(p. 1) 1. History of the project (1972–2020)
‘The EU is a fundamentally different creature from the one on which we voted in 1975.’
Andrew Tyrie MP, European Union (Referendum) Bill, 5 July 2013, col 1171
The UK and the EU have, since the EU’s inception, had a relationship that can at best be described as uncomfortable. An examination of the history of the EU, and UK participation in the EU project at its key developmental moments, will make it clear that the referendum outcome on 23 June 2016 was perhaps a shock, but not a wholly unpredictable one. The EU’s overall goals have never quite matched the UK’s reasons for participating in the project, and without significant mutual compromises, the UK might have left the EU in just about every decade since it joined. This chapter will set out what goals the EU project has had over time, and how these have fitted with UK priorities and interests. It will look at each key revision of the EU’s foundational Treaties in turn, and conclude with some thoughts on what will happen next in the now four-year-long Brexit saga.
The quote by Andrew Tyrie MP at the start of this chapter is one to be kept in mind while reading this chapter. Has the EU changed fundamentally over time—as many of those who have voted to leave the EU in the June 2016 referendum have argued—or are such changes overstated, and has it always been clear where the EU was going?
Before we get into this discussion, there are a few key concepts for you to understand. The first is that the EU’s existence is rooted in treaties. Treaties are effectively contracts signed by different countries, governing their future relationships—they aim to provide clarity and legal certainty to countries when they engage in complicated international relations. The principle underpinning all treaties is that of sovereignty. In the UK we associate this term primarily with ‘parliamentary sovereignty’, or the supreme power of (p. 2) Parliament over other UK governmental bodies. However, in more general terms, sovereignty simply means the ability to take fully free and independent decisions. Countries are sovereign, and what this means is that no country can be forced by another country to accept any laws. In the context of international relations, this means that signing up to any treaty is a voluntary act by a country. However, once a treaty is in force, countries are bound by the rules stated in that treaty. This limits their sovereignty while they are signed up to a treaty.
Ultimately, however, countries can also withdraw from treaties at any point in time—and so they retain the final sovereignty to determine what laws apply to them in their international actions. In the EU context, the UK willingly limited its sovereignty when it joined the EU in 1972 (in a process called ‘accession’). It has now exercised its sovereignty again by withdrawing from the EU.
1.2 The early 1950s: origins of the project
1.2.1 The idea of a united Europe
The easiest way to conceptualize the European Union is perhaps as a grand experiment of cooperation. This may seem counter-intuitive, but in legal terms, the EU is still very much a baby. Consider the vast spans of time in which there was no cooperation on the European continent—instead, there were constant attempts by different sovereign territories to invade other sovereign territories. This marks the vast majority of European history: periods of calm in these ongoing wars signified that the conquering territory was particularly powerful, rather than that there was any legitimate peace in Europe. In a way, when we discuss Europe’s history, what we are looking at is an EU by force: the Holy Roman Empire wanted a single, united Europe much in the way Napoleon and Hitler also attempted to create it.
The root of these ‘earlier’ versions of united Europes, however, lay in the dominance of a single nation. What marks the EU as being a break from that past is that it does not demand a single dominant member, but rather counts on shared membership in order to maintain both peace and stability in the region of Europe.
This idea did not emerge for the first time after World War II, though it did gain potency then. Indeed, the more costly the conflicts raging across Europe as a continent became, and the more lives they cost and nations they involved, the more philosophers in Europe slowly started thinking of other means of coexisting. Ideas of international cooperation have been around since the seventeenth century; William Penn, an English philosopher, published An Essay Towards the Present and Future Peace of Europe in 1693 which suggested that, to prevent wars, there should be a cross-European parliament of some sorts, populated by representatives from all European nations.1
The idea did not catch the attention of the heads of European states back then, nor did the more radical suggestion put forward by French philosopher Saint-Simon, who in 1814 argued strongly for the need of a single centralized political institute that would govern over nation states when it came to issues of common interest.2 He did not propose the abolition of national parliaments, but rather wished for some sort of European (p. 3) parliament to deal with these ‘common interests’. His ideal European parliament would have two houses, representing civil society in a House of Commons and the noble classes in a House of Lords.
The Penns and Saint-Simons were not heeded by the ruling classes in Europe, however. Ideas such as theirs did not catch the attention of governments until European wars started becoming global. World War I was a turning point of sorts, in that it led—for the very first time—to the concession on the part of sovereign nations that they needed to create spaces in which they could deal with their disagreements as an alternative to going to war. This led to the establishment of the precursor of the United Nations: the League of Nations. However, the League of Nations had such limited powers that it was unlikely to actually stop wars. By the late 1920s, the French in particular noticed the political sentiment sweeping across Germany’s post-war Weimar Republic, and the French Foreign Minister, Jacques Briand, wrote a memorandum in 1929 that proposed a European Federal Union: a bolstering of the League of Nations, actually forcing European nations to cooperate rather than merely giving them space in which to do so.3
None of the 26 European countries to which he sent his proposal was amenable to it at the time; subjugating sovereign nation states to some sort of all-powerful European centralized government was seen as too radical and unnecessary. World War II, however, would make this idea seem far less radical, and far more necessary.
1.2.2 The aftermath of World War II
The 1950s were the start of a new era of international relations in a lot of ways. Many European countries, formerly in charge of world-spanning empires, suddenly found themselves economically devastated. War was expensive, both in pure monetary terms and in terms of its overall impact on the available workforce, and these sovereign nations had to swallow significant pride for the sake of ongoing survival. More than that, however, World War II also made European countries much more willing to work together purely for the sake of preventing further wars. This combination of moral and economic drivers led to a slew of cooperation efforts, primarily in the form of international organizations being agreed to by many different countries. Such organizations spanned the entire world in cases such as the United Nations and the General Agreement on Tariffs and Trade (GATT), setting out common terms for trade between sovereign states;4 or they focused on the European continent in cases such as the Council of Europe and the North Atlantic Treaty Organization (NATO). The treaties produced by these organizations required cooperation in distinct policy areas: in some, such as the Council of Europe’s European Human Rights Convention, the concession on shared standards in different countries was a relatively smooth process, as there was a general will to achieve a shared standard of human rights. The GATT, as precursor to the World Trade Organization, on the other hand, required the sacrifice of a different and less morally necessary set of national powers, in that it limited the economic policy options of all member countries for the duration of membership. Not all countries, whether in Europe or elsewhere, were immediately ‘on board’ with the sacrifice of sovereignty in these economic fields.
(p. 4) The United States led the charge on economic cooperation at the expense of sovereignty, and it did so in two ways. First, it was the major proponent of the GATT internationally, encouraging free trade on a global scale for the benefit of all countries. Secondly, in 1947 it launched the European Recovery Plan (known as the Marshall Plan), giving both loans and grants to the war-ravaged western European economies in exchange for more open trade relationships with the United States. The Marshall Plan was tremendously successful in stimulating European economic recovery, but it was also tremendously expensive, and not intended to last beyond four years. So what was to become of Europe after the United States’ financial support?
Could Europe be financially independent without a functioning German economy? Probably not; and this seems to have been understood by all parties negotiating a peace at the end of World War II. West Germany, after all, was going to be a Marshall Plan recipient, and was intended to regain control over its own industrial territories after a four-year period of international oversight. However, while the idea of Germany regaining control over the Ruhr made economic sense, on a political level it gave the French nightmares. With control over the Ruhr, West Germany would be in charge of a significant proportion of European steel production. And what would Germany do with steel? It could clearly be used in developing military-grade weaponry … which was an activity the French absolutely did not want to see the Germans engaging in again.
1.2.3 The Schuman Declaration
Much as the first idea of a ‘European Federation’ had come from a French politician, the birth of the EU project can be traced back to a French politician. The impending potential threat of West Germany’s ability to rearm had the French thinking desperately about ways to counter this threat. Finally, an inventive solution was drafted by a French civil servant by the name of Jean Monnet, and delivered by the French Minister of Finance: Robert Schuman.5
The Schuman Declaration proposed something far simpler than European federalism. It merely suggested the pooling of French and German coal and steel production under a common, independent High Authority, which would make decisions that would bind France and Germany.
Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries …
The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible …
The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe.
(p. 5) Germany was relieved at the proposal—as it permitted it to become a functioning economic actor again—and various other countries in Europe wished to participate in this coal-and-steel-sharing project as well. Consequently, in 1951, we see the birth of the European Coal and Steel Community (ECSC), joined by France, Germany, Italy, and the Benelux countries. The ECSC Treaty created the ‘High Authority’ that Robert Schuman had alluded to. It was composed of international civil servants, and wholly independent from the six member countries of the Community. It had unheard-of powers: it could set prices for the sale of coal and steel, as well as rules on how it was to be produced. However, demonstrating again that this was indeed a concession of sovereignty on the part of independent nations, the High Authority itself was supervised by an Assembly and a Council, which were composed of national parliament appointees and Member State government representatives, respectively. The oversight bodies of the decision-making body, in other words, were still controlled by the six countries that made up the ECSC. Finally, the ECSC Treaty also established its own dispute settlement body: the Court of Justice, made up of nine judges, and charged with interpreting the Treaty if there was disagreement between the Member States.
The UK was not one of the six original members. It was invited to participate by the French government, but it declined: the High Authority was deemed too powerful, and the UK did not care to surrender this kind of control over its coal and steel industries to an institution it could not fully control.6 Indeed, even in these limited sectors, the UK had no interest in sacrificing its sovereignty in the 1950s, and so it did not participate in the start of the European project.
