Year LVI, 2014, Single Issue, Page 33
The “Spinelli Project” and its Legacy
MEHEMET CEVAT YILDIRIM
Introduction
On 14th February 1984, the European Parliament (EP) approved the draft Treaty establishing the European Union (EUT), widely known as the “Spinelli Project”. The originality of the EUT lies in both the process of its creation and its far-reaching content. Despite the fact that the EUT was never ratified, subsequent EU Treaties have introduced the institutional reforms it envisaged. The success of the EUT is strictly due to the genuine political deliberation that gave rise to it.
The EUT story provides the first example of a treaty-making process evolving outside the diplomatic framework. Indeed, the initiative was launched and pursued entirely by MEPs. The originator of the EUT, Altiero Spinelli, had been one of the authors of the Ventotene Manifesto (1941) and was well known as a leading euro-federalist; moreover, he had been elected to the EP from the lists of the Italian Communist Party (PCI). Nevertheless, while preparing the EUT, instead of restricting it to federalist or leftist perspectives, Spinelli chose to adopt an approach that would embrace a vast spectrum of political views. This choice was a conscious one because the Treaty, to be adopted, had to be approved in plenary session by the EP. The participatory and deliberative nature of the debate on the EUT made it a genuine constitution-making process. From this perspective, the work of the first directly-elected EP can be seen as a remarkable victory of constitutionalism over intergovernmentalism.
The work of this legislature was fruitful in terms of the new ideas about the political system and functioning of the EU that it produced. While some of these ideas were ahead of their time, others could be implemented immediately. In the first years following the EP’s approval of the EUT, the national governments saw no need to establish a “European Union”. Subsequently, however, the changes proposed in the EUT were progressively introduced. Now, looking back over the decades, we can clearly identify the influence of the EUT in successive Treaties and EU treaty proposals.
This essay is divided into two parts. The first focuses on the creation of the EUT, a process that saw the emergence of rival and opposing initiatives. The second looks at the content of the EUT and at how it subsequently influenced successive Treaties and reform proposals.
The Creation of the EUT
In early 1980, the European Community were already suffering from structural problems: in December 1979, the EP had decided to exercise its right to reject the annual budget adopted by the Council of Ministers. However, this rejection by the Parliament did not prevent the Community from having recourse to the system of provisional twelfths in order to cover its expenses. This circumstance made it easier for the Council to insist on a new budget that would not need to be approved by the EP. Consequently, six months later (in May 1980), a budget “worse than the one rejected by the EP in December 1979”[1] was finally adopted.
In order to prevent a further budget crisis of this kind, the Council gave the Commission a mandate to revise the budgetary process and propose changes. Juliet Lodge notes that the very broad interpretation of this mandate by the Commission was a factor underlying the “temerity” shown by the EP in proposing its reform treaty (the EUT).[2]
Spinelli felt that it was a duty of the Parliament, being the only democratically legitimated EC institution, to discuss structural problems of any kind. On 25th June 1980, Spinelli sent an open letter to all the MEPs in which, analysing the crisis situation, he remarked that the Community, with its existing institutions, procedures and competences, was bound to go from one paralysing crisis to another.[3]
The Crocodile Club.
The first meeting of the reformists took place nearly two weeks after Spinelli’s first open letter to Europe’s parliamentarians; it saw the participation of only nine MEPs who gathered at the Strasbourg restaurant “Au Crocodile” on 9th July 1980. Even though those responding to Spinelli’s call were few in number, almost all the political families were represented in this initial group. In addition to Spinelli himself, the MEPs attending the meeting were: Richard Balfe (Labour/UK), Paola Gaiotti de Biase (CD/Italy), Brian M. Key (Labour/UK), Silvio Leonardi (COM/Italy), Hans August Lücker (CD/Germany), Stanley Johnson (CON/UK), Bruno Visentini (REP/Italy), and Karl von Wogau (CD/ Germany). Spinelli particularly wanted to avoid giving this group a name that might discourage other MEPs from joining it. In other words, it was necessary to find a name with which any MEP of any political affiliation and from any nation would feel comfortable. Finally, the reformers, drawing inspiration from the name of the restaurant where they had first met, decided to call themselves “the Crocodile Club”.
The initial absence of socialists in the group was remedied by the participation of Willy Brandt, who brought with him Rudi Arndt, Bruno Friedrich (Vice-President of the European Parliament) and Horst Seefeld from the German socialist group. Socialists from other countries joined the club as well: Mario Didò, Carlo Ripa di Meana and Giorgio Ruffolo from Italy; Lucien Radoux, Karel Van Miert and Anne Marie Lizin from Belgium, and Derek Enright from the UK. The participation of Christian Democrats was reinforced by the addition of Maria Luisa Cassanmagnano Cerretti and Alfredo Diana, both from Italy, while Susanna Agnelli (Italy) and Hans Nord (Netherlands) strengthened the liberal presence in the club. The conservative presence was soon strengthened by Derek Prag (UK) and Christopher Jackson (UK).[4] Thus, at the end of its first month, the Crocodile Club had almost 30 members.
In October 1980, Altiero Spinelli, Felice Ippolito and Spinelli's assistant Pier Virgilio Dastoli set up a periodical called Crocodile: Letter to the Members of European Parliament. This journal was published until June 1983 and served as the main vehicle of information about the reformers’ discussions. On 19th November, nearly a hundred members of the Crocodile Club prepared a petition addressed to the EP in which they called for the drafting of a reform treaty. By the time Simone Veil, the President of the European Parliament, signed this petition on 10th February 1981, 170 MEPs had already signed it.
