Year XXXIX, 1997, Number 3, Page 177



The intergovernmental conference to revise the Treaty of Maastricht — success or failure? Success, say some, mindful of the always-valid diplomatic rule that Germany only takes part in successful conferences and that the result is always precisely what Germany has been striving for... such diplomatic formulae aside, the question arises of how to measure success or failure. Considering the possibilities of a diplomatic conference — was Maastricht II a success in this respect? Measured against treaty changes at earlier events of this nature — was it worth the effort this time? Measured against the actual challenges of the next few years and especially the extension to the east — did the IGC make the EU fit for “Agenda 2000”? Measured against the objectives of a European federal political community — did the revision make decisive progress in this direction?
It appears, independently of the outcome of the IGC in detail — and one of its problems is precisely that the results lie in the detail — that not only one result or another, but also the method for continued European unification is to be considered. For some time now there have been increasing murmurs that the “Jean Monnet method” has no future. Others in contrast, precisely in view of the limited possibilities of each individual IGC, speak of the inevitability of an “evolutionary development” of the treaties. What conceivable and appropriate ways are there to make the European Union what it should be: a res publica accepted by the citizens of Europe, to shape the European future?
First one should remember that Jean Monnet’s “method” was itself an alternative to another, failed attempt at European unification. When Jean Monnet submitted his concept to the French Foreign Minister Schuman in April 1950, it was almost a year after the Hague congress — next year will be its fiftieth anniversary. May 1948 saw the failure of the revolutionary attempt to create a European Federation at a stroke, through an act of will by the statesmen responsible. The non-governmental European associations which had started this attempt had to give up the initiative.
The alternative to the immediate realization of the “United States of Europe” called for by Churchill, was initially discussed and developed in the Parliamentary Assembly of the newly-founded Council of Europe, before Jean Monnet made it into a practicable, politically feasible and achievable project. The formula developed in the Council of Europe was threefold: first there had to be a genuine common European political authority, an institutional core or motor; secondly, this was to have genuine power, so the realization of its decisions could not be once more subject to the goodwill of anyone member state, but must be directly valid law; thirdly, this power should be limited to a few sectors, and thus be acceptable to the member states.
A political authority with genuine power, but limited competences — for Jean Monnet and Robert Schuman this alternative became the standard, albeit with an additional dynamic, an ulterior motive: the initially limited competences should gradually be extended, more and more areas of policy should be added, so that in the end there should indeed be a European federation concerned with all European functions — and not only with the few acceptable to those states clinging to their sovereignty.
This integration strategy, disregarding differences of detail, has been the standard until today, until Maastricht and Maastricht II, and in fact “evolutionary development of the Treaties” means nothing else. Indubitably the “Jean Monnet method” has even been extremely successful, despite some setbacks (like the failure ofthe European Defence Community in 1954). Indeed, success is the problem of this integration strategy today. Its success has brought it to the limits of its capacity.
A glance at the development of the European treaties illustrates this observation. Alongside the first “European Community”, which in accordance with the Council of Europe formula remained limited to two areas, coal and steel, other treaties were added with further competences: the European Atomic Community, which — admittedly with little success — was to exploit nuclear energy and other new forms of energy and technology for Europe; and the European Economic Community (EEC), particularly with the internal market project and associated common policies, such as competition and foreign trade, right up to the final consequence of the single market and single currency.
In the Single European Act there were already four parts to the treaty, or part treaties, which were now for the first time brought under the mantle of one treaty: “European (foreign-) political cooperation” was added. With the Maastricht treaty, the book of European treaties was again enriched by new chapters: “cooperation in justice and home affairs” was added, and the protocols gained so much substance and meaning — for example the statute of the European Central Bank is contained here — that they are due the rank of a special part treaty. Instead of the six treaties or part treaties one can also, greatly simplifying, distinguish “three pillars”: economic, foreign and security policy, and justice and home affairs.
The rule with all the major changes was that the treaties were completed and extended, new treaties or new parts were added to them — but they were never put together, united and integrated to make one treaty text. Thus was formed a complex mountain range of differently organized treaties and parts of treaties with differing decision making procedures. The Jean Monnet method finally reached its goal, by Maastricht at the latest, in one respect: the emergence of a European political system which can actually attend to almost all European functions, and which to a certain extent covers all political fields which have European dimensions.
Jean Monnet has reached its goal — so where is the problem? The problem is the existence of a European res publica which is not public. A multitude of, in themselves, extremely complicated treaties cannot be the basis on which citizens and political system relate to each other — in as far as this political system claims to be democratic (or at least to want to become so). Basic to our European understanding of a legitimate political system is the notion of popular sovereignty of the people, the citizens, as the source of political power. And the agreement which commits the citizen and the political system to the transfer and exercise of political power is normally — and nowhere is this in doubt — a constitution.