1.3 The late 1950s: The Treaty of Rome
Following the ECSC Treaty, further economic cooperation proved to be a relatively easy sell to the ECSC Member States. The Member States were all experiencing tremendous economic growth in the 1950s, and consequently started trading with each other in a variety of other sectors. As Ian Ward has put it, ‘the idea of sacrificing a bit of sovereignty for a lot of wealth seemed to be more and more attractive.’7
The next significant step in European cooperation was less like a ‘big bang’ that changed how European countries interrelated. Instead, it was the logical consequence of a lot of incremental cooperation between the six ECSC Member States. In the middle of the 1950s, it became apparent that it might be more efficient to simply sign a single large (p. 6) agreement covering all economic activity, than to keep signing existing trade agreements covering only particular economic sectors.
This kind of incremental cooperation between countries in Europe on economic matters is at the root of one of the theories of European integration (or, what caused the change from fully separate European countries in 1947 to the extensive cooperation and power-sharing in the EU that we have today). The theory of neo-functionalism suggests that where countries cooperate in one policy area, such as trade in coal and steel, they will start cooperating in similar policy areas. The institutions that oversee this cooperation, such as the High Authority, will eventually realize that in order to successfully cooperate in trade, cooperation in areas that are much more sensitive than trade (such as social policy, dealing with pensions and social security) is also necessary. This process is called spill-over, and the functionalist theory of European integration suggests that it accounts for what has happened in Europe: bodies like the High Authority will keep moving into more and more policy areas in order to carry out the functions they were given.
A detailed version of the idea of greater economic cooperation was found in a 1956 report prepared by the Belgian Prime Minister, Paul-Henri Spaak.8 The Spaak Report suggested significant steps forward in areas that were purely economic, and advocated the creation of a common market. This common market would be run by something akin to the High Authority: an independent body that took decisions independent of the Member States. However, there was no appetite for this type of surrender of sovereignty in non-economic manners, even though it was agreed that countries could not open up markets for trade without also considering how to deal with related policy areas, such as budgetary, monetary, and social policies. In these far more sensitive policy areas, the Spaak Report suggested that only Member States would have decision-making powers, but for the sake of the common trade market, they should aim to coordinate their policies.
1.3.1 The EEC Treaty
The Spaak Report was positively received by the ECSC Member States, and it culminated in the signing of two new treaties in 1957 in Rome. The first of these was the Euratom Treaty, establishing the European Atomic Energy Community—a stand-alone Treaty signed by all ECSC Member States with the aim of establishing a nuclear energy market in Europe.9 The second, and the more interesting one, was the European Economic Community Treaty (EEC). The EEC Treaty, also called the Treaty of Rome, was simultaneously very innovative and wide-ranging, and very conservative. Its innovation lay in its potential scope: it was indefinite, it covered all trade in goods, and aimed to eliminate all barriers that would make trade in goods more difficult. The drafters realized that in order for goods to travel freely between countries, it was also necessary for businesses, employees, and money to move between these countries—and so it also called for measures that would achieve ‘free movement’ of services, workers, and capital. These ‘four freedoms’, of which goods, workers, and services will be covered in detail in Chapters 11, 12 and 14, lay at the heart of the project, which was very much focused on economic cooperation and integration, and the establishment of the ‘common market’ of the European Economic Community.
(p. 7) What about other policy matters? As noted, the Spaak Report suggested that the Member States of this new agreement would retain full control over ‘more sensitive’ policy areas. Indeed, the fact that the EEC Treaty was going to be about economics was in many ways obvious after failed efforts earlier in the 1950s to start ECSC-level cooperation in policy areas such as defence.10 In the 1950s, the only ‘sensitive’ policy areas that were dealt with by the EEC Treaty Members were those that had to be covered, such as agricultural policy in the Member States. Agriculture in all six of the EEC signatory States was heavily subsidized by national governments, and these subsidies put up significant barriers to the free movement of goods that Article 2 of the EEC Treaty wished to achieve. However, French farmers were opposed to a ‘common market’ in agriculture, and so the solution that was crafted was a common policy rather than a common market. This is often presented as a compromise between France and Germany, with France declining to agree to free trade in industrial goods—which was of key importance to the German economy—unless the other EEC Treaty signatories agreed to help maintain agricultural subsidies and simply coordinated agricultural policy.11
The only way to ensure that agricultural subsidies did not disrupt the functioning of the EEC Treaty was to transfer the operation of these subsidies to the European Economic Community, so that they could be coordinated and harmonized under a Common Agricultural Policy (CAP). The CAP is hardly an example of willing cooperation in sensitive policy areas, showing that indeed, the EEC Treaty limited itself to economic ambitions.
Even looking beyond its pure economic focus, the EEC Treaty can be described as conservative. It was a very ‘negative’ treaty: it prohibited trade barriers, such as the charging of customs duties at borders between different Member States, but did not contain any provisions that would actually make trade otherwise more attractive. Simply saying that a Dutch maker of bicycles would no longer have to pay in order to get their bicycles across the border between the Netherlands and Germany might not have been enough to give that exporter the motivation to start selling in Germany: what if there were different safety standards for bicycles in Germany, for instance? And how could he persuade a German customer base that his bicycle was at least as good as the German bicycles they were used to already?
The combination of this minimalist approach to economic policy, and a lack of willingness to cooperate on more sensitive areas of policy, resulted in a Treaty that was difficult to associate with some of the more wide-ranging language used in the Schuman Declaration. The EEC did not look like a political project, however unique it was in setting up a variety of governing bodies that stood above and separate from its Member States.
What the EEC Treaty did create, by abolishing barriers to trade (such as charges at the border) between the different EEC Treaty Members, is known as a free trade area. Within a free trade area, there are no customs duties (or taxes) charged on products when they cross from one ‘member’ of the free trade area into the territory of another ‘member’.
However, the EEC Treaty went further, and also set up a single policy covering trade between the EEC Treaty Members and any other country in the world. This setup, which regulates external borders and trade policy, is known as a customs union: it means that (p. 8) any product entering any of the EEC Member States from anywhere else in the world will experience the exact same treatment at every Member State’s border. These concepts are considered in much more detail in Chapter 10.
1.3.2 The EEC Treaty: Institutions
The institutional setup of the EEC Treaty was truly revolutionary. You can see the structure of the EEC institutions in Figure 1.1. In order to successfully cooperate in these limited economic terms, the EEC Member States surrendered a significant amount of sovereignty. The ECSC’s ‘High Authority’ was mirrored in the establishment of the European Commission, which would function as the executive of the EEC, as well as the proposer of legislation. Its members were drafted from the Member States, but they were to function independently of their home States, representing the EEC’s interests when in office. The ECSC’s Assembly was shared with the EEC, but a new Council was created for the EEC. The EEC Council had significantly more power than the ECSC Council did: it had the sole power of legislative approval in the EEC, and also had executive powers in international relations and the EEC budget. The EEC also shared the ECSC’s Court of Justice. Nothing quite like the EEC’s setup, granting power to institutions that were situated above the nation state (or ‘supranational institutions’), existed elsewhere in the world in the 1950s—and though the powers of the individual institutions making up the EU have changed over time, their basic form has not changed since the signing of the EEC Treaty.
1.3.3 The UK on the Treaty of Rome
Given the UK’s reluctance to participate in the ECSC project, it is unsurprising that it had no interest in joining the EEC when it was first created. The UK’s primary objection was one of sovereignty; it saw the supranational institutions in the EEC as having far too much power. However, other objections were more cultural: it preferred a ‘special relationship’ with the USA and Commonwealth countries, and saw itself as quite separate from ‘Europe’ in a lot of ways. Comments from political leaders in the UK in the aftermath of World War II are illustrative: Ernest Bevin, the post-war government’s Foreign Secretary, famously commented on European integration initiatives with, ‘I don’t like it. I don’t like it. When you open a Pandora’s Box, you’ll find it full of Trojan Horses.’12
Subsequent UK governments were even less enthusiastic than the post-war government. Churchill, an advocate for European integration, was surrounded by the very first (p. 9) Eurosceptics when he succeeded Clement Attlee as Prime Minister; his Foreign Secretary, Anthony Eden, indicated that the UK knew that joining the EEC was ‘something which we know in our bones we cannot do’.13 Meanwhile, the Treasury was circulating memos that suggested that the EEC was part of a French plot to dominate the rest of Europe!14
Harold Macmillan, the next UK Foreign Secretary, was a little more enthusiastic about what was happening on the continent, but was held back by others in the UK government who were wary of Europe. He reluctantly declined invitations to the conference that eventually produced the Spaak Report, and indeed went looking for an alternative to the EEC when it was created.15 The EEC required too much of a sacrifice of sovereignty; the UK eventually, in 1960, set up an alternative that limited itself to aiming to remove many internal barriers to trade, but did not aim to regulate external trade policy like the EEC did. The European Free Trade Area, or EFTA, was immediately joined by six other countries who thought the EEC went ‘too far’—and to this date, it continues to operate as a free trade area distinct from the European Union.
1.4 The 1970s: Accession of the UK
The 1960s and the 1970s were, in many ways, quiet times for European integration. There were a number of reasons why the goal of the ‘common market’ appeared to be stagnating, but the two most significant ones were economic on the one hand, and institutional on the other.
