Year XXXI, 1989, Number 3, Page 261
FROM THE EEC TO EUROPEAN UNION: A NECESSARY INSTITUTIONAL REFORM*
The historical moment that the European Community is living through is an exceptional one. The last few years have seen the institutions of the EEC animated once more by a dynamism that had seemed spent. The prospect of a single market — the free circulation not only of goods but also of people, capital and services — has imposed an extremely demanding agenda, condensed in the Commission’s famous White Book: about 300 specific measures will have to be adopted if the objective is to be reached. But that is not all: at political levels, in economic circles and in the Community institutions there is now a widespread conviction that the single market cannot become operative without intervention on the common monetary structures, such as to create a future European Central Bank, in a form which is now under study by a specially appointed commission.
All this would have seemed unthinkable only a few years ago. It is for this very reason that it is worth examining more closely the path that has led to this change, the prospects for success, and the institutional implications in this phase of the Community’s development.
Regarding the genesis of this phenomenon, I believe that the historian of tomorrow — for today there is still too much inaccessible documentation to allow any reliable reconstruction — will be unable to avoid making certain connections. The current dynamism is due to the fact that a large proportion of the economic forces of the twelve EEC member countries has taken the 1992 deadline literally, and already started a few years ago on the restructuring considered necessary to stand up successfully to “all-out” competition. The simple announcement provoked an anticipatory effect which is well-known to economic theory. The 1992 deadline was originally announced in the Single European Act in 1986. But anyone reading the text of this will be surprised to note that the deadline itself is by no means considered binding by the member countries. Thus the economy — the healthiest and most dynamic section of the economy — took for granted as a certainty what the member countries had limited themselves to expressing in non-committal terms: in terms less committed than those used by the same countries in 1972 to announce the Economic and Monetary Union to be established by 1980, without in that case words being followed up by deeds. This shows how the business world is far more ready to play the European card today than it was fifteen years ago.
But we have to go back yet another step. The Single Act which sets the ‘92 deadline is in turn the answer which the member countries of the Community had to give — could do no other than give — to an initiative which had come not from them, but from one of the Community’s bodies, the European Parliament. Without the Draft Treaty for European Union, approved by the European Parliament on February 14, 1984, on Altiero Spinelli’s initiative, the European Council would neither have studied nor approved the Single Act, a text which from the institutional point of view makes little change to the structure of the Community, but which has given rise to the great movement for the single market.
If this is the case — and to me the connections seem irrefutable — the current phase of the Community is the fruit of a different tree: it was a failed project for the economic unification of our continent. Such deviations or unintentional results are not unknown in history and may suitably be given the Hegelian term, heterogenesis of ends. And indeed, is not the Common Market of the Treaty of Rome, at least partly, a substitutional fruit of the failed European Defence Community of 1954? The institutional ties are thus not as distant or without political influence as the political line prevailing today would have us believe. This is true for the past, and will be even more valid for the future. Let us see why.
As regards the objective of the single internal market, it is known that the most delicate decisions are still to be taken. The reason for their postponement is simple: despite the Single Act having extended the range of cases in which the Council of Ministers may take a majority decision, not only do they still require unanimity for really important questions, but, to cap it, there remains in force the practice, contrary to the Treaties but inaugurated in 1966 with the so-called Luxembourg compromise, by which each member-country can demand unanimity on questions it declares to be “of vital interest”. Hence the right of veto which impedes decisions in the presence of a single dissenter. The paralysis which has so often afflicted the work of the Council of Ministers stems from this.
It is only too easy to observe that no human organization which includes a plurality of members and interests can function satisfactorily if unanimity is required. Is it out of place to recall that, even for the election of the pope the Church contents itself with the vote of two-thirds of the cardinals in conclave? And that the rule of unanimity leads to the majority being prisoners of the minority?
The basic contradiction underlying the ideology of unanimity must be exposed. The very existence of the European Community is born of the recognition that there are sectors of collective life, areas of economic life, and hence of political decisions, which affect the members of the Community as a whole group and not only each of them considered in isolation. These are sectors of Community responsibility, provided for by those same Treaties (to which probably in the future others will be added, both in the field of economics — currency — and on other fields, particularly defence). If there exists common interest — in the final analysis, the common interest of the peoples that make up the Community, which in this perspective form a single people — it cannot be expressed unless there is a common body to decide according to the rules of democracy, and therefore by majority.
