Institutional Challenges in Post-Constitutional Europe: Governing Change (Routledge Advances in European Politics)

Institutional Challenges in Post-Constitutional Europe

This book discusses the future of the European Union following the failure of the Constitutional and reform treaties, examining the transformations, dynamics and major issues facing present-day Europe. Discussing key questions relating to the future of the European project, this book brings together leading academics and practioners, including: Adrienne Héritier, Jan Zielonka, Yves Mény, Maurizio Cotta, Philippe Schmitter, Bruno de Witte, ECJ Advocate General Miguel Maduro and former President of the European Parliament, Pat Cox. These contributors provide provocative and innovative accounts of developments within the European Union, contrasting theoretical reflections with a more professional perspective based on first-hand experience in running European affairs. The contributions focus on three key challenges: enlargement, the end of the permissive consensus and the need for democratization of the European Union, considering questions such as: • • • •

What does Europe represent to neighbouring countries and how is it addressing their expectations? How could a larger Union be governed efficiently? Are European citizens willing to delegate responsibility to their leaders to tackle European integration? Is it accurate to accuse the European Union of a ‘democratic deficit’?

Institutional Challenges in Post-Constitutional Europe will be of interest to students and scholars of European politics, especially those with an interest in European integration/enlargement, constitutionalism and democratization. Catherine Moury is Advanced Research Fellow at CIES-ISCTE, Lisbon, Portugal, and Guest Professor at ICHEC Business School, Brussels, Belgium. Luís de Sousa is a researcher at CIES-ISCTE, Lisbon, Portugal, and Gulbenkian Fellow at the Robert Schuman Centre for Advanced Studies/European University Institute, Italy.

Routledge Advances in European Politics 1

Russian Messianism Third Rome, revolution, Communism and after Peter J.S. Duncan

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European Integration and the Postmodern Condition Governance, democracy, identity Peter van Ham

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Nationalism in Italian Politics The stories of the Northern League, 1980–2000 Damian Tambini

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International Intervention in the Balkans since 1995 Edited by Peter Siani-Davies

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Widening the European Union The politics of institutional change and reform Edited by Bernard Steunenberg Institutional Challenges in the European Union Edited by Madeleine Hosli, Adrian van Deemen and Mika Widgre´n

10 Private Sector Involvement in the Euro The power of ideas Stefan Collignon and Daniela Schwarzer 11 Europe A Nietzschean perspective Stefan Elbe 12 European Union and E-Voting Addressing the European Parliament’s internet voting challenge Edited by Alexander H. Trechsel and Fernando Mendez 13 European Union Council Presidencies A comparative perspective Edited by Ole Elgström 14 European Governance and Supranational Institutions Making states comply Jonas Tallberg 15 European Union, NATO and Russia Martin Smith and Graham Timmins

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Europe Unbound Enlarging and reshaping the boundaries of the European Union Edited by Jan Zielonka

16 Business, the State and Economic Policy The case of Italy G. Grant Amyot

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Ethnic Cleansing in the Balkans Nationalism and the destruction of tradition Cathie Carmichael

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Democracy and Enlargement in Post-Communist Europe The democratisation of the general public in fifteen Central and Eastern European countries, 1991–1998 Christian W. Haerpfer

17 Europeanization and Transnational States Comparing Nordic central governments Bengt Jacobsson, Per Lægreid and Ove K. Pedersen 18 European Union Enlargement A comparative history Edited by Wolfram Kaiser and Jürgen Elvert

19 Gibraltar British or Spanish? Peter Gold 20 Gendering Spanish Democracy Monica Threlfall, Christine Cousins and Celia Valiente 21 European Union Negotiations Processes, networks and negotiations Edited by Ole Elgström and Christer Jönsson 22 Evaluating Euro-Mediterranean Relations Stephen C. Calleya 23 The Changing Face of European Identity A seven-nation study of (supra)national attachments Edited by Richard Robyn 24 Governing Europe Discourse, governmentality and European integration William Walters and Jens Henrik Haahr

30 The Politics of European Union Enlargement Theoretical approaches Edited by Frank Schimmelfennig and Ulrich Sedelmeier 31 Europeanizing Social Democracy? The rise of the party of European socialists Simon Lightfoot 32 Conflict and Change in EU Budgetary Politics Johannes Lindner 33 Gibraltar, Identity and Empire E.G. Archer 34 Governance Stories Mark Bevir and R.A.W Rhodes 35 Britain and the Balkans 1991 until the present Carole Hodge 36 The Eastern Enlargement of the European Union John O’Brennan

25 Territory and Terror Conflicting nationalisms in the Basque country Jan Mansvelt Beck

37 Values and Principles in European Union Foreign Policy Edited by Sonia Lucarelli and Ian Manners

26 Multilateralism, German Foreign Policy and Central Europe Claus Hofhansel

38 European Union and the Making of a Wider Northern Europe Pami Aalto

27 Popular Protest in East Germany Gareth Dale

39 Democracy in the European Union Towards the emergence of a public sphere Edited by Liana Giorgi, Ingmar Von Homeyer and Wayne Parsons

28 Germany’s Foreign Policy Towards Poland and the Czech Republic Ostpolitik revisited Karl Cordell and Stefan Wolff 29 Kosovo The politics of identity and space Denisa Kostovicova

40 European Union Peacebuilding and Policing Michael Merlingen with Rasa Ostrauskaite

41 The Conservative Party and European Integration since 1945 At the heart of Europe? N.J. Crowson

48 Britain, Ireland and Northern Ireland since 1980 The totality of relationships Eamonn O’Kane

42 E-Government in Europe Re-booting the state Edited by Paul G. Nixon and Vassiliki N. Koutrakou

49 The EU and the European Security Strategy Forging a global Europe Edited by Sven Biscop and Jan Joel Andersson

43 EU Foreign and Interior Policies Cross-pillar politics and the social construction of sovereignty Stephan Stetter 44 Policy Transfer in European Union Governance Regulating the utilities Simon Bulmer, David Dolowitz, Peter Humphreys and Stephen Padgett 45 The Europeanization of National Political Parties Power and organizational adaptation Edited by Thomas Poguntke, Nicholas Aylott, Elisabeth Carter, Robert Ladrech and Kurt Richard Luther 46 Citizenship in Nordic Welfare States Dynamics of choice, duties and participation in a changing Europe Edited by Bjørn Hvinden and Håkan Johansson 47 National Parliaments within the Enlarged European Union From victims of integration to competitive actors? Edited by John O’Brennan and Tapio Raunio

50 European Security and Defence Policy An implementation perspective Edited by Michael Merlingen and . Rasa Ostrauskaite 51 Women and British Party Politics Descriptive, substantive and symbolic representation Sarah Childs 52 The Selection of Ministers in Europe Hiring and firing Edited by Keith Dowding and Patrick Dumont 53 Energy Security Europe’s new foreign policy challenge Richard Youngs 54 Institutional Challenges in Post-Constitutional Europe Governing change Edited by Catherine Moury and Luis ´ de Sousa

Institutional Challenges in Post-Constitutional Europe Governing change Edited by Catherine Moury and Luís de Sousa

First published 2009 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2009. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. © 2009 Catherine Moury and Luís de Sousa selection and editorial matter; individual contributors, their contributions All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Moury, Catherine. Institutional challenges in post-constitutional Europe : governing change / Catherine Moury and Luís de Sousa. p. cm. — (Routledge advances in European politics ; 54) Includes bibliographical references and index. [etc.] 1. European Union. 2. European Union countries—Politics and government. I. Sousa, Luís de, 1973- II. Title. JN30.M72 2009 341.242′2—dc22 2008044824 ISBN 0-203-87910-4 Master e-book ISBN ISBN10: 0–415–48526–6 (hbk) ISBN10: 0–203–87910–4 (ebk) ISBN13: 978–0–415–48526–5 (hbk) ISBN13: 978–0–203–87910–8 (ebk)

Contents

List of illustrations List of contributors Acknowledgements List of abbreviations Introduction: Insitutional choices in post-consitutional Europe – Facing challenges

ix xi xiii xv

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LUÍS DE SOUSA AND CATHERINE MOURY

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Institutional challenges and dynamics of the European Union

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PAT COX

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How to govern the enlarged European Union

23

JAN ZIELONKA

3

The rules of change in the European Union: The lost balance between rigidity and flexibility

33

BRUNO DE WITTE

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Where to look for legitimacy

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MIGUEL POIARES MADURO

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Citizenship in the European polity: Questions and explorations

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MAURIZIO COTTA AND PIERANGELO ISERNIA

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Revising some ‘modest proposals’ for making the European Union more democratic PHILIPPE C . SCHMITTER The invisible transformation of codecision: Problems of democratic legitimacy ADRIENNE HÉRITIER AND HENRY FARRELL

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Contents The ‘democratic principle’ and the European Union: The challenge of a post-national democracy

121

YVES MÉNY

Conclusions: Facing the challenges

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CATHERINE MOURY AND LUÍS DE SOUSA

Index

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List of Figures

Tables 4.1 Voting weight attributed by the Treaty of Nice compared with what the voting weight should be in terms of proportional representation 5.1 Further specification of the second citizenship dimension

52 78

Figures 5.1 The two main dimensions of citizenship 5.2 Conceptual (and causal) links between citizenship and other concepts

76 82

Contributors

Maurizio Cotta is Professor of Political Science and Director of the Centre for the Study of Political Change at the University of Siena, Italy. Pat Cox is elected President of the European Movement International and former President of the European Parliament. Luís de Sousa is a researcher at CIES-ISCTE, Lisbon, Portugal, Gulbenkian Fellow at the European University Institute, Italy, and Visiting Professor at the University of Lisbon, Portugal. Bruno de Witte is Joint Chair of European Union Law at the European University Institute, Italy. Henry Farrell is Assistant Professor of Political Science and International Affairs at Georgetown University, Washington DC, USA. Adrienne Héritier is Joint Chair of Public Policy at the European University Institute, Italy. Pierangelo Isernia is Professor of International Relations and Research Methodology at the University of Siena, Italy. Miguel Poiares Maduro is Advocate General at the European Court of Justice, Luxembourg. Yves Mény is Professor and President of the European University Institute, Italy. Catherine Moury is Advanced Research Fellow at the CIES-ISCTE, Lisbon, Portugal, and Guest Professor at ICHEC Business School, Brussels, Belgium. Philippe C. Schmitter is Professorial Fellow at the European University Institute, Italy. Jan Zielonka is Professor of European Politics at the University of Oxford and Ralf Dahrendorf Fellow at St Antony’s College.

Acknowledgements

Acknowledging the contributions of others is never an easy task because it not only makes us doubt whether those efforts have been sufficiently rewarded by the work we are about to present, but also leaves us with a constant fear of missing out that ‘important someone’ who should be thanked. The book is the result of a series of lectures by renowned scholars and former senior EU officials in the field of European affairs entitled ‘Forum Europa 2007: Governing the change in post-constitutional Europe’. The forum took place between February and October 2008 at ISCTE, Lisbon, under the auspices of the Portuguese Presidency of the EU. We are, therefore, indebted to our distinguished guest speakers for their interest and effort in helping us put together this book. We are also very grateful to the discussants of their papers, Maria Carrilho, José Pacheco Pereira, Pedro Magalhães, António Goucha Soares and, in particular, the former President of Portugal, Dr Jorge Sampaio, and the Portuguese Secretary of State for European Affairs, Manuel Lobo Antunes, for having accepted our invitation despite their busy agendas. Without their precious contributions and insights this collective work would have not been possible. A special thanks to our research assistants Patrícia Calca and José Pedro Monteiro, and to Colin Archer, who worked intensively in the editing of this book. We would also like to take this opportunity to express our gratitude to the Portuguese Foundation for Science and Technology, the Calouste Gulbenkian Foundation and the British Council for their financial support. Last but not least, we extend our appreciation to all the staff members of CIESISCTE who contributed indirectly and positively to the making of this collective work and to Lucy Dunne, Routledge’s Editorial Assistant in Politics and International Studies, for her help and support.

Abbreviations

CEE CFSP COREPER COSAC DNWS EC ECJ ECSC EEC EEU EMU EP EU EURATOM IGC IO MEP SEA TEC TEU

Central and Eastern Europe Common Foreign and Security Policy Committee of Permanent Representatives Conference of Community and European Affairs Committees of Parliaments of the European Union Democratic National Welfare State European Community European Court of Justice European Coal and Steel Community European Economic Community European Economic Union Economic and Monetary Union European Parliament European Union European Atomic Energy Community Intergovernmental Conference International Organization Member of the European Parliament Single European Act Treaty establishing the European Community Treaty of European Union

Introduction Institutional choices in post-constitutional Europe – Facing challenges Luís de Sousa and Catherine Moury 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. (Robert Schuman, 9 May 1950)

These words pronounced by Robert Schuman 59 years ago are illustrative of the development of the European Union, which has been the result of a constant process of experiment and compromises between different interests and preferences. Given this course of development, the institutional structure of the EU is, in a certain way, complex, opaque and imperfect. Thus, it is not easy to understand how the European Union functions, and even less to evaluate it from a prescriptive perspective. However, it is crucial to overcome these difficulties and reflect on how the institutional structure, rules and processes of the EU should be shaped to provide an appropriate response to the old and new challenges and how far the newly created rules (including the Lisbon Treaty) are fulfilling this role. That is what we seek to achieve in this book, which is the product of a distinguished series of lectures entitled Forum Europa 2007: Governing the change in post-constitutional Europe.1 They were delivered between February and October 2007, i.e. at a time when important decisions on the institutional and political future of Europe were on the agenda. In the title of the series (and the book), we purposefully chose an ambivalent term – ‘post-constitutional Europe’ – to limit our context of analysis and, also, to capture the tensions and multiple interpretations surrounding the institutional dynamics of the EU that emerged with the rejection of the Draft Treaty establishing a Constitution for Europe. This volume is not directed towards explaining particular aspects of the functioning of the EU, especially policy and decision-making, nor is it meant to offer or challenge macro-theories on European Integration – despite the fact that some authors are important authorities in this domain. The exercise is less theoretical, though perhaps more stimulating. We have asked important scholars in the European field to provide us with provocative and innovative accounts of the new challenges, transformations and dynamics of post-constitutional Europe. In inviting

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both well-known academics and (former) European political leaders, the intention was to contrast a more theoretical and profound reflection with a more professional perspective based on first-hand experience in running European affairs. This volume is a collection of the various contributions. We sincerely hope that they can serve as background discussions for future reflections. In this brief introduction, we will first summarize the common point of departure for any reflection on the construction of Europe – why it is difficult to think about and discuss what the appropriate institutional structure for the EU could be; we will then draw on the literature and our seminar series to describe what we believe are the main challenges that the EU is facing and, finally, present an overview of the book.

The EU: A unique institutional setting The European Union is a very complex political entity to define and classify. This ‘OPNI – non-identified political object’, as Delors once named it, using the French acronym, is something more than an international organization and something less than a state or federation. As Nugent (Nugent 2003: 465) put it, in simple terms: ‘It is the only one of its kind’. Indeed, the founding fathers of the Treaty of Rome wanted a break with the past. Their ambitious project was based on an institutional compromise between intergovernmental and supranational decision-making. The originality of this international system resides in the fact that it adapts the traditional tripartite division of powers – executive, legislative and judicial – to the desire to guarantee, simultaneously, the interests of the ‘new political entity’, the people(s) of Europe and the individual Member States. The powers of the major political bodies are consequently so intertwined that a clearcut division of the executive and legislative powers is difficult to establish. This gives an idea of the multifaceted nature of EU decision-making and an indication of the various tensions and power battles arising among the major European political institutions whenever a revision of the treaties takes place. Despite the fact that the EU is unique and hardly comparable to any other political unit that we know, it increasingly resembles a state from the viewpoint of its organization and operation and can, therefore, be considered as a political system (Hix 2005). A modern state is based on four major defining elements: a group of people with common attributes and/or history and feelings of living in a defined territory; a degree of political organization (decision-making institutions, a public administration, judicial and police enforcement apparatus, an army); the capacity to tax; and the capacity to impose itself as a sovereign power, with supreme authority internally and independent authority externally. Of all state functions, the EU only lacks the capacity to wage war and jail wrongdoers, though it still holds only limited powers in the field of taxation. However, it displays similar decision-making institutions and is built around the same principles of the mistrust of power as are found in democratic states where the rule of law prevails: it has an executive (the Commission), a deliberative body (the Council and European Parliament combined) and a judicial body (the European Court of

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Justice). The analogy is tempting, though not fully appropriate, since the EU functions differently from a state, it has different objectives and structures, and it is built upon an evolving territorial definition (the political concept of Europe has changed more times in the last 50 years than the territory of most European nations since Westphalia) and a community of peoples whose common identity and degree of allegiance to the new political unit is a matter of dispute. These differences should be taken into consideration when the institutional structure of the European Union is evaluated from a prescriptive standpoint. The European Union is also difficult to conceptualize because it is the result of a process of experiment. At the moment of the creation of the European Communities, as now, there was no consensus over the form that European cooperation should take. Monnet proposed a method acceptable to the European federalists and the inter-governmentalists. Europe was constructed on the belief that de facto solidarity would be built through incremental ‘concrete achievements’, starting with the pooling of coal and steel production from the Nation States being governed by a common ‘High Authority’. This would be the first step towards the federation of Europe and would eliminate war and bring development. Here, what kind of political system the EU should adopt was unclear and was the object of dissension. That is still the case: some Member States perceive the EU in a minimalist way, as an economic project, doing what it has always done best, that is, favouring trade in a regulated market. Others would like to see the European Union assuming important responsibilities in connection with noneconomical issues, such as the diversification of energy sources, the ageing of the workforce, environmental protection, or even the fight against international financial crime and terrorism. In fact, the EU itself has never defined what kind of political entity it is. The definition of ‘an ever closer union’ in Article 1 of the TEU and the enumeration of a few principles of governance under Article 6 is the closest we get to a political definition of Europe. Given this absence of a clear common goal, the construction of Europe has been an uneven process and is the result of constant tensions and often ambiguous compromises. As a consequence, the rules governing EU institutions are complex and incomplete. This institutional feature gives European bodies such as the Commission, the European Court of Justice and the European Parliament opportunities to change those rules to their advantage in between formal treaty changes (Farrell and Héritier 2007). Some of these informal changes have taken place independently of the Member States’ appraisal or accord (Moury 2007). Similarly, other bodies such as the European Council were set up and expanded outside the treaties and were only later incorporated into the institutional architecture of the EU (Farrell and Héritier 2003; Mattila and Lane 2001). The decision to allow some countries to ‘opt out’ of several policy areas – often called ‘flexible integration’ – complicates the European structure even more. ‘Flexible integration’ has been a part of Eurojargon since the 1970s, but it was only institutionalized in the Treaty of Amsterdam (1997). It captures the idea that the process of integration should not be held hostage to the fear or unwillingness of some to go further. A perfect example of this is the EMU. While, at first,

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proponents of this method emphasized that such differentiation should not remain a permanent feature of the Community,2 otherwise it could compromise its functioning as a whole, they eventually admitted that some structural differences will not be harmonized and some positions will not converge in the long term.3 In summary, whereas the previous Monnet method was based on common arrangements and common provisions, the flexibility methods allow different groupings of states to pursue an array of public policies through different procedural and institutional arrangements (Stubb 1996). All these characteristics show that the European Union is an extremely complex political system with no fixed representatives, no government and opposition and no hierarchy of norms – and with continuously changing rules of the game. This makes the EU difficult to define, analyse or evaluate but it does not make it less imperative to reflect upon the question: Where is Europe heading? How will and should the EU’s institutional structure evolve to meet new challenges appropriately?

New institutional challenges The topics we discuss in this section are not meant to be an exhaustive prediction of the future challenges facing Europe. We neither have nor claim such an ability to see into the future. The justification for our work is more mundane. We have selected a sample of what seems to represent the consensual concerns in the burgeoning literature and an expression of the following chapters. We would like to focus here on three challenges to the current European institutional structure which will put pressure on it and raise the need for further adaptation: enlargement, the end of the permissive consensus and the need for democratization of the European Union. These three challenges, of course, are not independent of each other but we find it useful to present them separately. Enlargement The first challenge is enlargement to the East and its impact on the nature, organization and operation of the EU. Of course, it is not the first time that the EU has been enlarged and there has certainly been a learning process that helps its institutional structure to cope with any adversities resulting from the expansion of its border, but the extent of this wave of enlargement (12 new Member States) represents an exceptional and multifaceted challenge. As Philippe Schmitter writes in his contribution to this book, this is ‘by far the most consequential and contentious matter that will have to be resolved in the Euro-polity’. Enlargement has an impact on the institutional architecture and operation of the EU and raises the need to proceed with the necessary adjustments and introduce new internal balances. The first and probably most repeated of the worries is that such a big enlargement will paralyse EU decision-making and the nature and scope of integration policies. Since the European institutional structure was originally designed for six Member States, it obviously needs to evolve. And it did to

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a large extent. However, it is not sure to what degree the recent Treaty revisions have introduced the institutional reforms needed. Are these changes appropriate and sufficient to address the challenges raised by enlargement or are they already outmoded at the point of their adoption? The initial empirical results show that European decision-making has not been hampered much by enlargement (Dehousse et al. 2006), but it is not certain that Member States will not become more assertive and an obstacle to decision-making in the long term. The second potential problem of enlargement regards the differences between the newer and older Member States, which might lead to a shift in the nature of European policies – a shift not desired by some older Member States. Not only has the number of Member States almost doubled (from 15 to 27), thus increasing the potential divergence of preferences and interests in the Union’s decisionmaking, but the differences between old and new Member States have also grown wider. We just have to think of the fact that the aggregate per capita GDP of the new Member States is only half the European average. These differences, however, may be exaggerated. As Zielonka pointed out (2004), GDP figures do not consider the shadow economy and economic growth is much higher in the new countries. In any case, if Europe is to deal properly with this structural diversity it will have to reform its decision-making procedures in such a way as to become effective without losing legitimacy. Another impact of enlargement concerns European frontiers. Enlargement is also gradually pushing the EU towards new troubled borders, including those of Russia, and this creates an important challenge to its incipient foreign policy. It also poses the question of the external dimension of Europe, that is, of those who remain outside looking in. What does Europe represent to neighboring countries and how is it addressing their expectations? Europe as a political project has always found difficulty in delimiting its borders. As the EU is potentially open to ‘any European country’ (Article 49 TEU), further enlargement (in the Balkans, at least) will probably occur in the future or at least be submitted to referendum in countries where that is obligatory for any enlargement. The large states on Europe’s borders, namely Turkey (whose negotiations have had ups and downs since they began) and Ukraine, are a hard bone for it to swallow. The European Union does not want to follow the Romans’ mistake of keeping the barbarians beyond the frontiers of the empire. Instead, it leaves options open by continuously striking partnerships and holding permanent negotiations with a view to membership. However, it is precisely the rules of membership and above all the politics that go with it that make the EU look like a fortress from outside. Whereas the Delors Commission regarded membership of the two Iberian candidates as a condition for their democratization, the following commissions saw ‘market + democracy + rule of law’ not as a product of membership but as a condition for Central and Eastern European candidates to enter the Union. Whether this formula can be a success is debatable, as until now the negative externalities of this adjustment to Europe – such as the downsizing of social provisions to keep public expenditure in pace with the convergence criteria – might have exceeded the heralded benefits (Mény et al. 1996).

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A third worry about enlargement concerns the tension between enlarging the Union and creating a ‘European Demos’ or a ‘United State of Europe’. Clearly, enlarging and having evolving frontiers would prevent the EU from becoming a pan-European state. The question is whether this is avoidable, an unavoidable misfortune or, on the contrary, desirable, as argued by Zielonka (Zielonka 2004). The Union’s capacity to enlarge without putting at risk its functionality has always been a major institutional challenge. As the Union comes closer to the geographical concept of Europe, the tensions related to the nature and scope of the project will move away from the old domestic debate between enlarging and deepening it to an international one on whether Europe should become a wider global governance project or remain a regional integration project. Indeed, the European project is becoming attractive to countries beyond Europe’s traditional geopolitical borders,4 not only as a market, but also as a form of governance and conflict resolution.5 The end of ‘permissive consensus’ and the politicization of Europe A second essential challenge to the way Europe functions is the end of the socalled ‘permissive consensus’, i.e. the end of the willingness of European citizens to delegate responsibility to their leaders to tackle European integration (Lindberg and Scheingold 1970). As Eurobarometer polls show, public support for European integration flagged throughout the 1990s and have stayed at a much lower level to this day (less than half of the citizens think that they benefit from the EU).6 Widespread opposition to the EU was also observable during the process of ratifying the Maastricht Treaty. In 1992–1993, the Danish ‘No’, the narrow French ‘Yes’,7 and the rejection of the treaty by the Conservative rebels was the first serious challenge to Europe as a political project, in a period when Europe was moving towards its full political development. Although the Danish ‘No’ vote would eventually be solved by conventional intergovernmental negotiations setting an opt-out for Denmark, the ‘damage’ was done; there was no turning back for the democratic reformist mood of the 1990s. Indeed, this opposition continued in the form of votes for anti-European parties, in the opinion polls and in the referendums subsequently held (above all the rejection in France and the Netherlands of the draft Constitutional Treaty). It was not just greater awareness or consciousness of the impact of European decisions on the daily lives of citizens that awoke public opinion, but the fact that those very same decisions were proving to reduce the capacity of national governments to deal with major social and economic developments – this despite the fact that numerous analysts believe that EU integration actually strengthens the nation state, making it more effective and strengthening the capacity of governments to tackle global and multidimensional problems which require complex coordination, regulatory and enforcement institutions, etc. (Millward 1992; Moravcsik 1998). European policy was rocking the boat of internal politics and, with this, unleashing a series of hate reactions and widespread discontent.