The 1950s were a decade marked by growth, and when economies are doing well under international collaboration, political leaders are happy to commit to more of it. In periods in which employment statistics, wages, and investments are all performing well, there is very little pressure from voters to stop looking towards the international community. But, and we saw this time and again in the twentieth century, when the economy starts to slow down, and incomes start to suffer, it becomes politically more difficult and undesirable to push for free trade. Trade, otherwise perceived as creating cheaper products and enabling consumer choice, suddenly starts being seen as helping other countries keep up their employment, at the expense of domestic employment.16
The 1960s were marked by a global recession. In a recession, the urge for political leaders to adopt ‘protectionist’ policies—ones that aim to safeguard domestic industries, rather than necessarily to get the best/cheapest products—becomes significantly greater. In the 1960s, the benefits of EEC membership were becoming less obvious, and the pressure to look inward was increasing. Consequently, there was not much of an economic driver to pursue greater trade.
The EEC’s setup was also causing its own problems. For one thing, the CAP was ballooning in terms of cost, to the point where it took up 70 per cent of the EEC’s budget (p. 10) by the 1970s.17 The compromise struck to get France on board was starting to become increasingly unpalatable to some other Member States, among which the UK once it joined, but reform would prove to be almost impossible because of the institutional structure of the EEC. All legislative proposals in the EEC were drafted by the Commission, but had to be approved unanimously by the Member State representatives in the Council during the EEC’s first years. The consequence of this was that not much legislation was adopted as a practical matter: every Member State had an effective veto.
At this time, the theories of EU integration were revisited by observers. Neo-functionalism explained how the Member States went from the ECSC to the EEC, but seemed to ignore a very significant factor: all cooperation at the EEC level required consent from the Member States. As the Member States started to feel as if the EEC was benefiting them less, they also proved to be less interested in expanding what the EEC could do—resulting in the legislative stalemate just described. The EEC’s supranational institutions could do very little without agreement from the EEC’s Member States. The 1960s and 1970s thus saw a competing theory to neo-functionalism arise: intergovernmentalism argues that European integration can only be explained by observing that as long as it benefited those in charge of national governments, they were keen to integrate further; when they were not keen to integrate, the EEC project went nowhere.
The 1960s saw clear hesitancy about further integration on the part of the Member States. In 1965, the Council’s decision-making was meant to shift from unanimity to a form of qualified majority voting (QMV), which allocated a proportion of votes to each Member State representative on the basis of the population of the Member State. This proved too contentious for France, and, in 1965, the French representative walked out of a Council debate on the EEC’s income streams when it was clear that he would be outvoted. From June 1965 to January 1966, France refused to attend any Council meetings, and in January 1966 it finally came back to the table only after the adoption of the so-called Luxembourg Accords. The Luxembourg Accords granted every Member State a veto over all EEC legislative proposals, regardless of how they were to be adopted, if they pertained to ‘very important interests’ of that Member State.18
Perhaps unsurprisingly, ‘very important interests’ turned out to be ‘basically all interests’. The plan to make EEC legislation easier to adopt from 1965 onwards was consequently thwarted, and there was very little progress in the establishment of the ‘common market’ the EEC was meant to create, as the secondary legislation that would support the ‘common market’ was simply not getting passed.
One of the limited ways in which the EEC did progress was in terms of membership. Despite its staunch disinterest in joining the EEC in 1957, and its creation of the alternative EFTA, the global recession of the 1960s resulted in a rather pragmatic change of priorities for the UK government. Indeed, Harold Macmillan had compromised by establishing EFTA, but found himself applying to join the EEC as Prime Minister in 1963. The economic gains the organizations presented were simply too interesting, and the economic pressures that the UK was facing were enough to make earlier concerns about the EEC project less relevant.19
(p. 11) Both this application to join and a subsequent one in 1967 were vetoed by President Charles de Gaulle of France. In hindsight, his reasons for vetoing the UK’s joining may seem prescient:
England in effect is insular, she is maritime, she is linked through her exchanges, her markets, her supply lines to the most diverse and often the most distant countries; she pursues essentially industrial and commercial activities, and only slight agricultural ones. She has in all her doings very marked and very original habits and traditions.
A third application to join the EEC, made in 1970, was finally successful—and largely because de Gaulle was no longer President of France, though an EU-enthusiastic prime minister in the shape of Edward Heath also helped the UK’s accession. However, accession in 1973 came with more strings attached than joining the project originally would have done. The original six Member States had significant budgetary demands that worked out particularly poorly for a country that had a very small agricultural sector, and thus would not benefit tremendously from the CAP.20 An agreement was ultimately reached only to encounter substantial resistance in the UK House of Commons: the Treaty of Accession was passed by a majority of only 112 votes.21 The Labour Party in particular remained very wary of the EEC project, and ran a political campaign in 1974 that promised a referendum on staying in the EEC a mere three years after formally joining.22
That referendum, at a time when economic progress was desperately needed, resulted in a 2:1 decision for remain. However, across the EEC Member States, popular support for the EEC appeared to be at an all-time low at the end of the 1970s. The CAP was expensive and unpopular, and apart from the CAP, the EEC appeared to not be doing much: the Council managed to put a halt to virtually all Commission legislative efforts. Attempts to make the EEC project more accessible to voters, such as making elections to the European Parliament direct in 1976, had no significant impact. The public was either disinterested in the EEC project, or outright did not like what it was doing, which also seemed to be ‘nothing’ a lot of the time. Where could the EEC go next?
1.5 The 1980s: The Single European Act
By the early 1980s, the EEC was steadily growing larger—with the UK, Ireland, and Denmark joining in 1973, Greece in 1981, and Spain and Portugal in 1986—but it still did not seem to be going anywhere. Indeed, in 1982, the President of the European (p. 12) Parliament—as it had been renamed in 1962—declared that ‘[the] anniversary of the European Community does not seem to be an occasion for much celebration … [the] infant which held so much promise twenty five years ago has changed into a feeble cardiac patient.’23
The heads of EEC Member States were slowly coming to the conclusion that all efforts to improve the EEC in the eyes of the public were failing because the foundations underpinning the EEC were deeply flawed. In other words, it was the Treaty of Rome that was the problem, and it had to be revisited if the EEC project was ever going to achieve a true ‘common market’.
Unity among the EEC Member States on a renewed willingness to work together and seek compromise was, ironically, in part brought about by the UK. Margaret Thatcher had come to power in the UK in 1979, and found that the membership ‘deal’ that the UK had been presented with in 1972 was simply not in the country’s best interests. In particular, the UK’s budgetary contributions were seen as so unfair by her government that she used the Luxembourg Accord vetoes almost constantly in an attempt to force through a revision of the budget. By 1984, the other EEC Heads of State had grown so tired of this that they actually abolished the veto!
A change in the guard in the UK was not the only driver for change, however; it was the new Heads of State in France and Germany who proved key in revitalizing the European project. François Mitterrand, the new French President, and Helmut Kohl, the new German Chancellor, not only found themselves broadly agreeing on the direction the EEC project should travel in, but also found themselves popular with the other Heads of State. Together with a new head of the European Commission, a Frenchman named Jacques Delors, they proved influential enough to attempt to heal the ‘cardiac patient’ they had inherited. Their focus was twofold: first, on making the EEC achieve new economic progress—and so stopping the legislative stalemates that had dominated the 60s, 70s, and early 80s—and second, on making the public care about the EEC. Discussions between Kohl, Mitterrand, and Delors eventually led to a 1983 Solemn Declaration by the EEC Heads of State, which promised ‘further work’ on the common market.24 Over the course of the next year, this ‘further work’ culminated in the first genuine reform of the EEC Treaty.
1.5.1 The Single European Act 1986
The next section on EU integration requires a preliminary understanding of some of the EU institutions that we discuss in more detail in Chapter 2. Specifically, there are two bodies that have the word ‘Council’ in their name, but they have very distinct functions:
• The Council of Ministers, commonly simply called the Council, is the EEC/EU body where national government ministers meet to approve legislation in particular policy areas.
• The European Council is the EEC/EU body where heads of national governments meet to discuss ‘big picture’ matters like Treaty amendments, accessions, and the overall plans for the European project.
(p. 13) (The EU maintains that these institution names were not chosen purely to confuse students …)
It is the role of the Council of Ministers (the Council) that proved key to further EU integration as of the reform of the Treaties in the 1980s. The Single European Act (SEA), drafted in 1984 and enacted in 1986, promised to take the EEC project from a period of stasis into a period of hyper-productivity. Its most significant promise in this regard was the so-called 1992 project, where the EEC promised to complete the ‘common market’ by the end of 1992. The ‘common market’ was to enable the full free movement of goods, services, capital, and workers—not merely stop protectionism, but actively enable the free trade the EEC was meant to accomplish.
How was this going to get done? By eliminating the possibility for Member States to block all legislative proposals that were coming from the Commission. Consequently, a new Article 100a EEC was adopted, which ensured that all decisions in the Council in relation to the internal market were to be taken by QMV. The Member States’ votes would be calculated as a percentage of EEC population, giving Germany the largest share of the vote and Luxembourg the smallest. The heads of the Member States, meeting as the European Council, proved willing to give up a little more control for the promise of far more substantial benefits.
In anticipation of the completion of the ‘common market’, and in light of the increasing membership of the EEC, the SEA also made arrangements to introduce a further court, primarily to hear cases brought against the other EEC institutions. This second court, then known as the Court of First Instance, started operating in 1989; its establishment reduced the Court of Justice’s increasing case load and resulted in quicker decisions, making the EEC function more smoothly.
In other ways, the SEA went further than simply promising to finish the project that had started the EEC. For the first time, a European Treaty was promising to look at policy areas that went beyond the purely trade-related. There were provisions in the SEA that dealt with coordination of monetary policy, which would enable the eventual introduction of a single European currency. The reasons for moving towards a single currency were pragmatic rather than necessarily ideological, however: the project was approved by the EEC Heads of State because a single currency would make cross-border trade both easier and cheaper, which would stimulate the ‘common market’ in ways that other legislative measures could not.