The legitimate desire to look after the interests of each individual country and each individual people should not impede the Community as a whole in its duty and freedom to pronounce on those areas which come under its responsibility — those areas which are so to speak residual, according to the basic principle of subsidiarity. This is what happens within individual countries with respect to decisions which one or more regions might consider contrary to their own interests, but which are nevertheless considered by the central government of the country in question to be in the common interest.
A second basic defect of the institutional system provided for in the Treaties of Rome lies in the negation of the principle of separating powers. While the judiciary power of the Community is correctly exercised by the Court of Justice (and the institution of courts of primary jurisdiction is currently under study), the legislative power and executive power are almost entirely in the hands of a single body, the Council of Ministers: the Ministers make the laws, and the Ministers take basic decisions concerning the government of the Community. The Commission does of course have powers of initiative, but conversely exercises powers of government and regulatory powers far more limited than those of a national government. In turn, the European Parliament votes for the budget (but with the necessary support of the Council) and can make the Commission resign.
The degree of imbalance in such an arrangement is clearly evident. For the Community the age of constitutionalism has not yet arrived: we are still at the stage of absolutism. This is serious because the separation of powers constitutes a fundamental guarantee for the citizen. To distinguish those who vote for laws from those who are called, by administrative or political activity, to apply them, means removing the legislative body from the temptation to administer rules it has voted in, transforming itself into government by assembly, and means removing from government the power to dictate the general rules which every community needs. The principle of separation, which comes from Locke and the English Revolution of 1688, the principle illustrated by Montesquieu, adopted by the American Constitution, and the goal of the French Revolution, is the best means which history has yet produced for limiting the abuse of political power. It is unthinkable that Europe, the cradle of modern democracy, should ignore it in the context of Community responsibilities after having taught it to the rest of the world.
But that is not all. The exercising of legislative power by the Council of Ministers is spoilt at the roots by the lack of democratic legitimacy. If sovereignty lies with the people, if legislative activity is the first manifestation of sovereignty because it fixes the general rules of conduct, the power to pass laws cannot but belong to a body elected by universal suffrage. This is another cornerstone of democracy, of European origin, whose realization on our continent took about two centuries, from the end of the seventeenth to the end of the nineteenth century. The Europe of tomorrow cannot but adopt it in its own constitution. In a federal model the legitimate claim of the member countries to count as such in the course of legislation too can be satisfied by the creation of a second chamber, also called to vote for laws, which are only passed if approved by the vote of both arms of the legislative body: this can also be established easily for the laws of the European Community.
The rule of unanimity and the consequent right of veto; the lack of separation of the legislative from the executive body; and the attribution of legislative power to a body lacking democratic legitimacy because not elected by universal suffrage: these are three fundamental defects of the present institutional system in the Community. They can be summed up in one capital defect, which is a lack of democracy. It is clear at this point where intervention should be made to correct the system: legislative power must be removed from the Council of Ministers and conferred on the European Parliament, which can share it with a body which represents the countries (such as, speaking hypothetically, the Council of Ministers itself, working on a majority vote). Executive power should essentially be given to the Commission.
Within this framework there are many possible scenarios, each with its advantages and disadvantages. For example, the concern to guarantee stability to the executive may lead to the preferred choice of a government (the Commission) whose duration should be fixed rather than subject to the vote of the European Parliament; or indeed it is conceivable that the president of the executive should be elected by universal suffrage on the American model (which however does not seem to me suited to the European situation); or again the government may be given certain powers to nominate and confirm the acts of the executive, analogously to the US Senate; or again the government may be given wide regulatory powers, following the French model in the Constitution of 1958; and so on. These and other possible constitutional options will have to be considered with great attention in the next few years. But this is not the main thing: the main thing is to correct the three faults of the present institutional system in the Community today, which as seen above may be reduced to one fundamental fault.
It must be remembered that the need to introduce democracy to the building of Europe is not simply an ideal requirement. It springs from thirty years of experience in the European Community. Democracy is the best way to reach political decisions in real time to deal with the problems confronting our society. To whoever claims to prefer the current system because it avoids lengthy parliamentary deliberations, it may easily be objected that democracy, correctly understood and applied, is the regime which is most conducive to efficiency. Major decisions are discussed and decided by the people’s representatives, and are not continually shelved as happens now (as could be all too easily documented). Government acts in its own field of responsibility and answers directly to the people, or rather to the representative body elected by the people themselves. The consensus and dissent created by the action of the two bodies and by future programmes, are measured at election time, and here the direction determining the successive programme of legislation is given. This, is the only really efficient mechanism because it is founded simultaneously on the consent of the governed and the responsibility of the government.
