Year XXXVI, 1994, Number 1 - Page 40




I. The debate about a European constitution: urgent and necessary
Debating strategies for a European constitution may seem to many an activity typical of “ivory-tower” academics and over-ambitious politicians and bureaucrats who have lost contact with the day-to-day realities of Europe. Are not far-reaching ideas, proposed at a time of serious economic depression which has brought about unemployment, protectionist reaction and xenophobic, racist and nationalistic outbursts, simply irrelevant utopias and illusory? What sense is there in thinking about measures which, regardless of the form they take, will exceed the apparent political will of European citizens as demonstrated in referendums and opinion polls? A serious legitimacy gap is held to be the basic obstacle to such ‘naive’ speculation. Debating European constitutional reform is seen as distracting attention from the fundamental, concrete problems that presently need to be tackled. Such an approach might thus even be counterproductive.
Any serious analysis of the political situation contrasts completely with those outlined above, and so suggests alternative measures. A wide-ranging and in-depth debate about European strategies for further progress is urgent and necessary. The key issue of how Europeans wish to create an order for organising ways to tackle future common problems (such as the fundamental issue of a “constitution”) is not obsolete, but rather has become more important, even though the political agenda may give priority to other issues. The political and economic crises make it clear that the basic options and strategies need to be examined in light of the underlying trends of Europe’s development, even if the results of this debate will not be the subject of decisions immediately. If the official timetable holds, the intergovernmental conference (IGC) of 1996 will provide the forum for a further set of decisions.
Such a debate is however not geared to easy answers. Several questions have to be discussed seriously before a recommendation can be made. The following issues should be considered:
a) A useful starting point is to examine how the Maastricht Treaty on European Union (TEU) has been perceived and interpreted as an element in the (historical) development of Europe. In particular, have the revolutionary upheavals beginning in 1989 affected interpretations of the TEU? Is a basic change in paradigm needed to understand the (European) world? Hence do we need to review our assumptions about the fundamental context within which the TEU will operate?
b) A deeper examination of the political situation, explaining the TEU’s legitimacy deficit, and indeed that of the whole integration process. Is this deficit a cyclical downswing of a generally favourable consensus (as observed before in West European history, for example the “Eurosclerosis” of the early 80s) or a structural shift away from accepting the integration process? How, then, can the elaboration of a “constitution” influence the legitimacy record of the European Union (EU)?
c) The form, contents, and utility of a constitution. What are the necessary and sufficient ingredients when we talk of aconstitution? What kind of image/concept of the nation-state is implied in these concepts of constitution?
d) The (vertical) division of competences among several governmental levels (how many should we consider?). How can we measure the effectiveness of public instruments used at the different levels? More concretely, how is the subsidiarity principle perceived; more precisely, in which direction should it operate? Furthermore, subsidiarity needs to be linked with solidarity and introduces the issue of an “optimal political area”, in the sense of an “optimal size for a democracy.” Subsidiarity, then, is more than the technical issue of organising the division of competences in the best administrative fashion; rather, it is an instrument of the underlying political battle.
e) The (horizontal) division of powers. How are the efficiency and legitimacy of the EU’s governmental system to be measured? In particular, how should the constitutional rights of preparing, taking and implementing binding decisions be allocated between the European Council, Council, European Parliament (EP), Court, Commission, and perhaps increasingly the Committee of the Regions?
f) The state-like structures and public resources to be granted to the EU. What legal mechanisms are envisaged; what financial resources are to be earmarked for the European level; are there to be other common initiatives, such as a European currency or army?
g) What will the geographical scope of a European constitution be? In particular, does the current membership represent the optimal political area, and if not, what criteria should be applied to membership?
h) The strategy to pursue in the future, following Maastricht. How should initiatives for the constitution be drawn up and carried out in light of the 1996 IGC and further enlargement? How can this project be made more appealing in public and political debate? Experience has shown that it is difficult to mobilise the general public for this kind of primarily theoretical debate using a general, abstract set of proposals.
This list of unresolved issues is long. Are there any blueprints, models, former drafts, or such like, available which could be used to propose a comprehensive and coherent answer to these questions? Both the 1953 draft treaty on the European Political Community and Spinelli’s 1984 draft for the EP, as well as the Herman report, come to mind. Are these models still relevant or inappropriate, because they were conceived in a different historical context?