Beyond work on a common currency, there were also provisions in the SEA that encouraged deeper cooperation on other policy areas, such as social rights, research and technology, and environmental regulation. However, in these policy areas, unanimity in Council voting remained the norm—and the Member States consequently retained all control over progress.
(p. 14) 1.5.2 The UK and the SEA
Margaret Thatcher’s relationship with the EEC project was an interesting one. She had campaigned to remain in the EEC in the 1975 UK referendum, and in the late 1970s had actually first suggested a European currency of sorts. However, none of this was rooted in any particular love for ‘Europe’: rather, it was the faltering sterling in the 1970s and 1980s, and the Conservative Party’s economic plans for the UK, that made her interested in closer collaboration with the EEC.25 The 1980s in the UK saw a massive transition from industrial manufacturing towards the services industry—and because the country was in many ways a pioneer in creating a services industry, and the EEC permitted the ‘free movement of services’ to other countries, there was significant money to be made for the UK in encouraging the completion of the ‘common market’. Thatcher consequently signed the SEA for the UK with little hesitation—though she later referred to it as her ‘greatest political mistake’.26
What caused this change of heart? The unwillingness of the other EEC members to adjust the ‘bad hand’ the UK had been dealt upon accession to the EEC was one part of it. The 1979 Conservative Party manifesto contained an explicit promise to correct the ‘unfairness’ of UK budget contributions; as discussed, Thatcher pressed this point in meetings with the other European Heads of State to a point where they willingly sacrificed their own vetoes in order to stop Thatcher from using hers. The budget wrangling carried on for four more years until a compromise was reached in 1984, resulting in the UK’s rolling rebate, which restored approximately two-thirds of UK contributions to the EEC budget to the UK. The fact that it had taken five years, however, played a part in souring Thatcher’s opinion of the EEC, and had not endeared her particularly to the other European leaders—they referred to the affair as BBQ, standing for ‘British budgetary question’ or ‘bloody British question’, depending on their mood.27
Her opinion of the EEC project when it proved that it wished to stretch beyond the ‘common market’ did not improve, and her own political party split between those who thought the EEC was beneficial to the country and those who mistrusted and disliked it. Thatcher’s own opposition to the EEC grew so vocal that members of her own Cabinet resigned from her government; her Chancellor, Geoffrey Howe, mocked her comments on Europe publicly. His description of her viewing Europe as ‘a continent that is positively teeming with ill-intentioned people, scheming, in her words, to extinguish democracy’ proved to be the beginning of the end of her power within the Conservative Party.28 UK membership of the EEC consequently, and somewhat reluctantly, continued into the 1990s.
1.6 The 1990s: The Maastricht Treaty
The SEA’s 1992 deadline was as ambitious as it was overdue: the EEC was now going to try to achieve ‘in seven years what the Community should have accomplished in the preceding thirty’.29 The Commission headed by Jacques Delors did indeed have its work cut out. (p. 15) However, the political will for big change finally seemed to be present among the EEC Member States again. Work on the ‘common market’ project led to further meetings of the European Council, called intergovernmental conferences, at which the prospect of an ‘economic and monetary union’ and even a ‘political union’ was discussed. The desire for ‘economic and monetary union’ was perhaps less rooted in a desire for closer cooperation than a fear that the ‘common market’ simply would not function if exchange rates between different European currencies fluctuated all the time, but talk of a common currency led to talk of something beyond that—not least because both Kohl and Mitterrand were interested in seeing what more the European project could accomplish.
In 1989, the Delors Report concluded that a common currency was indeed desirable and achievable, but not without further Treaty amendment. Kohl and Mitterrand thought the establishment of a common currency would fail without further political collaboration—and that, too, would require changes to the SEA. Under the rules set out in the SEA, the EEC simply had not been given the power by its Members to establish a new currency or integrate further.
After 30 years of the EEC Treaty, then, we ended up with an SEA that would not make it past six years—simply because most Member States wanted more than an almost exclusively trade-oriented Treaty could accomplish.
1.6.1 The Treaty of Maastricht 1992
It was Maastricht, not the SEA, that proved a ‘sea change’ in the setup of the European project. For one thing, a lot of the changes introduced by the Maastricht Treaty in 1992 were of clear symbolic, political value. The Treaty of Maastricht formally established something called the European Union. Union, of course, sounds significantly closer than ‘Community’—more like a marriage than a neighbourhood in which all European countries just happened to live. The new Treaty of European Union (TEU), which absorbed the earlier EEC Treaty, had a list of objectives in its Article 2 that explicitly referred to the creation of a political union and of the Economic and Monetary Union (EMU). This was well beyond anything Rome or the SEA had alluded to.
However, the Member States’ willingness to compromise for the sake of further European cooperation remained distinctly limited. Maastricht was not an absolute surrender of sovereign power in all matters, even where those matters were going to be discussed at the European level in the future. The TEU dealt with the fact that the Member States were handing over different degrees of power in different policy areas to the EU by setting up a so-called ‘pillar’ structure, which you can see in Figure 1.2.
The first pillar absorbed the former EEC Treaty. It renamed it the European Community Treaty (EC, rather than EEC), to once more stress that the European project was moving beyond being a purely economic project. The EC pillar was the one where supranational decision-making was omnipresent. Here, the Commission proposed legislation; the Council voted to adopt it under QMV without veto powers; and for the first time, in certain policy areas, the European Parliament was granted ‘co-decision’ powers in adopting legislation. This meant that both the Council and the European Parliament had to approve Commission proposals in order for them to become binding EU law. The thought underpinning the expansion of this ‘co-decision’ procedure was linked strongly to making the EU more approachable and appreciated by the public: as they could vote for the European Parliament, they now had a further indirect say into what EU laws were being adopted, beyond the fact that the national governments they had already elected were represented in the Council.
(p. 16) The other two pillars of the EU were less accessible than the European Communities. In two areas named Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA), the Council would still vote on legislative proposals by unanimity. In other words, Pillars II and III of the EU were to remain fully intergovernmental, and only Pillar I would be fully supranational. Pillars II and III were also excluded from the scope of what the Court of Justice could rule on, and so the TEU presented the public with a very mixed result. On the one hand, it had a closer say in economic policy than it had had under previous Treaties; but on the other hand, the EU was making laws in new policy areas that were likely to directly affect European nationals in very serious ways, and there was very little democratic participation or judicial oversight in these areas.
There were other efforts to ‘sell’ the EU to European voters. The most interesting of these was the Maastricht introduction of a new status for all nationals of EU Member States: European citizenship. What the consequence of this status was to be was entirely unclear: as happens regularly when multiple sovereign countries have to agree to a single policy, the provisions in the TEU on citizenship were rather vague. Citizenship appeared to be a rebranding of the ‘free movement of workers’ that had already been a part of the EEC Treaty—no new rights were extended to Member State nationals who were not workers, and even for the workers, the Treaty made it clear this was a secondary status. Was this, then, merely an effort to dress up the EU as being about the people, in order to justify it becoming a ‘Union’ that was going to try to attain a single currency? Or was the creation of citizenship a starting point for a much closer relationship between the people living in Europe?
1.6.2 The UK and Maastricht
The UK’s relationship with the European Union was significantly more fraught than it had been under the EEC Treaty. That Treaty could be brought back to the UK and explained as being purely about economic cooperation; even the SEA could be marketed in (p. 17) the same way. However, the Treaty on European Union of 1992 started with the following observation in its preamble:
This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe in which decisions are taken as closely as possible to the people.
An earlier draft of the Treaty, prepared by the Dutch Presidency of the European Council, had actually proposed the words ‘federal union’, which the UK outright rejected. There was no appetite in the UK for a ‘federal’ Europe. Instead, the UK delegation pushed for the phrasing ‘ever closer union’: a vague enough objective that would satisfy those in the UK who wanted further European integration without frightening those who did not want federalism. With the benefit of hindsight, in light of the exemption from ‘ever closer union’ that David Cameron specifically sought to negotiate in 2016 so as to encourage a vote to remain in the EU, this seems more than a little ironic.
The UK delegation also pushed most strongly for the inclusion of Article F TEU, which stated that ‘[the] Union shall respect the national identities of its Member States …’.30 These Treaty-based promises that the EU was not going to get rid of the nation state were thought necessary for the TEU to be ratified in the UK, and were consequently included. Even with these promises, however, ratifying the TEU in the House of Commons was touch and go: the required amendments to the European Communities Act 1972 were almost not passed. There was a factor of embarrassment at play here: the UK had attempted to join the EMU, as it would have reduced the cost of doing business across the continent, but the pound sterling crashed out of the EMU in 1992 when it simply could no longer meet the conditions for ‘currency fixing’ set out in the EMU. Attempts to stay in cost the UK tremendous amounts of money, and a failure to do so significantly increased hostility towards the EU.31
That said, in 1992 the UK successfully obtained promises that the project was not going federal, and an increasing number of opt-outs from new EU initiatives (such as the Economic and Monetary Union, but also a slew of social policy collectively known as the EU’s ‘Social Chapter’, granting a variety of rights to employees). The Maastricht Treaty was consequently backed by Prime Minister John Major, but the concessions he gained did not prove as persuasive as he would have hoped. Euroscepticism in the Conservative Party remained rife, and the Conservative Party’s relationship with the EU remained very conflicted.
1.7 The late’ 90s and 2000s: Rapid revisions
Did the Maastricht Treaty result in a boost in popular acceptance of the EU project?
