Year XXXVII, 1995, Number 1 - Page 8

 

 

 

Towards a European Constitution*
 
ANTONIO PADOA-SCHIOPPA
 
 
Premise.
 
The debate about the 1996 intergovernmental conference, scheduled by the Maastricht Treaty, is now underway. Yet the institutional ties of today’s and tomorrow’s Europe are ignored or undervalued not only by public opinion but also by the political classes of the various European countries and by the print media. The fourth legislature of the European Parliament elected by universal suffrage has got off to a bad start, since regrettably the electorate was not asked to choose between programmes and candidates which were designed to present clearly the different possible paths along which the Union might evolve. The parties’ European programmes are often vague, and moreover unknown to the average voter. Electoral decisions are made essentially on the themes of domestic politics.
The reason for the skewing in a national sense of the five-yearly appointment between citizens and Europe can be easily explained. The popularly-elected organ (which therefore is endowed with the maximum democratic legitimacy at the European level) does not exercise coherent powers in accordance with the principle of popular sovereignty. For this reason, the vital circuit between political programmes and voting behaviour, between the expectations of civil society and political representation, can not yet be effectively established. The national skewing of the European electoral campaign is the symptom (not the cause) of an underlying defect in community institutions. In the same way, regional elections in Italy were, at least until the recent reform, skewed in a national sense.
Over the coming years, the European Union will have to face two sets of challenges: those connected with the fulfilment of the Maastricht Treaty’s objectives, and those imposed by the prospect of the Union-Community’s enlargement to other European countries. The first aspect involves the putting into practice of cohesion and social policies, trans-national networks and the other policies foreseen by the treaty regarding the single market and economic union; it also involves the problematic deadlines linked to the monetary union process, which were defined with unusual precision in the new treaty; finally, it concerns the launching of a common foreign and security policy, and the management at the European level (where necessary) of internal and justice affairs. In other words, an immense range of possible initiatives has been opened up. The second aspect involves the strategies relating to the entrance into the European Union of the countries of northern, central and eastern Europe: a process that is by now underway, and which has raised the number of member states of the Union-Community to 15, and will raise it in the future to 20 or more.
Some of the fundamental hurdles posed by the existence of the two challenges outlined above are the issues of an institutional, or rather constitutional, nature. Faced with such a formidable planning task, it is unavoidable to face up to the issue of the Union’s institutions, which indeed will be the specific object of the now close-at-hand intergovernmental conference. It is therefore not too early for a series of reflections along the lines of the decisions that will soon have to be taken in this field.
The European Union does not yet possess a formal constitution, but without doubt it possesses a constitutional “skeleton” that is the result of the system of institutions provided for by the treaties that has been created over the course of forty years. It is necessary to bear in mind that the Community was in fact born and developed through the instrument of treaties (and for this reason with classic inter-state procedures of an international nature, founded on the free consensus of all sovereign subjects), but despite this it was in reality conceived of from the outset according to a design that was very different from that habitually found in treaties dealing with mere commercial or economic matters. A group of states decided to elaborate jointly the strategies and decisions concerning energy sources, and the free exchange of goods, services, people and capital, and in doing so established a Council with regulatory powers that represented the states, a Parliament elected by the people, a Commission with powers to propose legislation and to govern that was endowed with a complex administrative structure under its control, and finally a Court of Justice responsible for settling disagreements. It would seem clear that a structure conceived of in this way, and which is articulated through the four above-mentioned basic institutions, possesses not a few of the characteristics of a state. For this reason, it can and should be assessed according to parameters of a constitutional nature.
 
Two Visions of Europe.
 