An overview of the general purposes and motivations of the EUT might make it easier to appreciate the debate that took place between the opposing groups in the Parliament. Altiero Spinelli himself, in his speeches and writings, set out the reasons why the Crocodile Club had launched the initiative, as did many EC officials sharing his concerns. The overall aim of the initiative was not a new one: the member state governments had been declaring their will to create a treaty establishing a European Union based on the European Communities ever since the 1972 Paris summit. Indeed, many reform proposals (the Tindemans Report among others) had been presented since that time. However, none of these had sparked a genuine political debate, even though the problems facing the EC were all urgent, and all beyond the capacity of its institutions. The effects of the oil crisis were still being felt in the Community markets, which were vulnerable on account of not being completely integrated. Customs duties between member states had been eliminated, but many trade barriers remained, such as frontier controls, exchange transaction costs, legal barriers to the free movement of services, and so on. The EC needed a more effective foreign policy than could be implemented under the European Political Cooperation (EPC), especially at a time when tension between the world’s two opposing blocs was growing once again. In almost every speech he made, Spinelli also underlined Europe’s responsibility towards the world’s “developing countries”. All these were urgent issues and they all demanded serious institutional reforms.
The Crocodile Club was convinced that such problems could not be tackled without changing the institutional framework of the Community, which was based on intergovernmental cooperation. Instead of the intergovernmental model, the members of the Club were asking for a political union, founded on carefully balanced institutions operating within a constitutional framework.
As the members of the Crocodile Club were gathering MEPs’ signatures for the reform treaty initiative, the first rival initiative was being mounted by the Christian Democratic European People’s Party (EPP). Dastoli interprets the endeavour of the EPP’s German MEPs as a sign of their lack of enthusiasm for the reformers’ ambitious targets. Differently, Lodge suggests that the German Christian Democrats, who also harboured federalist aspirations, were driven mainly by a feeling of bitter jealousy towards the Crocodile Club initiative, led by a “Communist”.[5]
In any case, such opposition, wherever it came from (the EPP or the member states), was a productive source of alternative proposals. Burgess considers the draft constitution text prepared by EPP members Rudolf Ruster and Gero Pfennig as a rival project[6] (although its writers deny this). Similarly, Dastoli and Pierucci regard the Genscher/Colombo plan (mentioned in more detail later on) as an alternative to the EUT. It has to be pointed out, however, that the position of the various opponents of the Crocodile Club initiative differed greatly: some deemed it too ambitious, whereas others wanted to pursue the same objectives as the Crocodile Club, but advocated a gradualist approach.
Even though the German EPP members also wanted to see the establishment of a European Union, they had different ideas on how to go about it. These MEPs were not convinced that the EP, even now it was directly elected, should be given a mandate to draft an international treaty. They believed, instead, that this was work that should fall to the governments, as in the case of the Paris and Rome Treaties, and moreover they felt that building the European Union should be a gradual process. The German EPP members (who either never joined the Crocodile Club or left it in its first months) sought to concentrate their efforts within the sub-committee on institutional problems of the EP’s Political Affairs Committee. This sub-committee was much more reluctant to give the EP the role of a constituent assembly and favoured the same gradual integration approach advocated by the EPP. In a letter to MEPs in April 1981, Altiero Spinelli, Felice Ippolito and Pier Virgilio Dastoli criticised this cautious stance and called the MEPs to immediate action: “The proposals related to the small steps strategy, under review by the Political Affairs Committee of the European Parliament, do not and could not address the central problem of the constitutional crisis of the Community, which can be summarised as follows: the Community needs to be governed, but it does not have a real government; it needs to have laws, but it does not have its own real legislative powers; it needs public participation in its initiatives, but it does not have political mechanisms allowing it to develop its initiatives in a coherent and consistent manner.”[7]
In the same letter, Spinelli and his colleagues also recalled that there existed no written rule, either in the Paris and Rome Treaties or elsewhere, stipulating that the EUT had to be drafted by an intergovernmental conference (IGC). Moreover, the constitutions of existing federal states like Germany, the USA and Switzerland had been drawn up and approved by these countries’ parliaments. Therefore, the directly elected EP constituted the right place for creating the EUT. However, given that drawing up the text of the EUT would have been too lengthy a process for any existing EP committee to undertake, the Crocodile Club wanted a new ad hoc committee to be created and entrusted exclusively with this task. Accordingly, the Crocodile Club spent the first half of 1981 pressing for the adoption of a parliamentary resolution establishing a Committee on Institutional Affairs.
The reformers achieved their objective on 9th July 1981, when the EP in plenary session adopted the resolution establishing the Committee on Institutional Affairs.[8] The battle of the Crocodile Club had also spurred on the rival initiatives. Indeed, the EPP-led sub-committee’s resolutions on inter-institutional relations were put to the vote on the same day.[9]
The Committee on Institutional Affairs.
