Year XXVII, 1986, Number 2-3, Page 145
EUROPEAN UNION AND THE COMMUNITY*
Any plan to relaunch the European Union must come to grips with a basic fact (which was the cause of the Luxemburg failure) that some Community countries, i.e. Great Britain, Greece and Denmark (and perhaps Portugal in the future), on the one hand, do not wish to proceed down the road to Union (and say so openly) but, on the other hand, have no intention of renouncing the advantages they derive from Community membership. Thus any initiative designed to relaunch the Union involving these countries is unquestionably doomed to failure. This obstacle must be faced and we must work from the assumption that the only realistic hypothesis currently possible is a Treaty-Constitution establishing a European Union agreed by some countries and not all the countries in the current Community. (This is, of course, true only initially, since, in all probability, if a realistic project did make headway, then the attitude of Great Britain — and hence Greece, and Denmark and possibly even Portugal — would rapidly change).
Naturally, this does not mean that the enemies of the Union are to be found only in Great Britain, Greece and Denmark (and possibly Portugal). Clearly, the attitude of these governments is most convenient for many politicians in the other member states, who are against the Union but who, in the light of public opinion in their respective countries, cannot say so openly and are only too happy that somebody else does their dirty work. But the very first task of a realistic project to relaunch the Union based on countries in favour would be precisely to unmask this convenient alibi and see who is really for and who is really against in a crystal-clear way.
The objective of the Union based only on those in favour can be achieved in two ways: either by a break with those who are against or by means of an agreement with them. The history of the Luxemburg “Single Act” has shown that the first possibility is not practicable. The events that have taken place during the interval between the definitive approval by the European Parliament of the Draft Treaty and the “Single Act” have revealed that in certain countries there has been a genuine willingness (of both government and parliament) to proceed down the road to Union. But no country (except, perhaps, Italy) has been willing to do so at the price of a split with Great Britain (the other two countries who were against Union may be considered to all effects and purposes as entités négligeables). It should be pointed out at this stage that the “split” in Milan, however symbolically significant, was contradictory because it led to a majority decision to call a diplomatic conference required to reach a unanimous decision. Sir Geoffrey Howe had no difficulty in these circumstances to appear as the champion of common sense when he said that the Milan decision would merely delay the realization that agreement on the European Parliament’s Draft Treaty was impossible.
The second possibility. This consists in proceeding down the road to Union with the agreement of those countries who are not willing to take part. Since a few countries are unwilling to go ahead but, at the same time, do not want to lose the advantages deriving from Community membership as it is at present, there is no logical reason why they should object to the others signing a Treaty-Constitution, the contents of which follow the same lines as the Draft Treaty approved by the European Parliament, provided, of course, this Treaty-Constitution protects the rights and interests as members of the Community of those not willing to join.
The new text of the Treaty-Constitution, rather than the bland statement in Art. 82 of the Draft Treaty of February 14th, 1984 which asserts that at a certain moment the problem of the relationships between the states who have ratified the Treaty with those who have not ratified it will arise, should from the very start contain a series of measures making the provisions of the Treaty-Constitution compatible with those of the Treaties of Rome. This would make it possible to present the proposal not as an initiative designed to provoke a split, but as an attempt to reconcile the interests of those who want a greater degree of supranationality with the interests of those who do not want this to happen but who at the same time wish to preserve the acquis communautaire. This proposal ought then to be presented to all the Community member states who would be asked to decide, in full compliance with Art. 236 of the EEC Treaty, on the establishment of a European Union within the Community.
The advantages of this approach are clear. Apart from the fact that it unmasks the false friends of Europe and removes their most credible alibi, which we have already mentioned above, others include the following:
a) It is certainly possible, and indeed probable, that the British government will remain strongly opposed to any plan of this kind. But equally its position would most certainly be weakened by such a plan. It would become much more difficult for Mrs. Thatcher to justify a blanket refusal to public opinion. A section of British public opinion and the British political class, while opposing Great Britain’s participation in a democratic European supranational Union, would however be in favour of an agreement that left the relationships between the United Kingdom and other countries in the Community as they are at present but permitted the others to proceed.
