Knowing your limits: Informal governance and judgment in the EU

Abstract

The burgeoning literature on informal governance has shed new light on the workings of international organizations and the hidden rules of the game. The common thrust of these studies is that informal governance is the result of an implicit agreement among states that, in order to sustain cooperation, it can be necessary to accommodate important interests even if this seemingly goes against the organization’s purpose. Struck under conditions of uncertainty, however, implicit agreements such as this are necessarily vague, and their implementation is bound to generate conflicts that threaten to undermine the organization’s legitimacy. How, then, do states decide whether formal rules or informal governance apply? This article uses the case of the EU to propose a solution to this dilemma. The central argument is that member states have delegated the authority to adjudicate on demands for informal governance to the office of the Council Presidency. They mold the legislative agenda such that the government in office can be trusted in its judgment. The plausibility of this argument is illustrated with a description of the Presidency’s historical development and a case study on the negotiation of the EU’s controversial Working Time Directive. Apart from pointing to a missing piece in the literature on informal governance, the study holds more general lessons for the interaction of formal and informal rules as well as the information-providing role of international institutions.