This is not happening today. The Commission has insufficient autonomy; and it can happen — it has happened — that a Commissioner is not reconfirmed because he did not share the Community policy of the government which nominated him: as if the Commissioners were not considered to be acting, on the basis of the Treaty of Rome, in the interests of the Community. It is not to the Council of Ministers, and certainly not to the individual governments, that the Commission should be answerable. The national governments are responsible to their own parliaments, to their own national electors, and they cannot be expected to fulfil two roles, a national and a European one. The Council of Ministers, burdened with too many responsibilities, is a body at once too powerful and yet impotent. The situation of the European Parliament is even worse. 320 million electors are not going to put themselves out to elect an assembly that is almost devoid of powers. This is playing with democracy, making a mockery of the sovereignty of the people. It is a mockery that should be shown up once and for all.
The European Parliament is the only body that can legitimately represent the common will of Europeans in legislative matters. That it is also able to do so has already been demonstrated: in the first legislature approving the projected Union which is said to be at the origin of the current revival in building the Community; in the current legislation reclaiming its proper constituent role based on the people’s endorsement; the third legislation should and can be the constituent. Naturally, the national governments confer this mandate on the European Parliament, and it will be national parliaments that decide whether to ratify the proposed European Constitution drawn up by the Parliament in Strasbourg. The bicentenary of the French Revolution must not lead to unreal plans; today the only path to take is democracy.
One point must nevertheless be strongly underlined: the advancement of Europe must not depend on the unanimous agreement of member countries. Naturally the agreement of all should be sought, but the advocates of Union should be prepared to proceed even if some members refuse. Let us be quite clear about this: it is not indispensable that the constitutional outlines of tomorrow’s Europe be endorsed immediately by Great Britain or Denmark, for the other EEC countries to decide to adopt it. The European Union can be achieved by a first group of countries, and whoever does not join in can maintain the links and procedures provided for in the Treaty of Rome. From the juridical point of view too, I believe it has been demonstrated that the European Union and the Community are by no means incompatible. It is a well-known fact that if Britain’s membership had been insisted on at any cost from the beginning, the EEC would never have been born: that EEC which is now so convenient even for Britain. The perplexities of the British, so easily explained on the basis of the remote and recent history of this noble country, cannot constitute an excuse for the other countries to stand still.
The difficulties to be overcome however are still enormous. Asking governments to spontaneously renounce their monopoly of legislative power in the Community is asking them to go against nature, as history shows and as political theory confirms, from Thycidides on. Only superior force can make countries take this step. Such a force may consist in military conquest (and the history of Europe is a story, fortunately over now, of failed attempts at forced unification, as Dehio has shown so well), or in the fear of an external enemy, or in the will of the people. Fear, together with the horror of the recent war, led in the early fifties to only a step away from the European Federation. Today, the fear being diminished and the memory of the horror of that war being attenuated, the decisive push for union can only come from the will of the people, who perceive its basic values and interest more clearly than can governments. Is it not enormously significant that for years now surveys have shown a solid majority in favour of a United States of Europe in all the continental countries of Europe, with the sole exception of Denmark? It is for this reason too that I consider that the by now probable linking in Italy of the European elections of June 1989 to a consultative referendum on the constituent mandate to be conferred on the European Parliament is highly significant and may be held as an example for other EEC countries.
In the process which is now taking place, culture can play a fundamental role: not a few of the obstacles to the democratization of European institutions come from outworn ideologies, from myths of independence and sovereignty which survive historical evolution, from historical perspectives exalted by traditional media, which give priority to the existing and visible over that which does not yet exist but only asks silently to be allowed to. True culture goes against the current, uncovers and exalts the values ignored by power but latent in civilized society because they are latent in each individual person. In this process, the role of the Church and Churches can be crucial: indeed, it has already been so. If there is one force which has remained immune from the contagion of national ideology and the fateful myth of the unlimited sovereignty of the nation state, it is the Church. The tension towards unity, institutionally guaranteed, is an essential dimension of Christianity, quite apart from other unifying dimensions in the Christian tradition and spirituality, which have been evoked on several occasions and which I shall not deal with since they do not directly impinge on the sphere of political institutions.
