Show Summary Details
Page of

(p. 3) 1. From EEC to EU: a brief history of the development of the Union 

(p. 3) 1. From EEC to EU: a brief history of the development of the Union
Chapter:
(p. 3) 1. From EEC to EU: a brief history of the development of the Union
Author(s):

Marios Costa

and Steve Peers

DOI:
10.1093/he/9780198853848.003.0001
Page of

PRINTED FROM OXFORD LAW TROVE (www.oxfordlawtrove.com). © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Law Trove for personal use (for details see Privacy Policy and Legal Notice).

date: 01 March 2021

1.1 Introduction

The European Union (EU) is no ordinary international law organisation. It is unique but its extraordinary success has led it to be a model for regional trading organisations across the globe. The purpose of this chapter is to provide a brief overview of how the European Economic Community (EEC) developed into the European Union, identifying key points. The development of the organisation will be traced chronologically, by reference to the main treaties amending the original Treaty of Rome (1957): the Single European Act (1987); the Maastricht Treaty (1993); the Amsterdam Treaty (1999); the Nice Treaty (2003); and, most recently, the Lisbon Treaty (2009). Certain underlying themes and tensions will be identified, as well as the theories that have been used to explain the development of the EU. There are three vectors of development:

  • enlargement;

  • substantive scope of the EU’s activities;

  • the nature of the EU and the way it works.

It is these perennial issues, or the way the Union institutions and the Member States choose to deal with them, that have shaped the way the EU works and, indeed, will shape the future of the EU.

(p. 4) 1.2 Development prior to the Single European Act

The EEC came into existence following the signing of the Treaty of Rome in 1957 by the six original Member States: France, Germany, Italy, Belgium, The Netherlands and Luxembourg. A second Rome Treaty signed by the same six states created the European Atomic Energy Community (Euratom) on the same day. These treaties, but particularly the EEC Treaty, represented the culmination of a movement towards international cooperation, which had been growing throughout the twentieth century, and which was given particular impetus in Europe following the devastation inflicted by the Second World War.

The institutional model for the EEC had already been provided by the European Coal and Steel Community (ECSC) set up in 1951 with the Treaty of Paris by the same six states. However, the substantive scope of the EEC was altogether wider. The ECSC was concerned only with creating a single market in coal and steel; the EEC was designed to create an economic community. Although its aims were primarily economic, to create a single ‘common’ market in Europe, they were not exclusively so. The founder members of the EEC were fired by ideals as well as economic practicalities. As stated in the preamble to the EEC Treaty, its signatories were ‘Determined to lay the foundations of an ever closer union among the peoples of Europe’, and ‘Resolved by thus pooling their resources to preserve and strengthen peace and liberty’.

Although the institutional framework of the EEC, as of Euratom, was modelled on that of the ECSC, the three communities at the outset held only two institutions in common: the Assembly (subsequently renamed the Parliament) and the European Court of Justice (ECJ). It was not until the Merger Treaty 1965 that the other two main institutions merged. The High Authority, the executive body of the ECSC, merged with the EEC and Euratom Commission to form what is now the Commission; and the Council of Ministers of the ECSC merged with that of the EEC and Euratom to become a single Council. Thereafter the three communities continued to function as separate entities, but with shared institutions. The roles and powers of the institutions are discussed in Chapter 2.

In addition to the EU Treaties, there is another agreement, the European Economic Area (EEA) Agreement. It is an agreement providing for a single market between the EU Member States and Iceland, Liechtenstein and Norway. While some EU law applies as a result of the EEA Agreement, its substantive scope is narrower than that of the EU Treaties.

1.3 Enlargement

1.3.1 Current membership

The UK, Denmark and the Republic of Ireland were the first additional states to join the Communities in 1973. (Norway agreed to join at the same time but subsequently decided not to become a Member State following a referendum which came out against membership.) This accession was the first of many, which has led the size of the EU to more than quadruple: from six to 27, with more states seeking to join.

In 1979 Greece, and in 1985 Spain and Portugal, signed acts of accession bringing the then total membership to 12. Membership increased again with the accession of Austria, Finland and Sweden on 1 January 1995. Norway held a second referendum, which again resulted in a vote against membership. Expansion continued with the largest number of countries joining what had become the EU in one go, ten, acceding in 2004. These new Member States, sometimes referred to as the EU10, are, in alphabetical order: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, resulting in an EU of 25. Two more Member States joined on 1 January 2007, Bulgaria and Romania, despite some concerns about compliance with the Union acquis (see (p. 5) COM(2006) 549 final). Most recently, Croatia became a Member State on 1 July 2013. While further countries seek to join the EU, there are questions about existing Member States. Notably, the UK held a referendum in which approximately 52 per cent of those voting were in favour of the UK leaving the EU (see 1.10, and further Chapter 28) and they left the EU in January 2020.

1.3.2 Process for joining the EU

The process of joining the EU involves several stages. Typically, before a country even applies for accession to the EU, it will sign an association agreement, as for some countries being ready to apply for membership itself requires preparation. The aim of the association agreement is to help the would-be candidate country adapt to meet the conditions of EU membership (see 1.3.3). Given the recent history in the Western Balkans, a special process, the Stabilisation and Association Process, has been introduced to deal with the circumstances there. When a country finally formally applies for membership, the Commission prepares an opinion on the country’s readiness to begin negotiations, which is then presented to the Council. This process of assessing a would-be Member State’s progress continues: during the accession period, the Commission will review progress of the country and publish its views on that progress. Assuming a positive decision is made in Council on the country’s readiness to join the EU, the applicant country will then be recognised as a candidate country, at which point formal negotiations are opened between the candidate country and the EU. The negotiations have the aim of concluding an accession treaty. After the signing of the accession treaty, there is usually a period before the treaty comes into force to allow, inter alia, the acceding state time to complete any internal steps (eg, holding a referendum) necessary for it to accede to the EU. This period also gives time for the current Member States and the European Parliament to ratify the accession treaty, which is necessary for it to come into force.

1.3.3 Conditions for membership

Before a country can accede to the EU, it must satisfy the terms of Article 49 of the Treaty on European Union (TEU), Article 6 TEU and the Copenhagen criteria. Article 49 requires that a state be European; Article 6 requires respect for democracy, the rule of law and respect for human rights. The Copenhagen criteria are the:

  • political criterion (respect for democracy and human rights);

  • economic criterion (the need for viable market economies and the capacity to cope with competitive pressure and market forces within the EU);

  • ability to adopt the Union acquis (ie the current body of EU law).

In 1995, the Madrid European Council added a further practical requirement: that the candidate country must adjust its administrative structures and practices so as to ensure the effective implementation of the EU acquis in practice. More recently, there has been recognition that the EU itself must be able to cope with continued enlargement.

1.3.4 Beyond enlargement: the EU’s European Neighbourhood Policy

In addition to the interventions and negotiations as part of the EU enlargement, the EU also engages in what is called the European Neighbourhood Policy (ENP). This development is part of the increasing geographic influence of the EU, which extends more broadly than the territories of the Member States. The ENP was originally developed following the European Commission communication, ‘Wider Europe’ (COM(2003) 104 final) and a subsequent communication ‘European Neighbourhood Policy: strategy paper’ (COM(2004) 373 final) in 2004. It had the aim of preventing divisions occurring between new Member States and their neighbour countries by building upon (p. 6) common values: democracy and human rights, rule of law, good governance, market economy principles and sustainable development. There seems to be a double objective. Firstly, it aims to assist the spread of EU values beyond the EU in the interests of creating a wider area of stability and security. The attainment of this area of stability and security is the second objective. The ENP builds on existing agreements and operates through action plans agreed between the EU and individual neighbouring countries. The system works on the basis that the relevant neighbour country agrees to undertake reforms in areas relevant to the ‘common values’ in return for incentives, including funding and increased access to markets. Progress is monitored.