According to widely-held opinion, two conceptions about the composition that tomorrow’s Europe should assume are currently opposing each other. On the one hand, a Europe of states, regulated as a simple free trade area; on the other, an integrated Europe in line with plans designed to create a federation of states.
The first concept, of which Britain is considered the main supporter, may perhaps be reinforced by the inclusion of Austria, Finland and Sweden, since not only some of these new member states seem to share with Denmark (in addition to the United Kingdom) a “minimalist” vision of European construction, but their entrance into the Union (without the Community’s institutions having been previously reformed) seems to foreshadow a weakening of decision-making capacity at the European level, if for no other reason than the greater difficulty of finding agreement among fifteen rather than twelve member states.
This two-sided interpretation of European Union perspectives is certainly not without foundation. It does require however certain, not inconsiderable, qualifications. Above all, it is impossible not to note that the Europe of the Community was never (and today is even less so, following Maastricht) a simple free trade area: on the one hand the regional and social policies which are the necessary complement of the competition principle that lies at the heart of the single market, and on the other the system of institutions mentioned above, represent a group of common policies, and a complex structure that go well beyond a simple agreement for the free exchange of goods and services. On the occasions that a mere free trade area has been planned in Europe, it has failed to achieve the goal for which it was established, and its members have opted for the Community model by asking and obtaining entrance into the EEC.
The European Union is not EFTA, nor will it be able to become in the future that which it has never been in the past, except at the cost of radical demolition: an objective that however does not seem probable, and which in any case would not be easy to achieve, and which ultimately would bring on consequences probably not wished for by its own supporters. Let’s consider what would happen should the Community’s policies provided for by the treaties be realised in future through simple voluntary accords of intergovernmental cooperation, taken unanimously at the level of the Council of Ministers: this would result in the paralysis of the single market and thus crisis in the European economy. This is why the European Union will not be able to become tomorrow what it has never been in the past.
As regards the other vision of Europe’s future (the vision we have termed federalist), it is founded on an awareness of the real roots of the European unification undertaking, which are not economic roots but political and idealistic ones, as any serious historical examination of the “founding fathers” (from Jean Monnet to Altiero Spinelli, Alcide De Gasperi, Robert Schumann and Konrad Adenauer) demonstrates without a shadow of a doubt. The Europe of the Community was born to banish definitively the risk of war among the continent’s states, and to exorcise once and for all the horrors of world war, after twice within fifty years the whole world had been bloodied, for which Europe and its governing classes bore the principal responsibility.
The common market represented the acid test of the Union’s vocation following the collapse of the constitutional project linked to the 1954 European Defence Community initiative. This acid test has proved extraordinarily productive of concrete results, if one considers that per capita gross domestic product has quadrupled in real terms from 1951 to 1992; and that in the same period private consumption has quintupled, while real output per worker in industry has multiplied eight times. The common market’s success beyond all expectations has encouraged even countries that were originally hostile to the integration idea (primarily Great Britain) to seek entrance into the Community.
The above-mentioned political and idealistic roots explain the institutional and constitutional nature of the Community’s construction, and its structure, which is much more articulated compared to what would have been conceivable were the aim solely to improve the circulation of goods to the benefit of citizens.
Nevertheless, the supporters of the future Europe’s federal vocation do not foresee a single constitutional project, nor a single and coherent strategy: in this area there exist various points of view.
As concerns the competences to be attributed to the European level, there exist supporters of continental unification similar to what occurred at the formation of the nation-states, or at least similar to what is current1y the situation in so-called centralised federal states such as the United States. There are also supporters of a core of European federal power that is reduced to the indispensable minimum for effectively achieving the Community’s policies, according to the criterion of subsidiarity, sanctioned for the first time by Maastricht. This latter position (which I would argue is undoubtedly preferable to the former) implies nevertheless the attribution to the European level of a quantity of resources that is superior to those of the current Community budget, and (if one accepts the conclusions of the recent document published by the Commission, “Stable Money, Sound Finances”, commonly known as McDougall 2,) specifically of total resources for the Community budget of the order of 2 per cent of total national GDPs, compared to the current Community budget which is of the order of 1.2 per cent. These contributions are very modest when compared to the budgets of the nation-states. But they are coherent with the criterion of subsidiarity, which imposes entrusting the European level only with the initiatives that can not, because of their scale or due to their impact, be effectively undertaken at the national level.
As regards the European Union’s institutions and powers, there are those who support the strengthening of the role of the Community’s Council of Ministers, considered to be the true motor of Europe’s development. Others support a different and more balanced relationship between the Council, the Commission and the European Parliament. These two strategies are very far apart both in their premises and in their consequences. The former argument is rooted in the vision of a Europe of states, in which political action and will emanate from the nation-states through the channel of their government officials: in this vein, note the policy criteria for foreign policy, security, internal and judicial affairs established at Maastricht, where all decisions are to be taken only by the Council of Ministers deliberating unanimously. The second argument is based instead on a political and constitutional concept according to which powers are balanced, and in which the popular sovereignty expressed through voting can direct the European Parliament’s great legislative decisions and can influence the government’s action through the European Parliament’s vote of confidence in the Commission.
It hardly needs to be pointed out that only the second argument is coherent with the fundamental postulates of modem democracies.
 
