(p. 3) 1. The establishment and development of the European Union
This chapter first of all provides an overview of why and how the European Union (EU) was established and how it developed. In doing so, it pays special attention to the two parallel developments in the history of the Communities and the EU known as ‘widening’ and ‘deepening’. The EU’s relationship with the UK and the consequences of Brexit will be considered in a new dedicated Chapter 15. Finally, it considers the external relations of the EU. Hence this chapter will enable you to understand:
● why the Union (at first called the Communities) was originally set up;
● how the Communities were first established;
● the perceived aims and goals, and how those aims and goals have continued to change;
● the expansion and development of the Communities and Union;
● the increase in policies and integration;
● the UK’s role in this history;
● the external relations of the EU; and
● where we are today with the EU—developing news.
Reasons for considering EU history
As with many things, particularly legal rules, they are easier to understand and rationalise if you are aware of why they were established in the first place. Any study of the law on courses of ‘European Union law’ and, as it was previously entitled, ‘European Community law’, must start with a consideration of the history and development of the Union. Without this, it will be much more difficult. Looking at the past helps us to understand why the EU has taken the form it has today, the pressures involved in this process, and why certain decisions were taken along its history. In any subject, merely learning the rules does not help you to understand the purpose for which they were enacted and the reasons that led (p. 4) to them. This is even more the case with the EU. Many of the laws, whilst clearly aimed at specific topics such as ensuring free movement of goods or persons, or requiring the equality of treatment of different groups, or regulating the recognition of a profession in the member states, are a compromise of different perspectives. In the EU, these perspectives come from the different member states, the different cultural understandings, different histories, and different social and economic backgrounds, hence the treaties and laws that have been produced under the Treaties are often achieved only as a compromise. On their own, the individual rules may not make a great deal of sense; with an understanding of the history and development, hopefully, they might make a great deal more sense.
Section 1.4 considers in more depth two particular aspects of this development: namely, the expansion and further integration of the Communities and Union, which are referred to as ‘widening and deepening’.
Explanation of the terms ‘European Communities’ and ‘European Union’
A brief mention needs to be made here in respect of the terms ‘European Union’ and ‘European Community’ because their use can be confusing. The term ‘European Union’ was brought in by the Treaty on European Union (TEU, which is also known and referred to as the Maastricht Treaty—just to make matters more complicated!), and describes the extension by the member states into additional policies and areas of cooperation. Even though the Lisbon Treaty, following its amendment of the European Community (EC) and EU Treaties, has now established definitively that the EU be known exactly as that, this was not always the case, and whilst the history and development sections that follow make this clear, it is nevertheless useful now to outline the previous terms used, as you will come across them. Prior to the changes brought about by the TEU, three original Communities existed: the European Coal and Steel Community (ECSC), the European Economic Community (EEC), and the European Atomic Energy Community (EURATOM). The TEU brought these together under one so-called pillar and renamed the EEC Treaty simply as the European Community (EC) Treaty. It also added two further pillars, dealing with Common Foreign and Security Policy (CFSP) and Provisions on Police and Judicial Cooperation in Criminal Matters. Note that the ECSC has now expired and no longer exists and the organisation in three pillars, which was often illustrated in the form of a classical Greek temple, has now been abandoned.
We will come back to the discussion about why the Communities evolved in this way in section 1.5.8.
When the Lisbon Treaty came into force on 1 December 2009, the term ‘Community’ was replaced by the term ‘Union’ and it is now correct to refer only to the EU. Most EU law courses, and indeed books, did not consider matters previously in the old second and third pillars in any depth, if at all. Following the Lisbon Treaty, the three-pillar structure was broken up. CFSP has been retained in the EU Treaty, and freedom, security, and justice matters, which were in the third pillar, are now organised in a Title of the Treaty on the Functioning of the EU (TFEU). Hence, for the most part, the term ‘Community’ has been replaced by ‘Union’ in this book, except where the context demands otherwise. It remains to be seen whether EU law courses will be expanded to incorporate freedom, security, and justice matters. It is also to be noted that the Court of Justice (CoJ) also had its name and initials amended to the Court of Justice of the European Union (CJEU). CoJ is still used occasionally in a historical context but both terms nevertheless refer to the same institution.
(p. 5) 1.1 Why was the Union set up? The motives for European integration
This section will go through the various factors that combined to persuade at first two European states, and then six, to enter into the process of European integration.
1.1.1 Reaction to the World Wars: the desire for peace
Even a cursory glance at European history will reveal just how long Europeans have been fighting and killing each other. The ultimate in the series of wars was, of course, the Second World War, in which some 55 million souls worldwide, but mostly in Europe and on the Russian front, lost their lives. There have been centuries of invasions, occupations, and dictatorial rule in most, if not all, of the countries of Europe at some stage. With this firmly in mind, it should come as no surprise that the very strong reaction after the Second World War to this death and destruction was a very important and motivating factor in the moves to create a more peaceful and stable European environment in which countries could develop and prosper without resorting to the obliteration or subjugation of others. It is all too easy, in this period of relative European peace and stability now, to understate this motive. Of course, there are reasons underlying the violence, and featuring large is the desire to unify Europe, and, in pursuit of this goal, for one country or ethnic group to impose its culture, often including language or religion and government, on others. Unfortunately, most of these attempts have not been peaceful and, over the ages, these attempts have affected the majority of the citizens of Europe. Generally, the attempts to unite, from the Romans to the Second World War, have led to wholesale loss of life, even attempted genocide and that ghastly modern euphemism for the same, ‘ethnic cleansing’. It is therefore this bleak, but simple and understandable backdrop that led to an increased desire to do something to stop the cycle of wars that caused so much death and destruction. Whilst, over the centuries, there had been ideas and discussions to unite European nations, particularly following the First World War, it was only after the Second World War that these desires and expressions found substantive fruition.
1.1.2 Security against the rising Soviet threat
At the time, a further and developing factor that considerably influenced the desire on the part of the European nations to cooperate was the deteriorating relations between the former Allied powers. It was not long after the Americans, British, and Russians had met victoriously in the streets of Berlin in 1945 that the understandings between those countries broke down and they became increasingly suspicious of each other. UK former Prime Minister and war premier Winston Churchill described in March 1946 in Fulton, Missouri the situation of increasing Soviet influence and control over Eastern Europe, in a borrowed phrase that was taken up generally, as a kind of ‘Iron Curtain’ that had descended between Western and Eastern Europe. This led in 1949 to the establishment of the North Atlantic Treaty Organisation (NATO) and to the Western EU in 1954, primarily for the defence of Europe against possible Soviet aggression.
(p. 6) The general situation came to be described as the ‘Cold War’ and lasted in lesser and greater states of tension until the collapse of Communism in Europe in 1989–90. With this increased fear of the possible expansion and domination of Europe by the Soviet Union, combined with the then existing strict Soviet control over the countries of Eastern Europe, the tension mounted in the late 1940s and throughout the 1950s. At its worst, in the 1960s, the Cold War threatened the nuclear annihilation of the opposing parties. It thus became increasingly important that the countries of Western Europe integrate among themselves to form a bulwark against further Soviet expansion. The Cold War was thus a clear and real catalyst for Western European integration.
1.1.3 Political willingness
The period following the Second World War saw a number of moves towards the integration of European nation states. Political and economic cooperation and development between nations was regarded as crucial to replace the economic competition that was viewed as a major factor in the outbreak of wars between European nation states. Some of these moves were taking place within a worldwide effort for greater political cooperation between nation states, the most notable being the establishment of the United Nations (UN) in 1945 and the Council of Europe in 1949.
1.1.4 Economic development
There were also inherently economically motivated steps towards international cooperation that resulted in the establishment of such organisations as the International Monetary Fund (IMF), the General Agreement on Tariffs and Trade (GATT), and, most notably, in 1947, the Marshall Plan, which funded the establishment of the Committee of European Economic Co-operation (CEEC) and the Organization for European Economic Co-operation (OEEC), which later became the Organisation for Economic Co-operation and Development (OECD), designed initially to distribute the finance for the post-war reconstruction of Europe.
1.1.5 Summary of underlying motives and initial goals
When we come to the three European Communities, which were the forerunners of the EU that we have today, the ultimate goals are not so distinctly discernible. As remains the case today, even before the foundation of the Communities, there was a conflict of opinion between those who wished to see European integration take the form of a much more involved model, such as a federal model, and those who wished merely to see a purely economic form of integration, such as a free-trade area. The first steps were, predictably, a compromise between the political, economic, and social desires of various parties. The scene was set by the address by Winston Churchill at the University of Zurich in September 1946, with his call to build ‘a kind of United States of Europe’ and in particular the brave (for the time) call for a partnership between France and Germany. However, even within that speech, Churchill and the UK did not envisage a role as a key participant and instead saw the UK as being outside any general European integration, alongside the United States and Russia, observing and assisting the rise of a European state from the ashes of the destruction of the Second World War.
These motives, which were the catalyst for European integration and the creation of the EU, find themselves reflected in the reasons given for the award to the EU of the Nobel Prize for peace in 2012. The individual reasons are referred to further in the text following.
(p. 7) 1.2 The founding of the European Communities
1.2.1 The Schuman Plan (1950)
The climate was certainly ready for a greater form of integration in Europe, and the first direct impetus for the Communities came in the form of the plan proposed in May 1950 by the French Foreign Minister, Robert Schuman, in conjunction with the research and plans of Jean Monnet, a French government official. They proposed the linking of the French and German coal and steel industries, which would be taken out of the hands of the nation states and put under the control of a supranational body. This would not only help economic recovery, but would also remove the disastrous competition between the two states. It aimed to make future war not only unthinkable, but also materially impossible, because it put control over coal and steel production—vital then for the production of armaments and thus the capability of waging war—in the hands of a supranational authority, and not the individual states. The plan was deliberately left open for other European countries to join in its discussions. The UK, however, was reluctant to involve itself, even in the negotiations, although it did send observers. The plan was readily accepted by Germany under Chancellor Adenauer. The reconciliation of France and Germany after the Second World War is the first of the five achievements of the EU which was cited as justifying the award of the Nobel Peace Prize in 2012. Belgium, the Netherlands, and Luxembourg, which form the Benelux nations, had already moved ahead with their customs union and also saw the benefits to be gained from membership and this form of integration. Italy also considered it to be in its economic interest to join and, perhaps more importantly, considered it to be a resistance to further Communist gains in the state. Therefore, six nations went ahead to sign the ECSC Treaty in Paris in 1951, which entered into force on 1 January 1952. This first form of integration was thus both politically and economically motivated.
