political revue


Year XXVII, 1985, Number 2, Page 115




Increasingly, voices can be heard arguing that progress towards European Union can only be made if those countries willing to move towards such a Union go ahead and do so by themselves without continually being blocked by a minority. This idea – support for which has been hinted at by a number of governments[1] and national parliaments[2] and is perhaps implicit in the fact that the “Dooge” (“Spaak II”) Committee deliberately adopted its report by majority – was initially put forward by the European Parliament. In Parliament’s draft European Union Treaty,[3] Article 82 – one of the more controversial articles, yet at the same time a possible key to its success – envisages the possibility of the Union being established, if necessary, without the participation of all the Member States of the European Community. What led the European Parliament (EP) to put forward such an option? How does it stand in legal terms? What are its prospects?
Parliament put forward the option of adopting the Treaty without all the Member States because it had become convinced that unless such a possibility were on the table, its draft Treaty had little chance of making headway. Over the years the EP had seen many proposals for institutional reform enjoying broad support blocked by one or two Member States alone. During the preparation of the draft Treaty, Parliament had witnessed the discussions on the Genscher-Colombo proposals in the Council, during which individual Member States consistently blocked a whole range of constructive proposals, however moderate.[4] It was aware of the limited prospects of certain States accepting the draft Treaty, except, perhaps, if confronted with the possibility of being left out and the majority of States going ahead without them. Some Members had in mind the precedent of Schuman’s Declaration in 1950 to move ahead with those Member States of the Council of Europe which agreed to proceed further down the path of integration: six of the then twelve Member States agreed to do so – some of the others followed later. The European Community, as we know it, would never have come into existence if the six had waited for the others to agree. This time, the EP defined a “critical mass” which would be the minimum number of States necessary to forge ahead: Article 82 refers to a majority of Member States of the Communities whose population represents two-thirds of the total population of the Communities.
Such arguments may be politically attractive, but the legal implications of moving in such a way from Community to Union are somewhat different from moving ahead to create the ECSC Treaty thirty years ago. Unlike the earlier case, the Union would absorb Community matters and administer them through its own institutions. Would such a move be possible?
The first potential obstacle is the fact that the Communities have their own revision procedures laid down in Article 236 EEC (and its equivalents in the ECSC and EAEC Treaties[5]) which foresee only a minor (consultative and certainly not initiating) role for the EP, a unanimous decision by Council and ratification by all the Member States. Clearly such a procedure would stand in the way of the EP’s strategy. But a considerable body of legal opinion maintains that the treaties cannot be amended other than by these procedures. Kapteyn and VerLoren van Themaat say: “It appears highly questionable whether reliance on a universally recognised rule of international law, according to which, notwithstanding the prescribed procedures, a treaty can always be amended by a later treaty, also applies to treaties which have called into being a new legal order which limits the sovereignty of the Member States and is binding on them as well as on their nationals”.[6]
Referring to the European Court of Justice’s jurisprudence in the Costa v. Enel[7] case – in which the Court ruled that the Member States have limited part of their sovereignty and transferred power to the Community, creating a body of law which binds both their nationals and themselves – they argue that a revision of the treaties cannot take place without respecting the procedure laid down therein, which involves the institutions to which the Member States have surrendered certain powers. This view is widespread[8] but not shared by everyone: Davidson, Freestone and Lodge argue[9] that in legal and political reality the Member States remain masters of the Community and are therefore free to agree on new treaties without following the Community procedure. But, in practice, although treaty amendments have been made in the past[10] which did not follow that procedure, the controversy this caused later was among the reasons that ensured that subsequent revisions[11] were carried out in compliance with the procedure. Furthermore, Parliament itself has supported the use of the revision procedures, to preserve the “acquis communautaire” from erosion by the Member States and involve the Community institutions in the procedure.
How, then, did Parliament justify proposing a new Treaty that did not follow these revision procedures? Its argument was simple and clear: the draft Treaty, although containing an article (Article 7) in which it takes over the “acquis communautaire” and therefore implicitly assumes that the Union should be the successor to the Community, is not a revision but a new Treaty, the scope of which is far wider and which can by no means be compared with simple amendments to the existing treaties. Professor Jacqué, one of the four lawyers assisting the Parliament in drafting the Treaty, wrote: “The revision procedure must be applied when one acts within the framework of the old system, which one intends to reform. That procedure no longer comes into play when the aim is to constitute institutions with new powers and possessing a different juridical status”.[12] Indeed, the EEC Treaty was created without reference to the revision article in the ECSC Treaty, and when the ad hoc Assembly engaged in the preparation of the Political Community and, later, the Member States studied the Fouchet Plan, no references were made to the revision procedures of the existing treaties. Parliament was correct not to invoke these procedures.
Avoiding Article 236 and drafting a clear political proposal also had the advantage, from Parliament’s point of view, of avoiding a new treaty being drafted in the first instance by foreign ministry officials, whom it regarded as the custodians of national sovereignty and those with a vested interest in the status quo.[13]
The non-use of the revision procedures of the existing treaties is thus no obstacle to Parliament’s strategy.[14] A new Treaty can be signed and ratified, without following the revision procedures of the current treaties. But does this mean that such a Treaty could be signed by a certain number – but not all – of the Member States of the Community?
The arguments here are more complex. Much depends on the attitude adopted by the States that do not wish to join the Union. The simplest scenario from the legal point of view would be one in which the non-contracting States accept the creation of the Union,[15] perhaps safeguarding their interests by means of some form of association agreement with it. In this case, there should be no obstacle in the way of allowing an abrogation of the Community treaties by unanimous agreement of all its signatories, in accordance with international law,[16] and the Union would then succeed to the Communities.
If one or more of the non-contracting States are not willing to dissolve the Communities, then the situation is more complex. They could maintain that the Union States have failed in their duties towards them as undertaken in the Community treaties and that the Union Treaty is illegal and invalid. Haraszti[17] has argued that a treaty “irreconcilable with the substance of” an earlier treaty “would amount to a violation of international law” and would therefore be void under Article 53 of the Vienna Convention on the Law of Treaties. As Davidson, Freestone and Lodge have pointed out,[18] there is little juridical authority on this. Indeed, both Schwarze[19] and the former Advocate General of the European Court, Catalano, have argued that it is in fact the other way around. Since the preamble to the EEC Treaty states that the contracting parties are “determined to lay the foundation of an ever closer Union among the peoples of Europe” and that similar provisions exist in the preamble to the ECSC Treaty, and given that these treaties provide insufficient means to that agreed end, “action by the States that created it towards fulfilling the main obligation signed and adopted by them is perfectly legitimate. There could then be doubts about the proper fulfilment of the above obligations by the States that do not adopt the new Treaty of the Union since their behaviour tends to prevent attainment of the objective they undertook to follow”.[20]
Such an argument is, of course, attractive to supporters of the Treaty and similar arguments were used when the United States of America were constituted without adhering to the revision procedures of the Articles of Confederation and before it was clear that all the States would accede. The same was true of the drafting of the Swiss constitution after the Sonderbund war. In both cases new juridical entities were successfully created and recognised as replacing the previous entities, which were never formally dissolved. Nevertheless, as commented in the Yearbook of European Law[21] “such an argument appears to belong more to the realms of politics than law”. What is certain, however, is that there is much scope for legal argument, but this is unlikely to stand in the way of States determined to establish a Union. The most that the non-contracting States could insist on is the maintenance of the Community alongside the Union, and to try to restrict Union responsibilities to matters not dealt with by the Community or which the Community agrees to transfer to the Union. Such a situation would entail a number of political, practical and legal difficulties. There would be costly institutional duplication with the Community Parliament, Council, Commission and Court existing alongside those of the Union. There would be constant wrangles over the respective responsibilities of each framework, many matters being dealt with in both. The Union States would presumably act as a cohesive group within the Community. They could even act to minimise the importance of the Community by voting down the budget to the lowest possible level and refusing to develop any new policies. They might even simply opt out of the Community, whatever the legality of such a move. In any case, it is difficult to see what advantages the non-contracting States would have in the long run in insisting on the maintenance of the Community alongside the Union. The difficulties for all, but especially for them, inherent in such a situation, would be prohibitive. It is far more likely that they would prefer to negotiate a unanimously-agreed association agreement with the Union perhaps preserving the “acquis communautaire” such as free circulation or participation in research projects. Alternatively they could swallow their reservations and join the Union after all: this is indeed what Parliament hopes would happen in the end.[22] The strategy of allowing the Union to be created without all Community Member States is not intended to exclude anyone, but to prevent a minority from thwarting the desire of the majority to establish the European Union. The success of this strategy will depend not as is usual in Community affairs, on compromising with the most recalcitrant, but on the determination of the majority. The appropriate historical analogy is not Spaak in 1956 but Schuman in 1950.
Richard Corbett