To conclude on the significance of the debate: fundamental issues of the political system in its broadest sense are currently re-surfacing in the changed context of the “new” Europe of the 1990s. Issues such as the nation, state, democracy, community of destiny, and solidarity, are components of the (sometimes hidden) agenda of the next steps of the EU.
II. Five schools of thought
The post-Maastricht debate on the future of the EU has been characterised by several heterogeneous schools of thought, which above all indicate a clear demand for further discussion and initiatives. These schools of thought, analysed below, represent intellectual constructs which combine (and partly extrapolate) lines of argument which seem to reflect the basic trends in the current state of political and academic debate, the acquis académique. These schools partly overlap, and partly conflict, with each other.
1. The incremental implementation of Maastricht.
The “Maastricht-as-the-best-offer-available” school of thought starts with the basic assumption that with the TEU, new possibilities exist for dealing with common problems. Proponents of this school argue for the rapid and comprehensive implementation of all the provisions contained in the Maastricht Treaty. They assert that while Maastricht may be imperfect it nevertheless represents progress over the previous situation.
Though heavily criticised (as was the constitution drawn up by the Founding Fathers in the early days of the US, for example), the TEU is now regarded as fully legitimate – at least in formal terms. The political leaders and parliaments of the member states, according to this view, did not ratify Maastricht because of external or other pressures. The TEU thus reflects the implicit conviction of many political representatives in Europe that with the provisions, mechanisms, and resources of the Maastricht Treaty, the EU will be better equipped to face future challenges than before.
By fully implementing the Treaty, the EU, then, will regain external credibility and internal legitimacy. European citizens may be better equipped two years from now to appreciate what can be achieved with Maastricht’s provisions than is the case today. Proponents of this school of thought would argue that most of the criticism in 1992-93 was not caused by the Maastricht Treaty itself but rather by other Community developments outside the immediate objectives of the TEU, or even more fundamentally that such criticism was the product of a general “political malaise” which latched on to the Maastricht process, using it as a symbol for wide-ranging dissatisfaction with the political class and system, even though it was in fact not to blame.
Using the TEU as a sort of pre-constitution will, according to this view, lead to the increasing acceptance of this fait accompli. The performance of the new system will ultimately be of major importance for its reputation. The new status quo, as laid down by Maastricht, may become a generally-accepted constitution. Whatever changes in the political and international environment have been and will continue to be made following 1989, in the wake of Maastricht the European states will dispose of better pre-conditions for dealing with Europe’s problems, including those of enlargement. For this school, Maastricht is not the product of a unique and no longer pertaining situation, but provides “windows of opportunities” for dealing with new kinds of problems inside and outside the Europe of the European Community.
By implementing Maastricht, the “constructive ambiguities” of the overall text and many of its provisions, will come to the surface. Incremental implementation makes available a certain range of different tendencies, such as a more federal interpretation, for example. This could be achieved by giving the EP all the powers foreseen in the Treaty, or by strengthening the European Council (stressing the respective provisions in that direction). Other provisions to be exploited are the role of the Committee of the Regions, and the principle of subsidiarity. Already in the implementation of Maastricht’s main provisions, the EU can demonstrate a certain flexibility and prepare the ground for further developments which will be put forward by the schools of thought analysed below. Post-Maastricht strategies, then, are based on an approach of how to work with and within the TEU framework.
Enlargement to include the EFTA countries is not a major problem so long as the TEU is fully accepted and applied by the EFTAns – which is held to be the most probable attitude of these governments.
2. The “piecemeal engineering extrapolation” ofMaastricht.
The “Maastricht-as-a-significant-and-useful-step” school puts less emphasis on the numerous shortcomings, inconsistencies and contradictions of the TEU, and more on its place among underlying trends in West European political and social developments.
According to this interpretation the historic “changes” following 1989 have not really affected the fundamental reasons for further integration: the in-built propensity for interdependent European welfare states to create efficient institutions and procedures for implementing effective mechanisms to shape the European and global situations and thus (an important element) stabilise European democracies. Maastricht, then, is an important step in a piecemeal strategy for engineering a new stage in the evolution of European states. The TEU, then, is a step/stage in an open-ended, evolutionary process which lacks a clearly-defined or recognisable goal.
The “product” (the TEU) as laid down at Maastricht is a typical package-deal which reflects the several and differing priorities of the member states and political forces prevailing when the IGCs were held in 1991. The formulation of new and additional interests will create the dynamics for some kind of upgraded package-deal in the near future.