1.2.2 The European Coal and Steel Community
The ECSC Treaty was a mix of both intergovernmental and supranational integration, as the institutions set up included both the High Authority (which was later renamed the ‘European Commission’ by the 1965 Merger Treaty), a supranational body, and the Council of Ministers from the member states—an essentially intergovernmental body. Whilst the Community as established did not fulfil all the wishes of Jean Monnet, who was a federalist, he was appointed the first President of the High Authority. The degree of integration that it achieved was, without any doubt, a very important and indispensable first step from which further integration could follow. Indeed, it was assumed by some—the so-called neofunctionalists—that further integration would be inevitable, as successful integration in one area was assumed to spill over into other areas of integration. The ECSC Treaty expired in 2002, but its enduring tasks and commitments were assumed by the EC Treaty and eventually by the TFEU.
Intergovernmentalism, supranationalism, and federalism are defined at section 188.8.131.52.
1.2.3 The proposed European Defence Community and European Political Community
The Schuman Plan, which formed the basis of the ECSC, was not the only proposal for integration being discussed and negotiated at the time. Monnet also put forward a proposal (the ‘Pleven Plan’) for a European Defence Community (EDC) in 1952. In addition, because it was argued to be (p. 8) politically and practically necessary, in support of the EDC, a European Political Community (EPC) was also proposed in 1953, to provide overseeing political control and foreign policy for the EDC. The proposals and the negotiations proved to be complex and were drawn out because they were surrounded by other political considerations such as the expansion of Communism in South-East Asia and fears in respect of the rearmament of West Germany. Both of these proposals, with hindsight, were premature and far too ambitious for the time. They faced opposition from outside the ECSC—from the UK in particular—and from within the Community, most notably and fundamentally France, which, after some prevarication, failed to ratify the EDC in the National Assembly. Even today, the prospect of a common European army and political union is very radical; then, it was probably just unrealistic. Having said that, the other five countries had approved both proposals.
1.2.4 Progress to the EEC and EURATOM Treaties
It might have been thought that the unfortunate failure to agree the EDC would have put paid to any further attempts at European integration, and it was without doubt a blow to the European federalists. However, rather than jeopardise any such attempts, it appeared to strengthen the resolve of some of the original six member states to take matters further. Once again, Jean Monnet was centrally involved. He had resigned as President of the ECSC High Authority in order to promote European integration. Working in particular with the Benelux nations, it was proposed that rather than leave the integration to two industries, the nations should integrate the many more aspects of their economies. Thus, following the Messina Intergovernmental Conference (IGC) in 1955, the Spaak Report (named after the former Belgian Prime Minister and Foreign Minister at the time of the report) was prepared to consider the establishment of an Economic Community and an Atomic Energy Community for energy and the peaceful use of nuclear power. There were also additional external catalysts for further integration, including the Algerian war of independence, the Soviet suppression of the 1956 Hungarian Uprising, and the Suez Canal invasion by France and the UK. This last event served to highlight the real politics at play in the world in the 1950s and the precarious position of individual nation states in Europe, which no longer wielded the influence that they had done prior to the Second World War. All of this assisted in bringing the European Treaty negotiations to a much quicker and more successful conclusion. Thus, in 1957, the Treaties of Rome were agreed by the same six nations establishing the EEC Treaty and the EURATOM Treaty. The latter is still in operation and remains a separate and distinct Treaty.
At first, all three Communities each had their own institutions, but shared a Court of Justice (CoJ) and the Parliamentary Assembly. The separate institutions were later merged under the Treaty, establishing a single Council and a single Commission of the European Communities (the Merger Treaty) in 1965, which entered into force in 1967 and the provisions of which have been incorporated into the present Treaties. Due to the range of subject matters and policies covered, the EEC Treaty was the most important.
(p. 9) 1.3 The basic objectives and nature of the Communities
1.3.1 Was there an ultimate federal goal for the Union?
With the initial three Treaties established, what the Communities were intended to do and how they were supposed to function should be considered. The formal aims of the Communities can readily be seen by looking at the preambles to the original Treaties. The stated general aims included the creation of the Common Market, which was to be achieved by abolishing obstacles to the freedom of movement of all of the factors of production: namely, goods, workers, providers of services, and capital. The EEC Treaty also provided for the abolition of customs duties between the member states and the application of a common customs tariff to imports from third countries. There were to be common policies in the spheres of agriculture and transport, and a system ensuring that competition in the Common Market was not distorted by the activities of cartels or market monopolists. A limited start was also made with a social policy and a regional policy. Apart from these formally set-out objectives, there has been a debate older than the Communities themselves as to whether there was a grand plan for the integration of Europe. Even if it was not originally clear that the ‘pooling of resources’, as then termed, by a transfer of sovereign powers meant that the Communities took over in certain agreed areas, this was made clear not long afterwards by the CoJ in its landmark decisions in Van Gend en Loos and Costa v ENEL.
At this stage, some terms of integration need to be considered.
184.108.40.206 Intergovernmentalism, supranationalism, and federalism
This is the normal way in which international organisations work, the decisions of which require unanimity and are rarely enforceable, and if so only between the signatory states and not the citizens of those states. The clearest examples are the UN or the World Trade Organization (WTO).
This describes the fact that the decision-making takes place at a new and higher level than that of the member states themselves and that such decisions replace or override national rules.
This is a flexible term in that it can refer to a fairly wide band of integration models, but essentially, for the purposes of this discussion, it is used to mean that there will also be a form of political integration whereby the constituent states transfer sovereign powers to the federation, which will control the activities of the members from the centre. There are plenty of examples of states set up on a federal basis in the world, including the United States, Germany, Canada, Australia, Switzerland, and Belgium. Certain local issues are still regulated by the constituent states, such as education, culture, and land management, but most economic and political power is transferred to the centre, including, most notably, defence and trade.
(p. 10) 220.127.116.11 Integration in the Communities and EU
A debate continues as to whether the Communities were supposed to integrate only in the specific areas as originally set out in the ECSC and EEC Treaties and arguably confined largely to free trade, or whether something more dynamic was intended. It was originally considered that because there was success in certain policies, this would automatically lead to a spill-over from one area to another, thus bringing about increasing integration. This is termed ‘functional integration’ or ‘neofunctionalism’. Others have described this as ‘creeping federalism’. In fact, it was considered that, in order for the original policies to work properly, there had to be continuing integration, otherwise the whole project would probably first stagnate and then roll backwards to collapse. Thus, sector-by-sector integration and the process of European union was regarded as an inevitable process.
For example, the setting of common trade tariffs and the establishment of the Common Market for the free circulation of goods would require and lead to exchange rates being stabilised to ensure that production factors and costs in the member states were broadly equal. This in turn requires monetary union to be established to ensure that exchange rates do not drift apart, and this requires full economic union to be achieved so that the value of different components of the common currency is not changed by different economic and fiscal policies in different countries. Clearly, then, the fiscal policies must be integrated, and this economic integration would require that political integration would have to follow in order to provide stable and consistent policy control over the economic conditions applying in the Union. The difficulties experienced by Greece and the Eurozone from 2010 onwards and the attempts to impose stricter financial and economic rules—in other words political control over them—in 2011–14 highlight this aspect.
According to this view, federalism, in some form, would thus seem to be the probable outcome of this process. Such an outcome, however, is a highly contested one. Only a few persons have argued openly for this degree of integration, although some of the founding fathers of the Community—Monnet, Schuman, and Spaak—had expected that sector-by-sector functional integration would lead slowly to ever greater degrees of federalism. It is also arguable that an agenda of federalism has been buried under the euphemisms ‘a closer’ or ‘ever closer’ Union, which are terms that have been used in the EEC Treaty (which became the EC Treaty in 1993) and in the TEU, in order to make the progress to the ultimate destination of the Communities and Union more acceptable, although it is unclear, and arguably deliberately so, whether they refer to federalism or something short of that. The TEU, as amended by the Lisbon Treaty, carries on in this vein by using the words ‘continue the process of creating an ever closer Union’. It shows, however, the highly political nature of the concerns and debate. The original plans put forward by Monnet for the ECSC may have been much more federal in nature and openly so, particularly as the Community was to be governed by a supranational High Authority only, but it was at the insistence of the member states that the original ECSC Treaty established a Council of Ministers, clearly intergovernmental, and a Parliamentary Assembly of member state representatives. This mixed model was followed in both the EURATOM and EEC Treaties. Therefore, while the Communities and some of its institutions do operate on the supranational level, it does not signify an inevitable move to federalism.
This topic is considered further in the end-of-chapter Summary after the developments to date have been outlined.
Increasingly, as none of the terms defined above individually fits the EU, the term ‘multilevel governance’ is used, which essentially acknowledges the complexity in the EU in that the degree of integration and the decision-making process varies according to the particular policy pursued with a number of different means existing side by side. It includes not only the EU member states and institutions in this form of governance, but also all participants that influence decision- and law-making in the EU including, notably, all the pressure and lobbying groups and international organisations. Whether it is any more helpful in summarising or describing the EU is difficult to say.
(p. 11) Despite the failure of the EDC and EPC, the ECSC remained successful and was complemented in 1957 by the other two Communities. The EEC proved immediately to be a success under the leadership of the first EEC Commission President, the German Walter Hallstein, and it was far more political in outlook and operation—despite the contrary view of de Gaulle—as to how the Communities were and should be organised and governed. The success of the EEC seemed to give support to the neofunctionalist view that success in one sector would lead inevitably to success in other sectors and assist the process of European integration. Indeed, the success in the area of the common customs tariff appeared to work as envisaged by the neofunctionalists/federalists and led to spill-over into other areas, and in particular to further pressure for the reform of the Common Agricultural Policy (CAP). This form of functionalism was adopted deliberately by the High Authority and later the EEC Commission as the way in which to achieve further progress with European integration in the manner by which these bodies put forward linked package reforms for the Communities. Since then, the Communities and Union have moved on with numerous Treaty revisions, which are highlighted in section 1.4.
The agreed decision by the member states in June 2007 at the Brussels European Council Summit to abandon the Constitutional Treaty (CT) and to replace it by a Reform Treaty, which is argued to be far less supranational in nature, may be seen as providing a clear and deliberate halt to progress to a federal Europe, although that too could change in time. The Brussels Summit and the Lisbon Treaty are considered in section 1.5.13.
Furthermore, it appears that, as more states join, there may be more resistance to deeper integration, with some states actually calling for a rolling back of the degree of integration already achieved in view of Brexit and the more widespread Euroscepticism today.