Finally, it should be noted that the Lisbon Treaty revised the legal and institutional framework for EU foreign policy (see 1.9.2) and, in particular, provides in Article 8 TEU for the development of a ‘special relationship’ with neighbouring countries. Whether the objective of the spread of EU values pulls in the same direction as the EU’s security objectives or, rather, is in tension with it, remains to be seen.

1.4 Kick-starting the internal market: the Single European Act

An important step in the development of both the EU’s institutional processes and its substantive scope took place in 1986 with the signing by the then 12 Member States of the Single European Act (SEA). A White Paper issued by the Commission in 1985 had revealed that many barriers still existed to the achievement of the single internal market. The result was a new treaty, the SEA. The principal purpose of the SEA was to eliminate the remaining barriers to the single internal market within the deadline of 31 December 1992, to be achieved by a massive programme of harmonisation of legislation (see Chapter 15). In addition, the SEA extended the sphere of what was at that stage Community competence and introduced a number of procedural changes designed to accelerate the Community decision-making process (see Chapter 3). The SEA undoubtedly injected a new dynamism. By February 1992, 218 of the 282 proposals, forming the entire programme for the completion of the internal market, had been adopted. Although the 1992 programme reached its termination date, it is important to remember that the provisions the SEA introduced remain and are still used as a basis for legislation (see Chapter 15), as barriers to the internal market remain even now (see, eg, the Services Directive, discussed in Chapter 20).

1.5 Wider or deeper? Treaty on European Union

The late 1980s saw a growing movement within the Community towards closer European union. In December 1989, two intergovernmental conferences were convened pursuant to cooperation procedures introduced by the SEA to consider the questions of (1) economic and monetary union and (2) political union. The conferences, which lasted for a year, resulted in the signing of the Treaty of Maastricht on 7 February 1992. The Maastricht Treaty is significant in terms of two out of the three vectors identified in 1.1: (1) the increase in the substantive scope of EU competence, and (2) the nature of the EU.

The Maastricht Treaty had the effect of amending the treaty that had established the EEC (Treaty of Rome—the EEC Treaty). It comprised two distinct parts. One part (at that time, Article G), consisting of 86 paragraphs, introduced substantial amendments to the former EEC Treaty, and renamed it the European Community (EC) Treaty. This change of name reflected the Treaty’s wider purposes. It was subsequently renamed again by the Treaty of Lisbon (see 1.9).

The second part of the Maastricht Treaty stood as a separate treaty establishing the European Union (Article 1 TEU). It set out a number of general principles and provided specifically for (1) cooperation, with a view to adopting joint action, in the field of common foreign and security policy (CFSP), (p. 7) and eventually defence; and (2) cooperation and the framing of common policies in justice and home affairs (JHA). These two areas of cooperation came to be referred to as the second and third pillars, respectively, of the European Union (see 1.5.3). The remaining pillar was made up of the EC, together with Euratom and, prior to its expiry in 2002, ECSC. The communities comprising this pillar, referred to as the first pillar of the Union, were together called the European Communities. The Union structure was often represented pictorially, as a temple. The three pillars we have just described support a ‘roof’ containing the Union’s objectives. The whole structure stood on a pediment of the common, concluding provisions. Note that, following Lisbon, this pillar structure no longer exists (see 1.9.2), but it is important to be aware of as it had important constitutional and institutional consequences.

Maastricht was due to come into effect on 1 January 1993, following ratification as required by all Member States. As a result of difficulties, political and legal, causing delay in ratification in some Member States (notably the UK, Denmark and Germany), the Treaty did not enter into force until 1 November 1993. From that date until the entry into force of the Lisbon Treaty, the EEC Treaty became the EC Treaty. Given the removal of the distinction between the EC and the EU by the Treaty of Lisbon (see 1.9), the terms EC and Community have been replaced throughout this book to avoid confusion, except where context requires a distinction to be made between EC and EU.

1.5.1 Monetary union

Like the SEA, Maastricht extended the scope of Union competence and strengthened its institutional machinery; in particular, the powers of the European Parliament (see Chapter 2). Perhaps one of the most politically sensitive issues was the introduction of provisions designed to lead to full economic and monetary union by 1999. The fact that, of the then Member States, both Britain and Denmark negotiated provisions allowing them to opt out of this process, indicates the importance of this issue. Even Germany, one of the driving forces behind monetary union, experienced difficulties: the validity of Germany’s entry into the single currency was challenged, albeit unsuccessfully, before the German constitutional court. In the recent economic crisis it seems that, in retrospect, some concerns about the euro were valid. Shortly after the entry into force of the Lisbon Treaty, the institutional provisions for the euro were revised in March 2011 in order to allow the establishment of the European Stability Mechanism (see Chapter 18). It remains to be seen what impact the Euro crisis has, not only on the structure of the euro provisions but also on the EU itself.

The Treaty also contains provisions detailing the institutions necessary to run the single currency (Articles 134–5 and 282–4 TFEU). Crucially, there is no exit mechanism should Member States think it desirable to leave the euro. More details on monetary union can be found in Chapter 18.

Eleven states were initially identified as having satisfied the convergence criteria: Belgium, Germany, Spain, France, Ireland, Italy, Luxembourg, The Netherlands, Austria, Portugal and Finland (the UK, Denmark and Sweden having, for the time being, opted out of monetary union). Greece became the 12th Member State to join the Eurozone, on 1 January 2002. All the new Member States should join the euro if they meet the convergence criteria. Slovenia joined the Eurozone in January 2007; Malta and Cyprus joined in January 2008, as did Slovakia on 1 January 2009. Subsequently Estonia joined (2011) and then Latvia (2014) and Lithuania (2015). Enthusiasm for early adoption of the euro has faded somewhat due to the economic situation, but, despite the sovereign debt crisis, at the time of writing no Eurozone state has left the euro.

1.5.2 Union citizenship

The TEU also introduced the notion of citizenship of the Union (Article 20 TFEU). On the face of it, citizenship seems a relatively straightforward notion. It entitles EU nationals to certain rights such as freedom of (p. 8) movement throughout the Union (see Chapters 1923) and the right to vote and to stand in municipal elections or elections to the European Parliament in any Member State in which they are resident.

There has been much debate about the significance of European Union citizenship. Some saw it as the beginning of the development of a common European identity or as a means to ameliorate the democratic deficit within the Union (see Chapter 3). Others have criticised it for being no more than a label for the rights of free movement already incorporated in the Treaties, or for disregarding national sovereignty. The Treaty allows the Member States to increase the rights attaching to the notion of citizenship, but two decades on they have not done so. Development has mainly been through case law (see Chapters 1821). While the links of nationality to individual Member States remain strong, some commentators believe that judicial extension of rights—particularly social rights—upsets the balance between the powers of Member States and those of the EU. On the other hand, other commentators would prefer to see the strengthening of the nature of EU citizenship.