In the beginning the European community development set in motion by Jean Monnet certainly did not need a constitution; right up to the 70’s one could argue over whether the European Communities were not simply a functional association between several interested states, which required no legitimation beyond the parliaments of the member states. But a European Union with a common market and a common currency — and hence, on the whole, a common economic policy — with a common foreign and security policy and close coordination, in part even a common justice and home affairs policy, has without doubt become such a complete political entity that it at the very least resembles a state. And certainly there can no longer be any doubt that the citizens of Europe are affected by the use of political power through this system to such an extent that they rightly can and should demand another basis for this power than the sketchy range of treaties.
Precisely because the method of gradual integration has now fulfilled its original remit, of Europeanizing political power, there has to be a change of method. This is no criticism of the method of intergovernmental conferences, nor of those who have negotiated the treaties so far. On the contrary: the change of method comes into question only at this point, when the path of intergovernmental conferences has achieved everything that could be achieved this way — and that is a result to be proud of: a whole, complete, state-like political system that is Europe. It is this which now, for the first time, requires a constitutional order — and such an order cannot be created through an “evolutionary development” of the treaties through continued intergovernmental conferences.
“45 years striving for the European constitution” — this was the title of Walter Lipgen’s still-valuable annotated collection of documents back in 1986. The demand for a European constitution is by no means new, since (as is well-known) it was raised even before the beginning of gradual integration. In the current situation this has advantages and disadvantages: one advantage is that talk of the European constitution no longer sounds revolutionary, but habituation brings the disadvantage that its notorious lack of success draws the good-natured smile accorded to harmless talk, removed from reality.
This is a disadvantage because the demand for a European constitution today has a sharpness hitherto unknown in the whole history of European unification. The question is now acutely current and must rid itself of the image of harmless dreams cut off from reality. The sharpness with which European Union resolutions are everywhere discussed, the dramatic drop in support for “Europe” speak for themselves. And the argument often brought into play, that disputes over European resolutions are a good sign, because in this way the EU does after all prove its quality as a directly functioning state-like system, only speaks all the more for the constitutional order.
Now there is another reason why the demand for a change of integration method, from intergovernmental conferences to a constitution-building process, is no longer quite so revolutionary: the change of method has already begun. The various beginnings need only be brought together and completed. Secondly the change of method must be formally made into a principle — and not just executed half-unconsciously. Thirdly, suitable means must be demanded, if negotiation in reflection and other diplomatic groups cannot lead to the goal of an understanding between citizens and Europe. The following considerations are dedicated to these three aspects — already recognizable beginnings, their systematization, and the means to realize them.
The method of simply stringing together otherwise independent treaties was breached for the first time in 1965, when the institutions of the then existing three treaties were put together, merged. This trend became clearer however only with the Single European which in 1985 placed a unitary mantle around the treaties. And finally the treaty concerning the European Union, the Treaty of Maastricht, is a fresh summary of the treaties and parts of treaties going beyond the Single Act. The unifying function of the EU Treaty is undoubtedly symptomatic of the insight that unless they were bound together in some way, the multiplicity of treaties and part treaties would fall apart. But in the case of the Treaty of Maastricht it can also be seen that the bond was only created “in some way”, and in fact is still haphazard. This is no fusion of the treaties, but merely an exercise on paper.
The second indication of a change of method, away from integration through the gradual extension of competences, is the fact that, quite openly, no new EU-competences were to be created through the IGC. This was the first time this applied to the further development of the treaties: the Maastricht treaty itself still added to the European Community such important elements as Economic and Monetary Union, turned European Political Cooperation into the Common Foreign and Security Policy, and established Cooperation in Justice and Home Affairs. With Maastricht II, at least for some time and generally speaking, the 47-year-old rule that any change in European integration treaties up new areas of policy, had become obsolete.
Another maxim has taken the place of this rule: the treaties are not to be extended, but simplified and made more efficient. Simplified by reducing the many complicated decision-making procedures to a few less complicated; made more efficient by pushing back the rule of unanimity and by the possibility of making more far-reaching decisions in a smaller circle, without allowing one or a few states to hold it back — a possibility which under the concept of “flexibility” has become the central to the question of reform.
The end of the extension of competences, the search for simplification and increased efficiency are clear signs of a change of method. Admittedly the successes are minimal, because the new method is being pursued by the old means — but more of this anon.