The answer to this question appeared to be no. The Maastricht Treaty made significant progress in terms of giving European people more input into the EU, and more benefits (p. 18) from the EU. The European Parliament gained greater legislative power, and the Community was going to start extending both new statuses and rights to EU nationals in an increasing number of policy areas. However, the fact that the EU was doing more for voters in Europe was not necessarily clear to those voters—and regardless, there was still ample criticism of how Maastricht set up the EU.32
Three particular problems kept being raised by both politicians and academic commentators. The lack of power held by the European Parliament was one; ‘co-decision’ was an improvement, but only applied in limited areas, and the Council still held virtually all legislative adoption cards under the TEU. The European Parliament remained the ‘weakest’ institution in other ways: it was the most democratic institution, but also the only one that could not challenge another EU institution before the Court of Justice. The steps taken by the Maastricht Treaty when it came to democratic representation mattering in the EU were simply too small.
The second resurfacing criticism was of the empty nature of EU citizenship as a status; it appeared to some to be a PR exercise more than a legitimate improvement.33 However, it is the final objection to the Maastricht Treaty that is perhaps most interesting to us as lawyers: it is the silence of the Treaty on the division of legislative power between the EU and the Member States. The EEC Treaty and the SEA had not explicitly set out in what areas the EEC had law-making powers, but that was less problematic—its power was all centred on the creation of the ‘common market’. Maastricht, however, moved into far more sensitive policy areas—and did not clearly set out when the Member States could make law, or when the EU could.34 This could lead to practical problems, but more than that, it proved politically toxic. In countries such as the UK, fearful of an EU that was making laws in ever more numerous areas, the lack of a clear limitation on the EU’s law-making abilities was deemed very problematic.
These persistent criticisms did not go unheard by the European Council: Maastricht was accused of attempting too many things at once, and being legally unclear and unworkable as a consequence.35 The next intergovernmental conference had been planned already at the time Maastricht was adopted—for 1996—and in response to the criticisms launched at Maastricht, it resulted in yet another new Treaty.
1.7.1 The Treaty of Amsterdam 1997
The Treaty of Amsterdam was primarily a cleaning-up of the Maastricht Treaty. To the delight of law students and EU lawyers everywhere, the Amsterdam amendments to the EEC Treaty both renamed and renumbered it—so, for example, the old Article 100a EEC, enabling ‘common market’ QMV in the Council, was now Article 95 EC.
Beyond that, Amsterdam made limited progress, by incorporating into the TEU some areas of law in which the Member States were already voluntarily cooperating with each other: environmental law and employment law thus officially became part of ‘the European project’. Amsterdam also rebranded Pillar III ‘Police and Judicial Co-operation in (p. 19) Criminal Manners’ (PJCC) and made a first explicit reference to the EU’s commitment to ‘human rights and fundamental freedoms’ in Article 6 TEU. These measures were intended to tackle the public’s lack of interest in the EU. Beyond that, the Council’s QMV was extended to even more policy areas, and the European Parliament’s co-decision procedure was also extended further. In short, tackling the EU’s lacking democratic qualities and improving the legibility of the Treaty were the primary achievements of the Treaty of Amsterdam.
However, while generally unambitious, the Treaty of Amsterdam also marked a new schism in the European integration project. Some of the EU’s most controversial accomplishments were introduced in Amsterdam, but they were not introduced to all EU Member States. Key here is the Schengen Agreement, which eliminated physical borders between all countries willing to sign up to the agreement. This was intended to be all EU Member States, but the UK, Ireland, and Denmark plainly refused to surrender border controls to the EU. Similar steps were being taken with the EMU and certain Member States’ opt-outs from Justice and Home Affairs policies: where agreement could not be found between all Member States, or where not all Member States qualified for a given EU policy, the Treaty of Amsterdam enabled only some Member States to go ahead with these policies.
The Treaty described these types of opt-in policies with the title ‘closer cooperation’. In reality, what we were seeing was a ‘two-speed’ Europe—to the satisfaction of John Major, who understood that this was the start of a process whereby the EU would go ‘wider’ without going ‘deeper’.36 Indeed, when Austria, Sweden, and Finland left EFTA and joined the EU in 1995, even more voices were being added to the table, and finding unanimous agreement would be almost impossible if the EU wished to extend into more policy areas. Two-speed Europe, in the eyes of the UK, was the best way to avoid federal Europe.
What about the balance of power between the different EU institutions that had been so consistently criticized? Clearly, institutional structure of the EU was an area where ‘closer cooperation’ between only some Member States would not be possible—and perhaps unsurprisingly, it consequently remained largely unaltered. Telling is the comment of Commission President Jacques Santer, on what the Treaty of Amsterdam had achieved: shortly after it was signed, he made clear that the EU had wanted something more than Amsterdam, but simply had not managed it.37
The only solution to fixing a disappointing Treaty was, of course, another Treaty.
1.7.2 The Treaty of Nice 2001
The next Treaty was both a consequence of the failures of Amsterdam and a political development on the European continent. Negotiations for former Soviet satellite states to join the (western) European project had been anticipated since the end of the Cold War in 1989, and had started in 1998. In 1999, the European Heads of State agreed at an intergovernmental conference that while the process of ‘enlargement’ east was desirable (p. 20) for both democratic and economic reasons, it did mean that previous arrangements on the composition and powers of the EU institutions had to be revisited. A further consequence of the addition of 10 further EU Member States to the 15 that existed prior to the 2000s was that ‘two-speed Europe’ was going nowhere: if agreement between 15 countries proved difficult, agreement between 25 countries looked impossible. The EU thus did what John Major desired: it spread wider, but did not manage to integrate more deeply.
The intergovernmental conference in Nice in 2000 produced a new Treaty and two further documents of interest: the Charter of Fundamental Rights of the European Union, and a document called the Declaration on the Future of the Union. The new Treaty, which entered into force in 2001, dealt primarily with the institutional consequences of enlargement. QMV had to be reconsidered: the voting ratios that had applied since the SEA would not work in a 25-member EU, and the older EU Member States would have to make space in some of the institutions for newer members. These negotiations dragged on for an unbelievable 90 hours, to the great unhappiness of the UK’s Tony Blair, with France and Germany posturing back and forth. Their vote share was likely to decrease the most, as it had been the largest prior to ‘enlargement’, but neither wanted to lose the largest share of the vote. Germany protested many proposals because its population was greater; and France protested alternative proposals because it, unlike Germany, had nuclear capability and thus should have a larger vote share. This was apparently not intended as a threat, but did require an incredibly complex formula to establish the new version of ‘qualified majority voting’.
As a sign of the difficulty in finding workable compromises between 15 different countries, let alone more, it is worth stressing that QMV was extended to even more policy areas, but not without caveats. There were, in the Nice Treaty, a total of 38 different legislative procedures requiring different voting arrangements, depending on the nature of the policy area in which the procedure was to be applied.38 Even to lawyers, this proved completely incomprehensible; we can only imagine what those without legal training would have made of it!
As had been the case in Maastricht and Amsterdam, however, the Nice Treaty did make some effort to engage the European public. The Charter of Fundamental Rights is the prime example of these efforts, but much like Maastricht’s citizenship, it did not prove persuasive. For one, the Charter appeared to copy out vast portions of the European Convention of Human Rights, to which all EU Member States had already acceded. It was unclear what added value was offered by this EU Charter—not least of all because the intergovernmental conference failed to agree on what legal status the Charter should have. Original proposals had been to make it legally binding, but this proved controversial in several Member States, and it was ultimately adopted as a mere ‘declaration’. It was another EU initiative to make the project more accessible to voters that ended up looking very half-hearted in its final form.
1.7.3 The UK and the Nice Treaty
The period between the Amsterdam and Nice Treaties saw a significant change of leadership in the UK. After several decades of being away from power, the Labour Party—running on a broadly pro-European platform—won a majority in the 1997 UK general (p. 21) election. The UK was one of the largest proponents of the ‘enlargement’ East that the EU engaged in: for both economic and security reasons, bringing these former Communist countries into the fold was a significant priority for the Labour government. Drafting the Nice Treaty might have been a tedious and wearying exercise, but ratifying the Treaty was a non-issue in the UK, for once.39
However, Labour shortly thereafter stumbled into an error of judgement that would haunt it in the decade to follow. In its EU enthusiasm, the Labour government was in principle in favour of letting the 10 new EU Member States that were going to join in 2004 benefit from free movement of people immediately. The Nice Treaty, however, permitted a gradual opening of Member State labour markets, where only limited numbers of Eastern European nationals could benefit from free movement for the first few years following accession. In response to the Treaty’s flexibility, the Labour government commissioned research to investigate what the likelihood of mass migration would be. This research was produced on the assumption that all original EU Member States would operate fully open borders from the date of ‘enlargement’ onwards, and estimated that 5,000–13,000 Eastern European nationals would settle and seek work in the UK each year.40 On that basis, the UK government declined any sort of transitional arrangements for ‘enlargement’.
However, in the two months before the 2004 ‘enlargement’ was meant to complete, all Member States except Ireland and Sweden changed their minds about their willingness to have fully open borders immediately—and consequently, the UK ended up being one of the only Member States that permitted free movement of EU nationals from these newly joined Eastern European countries. Rather than a maximum of 13,000 new settlers per year, the influx proved to be at least four times that—resulting in both mockery of the Labour party’s approach, and slowly increasing resentment of the EU among the UK population.41
1.7.4 A Constitution for Europe?
What about the Declaration on the Future of the Union that came with Nice? Much like the Charter of Fundamental Rights, it did not have binding legal value—but it is nonetheless of interest. In many ways, this Declaration—which was redrafted in a 2002 intergovernmental conference in Laeken—served as an apology to the European people. The European leaders were acknowledging that the Treaties simply were not up to muster. Amsterdam had set out to fix what had gone wrong in Maastricht, and Nice made the institutions ready for enlargement, but by 2002, the Treaties remained difficult to read; the division of law-making powers between the EU and its Member States remained incredibly opaque; and democratic participation in the EU project remained minimal. If anything, the decade between Maastricht and Nice only accomplished one serious step towards the future: ‘closer cooperation’ was to be the way forward in such a large Union, and EU projects could now proceed with the agreement of as few as eight Member States.