1.5.3 The other two pillars of the Union

Although the second and third pillars could have been seen as extending the powers transferred to the European Union level, they could also have been seen as maintaining the autonomy of the nation state. Decision-making within these pillars was, under the TEU, predominantly in the hands of the Council representing the Member States, and, although these two pillars shared the institutions of the former EC, the other institutions were limited in the role they played in both policymaking and enforcement. Decision-making in these two pillars could thus be characterised as being primarily intergovernmental in nature, in contrast with the supranational approach found in the first pillar. In addition, almost all decisions had to be made unanimously. Consequently progress towards making effective policies within these areas was slow. The TEU contained provisions whereby some of the policies in JHA could be transferred to what at that stage was the EC (under what was originally Article K.9 TEU). These provisions are often referred to as ‘passerelle provisions’. In the context of the original JHA, the assumption was that such a transfer must surely increase the speed of common policy-making in those areas. These provisions have to a large extent been superseded by events, given the ‘de-pillarisation’ of the EU with Lisbon, though some passerelle provisions remain with regard to the possibility of changing the decision-making procedures in respect of sensitive policy areas (see 1.9).

1.6 Impact of the Treaty of Amsterdam

Original Article N(2) TEU provided that an intergovernmental conference (IGC) to amend the Treaties should be held in 1996. The purpose of the review was to revise the policies and institutional structure of the Union to ensure its effectiveness (Article 2 TEU) and constitutes a stage in the development of the EU’s working processes. This was an issue gaining evermore relevance with the increase of Union competence under the TEU and the further expansion of Union membership. As the IGC discussions progressed, it became clear that the issues to be decided coalesced round three broad, interlinked themes: democracy, transparency and efficiency (discussed further in Chapters 2 and 3). The review process continued into June 1997, when a draft treaty was agreed at Amsterdam. This treaty, the Treaty of Amsterdam (ToA), was signed on 2 October 1997 and came into force on 1 May 1999. The ToA renumbered all Treaty articles, but since the Treaty of Lisbon again renumbered the Treaty articles later on, we will use post-Lisbon Treaty numbering.

1.6.1 Strengthening the EC pillar

The ToA, when compared with the ambitious TEU, may seem to have achieved little; indeed, when one considers the stresses to which the EU will increasingly find its decision-making subject in an EU (p. 9) of 27 or more, the ToA could be criticised for failing to deal adequately with the difficult institutional questions involved. Nonetheless, the ToA can still be seen as constituting a cautious but significant expansion of the Union’s scope. The (then) EC pillar was strengthened by streamlining its decision-making powers and by the allocation of new competences (see Chapter 3). Certain provisions, for example those relating to the admission of third-country nationals, were moved from the then third pillar (JHA) to what was at that time the EC pillar. In addition, the Schengen Agreement, which dealt with controls at borders (an agreement outside the EC/EU framework between a number of the EU Member States), and its associated decisions were, in effect, incorporated into the then EC and EU Treaties (see Chapter 24). Some completely new provisions were also introduced, such as those relating to unemployment. The Protocol on Social Policy, originally annexed to the EC Treaty by the TEU, was incorporated into the main body of the Treaty, replacing the previous social-policy provisions. The consequence of this was that the UK no longer had an opt-out from these policies, given that the (then) newly elected Labour government wanted to end the opt-out.

1.6.2 Equality and fundamental rights

These changes reflect a shift of emphasis away from the mainly economic conception of the EU to a more political idea, founded on fundamental rights and principles. In particular, the provision prohibiting discrimination on grounds of nationality (Article 18 TFEU) was complemented by the insertion of a new clause (Article 19 TFEU) authorising the Council to ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.

Although not phrased in the absolute terms of Article 18 TFEU, it reinforces the idea of non-discrimination as a fundamental principle, which the European Union courts have invoked and used to significant effect in their case law. Indeed, some of the case law on age discrimination is potentially far-reaching in its effects (see Chapters 5, 6 and 25). Further, the promotion of the equality of men and women is now identified in Article 8 TFEU as a task of the Union. Post-Lisbon, this requirement has been strengthened, as Article 10 TFEU requires the Union, in defining all its policies, to combat discrimination whether based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

The concern with fundamental principles is also evidenced by amended Article 7 TEU. This provides that any Member State found to have committed a persistent and serious breach of the fundamental principles listed in Article 2 TEU may be suspended from voting in the Council of Ministers, although it will remain subject to obligations arising out of Union membership, such as compliance with Union legislation. The principles listed in Article 2 TEU are: human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. Article 7 TEU has been amended since, specifically to allow the Union to act to prevent violations occurring (Article 7(1) TEU) in addition to the power to act when an actual ‘serious and persistent breach’ has occurred (Article 7(2) TEU).

The amended Article 7 conferred new powers on the Commission regarding monitoring of fundamental rights in the Union and in the identification of potential risks. As a response, the Commission issued a communication outlining its views on when the conditions of Article 7 TEU would be satisfied (COM(2003) 606 final). In practice, there have been two attempts to trigger Article 7 to prevent a perceived risk to human rights and the rule of law from getting worse: a Commission application against Poland and a European Parliament resolution against Hungary (both in 2018). In neither case has the Council yet agreed that the countries concerned present a risk to such EU values. Obviously, there is reluctance amongst the Member States to use this process. Respect for the rule of law, however, was evidenced by the expansion of the Court’s jurisdiction in relation to the area of freedom, security and justice (discussed further in Chapters 10 and 24), and the Court’s case law on judicial independence (see Chapter 6).

(p. 10) 1.6.3 Closer cooperation

The last main change introduced by the ToA was the introduction of provisions allowing for ‘closer cooperation’ (now known as ‘enhanced cooperation’) by Member States. This is often referred to as an example of the principle of ‘flexibility’, described as the leitmotif of the ToA. It allows differing conceptions of the European Union ideal and different degrees of commitment to coexist within the Union framework. As such, it is a variant of the concepts variously described as ‘multi-speed Europe’, ‘Europe of variable geometry’ and ‘Europe of concentric circles’ prior to the 1996 IGC. The ToA allowed Member States wishing to cooperate more closely in specific areas within the general scope of the Treaties, but which are not yet subject to Union legislation, to do so. Although the Union had, in effect, accepted this approach in specific policy areas, such as the UK and Danish opt-out of monetary union under the TEU and the UK opt-out of the Protocol on Social Policy in the TEU, this was the first time that a general provision (now, as amended, Articles 20 TEU and 326–34 TFEU) allowing for such separate development within the Union framework, was incorporated.

Note that these provisions were amended by Nice (see 1.7.1), would have been amended by the Constitutional Treaty had it come into force (see 1.8) and have again been affected by Lisbon (see further 1.9 and 3.8.6).

This provision for enhanced cooperation may bring some advantages, notably by preventing the frustration of the integrationist aims of one group of Member States by those Member States that do not wish to participate, thus relieving the tensions between the Member States which disagree about the depth of European Union integration and allowing compromise within the Union. It also carries disadvantages. In particular, the boundary between matters falling only within the sphere of EU law applying to all Member States and areas permitting enhanced co-operation may be unclear. In any event, the very fact that the Union contemplates an approach where some Member States go ahead regardless of the wishes of others could arguably undermine the ideas of community and solidarity which are fundamental to the creation of both the internal market and an ever closer union. It seems, however, that ‘flexibility’ is now an unavoidable part of ensuring agreement within the Union and allowing it to develop.