1.4 Developments following the original Treaties
The member states made considerable progress under the original Treaties and the Communities were very successful in achieving the aims set out and promoting economic growth in the member states, in contrast with countries such as the UK. The dismantling of customs duties was achieved by the original six member states, and the Common Market for the free movement of goods was largely achieved ahead of the target year of 1969, set down in the EEC Treaty. Additionally, (p. 12) competition policy and the CAP—successful in terms of guaranteeing production, but the object of criticism ever since because its price-support mechanisms have generated overproduction—are both regarded as successes. However, the Communities did not expand until 1973, nor integrate any further until 1986, much of which was to do with the rejection by de Gaulle of the UK applications and the creation of a national veto established under the Luxembourg Accords as a compromise to the stalemate the member states found themselves in when de Gaulle effectively blocked further integration. However, in 1969, a fresh start for the Communities appeared to take place. Whilst in itself it did not lead to massive or immediate change, it did allow for a new agenda for change.
The Luxembourg Accords are considered under section 1.5.2.
The member states held a summit in The Hague in 1969 to try to get the Communities moving again, which set as its goals the completion, widening, and deepening of the Communities. Although the completion of the Common Market, which should have been fully achieved by 1969, took considerably longer and actually had to wait until 1992, the widening and deepening of the Communities were processes always intended to be ongoing. The terms widening and deepening are those used then and they still survive in Community and EU jargon to describe developments in two ways.
This term refers primarily to the process of the expansion to include new member states, but can also apply to the extension into new policy areas and in developing new sectors for integration.
This term refers to the degree of integration in terms of how integration takes place. By this is meant the extent to which integration is intergovernmental or supranational, but deepening can also apply to integration in new policy areas because it would consider the extent to which the Communities have encroached into previously exclusively held areas of the member states’ competences.
To some extent, the terms are overlapping; and the same development, it can be argued, fits into both categories. At a fairly simple level, however, they refer in turn to the quantitative and qualitative changes over the years.
1.4.1 The widening of the Communities
The original founding member states—Belgium, France, West Germany, Italy, Luxembourg, and the Netherlands—remained the only six member states from 1952 to 1973.
• 1973—first expansion of members: Denmark, Ireland, and the UK
• 1981 and 1986—second expansion: Greece, Portugal, and Spain
• 1990—due to the reunification of Germany, East Germany is assimilated
• 1995—expansion: Austria, Finland, and Sweden
• 2004—expansion: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia
• 2007—expansion: Bulgaria and Romania
• 2013—expansion: Croatia
18.104.22.168 First expansion
The Paris IGC of 1972 finally paved the way for the first expansion of the member states, which took place in 1973, when the UK, Ireland, and Denmark joined. Two earlier attempts by the UK, Denmark, and Ireland to join were thwarted by de Gaulle’s veto of UK entry.
(p. 13) Norway was also to have joined at this time, but a referendum of the Norwegian electorate on the eve of membership resulted in a majority against and Norway failed to become a member—not for the last time!
22.214.171.124 Second expansion
The second expansion actually consisted of two smaller expansions spread over five years, when Greece joined in 1981 and, after protracted periods of negotiation, Spain and Portugal entered in 1986. None of these three countries were economically in a strong position in relation to the existing member states, and in view of this all were regarded by some as unfit for membership. Politically, however, their acceptance into the Communities was regarded as crucial to support the recently emerged democracies in all of these countries after varying periods of authoritarian or dictatorial right-wing rule, and further, to act as a counter-force to any possible violent reaction to the Left and possible establishment of governments sympathetic to Moscow. The Cold War still featured prominently in this period of history; hence, entry was facilitated sooner than economic conditions might have permitted. Indeed, this support for new democracies in Greece, Portugal, and Spain in the 1980s is the second of the five achievements of the EU that was cited as justifying the award of the 2012 Nobel Peace Prize.
126.96.36.199 East Germany is assimilated
A smaller automatic expansion took place in 1990, with the reunification of West and East Germany as the first concrete change to result from the fall of the Communist regimes in the Soviet Union and Eastern European countries.
This automatic assimilation of a previously independent country results from the separation of the single-state Germany after the Second World War and the view that East Germany was not a new member state, but that the areas in the former German Democratic Republic simply became part of a larger Federal Republic of Germany and thus automatically a part of the Communities.
188.8.131.52 Setting terms for future expansions
The German mini-expansion awakened the Communities to the possibility of a number of the former Eastern European states seeking membership and prompted a longer-term evaluation of the conditions required of aspirant member states. This led to criteria being agreed at the Copenhagen Summit in June 1993, which outlined the requirements for new members. These included the need for stable government and institutions guaranteeing democracy, the rule of law, human rights, and the protection of minorities. Economically, applicant states would need to have a functioning market economy and the ability to cope with life in the single market. The applicants would have to accept the acquis communautaire in its entirety, including the overall political, economic, social, and monetary aims of the Union, such as eventual adoption of the euro; no easy task, even for the existing member states at that time.
The term given to describe the accumulated body of Community and Union law, including treaties, secondary legislation, and judicial developments.
The next and fourth enlargement took place sooner than expected as a result of the changes in Eastern Europe and the economic success facilitated by the Single European Act (SEA).
(p. 14) 184.108.40.206 The European Economic Area (EEA)
After observing, in the late 1980s, the economic benefits of the SEA enjoyed by the member states of the Communities, other European states, most of which had cooperation or association agreements with the Communities and were members of the European Free Trade Association (EFTA), started to make overtures to the Communities for greater cooperation and some for possible membership. Initially, further expansion was not favoured by the Commission, because it was thought that it would stifle plans for deeper integration of the then existing member states, in particular progress on the single market and possible further progress to monetary union. Additionally, prior to the collapse of Communism in Europe in the late 1980s, some of the EFTA member states were uncertain for various reasons, including their neutrality and post-Second World War constitutional position, whether full membership was politically feasible or possible. Therefore, a lesser form of integration was proposed by the European Commission, in which the participants could benefit from the advantages of the single market and the competition policy, but not be involved in the other economic or political aspects of the Communities, including decision-making. This offer was open to all of the then existing members of EFTA. However, the negotiations for this new form of cooperation were very drawn out and subject to considerable delays. They were also taking place against the backdrop of the collapse of Communism in Eastern Europe.
One of the consequences of this was that the previous objections or difficulties that might be raised by Eastern Bloc countries and the Soviet Union in particular—that full Community membership of militarily neutral countries, such as Austria, Finland, and Sweden, would not be compatible with their status as neutral countries—were effectively resolved and disappeared. It is to be noted that the neutral state Ireland was already a member.
In October 1991, the EFTA member states—Austria, Finland, Iceland, Liechtenstein, Norway, Sweden, and Switzerland—signed an agreement with the EEC on the creation of the EEA. The agreement reached was that the EFTA members were not represented in the Community institutions and would take no part in the decision-making processes of the Community. They would be subject to all Community law relating to the single market, as defined by the CoJ. However, an additional problem was encountered whilst negotiations were being finalised and shortly before the Treaty was to come into force on 1 January 1993. The Swiss electorate rejected membership of the EEA in a referendum in December 1992, which caused considerable political and legal difficulties because Liechtenstein, with which Switzerland has a monetary union, had agreed to join. Without Switzerland, the remaining six EFTA states went on to sign and ratify the agreement, which came into force on 1 July 1993. It was soon clear, however, that, as far as business confidence was concerned, full membership of the EU was the status that attracted investment, and not membership of the EEA. Indeed, both the concept and the consequences of the EEA might not, in any case, have been fully understood by outside interests. Hence, almost before the ink had dried on the signatures to the EEA Treaty, Austria, Finland, Norway, and Sweden applied for full membership of the EC.
220.127.116.11 The 1995 expansion
In view of the fact that most of the bargaining had already been done for the EEA, entry terms were easily and rapidly decided and the four applications were quickly accepted, which included Norway. On 1 January 1995, the Union was joined but just by Austria, Finland, and Sweden, bringing the number of member states to 15. This is sometimes referred to as the Scandinavian expansion, although, of course, Austria is some way from Scandinavia. The Norwegian electorate, however, once again chose to reject membership in a referendum in December 1994 and Norway again failed to join the Communities. The entry of the three former EFTA members meant that the remaining EFTA states—Iceland, Norway, and Liechtenstein—were now the only remaining EFTA (p. 15) members of the EEA. Following the economic crisis of 2008–9 and its economic near-collapse, Iceland made a membership application and commenced entrance negotiations in July 2010, although these were later abandoned as Iceland withdrew its application. The other two EEA states do not have membership applications pending. Switzerland remains outside both the EC and the EEA. Its application for full membership, lodged in 1992, was put on hold following the EEA rejection. A special series of bilateral agreements have been negotiated with Switzerland instead, covering many, if not most, of the aspects of the EEA.
18.104.22.168 The 2004 expansion
The expansion that took place on 1 May 2004 was the largest in the history of the EU, and ten new states joined in one go, comprising Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia. The overall time taken to resolve terms of entry was surprisingly quick considering the number of states involved and their differing economic and social circumstances. The haste was fuelled by the political events unfolding in the world, in particular by the break-up of the Soviet Union and the bloody fragmentation of the former Communist state of Yugoslavia. The ten new countries were thus brought into the fold much more quickly than economic conditions alone would have allowed owing to the political desire to lock these countries into a Western liberal democratic club of nations, and fears again that not doing so would create conditions of political unrest and possible rise of extreme Left or Right movements in any countries not accepted for a number of years. Support for former Communist states in the 1990s is the third of the five achievements of the EU that was cited as justifying the award of the 2012 Nobel Peace Prize. The accession agreements with all of the member states were concluded and the entry terms settled for the Treaty of Accession, which was signed in Athens on 16 April 2003. The ten new member states duly joined on 1 May 2004.
22.214.171.124 The 2007 expansion
In September 2006, the EU Commission expressed its view that Bulgaria and Romania were ready for accession, as originally planned in the Accession Treaty concluded in April 2005. Entry into the Union of these two countries took place on 1 January 2007, once again with similar concerns that entry was economically premature but politically justified.
126.96.36.199 Croatian entry 2013
Croatia joined the EU on 1 July 2013, an accession process that included some postponement of negotiations caused by the failure to cooperate with the UN Balkans War Crimes Tribunal in handing over a suspected war criminal. With this apparently overcome, negotiations were concluded and Croatia joined the EU as planned, but just three days before entry Croatia amended the law on the European Arrest Warrant effectively to give immunity from prosecution to an ex-secret police chief and 20 others suspected of an assassination in Germany. Following the threat of EU financial sanctions, the law was subsequently removed and Perkovic was extradited to Germany in January 2014.
188.8.131.52 Future expansion
At present, five countries are official candidate states: Turkey, Albania, the Republic of Northern Macedonia, Montenegro, and Serbia. There are two potential candidate countries: Bosnia and Herzogovina, and Kosovo, but progress is understandably slow, particularly with Brexit occupying so much of the time and work of the Commission.