Constitutional Principles.
 
If it is true that the current Europe of the Community possesses in reality a constitution, albeit only embryonic and to a certain extent implicit, it is no less true that it is now necessary to define clearly a valid constitutional programme for the future.
This can take place through the discussion and approval of a real and effective European constitution; or through the introduction of certain principles which have the value of constitutional principles; or again, through the approval of certain reforms that concern the powers and procedures of the Community’s institutions. The institutional reform scheduled by the Maastricht Treaty for 1996 will not be able to avoid tackling this hurdle. In all three cases, the European Parliament will have to fulfil a role in the European constitutional process, together with the national parliaments which could be involved very usefully through the instrument of the Assizes – that is, with sessions comprising of the national parliaments’ representatives working together with the European Parliament to enact reforms.
The fundamental principles to be agreed on should be the following:
a) the principle of popular sovereignty at the European level. Sovereignty derives from the people through elections, and is transmitted to the Parliament for legislative functions, and to the Commission voted by the Parliament for government activities. This involves not only the Parliament’s confidence vote in the Commission as prescribed by the fundamental new art. 158 §2 of the Maastricht Treaty, but the general power (and not only partial, as is presently the case) of legislative co-decision for the European Parliament;
b) the principle of the balance of powers. Council, Commission, Parliament, and Court of Justice must carry out fundamentally balanced, even if not necessarily exclusive, functions. This involves altering the balance of powers between the Council, Parliament and Commission, namely a reduction of the Council’s powers (which must lose its quasi-monopoly over legislation and reduce its power to intervene in matters of government as laid out in art. 145 of the Rome Treaty), and a related strengthening of the Parliament’s (legislative co-decision) and Commission’s (government functions and regulatory authority) powers;
c) the principle of European citizenship. Every citizen of a member state is also a European citizen, with rights that can be made effective directly through the Union-Community’s institutions. The few points in Maastricht relating to citizenship should be completed and broadened;
d) the principle of subsidiarity. Only the minimum number of functions and the minimum number of instruments and resources are to be exercised at the European level, on the occasions when aims and objectives can not be achieved at the lower levels (state, region, commune). The Maastricht Treaty introduced this fundamental principle (arts. A and 3b), but it needs to be implemented, specified, and made practicable. The issue of its validity within the constitutional structure of individual states remains open, an issue that can not be directly dealt with in the European framework. For this reason, I would argue that it is preferable for the member states to be allowed freedom of choice and action; the future (the confrontation between the different models of internal constitutions) will demonstrate which models are more suitable and preferable, albeit with just protection for different characteristics that are proposed by the traditions and history of individual countries;
e) the principle of the single market and competition. This lies at the origin and at the heart of the Rome Treaties, of the Single Act and of Maastricht. The single currency is a corollary of this, and indispensable for its correct functioning;
f) the principle of solidarity. This rounds off the preceding principle, with the aim of correcting the distortions and injustices that derive from its uncorrected application; it is also in the interests of the market itself. Already in the Rome Treaty there were foreseen structural and circumstantial interventions to support regions, states, and groups with a lower standard of living than the Community average. This must however always take place in coherence with the subsidiarity principle, and hence to a lesser degree than the interventions and policies of the states, regions and communes. The Maastricht Treaty’s chapters on cohesion and social policy subscribe to this perspective. The Delors Plan contains fundamental indications as regards increasing employment and developing new advanced technologies. The elaboration of solidarity policies requires among other things a series of structural interventions in line with the size of the Community budget, as outlined above.
It should be noted that the principles expressed here are all present to various degrees in the treaties, and hence are already part ofthe European Union’s “constitution”. It is now necessary to formulate them explicitly where this has not been done, and above all to implement what is implied by such principles in a coherent fashion where this has not yet taken place.
 