1.7 Preparations for enlargement: Treaty of Nice

Ultimately, the ToA failed to deal with one of the main issues identified by the 1996 IGC—that of preparing the EU for enlargement. As noted in 1.1, such expansion is one of the vectors of the EU’s development. On that basis, the swift progression from treaty negotiation (in respect of the ToA) to treaty negotiation (regarding the Treaty of Nice) is not that surprising. Just two months after the ToA was signed, the European Council at the Cologne Summit in 1999 called for an IGC with a mandate to address certain unresolved issues: size and composition of the Commission, the weighting of votes in Council, and the extension of qualified majority voting (QMV). At the same time, wider discussions were taking place about the legitimacy of the Union and the scope of its powers. There was consequently a debate as to whether the issues to be dealt with by the Nice Treaty should be broadened. In the event, the Treaty remained relatively narrowly focused, although following the 2000 Feira European Council, it also dealt with ‘enhanced cooperation’. Difficult constitutional questions, including the status of the Charter of Fundamental Rights, the form of which had been agreed prior to Nice, were deferred until the 2004 IGC. The Treaty of Nice then might well be described as dealing with the leftovers of the ToA but going no further.

1.7.1 Changes to the TEU: enhanced cooperation

The main changes to the former common foreign and security policy (CFSP) and JHA pillars related to the provisions on closer cooperation, renamed ‘enhanced cooperation’, and revised to relax the conditions for use of the procedure. The number of Member States needed to cooperate was (p. 11) reduced. The Treaty amendments accepted a greater degree of potential impact of any consequent legislation on non-participating Member States and on the acquis. Whereas the original version used the phrase ‘does not affect’, the amended version referred to these interests being respected. Nonetheless, the provisions were not used. Lisbon introduced yet more changes (see 1.9.2).

1.7.2 Changes to the EC pillar

As already noted, certain institutional changes were included in Nice: these are discussed further in Chapter 2. Changes were also made to the court structure, significantly strengthening the role of what is now called the General Court, which gained the right in principle to hear some preliminary rulings procedures (see Part II). The closer cooperation provisions were amended as noted in 1.7.1 (but see also 1.9.2). Further, co-decision and QMV were extended to a wider range of substantive provisions.

1.7.3 Ratification of the Treaty of Nice

Although it may not have had the great ambitions of TEU, Nice ran into difficulties when the Member States sought the approval of the Treaty within their own legal orders. In particular, the Irish voted ‘no’ to the Nice Treaty in June 2001. This was an embarrassing result, as the institutional rebalancing contained in Nice was viewed as the necessary precursor to further enlargement, which was already being negotiated. It was only in October 2002 that a second Irish referendum accepted the Treaty of Nice. Ireland finally lodged its instrument of ratification on 18 December 2002. As provided in the Nice Treaty, it came into force on 1 February 2003.

1.8 Doomed: Treaty establishing a Constitution for Europe

Although the Declaration on the Future of Europe attached to the Treaty of Nice identified specific issues that would need to be addressed: the delimitation of powers between the EU and the Member States, the simplification of the Treaties, and the role of the national parliaments within the EU, it also called for ‘a wider and deeper debate about the future of the European Union’. The Laeken Declaration confirmed the issues to be addressed by the next round of Treaty negotiations. It confirmed the points identified in the Nice Declaration and emphasised the importance of bringing Europe closer to its citizens. In doing so, however, it raised the possibility of reorganising the Treaties so as to introduce a constitutional text for the EU. Such a text would be important for setting down the future characteristics of the Union; indeed the fact that the word ‘constitutional’ was introduced was seen by some as significant. Unusually by comparison with the intergovernmental nature of previous treaty revisions, the Laeken Declaration provided for the establishment of a Convention on the Future of Europe. Its function was to identify and discuss the relevant issues before drawing up a final document containing the possible options for the Union’s future development to form a starting point for the IGC’s discussions.

The resulting treaty, the Treaty establishing a Constitution for Europe (the Constitution), was signed on 29 October 2004. Significantly, referendums held in France and the Netherlands produced a ‘no’ vote, and the governments of both countries accepted this outcome. Nonetheless, 13 Member States ratified it. As a result, the Union entered a period of reflection to consider how to proceed. The outcome was the Treaty of Lisbon (see 1.9). Before we consider Lisbon, a few points about the Constitution should be noted.

Despite the grand title, the Constitution can be seen as reordering, clarifying and simplifying rather than adding much that was totally new. It certainly did not change the nature of the EU. Nonetheless it would have introduced changes, some of which, though small, were significant. Crucially, it would have repealed all existing Treaties and the current pillar structure, thus removing the distinction (p. 12) between Community and Union. It also identified the powers, or competence, of the Union and the Member States expressly (Chapters 3 and 15), and would have formally incorporated the doctrine of primacy of Union law (Chapter 4). Some changes were proposed to the operation of the institutions, mainly to improve efficiency of decision-making (see Chapter 2) and to contain the size of the institutions with the increased size of the Union. Particular controversy surrounded the proposed introduction of a formal president of the European Council, as well as the post of a foreign minister.

Some limited areas of Union competence were to be added and the scope of some areas amended. Thus we saw references to space, energy, humanitarian aid and territorial cohesion. Although not hitherto mentioned in the Treaties, the introduction of these areas would have reflected existing Union practice. Similarly, areas such as sport have been the subject of declarations attached to Treaties, if not part of the formal Union competence. Article I–44 Constitutional Treaty dealt with enhanced cooperation. A minimum of one-third of the Member States were required to participate, a lower percentage than under Nice, but enhanced cooperation was expressed to be used only as a last resort and within the framework of Union non-exclusive competence. Finally, there were changes to the types of Union legislation and their terminology, discussed further in Chapter 3.

How do we assess the impact of the Constitution? On the one hand it sought formally to introduce the notion of constitution, with all its implications of statehood. On the other, the word constitution had been used in the context of the Community and the Union for some considerable time: the Court of Justice in its judgment in Parti Ecologiste ‘Les Verts’ v European Parliament (case 294/83) referred to the EEC Treaty as a constitutional document and the debates about statehood of the Union arose in the context of European Union citizenship, introduced by TEU. In terms of the text itself, the Constitution did not constitute a huge turning point. As with many of the previous Treaties, it was a reaction to the concerns afflicting the EU at that time. In this case, the triggers seem to have been the need to ‘tidy up’ the Union’s procedures in the face of the expansion in membership and, importantly, to try to deal with the increased public disaffection with the EU. Thus we see an increased emphasis on democracy, participation, the rights of individuals, and the values of the Union. Vaclav Havel, President of the Czech Republic, sought a:

concise, clearly formulated and universally understandable constitution [which] would simply make it easier for the citizens of an integrating Europe to recognise what the European Union stands for; to understand it better; and, consequently, to identify with it.

With the abandonment of the Constitution, this task fell to Lisbon. Whether this aim has been achieved is another matter.

1.9 Democracy and effectiveness? Treaty of Lisbon

The 50th anniversary of the EU took place in 2007. To mark the occasion, its representatives signed the Berlin Declaration, which identified the themes, values and aspirations of the EU. It also sought to re-start the process of treaty negotiation:

With European Unification, a dream of earlier generations has become a reality. Our history reminds us that we must protect this for the good of future generations. For that reason we must always renew the political shape of Europe in keeping with the times. That is why today, 50 years after the signing of the Treaties of Rome, we are united in our aim of placing the European Union on a renewed common basis before the European Parliament elections in 2009.