The institutional reform of the EEC is thus an open-ended matter, whose outcome is hard to foresee. The fact that it is consistent with the values on which the political institutions of the European nations are based, and the fact that it is required by the process of economic union currently in progress do not make it either inevitable or certain, but certainly necessary and desirable. There is however a basic reason which should induce increased efforts in the direction indicated, and which I would like to turn to by way of conclusion, because it is in keeping with the context of today’s discussion: the European Union on a federal basis is not an event which only affects Europeans. It is an event, a process of global, planetary implications.
The union, if Europeans want it and are able to achieve it, will be the old continent’s new, fundamental contribution to civilization by the end of the second millennium. The birthplace of the nation-state, the region which in this century saw the outbreak of the two most terrible wars in history — but which is also the region which gave the world the heritage of art, culture and science on which contemporary civilization is largely based — will have shown the new path to follow, the only way to make war impossible: the course of unification on a federal basis. It should not be forgotten that the true spirit of the European Union has been and still is Franco-German pacification, the overcoming of nationalism. Today the international political situation makes a renewed sharpening of military tension in western Europe highly unlikely, but the meaning of unification — which should one day include defence, and which would itself therefore make war among European nations impossible — remains, above all, that of peace. Unification on a federal basis could offer other continents which are currently divided into sovereign states, such as Africa or South America, a much more valid model than that followed so far, even though of European origin.
Furthermore, European unification may reveal the way for the sublime undertaking for which time is ripening and which we almost tremble to name: the political unification of the whole human race. The great social and political problems of our planet — hunger, the North-South divide, local wars, the nuclear risk, ecological disaster — are resolvable only in the context of world political institutions which, so to speak, oblige people to live together in solidarity and peace. Not the solidarity of sentiment and fraternity of spirit (which are also essential, and are certainly not yet achieved), nor the armed truce for mutual fear, nor the agreements negotiated from time to time between countries, but solidarity of conduct, the cross-fertilization of interests, the technical impossibility of war. What has to be reached is world-planning of intervention and investment for ecology, for world agriculture, for industry, for services, which it is vain to hope may be reached by the spontaneous decision of sovereign states, each one concerned with its own well-being, moved by its own raison d’état. Only the raison d’état of a unified world coincide with the general interest of the planet, with the common good of all mankind, and not just part of it.
It is in this perspective of continental and global political institutions that the question of European unification takes on its true significance. And so the design of Community institutions of tomorrow and the strategy to reach them take on a much more universal value. The federal model and the principle of subsidiarity, which allow for respect for different cultures and all the autonomy and participation compatible with the common interest and with reciprocal guardianship; the democratic model — still largely a minority model in the contemporary world — which places man himself, each individual person, rather than any kind of élite, in the seat of final political choice (a model on whose civil and religious origins there would be much to say); the representative principle, which is still an external source to it; the model of separation of powers, which impedes and limits their abuse; all this is no other, when looked at closely, than the object of the hoped-for institutional reform of the Community, and constitutes at the same time a central part of the continental and global institutions of tomorrow.
Antonio Padoa Schioppa
* This is the text of the paper given by Antonio Padoa Schioppa at the Catholic University of Milan on 13 January 1989 on occasion of the Conference “From European Union to the Political Unity of the Human Race”.
 This remains true even in the present age, in which even the balance in the enlightenment matrix has been modified in many cases (think of the French Constitution of 1958 and above all of the material constitution of most western countries): the executive power has certainly enlarged its role as promoter of new legislation, but the control of Parliament in the act of approving new laws remains sacrosanct. The question of how the classical doctrine of powers should be reformulated cannot be tackled here.
 Another essential is publicity in the course of working out and approving Community laws. At the moment what happens is that a good proportion of the legal regulations which control the economy of EEC members — a set of regulations prevailing over internal law, as is known — comes into existence behind the closed doors of the Community offices and ministerial cabinets, without the possibility of public discussion.
 See the report on the Conference organized in 1987 by the Faculty of Law at the University of Milan, “European Union and European Community: Two Incompatible Institutional Systems?”, in The Federalist, XXX (1988), pp. 201-207.
 It is hardly necessary to add that the structure of the Union must always remain open not only to other members of the EEC, but also to Northern and Central-Eastern European countries. The federal model facilitates the entry of new members.