Two Basic Reforms.
 
If the desired aim is for the European Union soon to achieve a constitutional order in line with the principles formulated above and with the goals of democracy and efficiency, then it is necessary to exploit to this end the deadline of the 1996 conference which by now is close at hand.
The essential institutional reforms can, in my opinion, be reduced to two only, to which can be added a third of a procedural nature. They have already been illustrated on other occasions, so I will limit myself here to recalling them briefly.
The first reform should consist of generalising the European Parliament’s co-decision power in legislative matters. Today, such powers relate to some subjects but not others, and co-exist with the procedures of “consent”, “co-operation” (art. 189 c), and finally mere “consultation”, which involves many of the most important subjects – over forty in number. Co-decision must become the norm, because an organ elected by universal suffrage can not be deprived of the power to legislate at the European level – within the limits, let it be clearly understood, of the European Union’s competences.
Co-decision with the body that represents the states is undoubtedly desirable, and it is for this reason that co-decision is the aim here. But the current system, which entrusts for almost all the most important affairs in the Union’s competence the substantial monopoly of the Community’s legislative power solely to the national ministers, is totally unjustifiable. Europe, where the modem democracies were born, can not be the region of the world where laws are made around a table, without public debate, and without a link to the people’s elected representatives. This condition is the more serious and alarming when one considers that today a large part of the European states’ economic legislation consists of receiving Community directives at the national level. Without the European Parliament’s co-decision role for legislative matters, Europe’s democratic deficit will never be corrected.
Two qualifications are however needed. First, the legislation pertaining to the European Parliament should be the more important and innovative laws, while regulatory power should be exercised by the Commission, in order not to overload the Parliament with the tasks of detailed and technical rule-making. Second, the co-decision procedure must be simplified compared to the uselessly tortuous course set down by art. 189 b. Among other considerations, a majority of valid votes must be acceptable for European Parliament amendments, as occurs for normal legislation in the national parliaments, rather than requiring an absolute majority, except for particularly significant decisions.
The second reform should consist of generalising the principle of majority decisions within the Council of Ministers and the European Council. The power of veto must be abolished, since it contrasts simultaneously with efficiency requirements (in as much as it leads to paralysis in the presence of even a single dissenting state) and with the principle of the general interest, which should prevail (in matters of the Union’s exclusive competence) over individual interests. The only way to be certain of making the general interest prevail is by measuring the extent of support for individual proposals and initiatives through a recourse to the majority system. Today, as is well-known, for over 50 subjects, all of which are among the most significant, the Council can not decide anything except unanimously.
The majority principle will have to be implemented according to the importance of the subject, in accordance with the criteria of simple or qualified majorities. It may of course be opportune to adopt the procedure that has been suggested by many commentators, according to which a proposal must win simultaneously the votes of a majority of member states and a majority of the Union’s population. Other qualified majority criteria can also be applied, which are not necessarily incompatible with each other, by retaining or partly reforming, for example, the current system of weighted voting in such a way as not to offer excessive advantages to the smaller states, yet without adopting a purely proportional criterion that would excessively disadvantage them. The essential point is to assert the principle that no subject within the Community’s competence can be excluded from decisions taken by majority voting.
 
Other Institutional Reforms and the Objectives of European Construction.
 