(p. 13) Thus, in June 2007, the EU summit agreed a new IGC mandate for institutional reform. A new Reform Treaty was agreed and signed at a special summit in Lisbon on 13 December 2007. This is the Treaty of Lisbon. It came into force on 1 December 2009, despite problems in the ratification process.

There has been intense debate, both academic and political, about the impact of the Treaty of Lisbon. It is clear that it comprises much of what was contained in the Constitution; indeed the starting point for discussions on the Lisbon Treaty was the Constitution. For the leaders of a number of Member States—such as the ‘no’ voting states of France and the Netherlands—it was important that the new Treaty be distinguished from the Constitutional Treaty. At the same time, sufficient proposed reforms from the Constitutional Treaty needed to be retained to attract the support of the Member States which had ratified the Constitutional Treaty, as well as to make the EU workable for the future. In the UK particularly, there was political debate as to whether the Treaty should attract a referendum; however the government pressed ahead without, and the UK officially ratified the Treaty of Lisbon on 16 July 2008. An attempt to challenge the decision, on the basis of legitimate expectations, was unsuccessful (R, on the application of Wheeler v Office of the Prime Minister, Secretary of State for Foreign and Commonwealth Affairs and Speaker of the House of Commons [2008] EWHC 1409 (Admin)). Ratification was fairly smooth in almost all of the Member States; however in a case of history repeating itself, the Irish—after a poorly orchestrated ‘yes’ campaign—voted no, apparently due to concerns about the right to mandate a commissioner, taxation, military neutrality and abortion. Concessions—or clarifications—were given on these points. Notably, all Member States will be able to nominate a Commissioner. The Czechs had to wait until a decision of their constitutional court on the constitutionality of ratification. Whilst that court approved ratification, the Czech implementing legislation now contains a provision that no further transfer of power to the EU may take place without the express permission of the Czech parliament. Although the German parliament approved Lisbon, ratification was delayed pending legal challenges filed by a number of appellants. The Federal Constitutional Court (FCC) gave a conditional approval to the Lisbon Treaty. While the Treaty itself is compatible with the German constitution, ratification could not proceed until an accompanying law dealing with ‘bridging clauses’ (which allow for an extension of Union competence), usually referred to as passerelles, had been amended, so as to ensure democratic control of the process but potentially limiting further integration. The FCC also held that Union law deemed to violate requirements of the judgment could be declared inapplicable in Germany. In a return to Brunner language (see Chapters 3 and 4) the FCC emphasised its place in the legal hierarchy as final arbiter of any disputes between German and EU legal orders (see Chapter 4 for further details). A brief overview of Lisbon follows.

1.9.1 Themes of the Lisbon Treaty

We have seen that much of the post-TEU impetus for treaty making was a desire to make the EU function efficiently, especially in an enlarged EU. Lisbon has other themes, however. It is notable that it has a much greater emphasis on values, specifically those which value the human as a political and social animal rather than as an economic actor. Article 2 TEU specifies:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail.

Perhaps the key example of this is the change in status of the Charter of Fundamental Rights: it is now binding (see 6.4). The Lisbon Treaty is also focused on freedom and security, as the changes to the provisions on criminal law illustrate. Another central concern relates to democracy: a number (p. 14) of the changes reflect a concern about the role of the national legislature through the involvement ofthe national parliaments in EU processes (see 1.9.3 and 3.5.3), through emphasis on the principleof conferral (see 1.9.2 and 3.2) and in the attempt to delimit EU competence more carefully. Some of these provisions on democracy operate by emphasising the Member States as the original source of EU power. Seen this way, the inclusion of provisions to deal with the possibility of a Member State choosing to leave the EU also fits here. One final theme, arising from some of the institutional innovations, such as the new High Representative and the EU’s legal personality, but also some of the substantive provisions (see 3.3.2), is the endeavour to give the EU an external profile on the world stage.

1.9.2 Constitutional issues

Like the Constitution, Lisbon disposed of the pillar structure, though there remains a distinction between the former first and third pillars on the one hand and CFSP on the other. The first and third pillars of the EU have in effect been merged into a single system: what was the EC Treaty and what is now the Treaty on the Functioning of the European Union (TFEU). CFSP remains in the TEU, with a different institutional structure. So whilst JHA became subject to the greater involvement of the Union institutions as part of the Area of Freedom, Security and Justice, with presumably greater scrutiny of actions at Union level, the CFSP remains essentially intergovernmental in form. Whilst the Court’s jurisdiction has been extended as regards the former JHA, subject to some limitations, it remained largely excluded as regards CFSP. Nonetheless, the role of determining the boundaries falls to the Court, as discussed in Chapters 2 and 3.

As part of the Lisbon changes, the EC Treaty was renamed the TFEU, another classic in the Union tendency to pick ‘un-user friendly’ terminology. References to the ‘Community’ became references to the ‘Union’. Further, the EU was given a single legal personality; previously the Union had no legal personality, although the former Community did. The inclusion of the old JHA within what was the EC pillar meant that some case law, emphasising the culturally specific nature of criminal sanctions, for example, Commission v Council (environmental crimes) (case C-176/03), has been consigned to history by Lisbon (see further Chapter 24).

The Charter did not have binding legal status prior to Lisbon, though the European courts referred to it in some judgments (see, eg, Parliament v Council (family reunification) (case C-540/03)). The Constitution envisaged including the Charter of Fundamental Rights in the constitutional treaties themselves. Lisbon abandoned this format, but gave the Charter the same status as the Treaties (Article 6 TEU). This achieved effectively the same end by a different route. The British and Poles negotiated a special Protocol in relation to the Charter; the scope of this Protocol is discussed in Chapter 6. Like the Constitution, Lisbon requires the accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (see 6.5.2).

Finally, and with great symbolic significance, an exit clause has been introduced; hitherto the possibility of a Member State leaving the EU was not envisaged in the Treaties. Now, a mechanism has been introduced for that to happen (the well-known Article 50 TEU). This is discussed further at 1.10, and in Chapter 28.

Lisbon emphasised the division of competence between the EU and the Member States, re-emphasising that competence is granted to the EU on a limited basis and residual power remains with the Member States. The previous Article 5 EC, which set out the principle of subsidiarity, was reformulated in the EU Treaty. A new Title (Title I) in the TFEU on Categories and areas of Union competence reflects the ambition to provide a more transparent and better organised catalogue than the previous Treaties (see Chapter 3). In this, there are similarities to the approach adopted in (p. 15) the Constitution. Another point of similarity to the Constitution is the approach taken to enhanced cooperation. Lisbon made further amendments to the rules inserted by Nice. The criteria for permission to use enhanced cooperation include a minimum number of nine Member States (currently just under one-third of Member States) to participate and a requirement that this is a ‘last resort’. While the enhanced cooperation provisions have now been used, in some instances this has already given rise to dispute (see 3.8.6).

1.9.3 Institutional matters

The main impetus for reform was a desire to make the EU function more effectively. Although there are differences between Lisbon and the Constitution, there are also marked similarities in approach. Lisbon introduced a permanent European Council president and a High Representative of the EU for foreign affairs (see Chapter 2). The number of Commissioners was in principle reduced, though note the concession to Ireland, so that one Commissioner per Member State was retained. A ‘double majority’ rule for Council decisions made by QMV was introduced (see Chapter 3), but, due to Polish opposition, did not come into force immediately. In terms of seeking to prevent further ‘mission creep’ on the part of the EU institutions, the role of national parliaments was strengthened (Article 12 TEU, as amended by Lisbon). The so-called ‘orange-card’ system allows national parliaments to review legislative proposals for compliance with the subsidiarity principle, thus introducing a political solution to an essentially political question about the appropriate boundaries of EU competence. This is linked to the approach which is a theme of the Lisbon Treaty, that is, that competence granted to the EU is limited, as we can see in Articles 4 and 5 TEU.