With regard to Turkey, a candidate country since 1999, the Commission recommended on 6 October 2004 that the EU should open entry negotiations; in December 2004 the Brussels European Council Summit approved this position and negotiations were started on 3 October 2005. Without doubt, these negotiations will be the most controversial in the history of the Union. The (p. 16) difficulties are the recognition and reunification of Cyprus, the predominantly Muslim population of Turkey, the human rights record of Turkey, and the fact that, quite simply, geographically, most of the Turkish land mass lies in Asia and not in Europe. Its economic situation is also regarded as problematic; however, it may be argued that the entry of Turkey is exactly what the EU should come to terms with to create a multi-ethnic, multicultural, and multi-religious Union. The support for the modernisation of Turkey is the fourth of the five achievements of the EU that was cited as justifying the award of the 2012 Nobel Peace Prize. Negotiations on 15 chapters had taken place, plus one which was provisionally completed, but further progress was stalled due to Turkey’s restriction on trade with Cyprus and failure to fully implement the Additional Protocol to the Ankara Association Agreement. As a consequence of the European refugee crisis in the second half of 2015, Turkey’s humanitarian aid for Syrian refugees, and renewed support for talks on Cyprus, negotiations recommenced with a cautious approach to opening new chapters but no further chapters will be closed, and with no fixed timetable for overall completion, negotiations may still take many years. Political developments and mass arrests in Turkey in 2016 and 2017 and the possibility of the introduction of the death penalty cast further doubt on any progress being made for the foreseeable future, and indeed may end Turkey’s bid for membership.
The name given to each of the various policy areas covered by the Treaties with which Turkey (or another candidate state) must fully conform before it can be accepted for membership. There are about 35 chapters in total to be negotiated and closed.
Following the economic recession in 2008–9, Iceland, already a member of the EEA, made an application in July 2009 for full membership of the EU. It was envisaged that a fast-track negotiation might take place in view of the existing conformity of Iceland with the EU through EEA membership; however, the now more favourable economic conditions, and a change of government has halted this. In March 2015, Iceland requested that it should not be regarded as a candidate country and that is where it remains at the start of 2020.
The Former Yugoslav Republic of Macedonia made an application to join in March 2004, and was considered as of 17 December 2005 to be a candidate country. Entry negotiations were recommended by the Commission in 2009, but have not yet commenced, which remains the case up to the end of 2017. Internal political difficulties, concerns about press and speech freedom, and the country’s name are three matters that had caused concern and preventing formal progress with accession. Following an agreement with Greece (the Prespa Agreement of February 2019) about the use of the name Macedonia, the country has now officially changed its name to the Republic of North Macedonia. Negotiations with the Commission have not commenced, but in view of progress on the issues this may not be long away.
Montenegro applied for membership in 2009 and was granted candidate status in December 2010. Access negotiations commenced in June 2012 with, at the time of writing, three chapters provisionally closed, and another 30 in progress.
Serbia was granted candidate status on 1 March 2012 and membership negotiations commenced in January 2014, with 35 chapters open, of which two are provisionally closed. Peace-building in the Western Balkans is the final of the five achievements of the EU that was cited as justifying the award of the 2012 Nobel Peace Prize.
Albania was added as a candidate-status country in June 2014 but negotiations are yet to commence. As to other possible members, there are the remaining Balkan states, presently considered to be potential candidate countries, as well as the possibility in the future for the states of the former Soviet Union that border the EU. The countries of Bosnia and Herzegovina and Kosovo have been formally recognised by the EU as those eligible for future EU membership, but only if they prove themselves to the satisfaction of the EU and existing member states to be fit for membership. One or two other countries have previously made applications, but have either withdrawn these or put them on hold. Norway has twice concluded entry negotiations, only for entry to be rejected by the Norwegian electorate at the eleventh hour. At present it has no application pending, but the possibility of future membership remains high on the political agenda, with opinion polls showing a majority of Norwegians in favour of full membership.
(p. 17) The rejection by the Swiss of membership of the EEA in 1992 also led to the suspension of its application for full membership. Even though Swiss governments have expressed the view that Switzerland will eventually apply for full membership, that aim was severely dented, at least for a few years, by the categorical rejection by the Swiss electorate of EU membership negotiations in a private initiative referendum in March 2001 when 77 per cent of those voting said ‘No’. This has subsequently been followed up by a second referendum negative to the EU in 2014 in which the Swiss voted to restrict Croatian migrant entry and to control immigration generally, including that from the EU, despite the fact that there was a free movement of persons agreement with the EU. This has led to the suspension of certain EU programmes that were also open to Switzerland. Therefore, there are presently no plans to revive the dormant application by Switzerland, although significant governmental and other elements consider membership of the EU to be necessary, and indeed inevitable, if not immediately, then at some stage in the future.
184.108.40.206 The future of enlargement
The fact that the EU is conducting accession negotiations with Turkey invites a final consideration in respect of further widening and enlargement: what is the limit? The answer to this is as much driven by the answer to the question ‘What is Europe—politically and geographically?’ Two Mediterranean island states have already pushed the geographical border of the EU further: Cyprus lies closer to the Middle East and is nearer to Asia than Europe, and Malta is not much further away from Africa than it is from other parts of Europe. Indeed, there are existing parts of some member states that are clearly beyond any usual definition of Europe. The Canaries (Spain) lie off the west coast of Africa; French Guyana is completely in another continent in South America; the Azores and Madeira (Portugal) are in the Atlantic; and the French islands of Guadeloupe, Martinique, and Reunion lie in the Caribbean. Greenland was part of the EU until it was granted home rule from Denmark in 1979 and left the EU in 1982.
In fact, there are not many European states left to apply, depending on the definition of ‘Europe’: only Norway, Liechtenstein, the smaller states of Andorra and Monaco, and perhaps parts of the former Soviet Union, such as the Ukraine, Belarus, and Moldova, some of which are deliberately pursuing pro-European policies.
An application by Morocco in 1987 to join was rejected on the geographical ground that Morocco was in Africa and could not be considered as being Europe. There is now also perhaps the more focused question of whether the present citizens of the EU want a bigger Europe. At the time of writing, there appears to be more reticence than support for further expansion, and the migration crises from 2015 only serve to increase that reticence. Brexit has, of course, led to a single-country contraction, albeit a significant contraction.
220.127.116.11 Accession preconditions
Regardless of which state is a candidate, all existing and new member states are required to accept and adopt the entire body of EU law—that is, the acquis communautaire—which includes the Treaties, Protocols, Declarations, conventions, and agreements with third countries, secondary legislation, and the judgments of the CoJ. This requirement was previously noted under Article 2 TEU, but is now to be found indirectly in Article 20 TEU (post-Lisbon). Since the TEU, the criteria for membership have been much more clearly spelled out.
Any European State that respects the principles set out in Article 2 and is committed to promoting them may apply to become a member of the Union.
(p. 18) The principles of Article 2 are human dignity, freedom, democracy, equality, the rule of law, and respect for human rights. In addition, potential member states will be required to satisfy a number of criteria provided at Copenhagen in 1993 that were established with the membership applications of the newly emergent democracies in Eastern Europe in mind. The criteria were essentially a refinement of previous practice. The 1999 Helsinki European Council Summit added a form of ‘good neighbour’ requirement for entrant states: that disputes with neighbouring countries be resolved before entry. It might have been a good idea, but the most visible case requiring the application of that policy was Cyprus; however, the Greek and Turkish parts of the island were not able to resolve fully their differences prior to the entry of Cyprus to the EU on 1 May 2004. Thus, although the whole island of Cyprus is in the EU, EU law is applied only in the southern, Greek half of the island, despite the fact that a referendum vote in Cyprus to reunite the island was approved by the Turkish side but rejected by the Greek Cypriot electorate. Note, though, that Turkish Cypriots are citizens of a member state—the Republic of Cyprus—even though they live in the northern part of Cyprus; therefore, their personal rights as EU citizens are not affected.
Potential border disputes existing between Estonia and Latvia and the Russian Federation were also not resolved prior to accession. The Helsinki Summit additionally marked a realisation that the Copenhagen criteria could not be strictly applied and that some flexibility had to be exercised. The Laeken European Council Summit in December 2001 also emphasised that membership was dependent on candidate countries ensuring that their judicial institutions were capable of meeting the requirements of EU membership. The applicability of the criteria for deciding whether an eligible candidate can become an admissible one was confirmed at the Copenhagen Summit, which took place in December 2002.
The good neighbour principle has now found Treaty expression in Article 8(1) TEU:
1.5 The deepening of the Communities
This section charts the increasing degree of integration entered into by the member states, from the original Treaties establishing the Communities to the present position following the entry into force of the Lisbon Treaty in 2009.
1.5.1 The primary Treaties
The first and fundamental movement on the path of integration was, of course, the ECSC Treaty, now expired, which was soon followed by the agreement and ratification of the EEC and EURATOM Treaties by the original six member states. It was clear at the time of negotiation that a (p. 19) transfer of power was involved, particularly in the climate of the time and the clear federalist intentions of the main protagonists of the plan, Schuman and Monnet. The only amendments that were made to the primary Treaties for the first two decades were minor ones, brought about first by the decision to merge the institutions of the three Communities, and then by the Accession Treaties required for the new member states. Prior to the Merger Treaty of 1965, each of the Communities had its own Council and High Authority/Commission; however, the CoJ and the Parliamentary Assembly had both been shared by all three Communities from the outset. The merger of the institutions was a practical step to provide common coordination and to avoid the duplication of effort and resources. It was nothing more significant than that. The first Accession Treaties for Denmark, Ireland, and the UK dealt specifically with the details of accession of the new member states, or merely made the changes to the Treaties considered necessary for it to continue working in the same way as previously, but with adjustments to reflect the increase in member states and the composition of the institutions: for example, to Council voting numbers and to Commission, European Parliament (EP), and CoJ memberships. The fundamental constitutional core of the Communities and how they worked remained untouched until 1986.
1.5.2 The 1960s and the Luxembourg Accords
Initially, the Communities were very successful in achieving the aims set out and promoting economic growth in those member states, in contrast with slower economic growth in countries such as the UK. The dismantling of customs duties was achieved by the original six member states before the target date set down in the EEC Treaty. Additionally, competition policy was seen to be working and the CAP was clearly successful in terms of guaranteeing production. It was, however, the subject of criticism because its price-support mechanisms led over time to the massive overproduction and stockpiling of commodities such as butter, milk, sugar, and wine. These stockpiles cost the Community not only a great deal of money to dispose of, but also political ill-will in the world as developing-world agricultural products had severely reduced chances of entering the heavily protected EC market.