There are other possible institutional reforms which have been discussed in connection with the intergovernmental conference: such as a reduction of the number of commissioners, a lengthening of the terms of office of the President of the Council of Ministers and the European Council, an increased role for the European Parliament in the Commission President’s nomination, the designation of the President by qualified majority voting in the Council, the choice of commissioners being entrusted directly to the Commission President, a reduction in the number of European parliamentarians, the introduction of territorial representation in the Commission; and still others, for example the attribution to the Court of Justice of constitutional court-type responsibilities at the European level.
Certainly, many of these reforms are important and desirable; in particular, those concerning the nomination procedure for the Commission. Others (such as a presidency of the Council, on the designation of the members of the Commission by the member states) are perhaps less urgent, since in my opinion they could alter the correct constitutional mechanism of the Union: it should be clear that the government of the Union consists of the Commission and not of the Council, which represents the states and constitutes a collegial presidency of the Union, within which the criterion of rotating presidencies can function, as indeed they already do function now, not unsuccessfully. In any case, it would seem possible to assert that the approval of the two above-mentioned reforms is far and away more important than that of the others listed immediately above.
The adoption of these two fundamental reforms would in effect allow the European Union to achieve a constitutional order that is satisfactory for economic and currency affairs (as regards the latter, the Maastricht Treaty’s project for monetary union already provides for all the institutions and rules needed to make it function effectively). The vital circuit which consists of popular consensus, parliament and government action would thus be realised. The institutional and constitutional structure of the European Union would be of a federal nature, independent of whether an explicit claim to this term is inserted in the new treaty or not.
It should not be forgotten that the Maastricht Treaty has introduced through art. 158 §2 the principle of the European Parliament’s confidence vote in the Commission, a prerequisite for the Commission’s installation: this principle establishes an organic relationship between the popular vote at the European level (the expression of which is the Parliament) and the European government (of which the Commission is the real title-holder). This institutional bond between the European Parliament and the Commission (in particular, its President) will certainly need to be perfected in future (for example, by submitting a list of potential candidates to the Parliament, or a name voted by the Council by qualified majority, or again by inverting the procedural order so as to submit to the Council names previously screened by the Parliament), since the unanimity requirement regarding the selection of the Commission’s President by the European Council concretely reduces the influence of the European Parliament, which will be able to refuse confirming the designated candidate only with very great difficulty. Notwithstanding this, the importance of Maastricht’s innovation on this point is undeniable, if for no other reason than as far as it has highlighted the proposed programmes of the Commission and of its President at the moment of their nomination. Such proposals can not avoid taking account of the orientations prevailing within the Parliament, which in their turn are the expression of the popular vote. Moreover, the very recent nomination of the Santer Commission has demonstrated that the Parliament intends to exercise its constitutional power over the Commission.
The only coherent alternative to this approach (which makes the democratic legitimacy of the Commission dependent on the Parliament’s vote) would be the President of the Commission’s election by universal suffrage: a solution that in my opinion cannot be proposed, if for no other reason than the linguistic barrier. The accusation of excessive bureaucracy against the Commission (an accusation moreover that is only partly founded) can be effectively answered only in this perspective of a constitutional link between the Commission and the Parliament.
It would seem evident that the above-described structure, which can be achieved through the approval of the two above-outlined fundamental reforms, should be extended from 1996 onwards (albeit with certain alterations, to be carefully examined during a series of intermediate stages) also to the new sectors of foreign and security policy, and internal and justice affairs. These matters are governed in the Maastricht Treaty through the mechanisms of simple intergovernmental cooperation, with which it will certainly not be possible to proceed very far – as the events surrounding European policy over Bosnia have clearly demonstrated. In a historical period in which the re-awakening of ethnic nationalism and micronationalism represents a reality dense with extremely serious dangers, it is clearly urgent for Europe to set out common policies. It will be necessary to establish also in these sectors (albeit within the limits of the subsidiarity principle, which results in intervention at the European level only for certain subjects and undertakings, without removing from the states their normal competences in foreign policy and defence matters) a real government of the Union.