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Thus, with the Maastricht Treaty a new democratic challenge to Europe’s functioning and future emerged. This is what has been called the ‘politicization of Europe’ i.e. ‘the increase in polarisation of opinions, interests or values and the extent to which they are publicly advanced towards the process of policy formulation within the EU’ (De Wilde 2007: 23). Until 15 years ago, European leaders tended to ignore the role of public opinion in shaping support for or mistrust of that process, backing or rejecting political decisions, putting pressure on actors, etc. There were good reasons for keeping public opinion at bay during this political development, the first and foremost being the fact that initially the EU was not conceived as an inclusive political project, but mainly as an exclusive technocratic, elite-based, functional solution to structural and macro-economic problems. Few people were suggesting at the time that placing coal and steel under a supranational authority would unleash a process that would change the traditional way people thought about government, democracy and citizenship. For this reason, when public opinion was not completely ignored or dismissed from this process, researchers and decision-makers alike always suggested that intergovernmental bargaining, elite preferences, or the actions of organized interests at the base of European integration took place under an aura of permissive consensus, a mixture of loyalty, blind faith and apathy. Things have changed as ‘EU policy is no longer a policy domain that is distant from the everyday life of Europeans’ (Dalton and Eichenberg 1998: 250–251). Accordingly, today, it is more appropriate to speak of a constraining consensus (Hooghe and Marks 2006: 248). Indeed, current research data shows the increased salience and contentiousness of European integration over the past 15 years. European issues have become a major feature in the media and the public debate at large, in the strategies of social movements, and in the party manifestos for national elections (Imig and Tarrow 2001; Koopmans 2007; Van der Eijk and Franklin 2004). This development has important consequences for European integration, though these are not always positive (De Wilde 2007: 19). Indeed, while political elites have traditionally been more in favour of European integration than the citizens (Hooghe and Marks 2006: 249), their stand is determined, to a certain extent, by public opinion (Carrubba 2001). In other words, in a democracy, political elites cannot afford to ignore the concerns of their citizens, even if they are ill-founded, e.g. based on prejudice or a lack of appropriate information. Desperate for short-term political gains, politicians may just play ball and push ahead with the Eurosceptic discourse. Moreover, the politicization of European citizens has also influenced the creation and success of Eurosceptical parties and has created dissension between parties (Hooghe and Marks 2006: 249). With the accession of the 12 Central and Eastern European countries and the decision to endow Europe with a Constitutional Treaty, Euroscepticism has evolved. Mudde (Mudde 2003) shows that, in the new Member States, Euroscepticism is no longer a matter that just concerns a particular governmental leader or party on the fringe, but is a more diffused feeling across all parties. Moreover, the centre–periphery challenge is no longer about losing sovereignty but about not receiving the expected benefits and advantages of integration that

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had been heralded during the preparation for accession. As this author states with regard to the CEE countries, ‘the stereotypical picture of the EU has changed from a rich and democratic paradise into a meddlesome and selfish bureaucratic behemoth’ (Mudde 2003: 2). Similar arguments about the redistributive function of Europe can be heard in older Member States. The ratification of the Treaty establishing a Constitution for Europe provided another landmark occasion for citizens to express their impression that Europe was offering them less than they had hoped for. Finally, various observers see a problem in the fact that the European Union is not considered as ‘a nation’ by its citizens. Indeed, there is no strong feeling of belonging to a European demos. Scharpf (Scharpf 1999: 187) argues that the democratic deficit is largely due to the lack of a common identity and a Europewide discourse on policy. Similarly, Weiler (Weiler 1995) argued that a shared identity and common purpose are necessary for democratic institutions to function legitimately under majority rule. This absence of a European demos, however, has not been regarded as a threat to integration by all Member States. Some insisted on, and obtained, the incorporation into the Maastricht Treaty of a clause stating that the Union should respect the Member States’ national identities [Article F (1)]. This reaction revealed that these Member States saw the creation of a European identity as a potential threat to their own national identities (Höjelid 2001), despite the fact that some scholars have demonstrated that people can feel simultaneously attached to multiple identities (Cowles et al. 2001: 234; Kersbergen 1997: 11; Weiler 1999: 345). The democratization of the EU: Accountability and the rule of law The third and last of the main challenges facing the EU concerns its need for democratization. Debates on the need to democratize Europe and on how to do it have revealed a permanent tension between the two complementary but at the same time conflicting pillars upon which any democratic political system rests: a liberal constitutionalist pillar, based on the rule of law and elite compromises, which have been in place since Messina, and a democratic pillar based on popular legitimacy, which has gained greater prominence with the popular challenge to the Maastricht Treaty. One of the EU's major challenges for the future is to re-balance these two elements of the democratic process – by no means an easy task. As Mény put it, in simple terms, ‘How much is to be conceded to the democratic claim, how much reserved to the liberal creed?’ (Mény 1998: 8). Democratization and citizens’ participation in the institutional building of the European project were not in the minds of the governmental officials of the Six at Messina and this was reflected in the way the EEC's core representative institutions were formatted. Initially, the EP did not differ from the Council of Europe's parliamentary assembly in the scope of its powers and institutional design. The EP, known as ‘the Assembly’ until 1962,8 was essentially a forum composed of delegations appointed by national parliaments. The founders of the EU did not endow the EP with a central place and role in the European integration process nor were

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they concerned with the democratization of EEC institutions from the outset. The representative and decision-making institutions of the new Community were not substantially different from those of other regional and worldwide organizations. As Olivier Costa put it, ‘Il faut remarquer que son existence doit moins à la volonté de mettre en œuvre une structure démocratique supranationale, qu’à la recherche de l’efficacité et de légitimité la plus grande, et à un phénomène de mimétisme institutionnel’ ‘One should notice that the EP’s existence has less to do with the will of the founding fathers to put in place a democratic supranational structure than to their search for greater efficacy and legitimacy and as a result of a certain degree of institutional mimetism’ (Costa 2001: 19). By the early 1970s, in an attempt to address the ‘democratic deficit’ from which the Euro-polity was suffering, largely caused by the fact that citizens’ concerns remained unrepresented and only ministers could adopt Community legislation, the Council introduced the direct election of MEPs. The first European elections took place on 7 and 10 June 1979. This revolutionary step not only proved to be crucial to the internal balance between institutions, since the EP would now fight harder for its enlarged legislative powers and a significant place in the institutional triangle, but it was also the beginning of an ongoing experience of supranational representation. However, there were still several aspects of the democratic deficit that were not solved by the introduction of direct elections. First, the power of the EP is still considered as being too weak. Despite the considerable empowerment of the EP over the various Treaty revisions, decisions are still primarily made by executive actors: the Commission and the Council. This has meant a reduction in the power of national parliaments, as governments can ignore their national parliaments more easily in Brussels than at home and can be outvoted in the Council (Andersen and Burns 1996). Recent increases in the power of the EP are seen as not having sufficiently compensated for the loss of control by national parliaments (Hix 2005). Second, ‘European elections’ are not European: elections are fought on domestic rather than European issues, and parties collude to keep the issue of Europe off domestic agendas (Hix 1999; Marks et al. 2002). A third problem, which is associated with the previous one, is the fact that the EU is still considered too distant from European citizens: the institutional structure is very complicated to understand for the majority of citizens, the Commission is not elected directly by the people or the Parliament (Magnette 2001), and the Council makes decisions in secret (Hix 2005). The politicization of citizens, as described earlier, might help to tackle this problem. If citizens’ preferences on European integration become clearer and are better voiced, it makes it almost inevitable that political elites will accommodate and aggregate these preferences (De Wilde 2007; Trenz and Eder 2004). This process will consequently strengthen both the national and international channels of representative democracy (Mair 2005). Again, the externalities of politicization are controversial. Bartolini, for example, argues that European political parties do not seem to be strong or significant enough to be the gatekeepers of the politicization process. He also says that the emerging pattern of left–right politicization may link citizens’ and elite interests only if anti-EU feelings are converted into different versions of

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the integration process (Bartolini 2006). Majone, for his part, argues that the EU is essentially a ‘regulatory state’, i.e. does not engage in redistributive policies (Majone 2002). Accordingly, EU policy-making should be isolated from the standard process of majority-based democratic politics, which hinders a Pareto-efficient outcome and, therefore, undermines rather than increases the legitimacy of the EU. Finally, Moravcsik (Moravcsik 2003) goes even further and claims that there is no problem of a democratic deficit in the EU, since there is no gap between the preferences of the elected governments and the final EU policy outcomes. Democratization also goes hand in hand with the notion of citizenship (Cotta, Chapter 5 in this volume). It is built on tensions between rights and duties; between allegiance to and the challenging of power; between input legitimacy (the right to vote and to be elected) and output legitimacy (through which citizens evaluate the capacity of the political power to deliver in terms of goods, services, rules and norms). The relationship between citizens and their institutions is not only about identity (in relation to a given political community) or political involvement (voting, membership of parties, campaigning, etc.), but also about ethical standards, which underpin democratic governance. It is not just the capacity of institutions to deliver that is at stake, but how they deliver and on the basis of what standards. In response to this broader definition of democratization, the EU sought to reduce the distance between itself and its citizens by introducing the concept of ‘European citizenship’ into the 1992 Maastricht Treaty and establishing the office of a European Ombudsman in 1995. These two democratic moves were more symbolic than groundbreaking for the democratization of the Union, since the ECJ had, on various occasions, played the role of the guarantor of the provisions on freedom of movement and non-discrimination stipulated by the 1957 Treaty of Rome. However, certain political rights were added (in the amended TEC), aimed at increasing the levels of accountability (vertical and horizontal) and transparency in the EU: the right to vote and stand in local and European elections in any Member State; the right to seek protection in the diplomatic representation of other Member States when in a non-EU country; the right to be given access to documents from the EU’s political institutions; and the right to petition the EP and appeal to the European Ombudsman. As pointed out by Mény (Chapter 8 in this volume) another central point of democratization, which has sometimes been neglected by scholars studying democracy in the EU, is the rule of law. At the outset, the founders of the European Communities created a European Court of Justice, whose case law has primacy over national case law and whose contribution to the ‘institutionalization of Europe’ has been substantial (Stone Sweet et al. 2001). However, we have also observed the parallel development of soft law, such as informal rules and actors. These have several advantages: they lower contracting costs, are flexible, simple and speedy, and allow incrementalism. Nevertheless, they also have a price for democracy, as they reduce the transparency of the European decision-making process, bypass the normal systems of accountability, and undermine EU legitimacy by creating expectations without producing real change (see Trubek et al. 2006 for a review). Finally, it is worth noting that enlargement further complicates democratization. Indeed, enlargement could harm democracy by moving governance even further

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away from the citizens (more citizens means fewer opportunities for participation and influence). This view, however, is not consensual. Zielonka, for example, counterargues that enlargement also gives the Union a unique opportunity to make its Member States less vulnerable to outside pressures such as globalization or superpower politics and, hence, strengthens their domestic democracies (Zielonka 2004).

Other challenges The list of challenges mentioned above is not exhaustive, but we wanted to focus on those which have a direct impact on European institutional rules. We are aware that there are other challenges with important indirect repercussions on European institutions, including: globalization, environmental pollution, energy, migration and terrorism. A suitable response to these transnational problems is not only to adopt suitable policies, but also to adjust institutional change to tackle policy efficiency at an appropriate speed. To conclude, meeting the challenges described above implies choices, and choosing means renouncing other options. Enlarging the European Union might foster economic exchanges, bring peace and strengthen the international role of the EU, but it might also hinder EU governance. Increasing the use of qualified majority voting enables the decision-making to respond to common problems more efficiently, but it also means surrendering sovereignty and accepting that the EU might take decisions unfavourable to one’s interests. Conversely, keeping unanimity voting in sensitive areas might empower one single country to block a policy which is beneficial to the rest. Increasing democracy might hinder the adoption of quick decision-making. Strengthening formal rules and the rule of law might limit the EU’s capacity to evolve. Building a European citizenship might weaken the nation state to the extent that powerful and autonomy-seeking regions might want to secede. These tensions and balances9 have shaped our way of conceptualizing and interpreting the construction of Europe. When we think about and discuss the EU it is common to refer to the conflicts and balances between integrationist institutions and the intergovernmental ones; the tension between the formality and informality (custom, development beyond the treaties) of the actors and procedures in terms of EU decision-making (actors and procedures); and the tensions and balances between sources of legitimization (peoples versus states), and between the widening and deepening processes. There are no fixed equilibria but, rather, pendulum movements, to use Helen Wallace’s expression (2000), which means progress in one direction, regression in another.

Overview of the book In this volume, we will try to address these hard choices that the EU has to make and these tensions that it has to face, by proposing guiding principles for these choices, discussing their implications and the obstacles these solutions face before being adopted, and discussing whether the new Treaty of Lisbon responds adequately to these. In Chapter 1, Pat Cox gives an insider’s view of the institutional challenges facing the EU in the field of foreign policy. He addresses the main institutional

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challenge regarding this policy, which is the difficulty of speaking with a single European voice on foreign affairs. In Chapter 2, Jan Zielonka examines the impact of enlargement on European governance, recommending softer and more flexible and decentralized modes of governance. Bruno de Witte also addresses enlargement, in Chapter 3, and addresses the problem posed by excessive rigidity in the treaties, in the context of an enlarged European Union. In Chapter 4, Miguel Maduro discusses the paradoxes of European constitutionalism and identifies the criteria necessary to make good institutional choices. In Chapter 5, Maurizio Cotta and Pierangelo Isernia discuss the hypothetical existence of a European citizenship. The three following chapters address the democratic issue. In Chapter 6, Philippe Schmitter proposes certain reforms that could make the EU more democratic. Adrienne Héritier and Henry Farrell, in Chapter 7, illustrate the development of informal rules in the EU (especially the codecision procedure) and show how these rules might have a dangerous effect on democracy. Yves Mény, in Chapter 8, discusses the challenges of a post-national democracy. A closing chapter brings this work to a conclusion.

Notes 1 The event benefited from the support of the Portuguese Foundation for Science and Technology and the British Council; it is also part of a project funded by the Gulbenkian Foundation (Estímulo à Investigação). 2 As proposed by the German Chancellor, Willy Brandt, in 1974. 3 As proposed by the Belgian Prime Minister, Leo Tindemans, in 1976. 4 On one occasion, Philippe Schmitter suggested transforming the EU into a global governance project, offering membership beyond Europe, with a subsequent process of refoundation of the EU core. 5 ‘The Kurds certainly also support the country’s EU prospects, because they associate economic prosperity with the EU. Moreover, they also associate the EU with the fact that their cultural rights will be recognised and, more important even now, they will no longer be repressed in a democratic state governed by the rule of law.’ (Ali Yurttagül 2005: 26) 6 With some yearly fluctuations. All figures available in Hix 2005: 150–151. 7 A referendum was also held in Ireland, where 70 per cent of the vote was in favour. 8 With the 1986 Single European Act the name ‘European Parliament’ finally became official. 9 The notion of balances has been at the heart of the institutional design of this IO from the outset. This is not a specificity of this IO; others, such as the International Labour Organization and the United Nations, have sought similar balances between different legitimating forces and interests. Even the bodies which have emanated from the EU have kept this principle in mind.

References Andersen, S.S. and Burns, R.R. (1996) ‘The European Union and the Erosion of Parliamentary Democracy: A Study of Post-Parliamentary Governance’, in S.S. Andersen and A.K. Eliassen (eds) The European Union: How Democratic Is It?, London: Sage, pp. 226–251.

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Bartolini, S. (2006) ‘Politics: The Right or the Wrong Sort of Medicine for the EU?’, Notre Europe, Etudes et Recherches, Policy Paper 19, www.notre-europe.eu/uploads/tx_publication/Policypaper19-en.pdf Carrubba, C.J. (2001) ‘The Electoral Connection in European Union Politics’, The Journal of Politics, 63(1): 141–158. Costa, O. (2001) Le Parlement européen, assemblée délibérante, Brussels: Institute for European Studies. Cowles, M.G., Caporaso J. and Risse, T. (eds) (2001) Transforming Europe. Europeanization and Domestic Change, Ithaca, NY: Cornell University Press. Dalton, R.J. and Eichenberg, R.C. (1998) ‘Citizen Support for Policy Integration’, in W. Sandholtz and A. Stone Sweet (eds) European Integration and Supranational Governance, Oxford: Oxford University Press. De Wilde, P. (2007) ‘Politicisation of European Integration: Bringing the Process into Focus’, Arena Working Paper 18, Centre for European Studies, University of Oslo. Dehousse, R., Deloche-Gaudez F. and Duhamel, O. (2006) Comment l’Europe s’adapte?, Paris: Presse Universitaire de Sciences Po. Farrell, H. and Héritier, A. (2003) ‘Continuous Constitution-Building in Europe: CoDecision and Informal and Formal Institutions’, Governance, (16)4: 577–600. ——. (2007) ‘Introduction: Contested Competences in the European Union’, West European Politics (Special issue on ‘Contested Competences in Europe: Incomplete Contracts and Interstitial Institutional Change’), 30(2): 227–244. Hix, S. (1999) ‘Dimensions and Alignments in European Union Politics’, European Journal of Political Research, 35: 69–109. —— (2005) The Political System of the European Union, London: Macmillan. Höjelid, S. (2001) ‘European Integration and the Idea of European Identity: Obstacles and Possibilites’, ECPR Joint Sessions Grenoble 2001, Workshop 19: Identity Politics. Hooghe, L. and Marks, G. (2006) ‘Europe’s Blues: Theoretical Soul-Searching after the Rejection of the European Constitution’, PS: Political Science and Politics, 39: 247–250. Imig, D. and Tarrow, S. (eds) (2001) Contentious Europeans. Protest and Politics in an Emerging Polity, Lanham, MD: Rowman and Littlefield. Kersbergen, K.V. (1997) ‘Double Allegiance in European Integration: Publics, NationStates, and Social Policy’, Working Paper 97/15, European University Institute, Florence. Available online: www.iue.it/RSCAS/WP-Texts/97_15.html Koopmans, R. (2007) ‘Who Inhabits the European Public Sphere? Winners and Losers, Supporters and Opponents in Europeanised Political Debates’, European Journal of Political Research, 26(2): 183–210. Lindberg, L.N. and Scheingold, S.A. (1970) Europe’s Would-Be Polity: Patterns of Change in the European Community, Englewood Cliffs, NJ: Prentice Hall. Magnette, P. (2001) ‘Appointing and Censuring the European Commission: The Adaptation of Parliamentary Institutions to the Community Context’, European Law Journal, 7(3): 292–310. Mair, P. (2005) ‘Popular Democracy and the European Union Polity’, European Governance Papers, No. C-05-03, EUROGOV. Available online at www.connex-network.org/ eurogov/pdf/egp-connex-C-05-03.pfd Majone, G. (2002) ‘The European Commission: The Limits of Centralization and the Perils of Parliamentarization’, Governance, 15(3): 375–392. Marks, G., Wilson, C.J. and Ray L. (2002) ‘National Political Parties and European Integration’, American Journal of Political Science, 46(3): 585–594. Mattila, M. and Lane, J.-E. (2001) ‘Why Unanimity in the Council? A Roll Call Analysis of Council Voting’, European Union Politics 2: 31–52.

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Mény, Y. (1998) ‘The People, the Elites and the Populist Challenge’, Jean Monnet Chair Papers, 47, EUI/RCS. Mény, Y., Muller, P. and Quermonne, J.-L. (1996) Adjusting to Europe: The impact of the European Union on national institutions and policies, London: Routledge. Millward, A. S. (1992) The European Rescue of the Nation State, London: Routledge. Moravcsik, A. (1998) The Choice for Europe: Social Purpose and State Power from Messina to Maastricht, Ithaca, NY: Cornell University Press. —— (2003) ‘Le mythe du déficit démocratique européen’, Raisons Politiques, May–June: 1–14. Moury, C. (2007) ‘Explaining the EP’s Right to Appoint and Invest the European Commission: Interstitial Institutional Change’, West European Politics (Special issue on ‘Contested Competences in Europe: Incomplete Contracts and Interstitial Institutional Change’), 30(2): 367–392. Mudde, C. (2003) ‘EU Accession and a New Populist Center-Periphery: Cleavage in Central and Eastern Europe’ Working Paper No. 62, Center for European Studies, Central and Eastern Europe, University of Antwerp. Available online: at www.ces.fas.harvard.edu/ publications/docs/pdfs/Mudde.pdf (accessed 27 December 2007) Nugent, N. (2003) The Government and Politics of the European Union, Durham, NC: Duke University Press. Scharpf, F.W. (1999) Governing in Europe. Effective and Democratic?, Oxford: Oxford University Press. Stone Sweet, A., Fligstein, N. and Sandholtz, W. (2001) ‘The Institutionalization of European Space’ in A. Stone Sweet, N. Fligstein and W. Sandholtz (eds) The Institutionalization of Europe, Oxford: Oxford University Press. Stubb, A. (1996) ‘A Categorisation of Differentiated Integration’, Journal of Common Market Studies, 34(2): 283–295. Trenz, H.-J. and Eder, K. (2004) ‘The Democratizing Dynamics of a European Public Sphere: Towards a Theory of Democratic Functionalism’, European Journal of Social Theory, 7(1): 5–25. Trubek, D.M., Cottrell, P. and Nance, M. (2006) ‘Hard Law, Soft Law, and European Integration: Toward a Theory of Hybridity’ in J. Scott and G. de Búrca (eds) Law and New Governance in the EU and the US, Oxford: Hart Publishing. Van der Eijk, C. and Franklin, M.N. (2004) ‘Potential for Contestation on European Matters at National Elections in Europe’ in G. Marks and M.R. Steenbergen (eds) European Integration and Political Conflict, New York: Cambridge University Press. Wallace, H. (2000) ‘The Policy Process: A Moving Pendulum’ in H. Wallace and W. Wallace (eds) Policy–Making in the European Union, 4th edition, Oxford: Oxford University Press, pp. 39–64. Weiler, J.H.H. (1995) ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’, European Law Journal 1: 219–258. —— (1999) The Constitution of Europe. ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration, Cambridge: Cambridge University Press. Yurttagül, A. (2005) ‘The Significance of the European Union for Turkey’ in Heinrich Böll Foundation (ed.) On the Outside Looking In: Perceptions of European Foreign and Security Policy in Neighbouring Countries. Brussels: Heinrich Böll Foundation EU Regional Office Brussels, pp. 25–28. Zielonka, Y. (2004) ‘Challenges of EU enlargement’, Journal of Democracy, 15(1): 22–35.