The third starting point for the “creeping” change of method is the growing significance of the principle of subsidiarity in the European Union. This is decisive evidence of a way of dividing power between the states and Europe that is quite different from the past. The Jean Monnet method consisted of taking a few areas of policy over into community responsibility, while the others, the majority, remained with the states a kind of vertical division of powers. The principle of subsidiarity on the other hand demands a horizontal division of powers: in various policy areas both the EU and the states are involved in policy formation, in various forms of voting and cooperation.
This subsidiarization of the European Community began long ago, basically with the foundation of the EEC, in which the states, through the Council of Ministers, received greater power to cooperate in policy-making than had been the case in the ECSC. Generally speaking it is a rule (with exceptions) that the later areas of policy to be made community responsibilities show a lesser degree of integration than those added earlier: in the EC-area the degree of integration is higher than in the CFSP (Common Foreign and Security Policy), and it is higher in the CFSP (which in any case harks back to the ECP (European Political Community)) than in Justice and Home Affairs etc. All this shows that in any case the method of gradual integration has long departed from the simple schema of the gradual transfer of competences, but is oriented rather according to cooperation between the state and Union levels based on the principle of subsidiarity.
This means however, whether or not the advocates of the subsidiarity principle are aware of it, that a federal principle has become the standard of EU development. For the principle of subsidiarity presupposes fundamentally federal structures, above all the existence of various, organically-connected political levels. On the other hand, one might conclude that the Jean Monnet method was not all that federalist after all. It tended rather towards European centralization, although initially of only a few selected areas of policy. With the growing number of these policy areas however the demand for “federalization” did indeed arise, and with the rising significance of the principle of subsidiarity it is in part answered.
The various treaties and parts of treaties are (admittedly in an unsatisfactory fashion) already grouped together and are no longer wholly disconnected; the competences of the EU have basically spread to all areas of policy of European dimension; and the rule of division of power between the states and Europe is today of an “us and them”
situation, but cooperation organized according to the principle of
subsidiarity and hence (pre-)federal. With this the demand for a
change in the method of gradual integration is already to a large extent answered
by reality — admittedly no other method has taken its place,
but a process that is at best pragmatic, but more often aimless.
The change of method, the necessity of which has been proved in reality, must be made a principle, and a new method put in place of the old. That is the fundamental task of integration at this time of change and crisis.
For this there have to be new means. Intergovernmental conferences cannot mastermind this transformation. ‘Governments are on the whole not the right point of departure for the new task: European society, the European peoples, the citizens of Europe, must come into play, and not only as addressees of government, commission or parliamentary information campaigns, but as independent agents, taking the European unification process into their own hands. The initiative for the future shape of Europe must come from the non-governmental arena of civil society.
Once again: this is not fundamental criticism of the integration process so far and its negotiation leaders. On the contrary — they have done their bit, and to expect diplomats and officials to develop a European constitution would be to disregard their duties and a constituent force must grow out of society, through the engagement of the social forces organized in unions and elsewhere.
Naturally a legitimate representation of the people or of the European peoples should then be charged with the actual formulation of the constitution. This cannot be undertaken in itself, but must be brought out of the non-governmental into the institutional area. The only candidate for this task is the European Parliament, for which it is nothing new. It is simply a question of resuming the draft constitution worked on in Parliament. The European Parliament is after all the bridge between European citizens and “their” Europe, it is the “people’s representative” which must take on the issue of the constitution.
By definition one cannot say beforehand what kind of constitution this should be: after all, it is supposed to grow out of the of European civil society. The notion of a “constitution” is therefore intended merely to represent a fundamental agreement between the citizens and Europe, which may take various forms.
It should however include three essential declarations: first, the European Union must make a commitment to human, basic and citizens’ rights and acknowledge the goals which the European citizens set for it. Secondly, it must clearly specify in which areas of policy the European Union can, should and may be active; and whether and how it must cooperate with the member states in these areas. Here the subsidiarity principle applies. And thirdly, such a fundamental contract should make clear to an interested citizen where, how and by whom decisions are made, or in other words: the institutional structure and the process of decision-making must be agreed between the citizens and political Europe.
As already sketched out, this demand is simply the consequence of long existing beginnings: of the timid attempts to condense and collate the treaties, of the transfer of competences (to a great extent already established), and of the growing significance of the principle of subsidiarity. The European Parliament is there to take up the task. The citizens of Europe are dissatisfied enough with the European Union that they might — should such a change not take place — withdraw their consent entirely.
The demand for a European constitution was always justified, but never urgent. Thus it could be accepted in principle and yet remain without effect. Today the demand is urgent. The governments, diplomats and officials have taken European integration so far that it must now, as a fully-developed, state-like system, modern and federal in character, be handed over to the citizens of Europe to receive its legitimation from them. Now is the time when Europe needs a new fundamental agreement between citizens and politics.
Hartmut Marhold


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