However, following this initial period of success and achievement, any chance of either further expansion or deeper integration was stifled. The brake on such progress was applied most effectively to the Commission and the Communities in 1965 by de Gaulle, the French President, by a boycott of the institutions that caused lasting damage for decades. In 1965, the Commission proposed that the Communities move to a system of own resources and that the Council move to majority voting, which was no more than originally envisaged by the Treaty of Rome in 1957. It was further proposed that the Parliamentary Assembly should have some control over the expenditure of the Communities. These proposals were categorically opposed and vetoed by de Gaulle who, when the other member states were not opposed, adopted a policy of non-attendance at the Community institutions by the French representatives, which became known as the ‘institutions boycott’ or the ‘empty chair policy’.
The boycott of the EU institutions by French President de Gaulle was the way in which France objected to an increase in the Communities’ own resources and powers.
All progress, indeed everything in the Communities, simply halted. The compromise agreement that broke the deadlock was the infamous Luxembourg Accords, in essence an ‘agreement to disagree’. This basically provided that where the member states were not able to agree a proposal and where a vital national interest of any member state was at stake, that member state could finally veto the proposal in Council. There was no definition of a vital interest, and so member states were left to define a vital interest themselves.
(I) Where, in the case of decisions which may be taken by majority vote on a proposal of the Commission, very important interests of one or more partners are at stake, the Members of the Council will endeavour, within a reasonable time, to reach solutions which can be adopted by all the Members of the Council while respecting their mutual interests and those of the Community, in accordance with Article 2 of the Treaty.
(II) With regard to the preceding paragraph, the French delegation considers that where very important interests are at stake the discussion must be continued until unanimous agreement is reached.
(III) The six delegations note that there is a divergence of views on what should be done in the event of a failure to reach complete agreement.
(IV) The six delegations nevertheless consider that this divergence does not prevent the Community’s work being resumed in accordance with the normal procedure.
(p. 20) 1.5.3 Stagnation and ‘Eurosclerosis’
The whole unfortunate episode surrounding the Luxembourg Accords resulted in stagnation in the decision-making process for many years to come. It led to the long, slow, painful period of the Communities that has become known as the period of ‘Eurosclerosis’, and which lasted from 1966 until the early-to-mid-1980s. The basic problem was the near-inability of the member states to reach decisions on Community legislation, and widespread dissatisfaction at the slow pace at which the goals of the EEC were being achieved. Whilst much of the blame can be laid at the door of the French boycott and the Luxembourg Accords, the ability to reach decisions was made much more difficult by the doubling of member states between 1973 and 1986 to 12.
In 1973, Denmark, Ireland, and the UK joined the Communities, followed in 1981 by Greece, and in 1986 by Spain and Portugal.
Trying to obtain the unanimous agreement of first six, then nine, then ten, and then all 12 members proved at times to be simply impossible. Among the main concerns were the time taken by the Community institutions to make new laws and the amount of work with which the Council was faced, partly because particular provisions were presented many times as the Commission made amendments to make them acceptable to all member states. A notorious example of this is Directive 85/384, which did nothing more controversial than harmonise the training requirements for architects, but which took the institutions 17 years to agree and finally enact. Further concerns related to the lack of representative democracy in the decision-making process of the Community and the delays experienced by litigants in the CoJ. It was clear to everyone that some change had to be brought about. Whilst it was true that some adjustments had been made in the form of amendments to the original Treaties, these were of a limited nature. More significant were the direct elections to the EP, which first took place in 1979 and the increase in its powers in the budgetary process by the Budgetary Treaties of 1970 and 1975. Otherwise, little further progress had been achieved in this period. However, before looking at the relaunch of the Communities, in the background the CoJ was going about its business of judging cases and, in doing so, laying down some extremely important principles of law.
(p. 21) 1.5.4 The Court of Justice and integration
Whilst the Community institutions were busily going nowhere on the path to European integration, the CoJ appeared not to be affected by the ‘Eurosclerosis’ and had, from a very early date, adopted a very supranational tone in its judgments, including the far-reaching decisions on direct effects and supremacy in Case 26/62 Van Gend en Loos and Case 6/64 Costa v ENEL. These judgments contributed greatly not only to building a separate Community legal system, but also to enhancing the supranational status of the new European legal order and constitutionality of the Communities. A formal Constitution of or for the EU per se is not, though, something acknowledged by the member states, despite the view of the CoJ that the Treaties do in fact represent the constitutional basis expressed in Case 294/83 Parti Ecologiste (Les Verts) v Parliament.
1.5.5 Revival attempts
In 1969, following the resignation of de Gaulle and the change in West Germany to a Social Democrat government, a summit of the heads of state and government was arranged in The Hague expressly to relaunch European integration. The 1969 Hague Summit established the system of EPC, but it was deliberately intergovernmental in nature and sat outside the formal Treaty set-up. As such, it can be regarded as another move away from supranationalism and the neofunctionalists’ dream of progress on European integration. It was also unfortunate, but the reforms and the relaunching of the Communities envisaged at The Hague were severely disrupted by the world economic situation, which grew steadily worse in the early 1970s. The Middle East wars and ensuing oil crises led to very high inflation and stagnation in the world economies and to the unwinding of the first attempt at some sort of monetary union, the European Monetary Unit (EMU), which bound European currencies into a flexible relationship with each other.
The year 1973 also saw the entry of three new member states, two of which, the UK and Denmark, were even then the least federal-minded member states in the European Communities. There were nevertheless further attempts to revive the flagging fortunes of the Communities. A further summit in Paris in 1974 led to the formalisation of the previously informal European Council Summit meetings to provide an overriding political guide to the Communities. This, however, tended to further strengthen the intergovernmental hand of control over the Communities rather than to provoke deeper integration. The Paris Summit also, for the first time, allowed the Commission a role in the summitry, something pressed for by the new Commission President, Roy Jenkins. The Summit also made the decision that the EP should be directly elected as from 1978, although this could not take place until 1979 due to difficulties in the UK in preparing the legislation. Finally, the European Monetary System (EMS) was established in 1978, despite the collapse of the previous attempt (the EMU). The EMS proved to be stable and, with the establishment of the European Currency Unit (ECU), became the precursor to monetary union and the euro (€).
These limited successes, however, did little to counter the generally prevailing malaise that hung over the Communities and institutions. This was not helped by the attitude and activities of certain member states. When de Gaulle disappeared from the international scene in 1979, the new UK Prime Minister, Margaret Thatcher, appeared to take up the baton of intergovernmentalism and the bolstering of purely national interests. Whilst the UK may well have had a case in arguing for a more equitable budget contribution and neither Mrs Thatcher nor, indeed, anyone else has gone as far as de Gaulle in disrupting the work of the Communities, the negotiating style and public pronouncements of Thatcher were abrasive. Brexit may now take that title as will be considered in detail in Chapter 15. These budget wrangles and the sheer lack of progress generally in the Community dragged on seemingly endlessly into the mid-1980s. The stagnation and intergovernmentalism not only thwarted any moves to more integration, but also engendered a period of (p. 22) national protectionism, which itself was threatening to undermine some of the basic goals of the European Communities already achieved. Notably, the Common Market was not being completed as envisaged and, if anything, was becoming more fragmented. The situation in the 1980s was that both the stagnation of the Communities and the lack of international competitiveness of Europe in relation to American and Japanese industrial and commercial progress had been clearly recognised. It was abundantly clear and understood that reform, and indeed radical reform, of the Community and institutions was necessary.
Numerous reports and studies were conducted by the different Community institutions and additionally many external reports had been commissioned over the years that had all recommended changes. A number of areas in which improvements were required had already been identified by those reports in the lifetime of the Communities. The fact that there were so many of these speaks volumes for their (in)effectiveness in tackling the deep-rooted problems of European stagnation. However, whilst individually they did not provide a solution, collectively all of them, especially the latter ones, helped finally to establish and develop the climate for the eventual changes brought about by Treaty change and in particular by the SEA, which led in turn to the TEU (‘the Maastricht Treaty’), the Treaties of Amsterdam and Nice, and finally the 2009 Lisbon Treaty. In particular, these concerns were taken up by the new Commission President, Jacques Delors, who brought a package of reforms to the member states with the measures considered necessary for the completion of the single market. Whilst there remained opposition to any significant institutional changes recommended, especially by the UK, the single market completion was the carrot that brought the Eurosceptic governments on board, particularly the UK and Germany, as the proposals were hailed as a shining example of trade liberalisation. Although the other member states were undoubtedly also interested in the trade and economic aspects of the reforms proposed, the smaller states in particular had a greater desire to see the institutional reforms recommended. In 1985, a sufficient head of steam had built up for the member states to accept, albeit some reluctantly, that the necessary changes were ones that could effectively be undertaken only by substantively amending the founding Treaties.
1.5.6 The first Intergovernmental Conference (IGC) and the Single European Act (SEA)
An Intergovernmental Conference took place in 1985 to discuss the decision-making of the Council of Ministers, the legislative powers of the EP, the executive power of the Commission, the policy areas of the Community, and the delays before the CoJ.
This is a conference of the member states outside the Treaty and Communities (now Union) set-up, which is established to discuss and agree Treaty change.
The SEA was the product of the IGC and came into force in May 1987. The Preamble to the SEA states that it is ‘a step towards European Union’. It amended the EEC Treaty in several important respects, perhaps most importantly changing the legislative process affecting some Treaty Articles and generally extending the Community’s competence and concern in new policy areas.
The SEA was the first significant amendment of the primary Treaties. It is an important watershed in the historical development of the Communities and is not to be underestimated in its importance, although it was underestimated at the time, not only by external observers and commentators, but also by the heads of state and government who signed up to it. It is sometimes difficult to grasp its importance because it is the first of a series of package-deal changes to the Treaties that not only added new areas of competence, but also simultaneously made various institutional changes and policy amendments.
The SEA proposals that put the primary focus on market liberalisation were enthusiastically welcomed by the member states, but were linked to the institutional changes, and it is probably fair to say that the far-reaching political consequences of these were seriously downplayed by the EC (p. 23) Commission. Even its title underplays the significance of the matter: an ‘Act’ suggests something less than a new Treaty; it suggests secondary legislation rather than primary treaty material, which it is. So, in 1985, the draft SEA was put to and debated at the IGC. It was agreed by the ten member states in December 1985 and came into force in July 1987, after signature and ratification by all 12 states.
18.104.22.168 Achievements and evaluation of the SEA
Whilst the SEA had its critics and was condemned by some parties, its success lay not in what it actually changed, although there was considerable progress with the internal market; its true success lay in its longer-term influence in reinvigorating integration.
The SEA amended the EEC Treaty in several important respects, and although not massive changes in themselves, they proved to be a catalyst for further European integration. Perhaps most important was the change of the legislative process affecting ten Treaty Articles and generally the extension of the Community’s competence and concern in new policy areas. The SEA also introduced provisions that made it possible to make changes to the judicial structure in the future by supplementing the CoJ with a Court of First Instance (CFI), which was regarded as being vital to cope with the significant increases in the number of cases reaching the Court and the increased delay being caused as a result. The SEA also made formal the existence of the European Council of Heads of State and Government, which was originally established as the EPC. The SEA reintroduced and extended QMV in the Council, introduced the cooperation procedure in law-making, which provided the EP with more than just a consultative role for the first time, and increased Commission powers.
