Learning from the EU Constitutional Treaty

Ben Crum

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136582103
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The negative results of referenda on the European Union (EU) Constitutional Treaty in France and the Netherlands, and subsequent low-key adoption of the Treaty of Lisbon raise complex questions about the possible democratization of international organisations. This book provides a full analysis of the EU Constitutional Treaty process, grounded in broader political theoretical debates about democratic constitutionalisation and globalization.

As international organizations become permanent systems of governance that directly interfere in individuals' lives, it is not enough to have them legitimated by the consent of governments alone. This book presents an evaluation of the present EU Treaty of Lisbon in comparison with the original EU Constitutional Treaty, and analyses the importance of consent of the people, asking if saving the treaty came at the cost of democracy. Drawing first-hand on the European Convention and the referendum in the Netherlands, this book outlines an original political theory of democratic constitutionalisation beyond the nation-state, and argues that international organizations can be put on democratic foundations, but only by properly engaging national political structures.

Learning from the EU Constitutional Treaty will be of interest to students and scholars of European Union politics, history and policy.

1 Avoiding democratic
constitutionalization in
the European Union

The form that European cooperation has come to adopt has never been the object of popular endorsement. The reasons for this can be traced back to the very beginnings of cooperation. In fact, in general, international cooperation and its institutions tend to be excluded from popular endorsement; the assent of the national governments suffices. Yet the trajectory that European integration has followed, and the form that it has taken, go much beyond that of any other form of international cooperation. Indeed, the preconditions for this unique trajectory were already written into the founding treaties, as was the tendency for European integration to be an elite project that did not require the consent of the European peoples at large.

By now, the claim that the basic legal and institutional structure of the EU, as mostly codified by the treaties, can be properly considered a constitution in a functional sense is little contested among lawyers and scholars.¹ However, if the European Union does then have a functional constitution, this constitution certainly has not been the object of popular consent or, in other words, a process of democratic constitutionalization. Calls to re-found the European structure on a more popular basis have been ever more prevalent since European integration accelerated again in the 1980s. Still, such calls were effectively resisted until the 2001 Declaration of Laeken that set off the Constitutional Treaty process.

Notably, the tendency of European cooperation to steer clear of seeking popular consent has been widely endorsed. The prevailing response among EU scholars has indeed been to reject calls for the democratic constitutionalization of the European Union. Whatever form these arguments take, they all hinge on the claim that the Union is not a nation-state. Still, different strands of the anti-constitutionalization argument can be detected that focus on different aspects of the Union and, hence, also have different points of emphasis, even if they may serve to reinforce each other. In particular, three main trends can be distinguished that, respectively, disqualify the aspiration towards EU constitutionalization as futile, inappropriate and risky.² The argument of futility basically holds that the Union is fine as it is and hence that EU constitutionalization is superfluous. The argument of inappropriateness insists that claims for EU constitutionalization are premised on an erroneous view of the nature of the European political system and the socio-cultural context in which it is embedded. The argument about the risks of EU constitutionalization maintains that whatever the problems of European integration may be, constitutionalization is the wrong solution and risks having the perverse effect of increasing the problems.

This chapter starts with a brief historical overview that outlines how European integration has effectively steered clear of democratic constitutionalization. It then turns to the three different scholarly arguments that have been provided to justify this strategy. While, as I will seek to demonstrate, none of them is conclusive in demonstrating that the EU structures should not be the object of explicit popular endorsement, they alert us to important characteristics of the European Union that need to be considered in thinking about whether and how it can be constitutionalized. Thus, these arguments pave the way for the conception of a distinctively supranational theory of democratic constitutionalization.

1.1 The consent-less evolution of European cooperation

The origins of cooperation

In general, international cooperation is most easily accounted for by functionalist reasons: states cooperate because they see a mutual advantage in doing so (the classical reference here is Mitrany 1943). One implication of this reasoning is that any form of international cooperation will be conditional on the persistence of the mutual interest. The cooperation is dissolved once one of the partners no longer benefits from the cooperation. Further, this reasoning suggests that cooperation will vary widely in form, depth, and partners involved. Thus, in economic matters, country A may cooperate with country B and C (bilaterally or in a single integrated multilateral arrangement), while on defence matters it may make arrangements with countries D and E, and possibly on specific issues, such as defence procurement, with country E alone, or even with country F.