Spinelli’s immediate concern after 9th July was not the content of the new treaty. Drawing on his lifetime’s experience of Community affairs (including six years as a member of the Commission), he was more interested in ensuring the adoption and ratification of the EUT. He knew, from experience, that a strictly federalist endeavour would have no chance of success. Spinelli had played a crucial role first in the campaign to give a constituent mandate to the Council of Europe’s Parliamentary Assembly in the late 1940s, and then in the European Political Community project in the mid-1950s.[10] Both had failed and shown that the intergovernmental nature of relations between European states would be difficult to overcome. Even though there was support for creating a European “Union”, which obviously meant something beyond the intergovernmental “Community”, its founding treaty would have to be ratified by member state governments before it could come into existence. To prevent the failure of the EUT project, the Committee on Institutional Affairs, in its work, needed to be open to all views from all political parties and from all countries. Only in this way, Spinelli believed, would it be possible to obtain a sufficient level of participation in the vote in the EP and thus secure the adoption of the proposal. Thereafter, the treaty would have to be submitted for ratification by each member state and, to this end (and in order get round any opposition on the part of the governments), it would be sent directly to the national parliaments. The treaty would enter into force upon its ratification by the majority of the member states, without waiting for its ratification by all of them. This latter suggestion from Spinelli drew a critical reaction from the EPP. Thus, the process of developing the EUT became a struggle between parliamentary constitutionalism and intergovernmentalism.
On the one hand, the EP’s self-given mandate as a constituent assembly was highly controversial and raised objections. On the other, alternative initiatives in the intergovernmental mould continued to be fruitless. German liberal MEP Martin Bangemann (from the same party as Hans-Dietrich Genscher) proposed that the vote on the treaty should take place not in the EP, but rather in an ad hoc joint parliamentary assembly composed of MEPs and national MPs. Bangemann argued that the treaty, to enter into force, should then be ratified by all the member states.[11] Both propositions aimed to give the treaty an intergovernmental character.
In November 1981, the German Foreign Minister Hans-Dietrich Genscher sent a letter to the member states and to the EC Commission. Italy’s Foreign Minister, Emilio Colombo, was also involved in this initiative and the two ministers together drafted a series of principles known as the Genscher/Colombo plan. On 19th November, the plan was presented both to the member state governments and to the EP plenary. However, thereafter no further steps were taken for two years. Not surprisingly, the Genscher/Colombo plan was for an EU designed along intergovernmental lines.
The Committee on Institutional Affairsbegan its work in February 1982 and succeeded in reaching an agreement on the principles that would underlie the content of the EUT and also on the method of its creation. According to the resolution adopted on 6th July 1982[12], the EU would be based on the existing EC institutions and would operate in respect of the following principles: “subsidiarity, separation of powers, legitimacy, democratic accountability, participation of member states in decisions, and improvements in decision-making capacity and functioning of the Community.”[13]
The work was shared between six working groups, each focusing on a specific area. Spinelli was nominated as the coordinator and Mauro Ferri, an Italian social democrat, as the chairman. The reports of the six working groups would together constitute the basis of the EUT. The specific areas and rapporteurs of these groups were as follows: “Legal Structure of the Union” (Belgian liberal Karel De Gucht, later Commissioner for Trade); “Economic Union” (French socialist Jacques Moreau); “Policies for Society” (German Christian Democrat Gero Pfennig); “International Relations” (British Conservative Derek Prag); “Union Finances” (French Gaullist Michel Junot until 12.01.1983, succeeded by German Social Democrat Hans Joachim Seeler) and “Union Institutions” (Italian Christian Democrat Ortensio Zecchino).
The work of the latter group was particularly lengthy because it concerned the main changes that needed to be made in order to allow the EU to emerge from the ashes of the EC. It dealt with issues relating to the institutional equilibrium: the designation of the Commission, the vote of investiture and motion of censure, the role of the Council in the legislative process, the EP’s role in budgetary affairs, legislative procedures, etc. However, it seems that the rapporteur of this working group did not help to make its task any easier: “Ortensio Zecchino, the EPP rapporteur responsible for institutional aspects of the EUT in the Committee on Institutional Affairs, was particularly troublesome in his eccentric insistence upon floating new proposals and using overtly federalist rhetoric which was far too ambitious and divisive. The Italian lawyer and university professor even managed to exasperate Spinelli, who regarded his temporary absence from the committee during the final voting on institutions as ‘divine intervention’ in their favour.”[14]
Zecchino was, indeed, not the only one to harbour more ambitious federalist aspirations. Andrea Chiti-Batelli, of the Italian Federalist Movement, severely criticised the EUT project from its outset, arguing that it did not have a popular basis. According to Chiti-Batelli, the Crocodile initiative was nothing but “putting the cart before the horse”[15] and Spinelli was trying to conduct a revolution without revolutionaries, as he had tried to do before.
Once the working groups had completed their work and the text of the draft treaty had been approved by the Committee on Institutional Affairson 5th July 1983, it took a further two and a half months to bring the proposal before the EP plenary. In the meantime, more than 250 amendment proposals were discussed and “some amendments to the detail but not the substance of the draft resolution were accepted”.[16] Addressing the EP on 13th September, Commission President Gaston Thorn described the work of the Committee as “a lesson in dynamism and what I shall call true political realism...”.[17] Thorn strongly supported the draft treaty because it shared several principles with the Commission’s previous proposals such as “the principle of subsidiarity, the various types of competence (exclusive, concurrent and potential), legislative powers shared by Parliament and the Council, and the Commission’s power to initiate legislation and its executive role.”[18]
The preliminary version of the draft treaty was approved, with a vast majority, by the EP in plenary session on 14th September 1983: 201 votes were in favour, 37 were against and there were 72 abstentions, particularly among the conservatives, the Danes and the French socialists, with the exception of Jacques Moreau and Pierre Bernard.[19] The level of participation was excellent, just as Spinelli had hoped.
In order to ensure the legal quality of the treaty text, a committee of four legal experts (including Jean-Paul Jacqué, then Rector of Strasbourg University) was appointed. This group completed its work very rapidly and the draft treaty was adopted by the Committee on 9th December.
The Stuttgart Declaration and the Vote on the EUT in the European Parliament.