It is certainly the case that the SEA did not represent a radical shift to supranational or federal integration. In contrast to the original Treaties, the member states were the ones constructing its agenda, and not the federalist visionaries of the immediate post-war period. Also, in view of the preceding 15–20 years, which had seen a complete standstill on any such progress, it is not surprising that the changes introduced by the SEA can be regarded as modest, and even disappointing. But to view the limited, mainly intergovernmental changes brought by the SEA as a backward step on the integration road misses the point somewhat. The Preamble to the SEA states that it is ‘a step towards European Union’ and it therefore represented forward movement at a time of massive political conservatism in Europe; perhaps as important was the fact that, for the first time, the original primary Treaties had been substantively amended. Although this has happened on a number of occasions since then and thus has the appearance of being something not too difficult to achieve, at the time it was, without any doubt, a significant development. The original legal and constitutional base was shown not to be set in stone and thus for all time to come; it could be altered—and not just once, but as many times as deemed necessary. For most, if not all, of the states, especially the UK, signing up to and joining the Communities in the first place was a massive and historic commitment. Changing that original deal was not something to be taken lightly and could even be regarded as being as important as the CT, which failed to gain universal member state approval and was ultimately abandoned. The very substance of the original Treaties was being altered and, in order to amend a treaty, another treaty is needed, so despite its name the SEA is a true amending treaty agreed by the member states. Also, after a 20-year delay, it introduced real majority voting in the Council of Ministers, albeit within limited fields for clear and obvious benefits, but it allowed the member states to become comfortable with QMV and thus it prepared the ground for the future use of majority voting in other areas.
(p. 24) The success of the SEA and benefit to the Communities was also observed externally at that time as other European states on the outside of the Communities were able to witness the increase in investment from outside Europe into the EC and indeed away from their own countries. They also wished to join in this success and, initially, plans were made to accommodate them in association agreements with the European Communities and, later in an extended form of these, with the EEA. It led much more quickly than originally envisaged to the further widening of the Communities.
1.5.7 Beyond the SEA
It was realised very soon after the signing of the SEA that this was only part of the answer and it was advocated, largely by the Commission, that further institutional changes were required. As a result, even before the deadline of 1992 had passed, plans were being put forward by the Commission President Delors for further Treaty reform, especially on economic and monetary union and social policy. A further IGC was planned and was set up to debate the adoption of common monetary and fiscal policies, which were deemed necessary to cement in the gains achieved by the largely successful completion of the single market. This further proposal for integration and, again, for the IGC to debate it, were opposed by the UK. However, external political events were moving rapidly in the world. Margaret Thatcher (nicknamed ‘the Iron Lady’) was deposed by her own party as Conservative Party leader and thus as UK Prime Minister. The ‘Iron Curtain’ was also being dismantled, changing the political situation in Europe radically and leading very quickly to German reunification. The planned IGC for 1991 to discuss and provide for greater economic integration was supplemented by a parallel second IGC to consider political reform and to produce proposals for a new constitutional basis for the Communities. It was also considered necessary that political decision-making should be integrated further in order to lock in any decisions reached on monetary union; otherwise, it was feared that any gains or decisions reached for monetary and economic union would be lost if the political decisions supporting them could still be taken independently by each member state. This, in turn, would lead to a drifting apart of the economic conditions in the member states. Thus the parallel IGCs are a clear example of functionalist integration in action, in that integration in one area demands, or inevitably leads to, integration in another area in order to maintain the initial integration.
Refer to section 22.214.171.124 for explanation and further details.
The parallel IGCs commenced work in December 1990, but were subject to delays as a result of the economic problems in Europe, inflation in Germany due to the cost of unification, and the considerable political social and economic change taking place across Europe.
1.5.8 The Maastricht Treaty on European Union (TEU)
The two IGCs of the early 1990s can be regarded effectively as one, particularly because they resulted in proposals for a single amending Treaty. However, the Treaty that was drafted and eventually accepted by the member states considerably complicated the constitutional base of the Communities and Union, not only because it amended the existing Treaties and most notably the EEC Treaty, but also because it added another Treaty to complement and supplement the existing treaties and to remain in force alongside the existing Treaties. It also proved to be a huge compromise, with its opt-outs in some matters for some of the member states, such as the social policy opt-out for the UK.
(p. 25) Chief among the main changes introduced by the Treaty were the timetable and convergence criteria to move to a single economy and monetary union, complete with a single currency. It provided more political cooperation, especially in the areas of foreign policy, security, home affairs, and justice. The EEC Treaty title was changed to ‘European Community (EC)’ to represent the changes that had taken place and the huge expansion in the range of topics and policies covered by the Treaty. A new overall term—the ‘European Union (EU)’—was introduced to describe the extension by the member states into additional policies and areas of cooperation. The Union consists of three pillars comprising the existing Communities (the three original Treaties), a CFSP, and Cooperation in the fields of Justice and Home Affairs (CJHA).
A large part of the problem facing European governments trying to sell this Treaty at home was that the European public had not been taken on board during the period of negotiation. Whilst European citizenship was introduced to the EC Treaty (Articles 17 and 18 EC, now 20–21 TFEU), this status was really only given teeth later by the CoJ. There were further improvements for the EP in the law-making process, but the TEU also represented a backward step as far as progress towards deeper integration was concerned. The other two pillars, as first established, were intergovernmental in nature, with decisions having to be taken unanimously by the member states. Very little had been done to increase the democratic credentials of the Communities; the powers of the most intergovernmental body—the Council—were left largely untouched except where they were actually strengthened in respect of the two new pillars.
The TEU also led to new jargon, which was the result of the new complex shape of the Union and the difficulties in getting the Treaty ratified in all member states, and reflected the frustrations of some member states not being happy about the more reluctant states—hence the terms ‘European architecture’ to describe the new three-pillar structure and ‘variable geometry’ to describe the way in which combinations of member states might integrate deeper and certain states could opt out of certain policies. This is also described in the term ‘multi-speed Europe’. For example, the UK was able to opt out of the social policy chapter and economic and monetary union.
The Treaty did contain an expression of commitment to the rule of law and democracy, but failed to provide for any significant democratic accountability of the EU and the rule of law itself. The EP had no effective voice in the intergovernmental pillars. There was also an attempt to define the relationship between the Union and the member states by the introduction of the term ‘subsidiarity’, which was written in the new EU Treaty (Article B) and which was further defined in Article 5 EC (now 5 TEU), also discussed in Chapter 3, section 3.4.2. However, its true import was vague. It was supposed to delineate the respective powers of the Union and the member states, but instead has merely confused them, and as such is regarded as somewhat reflective of the ambivalence of the member states at the time.
The TEU was also supposed to redress the serious concerns about the democratic deficit: that the EP was the only directly elected institution, but had less law-making power than the Council. The TEU increased the power of the EP by the introduction of the co-decision procedure to a limited number of Treaty Articles. Whilst this was an important step, in the beginning it amounted to little more than a parliamentary veto and did not establish real democratic decision-making in the Communities. Furthermore, this had the effect of increasing, once again, the range and complexity of law-making procedures in the Community. It was a modest start, which has been extended considerably since.
The TEU was agreed by the member states in February 1992 and was due to come into force on 1 January 1993. However, the process was thrown into confusion on being rejected by a slim Danish (p. 26) majority in a referendum. As a result, further compromises had to be found in order to appease the Danish electorate. The Edinburgh Summit in December 1992 agreed to allow Denmark various Protocols and Declarations to opt out of participation in stage III of economic and monetary union, the single currency, and the defence arrangements of Maastricht, whilst not actually changing the Treaty itself. The Treaty finally came into force in November 1993. However, the experience of creating this Treaty was clearly an unhappy one and the European leaders promised that it would be better handled next time.
There was not much time to learn the lessons from Maastricht: the ‘next time’ was just around the corner. In 1992, mindful of the political changes in Europe, further expansion had already been contemplated by the existing member states, and the Copenhagen Summit laid down criteria that would have to be met by aspiring member states, considered in section 126.96.36.199.
Whilst politically the TEU was supposed to be an attempt to tidy up the constitutional base of the Communities, the end result was far from this. It is criticised for its complex three-pillar construction, which involved a mix of intergovernmental and supranational elements of governance. The TEU also started a trend that was continued subsequently by the attachment to the Treaties of numerous Protocols and Declarations, which help in many cases to define further some provisions of the Treaties themselves and outline the reservations and opt-outs of some member states. Justifiably, this too has been criticised for making the Union and its legal powers too opaque and splintered. Furthermore, the Union established was only an ‘ever closer one’ and not the federal union originally mooted, suggesting far greater integration than the reality agreed by the member states; hence, the end product was more intergovernmental cooperation.
1.5.9 The Amsterdam Intergovernmental Conference and Treaty
As a part of the agreement for the TEU and specified in the EU Treaty, a timetable was planned for the further revision of the Treaties by providing that another IGC be constituted in 1996 with a view to signing a further amending Treaty in Amsterdam in 1997. It was given the objectives of proposing changes to reform the institutional structure in preparation for enlargement, revising social policy, and reviewing the intergovernmental pillars, in particular the CFSP, especially in respect of the rights of the free movement of persons. However, due to the delays in ratifying the Maastricht Treaty, the agenda was increasingly hijacked by new items, foremost being the preparations required for the eastern expansion of the Union. The political landscape for the Union had changed greatly in a very short time. One of the few things upon which sufficient member states were agreed was the opening up of entry negotiations with the new democracies of Eastern Europe. Hence, the focus of attention soon shifted to further institutional reform for the next, and probably much larger, expansion of the Union. The focus thus became narrowly concentrated on the size of the Commission, the EP, QMV, and the rotation of the presidency of the Council of Ministers.
The negotiations were highly problematic. Each member state, with its own agenda to defend, did so vigorously and some member states were prepared to push their positions to the limit. The UK government even sought to reopen previous Treaties, to curb the powers of the CoJ, and to reverse some of the decisions not favoured by the UK government. Hence, in this climate, the IGC dragged on into April 1997. However, in the UK, the Labour Party won the May 1997 general election and formed a new government with fewer objections. As a result, final negotiations were soon wrapped up and the Treaty was concluded in Amsterdam in June 1997. It was signed by all (p. 27) member states at a late-night summit in October 1997 and, following a slow, but less troublesome, ratification by all member states, it entered into force on 1 May 1999.