b) The mere fact of placing the plan on the negotiating table would encourage the creation and expression of a European political will in many potentially favourable circles. It is undeniable that the British obstacle — as well as supplying an alibi for the false friends of Europe — has so far been a real deterrent for its true friends. Very often a genuine political European will has not arisen where it might well have done so precisely because Great Britain’s expected blanket refusal was sufficient to kill any desire to act or any ability to plan stone dead.
c) The position of those in favour would be greatly strengthened by the fact that such a plan would make it possible to appear at the negotiating table as the defenders of legality whereas any other possibility of action presupposes a split. The unlikelihood of a split reinforces the skepticism of the “realists” as well as the aversion of the legalitarians.
d) This does not mean that the possibility of a split should be ruled out a priori. It may well be, as we mentioned above, that Great Britain, in the belief that it is confined by such an agreement (albeit one which respects its rights and economic interests) into a politically marginal position, will oppose any form of agreement and will cause the negotiations to fail. But in this case it would be clear to everybody that the split was caused by those governments who want to block the process and not by those who want to encourage it. The latter could legitimately claim that they had done everything in their power to reach a negotiated agreement which was in everybody’s interests while it would become increasingly difficult for those opposing such an agreement to justify their position. This would create a situation, favouring the growth of a European drive in public opinion — both in the countries who are for and in the countries who are against. Ultimately it would make it clear that a split is inevitable and not the result of an arbitrary decision. It would thus make the relative decision acceptable to even the most lukewarm governments.
This leaves the technical problem of demonstrating that a solution of this type is possible. This can be done by drawing up a Draft Treaty which complies with the previously mentioned need. We should not conceal the fact that drafting presents serious difficulties — even though we should not overstate the difficulties. The history of European integration has experienced very complex institutional solutions, such as the co-existence of the three Communities and the co-existence of the Community with the EMS. The federalists are, however, committed to resolving these problems, and have retained leading experts on Community law to study these problems.
The basic outline of the Draft Treaty should be as follows:
1) a European Union is established within the European Economic Community.
2) The countries which constitute the Union shall proceed to strengthen and democratize common policies and institutions while complying, in dealings with non-Union Community members, with Community regulations and procedures.
3) The Union is open to those members of the Community who do not join at the time when the Union is established. They shall be admitted to the Union as soon as they express the desire to do so, without the need for any negotiation, provided they accept the Union’s rules.
4) The Union’s member states shall decide on the basis of the procedures which are from time to time in force, whether they will act uti singuli or through common institutions, regarding intergovernmental relationships within the Community. Whatever the case may be, in the majority votes of the Council of Ministers and in the establishment of the number of Commission members for each country, the Union will always count in proportion to the number of its member states.
5) Other states will not be able to participate in the Union without previously passing through the Community, so as to ensure that no change in Community membership can occur without the agreement of all the member states.
The Draft Treaty will have to define the relationships between the Union and the Community and will have to come to grips with the problems that arise in all major sectors, the following in particular:
1) The institutions. These would not be duplicated but would carry out their functions for both the Union and the Community. The Parliament and the Commission in particular could maintain their current structure but, when they acted as Union institutions, the British, Danish and Greek members would be present as observers with the right to speak but not to vote.
The British, Danish, Greek members etc. of the Court of Justice would be empowered, like the others, to rule on matters relating to the Community and the relationships between the Community and the Union.
2) Own resources and budget. Current resources would remain attributed to the Community. The Union should find its own resources by effecting further transfers of funds.
3) Common agricultural policy. This would remain in the Community’s jurisdiction. The Union could, however, be empowered to take on responsibilities in the guidance sector.
4) The internal market. The Union could give a stronger impetus to the process while respecting agreements made from time to time with Great Britain, Greece, Denmark, etc.
5) Cohesion. Dual jurisdiction would seem to be conceivable. Both Community and Union could carry out their own regional and social policies while attempting to harmonize them as far as possible.
6) Currency. No conflict need arise. The Union could incorporate the EMS in its own institutional system and push ahead towards its transformation into a true monetary Union.
7) Revision procedures for the Union Treaty. No conflict need arise provided the integrity of Community institutions is safeguarded in the relationships with non-Union Community members.