Maastricht’s perceived legitimacy gap is the product of a cyclical “hostile environment”, influenced especially by the economic downswing. With a return to economic growth and new success stories, support for the EU will return – as the history of the last forty years has proved. The legitimacy of the EU, then, is mainly regarded as a factor of the material well-being of its citizens.
The next IGC may review the division of competences along the lines of the subsidiarity principle, but such a check will not make much difference, since a narrow interpretation does not take account of the spill-over effects of interdependent policy sectors, and the in-built trend towards package-dealing among member countries. This sceptical assessment of the subsidiarity principle also reflects the lessons that can be drawn from existing federal states, such as the US and FRG. A “neo-medieval” situation of overlapping competences would be one consequence. Public policy mechanisms originating from different government levels may be merged or even fused. A new cooperative federalism could be achieved, which might also take into account the interests of the regions/Länder.
More significant than the rather academic debate about the application of subsidiarity to the new IGC, according to this view, is to reduce the variety (and inconsistencies) of procedures for preparing, taking, and implementing decisions (presently at least 23!), and the contradictions between the three ‘pillars’ of the Union architecture. In general terms, the performance of the EU should be improved by integration rationalisée. However, a rather complex set of procedures involving a larger number of actors at the different governmental levels (EU, national and, where extant, regional) remains unavoidable. The Committee of the Regions may gain incrementally some new, though limited, powers.
As to the nature of the constitution, the Maastricht Treaty is held to offer the main ingredients of a constitution already. Certain elements, such as a charter of human/political rights, may be added. As regards the admittance of more countries, the relative utility of the TEU and integration rationalisée will, according to proponents of this view, also be supported by the political class of the applying EFTAns, which may be keen to employ existing procedures and mechanisms. Hence enlargement will not cause a major upheaval for the EU.
3. The upward-directed federalisation reform of Maastricht.
The “Maastricht-as-an-important-but-imperfect-step-towards-a-federal-constitution” school has been discussed quite often in the aftermath of the European Council session at Maastricht. The 1996 IGC was seen at that time as the next (hopefully final) step, a qualitative leap towards a “real” federal constitution for a political system which might then be called the “United States of Europe.”
The changes of 1989, according to this viewpoint, have increased the international and pan-European demands for more efficient, effective, and democratic institutions for the EU. Time is short: serious progress must be made if the imminent process of general “Balkanisation” is to be avoided. Concurrently, former external constraints on European states to move ahead were removed with the end of superpower bilateralism. The TEU already signals a future marked by a higher degree of responsibility, and freedom of manoeuvre, for Europeans.
As for the contents of the constitution, these should follow the doctrine of classical federations as far as the division of competences is concerned. The presumption regarding the application of the subsidiarity principle is that using more centralised public mechanisms at the European level will be necessary.
As regards the horizontal political system vis-à-vis binding decisions, this school envisages a two-chamber system (with the EP as the first chamber) and a strong government. The Committee of the Regions will not be upgraded. Majority voting criteria need to be strengthened and extended to new areas.
A new federal constitution would only enumerate basic principles and rules. Most of the TEU’s articles would be eliminated from a short, and if possible, inspiring text.
The EP is seen as a major driving force behind drawing up a constitution in an open, Europe-wide grand debate. One major conclusion drawn by this school from the legitimacy gap in the wake of Maastricht concerns the procedures for drafting the constitution. This should no longer be done by diplomats behind closed doors, but by some kind of constituent body involving parliamentarians from different levels. Acceptance of decisions in a ratification process which needs a strategy for anticipating success, implies participation in decision-making.
By 1996 hesitant member states should (with luck) be convinced of the merits of a qualitative leap towards a United States of Europe. If this does not happen, a “European nucleus” is envisaged: the process towards a strictly federal model should not be blocked by undecided countries. Enlargement should only occur if applicant countries hold similar opinions, and only following a decisive step towards a federal Europe, since otherwise new members may turn out to be “Trojan horses.” Significant steps towards installing a certain degree of irreversibility towards a federal Europe need, therefore, to be taken before the next phase of enlargement.
This school stresses a federally-oriented interpretation of the TEU’ s new elements (even though the term “federal” had to be dropped at the last moment), and highlights for example the enlarged role of the EP.
The deep-seated legitimacy gap will only be overcome by a democratic constitution of, by, and for the European people – thereby finally creating a “classical” state at the European level which would extend solidarity to all the Union’s citizens.
