 – lend credibility to (S1) and (S2).

In late September of 2002, at the very start of the proceedings in WG VII, in a written contribution German MEP Elmar Brok asserted that: ‘The Council shall conclude agreements, after the assent of the European Parliament has been obtained, when the agreements cover a field for which the co-decision procedure is required for the adoption of internal rules’ (WG VII, 2002b, p. 5). Whereas the final report of WG III suggested consultation and a better flow of information to the EP, Brok’s suggestion of the use of the assent procedure – an up or down vote on a Commission proposal – was a call for a veto right. As such, it was Brok who placed the veto on the agenda. Rosén (2016) suggests that the veto was advocated for by a strong Commission – MEP alliance. While it is certain that the Commission subscribed to the normative foundation of the need to empower the EP (LA), Commissioner Lamy did not support the assent procedure. Speaking in mid-October – following Brok’s proposal he suggested Consultation powers, saying that the EP’s role should be modified ‘as Giuliano Amato’s group [WG III] suggested’³ (WG VII, 2002c, p. 7). In other words, he called for consultation.

As (NGC1) recalls, the question of increased EP involvement was not a high salience issue during the initial discussions and national parliamentarians were mostly inactive and uninvolved (NPC2). This shows in the discussions leading-up to the first Draft Final Report of the WG VII, which were mostly concerned with the question of global leadership. In this light, it is unsurprising that the document did not make specific mention of the veto calling instead for a single legal personality for the EU in negotiations while underlining that the legal personality: ‘would not necessarily involve changes to the specific arrangements of the procedures’ (WG VII, 2002d, p. 11). Here again, Brok, this time supported by three other MEPs and a national MP, called for two amendments to the text. The first one asking for a drastic expansion of QMV decision making in the Council stating that: ‘QMV should be the norm in the field of external action of the Union, including the whole CFSP, with the unique exception of defence issues (…) the introduction of co-decision for legislative acts and assent for any international agreement’ (WG VII, 2002e, p. 12). The second one asking that the ‘EP assent on any international agreement concluded by the Union, at least for those having legislative or budgetary implications’ (Ibid, p. 15). Proposing a practical blanket extension of co-decision to CFSP – which clearly emerged as the most controversial issue of the discussions in WG VII – was bound to be rejected. Sure enough, it did not appear in the second Draft Final Report. Proposing a veto right for agreements entailing legislative or budgetary implications was also a blanket exigency. An extreme position seeing that any international agreement would have at least one of these two implications. This was also dropped from the second Draft Final Report.

However, expanding QMV voting in the council to the CCP and in turn linking co-decision to all areas of QMV and calling for Parliamentary control of treaties based on QMV decision by way of the assent was already being discussed in WG IX on Simplification by the time that Brok proposed these changes (WG IX, 2002b). The discussions in WG IX were steered by individual and group contributions made by Conventioneers at the start of the Convention. This expansion of QMV and its linkage to co-decision and the assent procedure for international agreements was placed on the agenda by Dutch Peoples’ Party (EPP) MEP Maij-Weggen based on an EPP discussion paper (EPP Group, 2002) that was elaborated by EPP MEPs and circulated throughout the Convention by Brok. Here only the Finnish Government representative in WG IX called for an EP ‘opinion’ in place of the assent procedure. Nonetheless, the final draft remained unmodified. Similarly, in WG VII, only the Finnish and Swedish Government representative raised concerns about expanding the EPs powers to the assent procedure fearing that such a degree of EP involvement would make the EU more protectionist (LA). Nonetheless they ‘did not pursue the argument’ seeing that ‘nobody had valid arguments to contest such [an] alignment (…) of carrying over the principle of equal footing between the Council and EP for legislative matters’ to the CCP (LA). In its final report (WG IX, 2002a) WG IX adopted the Maij-Weggen approach in late November. This effectively provided the EP with the veto it sought as it proposed expanding co-decision to the CCP and required all international agreements relating to co-decision policy areas to be voted on by the EP.