1.9.4 Policy matters

We have noted the change consequent to the proposed abolition of the pillar structure. Linked to this development, and reflecting a changing approach to these policy areas, is the extension of QMV to approximately 40 policy areas, including immigration, police cooperation and judicial cooperation in criminal matters. A significant change was the extension of the ‘Community method’ to matters formerly dealt with under the third pillar. New areas, such as climate change and energy solidarity, were also introduced into Lisbon and, at the request of the French government, a reference to ‘free and undistorted competition’, found in the Constitution, was removed as an objective of the Union.

1.9.5 Key differences from the Constitution

Whilst the issues that were addressed in the Constitution still needed addressing, it was equally obvious that a treaty that was exactly the same as the one that had been rejected by the voters of two Member States could not be put forward with any degree of legitimacy. Lisbon therefore needed to fulfil some symbolic, as well as practical, functions. Crucially, it was needed to put an end to the process of reform started by the Laeken Declaration; essentially saying the EU has now been reformed and thus bring an end to discussions about the nature of the EU and how to improve it. Bringing these debates to an end would allow the institutions of the EU freedom to concentrate on their mission, rather than justifying their very existence.

The key differences between the Constitutional Treaty and the Treaty of Lisbon are as follows:

  1. (1) Instead of re-establishing the EU in a new treaty which would have replaced all of the old Treaties (except the Euratom Treaty), the Treaty of Lisbon amended the existing EU Treaties, renaming the EC Treaty as part of this process.

  2. (p. 16) (2) Under the Constitution, primacy of the EU Treaties and EU law was to be given explicit recognition; under the Lisbon Treaty, primacy is recognised in a declaration. This may reflect a pragmatic desire not to destabilise the relationship between the Union legal order and those of Member States, by removing the principle of supremacy from its case law basis into the form of a treaty provision (see further Chapter 4);

  3. (3) The various symbols and terminology, which were criticised for carrying overtones of statehood, such as the European Union flag, anthem and motto, were abandoned. The restatement of the position as to competence and the emphasis on subsidiarity (see Chapter 3)—although both principles were included in the Constitutional Treaty—reflect a similar reframing of the EU as an international organisation rather than the EU as nascent state;

  4. (4) Under the Constitution the office of the ‘minister for foreign affairs’ was to be created, again a term with state-like overtones. As already noted at 1.9.3, Lisbon created a ‘High Representative of the Union for Foreign Affairs and Security Policy’, a much less contentious name for the same job;

  5. (5) The change in approach to fundamental rights: whilst the Constitution highlighted the significance of the Charter of Fundamental Rights, in Lisbon it is dealt with by a cross-reference and is not incorporated into the Treaty structure itself. This has a symbolic significance, since the Charter, post-Lisbon, has a similar effect.

This leaves us with the question of whether Lisbon is merely the Constitution repackaged. There are many areas in which the Lisbon Treaty took the same approach as the Constitution would have done, using the same provisions almost word-for-word. Like the Constitution, Lisbon made little change to the substantive policies at the heart of the internal market. There are significant differences, however, in the way Lisbon achieves its aims and, crucially, many of the controversial elements relating to the statist overtones in the Constitution were removed. It is not the same treaty; it is, however, very similar.

1.10 Withdrawal under Article 50 TEU and Brexit

The Treaty of Lisbon famously introduced the right for a Member State to leave, or withdraw from, the EU. On one level, this is nothing new: the decision of a Member State to leave the EU was always possible under usual rules of international law. With the Lisbon Treaty, these rules are now displaced and Article 50 TEU provides the route by which a Member State may leave the EU. Before considering the text of Article 50 and the questions it raises, we should recognise that the inclusion of an exit route in the Treaty framework was a significant symbolic step. It opens the possibility of a destination for the Member States of the EU other than the ‘ever-closer’ union to which the Treaties have hitherto pointed. Nonetheless, a negotiated exit may have the benefit of allowing better future relations between the EU and the exiting Member State and so may lead to a better outcome than a Member State seeking to leave just under the principles of international law.

On 23 June 2016 a majority of the UK population who voted, voted to leave the EU. Shortly after, it became apparent that the process by which a Member State leaves raises a number of difficult questions; indeed the provisions in Article 50 TEU have been described as incomplete and unclear (see, eg, Hillion). The legal issues of the Brexit process are discussed in detail in Chapter 28. The text of Article 50 follows.

(p. 17) Article 50 TEU

  1. (1) Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

  2. (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. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

  3. (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.

  4. (4) For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

  5. (5) If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

The procedure comprises four elements:

  • notification by existing Member State;

  • adoption of negotiating guidelines by the European Council;

  • negotiation of exit agreement;

  • cessation of applicability of Treaties to exiting Member State.

Although Article 50(1) TEU seems straightforward, the internal ‘constitutional requirements’ of the withdrawing Member State may be complex and contentious in themselves, as can be seen in the response to the British referendum. As a matter of British constitutional law, it was not clear who should make the decision to leave, and there were sharply differing views as to whether parliamentary approval was required. This lack of clarity led to litigation: R (Miller and Another) v Secretary of State for Exiting the European Union and Others ([2017] UKSC 5). The Supreme Court ruled that an Act of Parliament was required, though the Court was not unanimous in its opinion. A more detailed discussion of British national constitutional law lies outside the scope of this book. There are, however, further uncertainties which relate to the interpretation of Article 50 TEU as a matter of EU law. These uncertainties concern the who, what and when of the process. While it may be that the process of Brexit answers some of the questions, it may well be that some remain.

1.10.1 ‘Who’?

It is accepted that the decision to notify lies in the hands of the Member State seeking to leave the EU. A matter of internal activity (such as the holding of a referendum) does not automatically trigger Article 50; a notification must be made, though there are no conditions in the TEU as to what any (p. 18) such notification should look like. The choice whether to make such a notification and the timing of that notification are decisions for the leaving Member State. It cannot be required to give an Article 50 notification and the notification itself is not subject to the approval of the EU institutions or other Member States (see the General Court judgment in Shindler, case T-458/17).

Questions arise as to which institution within the EU should lead the negotiations and what is being negotiated. Usually external agreements are negotiated under Article 218(2) TFEU, which specifies the Commission as the negotiator. Article 50 TEU, however, refers to Article 218(3) TFEU, rather than Article 218(2) TFEU. This meant that the Council must nominate the body which will carry out the negotiations, rather than it being the role of the Commission by operation of the TFEU. In practice, the Council nominated the Commission as the negotiator, and the European Commission set up a ‘task force’ to deal with negotiations, with ex-Commissioner Michel Barnier as chief negotiator.

The negotiated withdrawal agreement must be approved by the EU and the withdrawing Member State. Article 50(2) TEU refers to a qualified majority of remaining Member States in the Council. It also requires the consent of the European Parliament.

1.10.2 ‘What’?