Whilst not as dramatic as those brought about by the TEU, a number of changes were introduced in the Treaty of Amsterdam. Unfortunately, some of these have considerably complicated the structure of the Union and the Treaties.
Following the 1997 landslide Labour victory in the UK, the Protocol and Agreement on Social Policy, previously lying outside of the Treaty structure, was accepted by all 15 member states and therefore a revised and extended chapter on social policy could be contained within the EC Treaty in the then Articles 136–145. A new section on employment was introduced, which provided, as one of the first examples of a more open method of coordination, that the member states can develop cooperative ventures to combat unemployment. Whilst it retained broadly the division between the supranational EC pillar and the intergovernmental nature of the other two, part of the Justice and Home Affairs (JHA) pillar, concerned with the free movement of persons, was moved within the EC pillar, with opt-outs for the UK, Ireland, and Denmark. It was also agreed that the EU would incorporate the Schengen Agreement on the elimination of all border controls for 12 states, in a new Title IV in the EC Treaty, but not for the UK, Ireland, and Denmark, which secured a further opt-out in this area. The CoJ and the EP were also given a greater role in the JHA pillar, now renamed the Provision on Police and Judicial Cooperation in Criminal Matters.
The institutional reforms were far more modest. The proposals to extend QMV in Council were severely restricted. However, the variety of legislative procedures, which were getting out of hand, were slightly reduced and the EP’s powers were modestly increased by the moderately extended use of the co-decision procedure. The number of Commissioners was capped at 20, but subsequently amended upwards in line with the number of member states as further IGCs and enlargement reopened this issue along with other institutional matters.
The various changes were consolidated within both the EC and EU Treaties, and unhelpfully these were renumbered as a result, something that has done little to promote the clarity of Union law. Regrettably, the Treaty of Amsterdam added even more Protocols, thus making even more obscure an overall picture of EU and EC law.
The Treaty of Amsterdam, according to some, achieved very little; others regard it as a necessary consolidation of European political union, although the tangible benefits and progress are hard to discern. Additionally, the Treaty of Amsterdam seemed to throw a spanner in the works of further integration, by the replacement of further supranational integration, with the possibility of allowing some member states to cooperate further, but without all member states having to do so. It introduced into the EC Treaty Article 11, and into the TEU a section (Articles 43 et seq, now 20 TEU) on ‘closer cooperation’, which allows any number of member states that so wish to integrate in other areas. This seemed to make the fragmentation of the Communities even more possible and allow for the possibility that the body of Community law known as the acquis communautaire, which applies in all member states in the same way, could be undermined as different combinations of member states go their own way with particular policies. Thus far, this has not been taken advantage of, although a revised form of enhanced cooperation was introduced by the Lisbon Treaty (Articles 20 TEU and 326–334 TFEU), whereby, if not all member states wish to pursue a particular initiative or proposal, a minimum of nine member states can vote in the Council to agree to legislation applicable to them only. Such legislation will not be counted as part of the acquis.
See section 1.5.14.
(p. 28) The Treaty of Amsterdam, as finally agreed, proved to be far from the solution needed for preparing for enlargement, consolidating the political union and establishing a firm basis for European governance. It did little to restore public faith and confidence in the Union. As a result of the fact that Amsterdam failed to resolve the institutional reforms considered essential for the next enlargement of the EU, there was so much left over that had to be addressed before enlargement could take place that yet another IGC was deemed necessary and was called.
1.5.10 The Nice Intergovernmental Conference and Treaty
The Nice IGC was convened in February 2000 with the more tightly drawn objectives of institutional change ahead of enlargement, to deal with the so-called Amsterdam Leftovers. Whilst the preparatory negotiations were relatively short-lived, the summit in December 2000 proved to be exceedingly difficult. The member states wrangled mainly over the extension of QMV and voting weights in Council, and the conclusions reached were neither conclusive nor satisfactory, despite the various statements of success following the summit. The size of the Commission was also a contentious issue. The QMV discussions were, however, seized on by the member states to defend national positions as rigidly as possible. QMV was extended to 27 more Treaty Articles, but not in as many areas as proposed by the Commission. The discussions were also drawn out because of arguments over the combinations of country votes to get a qualified majority or a blocking minority, and even qualifications on a majority were devised defining a minimum number of states and/or a percentage (62 per cent) of population of the EU required. In particular, the three big member states, France, Germany, and the UK, were fighting, against the wishes of many of the smaller states, to retain their level of influence, and whilst agreement was reached at Nice on the voting formula, it was very much an imperfect one, and this was soon shown to be the case. The co-decision procedure was extended again for the EP, so that the cooperation procedure became even less important, applicable in only six Articles largely concerning monetary union.
The ultimate maximum size of the Commission was also postponed again, and the temporary agreements reached were put into a Protocol on the Enlargement of the EU, which detracted further from the transparency of the rules governing the Union. The Treaty of Nice was signed by the member states in February 2001, but did not enter into force until 1 February 2003 because of its rejection by a single member state once again, this time Ireland in June 2001. When the Irish government was returned to power with an increased majority, a second referendum was organised, resulting in a positive endorsement of the Treaty by the Irish electorate (c. 63 per cent in favour).
One policy that was tightened was the ‘closer cooperation’ provision introduced by the Treaty of Amsterdam, which was rather open-ended and which enables certain states to proceed to further integration outside of the Treaty (ex Article 11 EC—now Articles 20 TEU and 326–334 TFEU).
Other changes agreed at Nice was that a Charter of Fundamental Human Rights should be included within the Union, although the member states did not or could not agree whether it should formally be a part of a treaty or of the Union and it was not initially legally binding on the member states. Note though that it is now legally binding via Declaration 1 attached to the Treaties post-Lisbon Treaty.
The Nice Treaty also introduced a provision designed to do something about the situation in which there was a clear risk of a serious breach by a member state of one of the respected principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law contained in Article 6 TEU. Article 7 TEU provided that a risk of breach can be determined and (p. 29) recommendations to deal with the situation can be agreed by a four-fifths’ majority decision of the member states in Council, including suspension of voting rights of the member state where a persistent breach has been determined. Both of these Articles were carried forward with the same numbers into the amended TEU in 2009.
The Nice Summit also saw the agreement of the member states to move on to the next stage of integration, but it was to be done in a different way, the details of which were to be decided at a later summit of the member states.
1.5.11 The 2001 Laeken Summit
The Laeken Summit in December 2001 was the start of an ultimately unsuccessful attempt to put the EU on a new constitutional footing. It set up the agenda for a ‘Convention on the Future of Europe’, which was headed by a praesidium of 12 members, led by Valéry Giscard d’Estaing, a former French president. It further consisted of representatives of the heads of state and government of the 15 member states and the 13 candidate countries, 30 representatives of the national parliaments and 26 from the candidate countries, 16 members of the EP, and two members from the Commission.
It laid out in a Declaration the goals for making the EU more democratic, transparent, and efficient. In particular, attention would be paid to the governance of the Union, institutional preparations for the forthcoming expansion, the division of competences, and democratic participation in the decision-making processes of the Union.
There was to be a better definition and understanding of subsidiarity, to determine the status of the Charter of Fundamental Rights, and to simplify the Treaties and numerous Protocols and Declarations (thus finally admitting the complexity of the Treaties as they had accumulated and indeed been added to by the agreements at Nice). Other issues to be addressed included how national parliaments feed their legitimacy into the Union, and finally the Convention was charged with establishing a ‘Constitutional’ Treaty for the EU.
The Convention worked until June 2003, when it wrote up its report and a draft CT was finalised and presented to the European Council in Greece on 18 July 2003. This was subsequently considered by the IGC that commenced in October 2003 and the draft CT was presented to the Heads of State and Government Summit in Rome in December 2003, with a view to agreement and ratification prior to the forthcoming expansion of 10 new member states.
1.5.12 The Constitutional Treaty for Europe
The main features of the CT were a new President of the European Council and a Foreign Minister, a smaller Commission, the formal inclusion of the Charter of Human Rights, new simplified legislative tools, and more involvement for national parliaments in law-making. Whilst agreeing on almost everything, the member states failed to agree about the QMV numbers in the Council, with a side argument on the number of Commissioners, and the Rome Summit broke down without agreement on these points.
Subsequently, ten new member states joined on 1 May 2004 on the basis of the Nice Treaty, and this event, combined with the low turnout in the EP elections in early June 2004, refocused the attention of the member states on reaching a compromise on the voting figures, considered further in Chapter 2, section 188.8.131.52. Thus, after some delay, the CT was signed in October 2004 by all member states and handed over to each of the member states to ratify it by parliamentary approval or referendum or both, according to the constitutional or legal requirements of each state. However, in 2005, during the ratification process, the CT was rejected by the electorates of France (p. 30) and the Netherlands, which threw the ratification process into confusion. The member states agreed that there should be a period of reflection, although some states continued the ratification process, taking the total that had ratified to two-thirds.
There was a contingency plan in a Declaration (No. 30) attached to the CT, which provided that in the event that one or more countries, up to 20 per cent of the countries, did not ratify the CT, then all member states could meet in the European Council to decide how to go forward and adopt a political solution. Ratification did not go far enough for this Declaration to be invoked before the CT was abandoned.
After being put on ice for two years, the CT was considered at a further summit in June 2007 to see if it could be rescued or replaced—by which time the EU had grown to 27 members with the entry of Bulgaria and Romania at the beginning of 2007. The German presidency had the task of either making the CT more palatable or coming up with something in its place that nevertheless addressed the institutional challenges of enlargement. Following another late night of summit discussions, however, it was agreed to abandon the CT entirely and to replace it.
Even though the CT was abandoned, it is worthwhile listing the agreements reached, because most of the matters agreed found expression in the Lisbon Treaty, although slightly altered or in a more complex form. These agreements covered:
• changes to the institutional architecture of the Union and its powers, decision-making procedures, and institutions;
• the transfer of power to the EU on 15 new policy domains;
• the transfer of 40 Article bases, ranging from unanimity to qualified majority;
• making the Charter on Fundamental Rights legally binding;
• providing the EU with the status of a legal person to negotiate international agreements for all member countries;
• the establishment of a longer-serving and independent President for the European Council;
• a smaller Commission, comprising two-thirds of the number of member states;
• the creation of a common EU Foreign Minister to lead a joint foreign ministry with am-bassadors;
• QMV for the election of all high-positioned officials;
• the commencing of a project of a common EU defence;
• an express statement that Union law shall have primacy over the national law;
• procedures for adopting and reviewing the Constitution, some without the need for another IGC; and
• an exit clause for member states.
However, the most controversial change may have been including in its title the term ‘Constitution’, which was probably a mistake, as it was arguably just another Treaty.