Hence, a Council capable of deciding always and on all occasions by majority voting, simple or qualified, is needed. In addition, a Parliament with powers to deliberate and direct policy-making is needed (and not simply a futile discussion forum, as is too often the case nowadays in Strasbourg, where parliamentarians without real powers vote motions on topics that often do not even form part of the Community’s competences). Democratic principles and the requirements of efficiency and effectiveness are the same in all areas: in the economy as for foreign policy, in defence as for the fight against crime.
A further reform that seems unavoidable is of a different nature: it concerns the revision procedure for the Community’s treaties. The unanimity requirement for ratification, set down by art. 236 (now art. N) has proved too onerous and paralysing: consider the immense damage caused to the economy of the Twelve by the first Danish ‘no’ in the referendum of 2nd June 1992. It will be necessary to provide that future innovations can enter into effect (at least among those member states that ratify them) when the number of ratifications reaches a pre-determined threshold, for example four/fifths of the member states and of the Union’s population.
It is as well to be perfectly clear that the realisation of the two above outlined reforms (not to mention the third, just cited, regarding the future modification of the treaties) will demand decisions by the governments that in a certain sense are against their nature, in as much as they imply the acceptance of a reduced role for the governments themselves in the institutional architecture of the future European Union. To overcome the power of inertia which protects the system of Community institutions established by the treaties will require, in the governments that will assume responsibility for piloting the reform, a combination of idealistic and realistic capacities that is not easy to find. But nevertheless this will not be sufficient: experience has taught that European construction progresses when also public opinion on the one hand, and economic actors on the other, make their voices heard. In addition, the drive that could come from the European Parliament (which unfortunately does not yet seem aware of its enormous potential as a representative and political driving force) will be the essential element of a battle which is still all to be fought. The enemies of a united Europe have always been, and still are, numerous and powerful.
Let it be stressed that a large part of the arguments that these enemies advance can be fully shared, but lead to opposite conclusions from those reached by the people who formulate them. The goal of European construction is by no means the elimination of national and regional diversities and peculiarities, which are rather the greatest wealth of Europe’s history. On the contrary, only a federal structure inspired by the subsidiarity principle really protects the cultural and linguistic characteristics of different nations, as well as what is legitimate and unique in regional and municipal identities. Much remains to be done on this subject so that one day institutions are realised that effectively protect (without feeding the trends to the formation of new states) the cultural and ethnic characteristics of the different strata of the population. On the contrary, the maintenance of the “sovereign” national states (at least in name, since in fact sovereignty has already not existed for some time) suffocates autonomy and is translated into the hegemony and the predominance of the stronger state or states over the weaker ones. A genuinely federal constitution is the best guarantee for the survival of the various nations.
The five territorial levels (municipality, region, nation-state, continental federal state, planet) each have their justification and their function, and tomorrow’s citizens will be simultaneously, without contradictions, citizens of their own city, their own region, their own nation-state, of the European federation, and of the whole world through the supernational world institutions. Federalism is the doctrine of multiple and compatible loyalties.
In this perspective, the European federation will be something new and different compared to today’s existing federations, and also compared to those of the past (the mediaeval Christian empire included, which nevertheless presents as regards certain of its features a model of surprising relevance for the present). In effect, never before in history have nations possessing histories and cultures that are so varied and original attempted successfully the task of uniting themselves peacefully in a supernational political organism.
 
