Uncertainty and Hierarchy in the EU Multi-Level Administrative System: An Experimentalist Governance Approach

The extant literature has documented the emergence of the EU multilevel administrative system and underlined some of its most important structural features, such as its composite character and the central role therein played by the Commission. Nevertheless, we are still lacking a fine-grained understanding of what influences sectoral variations in the precise shape of this multilevel administrative system. Whereas the Commission is sometimes said to play a central role in it, the extent to which and how it is able to steer the policy process is subject to significant variation across sectors. How can we account for these differences? To address this question, we turn to experimentalist governance theory. Experimentalist scholars argue about the rise of experimentalist forms of governance, which contrast with hierarchical governance, in particular by granting discretion to member states to pursue different regulatory approaches, fostering common agreements based on the comparison of national regulatory approaches, and allowing a high level of stakeholder participation. This literature has identified two key scope condition for the development of experimentalist forms of governance, polyarchy and uncertainty. In this paper, we assess the relevance of the experimentalist approach to understand cross-sectoral differences in the extent of hierarchical governance manifested in the EU multi-level administrative system. We do so based on a comparison between the electricity and telecommunications sectors, from the beginning of their liberalisation and re-regulation in the late 1990s to the present day. While both domains share important sectoral and institutional features, they differ regarding the extent to which and how the Commission is able to steer other actors involved in the multi-level regulatory process. While in telecommunications the Commission performed a key hierarchical role on national regulatory agencies and policy stakeholders have never been given any privileged role in the decision-making process, the opposite is true in the electricity sector. There, the Commission remained in the background, while most of the regulatory process was conducted by national agencies, and the coordination of national regulatory approaches was entrusted to an important stakeholder platform and an EU regulatory network. Partly in line experimentalist theory, we find that the difference in the degree of hierarchical governance across sectors, regardless of similar levels of polyarchy, was due to different degrees of uncertainty characterizing the choice of appropriate regulatory options.