While the Committee on Institutional Affairswas racing against time in order to put the treaty to the plenary vote in the Parliament before the 1984 EP elections, member state governments were looking for a way of resuscitating the Genscher/Colombo plan.
At this time, Spinelli was severely criticising the intergovernmental reform proposals, first and foremost the Genscher/Colombo plan. According to him, the distinctive feature of the EUT was its constitutional character – a feature that an intergovernmental solution could never have. “As a rule, it is parliamentary assemblies that vote on constitutions, because it is in parliamentary assemblies that the different political families to which the citizens belong freely exchange their views, and freely find the convergences around which the greatest possible degrees of consensus can be gathered. There is no reason why the Constitution of the European Union should not come into being in the same way, through this kind of coming together, this kind of quest to find points of convergence and consensus, particularly since the Union is the product of the natural maturation and metamorphosis of the Community, that is to say, of a political body already distinct from the states, in existence for over thirty years, and equipped with its own, directly elected parliament. (…) Our governments are all convinced of the need to move Europe forward, but are incapable of putting together a few ideas in order to get it effectively on its way, because they draw all their ideas from the intellectual arsenal of their diplomatic services, that is to say, from a source that proposes only futile intergovernmental action.”[20]
On 19th June 1983, a few days before the Committee on Institutional Affairs working groups completed their work, the leaders of the member states gathered in the European Council in Stuttgart and adopted a “Solemn Declaration on EU”, which was based on the Genscher/Colombo plan.[21] In this short constitution, the European Council was defined as the main decision-making body, while no provision was made for tangible improvements to the powers either of the EP or of the Commission. However, it should be underlined that the Stuttgart Declaration seems to have been surprisingly far-sighted as regards the eventuality of an economic crisis related to structural imbalances between national economies. And despite being only a brief text, it aimed to provide the Union with social and economic policy tools for addressing such crises. In this respect, the Stuttgart Declaration may be deemed better equipped than the Spinelli Project.
Another initiative competing with the EUT was the EPP’s constitution, which was approved on 14th September 1983, the same day as the vote on the preliminary version of the EUT. This text was more far-reaching in terms of human rights; Burgess notes that “... it is significant that in the Luster/Pfennig proposal cited above, there had been a whole section devoted to listing basic human rights and freedoms – something absent from the EUT.”[22]With more than 50 signatures gathered, this text proved that the EUT was not without alternatives in the EP. It is worth mentioning that another grouping in the EP was the “Kangaroo Group” initiated by Basil de Ferranti (CON/UK), Karl von Wogau (CD/Germany), Kai Nyborg (Progress/Denmark) and Dieter Rogalla (SD/Germany). The main interest of this group was to increase awareness, within the EP, of the importance of achieving the internal market.[23]
Therefore, in late 1983 and early 1984, Spinelli’s EUT initiative was not the only treaty proposal on the table, nor necessarily the best in all regards. But its particular significance lay in the widespread political support that it enjoyed at the time. This support was the result of Spinelli’s strategic choice to embrace all political views in the treaty-making process. Indeed, it proved to be a fruitful strategy: in the plenary vote on 14th February 1984, 237 of the 311 votes were in favour of the EUT, while only 31 were against, with 43 abstentions. These results show that the proposal was adopted also with the support of rival groups such as the EPP.[24]
On 14th February, after the vote, Spinelli addressed the MEPs to emphasise that his role had been simply that of an intermediary. In his words: “If the ideas within this text had never existed in the minds of the great majority of this Parliament, I would not have been able to put them in. I have simply practised, as Socrates, the art of maieutics. I was the midwife who helped to give life to this child.”[25]
The EUT was rich in terms of ideas, however the question of whether to adopt or reject the text was in the hands of the national governments. They did neither. In following months and years, the EUT did not appear on the agendas of the member states. The governments preferred simply to ignore it. Despite this, these same governments were aware of the immediate need to reform the Community, as they showed at the Fontainebleau summit in June 1984. In the end, the Single European Act (SEA) was signed on 17th February 1986 in Luxembourg. The SEA was based on proposals that had been advanced in the Stuttgart Declaration, in the EUT, and in the Commission’s White Paper on the internal market. Constituting a modest revision of Community Treaties, it was indeed just an attempt to address, to the minimum degree possible, the need for reform and to preserve the intergovernmental nature of the Community.
Spinelli was elected as an MEP for the last time in 1984. Only two years later, he was envisaging a kind of small steps strategy to reform the Treaties. In a speech he gave before the EP just a few months before he died, he announced possible new strategies to be pursued thereafter: “We can improve the European Parliament only with a precise strategy. Two strategies seem possible: within two years, in 1988, thus one year before the 1989 EP elections, the SEA would probably have shown its inadequacy. In the meantime we can prepare and propose a brief, minimal treaty including necessary reforms that would allow the Community to function. Obviously, the reforms proposed in this treaty would not be enough either, but this brief treaty would be a step towards our treaty establishing the EU. As the problems in technology, social policy, ecology and foreign policy issues will grow in time, the Community will be duty bound to take further steps. The second strategy is to work to provide the Parliament that will be elected in 1989 with the mandate to achieve Community reform and political cooperation and to have the capacity to adopt the produced text with a majority of two thirds.”[26]
The years that followed saw several further initiatives that, adopting both these strategies, followed in Spinelli’s footsteps.