Functionalist considerations are not absent from European cooperation, as is most strikingly demonstrated by the decisions of certain EU member states to opt out from some forms of ‘closer cooperation’, such as the Schengen Agreement on the abolition of border controls and the common currency. However, from its very start, European cooperation has been driven by something more than mere functionalist considerations. Under the shadow of World War II, the first initiatives towards European cooperation in the 1940s and 1950s were motivated above all by the desire to ensure a lasting peace in Europe by tearing down the frontiers that separated the European people. Thus, the Ventotene Manifesto, which Altiero Spinelli and Ernesto Rossi (1941: 20–1) drafted during the war while they were political prisoners, advocated ‘a federal reorganization of Europe’ that would be premised on the ‘definitive abolition of the division of Europe into national sovereign states’. Similarly, Winston Churchill (1946: 6) argued for the need to

recreate the European Family, or as much of it as we can, and to provide it with a structure under which it can dwell in peace, in safety and in freedom. We must build a kind of United States of Europe. In this way only will hundreds of millions of toilers be able to regain the simple joys and hopes which make life worth living.

In fact, there was broad agreement among the post-war generation of political leaders that European cooperation ultimately was to serve the deeper goal of laying ‘the foundations of an ever closer union among the peoples of Europe’, as it was to be famously phased in 1957 in the preamble to the European Economic Community (EEC) Treaty of Rome. The main issue of contention concerned the strategy by which this was to be achieved (Dinan 2004: chap. 1). Spinelli and his associates in the Union of European Federalists advocated the wholehearted rejection of the system of national states in favour of a European federation. In contrast, as it emerged in the Congress of The Hague (1948), the British government that succeeded Churchill's, as well as its Scandinavian counterparts, were less keen to sacrifice national sovereignty and insisted that functional cooperation should suffice.

Between these two positions, a middle course emerged that suggested that the long-term objective of the uniting of Europe would be best attained by way of a functionalist strategy that would gradually expand over time. This line is above all associated with Jean Monnet and has found its major historical expression in the Declaration of Monnet's boss, France's foreign minister Robert Schuman, of 9 May 1950, which is taken by many as the starting signal for European integration:

Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries … The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe … this proposal will lead to the realization of the first concrete foundation of a European federation indispensable to the preservation of peace.

(Schuman 1950: 12)

Thus, the Schuman Declaration clearly set out what later become known as the ‘Monnet method’ and its distinctive mix of functionalist strategy and federalist orientation, or, as Michael Burgess (2003: 32) has called it, ‘federalism by instalments’.

Indeed, each of the three positions on how the European states were best to be locked together came to be associated with different European institutional projects. The federalist position became embodied in the draft Treaty on European (Political) Community that was drafted in 1952 and 1953 by a special body of parliamentary representatives at the request of the governments of the six member states of the European Coal and Steel Community (ECSC) (Griffiths 2000; Rittberger 2006). This draft treaty had many of the characteristics of what might be regarded a supranational constitution. Typically, its first article provided the following:

The present Treaty sets up a EUROPEAN COMMUNITY of a supra-national character. The Community is founded upon a union of peoples and States, upon respect for their personality and upon equal rights and duties for all. It shall be indissoluble. [emphasis added]

Moreover, the institutional structure it foresaw very much resembled a federation with a bicameral parliament – constituted by a People's Chamber, elected directly by the people, and a European Senate, elected through the national parliaments – and a European Executive Council that could easily be taken for a European government: it was to be responsible for the general administration of the Community, its members were to be called ‘Ministers of the European Community’, and it would be directly accountable to the two chambers of Parliament. Among the governments that had commissioned it, the draft treaty met with considerable reservations. In any case, the EPC treaty had been premised on the establishment of a European Defence Community (EDC), for which it was to serve as a political counterpart. When ratification of the EDC floundered in the French National Assembly in the summer of 1954, the EPC was quickly abandoned and the federal European project was effectively shelved.