1

Institutional challenges and dynamics of the European Union Pat Cox

The dynamics of widening and deepening through successive enlargements and Treaties have combined to give the EU27 an impressive global capacity and weight. The European Union has a population base of close to 500 million which, though ageing, represents the third largest in the world after China and India and is twice as large as that of the United States. It is the world’s richest single market. It has established the single currency, the euro, the world’s second most important reserve currency. Collectively it is the world’s largest trader in terms of share of global trade and has a broadly equivalent share of global GDP. It carries real weight in global trade negotiations and standard-setting. The EU27’s leadership on the North/South Partnership, the Millennium Development Goals, climate change and global warming, its leading role as the world’s largest donor community of untied non-military aid and humanitarian food aid and its increasing commitment to global crisis management and conflict resolution attest to a growing capacity and willingness to act in global terms. Such actions are grounded in a belief in effective multilateralism. Generally the EU’s bilateral and multilateral relations are conducted through mutually binding pacts and agreements rather than à la carte. The Union was central to the establishment of the International Criminal Court as an extension of the concept of the rule of law internationally. Fifteen years ago the implosion of the former Yugoslavia cruelly exposed the extent of the gap between European Union foreign policy aspirations and its capacity to act. Today the EU is the lead actor and a force for stability in the region through a series of security networks, both civil and military, first in conjunction with the United Nations and NATO and then on its own account. The prospect of eventual EU membership for the states of the Western Balkans offers a framework for regional stability, though, as the question of the status of Kosovo illustrates, matters remain far from settled. This is the soft power of the EU in action. It has been derided by neo-conservative US commentators and was famously caricatured by Robert Kagan as ‘Americans are from Mars and Europeans are from Venus’. Yet the hard power intervention in Iraq of a US led ‘coalition of the willing’ teaches caution about the presumed superiority of hard power force projection, which has arguably contributed to destabilizing rather than democratizing the wider Middle East. The scholar Joseph Nye has defined soft power as ‘the ability to get what you want by attracting and persuading others to adopt your goals’ (Nye 2003: 6). This

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has been a characteristic of EU foreign policy. The fifth enlargement of the European Union bears testimony to its transformative powers. Meanwhile the many states who wish to join the Union or groups of states who aspire to similar regional organizations confirm the EU’s ongoing dynamic as a beacon of hope. While recognizing this hope one must also acknowledge anxieties. In terms of our values and interests Europeans are disturbed in the international context by the scale of the development gap between rich and poor nations, by the scale of its associated poverty, famine and disease, by the extent of poor governance, by failed states, by unsettled conflicts, by the widespread absence of respect for fundamental rights, by the rise in terrorism, intolerance and fundamentalism and by the drift towards unilateralism. Our Member States increasingly sense a shared vulnerability in the face of new security risks from energy supply to weapons of mass destruction and on to international terrorism, crime and trafficking. This is beginning to strengthen the resolve of Europeans to act together. In terms of time and distance, ours is a shrinking globalized world. This phenomenon and its associated pace of change are here to stay. Europeans today are challenged by globalization, by population ageing, by raw material competition, by resource scarcity, by climate change and by new security risks. We live on a planet of increasingly interdependent elements. In the second half of the twentieth century Europeans designed the most sophisticated institutions ever to foster intelligent interdependence between sovereign states. For tomorrow’s world this surely has to be a cause for hope. In essence, if the European project did not already exist it would make sense to invent it today. This is so in the context of what will be a relentless relative decline for Europe and the West in the twenty-first century. This process of relative decline will challenge our collective EU capacities but it would certainly dwarf us as Europeans if our only capacity to respond was predicated on nineteenth-century concepts of national sovereignty. While this thought may offer some comfort we would be wrong to lapse into complacency. The Treaty of Lisbon reverted to the more modest title of ‘treaty’. The Minister for Foreign Affairs returns to being the High Representative, the primacy of the European Court of Justice in interpreting disputed EU law continues but is not explicitly referred to. The flag and the anthem ‘Ode to Joy’ continue in use but are not included as symbols expressly referred to in the new Treaty. Symbolically, since they stand for something, weakening these symbols is an important step back from the tone of the blocked Constitutional Treaty. In practice, such changes are less significant as regards real content. Perhaps it is simply a case of, as the French say, ‘reculer pour mieux sauter’, to step backwards to leap further forward. In this chapter, I propose to explore the complexity of the challenges we face together in this policy field where the European Union is increasingly capable and ambitious but where, due to sovereignty sensitivity, policy remains firmly embedded at Member State level. The institutional framework for foreign policy is essentially already in place. The Commission and Council are both involved. The General Secretary of the Council is also the High Representative for the Common Foreign and Security

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Policy. Javier Solana has performed this role with distinction since 1999, as the only holder of that office so far, and has given the Union visibility and continuity on the international stage. He is supported by a small military committee and a military committee of the general chiefs of staff of the Member States. The Political and Security Committee, which is a standing committee of representatives of Member States, has a key role in defining crisis deployments and supervising their execution. The European Defence Agency has been established to coordinate priorities for defence and armaments more effectively. In December 2003, respecting international law and reflecting a collective commitment to effective multilateralism, the European Union adopted a European Security Strategy. Building on this, the Treaty of Lisbon proposes enhancements to establish the office of a foreign minister who would be a vice president of the Commission and the permanent chair of the General Affairs Council, which is composed of the Member State foreign ministers. This office would be supported by a European External Service which, with Member State assistance, would be the diplomatic representation of the EU and its foreign minister. The Treaty proposes a power to define and implement a Common Foreign and Security Policy, which includes the following paragraph: ‘The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides.’ In the Treaty of Lisbon all key decisions would still be subject to unanimity at Council. Only after actions were unanimously agreed would qualified majority voting prevail. The foreign policy would be charged to the EU’s general budget with the exception of all military and defence expenditure, which would be paid for by Member States. There would be no dispute resolution or interpretative role for the European Court of Justice regarding the CFSP. In short, ‘speaking with one voice’ would be complex. In a somewhat typically European compromise it would exist in a permanent state of ‘inbetweenness’, neither fully European nor fully driven by the Member States alone. As can be seen the highest statement of ambition which is manifested in the Treaty of Lisbon falls well short of the popular confusion between the phrase ‘speaking with one voice’ and having a single European foreign policy, which is neither envisaged nor imminent. The phrase common foreign policy reflects the delicate balance between the continued exercise of state sovereignty to pursue national bilateral and multilateral interests and a slowly evolving willingness to do more together as Europeans on the basis of a shared analysis of challenges, interests, preferences and anticipated outcomes. This leads to my hypothesis that greater unity in the delivery of EU foreign policy will remain more dependent on the unity and effectiveness of member governments than on Treaty changes and reforms in Brussels as such. One does not dispute the need for Treaty change but it should be regarded more as a necessary than as a sufficient condition for true progress. The policy challenge in dynamic terms is to discover, explore and express new harmonies and mutualization in common foreign policy formulation and delivery while understanding the realities of the differentiated interests and preferences of Member States, in particular the

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larger ones. To this must be added the constraints imposed by intergovernmentalism as the method of decision-making. It is to these issues that this chapter will turn. The Union must act with more unity of purpose and visibility if it is to contribute its full potential as a global actor relative to its size, capacity and values; furthermore we contend that for its dedication to effective multilateralism, respectful of the United Nations, to prevail, the Union must commit itself to a deeper and more substantial international engagement. We support the revision of the Treaties to facilitate the necessary coherence at EU level. In the Lisbon Treaty, the foreign policy space remains essentially intergovernmental in character. Where common actions or policies emerge they are subject in the first instance to the rule of unanimity at Council, as are all matters pertaining to military and defence questions, which remain dependent on Member State budgets. Foreign policy remains very sovereignty sensitive and therefore Member State centric. Consequently it also remains decidedly intergovernmental in method. The intergovernmental method tends to favuor the reconciliation of national interests over the search for the common European interest. This concept of the common interest mediated through the Community Method of decision-making was at the heart of the innovative originality of the Treaty of Rome. One fears that the more intergovernmental the method the more probable will be the prospect of policy-making at the level of the lowest common denominator rather than the highest common interest. This risks a serious mismatch between the expectations of public opinion and what is actually delivered. In polls, public opinion has consistently shown itself to be in favour of more Europe in foreign policy terms. What the public appears to want is more Europe especially in the conduct of foreign affairs. What it risks getting is a higher profile non-Europe. It would be higher profile because of the enhanced foreign policy visibility envisaged by the Lisbon Treaty. It would be a non-Europe to the extent that the governance process would remain firmly grounded in intergovernmentalism, and be subject to unanimity and the consequences of Member State bilateral policy preferences. This is not to argue that the Union’s ambition should not be high but policy is easier stated than delivered. This is especially so where the governance responsibilities are shared in a complex way between the Union and its Member States. It might be instructive to reflect on the economic reform policy agenda agreed during the Portuguese Presidency in 2000. It is now known, though not necessarily officially acknowledged, that the Lisbon Agenda set inflated objectives, underestimated the complexity and inertia confronting their realization and simultaneously overestimated the relationship between policy-makers’ consensus on targets and their consensus on delivery. It exposed the weakness in a system of governance that agrees centralized objectives but depends on decentralized instruments and political will at Member State level for their achievement. This was elegantly summarized in the Kok Report as a delivery gap at risk of becoming a credibility gap, already several months before the French and Dutch referendums. The recent revolutionary targets agreed on energy and climate change deserve a better fate but risk a similar outcome if the Union fails to get its act

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together. Arguably, the instruments of economic policy in the EU are better developed than those for foreign policy. Yet the intergovernmentalist nature of the instruments to achieve the goals of the Lisbon Agenda are a stark reminder of the need to avoid utopian assumptions on what can realistically be delivered by such policy procedures. This leads to another consideration. Perhaps the greatest threat to a coherent exercise of European Union power is the determined and robust expression of national interests and preferences in the bilateral relations of its Member States, particularly the larger states. Frequently the latter conflate their national interests with those of the wider Union. They often wonder why their European partners, in the absence of prior consultation and engagement, should express anxieties or sometimes even objections to the policy choices made. The robust pursuit of national interests with external powers on a bilateral basis has the effect of diminishing the potential standing of the European Union with those same powers. Since actions speak louder than words, apparent European coherence contained in lofty resolutions or policy declarations is easily punctured by the exercise of vigorous bilateral preference. Divide and rule is an old imperial practice whose potency is no less true today than before. When Russia or the United States or other powers can find inside the EU those who would prefer bilateral comfort to collective EU coherence they are gifted immediately with the means to diminish, bypass or, at the limit, even ignore the statement and pursuit of EU preferences. It may be instructive to illustrate this hypothesis by way of concrete examples, the better to show the complex dynamics involved. Consider the case of EU–Russia relations. There is no escaping the need for an EU–Russia strategic partnership. As a neighbour Russia is the largest country in the world, encompassing 11 time zones and more than 100 nationalities. It has the ninth largest population in the world at 142 million and occupies a similar position in world economic rankings. It is an energy superpower. The EU accounts for 52 per cent of Russia’s foreign trade and, as its largest investor, over 60 per cent of Russian foreign direct investment. Russia is the EU’s third largest trading partner after the USA and China. It supplies 20 per cent of the EU’s oil and 40 per cent of its natural gas. The EU and Russia agreed the four Common Space Road Maps for the development of relations in May 2005, covering an economic space, a freedom, security and justice space, a common space on external security and a research, education and culture space. Politically President Putin’s administration has marked its era internally by reestablishing a dominant political centre, by stifling political opposition, by cracking down on media freedom and non-governmental organizations, by taming the influence of the oligarchs through the imprisonment of Mikhail Khodorkovsky and the break up of Yukos and by renationalizing energy resources. Externally, Russia has engineered a pathway to self re-empowerment through an aggressive policy of resource nationalism that favours the state controlled energy giants Gazprom and Rosneft and their squeezing out of foreign firms from the Russian energy market. In addition, that policy puts pressure on its neighbours in a postimperial replay of the politics of the near abroad and increasingly ties up EU and other players’ energy supply options in deals such as the recent gas deal with

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Turkmenistan and Kazakhstan. This is the power–political context in which EU–Russia relations must evolve. It is also the context in which Germany under Chancellor Schroeder, sovereign, energy dependent and free to do so, struck its gas pipeline deal with Russia. Gazprom will own 51 per cent of the Baltic pipeline linking Russia to Germany while Germany’s EON and BASF will each control 24.5 per cent. To reassure Germany’s EU neighbours the Chancellor explained that the project was not directed against anybody, before proceeding at the end of his mandate to become chairman of the shareholders’ committee. Germany is entitled to pursue its interests. The former Chancellor clearly arrived at the same conclusion as regards his personal interests. President Putin, who needs no lessons in power politics, and others are entitled to draw their conclusion as to what this means for the development of effective EU policy in this most sensitive of sectors. Frankly his near-contempt for EU pretensions and concerns is tangible. Recalling the biblical parable of the sower and the seeds we can observe that as we sow bilaterally so we shall reap collectively. The impact within the EU was to deeply unsettle new Member States from Central and Eastern Europe, especially Poland and the Baltic States. The creeping intensity of the Russian politics of the near abroad is especially tough on our new Member States, not least the three small Baltic States. Harassment of diplomats in Moscow, violent disturbances in Tallinn, economic pressure on transit and transport links and systematic cyber-attacks are not acceptable behaviour. The Russian authorities must be told so in the clearest terms. These states deserve and are entitled to the European Union’s full and unequivocal solidarity. They are entitled to exercise their long-awaited and hard-earned sovereignty. They are entitled to lay claim to their own historic memory, free from Russian revisionism and the pressures of post-Soviet Russian nationalism. The vexed question of Polish meat exports to Russia is a further case in point of the politics of the near abroad. The diplomatic language of a readiness to cooperate more closely could not hide the frosty exchanges at the EU–Russia summit of 19 May 2007. Chancellor Merkel and President Barroso took a clear stand in emphasizing EU solidarity with its new Member States, pointing out that a problem for any one of them is a problem for the EU27. These tensions are exacerbated by differences over the future of Kosovo, concerns about Chechen human rights, the murder of the journalist Anna Politkovskaya, and the death in London of Andrei Litvinenko, poisoned by radioactive polonium-210 – which led to an extradition dispute between the British Crown Prosecution Service and Russia. For its part, Russia vehemently contests the location of the US missile defence system in Poland and an associated radar base in the Czech Republic. In this instance, in the exercise of their sovereignty, both states have entered into bilateral engagements with the United States without previously consulting their EU counterparts. Again, this illustrates the vulnerability of an embryonic Common European Foreign Policy to the vigorous exercise of national preference. Russia feels that its legitimate interests have been ignored and threatens responses reminiscent of the Cold War. While such responses are not calculated to provoke wider EU sympathy, there is understanding for Russian concerns.

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Clearly the EU needs to spend longer getting to grips with its own new internal realities following the fifth enlargement. We need to develop a better appreciation of the vision, capacity, interests, preferences, political will and choices of each other, of new and old Member States, of large and small Member States, and of richer and poorer Member States. This is in order to more fully align our possibilities to reflect these diversities accurately and wisely in the formulation of successful and sustainable foreign policy positions. The 2007 Portuguese Presidency hosted an EU–African Union Summit. This showcased the EU Strategy for Africa. The African Union, formally established in 2002, has rapidly developed into a strong and credible continental actor – and interlocutor with the EU, among others. Currently the African Union has troops in Darfur, with admittedly limited impact. On wider strategy the EU prospectus is positive, involving sustainable development, peace and security, good governance, trade, interconnectivity, social cohesion and the environment. The plan is to double aid by 2010. The European Community and its Member States constitute the biggest donor community for Africa, accounting for over 60 per cent of all such aid globally. This coherence is striking but it also masks a less impressive performance as regards Africa on other fronts. Personally, I believe that EU policy towards Darfur appears to have reached a shameful new low, with foreign ministers attending their meeting of 23 April 2007 essentially declaring it is not our problem. Surely Europe can and must do better to help end the Sudanese Government’s ethnic cleansing campaign, which has already claimed more than 200,000 lives and displaced 2.6 million people? Europe’s foreign ministers issued twenty statement on the crisis during the period 2004–2007 years. They did not support Prime Minister Tony Blair’s suggestion of imposing a no-fly zone to enforce the UN Security Council’s 2005 ban on military overflights of Darfur. They did not follow up Chancellor Angela Merkel’s statement at the Europe summit in March 2007 and consider tough sanctions against the Government of Khartoum. They did and said nothing essentially different from their 19 previous ineffectual statements. This endless procrastination is a poor substitute for action. Instead, passing the buck, they declared that ‘the Council [of foreign ministers] reiterates its support for urgent consideration by the [UN] Security Council of further measures.’ In short, leave this one to the UN. Of course, effective steps at the level of the world body would be ideal. However progress there has been excruciatingly slow and there is no reason why EU action cannot complement UN efforts. This could be, for example, along the lines set out in a European Parliament resolution as regards visa black lists and the freezing of financial assets of prominent Sudanese leaders. This is a classic case of the inertia of the politics of the lowest common denominator, which substitutes resolutions for the resolve to act. A new Treaty with enhanced foreign policy-making capacity can contribute to greater visibility and add more coherence to foreign policy as it is practised by the EU in concert with its Member States. More ambitious EU policies require commensurately more ambitious EU budgets. Since the EU lacks any significant financial autonomy and is obliged to rely heavily on the Member States every

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several years in setting the financial perspectives, one can wonder whether these extra resources will be forthcoming. Logically, the idea of Europe speaking with one voice would suggest a role for the EU Foreign Minister on the UN Security Council but, realistically, one can doubt the prospect of the existing permanent members France and the UK yielding their privileged positions for the common European good. Given the comparative strength of the interests of larger Member States, the EU is best placed to lead where these can be harnessed as a means of giving wider traction for EU preferences or where, as in the case of negotiations with Iran, the group of three, France, Germany and the UK, have the goodwill and permissive consent of the others effectively to act in the name of the Union. What is in prospect is some greater coherence combined with greater visibility and continuity in the making of EU foreign policy. Nonetheless, the intergovernmental method of decision-making, the strong expression of national bilateral interests over common European interests and its corollary of the ability of external centers of power to divide and rule the EU, combined with budget constraints, caution against naive assumptions about the imminence of a brave new world. The EU’s accomplishments of the past five decades and the way in which it has allowed Europeans to assimilate and prosper from the unforeseen twists and turns of history also teach a message of hope. The truth, like Europe’s foreign policy itself, is likely to lie somewhere in between.

Reference Nye, J.S., Jr. (2003) ‘Soft Power: Propaganda Isn’t the Way’, Intl Herald Tribune, 10 January, p. 6.

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How to govern the enlarged European Union Jan Zielonka

Governing complex actors is problematic. At stake is not only efficiency and legitimacy. Governance is always about the power of individual units which are run by people with different views and ambitions. The literature covers different modes of governance with little agreement on their respective strengths and weaknesses (there is not even a commonly agreed definition of governance1). At one end of the spectrum we have a hierarchical mode of governance, and at the other a pluralistic or plurilateral mode. Needless to say, various other mixed or intermediate modes of governance have also been observed and conceptualized, hence the enormous confusion. The European Union is often seen as a champion of postmodern, multi-level, polycentric governance that is decentralized, flexible, deliberative, informal, inclusive and non-territorial. However, EU governance is also about securing compliance with EU laws and regulations, formal and structured decisionmaking, greater convergence and standardization, suppression of diversity, and consolidation of the external boundary. The presence of these seemingly contradictory characteristics does not need to be problematic. Many supporters of flexible governance do not advocate abolition of a strong anti-trust authority preventing the emergence of monopolies in Europe. Some of them would like to create a similar European tsar in the field of human rights, for example. Likewise, many supporters of hierarchical governance do not want all current Member States to join the Eurozone or to get rid of Euroregions. That said, hybrid solutions are by their nature inefficient. It is difficult to opt for discipline and flexibility at the same time. Pyramidal centralism is difficult to combine with variable geometry. It is also increasingly clear that the current hybrid system of European governance is suffering from a legitimacy deficit. The public has little insight, let alone control, over the very complex set of governing arrangements within the EU. Those working within the EU system have also questioned the virtues of the current hybrid system, advocating reforms along their own partisan lines. The question is: Which choices ought to be made? How do we know that a given governance system is better suited to present-day Europe? In my view, the choice can only be made on practical rather than normative grounds. We do not know what the EU’s ultimate objectives are, and so we need to opt for a governance system that is better suited to the evolving reality on the ground – however

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messy. For instance, had the objective of the European integration process been a European state, one could opt for the hierarchical system that has served states very well in the past. But such a concept of a unified European state has never been a commonly agreed objective. The ‘ever closer union’ has been the official aim of integration, without specifying the greater convergence across various functional fields that would be necessary to realize ‘institutional fusion’ (Wessels 1997). In my view, therefore, the choice of the governance system should reflect the environmental characteristics found across the 27 Member States. In other words, one should first comprehend the nature of the present-day EU before making certain fundamental choices about the optimal mode of European governance. This nature has largely been determined by the incorporation of various new Member States from Central and Eastern Europe. Enlargement has done more than broaden the European geographic and public space. It has represented an enormous injection of economic, political, legal, and cultural diversity. I argue here that this importation of diversity will render the hierarchical mode of governance largely inadequate. As a consequence, the enlarged EU will have to embrace softer and more flexible and decentralized modes of governance. I call this new paradigm a plurilateral mode of governance (Zielonka 2007).

Two ideal modes of governance There are many modes of governance identified by the existing literature, but to grasp a shift from one mode to another I need to identify two main and contrasting types, which can serve as analytical benchmarks. The first obvious analytical benchmark is represented by the hierarchical type of governance (Hood 1998). The rise and persistence of nation states is the most spectacular success story of hierarchical governance (Poggi 1978). The effective installation of a central and hierarchical form of government allowed states to prevail over other units existing in the late Middle Ages. Although, with the passage of time, states have changed their nature and mode of functioning, the principles of hierarchical governance are still very much in place. All states have an easily identifiable centre of authority with a built-in hierarchy and division of tasks. This centralization of authority makes the state the primary actor in charge of key functional fields such as internal and external security, the monetary system and taxation. Various legal, administrative, economic and military regimes within states largely overlap. There is a single type of citizenship with equal rights and duties. Non-compliance with laws and regulations is monitored and sanctioned. This type of governance can only function with clear, fixed and relatively hard boundaries. It also requires relatively high socio-economic and cultural homogeneity. This is why all states attempt to forge greater convergence within their borders, using various policies of economic redistribution, social integration or even cultural assimilation. Hierarchical governance is not about a one-person dictatorship. At the top of the hierarchy we find an elected government with all the usual checks and balances. Hierarchical governance can also envisage a considerable degree of decentralization

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and delegation. What is important in this type of governance is that ultimate power rests in the hands of central authorities and there are clear lines of control and responsibility in this system. It is not easy to have all of these advantages available in the plurilateral form of governance. In fact, plurilateral governance represents a sharp contrast to hierarchical governance. Instead of having a clear hierarchical structure, plurilateral governance is based on the interpenetration of various types of political units and loyalties. There is no pyramid-like governmental structure. Rather it resembles a ‘junction box’ or even a kind of ‘garbage can’ (Wallace and Wallace 2000). There is no single centre of authority in charge of key functional fields, but a multiplicity of overlapping military, economic and police regimes operating in different territories. Territory is not clearly demarcated as the system tolerates soft and changing borders. Governance is not about steering but about ‘gardening’, reflecting principles of flexibility, subsidiarity, devolution and differentiation. Compliance is largely voluntary and based on incentives. Cultural and socio-economic diversity is cherished. Divided sovereignty is accepted. The term ‘plurilateralism’ represents an aggregate model of various ‘novel’ notions of governance such as multi-level, polycentric or network governance (Hooghe and Marks 2003). They all show that effective governance can tolerate deliberation and pluriformity. Governance can be about negotiation and persuasion rather than control and steering. Incentives can produce better results than sanctions and coercion. Enablement skills can be more crucial than management skills. Governance can merge public and private spheres rather than keeping them separated. Three additional general assumptions unite advocates of these ‘new’ modes of governance. First, an effective system of governance does not need to be statebased or state-centric. Second, an effective system of governance does not even need to be territorial or territorially fixed. Third, and most importantly, an effective system of governance must be able to represent the basic types of variety found in the system to be governed (Kooiman 1993). This means that the more diverse the qualities to be governed, the more diverse the necessary governing measures and structures, and the more diverse the relationship between them. Supporters of the ‘new’ non-hierarchical governance agree that it is less structured and transparent than the hierarchical one. They also see problems stemming from the partisan policies of various networks. But hierarchical governance also has problems. Much of the order and fairness under hierarchical governance is illusory: interest groups are able to manipulate the definition of the common (national) good, and its implementation record is poor despite all the built-in monitoring and sanctions. Moreover, in the increasingly globalized economy, hierarchical governance is less and less effective in addressing social conditions.

The hybrid European reality We have two competing paradigms, one envisaging hierarchical and the other nonhierarchical governance. The problem is that the current EU does not represent either of those ideal models. We have a hybrid arrangement showing features of

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both models resulting from a complex political bargaining. Individual actors supported different options in order to increase their influence on the European decision-making system, the result of which is often a compromise arrangement rather than clear-cut and logically coherent solutions. The European Commission’s White Paper on Governance is a good example of such an uneasy marriage of two different options (Commission 2001). There is no doubt that, on the one hand, the EU’s governance is increasingly nonterritorial, multi-level and multi-centred (Kohler-Koch 2003; Sabel and Zeitlin 2008). Its governance is more about bargaining between different actors than about automatic implementation of commands from the centre. Decision-making competencies are shared by various actors at different levels rather than monopolized by European (or Member States’) executives. The EU increasingly relies on ‘soft’ rather than ‘hard’ law. Compliance with certain laws and directives is voluntary (or there are few sanctions for non-compliance). Encouragement of best practices, shaming and persuasion are used in some fields more than orders, commands and administrative directives. Consider for instance the 2005 European Council decision not to impose fines on Germany and France for running an ‘excessive’ budget deficit, though they were envisaged by the Stability and Growth Pact. The Council stated: ‘[The] purpose of the excessive deficit procedure is to assist rather than to punish, and therefore to provide incentives … to pursue budgetary discipline, through enhanced surveillance, peer support and peer pressure’ (European Council 2005). The so-called Open Method of Coordination (OMC) is also a good example of this new mode of governance (Zeitlin and Pochet 2005). However, the ‘plurilateral’ system of governance is still widely contested and there is strong pressure to inject more hierarchy and coercion into the European system. Moreover, EU regulation is still highly detailed, prescriptive and coercive. Consider, for example, the opposition to flexibility clauses in EU law, pressure to impose strict sanctions for non-compliance with the EMU Stability Pact rules or criticism of the OMC. Supporters of hierarchical governance argue for strict observance of the so-called ‘Community method’ that underlines equal rights and duties for all Member States. They try to ensure that EU laws are detailed, rigid and hard. They insist that the acquis communautaire has to be fully applied by all members without exception and call for an efficient system of monitoring and sanctions to ensure that Member States comply with the acquis. The European Commission has radically strengthened its enforcement activities in recent years. It now initiates nearly 1,000 infringement procedures per year and asks the European Court of Justice to impose ever higher penalties on Member States failing to comply with its rulings in infringement cases (Kelemen 2006). Supporters of hierarchical governance regret that the EU failed to adopt the European Constitution delineating the competencies of European institutions and establishing a clear hierarchy among them. They still want the central government of the Union to have ever broader powers and a visible ‘face’ in the form of a Union president, for instance. They want to strengthen the European bureaucracy to help the Commission guard the treaties and to offer strategic steering and guidance. They want greater economic, political and cultural convergence among

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Member States and they insist on a strict distinction between EU members and non-members. They are also sceptical about or even hostile towards any kind of pillarization, devolution and differentiation in the Union’s law and policy. Subsidiarity is a suspicious term for them.