(p. 22) Romano Prodi, President of the Commission in the early 2000s, decided that apologies would not get the EU very far; instead, something drastic was needed to revitalize the EU. He declared the noughties to be the ‘decade of Europe’: the EU’s official shared currency, the Euro, was introduced from 2000 onwards, and this should be used as a launching pad for further initiatives.42 What kind of initiatives? The Heads of State were willing to concede that what the EU needed was almost a clean slate: not just tinkering with the Treaties, but finally resolving a lot of the constitutional problems that the EU had been battling since its inception in 1957.
It was decided that this kind of ‘fresh start’ Treaty should be called a Constitution, not least of all because people reacted strongly to their national constitutions and this might therefore finally bring the European people on board with the EU project. The drafting of this new EU Constitution took place at a special intergovernmental conference entitled the Convention on the Future in 2003. And it did produce a draft Treaty, but far from being a ‘fresh start’, in many ways it made an already complex and unloved project even more difficult and distant.
The Constitutional Treaty was massive: it was longer than all the previous Treaties and so remained impossible to read, and where it introduced new, ‘constitutional’ elements, these were vague and meaningless. The setup of the Constitutional Treaty was that it would have three substantive parts: vague general principles underpinning the Union in Part 1; a binding Charter of Fundamental Rights as Part 2; and a revamped EC Treaty as Part 3.
Was this, then, the thing to finally bring the European people on board the European project? Did this create the ‘European’ identity that the Heads of State were hoping for? They agreed to an amended draft of the Constitutional Treaty in 2004—but the Treaty, when put to the European people it was written for, was rejected by both French and Dutch voters in 2005. Tony Blair, too, had promised a referendum on the Constitutional Treaty in the UK, given the significant symbolic change it represented—but did not need to follow through on that promise, as the rejection by the Netherlands and France meant that the Constitutional Treaty was, for all intents and purposes, dead.
1.8 The Lisbon Treaty
It would be easy to think that the rejection of the Constitution was the beginning of the end of the EU. However, the fact that the Constitutional Treaty was not ratified only meant that the EU project carried on under the Nice Treaty, as if a new Treaty had never been attempted. The Nice Treaty was uninspiring, perhaps, but ultimately functional enough.
The real problem with the rejection of the Constitution was that the European Heads of State had gambled on a massive step forward, and had clearly lost that bet. It appeared that their only choice was to retreat and carry on with small amendments to the Nice Treaty, changing a few provisions at a time. But that was not good enough: the Union was getting larger, it was getting more and more unmanageable, and it was alienating people more rather than less with each successive minor treaty change.
(p. 23) So: what next?
In a moment she undoubtedly would rather forget, German Chancellor Angela Merkel wrote a very honest memo in 2007—a memo that was unfortunately then leaked, and fired up anti-European sentiment in already Eurosceptic countries like the UK even further. The Merkel memo suggested that the way forward for the EU was to ‘use different terminology without changing the legal substance’ of the Constitutional Treaty.43 It was not a pretty suggestion, but it proved to be one that the other EU Heads of State were happy to adopt, and so we arrive at the most recent EU Treaty.
1.8.1 The Treaty of Lisbon 2007
The ‘different terminology’ suggested by Merkel meant that the Lisbon Treaty was presented as simply ‘another Treaty’, of which the EU had produced quite a number already in the preceding 20 years; this was intended to make adoption of the Lisbon Treaty uncontroversial, and in some ways it worked. For one thing, the promised UK referendum on the Constitutional Treaty was abandoned when it was replaced with the Lisbon Treaty, which was treated by the Labour government as not being a substantial change from what had come before.
This was only partially correct. If Amsterdam was an attempt to ‘clean up’ Maastricht, Lisbon was a more substantial remodelling of Nice. While the institutional structure of the EU did not change under Lisbon, and indeed has looked broadly the same since the start of the project in 1957, the EU Treaties’ structure was completely overhauled. Lisbon replaced one very bloated Constitutional Treaty, as was proposed, with two separate Treaties: one called the Treaty on European Union (TEU), dealing primarily with the principles and institutional arrangements underpinning the EU, and a replacement of the EC Treaty called the Treaty on the Functioning of the European Union (TFEU). Lisbon also got rid of the Maastricht ‘pillars’, and removed all mention of the ‘European Community’ from the Treaties; instead, the European Union was granted legal personality and would carry out all functions formally hosted in separate pillars. The current structure of the EU institutions is depicted in Figure 1.3.
The Charter of Fundamental Rights became a binding source of primary EU law under the Lisbon Treaty, though like most EU innovations, this required some wrangling and compromise: the UK and Poland demanded opt-outs from the application of the Charter, and for the sake of adoption of the Treaty as a whole, received them.44 The EU, now with legal personality of its own, was also tasked with acceding to the (p. 24) ECHR, which would apply the ECHR to actions taken by the EU institutions.45 The EU’s commitment to human rights thus seemed significantly more persuasive with the adoption of Lisbon.
The other big changes introduced by the Lisbon Treaty were intended to tackle both Member State concerns and popular disenchantment with the EU. The primary innovation that Lisbon introduced in order to deal with nervous Member States was the now infamous Article 50 TEU, discussed in detail in Chapter 2, which sets out a process of withdrawal from the EU. It was obviously possible to leave the EU before—a sovereign nation can withdraw from any treaty it has ratified—but in setting out an express process on how to do it, the EU responded to concern from Member States like the UK, who were getting increasingly twitchy at notions of the promised ‘ever closer union’.
Other efforts to address Member State concerns are of a more technical nature: a key one of these is a clear setting out of the EU’s legislative powers and limitations thereof, alongside the limiting of legislative procedures to only two after Nice’s nightmarish 38. Finally, it seems the EU Heads of State were tired of writing endless new Treaties every time change was required: Article 48(6) TEU permits simplified Treaty amendment at the European Council’s initiative. This still requires constitutional approval within all the Member States, but forgoes the requirement for an intergovernmental conference specifically aimed at Treaty revision.
To address popular disinterest and wariness of the EU, the Lisbon Treaty proposes a variety of measures aimed at making the EU institutions more democratic, and enabling EU citizens to be more involved with EU processes. In terms of increasing voter involvement, the Lisbon Treaty introduced a European Citizens’ Initiative, which enables EU nationals to suggest legislative action at the EU level to the Commission if they gather a million signatures from a number of Member States backing a given policy matter.
A variety of formally recognized posts in the EU institutions were introduced by the Lisbon Treaty; for instance, the President of the Council of Ministers is an official post now, and the Presidency of the European Council also is clearly set out in the Treaties, making it more obvious who is in charge of the various EU institutions at any time. The EU, along with its legal personality, also received its own ‘foreign secretary’ of sorts: the High Representative of the EU represents the EU in most diplomatic activities. These efforts are all geared at making the EU seem more like what voters are used to: something akin to a country, though without unwanted references to constitutions or a ‘federal’ Europe.
Consider what the Treaty of Rome aimed to achieve—and then look at what the Treaty of Lisbon has set out. Does Andrew Tyrie have a point when he declares the EU to be a ‘fundamentally different creature’? How much is different, and how much has stayed the same, since that first Treaty?
(p. 25) Did Lisbon’s efforts to engage the public work? Ireland, under the Irish Constitution, has to hold a referendum whenever the EU Treaties are changed; and the first Irish referendum on the Lisbon Treaty resulted in a rejection in 2008. This time, however, a compromise was sought—and following guarantees to Ireland on its neutrality and a variety of other technical matters, the Irish people were asked for their opinion on the Lisbon Treaty again. The 2009 Irish referendum passed, and the Lisbon Treaty came into force on 1 December 2009.
In the UK, it was brought into force by Prime Minister Gordon Brown, whose Labour government failed to win the next general election. The Conservative Party regained power in a coalition with the Liberal Democrats in 2010, which caused specific tensions on the issue of Europe. Prime Minister David Cameron himself wished for the Conservatives to stop ‘banging on about Europe’, but Euroscepticism in the party ran deep, and he had to find a way to appeal to his party as a whole.46 His government thus enacted a European Union Act in 2011 that would require a referendum on any further substantial Treaty change. With David Cameron, then, a UK referendum on the EU seemed to have become inevitable, unless the EU simply never rewrote the Treaties again.
We can wrap up this analysis of the EU’s development over time by revising the theories of integration that scholars have developed to explain its path of integration. In the 1950s, neo-functionalism appeared to explain the EU. In the decades that followed, instead, intergovernmentalism seemed to dominate, either with the Council blocking all progress, or the Heads of State pushing hard for further integration. But do either of these accounts fully explain how we ended up with the Lisbon Treaty in 2009?
Recent theories on European integration have become more sophisticated: rather than assuming that either the supranational or intergovernmental institutions dominate the direction that the EU is travelling in, they argue that there is a whole range of actors who influence EU policy-making and European integration. Theories rooted in (New) Institutionalism focus not on one set of institutions versus the other, but rather argue that after several decades, each of the EU institutions developed distinct characteristics and practices, and that these internal practices explain what has happened in the EU better than looking purely at Member States or ‘the EU’ as actors. Multi-level governance, meanwhile, looks towards the roles played not only by the EU institutions but by a wide variety of national and regional actors, including interest groups, and how their interests and practices can shed light on the EU’s initiatives.