Some politicians suggested that the negotiations would involve negotiations as to the future relationship between the leaving State and the EU. This would have the advantage of ensuring that there was no gap in arrangements between exit and new trade agreements coming into force. It would also mean that the simplified approval arrangements for the exit agreement would apply to any treaties setting up the future arrangements, rather than those treaties having to go through the normal EU approval process. However, it is not clear that this view is supported by the text of Article 50(2) which merely requires the negotiations to ‘take account of’, not negotiate, the future relationship between the EU and the exiting State.

Once notification has been given, is it possible to revoke the notification? Article 50 TEU is silent on this point, but the CJ ruled in Wightman (case C-621/18) that unilateral revocation of the notification was possible, as long as the revocation was in writing to the European Council, taken in accordance with the departing Member States’ constitutional requirements, and ‘unequivocal and unconditional’ (without further explanation).

A further question is whether triggering Article 50 automatically means triggering the exit procedure for the EEA Agreement, which has its own provision, s 127, setting out the mechanism for withdrawal. Permission to bring judicial review action against the Secretary of State for Exiting the EU on this point was refused by the English High Court on the basis that the application was premature (3 February 2017).

1.10.3 ‘When’?

On the face of the text, given that the choice to notify lies in the hands of the exiting Member State, the timing of the start of the process is also under the control of that Member State—though there may be political pressures to take into account. Once the notification has been given, a two-year period starts within which the negotiations should conclude. While it might be thought possible to start negotiations before notification has been given (perhaps informal discussions), the institutions only have authority to start negotiating formally after any such notification.

The TEU envisages the possibility of an extension of time, but significantly this requires the agreement of all Member States in the European Council, along with the withdrawing Member State. In practice, the European Council agreed to three extensions to the UK’s membership. The third extension expired on 31 January 2020, when the UK left the EU.

(p. 19) 1.11 Theories of integration

Although the development of the Union is usually described as a linear progression towards a specified goal, it has also been argued that the integration process has actually fallen into different phases with key characteristics. These phases may even suggest that, despite the rhetoric of an ‘ever-closer Union’, the end goal of the Union is not well defined or even necessarily agreed upon. Different theories have been put forward to describe and explain these different phases, though the degree to which it is possible to describe each such phase only by reference to an individual theory is debatable. The main schools of thought follow.

1.11.1 Functionalism

Functionalism was a theory which was popular during the Union’s early years. As its name implies, it is based on identifying specific, discrete economic areas, usually those perceived as ‘non-contentious’, in which Member States are encouraged to cooperate. Technocrats (technical experts in the relevant field) would manage these fields in the interests of the Union as a whole. Unlike politicians, they would not be influenced by the need to retain power. Instead, technocrats were perceived as making rational choices. Functionalism can be used to describe the ECSC prior to its demise.

1.11.2 Neofunctionalism

What was the European Community was much broader than the ECSC. Neofunctionalism developed as a way of describing this endeavour. It has similarities to functionalism in that it, too, is based on cooperation in specific areas. Neofunctionalism argues, however, that those involved in the process became key players to whom allegiance may be transferred; thus it accepts that the state is not a single unified actor and, indeed, that states are not the only players on the international stage. In this, it was an appropriate theory of European integration and some have described it as the dominant ideology of the early years. Central to neofunctionalism is ‘spill-over’ which has both a functional and political aspect. The functional aspect was based on the idea that elements of the economy do not exist in isolation and that integration in one area would lead to pressure in other areas. Integration in non-contentious areas spills over into other, more sensitive areas. As regards the political aspect, the theory was that in areas which had been integrated, interest groups would be expected to focus their attention on the Union level, as that was where the regulatory power lay and would also add to pressure for further integration.

The process results in a diminution of national governmental power and a matching increase in the power of the technocratic level to deal with sensitive issues. Whilst attractive at a superficial level, the theory was criticised, as it did not describe the reality of later Union development.

1.11.3 Intergovernmentalism

Both of the above theories can be described as forms of supranationalism. Supranationalism argues that power is located above the nation state. This view is challenged by intergovernmentalism which means literally between governments. It assumes that the central actors are the states themselves, which essentially act to protect their own interests and power base. On this view, integration occurs because such behaviour is in the rational best interests of the states, as they seek to acquire and maintain the support of domestic interest groups by promising to attain the preferences which those interest groups have articulated. Underlying this is the assumption that groups in society recognise that increasing the flow of goods, services, etc gives rise to benefits, which leads to the policy coordination in the sphere of economic policy.

(p. 20) The Union can be seen as containing elements that illustrate a supranational aspect, but also intergovernmental elements. Intergovernmentalism can be seen in the Luxembourg Accords, in which the then Member States agreed that one Member State could effectively veto a measure in its national interest. The sections of the Union Treaty which deal with CFSP vest most power in the Council, made up of representatives of the Member States’ governments. Agreement in these spheres was by agreement of all Member States. In contrast, the powers of the institutions are unusual in their scope and their independence from the Member States (see further Chapter 2). The use of QMV in Council (see Chapter 3) introduces the possibility of Member States being outvoted with the consequence that a Member State may be obliged to implement policies with which it might not agree. This is not easily compatible with a view of Member States each acting in their own interest unless membership of the Union itself is taken into account.

1.11.4 Multi-level governance

To some extent the discussion in academic writing about the tension between supranationalism and intergovernmentalism has been replaced during the 1990s with writings on the subject of multi-level governance. Certainly intergovernmentalism has been criticised as being very state-centric. Multi-level governance seeks to explain how the Union is governed rather than focusing on the nature of the integration process. Theories in this school of thought allow a broader range of actors to appear in the discussion of EU governance, important with the introduction of new methods of governance such as the open method of coordination (see Chapter 3). Thus states do not have a monopoly of control, and in particular do not monopolise the links between sub-state actors and the Union level. This results in a picture which is not just based on a conception of the EU as driven by the Member States or by the actions of the EU institutions and may be more relevant given the dual sources of legitimacy of the EU (the states and their peoples); the tendency to technocratic solutions (involving ‘experts’ of various sources); the move towards different regulatory solutions, which involve other actors in setting and enforcing standards; and de-centralised enforcement through national courts and regulatory authorities.

1.12 Conflicting attitudes towards the Union

It should be noted that the frequency of treaty revision increased dramatically during the 1990s. While the EEC Treaty survived from 1957 to the SEA of 1986 relatively unchanged, since then there have been four treaty revisions that have been brought into force: TEU, ToA, Nice and Lisbon, as well as the proposed revisions contained in the Constitution. The significance of this development is unclear. One might suggest that it reflects the political changes occurring during the 1990s, particularly in Europe. Alternatively, the change could reflect the dissatisfaction of the Member States (and their population) with the current EU. The difference between the European Communities and the other two pillars created by the TEU was illustrative of the conflicting attitudes held by Member States and individuals towards the Union since its inception, as exemplified by the divergent views expressed by politicians. Although academic literature may now focus on the way the EU operates, within political debate, tensions remain as to the nature of the EU and its future. These tensions seemed particularly apparent during the negotiation and ratification of the TEU and subsequent Treaties, with the ‘Fiscal Compact’ to amend the provisions on economic and monetary union (EMU) (see Chapter 18) as well as with Brexit. This issue is not new, nor has it gone away.