For a long period, it looked likely that the main institutions organizing Europe's political order would rather be set up along the more reserved, ‘unionist’ line, which was advocated above all by the British and the Scandinavians. In fact, much to the dismay of those with more federalist ambitions, the Council of Europe, established in 1949 with the aim of ‘achiev[ing] a greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress’, failed to materialize into a genuine political regime. Similarly, the Organisation for European Economic Co-operation (OEEC, superseded in 1961 by the OECD), which was established in 1948 to ease the post-war economic recovery of Europe and the allocation of US ‘Marshall Plan’ funds for that purpose, also remained a strictly functional organization. As initiatives for closer European cooperation developed in the European Communities, the more ‘unionist’ countries joined together to form the European Free Trade Association (EFTA).

However, with the federalist project being sidelined in the mid-1950s and the unionist initiatives being pushed into the background (although arguably in the area of defence the unionist approach still prevails through NATO), one can say that it is the institutions associated with Monnet's project of ‘federalism by instalments’ that have prevailed: the ECSC as it was set up in accordance with the Schuman Declaration in 1951, the European Economic Community and the European Atomic Energy Community that would follow with the 1957 Treaty of Rome, and the European Union that was established with the 1991 Treaty of Maastricht.

Neo-functionalism and its limits

As this short historical review underlines, European cooperation was not fated to take the form that it took. Other blueprints for the European international order were available. Hence, the form that it came to adopt has very much been a matter of political choice and design. Furthermore, the comparison of the Monnet method with its federalist and unionist alternatives serves to highlight its distinctive character. In Jean Monnet's own words, the philosophy of the Monnet method as it informed the European Communities was characterized as follows:

We believed in starting with limited achievements, establishing de facto solidarity, from which a federation would gradually emerge. I have never believed that one fine day Europe would be created by some great political mutation, and I thought it wrong to consult the peoples of Europe about the structure of a Community of which they had no practical experience. It was another matter, however, to ensure that in their limited field the new institutions were thoroughly democratic; and in this direction there was still progress to be made … the pragmatic method we had adopted would … lead to a federation validated by the people's vote; but that federation would be the culmination of an existing economic and political reality, already put to the test … it was bringing together men and practical matters.

(Monnet, cited by Burgess 2003: 36–7)

This quotation nicely sets out the way Monnet sought to reconcile a pragmatic, functionalist strategy with the eventual objective of constructing a European federation. Moreover, it also highlights how the incremental strategy was premised on the circumvention of the people. The steps towards integration were to be legitimated only after the fact, by the mutual benefits they were expected to bring to all involved. What is more, as integration proceeded in small steps and in ‘limited fields’, it was open to easy correction.

Monnet's view was given more detailed elaboration in the neo-functionalist theory of regional integration as it was developed in the 1950s and 1960s. Neo-functionalism built on functionalism in that it assumed international cooperation to start from functional opportunities. What distinguished neo-functionalism from functionalism, however, is the claim that once international arrangements are brought into place, they can be expected to lead to ‘spill-overs’ in the form of new demands for expanding the realm of regional integration (Haas 1958: esp. 311ff.). Once entered into, regional integration sets in motion a self-perpetuating process in which the experiences with pooling political competences open up new opportunities that, when exploited by societal actors, lead again to further integration. Thus, Ernst Haas saw the European Communities as involving a particular form of political integration,

the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, whose institutions possess or demand jurisdiction over the preexisting nation-states. The end result of a process of political integration is a new political community, superimposed over the pre-existing ones.