Nonetheless, the Final Report of WG VII stated that: ‘some members pleaded in favour of an EP assent on any international agreement in matters of international trade policy’ (WG VII, 2001, p. 30). This, a narrower wording, made the veto in the case of trade agreements perfectly specific while dropping any reference to co-decision, legislative or budgetary implications. But seeing the developments in WG IX, this plea was effectively made redundant. This is something that Brok and fellow MEPs would undoubtedly have had to be aware of, seeing that the Political Group meetings took place throughout the Convention and that Brok and Maij-Weggen both belonged to the EPP. Nonetheless, led by Brok, MEPs consistently kept pushing for the explicit adaptation of ‘trade’ whenever the question of international agreements came up (WG VII, 2002a, 2002b, 2002e). As such, pushing for specific empowerment in trade agreements by Brok and fellow MEPs despite the proposed rule change already passing into the plenary by way of another WG lends credibility to S2’s claim that MEPs will employ different tactics in an effort to build redundancies. Bork’s constant reference to trade can be interpreted as an appeal to (C3). The degree of success that Brok and supporters had in making the issue of empowering the EP specifically in trade ‘stick’ becomes apparent by looking at what happened during the plenaries.

Plenary sessions

By the time the plenary sessions had started NPCs felt that they could identify more with MEPs than their own government representatives. As (PRES) recalls there was a general feeling amongst NPCs that supporting MEPs and their proposals would make for a more democratic and transparent Draft Constitution. The developments during the Plenary debates highlight this point seeing that National Conventioneers coalesced around MEPs appeal to appropriateness when calling specifically for empowerment in the realm of trade agreements. Together with the fact that the eventual Draft Constitution reflected the proposals of WG IX on Simplification instead of spelling out trade agreements as such lend support to (S2)’s assertion that two sets of tools were employed by MEPs to reach their stated goal of attaining the veto.

It was in the Plenary debates that Conventioneers had an opportunity to discuss the Final Reports of the individual WGs. During the discussions on the final report of WG VII in December (on the 16th and the 20th), no substantive discussion took place on the role of the EP in adopting international agreements. Yet, while the summary of the debate on the 16th mentions some members, the summary from the 20th cites many members arguing for a larger role for the EP. Based on these debates the Convention Secretariat proceeded to draft the relevant parts of the Draft Constitution. This was completed by early May. What is extremely telling are the proposals and amendments that Conventioneers tabled to the Draft Constitution following the meeting on the 20th.

The Draft Constitution proposed expanding the legislative procedure to include the ‘framework laws required to implement the common commercial policy’ (The European Convention Secretariat, 2003, p. 105) in Article 24. Here there was a clear lack of support for a concerted effort by the Swedish and Finnish Conventioneers to take the adoption of framework laws out of the legislative procedure. Only four Conventioneers signalled their support (Ibid p.106). However, there was a very clearly observable clustering of European and National Parliamentarians around the explicit exigency to give the EP the right to assent any international trade agreements. Even though article 33 (7) predicated on the Maij-Weggen approach already granted the EP the right to assent to agreements concerning policy where the legislative procedure applied (Ibid p. 135). Seeing the lack of support for changing Article 24 (2), the exigency of 61 (!) Conventioneers to include a specific reference to ‘trade agreements’ seems to carry particular importance (Ibid p. 139). Out of these 61 Conventioneers, 20 were MEPs, 39 NPCs while only 2 were representatives of national governments. Out of the 14 amendments tabled to modify 33 (7) – all of which proposed specifically adding ‘trade agreements’ in addition to ‘agreements covering fields to which the legislative procedure applies’ – 13 originated from MEPs, while only one was tabled by an NPC. This provides added credibility to the claims that MEPs had a resource advantage over NPCs (C1) and that they pushed for the same goal regardless of party affiliation (C2). Furthermore, the events that took place during the plenaries also support the assertion that MEPs were actively setting the agenda and that they tried hedging by effectively pushing for redundancies in the treaty in order to make sure that the desired institutional rule change would stick.