Governance and enlargement The policy of enlargement was also designed and implemented according to the hierarchical paradigm. It was a top-down exercise applying a similar blueprint to all candidates. The process of EU accession left little space for the flexibility, tolerance and voluntarism associated with the plurilateral type of governance. The key terms of the enlargement policy were conditionality, safeguards, benchmarks, guidance and screening. However, I would argue that this policy produced perverse results. Despite all efforts to foster greater convergence between old and new Member States, divergence still abounds. Compare, for instance, the economic gap between such apparently similar countries as Latvia and Denmark. The ratio is one to six. Divergence in terms of legal and administrative culture is difficult to measure, but it seems to be even greater. And obviously new Member States have different geostrategic concerns from most of the old Member States. It therefore seems clear that the enlarged European space will have to be governed in a more decentralized and flexible fashion than envisaged by the hierarchical model. Moreover, it is increasingly apparent that the new Member States do not want to see a powerful centre in Brussels applying uniform policies across the entire EU space (Kuzniar 2002). In the constitutional debate, they insisted that the EU remain a union of sovereign states and emphasized the principle of subsidiarity. They also resisted efforts to make the European Commission a more consolidated centre of government by insisting that each Member State have its own commissioner with the right to vote. Likewise they have insisted that the system of a rotating EU presidency remains in place in one way or another. This system implies that the main centre of governance in the EU moves from one European capital to another on a regular basis, thus preventing the rise of a single European centre in Brussels. Moreover, the new Member States were eager to increase the role of national parliaments rather than that at the European Parliament (Sadurski 2004). It would be wrong to interpret these policies as Eurosceptic. After all, these governments fought hard to get into the European Union and the results of the accession referendums have shown that EU membership was overwhelmingly supported by citizens in the region. However, new Member States have had experience of tight hierarchical rule under communism, and fear that decisions will once more be made far from their capitals. According to the 2006 Eurobarometer survey, the vast majority of citizens in new Member States believe that their voice does not count in the EU. In Latvia only 18 per cent of those polled believe that their voice counts, in the Czech Republic 20 per cent and in Estonia and Slovakia 21 per cent. (The EU average is 36 per cent) (Commission 2006). Citizens of the new Member States are also concerned about losing their cultural identity.

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New Member States also demand more flexible arrangements in the economic field (Tupy 2003). For instance, they have opposed the EU’s plans to impose high social and environmental standards on their producers because this would effectively impede their competitive edge. They see these standards as attempts to protect high-cost producers. The new members have also tried to stall efforts to limit tax competition by the EU because they need to continue offering better conditions to investors if they are to catch up with the more developed members. Of course, each Member State tries to get as much money as possible from the EU budget. However, centrally distributed net transfers will not help the new Member States to sell products in competitive markets or enhance labour productivity. There are several other factors relating to enlargement that will render hierarchical governance difficult in the years to come. As mentioned earlier, hierarchical governance requires fixed and relatively hard borders, without which it is difficult to consolidate central rule. However, new Member States have intense and complex relations with their neighbours further south and east. Another important factor is related to European foreign and security affairs. Hierarchical governance would require the Union to be in charge of these affairs. However, the new Member States are all pro-NATO and pro-America, and they fear that European foreign policy would undermine NATO (Milczarek 2003). They also like to act through various coalitions of the willing, contact groups or bilateral initiatives. This brings me to another important point.

Governing foreign affairs Enlargement may well have rendered hierarchical governance obsolete, but can plurilateral governance work, especially in such sensitive fields as diplomacy and defence? Does not an effective foreign policy require a single centre of governance able to articulate interests, aggregate power, and apply this power in a strategic fashion? The experience of the Confederate States of America is said to be revealing in this context. The American Confederacy found it difficult to raise the necessary funds to support an army and navy. Lacking a centralized locus of decision-making, the Member States found it difficult to prevent foreign powers from playing one state off against another (Zakaria 1998). This is why supporters of a European superpower want to have a kind of European Foreign Minister in charge of the CFSP budget and 120-plus EU diplomatic missions. They also want a strong EU president that can rely on ever more majoritarian decision-making within the Council. The present governance system in foreign policy is quite plurilateral and it has many flaws (Smith 2004). The decision-making process based on the principle of unanimity cannot avoid being slow, and subject to the lowest common denominator. The coherence of the decision-making system is undermined by the so-called ‘pillar structures’ separating trade and economics from foreign and security policy. Moreover, the link between policy means and ends is largely broken: the CFSP has very few policy instruments at its disposal. These are either to be found in the first pillar of the Union or outside the Union structure. The disaggregation of actors and institutions produces inertia, resistance to change, and artificial

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compartmentalization of policy. The whole governance system in this field lacks clarity, hierarchy and coherence, and is said to be the major cause behind Europe’s alleged external impotence. However, this story is rather one-sided. The current ‘plurilateral’ system of governing foreign affairs has many flaws, but it has also some advantages. A more hierarchical system would have certain virtues, but it would also have some serious flaws considering Europe’s current situation. For instance, the need to reach consensus among 27 states hampers Europe’s efforts to project power abroad, but it helps the Union to diffuse internal conflicts over foreign affairs. (The latter is one of the most important EU’s tasks. For instance, in the early 1990s the EU was not able to stop bloodshed in Sarajevo, but its Member States did not go to war against each other over Sarajevo as they did eight decades earlier). A complex intergovernmental bargaining process required for EU decisions prevents a certain amount of bold and rapid action being taken, but it also ensures that the Union does not rush into ill-conceived action that it might later regret. (It is difficult to imagine the Union ordering the blowing up of a Greenpeace ship in the Pacific, for instance. Such a decision is only possible in a small and culturally coherent circle of decision-makers in a hierarchical state system.) Under the current system ‘laggards’ can indeed veto any EU foreign engagement, but the system allows individual Member States to act outside the EU framework in various contact groups or coalitions of the willing. (For instance, when there was a crisis in Albania in 1997 and the EU was unable to organize itself, successful intervention was orchestrated and executed by Italy with the cooperation of only a few Member States. Hierarchical governance would not allow that.) In other words, the plurilateral system of governance is well suited for a foreign policy advocated by Grotius and Kant, but poorly suited for policies advocated by Machiavelli and Hobbes (Hassner 1994). Centralizing and streamlining the European governance system would help the Union to project its power in a more instrumental fashion, but it would hamper deliberation and constrain participation of all the actors concerned. Hierarchical governance may help to bribe and coerce reluctant states, conduct secret negotiations and manipulate international institutions. Plurilateral governance is more suited to creating institutional structures and setting up rules of legitimate behaviour. Hierarchical governance would help the Union to act as a fire brigade, while plurilateral governance would be helpful in creating a structural environment conducive to peace and cooperation. Ideally, actors would like to have it both ways but in practice this is difficult. Shrewd manipulators cannot act as honest brokers, for instance. In short, the current system of plurilateral governance helps the Union to assume a position of normative power, but it hampers its efforts to be a superpower in a traditional sense (Laïdi 2008). Efforts to introduce a more hierarchical form of European governance would undermine the normative appeal of the EU. New provisions in the Lisbon Treaty enhance the hierarchical governance of foreign affairs. However, it is far from certain that they will make the system any wiser or more effective. The new institution of a European Council president would not do away with the 27 diverse national interests represented in the

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Council. Member States will cooperate when they see that common policies serve their ends, and not because a president urges them to do so. And no president, however skilful, is likely to be able to create the equivalent of a European raison d’état. For this, a genuine European public space is needed and not just new offices and institutions. In other words, European foreign policy needs to connect with the European demos and this can only be done through political rather than institutional means. EU officials should be able to find ways of negotiating the form and purpose of their policies with the public. Information campaigns are not sufficient. People need to identify themselves with a given policy and have meaningful ways of controlling it. This is how collective interests are formed. And it is hard to imagine a truly effective European foreign policy without a sense of a European interest. Collective interest might well emerge from a shared ‘ownership’ of foreign policy. So far, this ownership has largely been provided by the Union’s rotating presidency. A rotating presidency forced elites in various European countries to engage with the workings of the Union. European civil servants from the Council and Commission were also forced to learn about the diverse administrative and political cultures of Member States. Those who have studied the everyday practice of rotating presidencies have discovered that they functioned as an important inter-European link between various levels of EU governance, producing a policy fusion out of diverse national and European standpoints (Ekengren 2004). And, of course, the public in a country holding the rotating presidency also feels more in charge of European policies. However, the Lisbon Treaty effectively abolishes the Union’s rotating presidency in the field of foreign affairs, along with its various virtues and advantages. Small states in particular are likely to feel detached from decisions made in Brussels (Magnette and Nicolaïdis 2005). Eurosceptic politicians will have more reasons to blame ‘detached Eurocrats’ for all possible misfortunes. And it has still to be empirically proven that a more permanent and centralized presidency (of the European Council and of the Foreign Affairs Council) would be able to make better decisions and orchestrate more effective action than is the case with the rotating presidency. For instance, the European Council president is likely to discover that his or her formal powers and fields of action largely overlap with those of the High Representative of the Union for Foreign Affairs and Security Policy. If so, institutional (and personal) conflicts are to be expected leading to a paralysis in decision-making.

Conclusions This chapter has offered evidence that enlargement has made hierarchical governance inadequate, if not obsolete. The enlarged Union is more likely to benefit from a ‘plurilateral’ system of governance, especially since the hybrid solutions are seen as neither effective nor legitimate. The plurilateral mode of governance would not necessarily encourage free-riding, which leads to disorder. Nor would it necessarily leave Europe’s citizens without any public form of protection, and

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reallocation. Plurilateral governance is not a panacea for all Europe’s problems, but it can help the EU to cope with the pressures of globalization because of its built-in flexibility and learning capacity. It can enhance Europe’s competitive edge because it pulls together vast European resources without eliminating Europe’s greatest strength: its pluralism and diversity. Plurilateral governance can even offer the Union a plausible way of running foreign and security policies. It is time to endorse flexible ways of governing the Union and make plurilateralism work.

Note 1 Governance means various types of regulation of social relationships and their underlying conflicts by reliable and durable means and institutions (Jachtenfuchs 2001; Rhodes 2000).

References Commission of the European Communities (2001) European Governance: A White Paper, COM(2001) 428 final. —— (2006) Standard Eurobarometer, 65. Available online at http://ec.europa.eu/ public_opinion/archives/eb/eb65/eb65_en.htm, (accessed 7 November 2006). Ekengren, M. (2004) ‘National Foreign Policy Co-ordination: The Swedish EU Presidency,’ in Carlsnaes, W., Sjursen, H. and White, B. (eds), Contemporary European Foreign Policy, London: Sage. European Council (2005) The Presidency Conclusions of the European Council held in Brussels on 22 and 23 of March 2005. 7619/05, ANNEX II. Hassner, P. (1994) ‘Beyond the Three Traditions: The Philosophy of War and Peace in Historical Perspective,’ International Affairs, 70(4): 737–754. Hood, C. (1998) The Art of the State. Culture, Rhetoric, and Public Management, Oxford: Clarendon Press. Hooghe L. and Marks, G. (2003) ‘Unravelling the Central State, but How? Types of Multilevel Governance’, American Political Science Review, 97(2): 233–243. Jachtenfuchs, M. (2001) ‘The Governance Approach to European Integration’, Journal of Common Market Studies, 39(2): 245–264. Kelemen, D.R. (2006) ‘Suing for Europe. Adversarial Legalism and European Governance’, Comparative Political Studies, 39(1): 101–127. Kohler-Koch, B. (ed.) (2003) Linking EU and National Governance, Oxford: Oxford University Press. Kooiman, J. (ed.) (1993) Modern Governance, London: Sage. Kuzniar, R. (2002), ‘Miedzynarodowa tozsamosc Europy,’ in Halizak, E. and Parzymies, S. Unia Europejska: nowy typ wspolnoty miedzynarodowej, Warsaw: Polski Instytut Spraw Miedzynarodowych. Laïdi, Z. (2008) Norms Over Force. The Enigma of European Power, New York: Palgrave Macmillan. Magnette, P. and Nicolaïdis, K. (2005) ‘Coping with the Lilliput Syndrome: Large vs. Small Member States in the European Convention’, European Public Law, 11: 83–102. Milczarek, D. (2003) ‘What Foreign and Security Policy for the Enlarged European Union?’, Yearbook of Polish European Studies, 7: 11–32. Poggi, G. (1978) The Development of the Modern State, London: Hutchinson.

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Rhodes, R.A.W. (2000) ‘Governance and Public Administration’, in Pierre, J. (ed.) Debating Governance. Authority, Steering and Democracy, Oxford: Oxford University Press. Sabel, Ch.F. and Zeitlin, J. (2008) ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’, European Law Journal, 14(3): 271–327. Sadurski, W. (2004) ‘Accession’s Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe’, Yearbook of Polish European Studies, 7: 33–70. Smith, K.E. (2004) The Making of EU Foreign Policy, London: Palgrave. Tupy, M.L. (2003) ‘EU Enlargement: Costs, Benefits and Strategies for Central and Eastern European Countries,’ Policy Analysis, 489: 1–20. Wallace, H. and Wallace, W. (eds) (2000) Policy Making in the European Union, 4th edition, Oxford: Oxford University Press. Wessels, W. (1997) ‘An Ever Closer Fusion? A Dynamic Macro-political View on Integration Processes’, Journal of Common Market Studies, 35(3): 267–299. Zakaria, F. (1998) From Wealth to Power: The Unusual Origins of America’s World Role, Princeton, NJ: Princeton University Press. Zeitlin, J. and Pochet, P. (eds) (2005) The Open Method of Co-ordination in Action, Oxford: Peter Lang. Zielonka, J. (2007) ‘Plurilateral Governance in the Enlarged European Union,’ Journal of Common Market Studies, 45(1): 187–209.

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The rules of change in the European Union The lost balance between rigidity and flexibility Bruno de Witte

Introduction Every political system must have legal rules that are at the same time sufficiently flexible and sufficiently rigid. They must be sufficiently flexible so that laws can be adapted to their changing context (new problems, technological development, international obligations) and can reflect the changing will of the people expressed at periodical elections and the governments installed by those elections. They must also be sufficiently rigid so as to allow for the stability and legal certainty which citizens, firms and administrative authorities need, and also in order to prevent passing political majorities from abusing their power to threaten fundamental values of the nation. Finding the appropriate balance has implied, in almost every country, a distinction between ordinary law, which is more flexible, and constitutional law, which is more rigid. Ordinary legislation is typically adopted and modified by a majority vote in Parliament. Constitutions cannot be modified as easily. Rules that guarantee the stability of constitutions include the following (in all kinds of combinations): special majorities in parliament; confirmation by a later vote; a referendum; confirmation by sub-national government; and the exclusion of certain matters from constitutional reform.1 When we take the case of the European Union, the balance between flexibility and rigidity is located differently. Its rules of change are more rigid than what we usually see at the national level. Ordinary EU legislation is normally adopted in accordance with the codecision procedure, which requires its approval by two separate institutions, the Council of Ministers and the European Parliament, with the Council acting by a qualified majority (amounting to approximately 70 per cent of the votes) rather than by a simple majority of states. Moreover, important domains of EU legislation are still subject to unanimous decisions in the Council. The historical explanation for this is that it should not be made too easy for the EU legislator to deal with matters that were previously dealt with at the national level; the requirement of a special majority or unanimity in the Council forms a protection for the decision-making autonomy of the member states. But nowadays, most EU legislative initiatives are not about making new laws but about modifying existing European legislation. The special majority requirement also

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applies in such a case, but there is not the same normative justification for it: since the matter has already been attracted to the European level, there is no longer the same need to protect national autonomy. What justification is there to give special protection to the choices made by the European legislators in the past against the improvements which they would want to adopt today? However, the problem of excessive rigidity in the rules of change arises much more strongly with regard to the European Union’s equivalent of constitutional law, namely the norms contained in the founding Treaties (the EC Treaty and EU Treaty, essentially). This will be the main theme of this chapter. Attention to this problem is, of course, prompted by the lengthy and difficult process of Treaty revision that was started in December 2001 (with the Laeken Declaration) and is still under way. If all goes well, the Lisbon Treaty, which revises the current EC and EU Treaties, will come into force in 2009, so it will have taken more than seven years to modify the ‘rules of the game’ of the European Union and, even so, the end result may not appear to be the kind of definitive settlement that some had expected from this reform process. Can the European Union allow itself the luxury of such slow and complicated mechanisms of change in the face of a constantly and rapidly changing global environment?

‘Constitutional change’ in the European Union The main instrument of constitutional change in the European Union, during the last 25 years, has been the revision treaty, that is, an international agreement between the Member States of the European Union making amendments to the so-called ‘founding Treaties’. Like most multilateral agreements, the EU Treaty has a special amendment clause, which is part of its final provisions. This procedure of Article 48 EU Treaty2 applies not just to the EU Treaty itself but also to the other ‘Treaties on which the Union is founded’, essentially the EC Treaty but also the EURATOM Treaty. It is true that the legal dynamics of European integration have not resulted exclusively from formal Treaty revisions. Particularly in the period preceding the Single European Act, but also later on, there were other mechanisms of informal constitutional change in the European Communities and the European Union, namely the creative interpretation of existing rules by the European Court of Justice, the use of inter-institutional agreements and practice to flesh out the institutional provisions of the treaties,3 and, most clearly, the generous use by the Council of the ‘gap-filling clause’ of Article 308 EC, which has allowed for a creeping expansion of EU competences short of formal treaty amendment.4 These alternative instruments of change have played a more important role in the life of the EC/EU than in that of any other international organization. However, despite the importance of these informal mechanisms of change, formal Treaty revisions have been, by far, the most important instrument of constitutional change during the last 25 years. Such Treaty revisions require, according to Article 48 EU Treaty, the unanimous agreement of all (now 27) governments for any modification of written primary law, followed by the separate ratification of those modifications by each of the states, according to its own, often complicated and politically unpredictable, internal

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procedures. It has often been noted that the rigidity of this amendment formula has not prevented Treaty revisions from being carried out repeatedly (SEA, Maastricht, Amsterdam, Nice), but this period may now be over, and the debacle of the Constitutional Treaty could have started an era in which ambitious Treaty revisions become next to impossible. In particular the second stage, that of the national ratification procedures, has become fraught with new difficulties.5 The traditional mechanism of European treaty reform, which has been with us since the Treaty of Rome was adopted in 1957, has caused growing dissatisfaction, despite the fact that it has been formally successful on a number of occasions. Misgivings about it already arose after the difficult ratification process of the Maastricht Treaty (with a failed referendum in Denmark and an almost failed referendum in France). They became more widespread after the Treaty of Amsterdam, and were shared by the governments themselves after the disappointing functioning and results of the IGC leading to the Treaty of Nice. One type of criticism related to the continued adherence to traditional diplomatic forms of treaty negotiation ‘behind closed doors’, which increasingly appeared ill-suited to the crucial questions of democracy and governance that are invariably dealt with on the occasion of Treaty revision. It took the dreadful European Council meeting of Nice, in December 2000, to convince the political leaders of the Member States that their traditional mode of negotiation was no longer suited to the complexity and constitutional importance of the matter at issue. A second type of criticism, which is our primary concern here, related to the particularly rigid nature of the specific revision procedure adopted for the EU treaties. Before examining that criticism, I will draw attention, in the next section, to a phenomenon which aggravates the problems caused by inadequate rules of change, that is, the fact that the European Union’s constitutional law is over-abundant.

The abundance of constitutional law The problems with the EU’s rules of constitutional change are compounded by the abundance of constitutional law for the European Union. This problem of constitutional over-abundance may also arise at the level of a state, when too many matters are put beyond the reach of ordinary legislative, executive or judicial decision-making by being entrenched in the Constitution. Its cause is either a written constitutional text which is overly long and detailed, or the over-detailed interpretative glosses added by a constitutional court to a constitutional document which, by itself, is succinct. The Portuguese Constitution adopted after 1974 is often cited as an example that suffers from the former, and the case law of the German Constitutional Court is often accused of the latter. Of course, whether there is too much constitutional law, or too little, or just enough, depends on one’s taste, and in particular on the ends which a given Constitution is aimed to achieve,6 but the question of the ‘right measure’ of constitutional law is undoubtedly an important question of democratic theory. As Fossum and Menéndez put it, a constitution ‘which exhausts the political space’ becomes an ‘asphyxiating straightjacket’ (Fossum and Menéndez 2005: 409).

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The more difficult it is to change a constitution, the worse the consequences of such constitutional overload. In a legal order such as that of Austria, in which the procedural requirements for amending the constitution are very light, it does not matter too much that there is a large volume of constitutional law. Conversely, the great difficulty in changing the constitution of the USA is compensated by the fact that its text is short and often vague. When, however, there is a very large volume of constitutional law, and a very rigid procedure for modifying the constitution, as in the European Union, the problems are compounded. The primary law of the European Union is indeed exceedingly voluminous for two cumulative reasons: because the text of the instruments of primary law (essentially, now, the EC Treaty and EU Treaty) is very long and sometimes extremely detailed,7 and also because the Court of Justice has added to this a large amount of court-made constitutional law through the dynamic interpretation of written norms and through the creation of new, unwritten, norms of primary law (that is, the general principles of Community law). The various treaty reforms that have happened in the course of the last 20 years have mainly added new constitutional rules, but almost never have the Member States agreed to ‘de-constitutionalize’ particular norms, so as to put back into the democratic arena matters which had previously been entrenched in the founding treaties. Thus, there has been a constant trend to increase the volume of constitutional law, which has been accompanied by the increasing difficulty in modifying those very constitutional rules. The problem with this, which has rarely been acknowledged by European political actors or academic scholars, is that the detailed regulation of institutional procedures and sector-specific policies by the European Treaties unduly reduces the scope for democratic deliberation and effective institutional responses to new policy challenges. Why this abundance and complexity? Much of it reflects the basic tension between the European Union and its Member States. Constitutional rules – whether expressed in the Treaty texts or developed by the Court of Justice – tend to entrench and guarantee a specific and delicate equilibrium in those relations. As the former British Foreign Secretary Jack Straw put it, in a defence of the Constitutional Treaty: ‘Were it a superstate, writing its constitution would be easy, and the result short. You would declare that power resided in its parliament, government and Supreme Court, and leave those institutions to make and enforce the law. It is precisely because the EU is not a superstate that it needs a more complicated rule-book spelling out, policy by policy, the areas of its competence’ (Straw 2004: 30) The ‘rule-book’ has grown at the same pace as the European Community’s and European Union’s role and policy responsibilities have become more prominent. Each extension of the EU’s policy remit, since the Single European Act, has been accompanied by a confirmation of the control powers of the national governments and of their remaining area for autonomous action. The tracing of the boundary between integration and Member State autonomy has been expressed

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not only in the vertical division of competences (between the EU and the Member States), but also in the horizontal division of competences, most crucially in the definition of the role and internal decision-making rules of the Council, the institution representing Member State interests. Therefore, the constitutional rules which define the vertical and the horizontal division of powers are both very complex and detailed, and full of specifications and derogations. However, not all the constitutional complexity can be justified by this need to fix the ‘integration balance’ at any given moment in time. It would often have been possible, both for the treaty reformers and the Court, to devise simpler rules.

The failure to deal with the unanimity problem The practice of multilateral international organizations shows that their founding charters can usually be changed without the need for a unanimous agreement of all the members (and, indeed, without national referendaums).8 Various kinds of special majorities allow for amendments of the treaties establishing the United Nations Organization, the International Labour Organization, the World Health Organization, the World Trade Organization and the Council of Europe, to name but a few. The European Union is thus exceptional among international organizations with a large membership in requiring the unanimous consent of all the Member States for changes in the constitutional instrument. The unanimity rule for revision of the European Treaties was originally not much of a problem, when there were only six members. In a Union with now 27 Member States, the unanimity rule for treaty amendment becomes a major obstacle to change. It involves the risk that the dynamics of integration be halted, or made subject to blackmail, by a single Member State. The governments favouring the status quo are, in fact, put in a structurally favourable position compared to those favouring changes in the European Union’s constitutional framework. This is, in a way, putting the consent rule on its head, since the outcome favoured by a large majority of the states can be blocked by one state. Of course, it is precisely the vital impact that European Treaty changes have on the Member States which explains the heavy insistence by the governments of those states on maintaining an individual veto right, and the increasing tendency to let the populations vote on proposed treaty changes. The fact remains, though, that this rigidity makes Treaty revisions very difficult tasks. It explains why treaty amendments have never been entirely satisfactory and have always been accompanied by ‘leftovers’ (that is, questions on which the negotiators could not agree and that were postponed until the next revision round), and increasingly also by opt-outs and special regimes for members states which had difficulties with one or other element of the package. Many people were aware of the problem of the excessive rigidity of the amendment procedure when the Constitutional Treaty was being prepared. Indeed, the very idea of drafting a new Treaty divided into a fundamental, ‘truly constitutional’ part and a more technical second part (that later was to become Part III of the Constitutional Treaty) was originally seen to be closely connected with the idea of devising more flexible revision rules for the ‘less fundamental’ part.

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Unfortunately, this idea of a connection between treaty structure and differentiated amendment mechanisms was practically abandoned in the process of drafting the Constitutional Treaty – and this may count as one of the main failures of the recent constitution-making process. Although the drafters of the Constitutional Treaty, or at least some of the key players among them, were well aware of the structural problems of Treaty revision, they did not fully address them. Compared to the existing revision clause, the new rules inscribed in the Constitutional Treaty for its future revision innovated only in two limited respects: they prescribed the use of the ‘Convention method’ for future revisions, and provided for two so-called simplified revision procedures, in addition to the ordinary revision procedure. These simplified revision mechanisms were confirmed in the Treaty of Lisbon, which incorporated them into Article 48 EU Treaty. Paragraphs two to five of Article 48 EU Treaty (as amended by the Lisbon Treaty) are entitled Ordinary revision procedure, and they basically repeat the currently existing Treaty revision rules contained in Article 48 EU Treaty, with one significant addition: the Convention method is integrated as a normal feature also for future revisions. These future Conventions shall be ‘composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission’, that is, the same components as the 2002/3 Convention, though the numbers for each group are not specified. It is clearly confirmed that the Convention will not affect the formal powers of treaty conclusion that will be entrusted, as before, to an intergovernmental conference. The Convention’s role is modestly defined as that of adopting ‘by consensus a recommendation to a conference of representatives of the governments of the Member States’. However, the Convention’s role had been described in equally modest terms by the Laeken Declaration of 2001, and this did not prevent the 2002/3 Convention from adopting a complete draft text of the treaty rather than a mere ‘recommendation’. The new Article 48 thus creates a new ad hoc organ of the European Union, to be convened for a single purpose, namely the revision of the Constitution. A degree of direct parliamentary involvement in treaty reforms is thereby entrenched for the future. The same Article 48 provides for two ‘simplified revision procedures’, described in paragraphs six and seven of the article, which are applicable for the amendment of specific parts of the Treaties. However, of those two procedures, only the one described in paragraph seven introduces a genuine measure of flexibility in treaty amendment. It provides that in all those areas and cases where the Treaties provide that the Council has to act by unanimity, a European Council decision (itself taken by unanimity and with the consent of the European Parliament) will be enough to remove the unanimity lock in a particular case or area, and allow the Council to act henceforth by qualified majority. Similarly, the European Council will be able to introduce the ‘ordinary legislative procedure’ (that is, codecision) in all the areas and cases in which the Treaties provide for a different (normally, more intergovernmental) procedure. In other words, a further deepening of integration will, to some extent, be possible without the need for

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setting up an IGC and, above all, without the need for constitutional ratification of these changes by all the Member States separately. However, each national parliament will be able to stop any such simplified amendment by expressing its opposition within a six-month period following the European Council decision (that decision will, obviously, not enter into force during this period). In this simplified revision procedure, the two-step approach is thus not entirely abandoned. The difference with the ordinary revision mechanism is that national parliaments, instead of being required to give their positive approval to proposed amendments, will have the option of expressing their negative opinion by vetoing a proposed amendment. The original version of this mechanism, as submitted by the Italian Presidency during the 2003 IGC, provided that a revision decision could be stopped if ‘X’ national parliaments expressed their opposition, whereby ‘X’ stood for an unspecified number higher than one. However, the single parliament veto appeared in the ‘post-Naples’ IGC document of December 2003 and remained there until the end of the negotiations. It was put there on the insistence, above all, of the British government. Despite the preservation of a single-parliament veto power, this reform will (if it enters into force) be a meaningful shift, putting the responsibility for actively approving an amendment on the shoulders of the Member State representatives in the European Council (and the members of the EP) – not unlike what happens in some federal states, where the approval of constitutional reforms is given by the ‘territorial chamber’ in which the Member State interests are represented rather than by the Member States’ parliaments or populations directly. The Treaties would, in this case, no longer be amended by another international agreement but by a unilateral decision of an organ of the European Union. The second simplified revision procedure introduced by the Treaty of Lisbon, that of Article 48, paragraph six, has a broader scope. It is going to apply to amendments of ‘Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union’, all together some 171 treaty articles – subject to one major exception: if the proposed amendment of an internal policy provision leads to an increase in the European Union’s competences, then the ordinary revision procedure will have to be used instead. According to the procedure of paragraph six, which is similar on this point to that of paragraph seven, discussed earlier, there will be no need for a Convention or an IGC; the amendment will rather be ‘adopted’ directly by the European Council acting by unanimity. However (and here is the crucial difference from paragraph seven), that decision will be subject to ‘approval’ by each Member State under its own constitutional requirements. In other words, there would still be a need for national quasi-ratifications of the treaty amendments. So, one may wonder whether this is a real simplification compared to the ordinary revision procedure. At no point during the Convention and the two IGCs was it seriously considered to make any exception to the ‘taboo’ requirement that all Member States must unanimously consent to future amendments of the Treaties. If the Treaty of Lisbon enters into force as expected, the EU’s rules of change will therefore continue to be much more rigid than those applying to any national constitution, as

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well as more rigid than those applying to the founding instruments of other, less integrated, international organizations. There will be a greater dose of flexibility – consisting essentially of the removal of the ratification phase – only for a limited purpose, namely to allow shifts from unanimity to qualified majority in Council decision-making, and to allow for the adoption of codecision as the law-making procedure in new fields. There will be many other questions than these, on which the need will arise to amend the very detailed and often badly worded Treaties. The Treaty of Lisbon will not be the end of the story of European integration! And this need for change will have to be addressed under the cumbersome two-phase procedure, with unanimous consent by all 27 governments and separate approval by all 27 parliaments.

Conclusion The drafters of the European Constitution assumed optimistically that the rigid revision formula, which they preserved, would not stop the Constitution from evolving in the future. That optimism seems misplaced in view of the difficulties faced by the Constitutional Treaty itself, and in view of the complicated horse-trading which led to its salvation by means of the Lisbon Treaty. Sooner or later, the Member States of the European Union (and their public opinions) will have to accept that they will not be able to continue reaping the benefits of European integration without confronting the ‘taboo’ of unanimity for any treaty amendment. They should consider replacing the consensus rule by some kind of super-qualified majority rule for amending the Treaty, or at least certain parts of the Treaty. In this hypothesis, the assent of the European Parliament would be required, as an alternative democratic input to compensate for the fact that single national parliaments will lose their veto power. Of course, there is no realistic prospect that the Member State governments will agree, in the next few years, to such a symbolically important change. And yet, this is vitally necessary for the future of the European integration process. There are so many detailed rules in the founding Treaties which will need to be adapted to changing needs. If the Member States want to continue to reap the benefits of the European integration process, they must allow the EU treaty framework to be adaptable to changing circumstances and priorities, even at the cost of occasionally being confronted with amendments that they do not like. Otherwise, EU constitutional law, rather than protecting the values of the European states and promoting their cooperation, will become an intolerable burden that inhibits the course of European integration. There is, in other words, a need to reflect on establishing a new balance between rigidity and flexibility in the European Union’s rules of change.9

Notes 1 See, for a short comparative survey, J.E. Lane (1996) Constitutions and Political Theory, Manchester: Manchester University Press, pp. 114–117, and for an empirical study: Rasch, B.E. and Congleton, R.D. (2006) ‘Amendment Procedures and Constitutional Stability’, in R.D. Congleton and B. Swedenborg (eds), Democratic Constitutional Design and Public Policy, Cambridge, MA: MIT Press, p. 319.

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2 The text of Article 48 EU Treaty is as follows: ‘The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded. If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.’ 3 See, for example, H. Farrell and A. Héritier (2003) ‘Formal and Informal Institutions under Codecision: Continuous Constitution-Building in Europe’, Governance, 16: 577. 4 See, for example, R. Schütze (2003) ‘Organized Change towards an ‘Ever Closer Union’: Article 308 EC and the Limits to the Community’s Legislative Competence’, Yearbook of European Law, 22: 79. 5 For a survey of the ratification rules and practices in relation to the Constitutional Treaty, see A. Albi and J. Ziller (eds) (2007) The European Constitution and National Constitutions: Ratification and Beyond, The Hague: Kluwer Law International. 6 On the question of the appropriate content of a national Constitution, see the essay by R. Gavison, (2002) ‘What Belongs in a Constitution?’, in S. Voigt and H.J. Wagener (eds), Constitutions, Markets and Law. Recent Experiences in Transition Economies, Cheltenham: Elgar. 7 The EC Treaty has 314 Articles, and the EU Treaty has 53 Articles. In addition, there are 36 Protocols to those two Treaties, and there is the separate Euratom Treaty. When counting the number of Articles (and, indeed, the number of words) one would find that the primary law of the European Union is more voluminous than any of the national constitutions of European countries. 8 See an overview in C.F. Amerasinghe (2005) Principles of the Institutional Law of International Organizations, 2nd edition, Cambridge: Cambridge University Press, pp. 447–463. 9 See also the reflections on this point by D. Triantafyllou (2007) ‘Les procédures d’adoption et de révision du traité constitutionnel’, in G. Amato, H. Bribosia and B. De Witte (eds), Genèse et destinée de la Constitution européenne, Brussels: Bruylant, and by R. Dehousse (2007) ‘Au-delà du Plan B: comment réformer les clauses de révision des traités?’, in G. Amato, H. Bribosia and B. De Witte (eds) Genèse et destinée de la Constitution européenne, Brussels: Bruylant, pp. 223 and 939.

References Albi, A. and Ziller J. (eds) (2007) The European Constitution and National Constitutions: Ratification and Beyond, The Hague: Kluwer Law International. Amerasinghe, C.F. (2005) Principles of the Institutional Law of International Organizations, 2nd edition, Cambridge: Cambridge University Press. Dehousse, R. (2007) ‘Au-delà du Plan B: comment réformer les clauses de révision des traités?’, in G. Amato, H. Bribosia and B. De Witte (eds), Genèse et destinée de la Constitution Européenne, Brussels: Bruylant. Farrell, H. and Héritier, A. (2003) ‘Formal and Informal Institutions under Codecision: Continuous Constitution-Building in Europe’, Governance, 16: 601–623.

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Fossum, J.E. and Menéndez, A.J. (2005) ‘The Constitution’s Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union’, European Law Journal, 409: 380–410. Gavison, R. (2002) ‘What Belongs in a Constitution?’, in S. Voigt and H.J. Wagener (eds), Constitutions, Markets and Law. Recent Experiences in Transition Economies, Cheltenham: Elgar. Lane, J.E. (1996) Constitutions and Political Theory, Manchester: Manchester University Press. Rasch, B.E. and Congleton, R.D. (2006) ‘Amendment Procedures and Constitutional Stability’, in R.D. Congleton and B. Swedenborg (eds), Democratic Constitutional Design and Public Policy, Cambridge, MA: MIT Press. Schütze, R. (2003) ‘Organized Change towards an ‘Ever Closer Union’: Article 308 EC and the Limits to the Community’s Legislative Competence’, Yearbook of European Law, 22: 79–115. Straw, J., ‘By Invitation’, The Economist, 10 July 2004, p. 30. Triantafyllou, D. (2007) ‘Les procédures d’adoption et de révision du traité constitutionnel’, in G. Amato, H. Bribosia and B. De Witte (eds), Genèse et destinée de la Constitution européenne, Brussels: Bruylant.

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Where to look for legitimacy1 Miguel Poiares Maduro

A friend of mine (also a lawyer…) told me the following anecdote: A man is on his knees on a sidewalk looking for a watch that he lost on the opposite sidewalk. Someone asks him: ‘What are you doing?’ ‘I am looking for the watch I lost on that sidewalk’. ‘If you lost it on that sidewalk why are you looking for it on this sidewalk?’ ‘There is more light on this side’… replies the man.

When I reviewed the current strategies of legitimacy for the European Union this anecdote kept coming to my mind. In many respects, I will argue in this chapter that we have been looking for legitimacy in the wrong place in the European Union. The starting point is an analysis of the constitutional challenges that give rise to the legitimacy debate and the current constitutional discussions. I will start by arguing that the origin of the legitimacy question lies in Europe’s claim to independent political authority associated with a community of open and undetermined political goals. This is the outcome of a political transformation in Europe embedded in the processes of constitutionalization and Europeanization. My argument is that such a claim has never been fully legitimized. Instead we have moved directly into discussing how to legitimate the processes and institutional system through which the power derived from that claim is exercised. I will argue that the current dominant strategies for the legitimacy of the EU miss this point. As a consequence they face two main shortcomings: first, they will always be a subsidiary or second order form of legitimacy; second, they take the national form of democracy and constitutionalism as their proxy for legitimacy and, in doing so, are unable to reinvent the concepts of constitutionalism in order to apply them to a new form of political community. The final result is that any solutions brought forward by the current strategies of legitimacy will be deeply contested and insufficient. A viable strategy of legitimacy for the European Union must depart both from rethinking constitutionalism and, in the process, identify what legitimises the claim for a European political community.

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The political transformation of European constitutionalization The first element of this political transformation of Europe consists of the process that the classical literature on European integration has labeled the constitutionalization of Community law.2 This describes how the case law of the European Court of Justice developed a constitutional architecture for Community law, founded on the principles of direct effect and supremacy, complemented by the adoption of constitutional law concepts such as fundamental rights, implied competences, state liability, enforcement mechanisms, separation of powers and, broadly, the notion of a community of law (the EU equivalent of Rechtsstaat or the rule of law). According to Weiler: The constitutional thesis claims that in critical aspects the Community has evolved and behaves as if its founding instrument were not a Treaty governed by international law but, to use the language of the European Court of Justice, a constitutional charter governed by a form of constitutional law. (Weiler 1997: 98)3 This constitutional construction was legitimized by the court on the basis of what I would call an epistemological shift operated by the ECJ in the understanding of EC law and the source of its normative authority. When the court, in its trailblazing decisions, assumed EC law as an autonomous legal order, it did it on the basis of a direct relation with the peoples of Europe.4 It was this that granted the European Communities (later the EU) and their legal order a claim to independent political authority. It would have been possible to base the supremacy and direct effect of Community law on some form of interpretation of international law (De Witte 1999: 177). But that was not the path chosen by the court. By establishing the legitimacy and autonomy of European law on the basis of its direct relationship with the peoples of Europe, the European Court, in effect, asserted a claim to independent political authority for European law.5 At the same time, it was that direct relationship with the peoples of Europe that required a constitutional form for the organization of power in the Communities and explained the adoption of an interpretative constitutional framework for the Treaties.

Europeanization However, the process of constitutionalization would not have raised important constitutional challenges if the use of that ‘constitutional power’ had remained restricted to clear and limited, previously agreed competences or if all the new forms of exercising European powers had been subject to the agreement of all States (corresponding to what Joseph Weiler famously described as the relationship between supranational normativity and intergovernmental decision-making) (Weiler 1981: 261). What raised the current constitutional challenges was the association between constitutionalization (an independent claim of political and legal authority) and what could be described as Europeanization (the creation of a community of open and

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undetermined political goals). This process of Europeanization is related to different legal and political developments in European integration. The first element of Europeanization relates to the growth of Community and EU competences. In parallel with the process of constitutionalization, Community law has also seen its scope of action and Community competencies extend well beyond the initial limits of the Treaties. This means that Community law has taken over many national functions and supervises national law in an increased, and almost unlimited, number of areas. Any analysis of the extension of EU powers will emphasize the growth of Community and EU competencies through the successive Treaty revisions (which expressly created new areas of EU action), the use of the implied powers provision of the Treaty Rome,6 or the expansive interpretation given by the European Court of Justice to Community competences (either through an extensive interpretation of the functional competencies related to the internal market or through the doctrine of implied competences).7 These developments have led to a progressive conception of the European Union as a new space for political action and policy framing with open and undetermined political goals. In other words, a conception of the European Union as a political community of universal aims which could take over many of the traditional functions of governance of the States and in which many of the policies of the latter could be subject to new deliberations. But this Europeanization did not only take place with regard to the extent that competences were transferred from the States to the European Union. The way in which such competences are exercised and European policies are decided has also been progressively Europeanized through the move from unanimous decisionmaking to majoritarian decision-making. The increase in majoritarian voting in the EU has resulted from Treaty revisions as well as from the Commission and Court of Justice interpretation of the appropriate legal bases for Community action. Such interpretation appears to have favoured the exercise of Community competencies under the legal bases which provide for majoritarian decision-making – to the detriment of unanimity.8 This means that, not only were Community competencies extended but also the way they are exercised has changed from intergovernmental to supranational decisionmaking. The degree of each State’s control over the content of Community policies has substantively decreased and they have become the product of a European majority. There is a final element in this process of Europeanization that is not related to the growth and transformation of EU competencies. It relates, instead, to the degree of EU control and impact on policies that continue to be pursued by the States. A key role in the Europeanization of the Nation States has been played by the market integration rules of the Treaty, notably the free movement rules. The court has extended the scope of application of these rules much further than the scope normally attributed to trade rules. The interpretation given to internal market rules has promoted an EC law review of any area of national legislation that impacts on the market. The extensive interpretation of the free movement rules led to a spill-over of Community law and its rationale of market integration into political and social spheres. National legislation intervening in the market became subject to review under Community law, independently of any protectionism intent or effects. This

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led to a process which Burley and Mattli refer to as the substantial penetration of EC law (Burley and Mattli 1993:43), and Sabino Casesse as ‘ ‘comunitarizazione’ di funzione nazionali’.9 At the same time, the mechanism of regulatory competition among States, generated by the internal market and European mobility, further challenge the autonomy of States to pursue traditional functions of governance such as those inherent in regulatory and redistributive policies. Much of the legal writing has, for a long time, limited itself to describing the process of constitutionalization and uncritically accepting its results.10 However, the constitutionalization of the Treaties created a constitutional body without discussing its soul. The European Constitution appears as a functional consequence of the process of market integration without a discussion of the values it necessarily embodies. In other words, it was presented as a logical constitutional conclusion without a constitutional debate. At the same time, these processes of constitutionalization and Europeanization raised new claims for legitimacy in the European Union, challenged the conditions for the political subsistence of the States and changed the traditional mechanisms of participation and representation. The diversity of the constitutional challenges raised by these processes composes what we could describe as the existential crisis of European integration.

The existential crisis of European integration The present status quo has given rise to a kind of existential crisis in the process of European integration. As the Laeken Declaration defines it: ‘[The] Union stands at a crossroads, a defining moment in its existence’. The political transformation of Europe that was described in the previous section has challenged some of the conditions for political organization in Europe both at the level of the Union and the States themselves. Many perceive the tensions created by such challenges as requiring that a clearer definition of the ethos and telos of European integration be expressed in the form of a new and fully assumed political contract. The first constitutional problem normally highlighted in the current European circumstances is the issue of the democratic deficit. In reality, the existence of different discourses on the democratic deficit highlights not one but several democratic deficits. The most common presentation of the EU democratic deficit stresses the secondary position of the European Parliament vis-à-vis other European institutions in the decision-making process of the Union. In spite of the legal and political developments that have reinforced the position of the European Parliament in the institutional framework of the European Union, its role still reflects a lower degree of parliamentary representation and majority decision-making in the European political process than in national democracies.11 The focus is then on democratic representation through parliaments.12 These express a form of direct democratic representation and are, in that respect, more legitimated than governments. The increased competencies of the European Union lead to claims of a democratic deficit since powers previously under the control of national parliaments have been transferred to the European Union level and are subject to a lower degree of

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parliamentary participation. This is so because EU decision-making is, to a great extent, controlled by the national governments and the Commission. The role of the European Parliament in the European legislative process is lower than that usually played by national parliaments in the national legislative processes. The consequence is an overall decrease in parliamentary control over the legislative process, which is foreseen as a democratic deficit undermining the legitimacy of the European Union and the powers it exercises. There are two underlying fears: the first is the fear that non-directly accountable government officials may be more easily captured by interest groups and less accountable to the general interests of the people. But there is a second a fear: that a small minority constituted in a particular State will be over-represented in the intergovernmental process and able to impose its preferences, even against an overwhelming European majority. Here, the argument turns into a second form of democratic discourse on Europe. One that focuses on the non-majoritarian character of decision-making. The problems of non-majoritarian decision-making have been exposed in the well-known thesis of the ‘joint decision trap’, developed by Scharpf: briefly, the joint decision trap occurs when the agreement of all national governments is required (unanimity): since all national interests are satisfied and costs are shared (or transferred to EU level), ‘joint decisions have politically more attractive costbenefit ratios’ (Scharpf 1988: 239, 255). However this leads to an increase in expenditure on these programmes at the expense of potentially more efficient programmes.13 States compete for funds independently of real needs, and their different positions are not taken into account. Furthermore, changes to the status quo are strongly limited by the requirement of unanimity, with negative consequences for the efficiency of public policies: ‘when circumstances change, existing policies are likely to become sub-optimal even by their own original criteria. Under the unanimity rule however, they cannot be abolished or changed as long as they are still preferred by even a single member’ (Scharpf 1988: 257). This can also be presented, as Weiler has stated, as another aspect of the democratic deficit: ‘the ability of a small number of Community citizens represented by their Minister in the Council to block the collective wishes of the rest of the Community’ (Weiler 1991: 2403). But this non-majoritarian character is increasingly being linked to a third democratic deficit discourse, that of lack of proportional representation. Nice was emblematic with regard to the growth of a democratic rhetoric that stresses the need to organize representation in Europe according to the principle of equal representation among citizens and not among States. What naturally follows on is the claim for representation that is more proportional to the population of each State.14 Some Europeans, who form a small State, should not have more power than other Europeans who form a larger State. Representation in Europe should move closer to the principle of one person one vote. All these different versions of the democratic deficit correspond to fear of the few or the minoritarian bias.15 But the few who are feared vary. In the first case, indirect representation means low accountability and a higher risk of capture of the political process by concentrated interests. But these concentrated interests can be transnational. In the second case, the fear of the few expresses the risk that a single State

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or a minority of States can block the will of a majority of States. In the third case, the few correspond to a minority of Europeans that can be aggregated in a small State or a group of small States and block the will of a majority of European citizens. A final facet of the democratic deficit, which is less discussed, regards the weakening of judicial control over the political process which arises from European integration and Community law. This is only the case for countries which traditionally have a judicial review of legislation. It is thought that Community law, which, according to the supremacy principle, takes precedence over national law (including constitutional law), is not subject to the same intense scrutiny of a constitutional judicial review to which national legislation is normally subject.16 This can be seen in much of the rhetoric on the need for a better system of protection for fundamental rights in the Union. But Europe’s constitutional problems do not limit themselves to the rhetoric of the democratic deficit. A second major constitutional challenge brought by European integration regards the underlying conditions for the performance of certain functions of governance. Europe’s economic integration has limited the capacity of States to pursue traditional functions of governance, in particular those regarding market regulation and distributive policies. Internal market rules, for example, have impacted on national regulatory policies well beyond trade considerations, in effect constraining national policies in areas as different as social, environmental and consumer policies. Moreover, in some cases, the increase in mobility and economic regulatory competition has also affected national redistributive policies. These limits on the pursuit of these functions of governance at the national level are not compensated for by the degree of EU intervention to secure those functions. The Union as yet does not fulfil the conditions or have the capacity to perform these functions of governance. Fritz Scharpf has presented this as a result of the gap between negative integration (economic integration through national market deregulation) and positive integration (economic integration through Community-wide re-regulation). The consequence is that the process of European integration is seen not simply as challenging the capacity of States to perform those functions of governance but, more broadly, as challenging those functions of governance themselves. For some, the process of European integration challenges the conception of the welfare state that has supported the subsistence of national political communities and molded our conception of public power. Others, notably Jürgen Habermas, perceive that challenge as resulting from broader global processes and, instead, conceive the European Union as an opportunity to respond to that challenge and protect the values of the welfare state required for the subsistence of political communities and civic solidarity (Habermas 2001). In this case what would be required from the current constitutional process is the adoption of a social contract clarifying the forms of civic solidarity on which the European polity ought to be based. This debate on a European social contract is also promoted by an additional constitutional challenge faced by European integration. It regards the increased redistributive consequences of its policies. The assumption of economic integration was increased growth without interference in the distribution function. But

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viable and sustainable integration is only workable if economic growth is fairly distributed. The issue of redistribution is therefore present from the start of any project of economic integration. It is well known in economic theory that, though all may gain from economic integration and trade liberalization, it is to be expected that richer and more competitive countries will gain more than less developed countries (Mestre and Petit 1995: 207, 241). Still the focus of the project of European economic integration has been on efficiency enhancement and wealth maximization. The economic growth to be expected from market integration was to be beneficial to all, albeit not on equal terms. Moreover, the degree of economic and social cohesion of the founding members of the project reassured all that redistributive effects would not impose an undue burden on any of the members. Mainly, as in most economic integration agreements, States make their cost/benefit analysis at the time of signing up and, if necessary, obtain specific compensations for agreeing with certain areas of economic integration. The fact that redistributive effects have taken place as a consequence of the developments in other policies of the Union could also be legitimized in the light of the adoption of unanimous voting for decision-making in the European Community. In this case, States could either prevent policies which could have adverse redistributive effects on their own welfare or could subject their agreement to their receiving some form of compensation in other areas of European policies (a practice referred to as issue linkage).17 It is this that determined the pattern of both the goal-setting and institutional development of the European Communities. In the absence of a common belief in some kind of European ideal or political concept of European integration, integration could only proceed if it pragmatically satisfied as many people or groups as possible. This could be achieved either by guaranteeing that all would have to agree to a specific decision (institutional rule promoting Pareto efficiency) or by agreeing on mechanisms of compensating those who would be worse off by virtue of a certain decision (subordinating institutional and substantive developments to a form of Kaldor–Hicks efficiency). The leading idea justifying free trade mainly involves a kind of Pareto efficiency. Free trade and economic integration will maximize total net benefits without making any one worse off. However, the development of European integration has strained this relationship between the model and degree of integration and its ideals. The degree of integration, the expansion of the EU’s scope of action and its institutional changes are producing redistributive effects which can neither be traced back, any longer, to an original agreement between the States nor be predictable as part of an ad hoc political bargaining system that may legitimize them through appropriate forms of compensation. Instead, the degree of majoritarian decision-making, the scope of European policies and the open and underdetermined character of political action in them require an overall criterion of distributive justice which can legitimize those different policies and their redistributive effects. The institutional shift into majoritarian decision-making (both through the extension of majority voting and parliamentary intervention) and the growth in EU competences tend to give the EU a redistributive impact larger than that which could be functionally legitimized.

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There is a final major constitutional challenge facing the Union. There are increased fears of a constitutional conflict between national legal orders (mainly national Constitutions) and the EU legal order. In reality, both national and European constitutional law assumes, in the internal logic of their respective legal systems, the role of higher law. According to the internal conception of the EU legal order developed by the European Court of Justice, Community primary law will be the ‘higher law’ of the Union, the criterion of validity of secondary rules and decisions as well as that of all national legal rules and decisions within its scope. Moreover, the Court of Justice is the higher court in this legal system. However, a different perspective is taken by national legal orders and national constitutions. Here, Community law owes its supremacy to its reception by a higher national law (normally constitutions). The higher law remains, in the national legal orders, the national constitution and the ultimate power of legal adjudication belongs to national constitutional courts. One may agree as to the validity of the different legitimacy claims of national and European jurisdictions. Still, we are left with the question: Who decides who decides? Or, as we came to know it in the European context, the Kompetenz/Kompetenz question. As mentioned above, following the claim to independent political and legal authority made by the ECJ in its founding decisions, the EU assumes itself as sovereign in determining its own competences. Therefore, it has the power to determine its constitutional borders with Member States. However, the States also maintain that claim to sovereignty on the basis of their respective constitutions. These competing claims can give rise to specific constitutional conflicts and, at the same time, require us to look at the alternative legitimacy bases of the political communities on which those claims are based.

Playing catch-up with legitimacy: Legitimating the European regime18 Several strategies have been devised to face the challenge of legitimacy in Europe. Most of them are reflected in the current agenda for the 2004 IGC and the ‘Constitutional’ Convention. Next, I will assess these different legitimating strategies. I will try to show that the legitimating power of these strategies requires a previous discussion on certain core constitutional concepts and that, in fact, these strategies are not capable of satisfactorily legitimating the European Union. A true legitimating strategy has to be found by looking elsewhere. All the current strategies either assume the need to organize the European polity in a democratic manner (to make the genius behave in a European democratic manner) or to reinstate national control over the European project and legitimate it through the States (to put the genius back into the bottle). None of them really address the fundamental question: What legitimates a European political community and what should that political community do? In other words, what wishes do we want to see realized by the genius? Without answering such questions all other legitimating steps will be deeply contested and European democracy will always be a second best by comparison with national democracy. It will be playing catching up with national constitutionalism and democracy.

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The majoritarian strategy The most common answer presented to the constitutional challenges brought by European integration argues for the assumption of ‘traditional’ democracy at the European level. I will call this the majoritarian strategy but, in reality, this strategy argues for more than simply more majoritarian decision-making. In its different versions, it is a strategy that focuses on institutional reform oriented towards mirroring traditional forms of federal organization. The argument is that the European Union needs an institutional reform of the Union that makes it correspond to the same democratic standards as the nation state. This, it is argued, requires a shift towards majoritarian decision-making and stronger parliamentary control over the legislative and executive functions. This constitutional alternative has often been linked to the arguments in favour of a stronger European Parliament and an extended application of the principle of majority decision-making. It therefore responds to two of the democratic deficit versions that were highlighted above. But entailed in this vision of the European Parliament as the more democratic institution is also a preference for a more proportional form of representing European citizens. The European Parliament is perceived as not only being directly representative and more majoritarian oriented but also as corresponding more closely to a principle of democratic representation based on the idea of one person one vote (i.e. as more closely reflecting the demographics of the different Member States than the Council voting distribution). In this way, it can also be seen as addressing the third form of democratic deficit mentioned above, relating to proportional representation. The discussions surrounding the Treaty of Nice registered an increase in the democratic rhetoric that stresses the relationship between the democratic deficit and the lack of proportional representation. The focus is on the idea of one person one vote and it is, in great part, on this basis that larger States argued for their voting positions to be reinforced (particularly in the Council). This idea is to make its institutional model fit closer to the democratic model in place at the level of the Member States. Many current proposals follow that perspective. They include an executive that is stronger but more accountable to the Parliament; reinforcement of the legislative powers of the latter; more majoritarian decision-making; greater proportionality in representation, etc. The aim is to reproduce the institutional mechanisms of the separation of powers and democratic accountability that legitimize the powers and deliberation of national political communities. These are the institutional models associated with the traditional conception of democratic constitutionalism. It is thought that only by adopting such a model can the European Union become legitimate and match the democratic legitimacy of the Nation States. There are serious problems with what appears to be the preferred strategy of legitimation through institutional reform. The first problem is that such a strategy overstates the legitimating power of its proposals for institutional reform. Some examples can be given in this regard. One of them relates to the generalized but largely wrong perception that the Union does not fit within the democratic criteria of proportional representation. In reality, if compared with a federal system, such

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Table 4.1 Voting weight attributed by the Treaty of Nice compared with what the voting weight should be in terms of proportional representation

Germany UK France Italy Spain Netherlands Greece Belgium Portugal Sweden Austria Denmark Finland Ireland Luxemburg Total

Voting weight after Nice (%)

Voting weight in ‘ideal proportionality’ (%)

12.24 12.24 12.24 12.24 11.39 5.49 5.06 5.06 5.06 4.22 4.22 2.95 2.95 2.95 1.69 100

15.12 12.06 12.05 11.99 9.34 5.98 4.64 4.61 4.58 4.47 4.41 3.22 3.20 3.03 1.29 100

Source: Adapted from D. Leech, Fair reweighting of the votes in the EU Council of Ministers and the choice of majority requirement for qualified majority voting during successive enlargements, London: CPNSS, London School of Economics. Available at www.lse.ac.uk/Depts/cpnss/projects/vp.html.

as the United States, the European Union is perhaps already closer to proportional representation than equal representation among its States. In the United States, one of the legislative chambers still reflects the principle of equality among States (the Senate). In the European Union we currently have a system where the two main bodies with final legislative authority (the Council and, albeit still with lower powers, the Parliament) are increasingly closer to proportional representation. The Council is still often presented as being closer to the principle of equal representation among States but that is largely a wrong assumption. In fact, where it decides under a qualified majority (nowadays, most of the time it legislates) the distribution of votes among States is quite close to perfect proportional representation, as the table below shows. In this regard, where votes are allocated as blocks (as in the case of the Council) the most consensual models for expressing proportional representation have been developed by Lionel Penrose19 and John Banzhaf 20 and both establish that votes should be proportional to the square root of the population (because the smaller the communities the stronger the swing-vote power of their members). If we apply this criterion to the European Union and compare it with the distribution of votes in the Council after Nice one can conclude that it already quite closely reflects the principle of perfect proportional representation (see Table 4.1). In reality, even with the current distribution of votes, this is actually already the case to a great extent (Reime 1999).

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Since the European Parliament has always been an institution more based on the idea of proportional representation, the paradox is that the European Union has moved, in a substantial area of its legislation, towards a bi-cameral system (Council and Parliament in codecision and cooperation procedures) where both institutions are now closer to expressing the principle of proportional representation. In those areas of legislative powers, the EU is probably more majoritarian than the United States (in the sense that the bi-cameral system of the latter more strongly reflects an idea of equality among States). Small and medium-sized European States have less voice than their American counterparts. As a consequence, a simple institutional reform favouring majoritarianism and proportional representation in the Union may aggravate instead of solving Europe’s democratic questions. Another problem with a majoritarian strategy is that it assumes a democratic superiority of majoritarian decision-making that is not necessarily true. In the first place, it has been powerfully argued by Buchanan and Tullock that, once we assume an anthropocentric perspective of social decision-making, there is no a priori superiority of the majority rule (Buchanan and Tullock 1965). This is based on a democratic notion that stresses the idea of individual freedom to pursue happiness and therefore highlights the notion that any interference with that autonomy must be legitimized by something more than a majoritarian will (why should the majority tell me what to do?) and traced back to an individual commitment to the application of the majority rule in that case. Even if this individual-centred conception can be contested, the reality is that constitutionalism requires a notion of democracy beyond majority decision-making and often limits the latter. In fact, constitutionalism is about reaching a balance between the democratic will of the majority and the rights of the minority, between the common values of the polity and the individual preferences of its members. All the major constitutional arguments and doctrines gravitate towards this complex system of countervailing forces set up by constitutional law: the empowerment of the majority for the democratic exercise of power and the limitation of that power so that it is not used against a minority. There are two basic fears underlying constitutional discourse and organization: the fear of (the power of) the many and fear of the few (Komesar 1994). The core of constitutional law is the balance between the fear of the many and the fear of the few. Constitutional law sets up the mechanisms through which the many can rule but, at the same time, creates rights and processes for the protection of the few. One can say that the function of constitutional law is to assure that the few do not rule over the many but, at the same time, to guarantee that the many will not abuse their power over the few. Any institutional reform of the European Union must address both the fear of the few (the risk of minoritarian bias) and the fear of the many (the risk of majoritarian bias) and their different variants. Authors arguing for a more majoritarian system and a transfer of powers to Parliament, for example, underline the risks of certain forms of minoritarian bias in the present status quo but forget to assess the risks underlying the alternative that would follow from their proposals. Moving decision-making from an intergovernmental body to a European Parliament may not reduce the risks of minoritarian bias (that is, the over-representation of the few at the cost of the many). It may simply change the character of that minoritarian bias. The higher the number of people represented the more difficult it will be to organize dispersed

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interests due to the low stakes of individual members and the information and organization costs involved. Moreover, the absence of a European public sphere means that for the majority of European citizens there are still high transaction costs involved in Europe-wide political action. That being the case, national levels of representation may perform better in organizing and mobilizing even a European majority. The information and transaction costs of participating in the European political process at the level of the European Parliament may be higher than participating in the European political process through national governments. As a consequence, in issues where the European majority interests are quite dispersed it may be easier for a minority of concentrated and organized interests (even a national minority) to capture the European Parliament political process than the intergovernmental political process, where different national governments may act as catalytic elements of the cross-national majority. Thus, depending on the issues and the interests at stake, the European Parliament may actually be subject to a higher risk of minoritarian bias than the intergovernmental process. At the same time, the transfer of powers to the European Parliament and the increase in majority decision-making to ‘prevent’ minoritarian bias may raise the opposite fear: that of the inordinate power of the many over the few. We have no guarantee that the interests derived from a majority decision are higher than the costs it imposes on the minority. This is not to say that certain institutional reforms are not desirable. It simply serves to prove that they must be based on a much more sophisticated analysis than the one that frequently supports the current calls for more majoritarianism, proportional representation and parliamentary control. But there is a final problem faced by the strategy of legitimation through institutional majoritarian reform. What, from a European perspective, can appear as an increase in democracy, from a national perspective may well constitute a decrease (since nationals that previously controlled their national policies are now subject to the European majority) (Weiler 1991). It all depends on the polity taken into consideration in measuring democracy and applying the majority principle.21 This is the fundamental problem affecting the viability of the institutional strategy. As stated above, this strategy responds to the erosion of national powers and representative democracy by reintroducing them at the European level. It is a constitutional model that meets the challenges to national democracy by developing European democracy. But, in doing so, it replaces the national polity with the European polity. However, it is precisely the existence of such a polity that needs to be ascertained and legitimized. To talk about a European democracy assumes that the relevant jurisdiction to measure democracy is the European polity and no longer the nation state. Without first explaining the need for such a European polity and clarifying the nature of its relationship with national polities, any institutional reform is bound to raise new versions of the democratic deficit and the Union will always look a second order democracy vis-à-vis the Nation States.

The fundamental rights strategy The second strategy for legitimation, reflected in the Declarations on the Future of Europe, focus on the role of the Charter of Fundamental Rights adopted in Nice.

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However, recent developments appear to demonstrate that the Charter will acquire an important status in the case law of the European Court of Justice as an essential element in the interpretation of the fundamental rights that form part of the Member States’ constitutional traditions. As is well known, the Court of Justice has considered such fundamental rights as constituting part of the fundamental legal principles that the Community legal order must respect.22 Even so, the Charter was not supposed to be more than an exercise in the codification and consolidation of the rights already recognized in the ECJ’s case law and Community legislation. Some of the provisions of the Charter even appear to restrict the scope of the protection of fundamental rights in the European Union. Notably, Article 51 only refers to the application of these fundamental rights to Member States when they are implementing Union law, contrary to the more extensive scope of application recognized in the case law of the European Court of Justice. In the latter, EU fundamental rights may also be applied to State acts that diverge from EU norms. If interpreted literally, Article 51 could lead to a more restrictive application of EU fundamental rights.23 The same restrictive concerns appear to underlie other general provisions. Article 51 (2) establishes that the rights set out in the Charter cannot constitute the basis for new EU competences. Article 52 (2) makes it clear that the fundamental rights that are set out in the Charter and correspond to Treaty rights are subject to the limits and conditions established in the Treaty. This, for example, subjects the general right to individual freedom of movement, as proclaimed in the Charter, to the conditions and limits to which it is subject in the EC Treaty. Curiously, or maybe not, there appears to be a paradox in the way the Charter is drafted: its catalogue of rights is, perhaps, broader than what would simply result from the consolidation of previous Community legislation, Treaty norms and the Court’s case law, but the scope of application of these rights is substantially limited in its general provisions. This may express a kind of dualistic approach to the Charter: some saw it as a constitutional moment in the process of European integration; others saw it as the simple codification of pre-existing law. As it stands, the legitimating power of the Charter, even if made legally binding, will be quite limited. Its function will be substantially similar to that already provided by the Court of Justice standards of fundamental rights protection. If made legally binding, the major consequence will be greater control over a legally developed fundamental rights catalogue and a higher degree of transparency for European citizens. However, the European discourse on fundamental rights would not be substantially broadened and therefore its polity building power will be limited. In fact, the European fundamental rights discourse would continue to be restricted to the original concern of guaranteeing that EU acts did not threaten the fundamental rights traditionally protected by the Member States. In this respect, EU fundamental rights protection will again be a form of ‘catchup’ legitimacy. It would serve to present the EU as a political community closer to the constitutional standards of national political communities without really justifying the need for and role of a European political community. At the same time, there are no substantial risks of the violation of fundamental rights by EU institutions and it can hardly be said that this risk constitutes a current legitimating problem for the Union. The function of the Charter in this regard would be

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predominantly symbolic but with that limited scope it cannot really assume the polity building function that some hope for. The polity building power of a European fundamental rights discourse would require such discourse to be linked to much more ambitious and contested dimensions of fundamental rights protection in the European Union. The first possible dimension is to understand a European Charter of Fundamental Rights as affirming a set of common European values that constitute the basis of a common European political identity. This dimension is reflected in the higher expectations that some place in the Charter as the basis for a legitimacy strategy underpinned by an understanding of the Charter as a centre for continuous discourse and deliberation that would lead to both a constant affirmation and redefinition of the European political identity. This conception can also be related to the rhetoric that legitimated the interference in the Austrian national political process when Mr Haider’s extreme right-wing party was ‘co-opted’ to power. The other Member States considered themselves entitled to act against Austria because they affirmed the need to protect a set of European political values even in the internal sphere of Austria. However, this incorporation of European political values in Member States’ domestic orders is still not expressly assumed in EU law. In that regard, it is well known that the general catalogue of EU fundamental rights does not, in general, apply to acts of the States, and the Charter does not change this approach. Fundamental rights protection at the level of the States is left to the national constitutions and/or the European Convention of Human Rights and Fundamental Freedoms. However, this leads to a permanent tension in the European Union between the need to affirm common political values and the lack of adequate instruments to realize them. This was clear in the paradox embedded in the Member States’ reaction to the situation in Austria: their intervention was legitimized on the basis of a need to protect common political values related to democracy and human rights; however, the intervention took the form of traditional sanctions under international law without any form of constitutional safeguards in light of those same values.24 The use of a Charter of Fundamental Rights to develop common European political values may be a powerful polity building tool but all will depend on a previous decision on the extent to which those political values should also apply to the States. There is a second dimension that a European Charter of Fundamental Rights could assume: that of a Charter of European Citizenship that focuses on a new set of rights granted to individuals vis-à-vis all national political communities (both their own and others) and transnational processes. In other words, the rights linked to a new form a citizenship, which are relevant in the context of a plurality of political communities and the growing deterritorialization and atomization of power.25 It will be argued below that this should be one of the preferred paths for legitimacy in the European Union but, to argue that way, one must, again, first discuss the telos of European integration and the nature of the European political community. To define what other roles an EU fundamental rights strategy should assume, beyond guaranteeing EU compliance with traditional national fundamental rights standards, we must first agree on the political goals of the project of European

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integration. We need to provide polity legitimation in order to determine the scope that fundamental rights discourse can assume in the EU. This requirement explains why every one of these further dimensions is absent from the current Charter. The current Charter and the strategy of legitimation linked to it appear to be limited to the first dimension highlighted: guaranteeing that the use of European powers will not challenge the standards of fundamental rights protection granted to European citizens in their States. But this, as stated, will again be a form of catching up and second order legitimacy that will not be capable of addressing the real challenge of legitimacy faced by the European Union: how to legitimize the claim to independent political power assumed by an emerging European polity and how to do it without eliminating the equal claims to independent political power from national political communities.

The competences strategy Another topic in the driving seat of the current constitutional debate regards the setting up of clearer limits on EU competences.26 Again, it will not work. There are both pragmatic and normative reasons to explain why a strategy based on the better delimitation of competences should not be a priority in the search for legitimacy in the European Union. In the first place, it will be quite difficult to devise a workable general and abstract criterion that can make a clear allocation of competences between the States and the Union. The history of federal systems tells us how ineffective it is to trust the role of clearly allocated competences between different levels of government to either a catalogue of competences or an abstract criterion. The same can be said about the practice of European integration and the limited effect of the principle of subsidiarity. Once the threshold of simple intergovernmental cooperation and limited competences is passed the idea of a clear allocation of competences is surpassed by the dynamics of political action and institutional interpretation. Once you have a new level of independent political power, this level is bound to be used by any social actor that is not satisfied with the national or local resolution of a certain policy issue. In this context the question of allocation of competences really comes down to the question of who should allocate those competences.27 Moreover, who should decide on who can best exercise a certain competence? And to what kind of institutional constraints should the exercise of that competence be subject? Therefore, the usefulness of discourse on competences is strongly limited by the constraints highlighted and it would be better if it concentrated on the question of who should decide on the competences and how those competences should be exercised. For example, one should focus on increasing transparency and accountability in the exercise of competences, making clearer to the citizens who have decided on what and who participates in the different levels of decision-making. But once more this will only provide the EU with a limited form of legitimacy. It will not provide legitimation for the issue of why the European Union has assumed the character of a political community of open and undetermined political goals on which the imposition of clear limits of competences does not work. Of course, one can

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challenge the EU’s claim to be a political community but that would require the return of a purely intergovernmental process of European integration. This implies a different strategy to face the problems of the legitimacy of the European integration process, which will be discussed below. There are also strong normative problems with a strategy of legitimation based on trust in a clearer allocation of competences. First, many competences cannot be adequately distributed on an abstract level and are better allocated on the basis of a comparative institutional analysis that takes into account the real world contexts of participation in the different institutional alternatives for exercising those competences. For example, it is often proclaimed that competences should be exercised as closely as possible to the interests affected. However, it is misleading to assume that the institutions closest to the interests affected are always the most apt to exercise the competences affecting those interests. In fact, it may often be the case that that circumstance leads to the capture of those institutions by concentrated interests to the detriment of a dispersed majority. In the real world, more distant institutions may perform better in regulating local interests where the local institutions are particularly susceptible to capture by regulated interests. That will not always be the case but this serves simply to prove the point that an abstract allocation of competences ignores these institutional dynamics and therefore presents serious normative problems. The second type of normative questions raised by the strategy of competences is related to the underlying conception of the European political community that must support any such strategy. Often, the question of competences is presented as an issue of simply determining who is more efficient or effective in performing certain competences. In reality, this often hides profoundly different conceptions of the European political community. Let us the take the example of the German proposals for the renationalization of the limited redistributive policies of the EU. This proposal is based on the argument that redistributive functions are better exercised by the States. However, this type of choice cannot be presented as based on a neutral criterion of efficiency or effectiveness regarding who is more apt to exercise those competences. Instead, these are choices closely linked to previous choices on the nature of the European political community. The renationalization of redistributive policies only makes sense if one takes the Nation States, not Europe, as the basis for the duty of solidarity and distributive justice between citizens. Underlying such a proposal is a particular conception of the European political community and the nature of the political and civic links between its citizens. Without discussion of the latter, any debate on competences is seriously flawed. Again it requires a previous discussion on the legitimacy of the EU polity.

The constitutional strategy One of the most frequently heard theses, usually supported by the European Parliament, is the claim for a formal European Constitution. The Declaration of Laeken appears to finally adopt such goal as an essential element in the strategy for legitimating the European Union. The idea is to replace or complement the

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Treaties by a formal constitution establishing Europe’s constitutional principles, fundamental rights and political organization. Several arguments are put forward in defence of such a thesis. Some are linked to the other strategies highlighted (a catalogue of fundamental rights, a clear allocation of competences, a ‘truly’ democratic institutional system for the Union). The formal constitution is presented as the instrument to bring forward these changes. In this respect, the project of a formal constitution is bound by the limits already highlighted on the legitimating power of those strategies. It is also not a necessary element to bring them forward. The same reforms can be introduced by legal instruments not having the character of a formal constitution. But there are other more powerful arguments put forward in favour of a formal constitution.28 First, this constitution is expected to clarify the present constitutional system and its relationship with national constitutions and, in this process, confirm the independent authority of the European Constitution vis-à-vis those national constitutions. Second, the process of drafting a formal constitution will be itself a polity building process and will finally grant European citizens the final control over constitution-making in Europe. It will create the European demos through the exercise of its pouvoir constituant at the European level. With regard to the first argument, it is debatable whether we should in fact clarify the present relationship between the European and national constitutions. Is it not a particular trademark of European constitutionalism that it is built in cooperation with national constitutions? (Chalmers 1997: 180; Mortelmans 1996: 42–43). Does that not reflect the nature of the relationship between the European and national constitutions, i.e. nonhierarchical and based on discourse and mutual adaptation to each other?29 And, finally, does this not, in turn, reflect the nature of European constitutionalism as found in the competing claims of the European and national political communities? As we have seen above, both national and European constitutional law assumes the role of higher law in the internal logic of their respective legal systems. In this way, the question of who decides who decides receives different answers in the European and national legal orders30 and, when viewed from a perspective outside both national and Community legal orders, requires a conception of the law which is no longer dependent upon a hierarchical construction. One may agree about the validity of the different legitimacy claims of the national and European jurisdictions. But we are still left with the question: Who decides who decides? Or the Kompetenz/Kompetenz question. A formal constitution is expected to solve this question by granting ultimate supremacy to EU law as a higher constitutional authority derived from the exercise at the European level of a pouvoir constituant. But this answer may, in effect, not be compatible with the type of European constitutionalism that we prefer, based on competing European and national political communities and the absence of a clear allocation of authority between them. In this case, what is needed is to rethink constitutionalism itself. In a sense, the question of ‘who decides who decides’ has long been around in constitutionalism, even in non-federal (or, if you prefer, non-multi-level) systems. It is a normal consequence of the divided powers system inherent in constitutionalism. In fact, it can be considered as an expected result of the Madisonian

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view that the separation of powers creates a mechanism of checks and balances. In the European Union, we would be extending this notion of divided powers to the Grundnorm itself. Or, if you prefer, there is no longer an ultimate sovereign authority but competing claims to sovereignty that have to be managed in a nonhierarchical manner. A hierarchical alternative imposing a monist authority of European law and its judicial institutions over national law would be difficult to impose in practical terms and could undermine the basis of the legitimacy on which European law has developed.31 In law we too have to learn how to manage the non-hierarchical relationship between different legal orders and institutions and discover how to gain from the diversity and choices that they offer us, without generating conflicts that will ultimately destroy those legal orders and the values they sustain. There is much to be gained from a pluralist conception of the EU legal order. In a world where problems and interests have no boundaries, it is a mistake to concentrate the ultimate authority and normative monopoly in a single source. Legal pluralism constitutes a form of checks and balances in the organization of power in the European and national polities and, in this sense, it is an expression of constitutionalism and its paradoxes. But, to take full advantage of this legal pluralism, we need to conceive forms of reducing or managing the potential conflicts between legal orders while promoting exchanges between them and requiring courts to conceive their decisions and the conflicts of interest at hand in the light of a broader European context. This will also highlight the transnational character of much of these conflicts, which is often ignored by national constitutional law. The problem with a formal constitution is that it is a reflection of a particular model of constitutionalism, that of national constitutionalism, that is associated with a State and an ultimate sovereign authority. It reflects a form of constitutionalism that is not and ought not to be that of European constitutionalism. The final argument in favour of a formal European constitution is the most powerful one: a formal constitution is necessary as a process of polity building and an instrument with which to involve all European citizens in the process of European integration and the establishment of its political identity. There are two elements in this: first, the process of making a formal constitution is expected to create a European constitutional moment; second, that formal constitution will be the basis for a permanent European-wide discourse that will sustain a European public sphere and its polity building dynamics. These are, in my view, essential elements in the polity legitimacy that the European Union currently requires. A political community needs a permanent public and reflective discourse on its political values. Constitutional texts normally provide the basis for that discourse. They provide a common platform of agreement on the basis of which political conflicts assume the nature of competing rational arguments on the interpretation of shared values – not the character of power conflicts without mutually accepted (or agreed on) solutions. Text does matter in this context. But what is not required is for such a text to assume the nature of a formal constitution. Europe needs a constitutional moment whereby European citizens are mobilized to promote a constitutional debate that would allow us to move beyond the

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current locked positions of States. Paradoxically, the current social dissatisfaction with the process of European integration may trigger a true mobilization of European citizens in a constitutional process. The history of constitutionalism tells us that is often when the political and social status quo become strained that a constitutional moment arises.32 This constitutional moment is characterized by the broad involvement of citizens in a truly deliberative process that manages to depart from locked-in social positions and therefore puts the participants as close as possible to a societal original position under a veil of ignorance. But the possibility of a European constitutional moment should not necessarily lead to a formal European constitution. Another type of text may better reflect the peculiar type of constitutionalism on which Europe can be legitimated. And that text can serve as well to provide the basis for that rationalization of political conflicts that characterizes successful political communities.