The Legacy of the EUT
The first attempt to dust off the EUT project was the EP’s July 1990 resolution on guidelines for a draft constitution for Europe.[27] Specifically recalling the work done by the first elected EP, this resolution referred to the TEU in the first sentence of its preamble. It noted the Parliament’s intention to transform the Community into a genuine European Union on the basis of a draft constitution to be prepared by the EP, and stated explicitly that this text had to be based on the treaty proposal adopted by the Parliament on 14th February 1984. In this way, no one could be left in any doubt about the connection between the planned constitution and the EUT project. The chairman of the working group that wrote the 1990 resolution was the former French President Valéry Giscard d'Estaing, who in fact continued to press for a European constitution during his time as chairman of 2002-2003 European Convention.
In 1994, during the same parliamentary term, the EP, dissatisfied with the 1992 Maastricht Treaty, which had introduced amendments to the previous Treaties and established the EU (Treaty on the EU/TEU), adopted the Herman Report.[28] This corresponded, essentially, to the draft constitution mentioned in the 1990 resolution. The Herman Report (named after its rapporteur Fernand H.J. Herman of the Belgian Social Christian Party) claimed in its preamble that the TEU did not meet the requirements of a democracy, did not make the EU efficient, and did not contain a plan to draw up a constitution effectively addressing the institutional problems. It proposed, instead, to establish a European convention, composed of MEPs and members of the national parliaments, that would be entrusted with drawing up a draft constitution ahead of the 1996 IGC. Not surprisingly, the Herman Report included many of the provisions contained in the EUT, but on one particular issue it went further. Indeed, Art. 20 of the resolution, which dealt with voting in the Council, defined the qualified majority vote as the votes of two thirds of the member states representing two thirds of the population. Another feature of the 1994 draft constitution was its Title VIII, which listed the human rights that would be guaranteed by the Union. Like the EUT, both the 1990 and the 1994 resolutions stated that the entry into force of the constitution would not require its ratification by all of the member states.
The Maastricht Treaty and other Reform Treaties.
The Maastricht Treaty (TEU), signed on 7th February 1992, represented a step forward, albeit a modest one in comparison with what was envisaged by the EUT. For instance, the Maastricht Treaty (Art. 1) established the EU but without giving it a legal personality, as was instead envisaged by Art. 6 of the EUT. It is obvious that the EUT was one of the sources of inspiration for the Maastricht Treaty. Nevertheless, it would be wrong to assume that every similarity between the EUT and the Maastricht Treaty reflects a direct influence of the former on the latter. Some important provisions of the TEU had indeed already been included in projects and reports on the EU other than the EUT. For example, the idea of establishing a European Union had appeared in numerous plans for reform dating back to the 1975 Tindemans Report; similarly, the road to follow in order to create the Economic and Monetary Union had been described more detail in the 1988 Delors Report than it was in the EUT. In the same way, the second pillar on Common Foreign and Security Policy (CFSP – TEU, Title 5) was essentially included under the third title of the EUT, which dealt with “International Relations of the Union” (Art.s 63-69), but the idea actually originated much earlier, in the 1970 Davignon Report.
Therefore the direct influence of the EUT on the Maastricht Treaty can be found in the ideas that were peculiar to the EUT. Indeed, the principle of subsidiarity, EU citizenship, the co-decision procedure and provisions on the institutional equilibrium were some of the distinctive features of the EUT that reappeared in the Maastricht Treaty. These ideas were subsequently taken up and developed in the Amsterdam, Nice and Lisbon Treaties.
The subsidiarity principle, derived from the principles governing the organisation of the Catholic Church, has always had an important place in federalism theories. This principle is defined in Art. 12 of the EUT: “The Union shall only act to carry out those tasks which may be undertaken more effectively in common than by the Member States acting separately, in particular those whose execution requires action by the Union because their dimension or effects extend beyond national frontiers.”[29]
This brief definition presupposes at least two levels of government, which may share competences in some fields of action, although priority is given to the member states. This is the working principle of a Swiss-type federation. The Maastricht Treaty, wording the concept in a very similar way, included the subsidiarity principle, thereby amending Art. 5 of the EEC Treaty: “(...) the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.”[30]
Although the subsidiarity principle gave priority to the member states, it was nevertheless expected that it would serve as a tool to increase the competences of the EU. The EUT, in Art. 10, envisaged two methods of action: (intergovernmental) cooperation and (supranational) common action. Article 11 stated that, if necessary, a matter subject to the method of cooperation could become the subject of common action, but not the reverse. Consequently, since its introduction with the Maastricht Treaty, the subsidiarity principle has worked in only one direction: to shift competences from the States to the EU.
As regards the issue of EU citizenship, contrary to what we have seen in relation to the subsidiarity principle, the 1992 TEU provided far more detail than the 1984 EUT had done. In Art. 3, the EUT defined a complementary citizenship that would be dependent upon citizenship of a member state and noted that EU citizens would participate in the political life of the Union. Similarly, the Maastricht Treaty (Art.s 17-22) provided an explanation of the rights arising from EU citizenship and strengthened the channels that allow the citizens to address the EU institutions directly. The definition of citizenship and the rights of EU citizens are aspects that the Maastricht Treaty covered in detail; this probably stemmed from a perceived need to compensate for the undemocratic character of the EU’s institutional framework as set out in the TEU.