The notable exceptions here are the two-two NPCs from Finland and Sweden who opted to support the amendments of their government representatives in the effort to modify Article 24. However, two Finnish MEPs were among the 20 MEPs who pushed for adding ‘trade agreements’ to article 33 in opposition to the national stance. In the end, the Draft Constitution included – what later became Article 218 in the Lisbon Treaty (Consolidated Version) – in Article III-217 that: ‘The European Parliament’s consent shall be required for (…) agreements covering fields to which the legislative procedure applies.’ (European Convention, 2003, p. 174). As such, ‘trade agreements’ were not separately enumerated as an item, where the assent/consent of the EP would be required. The Maji-Weggen approach that was already present in the Final Report of WG IX turned out to be the one that the Draft Treaty followed. Nonetheless, the conscious push by MEPs pursuing the specific agenda item of trade was by no means irrelevant, as they managed to rally a large amount of support, and practically no opposition towards it. This, in turn, is a highly unique and certain piece of confirmatory evidence towards confirming S2. National parliamentarians support a clear and unmistakable push towards granting the EP the veto because of the effects of (C3): their shared belief in the appropriateness of having parliamentary oversight.

Also, the lack of attention paid to the more legally complex jargon-heavy approach that was in effect elaborated in WG IX can be explained with the resource disparities of national conventioneers and the obfuscation caused by this. Even if any NPCs would have grasped what was being proposed in WGIX the absence of any substantive discussion can at the very least lead us to conclude that the issue was simply not seen to be problematic.

Nonetheless, rallying support behind the call to include trade agreements gave for an easier and more visible platform. The dominance of the institutional roles, as opposed to national allegiances, is also a noteworthy development which lends additional strength to the implicit assumption behind (C3), namely that the EP found a natural ally in disenfranchized national parliamentarians.

IGCs and the member states

Although the Draft Constitution was rejected by French and Dutch voters in popular referenda the eventual ToL is widely understood to be a demystified version of the Constitution, without the symbolic elements (Barrett, 2008; Piris, 2011). So, in order to answer the question of why the ToL included the veto, we have to ask the question of why Member States approved the Constitutional Treaty in the first place. Following the Convention, the Draft Constitution was out of the hands of the Conventioneers. It had to be ratified by a traditional closed-door IGC at Rome. Hence, there was no more room for Convention participants to actively influence the outcome as a unified body (PRES). At Rome, the Constitution was rejected due to a Spanish and Polish veto. Tsebelis (2005) identifies the debate on how to change the triple majority rules of QMW in the Council as the principle cause here. Héritier (2007) further points out that during the ensuing background discussions on how to salvage the Treaty, it was the EP’s increased budgetary powers that were at the centre of concerns of more intergovernmental Member States, not the EPs increased role in ratifying international treaties. These issues persisted in remaining front and centre during the subsequent Brussels IGC in 2004 which ended up adopting the Draft Constitution with significant modifications in the area of QMV voting and curtailing the EP’s budgetary rights. Nonetheless, the linkage between the QMV – co-decision and the EP’s right to ratify international treaties relating to these policies remained untouched. We need not look far for a plausible explanation for this outcome.

Experience with past IGC has taught us, that these negotiations do not take place under perfect information due to limited resources and time constraints. This was also the case with the Rome and Brussels IGCs which were accompanied by a strong sense of urgency and political pressure (Desmond, 2004). Under such circumstances negotiating parties strive for outcomes that satisfy the concerns of all Member States, dealing with problematic issues once they come up. Yet formal treaty changes are best seen as incomplete contracts (Moravcsik, 1993) insofar as not all contingencies are addressed. The EP’s veto right was simply not addressed and its ramifications were not fully comprehended by elites until the rejection of the ACTA agreement in 2012, some 3 years after the ToL took effect (Matthews, 2012). The point is substantiated by (M) who describes the IGC behaviours of Eastern-European members in particular as being focused on singular issues. For instance, in (M)’s home country there were absolutely no discussions about questions of institutional design. The role of the EP or indeed the issue of QMV were not discussed at all on a national level.