Supporters and Opponents of Reform: the Strategy of Two Concentric Circles.
 
If these are the essential reforms for completing the institutional aspects of European construction, it is natural to ask what is the most suitable strategy for enacting them.
The objectives that we have outlined are inscribed in the original layout and in the rational conception of our continent’s project for union, but their fulfilment should in no way be taken for granted. History is not the realm of necessity, nor does it only know the victories of rationality and coherence, but also (and how often) their defeat. We must therefore ask ourselves what can be the paths to pursue in order to make the completion of the union project easier.
The 1996 intergovernmental conference may represent in this regard the moment of truth. It will not be possible to avoid the stumbling block of the European Parliament’s legislative role; and also the hurdle of overcoming the right of veto in the Council of Ministers. Some governments will be in favour of the first reform, and some (probably fewer in number) in favour of the second reform, as well as governments that are opposed to both. It is possible that the former will convince the others totally or in part, or that agreement will not be found. What should be done in this case?
The weight that can be exercised by public opinion has already been referred to. It needs to be stressed that the popular approval for the European view is in no way belied by the alleged waves of Europessimism that certain opinion polls seem to indicate. This is due to three sets of reasons: primarily, because a not insignificant part of negative responses is the result of delusion with what Europe could have done but has not, for example in foreign policy, and is therefore the result of a frustrated demand for “more Europe” and not the contrary; secondly, because another part of negative opinion derives from the insufficient democratic legitimacy of the Community’s policies and institutions (which is translated into excessive bureaucracy, rightly unpopular) about which attention has already been called to above, and the possible simple and radical remedies have also been indicated; finally, because another part of the Europessimistic argument is based on the radical opposition to a centralising conception that tends to the creation of a European superstate in contempt of subsidiarity and respect for national cultures: a conception (too often cunningly attributed to supporters of the Union) that could perhaps have been part of the mental and cultural baggage of some Europeanists in the 1950s and 60s, but which has never been shared by any coherent federalist. Moreover, it is shared even less so today. On the contrary, it is precisely the federal union project that represents a protective guarantee for national, regional and local peculiarities, which are one of the greatest achievements of Europe’s civilisation. If these three components are removed, as they should be, from the pile of so-called "Eurosceptic" opinion, not much remains of opinion that is genuinely anti-European.
There remain the differences of position between some governments and others regarding the future constitutional developments of the European Union. How should we proceed in the probable case of an impasse on the main points of institutional reform? How, in particular, will it be possible to overcome the opposition of the British and Danish (and possibly of others, perhaps some of the states which have just entered the Union) to Europe’s progress toward federation?
It will naturally be necessary to try and find an agreement along the lines of the evolution outlined above, with all suitable guarantees of gradual transition. But it may occur that certain member states will nevertheless prove unwilling to advance along the road to federal union. In such a case, the hypothesis repeatedly advanced in recent years of a “hard core” of countries ready to proceed will become reality. This core will be composed of at least France, Germany, and the Benelux, and perhaps also Italy.
For Italy, the weakening of the drive toward European Union would be a genuine economic, political and civil calamity, the greatest error ever committed by an Italian government in the post-war period. The contribution of Italian ideas and initiatives to Europe’s construction has been decisive on several occasions, notwithstanding the well-known limitations and deficiencies of the national political and administrative framework. This contribution must not be reduced, if for no other reason (but there are others) than that the 1989 popular referendum explicitly supported it, with 88 percent of votes in favour of a European constitution to be elaborated by the European Parliament.
The possibility of a core of states advancing towards federation is a real prospect. It must be supported by those whose eyes are set on the final objective, since it is probably the only way to achieve it. Moreover, this has already proved the suitable procedure for monetary union, social policy and other objectives.
A serious question regarding political and juridical issues is posed at this juncture. If between the states ready to proceed and the rest there is, let us say, an agreement to disagree (in the sense that the latter allow the former to adopt new constitutional rules, so long as these rules are not applied to those who have not accepted them; in the same way that Maastricht made provisions for monetary union and social policy) the issue of reform can be faced within the framework of the existing set of rules, on the basis of art. 236 (N) of the treaties – that is, through the unanimous approval of the member states. But then it will be necessary to face up to and resolve the extremely delicate issue of the relationship between the current rules in effect within the European Union (EU) and the partly new rules agreed on by the states adhering to the European federal union (EFU). We need to be perfectly clear that in this approach the hurdles to be overcome will be numerous and complex, as the introduction of such rules as the European Parliament’s generalised legislative co-decision and the extension of the majority principle will make it impossible to avoid applying them also to matters previously regulated by the treaties. Hence the problem of the co-existence of the new procedures with the old will be very difficult to resolve. To whom would the Commission and the common structures “belong”? “For whom” would they work? Rules of compatibility among the EU and the EFU can be elaborated, but the problems to resolve would be anything but simple.
The same problem will be posed in an even more drastic way should the agreement to disagree not exist. If certain states do not wish at any cost to change the Union’s constitutional rules in the way desired by the majority, the other states will be left no alternative but to choose between resigning themselves to a preservation of the status quo by adopting at the most some minor reforms, or reacting by giving life to a new treaty concluded only among themselves, even if always open to the rest. The adoption of a new treaty that incorporated the entire acquis communautaire and which introduced at the same time new institutional rules would lead to the drastic measure of denouncing (implicitly or explicitly) the existing treaties by the states of the “hard core.” This would be an extreme scenario. It could lead even to the break-up and re-founding of the Union “for those who want to.” In this case, it will be possible to conclude specific accords of simple association with the other states.
The perspective outlined here may seem excessively dramatic. Perhaps it is in part unrealistic; but it should nevertheless be carefully considered, if the goal is to avoid entrusting the fate of a project of world and historic significance, which that of the European Union is, to the consent of one or some of the member states: a minister, a government, a few tens of thousands of citizens of a single “Eurosceptic” state could decide the future of 380 million European citizens.
This must not be allowed to happen. It must be clear that entrance into the current Community-Union by the states that have freely decided to join implies without doubt already the acceptance of certain rules of a federal nature; and implies the overcoming of the principle of the unlimited sovereignty of the nation-state. The primacy of European law over the national laws is, in the subjects of the Union’s exclusive competence, already an incontrovertible and undisputed fact. It remains however undeniable that no-one can impose on a nation-state to join the future European federation, nor to accept the guiding principles of the future European constitution. But no state should be allowed to prevent the others from realising it.
 