[1]See for example the speech by President Mitterrand to the European Parliament, 24 May 1984.
[2]See for example the resolution of Italian Senate on 10 May 1984, 110th public sitting, Verbatim Report pp. 11-40.
[3]Official Journal (1984) C 77 p.33.
[4]For an account of this process, see Joseph Weiler in Journal of European Integration, n. 2-3 (1983) p.129.
[5]Article 96 ECSC and Article 204 EAEC treaties.
[6]Kapteyn and VerLoren van Themaat, Introduction to the Law of the European Communities (1973) pp. 37-38.
[7]Case 6/64, Costa v. ENEL (1964) E.C.R. 585.
[8]See also, for example, Schwarze ‘Das allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen’ in Europarecht (1-1983) p. 1; Schermers in International Institutional Law (2nd ed. 1982, ch. 8) and Lesguillons in L’application d’un traité-fondation: le traité instituant la CEE (1968).
[9]Lodge, Freestone and Davidson, in European Law Review, vol. 9, n. 6, December 1984, pp. 387-400.
[10]For example the amendment of the ECSC Treaty to take account of the Saar Treaty (1956).
[11]For example the 1970 and 1975 treaties amending certain budgetary and financial provisions of the treaties.
[12]Jacqué, ‘The European Union Treaty and the Community treaties’, Crocodile, n. 11 (1983), p. 7.
[13]See European Parliament Doc. 1-575/83/B.
[14]Nor does it prejudice Parliament’s position that these procedures should be followed in the case of amendments to the existing treaties rather than the adoption of a new treaty.
[15]As in 1960 all OEEC countries accepted its replacement by the OECD, although not all OEEC Members were to accede to the OECD.
[16]Article 54, Vienna Convention on the Law of Treaties.
[17]Haraszti, Some Fundamental Problems of the Law of Treaties (1973), quoted in Lodge Freestone and Davidson (op. cit. footnote 9), p. 347.
[18]Op. cit., (footnote 9), p. 397.
[19]Schwarze in Deutsches Verwaltungsblatt (1985).
[20]Catalano, ‘The European Union Treaty: Legal and Institutional Legitimacy’, in Crocodile, n. 11 (1983), p. 4.
[21]D. Nickel and R. Corbett, ‘The Draft Treaty establishing European Union’, in Yearbook of European Law, (1984) forthcoming.
[22]See Resolution on the deliberation of the European Council on European Union adopted on 17-4-85 (Croux Report) Doc. A 2-17/85.




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