(Haas 1958: 16)

However, even if neo-functionalism ultimately envisaged a society-wide identity shift, it appealed first of all to political elites. It was up to specialized elites to identify the benefits that international cooperation would bring and to engage in international institutions (Featherstone 1994). Given their limited scope and pragmatic orientation, these initiatives did not need to be the object of broad public choice. Public consent would only be called for after the fact, when the international institutions would already be in place and have demonstrated their concrete benefits. Indeed, as Lindberg and Scheingold (1970: 41) underlined, ‘The Community is primarily a creature of elites and even within this category the Community's immediate clientele tends to be restricted to those officials and interest group leaders who are directly affected by its work.’ Hence, little importance needed to be attached to public opinion towards European integration. All it required was a ‘permissive consensus’ among the public that, while shallow, would not form any significant obstacle to the process.

The premises of the Monnet method and of neo-functionalism were severely tested by the course of European integration in the subsequent decades. Little came of Haas's (1958: 311) anticipation that ‘spill-over may make a political community of Europe in fact even before the end of the transitional period [of twelve years towards the establishment of the Common Market as foreseen in Art. 8 EEC Treaty]’. Still, European integration moved forward, as evidenced by the adoption of new legislation, the expansion of the EC budget, and the incorporation of new members. Obviously, however, this process was much slower than the neo-functionalists, and Monnet, had expected. Also, it was anything but a steady and continuous process. In particular, the ‘empty chair crisis’ of 1965, in which the French government forced the European Commission to back down by deserting its place in the Council, appeared as strong evidence that the member governments were committed to stay in control of the process rather than to succumb to some self-perpetuating integration logic. Thus, ideological preferences aside, by the early 1970s the expectations of Monnet and of neo-functionalism were widely considered to have been refuted by the actual course of events.³

Yet from the mid-1980s onwards, the European integration process picked up again. As European member states faced ever-fiercer competition in the global marketplace, Commission president Jacques Delors set the agenda for further integration with the presentation of his White Paper on the Internal Market. The member states followed suit by extending the scope of competences on which they could act on the basis of a qualified majority voting rather than unanimity in the Single European Act (1986). The Single European Act formed a stepping-stone towards the establishment of the European Union and the introduction of European Monetary Union in the Treaty of Maastricht (1992). Further pressure to reform and to accommodate an ever-increasing number of member states gave reason for the Treaty of Amsterdam (1997) and the Treaty of Nice (2000).

Monnet's legacy

Still, neo-functionalists missed the mark in suggesting that European integration would become an automatically self-perpetuating process. Obviously, the European federation they anticipated has not come about, and even less so the shift in political loyalties on which such a new polity was to be based. Nation-states have turned out to be rather more resilient than neo-functionalists anticipated. Most of the important steps towards further integration have been firmly under the control of national governments. The timing and substance of these steps has not been driven by some internal logic of the integration process itself. Instead, they can mostly be accounted for by changes in the global environment (such as the rise of new economic competitors, the end of the Cold War, ethnic cleansing in the former Yugoslavia, 9/11), which under pressure of domestic forces have led to a convergence of interests among European governments (Moravcsik 1998; Stone Sweet and Sandholtz 1997).

Yet the curious fact remains that even if few of the predictions of neo-functionalism have been borne out by the actual development of European integration, the process still tends to be characterized as having evolved according to the ‘Monnet method’. Hence, the Monnet method and its elaboration as neo–functionalism remain of more than mere historical interest because of the way they have informed some of the key moments of European integration. While overstated and erroneous in many respects, neo-functionalism does grasp something of the distinctive quality of international cooperation in Europe that sets it apart from the intergovernmental functionalism that explains most other forms of international cooperation.

The key element that has secured the lasting relevance of the Monnet method is its incrementalism. Whatever European integration has become, it has not been created by ‘some great political mutation’. Instead, it has proceeded through limited, practical steps that were generally occasioned by concrete political challenges. This incremental character is also reflected in the structure of European cooperation. It has culminated in a distinctively complex structure in which treaties have been superimposed upon each other, in which competences have been dispersed across different sections and treaties, in which all kinds of different acts (from regulations to framework decisions)...