The Countries of Central and Eastern Europe.
 
The by now irreversible reality of enlargement imposes, finally, a further set of reflections. It is clear that the countries of northern, central and eastern Europe are an indisputable part of the historic inheritance of our continent – are “European” in all senses of the word. If these countries desire to enter the Union (as undoubtedly they will), it is inconceivable that they will be anything other than welcomed without hesitation.
Two features should however be stressed. The first regards the timing, the second the means, of their joining the European Union.
For the states of the east, having emerged from the socialist experience, the transformation of their economic apparatus prior to their entrance into the economic Community will require long time periods and complicated processes of reconversion to the market. Since awaiting period of years would prejudice, perhaps irreversibly, their prospect of entering Europe and the composition of the future Union, which from this moment on needs everyone’s contribution, it would be politically and historically extremely significant to affirm the principle of these states joining the European Union in the near future. In the sectors of foreign policy and internal affairs, as well as certain economic sectors, the new member states could participate fully from the outset; in the other economic and monetary sectors, they could participate during even a prolonged transition period in the quality of simple observers.
As regards the means, these are necessarily tied to the 1996 process of revising the Community’s institutions. The three member states which have just now entered the European Union (Austria, Finland and Sweden) will participate with the Twelve in the intergovernmental conference. Hence they will be posed the choice between joining the “hard core” or not. As regards the other states that are preparing to ask to be admitted to the Union, the timing of the start of their negotiations will probably coincide with those which will make it clear whether the union will proceed at two speeds (or rather, if it will dispose of two concentric circles, those of the EFU and the EU) or will remain with today’s institutional order, albeit with some marginal changes. In the former case, the states of the east will have to choose which circle they will ask to join.
 
Conclusion.
 
What constitution for Europe? The alternative posed today (and which will have to be faced soon, on the occasion of the 1996 intergovernmental conference) is a choice between conservation and progress: between maintaining the current institutional order, with its democratic, functional and efficiency deficiencies, which have already been pointed out above (deficiencies that the entrance of new states into the Union would without doubt further accentuate), or changing the institutional rules, even only a few decisive aspects, in such a way as to achieve a structure that is simultaneously more democratic and more efficient.
If the agreement of a large majority of the member states, but not of all, is generated around this second view, it will be necessary to establish a relationship between the former and the latter. That is, it will be necessary to establish a set of rules for co-existence that will allow the former to advance toward a federal-type Union (with all the corollaries noted above, in the direction of the minimum number of functions at the European level and of subsidiarity), and the latter not to be expelled from the single market.
It must be kept clearly in mind that the alternative outlined above is not between two or more solutions that are different on technical grounds, but rather between two different political and idealistic visions. On the one hand, the goal of maintaining the nation-state, albeit within the limitations rendered necessary by the single market. On the other, the goal of overcoming the nation-state in a federal perspective, that does preserve the autonomy of the nation-states but within the framework of a new collective entity endowed with its own exclusive and concurrent competences, its own democratic institutions, and its own historical and political legitimacy – namely, Europe.
The choice between these two perspectives will very soon have to be faced unambiguously. And it will have to be clearly proposed to European citizens, so that they can give their judgement on the matter. It is the task of all the living forces of European culture to discuss in depth the implications of the unification process currently underway on our continent, since on its outcome depends not only the future destiny of Europe, but that of the whole planet.


*This essay is a re-working of a speech at the Conference on Europe held at the Paolo VI Foundation at Cagnole, Gessada (Varese) on 23rd May 1994.

 

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