Another original feature of the EUT that influenced the Maastricht Treaty is the co-decision procedure. Article 189b of the Maastricht Treaty dealt with the issue of the “procedure to apply to adopt an act”. The authors of the EUT had instead proposed an institutional equilibrium, based on a balance between the democratically elected EP and the Council of Ministers and designed in such a way that these would be, respectively, the lower and upper chambers of a bicameral legislative body. The co-decision legislative procedure, defined in Art. 38 of the EUT, was based on the idea that a draft law should be adopted by both bodies. To this end, the EP would examine and approve the law, after which the Council could adopt it by absolute majority, reject it by unanimity, or propose amendments to it. In the event of the necessary majorities not being reached in the Council, or the Council proposing amendments, a conciliation procedure would be opened and the Conciliation Committee would have the facility to adopt a joint text within three months or reject the draft law. A simplified version of the co-decision procedure, termed “cooperation procedure”, was also adopted in the SEA; in this case, the last word on legislation remained in the hands of the Council. Like the entire SEA, this was just a transitory solution. As noted by Paolo Ponzano, the difference compared with the Maastricht version of the co-decision procedure lay in the fact that it gave the Council rather than the EP the first opportunity to read a draft act.[31] Despite this change of precedence, the co-decision procedure, as defined in the Maastricht Treaty, functions as the primary institutional balancing tool, favouring equality between the EP and the Council.
While the co-decision procedure was initially intended only as a secondary way of introducing legislation, the 1997 Amsterdam Treaty enlarged its field of application to nearly forty policy areas, and the 2000 Nice Treaty to more than eighty areas. Article 294 of the Lisbon Treaty[32]renamed the co-decision procedure the “ordinary legislative procedure”. The strengthening of the co-decision procedure in the institutional framework of the EU provides a clear indication of the growing role of the EP.
The co-decision procedure was not the only example of a provision meant to increase the powers of the EP in the EU. Other important provisions with the same purpose were present in the EUT, particularly related to the investiture and accountability of the Commission. In Art.s 25 to 29, the EUT set rules about the appointment, the functions and the responsibility of the Commission. Under the EUT, the EP would have been given monitoring powers relating to the investiture of the Commission (Art. 25) and the faculty to adopt a motion of censure by a qualified majority (Art. 29). In addition, the Commission’s term of office would have been extended to five years so as to synchronise it with the legislative term of the European Parliament. These provisions, which were largely overlooked in the Maastricht Treaty, were subsequently progressively introduced by the Amsterdam, Nice and Lisbon Treaties. The amendment to TEC Art. 214 contained in the Amsterdam Treaty states that the assignment of the Commission shall be approved by the EP and Art. 201 sets the rules for the motion of censure. Article 17 of the Lisbon Treaty goes a step further and specifies that the European Council proposes a nominee and the EP elects the candidate.
Parliamentary control of the executive is a cornerstone of any liberal democracy. Accordingly, if the Commission is to be seen as a government, the EP’s powers of control over it assume fundamental importance. Making the Commission relatively more dependent on the EP was a conscious choice made not only to render the EU more democratic, but also to limit the powers of the Council in the institutional equilibrium. Juliet Lodge notes that “The relationship between legislative superiority and executive accountability is not without import” and “the EP’s position vis-à-vis the Council [was] further enhanced.”[33]
The purpose of the EUT provisions on EP/Commission relations, on the other hand, was to increase the democratic legitimacy of the Commission. This was particularly important to Spinelli, because he regarded the Commission as “a real nucleus of a European government.”[34] Burgess recalls that: “The Commission, not the EP, which was central to his [i.e. Spinelli’s] conception of European Union. (…) By strengthening the Commission, the EP would also be strengthened. Hence by altering the Community’s institutional balance in favour of the Commission and the EP, the two main pivots of supranationalism, the ‘common elaboration’ would be released to develop and determine itself.”[35]
The Constitutional Treaty.
One of the strategies proposed by Spinelli shortly before he died was to prepare a “minimal treaty” as a stepping stone towards the treaty establishing the EU. The idea was that, in this way, the member states would be forced to confront the need to make the further reforms required to tackle new problems. It was therefore a realistic strategy that since then, of course, has seen the member state governments, in the setting of IGCs, playing a central role in the process of revising the Treaties. Naturally, this method initially led to many important advances for the EU; however, concluding and ratifying the reform Treaties proved more difficult with each attempt. As the number of member states increased and the problems to solve at EU level became more complicated, the EU remained incapable of tackling them effectively. Difficulties during the ratification of the Maastricht, Nice and Lisbon Treaties and the Amsterdam and Nice IGCs’ weak responses to the challenges of enlargement exposed the limits of the intergovernmental approach to Treaty revision.
The second strategy proposed by Spinelli, even though it had already failed many times since the late 1940s, was to create a democratic constitution. His idea was to entrust the EP, once again, with the task of drafting the EU constitution, which basically meant repeating the work already done by the Committee on Institutional Affairs. A text produced by this method would certainly have been constitutional nature in nature and not a revision of existing Treaties, which would therefore have made it the more democratic strategy; however, as long as the unanimity rule for the ratification of the Constitution remained in place, its chances of success were limited. Nevertheless, this is what came to mind when the intergovernmental method proved unable to satisfy the need for reform. We have already mentioned the call for a European convention to be convened ahead of the 1996 IGC (i.e. before the Amsterdam Treaty), proposed in the 1994 Herman Report. While the European Convention was still waiting for its time to come, Europe nevertheless had its first convention experience – we refer to the meeting that, convened by the June 1999 Cologne summit, prepared the “Charter of Fundamental Rights of the European Union”[36]. Article 4 of the EUT had stated that within a period of five years “the Union shall adopt its own declaration on fundamental rights”, but had not listed the basic rights and freedoms concerned. The Charter of Fundamental Rights was declared in December 2000 at the Nice summit without being included in the Nice Treaty. It did not become binding until 2009, after the entry into force of the Lisbon Treaty, which referred to the Charter in its Art. 6.