4. The downward-federalisation reform of Maastricht.
The “Maastricht-as-a-premature-and-overly-ambitious-step” school became increasingly important during the ratification and referendum debates. The major achievements of the Maastricht Treaty have been criticised as overly centralising and bureaucratic, the reflection of excessive ambitions – especially as far as currency and defence policies are concerned, although other areas such as social and cultural competences have also been cited.
This school would not abolish the EC/EU, but rather seeks its comprehensive reform or overhaul. Adherents to this view argue that future strategies should aim to produce a “leaner” product. The subsidiarity principle should be strictly applied in order to redistribute excessive Community powers both to member states, and where existent, the regions. The new constitution should clearly delimit the EU’s sphere of action with a short and binding list of enumerated exclusive competences. In unclear cases the presumption would be that national or regional governments are responsible for employing public mechanisms. The EU would become the level of last resort.
Accordingly, the powers of the EU’s institutions should be rebalanced. Independent institutions at the European level, such as the Commission, EP, and Court are held to be in-built forces driving towards over-centralisation and should therefore have restricted powers to prepare, take and implement decisions. According to the various concepts of downward federalisation, namely re-nationalisation and regionalisation, either the Council and/or the Committee of the Regions should be upgraded. The Committee of the Regions might receive the status of a third chamber, if, and in so far as, the Council and the EP themselves become chambers.
This concept foresees a profoundly altered situation in the “New Europe” following 1989. The change of constellations also relates to the (West) European integration process which should lead to quite fundamental adaptations of the Maastricht Treaty and its implicit “European vocation”. The nation-state remains the basic unit and the “master of the game”, but it is prepared to accept certain forms of common action. The EC/Union should be modelled along the lines of a confederation, increasing the procedures for cooperation. The 1996 conference should therefore break with the fundamental trends of the last forty years in favour of the “right” direction. The aim is not Maastricht II, but rather a reformed and weakened Rome-Maastricht formula for Europe.
Enlargement to include EFTA, and the demands of Central and East European countries for admittance, are viewed positively, for fundamental as well as tactical reasons. These countries will dilute the political strength of the Community’s orthodox hardliners and replace them with “reasonable people.”
Despite all criticisms, dissolving the EC/EU is, however, regarded as an excessive response by this school. Reform in favour of a Europe des nations et régions will undoubtedly reduce the perceived legitimacy gap. The lack of democracy at the European level can be overcome by re-nationalisation.
5. The “dissolution/revision” of Maastricht.
The “Maastricht-as-a-last-already-outdated-and-therefore-counterproductive-step” school has gained increasing support. The West European integration process is seen as a by-product of post-World War II Europe. With history no longer immutably frozen, cycles of competition between nation-states will again dominate artificial efforts at “supranational” integration, which were only able to survive because of external threats. The change of paradigms in 1989 is interpreted as a return to traditional and perennial patterns of inter-state behaviour. The European nation-state, following years of (externally-enforced) hibernation, is alive and well.
The legitimacy gap reflects a basic historical pattern which can not be remedied by limited institutional or constitutional engineering at the European level: the EU is undergoing a fundamental identity crisis which it can not resolve by incremental reforms, whatever direction these may take.
The EC/EU, and especially the Maastricht Treaty, is seen as a threat to the key attributes of constitutional states and core functions of the nation-state, such as defence and monetary sovereignty. In its main provisions, the TEU represents a dinosaur which may survive for a limited period, but will certainly be replaced by more competitive forms of cooperation and coalition-building among (West) European states.
The Maastricht Treaty, then, should be abolished or fundamentally revised. Alternative forms of organising Europe need to be created, such as confederal structures, core groups, Europe à la carte, and a variable geometry Europe. Moreover, member states should as a general principle be given extensive possibilities to opt out of existing policies. All these efforts will ruin, or at least reduce, the legal and institutional characteristics of the present EC/EU. Consequently there should be a shift away from binding decisions to regimes of cooperation; from a strong role for independent institutions towards looser forms of intergovernmental cooperation; from the straight-jacket doctrine that all members need to have the same rights and obligations towards the voluntary cooperation of interested countries. The principle of subsidiarity is interpreted along geographical and sectorial lines: those countries willing and able should cooperate in fields of common interest; others may join later.