The International European Movement in its efforts to relaunch the Union has adopted the proposals Spinelli presented to the institutional commission of the European Parliament. The proposals are part of a plan with the following objectives: a) the calling of a Convention of states favouring the Union to draft a constituent mandate to be given to the European Parliament before the next elections, subject to a prior referendum on the content of the mandate. This Convention should directly submit the text to be approved by the European Parliament for ratification to the national Parliaments or to the other competent bodies of the member states; b) the drafting by the European Parliament after the next elections of a Treaty-Constitution on the basis of the mandate received; c) the direct transmission of the constitution to the national parliaments or other bodies constitutionally entrusted with ratification without the Draft Treaty being submitted to any intergovernmental conference.
The proposal contained in this document falls in line with Spinelli’s plan but articulates one of its steps more clearly.
One point in Spinelli’s proposals remains obscure. This concerns the convening of the Convention. Since this only concerns countries in favour, it would automatically fall outside the scope of the current treaties and assume that a split has already taken place with countries who are against. What is not foreseen is how this split, which did not occur in the phase ending with the Luxemburg “Single Act” (a phase which in many ways was particularly propitious), could take place rebus sic stantibus in the next eighteen months. Certainly the unpredictable is not infrequent in history. And if the climate of relationships between the EEC member states should change radically in the light of exceptional events then we should seize any opportunity that arises. But it is equally certain that a Movement must draw up its strategy on the basis of foreseeable developments because only prospects for action based on foreseeable developments can mobilize energies.
Now the foreseeable short-term developments are: a) that the states openly contrary to the Union will continue to remain so; b) that the states favouring the Union will continue to be unwilling to follow a course which does not entail the application of Art. 236 of the EEC treaty, which lays down that a unanimous vote is necessary and c) that the federalists’ ability to apply enough pressure to strengthen the political will of governments in favour will tend to weaken rather than strengthen now that the particularly favourable phase of the Italian presidency has passed and the possibility of organizing mass demonstrations like the one in Milan has gone by. This simply means that to relaunch the Union we need to study a procedure that does not take for granted the required degree of maturity among political forces to force a split — because this degree of maturity has simply not yet been reached. We need a procedure that leads them to this maturity in the shortest possible time and which also makes the obstacles easier to overcome and weakens the enemy’s capacity for resistance.
Concretely, Spinelli’s proposals should be specified as follows: a) the Convention with which the process should start, should bring together all the Community states (and hence should coincide with a European Council meeting), with a view to finding a satisfactory solution for all; b) the mandate to be entrusted to the European Parliament should relate to the drafting of a Treaty-Constitution which, as well as defining the bases of the Union, also defines the relationships between the Union and the Community. The Community would continue to exist, guaranteeing the rights and interests of those Community members who do not intend to join the Union. (It should be made clear that if the states who oppose Union reveal their desire to weaken the Community still further, then they should promptly be allowed to achieve their goal, provided that, while watering down the Community’s cohesion and weakening the binding nature of the Community’s rules, they do not prevent the others from establishing a Union). As may be seen, this formulation does not in any way change the basic rationale of Spinelli’s proposals, which consists in taking the task of drafting the Treaty-Constitution out of the hands of bureaucrats and diplomats.
A few final remarks are in order at this stage.
1) No juridical solution whatsoever can create a non-existent political will. Nobody is so naïve as to claim the contrary. However, law plays an irreplaceable role in politics because it supplies the instruments needed to produce concrete decisions with which to implement an existing political will. A good juridical solution can therefore give certain forces a vital instrument by which to prevail over others. This could turn political will which currently only exists in a potential form into an actual one.
2) No plan of action, in particular in a phase of the process of European unification like the present one, can be thought of as definitive. It must on the contrary be thought of as a working hypothesis on the basis of which it is possible to draw up the forces before the battle, in full light of knowledge that subsequent events will require adjustments and will even make radical changes in direction necessary.
3) The effectiveness of a plan of action cannot be judged only on the basis of its capacity to reach the objective. For this to occur it is necessary for Machiavelli’s “fortune” to intervene. It must be judged on the basis of its capacity to keep the forces on the field and to give something to do for everybody and to formulate the arguments to be used. Spinelli’s plan of action, integrated with the suggestions made in this paper, would seem to present this final prerequisite (it would for example allow British federalists to become engaged in the fight for the Union and avoid them finding themselves in the embarrassing position of having to support a policy, which, if adopted, would at least initially take Great Britain out of the Community).
* This document was presented to the institutional commission of the International European Movement on July 12th, 1986.