Disappointed by the failure of Amsterdam and Nice Treaties to find efficient solutions to the challenges of enlargement, the heads of state or government, meeting in Laeken in 2001, convened a “Convention on the Future of Europe”, to be entrusted with the task of drawing up a “Treaty Establishing a Constitution for Europe”. This event represented a remarkable shift in the national governments’ attitude, as it was the first time member states had chosen to use a method other than the IGC in order to reform the EU. The risky nature of the intergovernmental method had indeed already become clear through the first Danish referendum on the Maastricht Treaty and the first Irish referendum on the Nice Treaty early in 2001. In both these referendums the EU Treaties had been rejected, making it necessary to hold, in each case, a second referendum to obtain the “yes” vote needed to satisfy the unanimity requirement. Today, even though the method has changed considerably, the process for developing Treaties retains an intergovernmental character, albeit less pronounced than before.
The Convention was formed of 102 members (representatives of the member states, members of national parliaments, MEPs, Commission members and others) and it was chaired by the former French President Valéry Giscard d’Estaing. It completed its work in less than two years. Just like the method used, the final outcome of this attempt to reform the EU was essentially different from what had been seen with previous Treaties. The Constitutional Treaty was a constitution in essence but had the legal form of a treaty. The text, written in the style of a constitution, amounted to a readable summary of the founding Treaties. In this respect, it was similar to the 1984 EUT. While this was the most important similarity between the EUT and the Constitutional Treaty, it was not the only one. The influence of the EUT on the 2003 Constitution emerges in elements such as the definition of the legal personality of the EU, the use of the term “laws” to define the acts of the Union, and the transformation of the European Council into a formal institution.
Article 6 of the EUT states that the “Union shall have legal personality” and notes that it “shall enjoy the most extensive legal capacity accorded to legal persons under national legislation.” The Constitutional Treaty, in its Art. 6, contains the same provision, establishing, in a single sentence, the legal personality of the EU. Following the rejection of the Constitutional Treaty, the EU actually did not acquire legal personality until the entry into force of the Lisbon Treaty, which contained the same short sentence in its Art. 47. Since, under the Lisbon Treaty, the European Community merged with the EU, the EU enjoys all the legal capacity that was enjoyed by the EC.
Article 34 of the EUT provides a definition of “laws”, a term meant to refer to different legal acts of the EC. Similarly, the Constitutional Treaty (Art.s 32-38) defines the legislative acts of the EU as “European laws” and “European framework laws”. Article 288 of the Lisbon Treaty, on the other hand, lists the binding legal acts of the EU as regulations, directives and decisions without using the word “law”.
Articles 31 and 32 of the EUT deal with the composition and functions of the European Council meetings (summits of heads of state or government) without making any significant changes to existing practice. Articles 20-21 of the Constitutional Treaty and Art. 15 of the Lisbon Treaty touch on the same subject. Defining the European Council as an EU institution constituted an important advance for two reasons: first because European Council decisions taken subsequently constituted legal acts and not just political orientations, and second because it brought these decisions under the jurisdiction of the Court of Justice, just like any legal act.
Even though it had already been ratified by 16 member states, the Constitutional Treaty was rejected in the French and Dutch referendums held in 2005. From one perspective, this rejection can be interpreted as yet another illustration of the limits of democratic constitutionalism as a Union-building strategy, at least in the absence of changes to the unanimity rule for the adoption of the text (and the chances of the unanimity rule being overcome remain small due to the member states’ understandable fear of being outvoted). From a different perspective, considering the significant public and political support mobilised between 2001 and 2005 for a European Constitution, this moment can be seen as a glorious moment and a noble defeat in a battle fought in the name of European constitutionalism.
Two years after the referendums of 2005, the member state governments convened another IGC with a view to concluding a new reform treaty. The Lisbon Treaty, which was signed in 2007 and entered into force in 2009, partially compensated for the failure of the Constitutional Treaty. As mentioned above, the 1984 EUT had some influence on the Lisbon Treaty, as can be seen in the provisions concerning the application of the co-decision procedure, the investiture of the Commission, the legal personality of the EU, and the institutionalisation of the European Council. Another similarity between the EUT and the Lisbon Treaty is that both made provision for postponing votes in the Council in situations in which a vital national interest of a member state was jeopardised. To allow the member states time to adapt to the new voting rules, Art. 23 of the EUT stipulated that this possibility should remain open for a transition period of ten years. Similarly, a document (Declaration no. 7) was annexed to the final act of the Lisbon IGC making provision for a transition period with regard to the voting rules, a mechanism known as the “Ioannina compromise”.[37]
The most recent initiative undertaken to breathe new life into the constitutional ideas of the Spinelli Project is the work of the Spinelli Group, launched in 2010 by a group of MEPs with federalist aspirations.[38]The Spinelli Group currently enjoys the support of more than 100 MEPs, as well as many leading politicians and EU experts.
Conclusion
The EUT is a tangible legacy of Altiero Spinelli’s lifelong efforts to promote the building of a united and democratic Europe. This project was neither the first nor the only one of its kind, and should indeed be considered in the context of several concurrent projects. The distinctive feature of Spinelli’s project, however, is the manner of its creation: the EUT remains the only project to have been developed by a directly elected Parliament, with the democratic participation of a group of individuals together representing the full spectrum of political views and through a process of genuine political deliberation. The adoption of the EUT by the EP on 14th February 1984 was a victory of parliamentary constitutionalism over intergovernmentalism. This does not make the EUT necessarily the best project in all respects, but it makes it the most democratically legitimate and the most broadly supported one.