This school of thought, then, is also disposed to undo presently existing provisions, partly so as to save national constitutions from being eroded by supranational and hence ‘unhistorical’ enterprises.
By this process of dismantling the EU, the artificial division between Eastern and Western Europe will be overcome as well. Enlargement of the EU as such is no longer a major issue.
The best strategy to pursue may be to opt out of the present treaty obligations and supersede existing structures with new and more flexible regimes of cooperation. The 1996 IGC should (at best) be turned into a “market” for new opportunities in which the supply and demand for solutions to problems in all European countries are matched.
III. Where to go from here?
1. Overview: a point for further debate.
As a way of provoking further debate it is worth comparing the usefulness of each strategy in tackling the problems ahead for European citizens (admittedly a rather subjective assessment), and the respective feasibility of each strategy in different contexts and scenarios. For this purpose two scenarios are presented. Scenario I assumes the economic and political spheres improve. Economic growth increases interdependence, improves the general public’s mood, and creates a climate of open relations among European countries. In the political sphere, governments in European countries regain stability, legitimacy and general backing for innovative steps forward. Scenario II represents a trend towards severe economic collapse in East and West Europe, rising nationalism, and increased distrust among states. Weak governments try to shift the burdens of economic and social adaptation onto the outside world, thus resulting in a vicious circle of disintegration.
Schools of thought on post-Maastricht strategies
Scenario I
Scenario II
upward federalisation
downward federalisation
As the long list of options and the open and controversial debate about useful and feasible strategies indicate, many of these arguments are in an initial phase of winning political support. Too many elements of the political and economic contexts remain uncertain, so that no dominant concept and/or strategy can be identified. For some reason, despite (or precisely because of) the number of proposals, there lacks a driving force which can set the process off towards a new goal. It may be necessary to wait for certain political events to pass, such as the German and Italian parliamentary elections, the presidential election in France, and the referendums in candidate countries. In the wake of these political events certain strategies may seem more promising than others. By the middle of 1995 we will also know more about the fundamental characteristics of the scenarios, such as the EU’s economic performance in general, and that of individual countries in particular.
2. The political and academic debate
Highlighting these political variables is not, of course, to suggest a wait-and-see attitude. Crucial questions, such as those discussed by the schools of thought, need to be urgently debated across Europe in order to prepare the way for more concrete strategies when (if) a political “window of opportunity” is created.
More importantly, the risks of easy answers seem to increase with alarming speed. Maastricht is quite frequently not debated any more, but simply used as a negative symbol. Blaming Brussels, the Commission and the EP for all shortcomings may fundamentally undermine any chance of serious and lasting reforms. The temptation to propose simplistic solutions, for example stressing simply more cooperation or building an à la carte Europe of reborn nation-states may seem seductive, but its effects will be highly negative. The problems of Europe are not those between Brussels on one side, and national or regional capitals on the other, but rather among political groups within and between member states. More cooperation leads to more bureaucratic inefficiencies and less effectiveness, and thus to an even greater erosion of the nation-state and a widening of its legitimacy gap. This fundamental lesson needs to be demonstrated at every opportunity. Rationality and democratic standards demand clearer, more efficient, and more effective institutions and procedures for the EU.
Such a process can not be restricted to twelve members but must be open to all democratic states which can work within and profit from this new political system. In this sense, then, admittance is important, but it is not the main issue which needs settling. Pursuing a strategy of downgrading the EU will not satisfy a list of concerns, but rather open up a Pandora’s box of additional problems, comprising some of the traditional issues of European history – especially the power of Germany and Europe’s role in the international system.
A wait-and-see strategy is also quite risky. The issues at stake are too important to permit a tactical hibernation: fundamental changes in public perceptions may occur, which will prove difficult to alter even when the economic situation improves. Retreating one step back in the expectation of a larger leap forwards is not advisable.
A third risk is that of exaggerating a “paradise” solution. In bad moments, proposals for a radical, once-and-for-all solution, a qualitative leap towards a fully-fledged federation, may seem more rational and tempting than in times which are fairly favourable. Yet without a strategy which mobilises sufficient support, the avant-garde may lose touch with the main corps and end up heading in the wrong direction.
More so than in the past, an original vision of the European Union, distinct from all historical models so often quoted, needs to be elaborated, taking into account the strong and weak points of Maastricht and the challenges ahead.

*This heading includes interventions which the editorial board believes readers will find interesting, but which do not necessarily reflect the board’s views.


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