The reality is that it is unlikely that one theory can fully explain the process of integration. As the EU has become a far grander and more complex project, all-inclusive accounts for its shape and policy initiatives have become less persuasive. Even so, there are merits to all these theories, and it is worth bearing them in mind as we consider different aspects of both constitutional and substantive EU law in the chapters that follow.
1.9 The 2016 UK referendum and the future
To their own surprise, the Conservative Party won an overall majority in the 2015 UK general election. This meant that David Cameron’s 2015 government was elected with a manifesto commitment to plainly offer a referendum on UK membership of the EU before (p. 26) the end of 2017. Following a deeply flawed campaign, where both the ‘Remain’ and the ‘Leave’ sides misrepresented information about the consequences of EU membership and withdrawal from the EU, the question was put to eligible UK voters on 23 June 2016.
The result of the referendum revealed, more than anything, significant divisions within the UK. Scotland and Northern Ireland, on the whole, voted to remain in the European Union; England and Wales voted to leave. The overall majority for ‘Leave’ was 4 per cent of the vote—but there were no conditions placed on the referendum in order to make the result ‘valid’, and so the UK had voted to leave the EU. Figure 1.4 illustrates the dividing vote of ‘Remain’ and ‘Leave’.
However, the referendum itself was not binding—merely advisory.47 The next steps to take were consequently in the hands of the UK government. David Cameron resigned upon losing the referendum he had proposed. Following a leadership contest within the Conservative Party, reluctant ‘Remainer’ Theresa May became the new prime minister.48 For most of the remainder of 2016, the only comment that came from the UK government on the referendum was that they would honour the result, and that ‘Brexit’ meant ‘Brexit’. Details did not follow until 2017, when a speech by May promised that her government would invoke Article 50 by the end of March 2017, and that honouring the vote meant a full withdrawal; not a ‘half-in, half-out’ solution.49
1.9.1 What next for the UK?
It is, at the time of writing, more than three and a half years later—and yet we still have not fully ‘Brexited’: while we formally left the EU on 31 January 2020, also known as ‘exit day’, we are currently in a transition period that means that we are in most ways still treated as an EU Member State.
A look at Article 50 TEU will enable us to consider the progress that has been made:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union …
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
(p. 27) Theresa May, after triggering Article 50 TEU in March 2017, negotiated a Withdrawal Agreement with the European Union in 2018 that was rejected by the UK Parliament on three separate occasions, not least because it was felt to reflect a ‘half-in, half-out’ solution by those adamant about leaving the EU. Following her resignation in 2019, the new Boris Johnson government negotiated some further changes to that Withdrawal Agreement in October 2019, particularly as it applied to Northern Ireland.50 We have seen the Article 50 TEU negotiating period, set out in Article 50(3) TEU, extended not once but twice—in March 2019 and in October 2019, when the Johnson government also failed to quickly get its version of the Withdrawal Agreement through Parliament.
Only following a victory for Johnson’s Conservative Party at the December 2019 general election was the October 2019 Withdrawal Agreement approved by Parliament.51 As such, that Withdrawal Agreement (setting out the ‘arrangements for withdrawal’, per Article 50(2) TEU) entered into force at the end of January 2020. As of 31 January 2020, at 11pm UK time, the UK is no longer an EU Member State.
Under the Withdrawal Agreement, however, the UK is in a so-called ‘transition period’ until at least the end of December 2020. During ‘transition’, EU law will continue to apply to the UK as if it were still a Member State. This ‘transition period’ exists to buy time for the UK and the EU to negotiate their ‘future relationship’, without the legal system in the UK experiencing extreme upheaval. It is important to stress that the ‘future relationship’ negotiations will not take place under Article 50 TEU; as we will explore in detail in Chapter 16, these will be conducted between the EU and the UK with the UK as a third country, and so under separate EU ‘international relations’ procedures.
The ‘future relationship’ negotiations are guided by a non-binding Political Declaration on that future relationship, agreed by the UK and the EU as part of the Article 50 TEU process.52 The EU published its negotiating directives—or the aims and limits that (p. 28) the Commission, as EU negotiator, will pursue—in February 2020, and the UK set out its general aims for the ‘future relationship’ in a written statement to Parliament at that time as well. The actual negotiations commenced in March 2020 and, to avoid the ‘legal system upheaval’ mentioned, need to be concluded by the end of the ‘transition period’.
It is worth stressing that, according to the Withdrawal Agreement itself, the ‘transition period’ can be extended by one or two years if the UK and the EU agree to this; technically, therefore, there is more time available for negotiating the ‘future relationship’ desired.53 However, the Johnson government was elected in December 2019 on a clear platform of getting Brexit and these future relationship negotiations done by the end of 2020, and as such, it will be difficult domestically for it to request an extension. The European Union (Withdrawal Agreement) Act 2020, implementing the Withdrawal Agreement in UK law, actually outright prohibits UK ministers from requesting an extension to the ‘transition period’—though, if this proves desirable at any later point, Parliament can of course amend that Act as it can any other.54
Figure 1.5 sets out the ‘Brexit’ process as it has taken place to date.
It may feel like not much has happened since 2016, but for lawyers, it has been a fascinating few years. Late 2016 and early 2017 marked some of the most in-depth analysis about the functioning of the UK’s constitution in recent history, when the UK Supreme Court was asked to consider if the prime minister could invoke Article 50 TEU without approval from Parliament—or, if you will, what exactly the UK’s ‘constitutional requirements’ as indicated in Article 50(1) TEU were.55 The government argued that in approving the referendum, Parliament had granted the government the right to invoke Article 50, and that the government, regardless, could enter into and withdraw from treaties under the royal prerogative. The Supreme Court disagreed with this assessment, however, and (p. 29) found that the EU Treaties were not like other international treaties. Indeed, triggering Article 50 proceedings would start the UK on an inevitable path of leaving the EU, and its departure would result in profound changes to UK domestic law. The Royal Prerogative could not, in the Supreme Court’s majority judgment, result in changes to domestic law, and consequently invoking Article 50 TEU without the consent of Parliament would be unconstitutional.
What of the devolved regions? They, too, protested unilateral action by the UK government—but in a blow to the meaning of their semi-independence, the Supreme Court declined a constitutional obligation on the UK government to obtain the assent of the Scottish or Northern Ireland governments before invoking Article 50. Scottish, Welsh, and Northern Irish representatives in Westminster are, consequently, the only citizens of the devolved nations who are going to hold voting power over the next phase of the Brexit negotiating process.
The remainder of this textbook will shed light on what the next steps in the Brexit process will look like:
1. The UK and the EU successfully negotiate a ‘future relationship’ that closely resembles the Political Declaration, agreed by the UK and the EU under Article 50(2) TEU by the end of the ‘transition period’, as agreed under Article 50(2) TEU; or
2. The UK exits the ‘transition period’ with some sort of different ‘future relationship’ with the EU: perhaps a more minimal agreement than that set out in the Political Declaration, or no agreement at all, resulting in trade on World Trade Organization terms.
In either scenario, it is important to remember that the Withdrawal Agreement has entered into force, and so certain dimensions of UK–EU relations after Brexit are already legally binding: the ones we focus on over the course of this book is the provisions in the Withdrawal Agreement on Citizens’ Rights (in Chapters 12 and 13), and the provisions that have been agreed to avoid a ‘hard border’ on the island of Ireland (at the end of every chapter).
The final section of each chapter of this book will consider how a particular aspect of the functioning of EU law in the UK will change as a result of Brexit, first under the Withdrawal Agreement, and second, under the ‘future relationship’, both if the aims set out in the Political Declaration are met by the end of the ‘transition period’, and if they are not.
1.9.2 What next for the EU?
‘Brexit’ has been but one of the big constitutional crises the EU has gone through since the ratifying of the Treaty of Lisbon. The first years under Lisbon marked a global financial crisis that put significant pressure on the EU’s ‘single currency’ experiment: the northern Member States were effectively forced to lend money to the southern Member States, in exchange for the southern Member States becoming subject to stringent fiscal rules set by the EU and other international financial institutions. There was little democratic consent for either of these moves, and, as we will see in Chapter 3, they have raised significant questions about what the EU stands for, as well as the sustainability of the Euro without further fiscal integration.
(p. 30) More recent years have been marked by the largest humanitarian crisis since World War II, with the EU Heads of State struggling to agree a managed response to the influx of refugees from the Middle East and the African continent.56 Equally worrying has been a developing ‘rule of law’ crisis in Poland and Hungary, where populist governments have enacted policies that appear wholly incompatible with the values of the EU, but the EU has struggled to respond to these challenges clearly.57
The EU project, in its significant changes between Rome and Lisbon, still has not found a golden solution to all the problems its Members may encounter. Difficult compromises between independent, sovereign nations remain necessary, and ‘closer cooperation’ has become the policy-making norm. As could have been said in the 1970s and early 1980s, the primary sign of progress in the EU seems to be growth of membership, with Croatia becoming the 28th EU Member State in 2013. However, even ‘enlargement’ is occasionally extremely politically complicated: Turkey’s accession process has stagnated at an associate customs union state for decades because of Member State opposition, and, much more recently, France has indicated it does not want to open up accession talks with North Macedonia or Albania.