One ongoing problem is that there are two main competing visions of Europe: the intergovernmental and the federal. In Brunner v European Union Treaty ([1994] 1 CMLR 57) Germany’s power to ratify the TEU was challenged as being contrary to the German constitution. It was argued that (p. 21) in transferring further powers and competence to the EU institutions, the TEU was seeking to create a Euro-state. The German constitutional court found, it is submitted correctly, that the EU was a federation of states not a Euro-state. Nevertheless, the loss of autonomy of action of the Member States consequent on membership of the EU has certainly been considerable. This has increased during the life of the EU as more and more powers have been transferred to the Union by successive Treaties. This process has been emphasised by the increased use of both qualified majority voting and co-decision. Some integrationists approve of this as part of the process of achieving an ‘ever-closer union’. Others fear the loss of sovereignty and see the EU as having grown beyond the loose association of states within a free trade area that the EU was ‘intended’ to be. The concern about controlling EU competence permeates the approach to the treaty revision at Lisbon. The response in a number of Member States, where challenges were brought before the various national constitutional courts, suggests that the proposals are not enough. According to a press release from one challenger in Germany, EU integration has been characterised by ‘continuous breaches of the stability pact, a presumptuous over-stepping of power by the European Commission, unaccountable leadership and dissolution of the separation of powers’ (Frankfurter Allgemeine Zeitung, 26 January 2009).

Sometimes these differing views of the EU result in Member States being characterised as either Euro-sceptic or pro-Europe, but a degree of caution must be exercised about such generalisations. There is a difference between political rhetoric and legal reality. Out of the group of 28 Member States, it is perhaps surprising that Italy and France, both original Member States, had a much less impressive record of compliance than Denmark, which is often perceived as more Euro-sceptic. According to the 2004 Commission Review on Implementation of Community Law (COM(2005) 570), all the EU-15 States had a much less impressive implementation record than the new Member States, though this may be due to the pressures of proving compliance with the Copenhagen criteria and acceding to the EU, rather than evidence of a long-term political intention to ensure prompt implementation of all Union legislation. Furthermore, there is a tendency for Member States’ representatives to put national interest—or national political pressures—over the Union interest. This is not just the case with France (see its ban on British beef in defiance of the Union position) or the UK (veto on introduction of Union tax on interest income, thought to threaten the UK bond market), but with all Member States (see the impact of the Greek position on the accession of Turkey, or Portugal on the diversion of Union funding to new Member States).

With the introduction of monetary union, and its current problems, the transfer of further competence to the EU and the proposed expansion in membership, the question ‘where next?’ assumes a new significance as Member States try to fight for their own view on the future of Europe. The ToA, re-emphasised by Nice and Lisbon, sought to solve the problem by the principle of ‘flexibility’; opt-outs have become common in the treaty-revision process. The danger is that a flexible Europe could become a fragmented Europe. Arguably, any risk of fragmentation could increase with further expansion, as the Union will have not just more voices, but a greater variety of interests to satisfy.

1.13 Conclusions: the future

The EU has changed considerably over its half century or more of existence. Its membership has increased and the Union seems set to continue its eastward expansion. The EU is now a significant trading bloc, and the scope of the Union’s substantive activities has also developed, regarding not just internal policies with its own Member States, but also an external profile. While the EU has always had a concern to ensure community and peace in Europe, the emphasis has changed. Originally, the central element of the EU was the trade aspect; now ‘The Union’s aim is to promote peace, its values and the well-being of its peoples’ (Article 3(1) TEU). At the same time, (p. 22) the working methods of its institutions have been amended, with a focus on efficiency, transparency and democracy.

While some may be tempted to portray this development as a move along a pre-determined path to federal statehood, such a portrayal would be inaccurate. Instead, the EU’s development seems more like a continuing process in which both aims are shifted and the mechanisms for achieving them are changed in response to the environment in which the EU, from time to time, finds itself. While the original Treaty was set up to rebuild Europe after the Second World War, the current Union has different challenges: a global recession, the threat of terrorism and the environmental problems of pollution, dwindling natural resources and global warming. As a global player, the EU has a chance to redefine its role and the world in which we live. We can see the EU as a success story looking at its expansion and (overall) its wealth, as well as the fact that the EU Member States have enjoyed a significant period free from conflict between themselves. The EU story has not been without its difficulties, however, as the almost constant revision of the Treaties and the difficulties encountered in the ratification of those Treaties from Maastricht onwards, as well as Brexit, illustrate. The differences between the Member States in terms of size, wealth and attitudes towards debt and taxation, as well as towards the EU itself, may mean that going forward these difficulties will remain. These internal tensions and differences may threaten the ability of the EU to respond to external circumstances, despite its long history of change. For the first time, the EU envisages, in its post-Lisbon incarnation, the express possibility for a Member State to withdraw, and the UK has invoked this possibility. How the EU will develop, if at all, therefore is a question that history alone will answer.

Self-test questions

Test your knowledge by trying this chapter’s self-test questions.

Further reading

Avbelj, M, ‘Theory of European Union’ (2011) 36 EL Rev 818.Find this resource:

Bradley, K, ‘Institutional design in the Treaty of Nice’ (2001) 38 CML Rev 1095.Find this resource:

Church, CH and Phinnemore, D, Understanding the European Constitution: An introduction to the EU Constitutional Treaty (Routledge, 2006).Find this resource:

Craig, P, ‘The Lisbon Treaty: Process, architecture and substance’ (2008) 33 EL Rev 137.Find this resource:

Curtin, D, ‘The constitutional structure of the Union: a Europe of bits and pieces’ (1993) 30 CML Rev 17.Find this resource:

Dawson, M, ‘Three waves of new governance in the European Union’ (2011) 36 EL Rev 208.Find this resource:

Delacourt, C, ‘The Acquis Communautaire: has the concept had its day?’ (2001) 38 CML Rev 829.Find this resource:

Dougan, M, ‘The Treaty of Lisbon 2007: winning minds, not hearts’ (2008) 45 CML Rev 609.Find this resource:

Edwards, D, ‘The impact of the single market’ (1987) 24 CML Rev 19.Find this resource:

Edwards, D, et al, In the Matter of Article 50 of the Treaty on European Union: Opinion, 10 February 2017 (‘Three Knights Opinion’), available at: www.bindmans.com/uploads/files/documents/Final_Article_50_Opinion_10.2.17.pdf.Find this resource:

Ehlermann, CD, ‘Differentiation, flexibility, closer cooperation: the new provisions of the Amsterdam Treaty’ (1998) 4 ELJ 246.Find this resource:

(p. 23) Hillion, C, ‘Accession and withdrawal in the law of the European Union’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford University Press, 2015), 126.Find this resource:

House of Lords Select Committee on the Constitution, The Invoking of Article 50, 4th Report of Session 2016–17 (HL Paper 44), 13 September 2016.Find this resource:

Lazowski, A, ‘Withdrawal from the European Union and alternatives to membership’ (2012) 37 EL Rev 523.Find this resource:

Martinico, G, ‘Dating Cinderella: on subsidiarity as a political safeguard of federalism in the European Union’ (2011) 17 EPL 649.Find this resource:

Meyring, B, ‘Intergovernmentalism and supranationality: two stereotypes of a complex reality’ (1997) 22 EL Rev 221.Find this resource:

Pinelli, C, ‘The discourses on post-national governance and the democratic deficit absent on EU Government’ (2013) 9 ECL Rev 177.Find this resource:

Schütze, R, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford University Press, 2009).Find this resource:

Somek, A, ‘Postconstitutional treaty’ [2007] German LJ 1121.Find this resource:

Usher, J, ‘Variable geometry or concentric circles: patterns for the European Union’ (1997) 46 ICLQ 243.Find this resource: