It’s just five months until the next European Parliament elections. As with every European Election, both eurosceptics and europhiles face a key difficulty: getting people to vote. Both sides will stress how much, for better or for worse, Brussels matters in the life of European citizens. Over the coming months, we’re likely to hear politicians claim that “80% of our legislation is decided in Brussels”. Although numerous articles and think tank reports have thoroughly debunked this figure, the myth endures. It endures because it’s easy and simple to use. The widespread use of this figure matters as it frames the debate on European governance between national sovereignty and subsidiarity versus integrated European decision-making power. We argue that this frame is unhelpful, as it shapes the debate along whether the EU should or shouldn’t be instead of discussion what it should or shouldn’t do. We suggest that the 2014 European elections should be about debating different policy alternatives – and letting go of the wholesale 80% figure.
Where does the 80% figure come from?
Jacques Delors first mentioned the 80% figure in the late 1980s as a goal for European integration ten years hence. But none of his forecasts concerned the entire European Union. For example, he argued in a speech at the University of Louvain in 1987 that 30% of Belgian legislation came from the European Community and that this share should rise to 60% within ten years. A year later, speaking at the British Trade Union Congress, he posited that “80% of economic and perhaps even fiscal and social legislation” would originate at EU level in ten years’ time. Since then, the figure has been mentioned in domestic debates on the weight of Europe in Denmark, Finland, France, Germany, the Netherlands and others. The figure has become almost uncontested ‘common knowledge’ on European integration, even thought it has been tested, and found wanting, in a growing number of studies.
If not 80%, then what?
The first problem with the 80% figure is one of definition: in order to establish any credible estimates of this kind, we need to agree what “legislation” and “of European origin” actually mean. First, by legislation, do we mean laws voted by national parliaments (making the 80% a measure of attacks on parliamentary sovereignty) or do we adopt a broader definition, comprising secondary legislation (such as statutory requirements in the UK or ordinances and decrees in France) in which governments have the upper hand – or even all rules agreed on by regional or local governments?
Second, what is meant by “European origin”? Academic studies use two main approaches: one approach compares the flow of legislation produced at the national and European level in any given period. In this approach, a strict definition of what are “laws” (excluding secondary legislation and regional legislation) can lead to a high proportion of laws originating in Brussels.An alternative approach entails analyzing how much “European impulses” drive national legislation., Both approaches answer very different concerns. The flow approach investigates whether Brussels bypasses national rule-makers, while the transposition approach attempts to measure how much Brussels constrains national rule-makers. However, the latter approach cannot account for regulations, which have direct effect, and thus do not require transposition.
Not surprisingly, different methodologies generate widely different figures. Following a flow approach, Herzog and Gurken argue that EU legislation represents 84% of German legislation adopted between 1998 and 2004 while Bertoncini found it to be between 10 and 15% in France. Following a transposition approach, here again Germany stood out, with Töller reporting figures shy of 40%, while Terra Nova contended it was “less than 10%” in France. For other Member States, Bovens and Yesilkagit [JS1] found transposition to account for 10 to 19% of Dutch legislation, while in the UK figures are closer to 15%. In sum, using an overall 80% mark is inadequate, and there are clear variations between Member States. But the figures vary even more between different policy areas.
Does the 80% figure hold for environmental policy?
Given the nature of European integration, it is likely that this figure will vary considerably for different policy areas. For example, “European impulses” considerably drive agricultural legislation: estimates range between 28.6 and 79.2% in Germany since 1983 and 63.64% in France between 1999 and 2008. Environmental policy is also very much Europeanised according to this method of measurement: Terra Nova finds that 46.67% of French environmental laws passed between 1999 and 2008 were used to transpose European directives, while Töller finds figures of 69.2% and 81.3% between 1998 and 2005. Thus the idea that 80% of environmental legislation in Europe has a EU origin, mentioned amongst others by former Commissioner Stavros Dimas, is an exaggeration but much closer to the truth than if we consider the whole of the acquis.
What do these figures tell us about European governance?
One may conclude from a quick reading of these figures that we tend to overestimate Brussels’ influence in the member states (as 10-20% impact in many States and even 39% for Germany is far from 80%). But the impact of Brussels clearly reaches beyond the number of directives it churns out: impact also derives from regulations and rulings of the European Court of Justice, to name but a few examples. The differences among member states may also reflect different institutional environments: in France’s centralized system Paris takes many decisions, which the Länder would take in Germany’s federal system.
Better debates on Europe
In the run-up to European elections this May 2014, we are likely to witness how different political actors will use related figures selectively to further their interests. We believe that using wholesale figures of legislation ‘originating’ from Brussels is unhelpful for the reasons detailed above. A better approach may be, first, to debate the competences the European institutions, member states and other actors have in particular policy areas and second, to debate the policies that derive from these competences. This approach would go a long way to presenting voters with credible alternatives that are of interest and matter to them.
 Töller, A. (2008) Mythen und Methoden. Zur Messung der Europäisierung der Gesetzgebung des Deutschen Bundestages jenseits des 80-Prozent-Mythos, Zeitschrift für Parlamentsfragen (Zparl), Heft 1/2008, S. 3-17 available here
 Töller, A. (2008), ibid.
 Töller, A. (2008), ibid.
 Fekl, M & Platt, T. (2010), ibid.