1.5.13 The 2007 Brussels Summit and the Lisbon Treaty
The member states returned to considering the next move in Brussels in June 2007. This meant that everything was potentially up for renegotiation and some member states in particular wanted to change or amend the things that had previously been agreed at Nice and in relation to the CT. Poland in particular wanted to change the voting arrangements in Council. The German (p. 31) presidency wanted to restrict discussion to more structural aspects of the Union, to ensure that member states’ powers were retained, and to remove any symbolism in the Treaty that suggested statehood, such as the flag and anthem. The CT was then officially abandoned and an agreement was reached for a new amending treaty, originally called the ‘Reform Treaty’, to be signed in Lisbon, which would not replace the existing Treaties but would amend them. A new IGC was convened in July 2007 to hammer out the details, although many of the features agreed for the CT were incorporated into the 2007 Lisbon Reform Treaty.
The main changes can be summarised as follows.
(1) The Union was to get its legal personality, the EC Treaty to be renamed as the ‘Treaty on the Functioning of the Union’ (elegant, eh?) and the term ‘Community’ to be replaced throughout by ‘Union’.
(2) The proposed Union Minister for Foreign Affairs was to be called the ‘High Representative of the Union for Foreign Affairs and Security Policy’.
(3) The European Council was to be established as a full institution as envisaged by the CT and a European President was to be established.
(4) The names and types of secondary law ‘Regulations, Directives, and Decisions’ were to be kept, but given slightly changed definitions.
(5) The Charter on Fundamental Rights was to become legally binding, but with an opt-out for its internal application in the UK and Poland and with a similar opt-out agreed for the Czech Republic, which was negotiated later. It is to be noted though, the Charter was never intended to have internal application in member states. This is now contained in Declaration 53 attached to the Treaties.
The TEU was to be turned more into an overview Treaty, with the EC Treaty being converted into a Treaty dealing with substantive issues; both, however, were to concern the institutions.
Hence, far from consolidating the Treaty, Protocols, and Declaration, the European leaders have made the constitutional architecture of the Union even more complicated and fragmented. The Treaty was signed in Lisbon on 13 December 2007 by all 27 member states and subjected to the required ratification process by all 27 member states.
The ratification process of this Treaty was also interrupted by the rejection of the electorate of one state, because in June 2008 the Irish voters for the second time voted against an amending Treaty. Following a period of consideration and negotiation, in exchange for the agreement by Ireland to hold a second referendum, EU leaders agreed to provide legal guarantees respecting Ireland’s taxation policies, its military neutrality, and ethical issues. More controversially, they also agreed that each state should maintain one Commissioner, contrary to the Treaty itself, thus keeping one per member state. Constitutional challenges in other states such as Germany, the Czech Republic, and Poland were resolved, and the deliberate delay by the Czech and Polish presidents in completing the constitutional ratification process was overcome. The Treaty was finally ratified by all 27 states in November 2009 and entered into force on 1 December 2009.
The meaning of these posts and full institutional changes are addressed in Chapter 2, and other changes brought about by the Lisbon Treaty are considered wherever appropriate.
The Union quickly appointed its full-time European Council President and its High Representative of the Union for Foreign Affairs and Security Policy (the Foreign Minister, but referred to as the ‘High Representative’) in time for the Lisbon Treaty coming into force. It amended the EC and EU Treaties significantly.
(p. 32) 1.5.14 An overview of developments to date and the future
The institutional changes needed for the expansion of the Union in 2004 are now well established and the governance of the Union has been put on a new footing by the new Treaty set-up, albeit far less cleanly than originally planned. The prior concerns of the Union, which were the further widening and deepening of the Union, are no longer top of the agenda, having been replaced by the continuing economic and financial crisis in the world, and in the Eurozone in particular and the mass inward migration to the EU. Whilst five states are currently candidate states, they, along with the prospective candidate states, are unlikely to be accepted for many years. The further widening of the Union has already been considered in detail in this chapter, but does represent a serious challenge to the cohesion of the Union, particularly in respect of the attitudes already voiced about possible Turkish and even wider membership. Further deepening, in the form of taking integration even further forward, is also very unlikely in view of the difficulties experienced in bringing the Lisbon Treaty into force and the exit of the UK.
However, as a response to the prolonged economic and financial difficulties among southern Eurozone member states during 2008–14 (Greece in particular), a European Stability Mechanism has been established, which is essentially a bailout fund. The UK Prime Minister, David Cameron, declared that the UK would not participate, however, thus forcing the Eurozone countries (the Eurogroup of 19 following Lithuanian entry to the Eurozone on 1 January 2015) and the other eight (excluding the UK) non-Eurozone countries to conclude their own intergovernmental treaty to put in place the necessary laws. The Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG) entered into force on 1 January 2013, with the exception of the Czech Republic and the UK. It is also known as the Fiscal Compact. Only the Eurozone members have ratified all of the titles in the Treaty, but it is open to non-Eurozone member states for ad hoc participation in financial assistance operations.
The relationship of the UK with the EU, Brexit, and future developments and consequences will be explored in Chapter 15.
1.6 The EU and the world: external relations
The EU has diverse roles to play in the world order. Not surprisingly, given the more limited original political scope of the Communities, trade relations with the rest of the world feature most prominently, but not exclusively. However, because these roles and obligations in the areas of external relations have been spread over the various Treaties, an overview has been difficult to achieve. Also, the competences to undertake external relations had been granted in different terms under the three original Treaties: for example, the ECSC Treaty expressly granted the legal capacity to make external agreements generally in pursuit of the objectives of the Treaty, and the EURATOM (EAEC) Treaty also allowed for general agreements to be concluded, whereas the EC Treaty (Article 281 EC) provided that whilst the EC had been given legal personality, it was provided with powers to conclude specific types of agreement only, such as commercial agreements under the common customs tariff (Articles 131–133 EC, now 205–207 TFEU) or the association agreements. Article 300 EC (now 218 TFEU) provided an express power to conclude international agreements in areas already clearly within the competences of the EU, such as the common customs tariff, agriculture, and fisheries. However, the Council of Ministers must first give the Commission the go-ahead and the EP must finally assent to the agreement. As a result, there is a confusing array of trade agreements, association agreements, and development aid agreements with third countries that have been negotiated by the Commission under a mandate from the Council, but finally concluded by the Council on the basis of a qualified majority. With the entry into force of the Lisbon Treaty, (p. 33) the Union competences in its various relations with the rest of the world have been set out more clearly. These are introduced in Articles 3 and 8 TEU, and provided in greater detail in Articles 21–46 TEU and in a new Part Five of the TFEU, ‘External Action by the EU’, Articles 205–222, although the policies themselves will not change. In addition, Article 47 TEU also expressly conferred legal personality on the EU. External relations are now coordinated by the new High Representative of the Union for Foreign Affairs and Security Policy, who is appointed by the European Council (but is a Vice-President of the Commission) and who chairs the Foreign Affairs Council. In support of the High Representative a European External Action Service (EEAS) has been set up by Council Decision 2010/427. Its prime duty is to ensure consistency in the EU’s external action.
International agreements are also considered as a source of law in Chapter 4.
An extensive chapter on CFSP is now to be found in Articles 23–46 TEU, which also spell out in more detail the roles of the European Council and its relationship with the Council, although in view of the specialised nature of this area it is unlikely to be covered in most EU law courses. Equally, the details of the various external relations set out in Articles 205–222 TFEU will not be considered in this text.
The three-pillar organisation of the EU has now therefore been dismantled, with the JHA aspects subsumed into the supranational TFEU, and the CFSP remaining intergovernmental, but within the EU Treaty. Until their various roles are fully clarified over time, there will be some overlap in external representation by the European Council President, the High Representative, the Commission, the rotating Council presidency, and the still remaining Trade Commissioner.
The further details of this vast area of the EU’s affairs are omitted as it is unlikely to be a part of undergraduate EU studies.
The process of further integration has continued with the Lisbon Treaty, which seems for the moment to have settled the argument about whether the EU was moving towards a form of Federal Union or something less than that. At present, the EU enjoys the transfer of considerable powers from the member states, its own institutions and law-making powers, an internal market, a division of powers and competences, the supremacy of EU law, its own catalogue of fundamental rights, its own Parliament, and also some of the more symbolic external trappings of statehood, such as a currency, a flag, an anthem, and a national day, although these aspects have not now been formalised in the Treaties. Note, though, that 16 member states agreed Declaration 52 attached to the Treaties that the flag, anthem, motto, euro, and Europe Day would continue as symbols to express the community of the people in the EU and their allegiance to it. The EU has a citizenship, but no demos—that is, no coherent European population who identify themselves with an embryonic European state. It has been shown in this chapter that the path to European unity is not straight and wide, and is far from certain. It is not planned in advance, and any plans that are put in place can easily be hijacked by rapidly evolving European and world political events, such as oil price increases, world economic crises, currency collapses, the collapse of Communism in Europe, the terrorist attacks of 11 September 2001, or rejections of new Treaties by the electorate of a single member state.
(p. 34) The EU consisting of 27 states (following Brexit, but possibly as many as 33 states if all of the candidate and potential candidate states were to join) will play an ever more important role in world affairs, not just economically, but politically as well, if for no other reason than because of its economic size. It needs to adapt to do this and, internally also, it still needs to address the issues of governance and democracy, until now not properly dealt with. However, European integration was regarded from the beginning as a process and not an end in itself. The 2007 Lisbon Treaty may be regarded as both an example of further deeper integration because it represents a far more comprehensive ordering of the Union and member states, and also as a brake on further unwelcome integration because of its clearer delineation of competences. It makes matters clearer and sets discernible boundaries on the exercise of Union power. It might have been thought also that there would be no appetite for further integration, but the Eurozone financial crises have seemingly forced upon the EU the need to integrate more closely economically and fiscally. The latest challenge to European integration is one that has been forced upon it, once more from external sources, and is that of the mass inward migration of refugees and economic migrants from the troubled countries of the Middle East and Africa. It is a situation that has severely tested the frontier-free Schengen area and the EU ideal of an area of free movement.
The impact of Brexit and future potential impact on integration will be discussed in Chapter 15.
Clearly, the integration of European states into the EU remains an unfolding story and the end is not yet written; what the end is will no doubt also continue to be the subject of considerable debate.
1. What were the main concerns of the planners of the European Communities after the Second World War? Are these issues relevant to Europe today?
2. What is meant by the terms ‘integration’, ‘intergovernmental’, ‘supranational’, ‘functional integration’, and ‘federalist’?
3. What are the meanings of, and the distinction between, the EU and TFEU?
4. How far can the EU keep expanding and integrating or disintegrating?
For suggested approaches to answering these questions, visit the online resources
To test your knowledge further, try this chapter’s online self-test questions
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Europa.eu containing multiple links to other pages on the EU: in particular, for this chapter, its history.