The text of the EUT may be seen as a sort of recapitulation of all the ideas on reform that had emerged up until that point; therefore it was remarkably rich in content. Although the EUT was ignored by the member state governments, successive reform treaties and treaty proposals have contained many important provisions deriving from it. However, the process of reforming the EU did not prove easy. Only a few months prior to his death, Altiero Spinelli identified two possible new strategies for reforming the EU. The first was to draw up an EU treaty, subject to subsequent revision as necessary. The second was to attempt, once again, a democratic constitution-making process.
Now, nearly thirty years since the writing of the EUT, we can remark that, despite the various difficulties, both strategies were implemented and have helped to shape today’s EU: the Maastricht, Amsterdam, Nice and Lisbon Treaties shaped its political system, while the EP’s resolutions and the failed Constitutional Treaty, both products of a process of political deliberation that was a rich source of new ideas, clarified the roadmap for the reform process. It remains to be seen whether these strategies will contribute to future reforms as well.
[1] P.V. Dastoli, L’azione del Club del Coccodrillo, I Movimenti per l’unità europea 1970-1986. Tome I, edited by A. Landuyt and D. Preda, Bologna, Il Mulino, 2000, p. 562.
[2] J. Lodge, European Union and the First elected Parliament: the Spinelli Initiative, Journal of Common Market Studies, Vol. XXII, no. 4 (1984), p. 378.
[3] P.V. Dastoli, A. Pierucci,Verso uno Costituzione democratica per l’Europa, Alessandria, Marietti, 1984, p. 38.
[4] P.V. Dastoli, A. Pierucci, op. cit., p. 39.
[5] J. Lodge, op. cit., p. 379.
[6] M. Burgess, Federalism and European Union: The Building of Europe, 1950-2000, London, Routledge, 2000, p. 142.
[7] P.V. Dastoli, A. Pierucci, op. cit., p. 44.
[8]European Parliament’s Resolution Setting up a Committee on Institutional Problems, OJ C 234 of 14.9.1981, p. 48.
[9] J. Lodge, op. cit., p.379.
[10] S. Pistone, The Union of European Federalists, Milan, Giuffré, 2008.
[11] P.V. Dastoli, A. Pierucci, op. cit..
[12] European Parliament’s Resolution on the European Parliament’s Position Concerning the Reform of the Treaties and the Achievement of European Union, OJ C 238, 13.9.1982, p. 25.
[13] P.V. Dastoli, A. Pierucci, op. cit., p. 52.
[14] M. Burgess, op. cit., p. 142.
[15] A. Chiti-Batelli, Il Tramonto del “Coccodrillo” e la fine di una strategia federalista, Martinafranca, Pamphlets Lacaita, 1985.
[16] J. Lodge, op. cit., p. 380.
[17] G. Thorn, Address given by Gaston Thorn (13 September 1983), http://www.cvce.eu/obj/address_given_by_gaston_thorn_13_september_1983-en20c7b260-4051-
4940-840e-0e723e801ad6.html, 01.11.2012, p. 2.
[18] G. Thorn, ibid., p. 2.
[19] P.V. Dastoli, A. Pierucci, op. cit., p. 61.
[20] A. Spinelli, Towards the European Union, text of the lecture given on 13th June 1983, as part of the “Jean Monnet Lectures”, organised each year by the European University Institute in Florence, under the presidency of Professor Maihofer, published in The Federalist, 48, n. 2 (2006), p. 135.
[21] R.A. Cangelosi, Dal Progetto di Trattato Spinelli all’Atto Unico Europeo, Cronaca di una riforma mancata. Milan, Franco Angeli, 1987, pp. 35-45.
[22] M. Burgess, op. cit., p. 142.
[23]www.kangaroogroup.eu, 02.11.2012.
[24] J. Lodge, op. cit., p. 396, who provides detailed data on the vote on the EUT.
[25] G. Montani, Towards a European Constitution, speech given at La Sapienza University, 6 December 2006.
[26] A.Spinelli, La nuova strategia del Parlamento europeo per realizzare l’Unione europea, speech given at the EP in Brussels on 4th February 1986, in Una Strategia per gli Stati Uniti d’Europa, S. Pistone (ed.), Bologna, Il Mulino, 1989, p. 253.
[27] European Parliament’s Resolution on the European Parliament’s Guidelines for a Draft Constitution for the European Union, OJ C 231, 17.9.1990, p. 91.
[28] European Parliament’s Resolution on the Constitution of the European Union, OJ C 61, 28.2.1994, p. 155.
[29] Draft Treaty Establishing the European Union (EUT), www.spinellisfootsteps.info, 10.11.2012, art. 12.
[30] Treaty on European Union (Maastricht Treaty), OJ C 191, 29.7.1992, p. 1.
[31] P. Ponzano, The ‘Spinelli’ Treaty of February 1984, The Federalist Debate, n. 3 (November 2007), pp. 43-47.
[32] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, OJ C 306, 17.12.2007, p. 1.
[33] J. Lodge, op. cit., pp. 390-391.
[34] M. Burgess, op. cit., p. 145.
[35] M. Burgess, op. cit., p. 145.
[36] Charter of Fundamental Rights of the European Union, OJ C 364/01, 18.12.2000, p. 1.
[37] Declaration of Article 9C, paragraph 4, of the Treaty on European Union and Article 205, paragraph 2, of the Treaty on the Functioning of the European Union, OJ C 306, 17.12.2007, p. 250.
[38] https://www.spinelligroup.eu/about-us, 27.02.2014.