An alternative strategy: Legitimating the European polity What do all these four strategies have in common? They all attempt to legitimize the claim to open and independent political authority derived from the processes of constitutionalization and Europeanization at the European level by making sure that such political authority is exercised in a constitutional and democratic manner. But the yardstick selected is that of the particular model of nation state constitutionalism. At the same time, the first legitimacy question remains unanswered: What legitimates such a claim to being a polity with open and independent political authority in the first place? The existence of a new political community at the European level is, implicitly, accepted as given and the legitimating efforts turn into making such a new form of political organization and power conform to the traditional standards of national democracy. But this inevitably leads any European citizen to assess the legitimacy of European integration through a comparison between its marginal power of participation in the European and national political processes with regard to the competences that have been transferred from the States to the Union. In this light, the European Union always tends to lose. This relates to what has been called regime legitimacy:33 here, this means the legitimacy of the institutional and procedural mechanisms through which power is exercised in a polity. This is a necessary form of legitimacy for the Union but it is not sufficient to legitimize the claim to the existence of that political community. Moreover, in this regard the European Union will always appear to have second order legitimacy vis-à-vis the Nation States. Finally, even such a limited form of legitimacy is linked, as we have seen, to the application of core constitutional concepts such as the concept of a political community, the fear of the few and the many and the question of who decided who decides. These concepts are deeply contested in the European Union and without first rethinking them it is impossible to provide even a satisfactory solution to the limited form of regime legitimacy.34 Any search for legitimacy for the European Union must start by justifying the need for a new form of political community. The initial legitimacy question must

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be: Why have a European political community at all? There are those who simply deny this possibility. They argue that there is no basis for legitimating a European political community and therefore what is required is a return to a much less ambitious process of European integration. In this light, what created the legitimacy deficit were the processes of constitutionalization and Europeanization. There is no basis for Europe to claim independent political authority linked to a community of open and undetermined political goals. A polity requires a community with a high degree of cultural, ethnic or historical cohesion, which is not the case with the European Union. Instead, this type of community is still identified with the nation state. Here, the problem of European constitutionalism does not derive from the absence of regime legitimacy but from the absence of a demos capable of legitimizing such constitutionalism in the first place. All the other legitimacy problems are simply reflections of this initial legitimacy gap. This view is at the origin of the arguments in favour of a return to limited express competences and intergovernmentalism with, where necessary, a role for national parliaments at the European level. It is an analysis which still sees national democracies as the highest source of constitutional legitimacy. As a consequence, the final authority between national and European ‘constitutionalism’ belongs to national constitutions. Paradoxically, this view has a common starting point with the strategies of legitimacy highlighted above. It assumes the national constitutional representation of constitutionalism as the proxy of constitutionalism (its ideal model). But, in doing this, it ignores that national constitutionalism is simply a contextual representation of constitutionalism and does not constitute its ideal expression. There are also serious problems faced by national constitutionalism, and a European political community and European constitutionalism may bring important added value with regard to those problems. It is precisely here that we can find the basis for the legitimacy of Europe’s claim to have independent political authority and be a community of open and undetermined political goals. National political communities also suffer from serious constitutional problems and democratic deficit. There are at least three forms of national democratic deficit with regard to which European constitutionalism may bring added value to European citizens. First, national political processes no longer control many decision-making processes which impact on the national polity but take place outside its borders. In many cases, these are transnational processes (such as those of regulatory competition) that escape national democracies. Second, it has always been true that national democracy excludes many of the interests affected by its decisions from participation and representation in the national political process. Elsewhere I have presented this as the paradox of the polity: a polity is both a condition for democracy and a limit on democracy (by limiting those that participate in the democratic process).35 This is hard to reconcile with the claims of the modern citizen to have a voice in any polity that affects him or her and even to have a choice between different polities.36 It is becoming increasingly obvious how artificial the jurisdictions of democracy are and how deficient the correspondence is between the democratic polities in which we participate and the democratic polities that affect us (Held 1995). National democracy cannot cope with

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our desire to be involved in different polities and does not legitimize the different decision-making processes that affect our lives. Third, even from an internal perspective there is a growing perception of institutional malfunction in national democracies. The recognition that the political process may be captured by small concentrated interests is one of the examples of the challenges facing traditional democratic models through parliamentary representation. But that is also the case with the recognition that collective decision-making often takes place outside the political process or that representation and participation depend on a set of variables much more complex than simple political participation through elections. In some cases, national political processes have become imbued with certain values and assumptions that are no longer subject to deliberation. However, these values and assumptions are frequently the expression of particular interests.37 Economic protectionism and the frequent ‘hijacking’ of the powerful concept of the national interest are typical examples of these limits on the truly deliberative character of national democracies. European constitutionalism can be of added value to the citizen with regard to the different democratic deficits of national political communities. The first of the grounds for the legitimacy of the European Union can be found in the democratic improvement of national political processes with regard to nationals of other Member States. Much of the ethos of European integration can be linked to this idea of increased inclusiveness in national political communities. In activities ranging from guaranteeing peace to promoting the inclusion of out-of-State interests in national policies, we can probably find the most significant democratic added value of European integration.38 As stated before, we are increasingly being affected by polities in relation to which we have no control or democratic participation. Those polities, which may be organized internally in a democratic manner, affect us both as citizens within the borders of our national polities or as ‘wish-to-be citizens’ who would like to conduct our lives outside our original polities. European law can (and has done so, to a certain extent) increase democracy in national polities by requiring these polities to have some form of representation of the foreign interests affected by its decisions. This can be done in two ways: first, by creating mechanisms that impose the internalization in national political processes of the interests of other national polities which are affected by those decisions; second, by granting citizens of the European polity rights of participation in any national polity in which they choose to set up residence. This second form of inclusion also provides a new dimension of citizenship. We could call it plural citizenship and link it to a form of meta-democracy: the possibility of choosing among different political communities. National democracies tend to be mutually exclusive. Our participation in different democracies is usually limited or impossible. So is our freedom to choose the political community of which we would like to be members. What guarantees democracy (our acceptance of the decisions taken by the majority of the polity of which we are members) also limits our enjoyment of it. This happens in two ways: first, by preventing our democratic participation in a polity of which we are not members; second, by traditionally restricting our citizenship to a particular

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polity, defined in a strong historical and ethnic sense. We are not really free to choose the political community of which we want to be members simply on the basis of political adhesion to the values and processes of a particular political community. In this respect, European integration can give us a new form of democratic participation: the freedom to choose among different national democracies or, in other words, the right to choose between different political communities. First, it will give us the right to choose the national democracy of which we would like to be members; second, the competition among the different national democracies generated by that freedom of choice will also improve the democratic operation of each national polity. European integration can also improve the representation and participation of domestic interests in the national political process, thereby improving national democracy even from its internal perspective. In other words, even if the national polity is the only jurisdiction taken into account in measuring democracy, there is democratic added value arising from European integration. The inclusion of foreign interests in the national political processes will in many cases lead to the satisfaction of dispersed national interests that were previously under-represented in that national process. In other words, it may help to correct democratic malfunctions in the national political process arising from the capture of the political process by concentrated interests (a minoritarian bias). Most instances of discrimination against (or under-representation of) foreign nationals in national political processes are, at the same time, instances of capture of the national political process by a national interest group to the detriment of the interests of a dormant national majority.39 In these cases, the inclusion promoted by EU law also provides an opportunity for further and more open deliberation at national level, frequently exposing those instances of regulatory capture. In a broader sense, the existence of a European political community provides, even in cases of purely domestic disputes, an opportunity for correcting biases in the national political processes. In some cases, it may even make sense to have the European Union play a role in purely national disputes if the national political process is suspected of a serious form of majoritarian or minoritarian bias. The reverse is also true. There is another process through which European integration can help improve national democracies even from a purely domestic perspective. The existence of a European political authority provides for rules on the system of inter-dependence and competition among States which is generated by European economic integration. This European regulation of regulatory competition should be used to prevent negative externalities (cross-national transfer of costs derived from national policy choices) that affect accountability in national political processes. At the same time, competition among States, subject to regulation, can increase both the efficiency of national policies and national comparative information. The open method of coordination can also be seen as a new form of competition among States, capable of improving national deliberation on particular policies. National democracies also feel increasingly threatened by the forces of globalization and market competition. These processes are often perceived as imposing, on those national political processes, decisions which arise from the need to be

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competitive in the global market even if those decisions do not correspond to the majoritarian preferences of the members of that national polity. The European political process can be a form of regaining political control over the market. It is also possible to give a different reading to such a transfer of power to the market and the role in it of the European Union. In effect, the market can also be seen as a source of democracy. In this case, the voluntary agreements between individuals taking place in the market in the form of transactions are considered to be the best form of democratic decision-making. In this light, some argue that the main function of European integration should instead be to devolve powers to the market by limiting any form of public (State or European) intervention in it. In this case, the legitimacy of European constitutionalism would be found in the limits it imposes on any form of public power. But this would also place strong limits on the role to be played by a European political community. Whatever the perspective taken on the democratic value of the market, there is added value to be gained from European integration. It subjects many of the decision-making powers which have evaded the States through globalization and market competition to a new form of democratic assessment. What happens is that the State’s political process is no longer considered the exclusive owner of democracy. As we have seen, this is both a natural consequence of the limits of the democratic jurisdictions of the States and the democratic malfunctions in the State’s political process. The European Union provides a forum in which to compare the different institutional alternatives arising from trade liberalization (the State’s political process; the European Union’s political process; and the market) under common democratic criteria. But the European Union can also be used to democratize each of those institutions. It is in this democratic role that we can find the polity legitimacy of the European Union; the basis for its claim to independent political authority from the States. Only after satisfying this requirement can we move into a discussion on the forms of regime legitimacy. The current constitutional agenda should, therefore, focus primarily on building the Union’s polity legitimacy by looking at ways of enhancing its role in the reform of national political processes, the construction of a plural form of citizenship and the democratization of transnational decision-making processes.

Notes 1 This paper was originally written for the ARENA European Conference 2002: Democracy and Governance in Europe-5 February, Oslo. Since the issues which are discussed in the paper remain relevant even after the convulsions of the Constitutional Treaty and the Lisbon Treaty and, to some extent, anticipate and therefore help explain some of the problems and discussions surrounding those Treaties, the author agreed to publish the paper in its original form. When the paper was written the author was a professor at Universidade Nova de Lisboa. His current functions as Advocate General at the Court of Justice prevent him from writing a new version of the article taking into account the Treaty of Lisbon. 2 I am sure there will be no shortage of references to these works in this book but here goes one more footnote with some classic texts on the constitutionalization of Community law: J.H.H. Weiler (1999) The Constitution of Europe – ‘Do the New Clothes Have an

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Miguel Maduro Emperor?’ and Other Essays on European Integration, Cambridge: Cambridge University Press; K. Lenaerts (1990) ‘Constitutionalism and the Many Faces of Federalism’, American Journal of Comparative Law, 38: 205; E. Stein (1981) ‘Lawyers, Judges and the Making of a Transnational Constitution’, American Journal of International Law, 75(1): 1; G.F. Mancini (1989) The Making of a Constitution for Europe, 26 CMLRev, p. 595. Some authors go further than talking about the constitutionalization of EU law. See Case 6/64, Costa v. Enel [1964] ECR 585 and Case 26/62, Van Gend en Loos [1963] ECR 1. In this light, it becomes understandable for Santiago Muñoz Machado to argue that it is the power of constitution-making (el poder constituyente) itself that is being transferred. S. Muñoz Machado(1993) La Unión Europea y Las Mutaciones del Estado, Madrid: Alianza Editorial, p. 59. Current Article 308, which has been interpreted by both the EC political process and the ECJ as granting almost any competence that can be argued as necessary to achieve one of the broad goals of the European Community. Articles 95 and 96. Compare for example, Article 100A and Article 235. ‘La Costituzione Europea’, (1991) Quaderni Costituzionali, No.3: 487–508. For a critical review and some exceptions, see: J.H.H. Weiler (1993) ‘Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration’, Journal of Common Market Studies, 31: 417, and J.H.H. Weiler (1997) ‘The Reformation of European Constitutionalism’, Journal of Common Market Studies, 35(1): 97; Martin Shapiro (1980) ‘Comparative Law and Comparative Politics’, Southern California Law Review, 53: 537–542; H. Schepel and R. Wesseling (1997) ‘The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing’, European Law Journal, 3: 165. See also Miguel Poiares Maduro (1998) We the Court: The European Court of Justice and the European Economic Constitution, Oxford: Hart Publishing. There are other issues which can be pointed out as examples of the lower ‘quality of democratic representation’ in the European Parliament, such as different national voting procedures and the unproportional representation of the nationals of some Member States. K. Lenaerts and E. De Smitjter (1996 )‘The Question of Democratic Representation: On the democratic representation through the European Parliament, the Council, the Committee of the Regions, the Economic and Social Committee and the National Parliaments’, in J.A. Winter, D.M. Curtin, A.E. Kellermann and B. De Witte (eds) Reforming the Treaty on European Union – The Legal Debate, The Hague: Kluwer Law International, pp. 173, and 180–182. Another important handicap in the development of representative democracy and the operation of the European Parliament is the absence of real European political parties. See Lucas Pires (1997) Introdução ao Direito Constitucional Europeu, Coimbra: Almedina. This can be related to a more general political/ideological deficit in the process of European integration whose developments take place in a context without any ideological debates. See Weiler, op. cit. and Shapiro, op. cit., note10. See, for example, Lenaerts and De Smitjter (1996) op.cit. pp.173, and 175. These authors, however, recognize that the democratic deficit will not be solved on the basis of a simple transfer of parliamentary democratic representation to the EU level. Indirect representation of this kind is also envisaged through national parliaments, for example. See mainly at p.178. Ibid., especially at pp. 247–249 and 255–256.

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14 Whether, however, the second statement follows from the first is very doubtful and will be discussed below. 15 The expression originally belongs to Neil Komesar (1994) ‘Imperfect Alternatives– Choosing Institutions in Law’, Economics and Public Policy, Chicago, IL: Chicago University Press. 16 See J.H.H. Weiler, U. Haltern and F. Mayer, (1995) ‘European Democracy and Its Critique – Five Uneasy Pieces’, Harvand Jean Monnet Chair Working Papers. 17 According to Shlomo Weber and Hans Wiesmeth, ‘an international regime … provides a political environment that naturally promotes issue linkage: by affecting “transaction costs”, the costs associated with acts of non-co-operative behaviour, it makes it easier to link particular issues and to negotiate side-payments that allow some actors to extract positive gains on one issue in return for the favours expected on another’, ‘Issue Linkage in the European Community’, Journal of Common Market Studies, 29(3): 255 and 258. 18 The distinction between regime legitimacy and polity legitimacy (see below) was advanced by Bellamy and Castiglione [see R. Bellamy and D. Castiglione (2001) ‘Normative Theory and the European Union: Legitimising the Euro-Polity and its Regime’, in L. Tragardh (ed.) After National Democracy: Rights, Law and Power in the New Europe, Oxford: Hart Publishing] and recently also used by Neil Walker (2001) ‘The White Paper in a Constitutional Context’, Jean Monnet Chair Working Paper 6/01. Text available at www.jeanmonnetprogram.org/papers/01/011001.rtf. The meaning in which these expressions will be used here does not totally coincide with the meanings attributed to the expressions by these authors. 19 L.S. Penrose (1946) ‘The Elementary Statistics of Majority Voting’, Journal of the Royal Statistical Society, 109(1): 53. 20 J.F. Banzhaf III (1965) ‘Weighted Voting Doesn’t Work: A Mathematical Analysis’, Rutgers Law Review, 19: 317. 21 The Yale Law Journal, Vol. 100, No 8. Symposium; International Law, 1991, pp. 2403–2483. 22 And this is nowadays recognized in Article 6 of the TEU. 23 One could argue, however, that such an Article must be interpreted in the light of other provisions of the Charter (mainly, Article 53). 24 Article 7 of the TEU, even after the Nice Treaty, does not alter the analysis made here. 25 Gustavo Zagrebelsky talks about a pluralist revolution. G. Zagrebelsky (1992) Il diritto mite, Turin: Einaudi, pp. 4–11 and 45–50. 26 See the Laeken Declaration and the Declaration on the Future of Europe Annex to the Treaty of Nice. 27 The control over competences is normally transferred in this case to the institutional mechanisms of participation in the definition and exercise of those competences. That was expressly recognized by the American Supreme Court in Garcia v. San António [469 US 528]. 28 For a critical summary of the arguments in favour of a European formal constitution, see also Joseph Weiler (2000) ‘Federalism and Constitutionalism: Europe’s Sonderweg’, Jean Monnet Chair Working Papers Nº 10/00. Text available at www.jeanmonnetprogram. org/papers/index.html. 29 See, for example: Neil MacCormick (1993) ‘Beyond the Sovereign State’, The Modern Law Review, 56: 1 (the foundation article in this respect); Catherine Richmond (1997) ‘Preserving the Identity Crisis: Autonomy, System and Sovereignty in European Law’, Law and Philosophy, 16(4): 377; M. Kumm (1998) ‘Who is the Final Arbiter of Constitutionality in Europe?’, Harvard Jean Monnet Chair Working Papers 10/98. Text available at www.law.harvard.edu/Programs/JeanMonnet/papers/98/98–10-html; and

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Miguel Maduro Miguel Poiares Maduro (1999) ‘The Heteronyms of European Law’, European Law Journal (Special Book Review Issue), 3: 160–168. Rossa Phelan has made a detailed analysis of the different viewpoints on the relationship between national and the European legal order depending on whether it is observed from the perspective of EC law, national constitutional law or even public international law. See R. Phelan (1997) Revolt or Revolution: The Constitutional Boundaries of the European Community, Dublin: Sweet & Maxwell. In the words of Chalmers (1997), ‘the regime is able to develop provided it does not significantly disrupt the egalitarian relations enjoyed between national courts and the Court of Justice’ D. Chalmer (1997) ‘Judical Preferences and the Community Legal Order’, The Modern Law Review, 60(2): 164–199. See Bruce Ackerman (1991) We the People, Cambridge, MA: Harvard University Press, p. 1. See Bellamy and Castiglione and Neil Walker, op. cit. The meaning does not totally coincide with that employed here. I analyse this in much more detail in Maduro, Miguel Poiares (2003) ‘Europe and the Constitution: What If This Is As Good As It Gets’, in J.H.H. Weiler and M. Wind (eds) Rethinking European Constitutionalism, Cambridge: Cambridge University Press. Ibid. See Lucas Pires (1997), op.cit., p. 67, who argues that national democracy is no longer able to satisfy the needs of the new ‘multiple and supranational individual’ that corresponds to the ‘modern citizen’. These democratic problems can perhaps also be related to what Habermas described as the relationship between lifeworld and system (J. Habermas (1989) Theory of Communicative Action, Vol. 2, Cambridge, Polity Press). Systems are ‘genetically’ imbued with certain values and assumptions that are excluded from communicative action (that is, discourse, which is, according to Habermas, the most common way to legitimize moral statements and acts). What happens is that systems have taken control over lifeworld (where communicative action and rationality now predominate, albeit based on a common set of understandings and culture), in this way reducing the area of life and normative action subject to discourse. In other words, reducing the scope of democracy. In We the Court, op. cit., I have applied such a conception to promote a particular reading of EU economic law. The typical example is trade protectionism: in most cases, we do not really have a homogeneous national interest opposed to the foreign national interests; instances of trade protectionism tend to occur where concentrated national interests try to conserve their economic privileges at the cost of foreign competitors and national consumers. Because of the concentrated interests and high stakes of the small minority they can easily dominate the national political process even against the interests of the dispersed majority of consumers, whose low per capita stakes and high transaction and information costs prevent them from being aware of their interests and exercising pressure in the political process.

References Ackerman, B. (1991) We The People, Cambridge/MA: Harvard University Press. American Supreme Court in Garcia v. San António [469 US 528] Banzhaf, J.F., III (1965) ‘Weighted Voting Doesn’t Work: A Mathematical Analysis’, Rutgers Law Review, 19: 317–343.

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Bellamy, R. and Castiglione, D. (2001) ‘Normative Theory and the European Union: Legitimising the Euro-Polity and its Regime’, in L. Tragardh (ed.) After National Democracy: Rights, Law and Power in the New Europe, Oxford: Hart Publishing. Buchanan, J. and Tullock, G. (1965) The Calculus of Consent. Logical Foundations of Constitutional Democracy, Ann Arbor, MI: University of Michigan Press. Burley, A.-M. and Mattli, W. (1993) ‘Europe Before the Court: A Political Theory of Legal Integration’, International Organization, 47(1): 41–76. Case 6/64, Costa v. Enel [1964] ECR 585 and Case 26/62, Van Gend en Loos [1963] Cassese, S. (1991) ‘La Costituzione Europea’, Quaderni Costituzionali, No. 3: 487–508. Chalmers, D. (1997) ‘Judicial Preferences and the Community Legal Order’, The Modern Law Review, 60(2): 164–199. De Witte, B. (1999) ‘Direct Effect, Supremacy and the Nature of the Legal Order’, in P. Craid and G. De Búrca (eds) The Evolution of EU Law, Oxford: Oxford University Press. Habermas, J. (1989) Theory of Communicative Action, Vol. 2, Cambridge: Polity Press. —— (2001) The Postnational Constellation, London: Polity Press. Held, D. (1995) Democracy and the Global Order, Cambridge: Polity Press. Komesar, N. (1994) ‘See Imperfect Alternatives: Choosing Institutions in Law’, Economics and Public Policy, Chicago, IL: Chicago University Press. Kumm, M. (1998) ‘Who is the Final Arbiter of Constitutionality in Europe?’, Harvard Jean Monnet Chair Working Papers 10/98. Text available at www.law.harvard.edu/ Programs/JeanMonnet/papers/98/98-10-html. Lenaerts, K. (1990) ‘Constitutionalism and the Many Faces of Federalism’, American Journal of Comparative Law, 38: 205–263. Lenaerts, K. and De Smijter, E. (1996) ‘The Question of Democratic Representation: On the democratic representation through the European Parliament, the Council, the Committee of the Regions, the Economic and Social Committee and the National Parliaments’, in J.A. Winter, D.M. Curtin, A.E. Kellermann and B. De Witte (eds) Reforming the Treaty on European Union – The Legal Debate, The Hague: Kluwer Law International. MacCormick, N. (1993) ‘Beyond the Sovereign State’, The Modern Law Review, 56: 1–18. Maduro, M. (1998) We the Court: The European Court of Justice and the European Economic Constitution, Oxford: Hart Publishing. —— (1999) ‘The Heteronyms of European Law’, European Law Journal (Special Book Review Issue), 3: 160–8. —— (2003) ‘Europe and the Constitution: What If This Is As Good As It Gets’, in J.H.H. Weiler and M. Wind, (eds) Rethinking European Constitutionalism, Cambridge: Cambridge University Press. Mancini, G. F. (1989) The Making of a Constitution for Europe, 26 CMLRev, 595. Mestre, C. and Petit, Y. (1995) ‘La cohésion économique et sociale après le Traité sur l’Union Européenne’, Revue Trimestrielle de Droit Européen, 31(2): 207–243. Mortelmans, K. (1996) ‘Community Law: More than a Functional Area of Law, Less than a Legal System’, Legal Issues of European Integration, 1(23): 23–51. Muñoz Machado, S. (1993) La Unión Europea y Las Mutaciones del Estado, Madrid: Alianza Editorial. Penrose, L.S. (1946) ‘The Elementary Statistics of Majority Voting’, Journal of the Royal Statistical Society, 109(1): 53–57. Phelan, R. (1997) Revolt or Revolution: The Constitutional Boundaries of the European Community, Dublin: Sweet & Maxwell.