Many big questions about the EU as a project are by their very nature open-ended, and it is always worth remembering just how relatively ‘new’ the EU is as a project. Will the Euro prove sustainable? Will the EU Heads of State find a way to agree to a migration and refugee policy? Can the EU cope with elected Member State governments moving in a seemingly illiberal direction? And what will relations between the UK and the EU look like in the future—will the UK be treated more as a friendly neighbour, or as an ‘ex-spouse’ following an acrimonious divorce, deterring other Member States from engaging with Article 50 TEU in the process?
Again, we will simply have to wait and see.
1.10 In conclusion
A limited sacrifice of sovereignty in the 1950s, primarily geared at ensuring peace in Europe, led to the signing of a succession of Treaties between an increasing number of Member States, and has culminated in the Treaty of Lisbon of 2009. With each successive Treaty, the Member States have given more law-making and decision-making powers to the EU institutions, while simultaneously attempting to ‘sell’ the European public on the European project by trying to inject it with greater democratic qualities. These efforts have proven unsuccessful in the UK, and so, for over three and a half years now, the country has been on a mission to regain law-making powers in many policy areas that it has not controlled in several decades. The remainder of the EU, meanwhile, will have to continue to wrangle the Eurozone, refugee, and ‘rule of law’ crises that have plagued it for the last few years—and determine if the EU’s future lies in greater integration, or a strategic retreat that will send significant legislative power back to the Member States. (p. 31)
Table 1.1 outlines the key dates in treaty history.
Table 1.1 Key dates in treaty history
European Coal and Steel Community (ECSC) (foundational)
Establishment of a common market in coal and steel (Section 1.1)
European Economic Community (EEC) (foundational)
Establishment of a general common market (Section 1.2) for all trade in goods and services and free movement of workers and capital
UK Accession Treaty (amending)
The UK joined the EEC
Single European Act (SEA), establishing the EC Treaty (TEC)
A rebranding of the EEC as the ‘European Community’, and a restructuring of the voting rules within the EC institutions to permit more EC legislation to be adopted—and a promise to ‘finish’ the common market by 1992
Maastricht (the TEU and the TEC) (foundational)
Establishment of the European Union (instead of the Community), and the start of a clearly more ambitious and political project (also involving citizenship and a currency for those Member States interested)
An attempt to clean up Maastricht, and the introduction of ‘closer cooperation’ to permit progress without all Member States’ participation
A restructuring of the voting rules in light of enlargement east, and a further attempt to clean up Maastricht
Constitution of Europe (foundational?)
The failed Constitutional Treaty, rejected by referenda in the Netherlands and France
Lisbon (the TEU and the TFEU) (amending)
A rebranded version of the Constitutional Treaty, culminating in two Treaties currently in force
1. What were the original goals of the European project? How, and when, did they change? (See Sections 1.1–1.5.)
2. What (in your view) did the Constitutional Treaty most need to address regarding the setup and structure of the EU? Did it address this issue? (See Sections 1.2–1.6.)
3. How does the Lisbon Treaty differ from the Constitutional Treaty? (See Section 1.7.)
4. Where do you think the EU will go next, without the UK? Does Brexit mean the ‘end’ of further integration or not? What makes you think that? (See Section 1.8.)
Matej Avbelj, ‘Theory of European Union’ (2011) 36(6) ELRev 818.Find this resource:
Paul Craig, The Lisbon Treaty: Law, Politics and Treaty Reform, rev edn (OUP, 2013) chapter 1.Find this resource:
Dora Kostakopoulou, ‘What Fractures Political Unions? Failed Federations, Brexit and the Importance of Political Commitment’ (2017) 42(3) ELRev 339.Find this resource:
Joseph Lacey, ‘National Autonomy and Democratic Standardization: Should popular votes on European integration be regulated by the European Union?’ (2017) 23(6) Eur Law J 523.Find this resource:
Dominik Lasok, ‘Some Legal Aspects of Fundamental Renegotiations’ (2015) 40(1) ELRev 3.Find this resource:
David Phinnemore, ‘Crisis-ridden, Battered and Bruised: Time to give up on the EU?’ (2015) 53(5) JCMS 61.Find this resource:
Jean-Claude Piris, The Future of Europe: Towards a Two-Speed EU? (CUP, 2012).Find this resource:
Robert Zbiral, ‘Restoring Tasks from the European Union to Member States: A bumpy road to an unclear destination?’ (2015) 52(1) CMLRev 51.Find this resource:
Issue 53(1) of the Journal of Common Market Studies
(This special issue examines UK political attitudes to various aspects of the EU and provides very interesting context to Brexit.)
Issue 41(4) of the European Law Review
(This special issue contains post-referendum reactions from leading EU law scholars on a variety of EU law issues.)
Visit www.oup.com/he/demars1e for a sample approach to discussing the quote.
1 William Penn, The Political Writings of William Penn (Liberty Fund, 2002).
2 Henri de Saint-Simon, On the Reorganisation of the European Society (1814).
3 Jacques Briand, Memorandum on the Organisation of a System of Federal European Union (1929).
4 The GATT itself was not formally an organization, but worked as one in practice until in 1994 the World Trade Organization was formally established.
6 Sean Greenwood, Britain and European Cooperation Since 1945 (Wiley, 1992) 34–6.
7 Ian Ward, A Critical Introduction to European Law, 3rd edn (CUP, 2009) 11.
9 Euratom uses the same institutions as the EEC/EC/EU does, and has identical membership, but remains legally distinct to this day.
10 The European Defence Community Treaty was actually signed in 1952 by the ECSC Member States, but the French National Assembly refused to ratify it in 1954; the plans were subsequently tabled.
12 Lord Strang, At Home and Abroad (Andre Deutsch, 1956) 290.
13 Speech by Anthony Eden at Columbia University (New York, 11 January 1952), in Denise Folliot (ed), Documents on International Affairs, 1952 (OUP, 1955) 43–4.
14 Sean Greenwood, Britain and European Cooperation Since 1945 (Wiley, 1992) 64–7.
15 Roy Douglas, Liquidation of Empire: the Decline of the British Empire (Palgrave, 2002) 142; N J Crowson, Britain and Europe: A Political History Since 1918 (Routledge, 2011) 71.
16 For the classic account of why free trade benefits all nations, see Adam Smith, The Wealth of Nations (W Strahan and T Cadell, 1776).
17 Milward (n 11) 197.
18 ‘Final Communiqué of the Extraordinary Session of the Council’  3 Bulletin of the European Communities 5.
19 Duncan Watts and Colin Pilkington, Britain in the European Union Today, 3rd edn (Manchester University Press, 2005) 27–8.
20 Uwe Kitzinger, Diplomacy and Persuasion: How Britain Joined the Common Market (Thames and Hudson, 1973).
21 Christopher Preston, Enlargement and Integration in the European Union (Routledge, 1997) 33–5.
22 Watts and Pilkington (n 19) 29–31.
23 Peter Dankert, ‘The European Community: Past, Present and Future’ (1982) 21 JCMS 3, 8–9.
24 Available at: http://aei.pitt.edu/1788/1/stuttgart_declaration_1983.pdf.
25 Philip Norton, ‘“The Lady’s Not for Turning” But what about the Rest?—Margaret Thatcher and the Conservative Party 1979–1989’ (1990) 43(1) Parliam Aff 41–59.
26 Wilfried Martens, Europe: I Struggle, I Overcome (Springer, 2006) 93.
27 Watts and Pilkington (n 19) 31–5.
28 Geoffrey Howe (London, 13 November 1990), in Brian MacArthur (ed), The Penguin Book of Modern Speeches, 3rd edn (Penguin, 2012).
29 Joseph Weiler, The Constitution of Europe (CUP, 1999) 64.
30 Treaty on European Union, together with the complete text of the Treaty establishing the European Community  OJ C244/1.
31 Alex May, Britain and Europe Since 1945 (Routledge, 1999) 82–3.
32 For a balanced but critical account, see Deirdre Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CMLRev 17, 67.
33 Joseph Weiler, ‘European Citizenship and Human Rights’ in Jan Winter et al, Reforming the Treaty on European Union (TCM Asser, 1998) 68.
35 Curtin (n 32).
36 Alexander Stubb, Negotiating Flexibility in the European Union: Amsterdam, Nice and Beyond (Palgrave, 2002) 63–4.
37 John Palmer, ‘EU Fails to Decide how Best to Decide’, The Guardian, 19 June 1997.
38 Wolfgang Wessels, ‘The Millennium IGC in the EU’s Evolution’ (2001) 39 JCMS 197, 201.
39 Simon Bulmer, ‘New Labour, New European Policy? Blair, Brown and Utilitarian Supranationalism’ (2008) 64(1) Parliam Aff 597.
43 Daniel Hannan, ‘Merkel’s Honesty not the Best Policy’, The Telegraph (London, 27 April 2007).
45 Article 6(2) TEU.
46 BBC, ‘Cameron Places Focus on Optimism’ (BBC, 1 October 2006).
47 European Union Referendum Act 2015.
50 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community  OJ L29/7 (‘Withdrawal Agreement’).
51 In the form of the EU (Withdrawal Agreement) Act 2020.
52 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom  OJ C34/1 (‘Political Declaration’).
53 Withdrawal Agreement, Articles 126 and 132.
54 EU (Withdrawal Agreement) Act 2020, s 33.
55 R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5.
56 For analysis of EU legal responses, see Caterina Molinari, ‘The EU and its Perilous Journey through the Migration Crisis: Informalization of the EU return policy and rule of law concerns’ (2019) 44(6) ELRev 824.
57 For analysis of EU legal responses, see Dimitry Kochenov and Laurent Pech, ‘Better Late than Never? On the European Commission’s Rule of Law Framework and its First Activation’ (2016) 54(5) JCMS 1062.