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Pires, L. (1997) Introdução ao Direito Constitucional Europeu, Coimbra: Almedina. Reime, H. (1999) ‘Changing EU voting rules would be undemocratic’, Newsletter of the Finnish Institute in London, 13. Text available at www.polarities.net/articles/EU/ EU%20%20voting.htm. Richmond, C. (1997) ‘Preserving the Identity Crisis: Autonomy, System and Sovereignty in European Law’, Law and Philosophy, 16(4): 377–420. Scharpf, F. (1988) ‘The Joint-Decision Trap – Lessons from German Federalism and European Integration’, Public Administration, 66(2): 239–78. Schepel, H. and Wesseling, R. (1997) ‘The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing’, European Law Journal, 3: 165–188. Shapiro, M. (1980) ‘Comparative Law and Comparative Politics’, Southern California Law Review, 53: 537–542. Stein, E. (1981) ‘Lawyers, Judges and the Making of a Transnational Constitution’, American Journal of International Law, 75(1): 1–27. Walker, N. (2001) ‘The White Paper in a Constitutional Context’, Jean Monnet Chair Working Paper 6/01. Text available at www.jeanmonnetprogram.org/papers/01/011001.rtf. Weber, S. and Wiesmeth, H. (1991) ‘Issue Linkage in the European Community’, Journal of Common Market Studies, 29(3): 255–267. Weiler, J.H.H. (1981) ‘The Community System: The Dual Character of Supranationalism’, Yearbook of European Law, 1: 257–306. —— (1991) ‘The Transformation of Europe’, Yale Law Journal, 100: 2403–2483. —— (1993) ‘Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration’, Journal of Common Market Studies, 31: 417–446. —— (1997) ‘The Reformation of European Constitutionalism’, Journal of Common Market Studies, 35(1): 97–135. —— (1999) The Constitution of Europe – ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration, Cambridge: Cambridge University Press. —— (2000) ‘Federalism and Constitutionalism: Europe’s Sonderweg’, Jean Monnet Chair Working Papers 10/00. Text available at www.jeanmonnetprogram.org/papers/ index.html. Weiler, J.H.H., Haltern, U. and Mayer, F. (1995) ‘European Democracy and Its Critique – Five Uneasy Pieces’, Jean Monnet Chair Working Papers 5. Zagrebelsky, G. (1992) Il diritto mite, Turin: Einaudi.

5

Citizenship in the European polity Questions and explorations1 Maurizio Cotta and Pierangelo Isernia

The topics of European citizenship, the identity of the European Union, the quality of its institutional arrangements and more specifically the democratic nature of its regime have become increasingly present both in the public and the academic debate on Europe during the last decade. In spite of its failure the project of a European Constitution can be seen as the epitome of this discussion (Fossum 2005). The aim of this chapter is to discuss some of the problems that concern the scope, nature and characteristics of European citizenship as it has developed from the processes of deepening and enlargement which have affected the European Union over the last decades. The broad research project to which the discussion developed here is connected (INTUNE) will focus on how integration and disintegration processes at both the national and European level affect citizenship and the three dimensions of identity, representation and scope, as well as the standards of good governance which are closely related with it. These dimensions derive from the normative principles of democratic government, which are the basis of the legitimacy and democratic quality of government at any level (Benhabib 2002). We will address the problems of citizenship by looking at the interactions between elites and public opinion that traditionally nurture the dynamics of collective political identity, political legitimacy and representation, and standards of performance. At the same time we do not see the process of EU building as an either–or choice between those who claim the Europeanization of the domestic arena and those who claim the domestication of Europe, but as a recursive relationship. Accordingly, there are two dynamics we want to explore with regard to citizenship: the relationship between the masses and elites and the relationship between the European and domestic dimensions of political life. If this citizenship issue (with its different implications) was perhaps irrelevant or at least less relevant at earlier stages of this process, the increasing significance of the policies decided and administered from Brussels (and Frankfurt), the impact of the large expansion to the countries of Central Europe, and the difficult dilemmas concerning both further expansion (Turkey, the Balkans, etc.) and, in all cases, relations with problematic neighbouring countries (Russia, the Arab countries of the Mediterranean) have increasingly stimulated a political and scientific debate on the related matters of European identity, boundary definition and citizenship (Olsen 2007).

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Maurizio Cotta and Pierangelo Isernia Our discussion will concentrate on three main questions:

1 2 3

What are the main meanings and dimensions of the concept of citizenship as it has developed within the framework of national states? What are the content and components of European citizenship assuming that such a thing does exist? What can be the relationship between the new level of citizenship developed by the European Union and the traditional level of citizenship well entrenched at the national level?

Why study citizenship at the European level? Before attempting to answer the questions we have briefly outlined we must address a preliminary one: Why should we study citizenship with regard to the European Union? In order to do this, the five following points require a brief discussion. 1 Citizenship as a crucial, legitimating principle of the prevailing polity type in the advanced world We can start from the fact that citizenship is the crucial concept for the interpretation/legitimation of the still dominant contemporary model of polity, the democratic national welfare state (DNWS). The construction of this polity model has coincided with the development – and this means the normative statement as well as the administrative implementation and judicial enforcement – of increasingly abundant sets of civil, political and social rights and (to an extent that is often less well perceived and understood, but is equally important) of the corresponding duties that are commonly interpreted under the concept(s) of citizenship (Marshall 1950). It is true that a significant proportion of these rights have often been conceived as intrinsic to humankind and thus as not being derived from the state – their fundamental justification being that they are human rights – but it is equally true that the translation from theoretical statements to an effective and institutionalized system of protection of these rights (and the implementation of the duties required by these rights) has predominantly occurred within the context of a very concrete political experiment, that of the modern DNWS. At least historically this type of polity seems to have been the necessary precondition for the robust implementation of the idea of citizenship. The same thing can also be seen from the opposite point of view: the configuration itself and the reasons for the success of the modern nation state lie to a great extent in the development of such a multidimensional citizenship involving the largest part of the population residing in its territory. While this historical linkage is difficult to deny – the contemporary DNWS is the locus of the most advanced development of the idea of citizenship – we must also be aware that the two concepts and phenomena are not fully coterminous: as already mentioned the axiological bases of some (perhaps not all) of the important contents of citizenship go beyond the state and have often been related to the nature of man (whether this is interpreted in a religious perspective or not is a further aspect that need not be discussed here); in this sense the state acknowledges

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something which it has not founded itself. This means, therefore, that certain components of citizenship are thought of as extending beyond the confines of the state. This idea received increasing support after the Second World War with the United Nations, the Declarations of Human Rights and other developments in the field of international law. To an extent, the acceptance of this idea has also become a factor for suggesting limitations to the sovereignty of the state and for sustaining the need of supranational authorities and a cosmopolitan democracy (Archibugi et al. 1998; Kuper 2004). At the same time, there is an ongoing discussion, within the borders of states, as to what citizenship rights should be extended to ‘non-citizens’ (i.e. foreign immigrants). In order to complete the picture, one must remember however that the modern state cannot be reduced to being a pure machine for the implementation of citizenship. It has had since its inception and has maintained over time an authoritative dimension which can (occasionally) lead to the compression of the content of citizenship. Overall, however, it can be said that the very success of the citizenship-centred model of polity and politics has made it difficult for the dominant culture of advanced societies to accept and openly sustain political models based on principles which would contradict the idea of citizenship. It is therefore not a surprise that since the European Union has increasingly come to be interpreted not just as a market agreement but also a significant political community embracing the Member States, it has consequently been obliged to face the problem of defining a European citizenship. 2 The European Union goes beyond the nation state but without denying the citizenship principle The foundation of the European Community/Union is in some way inherently contradictory (which might even be one of the reasons for its success!). On the one hand, it exists because of the consent of European democratic Nation States and its institutions and policies derive from their free choices (Moravcsik 1998). On the other hand, the EU finds its main justification in the failures of the Nation States as self-sufficient units and is therefore seen as a complement to them. This is both a challenge and a dilemma (Scharpf 1999). The European Union is seen as being a more appropriate centre of governance than the individual DNWS in addressing problems which cross the traditional boundaries and in coordinating the production and reproduction of a number of collective goods, but it is also a major challenge to the legitimacy/viability of the DNWS from which the EU stems. However, if the EU can be seen as a project transcending certain aspects of the nation state, which have been thought to be responsible for the European failures of the twentieth century, it has never denied the citizenship aspect of the states, except in the sense that the national implementation of the principles of citizenship was viewed in some way as being insufficient in the post Second World War world. The EU, from this point of view, has never explicitly developed an alternative model of political legitimacy.2 Simultaneously, given the original conception of European integration, the subject of citizenship has long remained somewhat hidden in the Brussels arena. With a predominantly economical interpretation of integration, the concepts of

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consumer and producer, more than that of citizen, have been at the centre of European public discourse. Originally, the policies of the European Community only had a rather indirect connection with the political topic of citizenship. 3 Since its inception the European Community has nurtured certain seeds of a European citizenship The fact that attention is predominantly paid to the market dimension does not mean however that the construction of Europe has moved on a totally different basis or has been completely impermeable to the topic of citizenship (O’Leary 1996). In fact a number of elements, directly or indirectly connected with this subject, have been incorporated from the beginning in its institutional design and normative system. Signs of it have been evident indeed since the EEC Treaty of Rome, if its preamble, the policies it promoted, and the institutions and rules it established are read carefully. The reference in the preamble to an ‘ever closer union’ among the peoples of Europe expresses rather clearly the idea of a common European identity (both as a condition of integration and a goal). The counterpart of the establishment of the common market is the declaration of the right of free movement (and economic enterprise) for individuals (Articles 48 and 52), that is to say, an element of economic citizenship within the Community.3 The creation of a parliamentary institution (albeit of an only indirect nature at the beginning) and the majority principle prescribed for decisions in the Assembly and the Council (Articles 137, 138, 141–148) also indicate that the Treaty was inspired by some of the institutional principles connected with the ideas of political community and citizenship already prevailing in the Nation States. The significance of the citizenship dimension has undoubtedly increased over the years. The reform of the European Parliament, introducing direct elections in 1979, was symbolically (and also, albeit more slowly, substantively) a major step in this direction. It meant that in Europe the market could not be separated from political citizenship. The SEA treaty of 1986 added further elements by expanding the responsibilities and powers of European institutions in the field of social citizenship (Article 118) and the promotion of social and economic cohesion across the territory of the Community (Article 130), not to mention the further strengthening of the powers of the European Parliament in different fields, among which decisions on the enlargement of the Community are to be mentioned (Article 8ff.).4 4 In the last two decades, along with the increased responsibilities of the EU, the significance of the ‘citizenship yardstick’ has also gained new weight in European public discourse With more responsibilities and powers withdrawn from the national democratic states and vested in the Brussels institutions, questions concerning the democratic quality of the latter and of European decision-making processes have become more frequent and more politically relevant. It is not by chance that the ‘language of citizenship’ has more frequently surfaced in the political discourse of Europe and that the concept has been explicitly incorporated into the recent Community Treaties. In the TEU, a special section (Article 8-8E) is devoted to the formal enunciation of the principle of a European citizenship and the definition of its

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content. Along this road the subsequent treaties have further elaborated on this topic. The Treaty of Amsterdam, in the preamble on the European Treaties, elaborated on the elements defining the nature of the supranational community and its goals, by further stressing the democratic principle and respect for fundamental rights as the guiding rules for the Community (Article1) and by fine-tuning the definition of European citizenship vis-à-vis the national ones (Article 2).5 The treaty also introduced a special procedure to deal with cases of the violation of these principles by a Member State, thus further elevating the democratic principle among the basic rules of the Union and giving its institutions a power of vigilance over the Member States. The Treaty of Nice further returns to this point in order to refine its regulation. What is even more interesting from our point of view is the rule introduced in this treaty by which qualified majority voting in the Council must also reflect the will of a percentage of the whole population of the Union (62 per cent), represented by members of the Council, as a condition for the adoption of a decision. This mechanism introduces, though only implicitly, the idea of a common European people and the possibility of measuring its (enlarged) majority. Finally, the fact that the need was felt for drafting a Constitutional Treaty indicates, even more explicitly, the move towards formal enshrinement of the principles of citizenship (Fossum 2005). As such, the Constitutional Treaty cannot be interpreted solely, or exclusively, as a public relations effort whose success is fundamentally irrelevant for the progress of European integration, as suggested, for instance, by Moravcsik (2006). Together with the discussion of the Constitutional Treaty and with the pending problem of a possible further expansion of the Union (to Turkey and beyond), the discourse about what defines the identity, ‘membership’ and borders of Europe – all aspects which are strictly related to that of citizenship – has become more salient. The fact that the EU has found serious difficulties in reaching a consensus on these matters is, from our point of view, less relevant. 5 The role of the people in decisions about Europe has begun to grow On account of the present state of development of the EU polity, both in terms of its territorial expansion and its augmented policy responsibilities, the topic of citizenship can no longer be eluded. This has also been shown by the fact that recent important decisions (such as the Constitutional Treaty) have been rejected in some ‘regions’ of the Union (France and Netherlands) via a typical instrument of citizenship: a referendum vote. It is true that these were national votes, but they were at the same time part of a Europe-wide procedure of ratification of the treaty. It would not be unwarranted to read these national events as European events and say that a ‘section’ of European citizens have exercised their citizens’ right to refuse the new Constitution.

Studying citizenship at the European level: What problems does it raise? If there are, as we have tried to show, valid reasons to study the subject of European citizenship we must now specify the main aspects involved. The most important points that need to be addressed are the following:

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1 2 3

to review the meanings and dimensions of the concept; to discuss its relationship with a series of neighbouring concepts and phenomena; to examine how a concept developed within (in connection with) a special type of polity (the nation state) can be transferred to a different type of polity such as the European Union and discuss the relationship between national and European citizenships over the presumably long period of time during which the two will coexist; to clarify the relationship between normative and descriptive/explanatory aspects of the discussion; to understand the ‘production’ process for citizenship at the European level and to develop the operational instruments for the empirical analysis of the phenomenon.

4 5

The concept of citizenship and its basic dimensions The concept of citizenship, as it has developed within the national forms of political organization, has a fundamentally multidimensional nature. In a somewhat simplified way it can be interpreted as having two main dimensions, a horizontal one and a vertical one. The first is related to the fact that politics has to do with the creation of a political community and thus with the definition of its membership, the second with the allocation of powers and responsibilities within it (Figure 5.1). 1 The membership dimension The concept of citizenship entails the ‘horizontal’ meaning of ‘being part of a polity’. It rests therefore on a series of criteria (place of birth, family links, time spent in a country, personal qualifications, etc.) by which one is or becomes a citizen, i.e. a full member of the community, while others, even if resident in the territory of the same polity are considered and treated as foreigners, i.e. non-citizens. This dimension is particularly linked with the problem of the territorial and legal borders of a polity and with decisions

Horizontal dimension

Member

Active/entitled

Vertical dimension

Non-member

citizen

citizen

Passive/non-entitled

vs.

subject

Figure 5.1 The two main dimensions of citizenship

foreigner/alien

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about where to draw them (Bartolini 2005). Citizenship, when seen from this perspective, is at the same time an inclusionary and exclusionary mechanism: it defines the in-group and the out-group. 2 The right to act and entitlements dimension The concept of citizenship entails also the ‘vertical’ meaning of having the right to a special position vis-à-vis the political authorities of a polity. This means sharing the right to control and influence these authorities and the right to receive, in return, the benefits of good policies – social services, health care, protection, etc. This dimension is thus linked both to the authoritative structure of the polity and its functional scope. Viewed from this perspective, a citizen is someone who is thought to be mature enough to be able to define his/her politically relevant interests and to take part in the political processes designed to make the political authorities responsive to these interests. At the same time, political authorities are seen as responsible for ensuring the level of public provisions which at a given historical moment is assumed to be deserved by the citizens, in different domains (from education to social protection). For a more precise treatment, the vertical dimension of citizenship should be further expressed in its two components: a) an input component (the right of citizens to act); and b) an output component (the right of citizens to obtain a particular treatment from public authorities) (Table 5.1). The two components are functionally and historically linked but analytically distinctive. The first is a dimension of actorship: to be a citizen means to have the right (and possibly the duty) to be an active participant in the political processes of the polity (from the right to vote to all other possible instruments of involvement and pressure). The second is a dimension of entitlement: to be a citizen means to have the right to a special social condition (defined in fact by a variable combination of components) which must be ensured by policies produced by the political authorities. From this derives the responsibility of political authorities to produce these policies. Seen from a historical point of view the first type of citizenship has undoubtedly contributed to developing the second, but the relationship between the two is not fully deterministic: as studies of the birth of the welfare state have shown, the development of social entitlements is not only due to bottom-up pressures, but also to top-down concessions (Flora and Alber 1981). If we want to explore the empirical/normative connections between the two dimensions of citizenship we have to bring the conceptions of the political community into the picture. In a fully state-centric perspective membership is/must be the necessary precondition of a citizen’s rights and entitlements. Only as members of a polity can citizens qualify for the right to act politically and be entitled to the full repertoire of economic and social rights. Non-citizens are, on the contrary, deprived of most of them. But, from a non-state-centric perspective, the right to act politically and entitlements can/should also exist without membership. This is the case when a ‘universal human rights’ perspective is adopted (and, for certain aspects, also when an ‘open market’ perspective prevails, according to which anybody should be allowed to participate in economic activities). In practice (and historically) it is in the context of the well-defined ‘membership’ dimension produced by

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Table 5.1 Further specification of the second citizenship dimension Weak entitlements

Strong entitlements

Right to take political action

Input citizenship

Input/output citizenship

Only political duties

Subject condition

Output citizenship

the modern state that the basic conditions for establishing the other aspects of citizenship for the members of the community have been created (Rokkan 1970). At the same time, however, the first perspective has never totally pre-empted or suppressed the second one. The idea that rights and entitlements derive from a more universal principle than that of the nation state has in fact been prominent in the Western world. Also in practice we see that the first perspective is (at least partially) challenged by the second: in many democratic countries a subset of political rights (short of the electoral ones) and a significant component of welfare provisions are also granted today to non-citizen residents.6 As for the attribution of voting rights to immigrants, at least for local elections, it is currently under discussion in a number of countries.7 The two main dimensions of citizenship are related to different sets of the polity’s problems. The first (horizontal) dimension is primarily linked to the problem of the borders of the political community (where does the community end?) and to that of its self-definition (who are we? who are we not? who are the others?). The second (vertical) dimension is linked to the problem of the internal power structure of the community (who runs the community? what is the role of its members? what are the responsibilities of the political authorities?) and of its functional scope (what should the political community do for its members?). Analytically the two dimensions are distinguishable but empirically are linked by important connections. A firm closure of the borders and a clear definition of membership, together with a distinctive formulation of community identity, offers a stronger basis and justification for the affirmation of political rights and entitlements for its members (Hirschman 1970; Rokkan 1970; Bartolini 2005). At the same time, the expansion and consolidation of rights and entitlements produce a stronger definition of the community, which comes to be based also on a special portfolio of advantages, and makes the fact of being a member of the community more meaningful in concrete terms. In practice ‘you feel that you are a citizen because you can vote and you have the right to public education, health assistance, to a state-supported pension … etc’.

Citizenship and neighbouring concepts In order to reach a better understanding of the concept of citizenship we must also explore certain neighbouring concepts. The two main dimensions of the concept of citizenship also lead to different neighbouring concepts (and phenomena): the

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membership dimension of citizenship is more directly connected with concepts such as those of identity/patriotism/cohesion, etc. whereas the right to act and entitlement dimensions are associated with the concepts of representation, responsibility and the scope of governance. In the following pages we will briefly explore the semantic space of these concepts and the possible implications of these connections. Citizenship and identity Identity is both a feature (or a panoply of features) attributed to a group of individuals, on the basis of which they can be observed and perceived from the outside as having significant elements of commonality, and a feeling (or rather an entire set of feelings), shared by individuals, which defines their belonging to a group of similar people. The typical and minimal expression of a collective identity is a common name given to all those sharing it: French, Italians, Basques, Europeans, etc. Beyond this minimal requirement other elements (language, traditions, values, etc.) can make identity a more or less rich feature. Identity often implies an implicit or explicit comparative dimension: typically one’s group identity emerges more strongly when compared to another group’s identity. Identity normally has a positive connotation for those who share it, but it can also have a negative, ‘stigmatizing’ aspect when attributed to individuals from other groups. Citizenship and (national) identity are typically associated, at least historically. Behind this association, however, one can find the following possible causal links: • •

citizenship as a consequence of identity (I can be a citizen of Germany because I am a German/ I speak German/my family is of German lineage…); identity as a consequence of citizenship (being a legal citizen of Italy, I feel Italian as well; perhaps because, by being a citizen, I have received compulsory education entailing some degree of ‘indoctrination’ involving a national identity).

Identity and citizenship can however be partially or totally dissociated (I am legally an Italian citizen and I am treated as such, but I feel I am a Süd-Tyroler rather than an Italian). This dissociation can be one-sided (typically coming from individuals of an ethnic group with a different identity vis-à-vis the larger population they are for some historical accident part of), but can be two-sided when political authorities also accept the different identity of a group of citizens and grant them the instruments to protect it. The link between the two aspects is a very important component of modern politics but also a problematic one. Although there are several examples in which the legal and political definition of a community of citizens and a shared common identity of its members easily coexist with reciprocally reinforcing effects, there are also many cases where the two elements cannot be reconciled and a significant portion of the population dissociates them or even perceives them as mutually contradictory. In extreme cases, this situation can lead to some of the most

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severe forms of conflict: civil wars. A relevant question that can be asked is: Under what circumstances do the two aspects tend to blend positively together or conflict? We know from empirical experience that in some cases it is precisely the refusal by one or both sides to accept a separation between citizenship and identity that has lead to either a breakdown of the political community (with a group refusing to accept the existing definition of citizenship on identity grounds) or to a denial of citizenship rights to a part of the population (considered external to the common identity). Citizenship and patriotism Patriotism is an attitude that is often associated with citizenship (and identity) and indicates pride or a predisposition to expressing enthusiasm towards symbols of the polity, even to willingly accepting (serious) sacrifices for the community. Patriotism is often predicated as a ‘virtue of citizens’, and cannot be required of non-citizens (moreover, it is incompatible with the status of a subject; obedience and loyalty may be required, but patriotism normally cannot be expected). It presupposes an intense identification with the community. It is difficult to conceive patriotism without strong feelings of identity. However, there may be feelings of identity without patriotism (or at least without some of the most commonly associated aspects of it). Patriotism is probably to be considered a feature linked with the politicization of identity and it develops in connection with the needs of the polity to sustain its role internally and externally (‘my country right or wrong’). The importance of patriotism as a resource for the political system, particularly when it has to deal with serious internal and external challenges, and the need to strengthen it may induce political elites to extend certain aspects of citizenship (for instance the right to vote, or other entitlements) with the purpose of enhancing (or rewarding) the attachment to the polity by some of its components. A clear example would be the extension of voting rights in many European countries after the First World War as an ex-post prize for the patriotic behaviour expected and requested of the masses during the war. Patriotism varies in respect to the objects that stimulate this feeling and constitute the targets of the ‘protective attachment’ that go along with it. In the heyday of European Nation States, the ‘sacred territory’ of the country used to be the epitome of patriotic attachment (and, elsewhere, sometimes still is). On a different level, the constitution and in particular the principles inspiring it have also been widely discussed and proposed as an important object of patriotism: such a version of patriotism was initially conceived for a country like Germany, which after Nazism could not resort to other forms of patriotism (Sternberger 1990; Habermas 1992), and has been proposed more recently for the European Community. Patriotic pride may be also attached to non-political domains such as the artistic or literary traditions of a country. In its extreme form, patriotism expresses the readiness of one citizenship to fight against another citizenship for defensive or aggressive reasons. The armed forces of a country become in that situation the central focus and agent of patriotism.

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Citizenship and representation Representation is today the dominant instrument through which citizens exercise their prerogatives of self-government and by which the authorities of a political community are legitimized in their governing role and kept accountable (Pitkin 1967; Przeworski et al. 1999). Through representation, a citizen is not only a member of the community (first meaning of citizenship) but also becomes the principal (Lupia 2001; Bergman et al. 2003) of the political authorities governing the community (second meaning of citizenship). In a modern democratic state, the experience of representation is limited to citizens. Only citizens, as members of the polity, are represented. Residents who are not citizens are not represented. This means that the attentions and actions of representatives are essentially directed towards citizens; representatives are responsible/responsive to citizens. Citizenship thus circumscribes the focus of representation. The deprivation of the American colonists of their voting rights in the eighteenth century, or the delayed process of the extension of suffrage in Europe has not only shown that, in the past, citizenship (as membership) could exist without (citizenship) rights of representation, but also that this situation faced increasing problems in being accepted as legitimate. In the end, citizenship could not go without representation. Viewed from the other side of the relationship, representation has a crucial role in the construction of citizenship. Representative elites contribute, while performing their representative role, to the ‘production’ and ‘reproduction’ of citizenship (both as membership of the community and as a system of entitlements) and identity. On the one hand, by submitting to the electoral process they recurrently pay tribute to the sovereignty of the citizens. On the other hand, by engaging in a dense political discourse (entailing conflict and consensus) about the needs and goals of the political community, they contribute to making the fact more visible and perceptible that citizens are members of the same political community and share a common identity. The idea itself of a common (national) interest, whatever its specific content, is a product of the process of representation. The relationship between citizenship and representation is thus two-sided. Citizenship offers the basis on which modern representation rests, whereas representation is the mechanism through which broad advances in citizenship content have been made possible. Citizenship and the scope of government Every polity is characterized by a specific ‘scope of government’, i.e. that set of the functions and responsibilities that typically fall upon the shoulders of political authorities. How this definition is achieved depends on the nature of the polity. In an autocratic polity it is the ‘sovereign’ who decides it. When the polity is based on the principles of citizenship it is the portfolio of rights and entitlements linked to this notion which defines the functional ‘scope of government’ expected and required by citizens. The scope of government will vary across time and across space according to the prevailing interpretation of the concept of

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Patriotism

Citizenship I Citizenship II-III

Representation

Scope of government

Figure 5.2 Conceptual (and causal) links between citizenship and other concepts

citizenship: if being a citizen essentially means safely enjoying one’s private property and economic sphere of action, then the government must provide only protection and uphold ‘law and order’; if, instead, it presupposes being assured of economic security in old age, the government must provide pensions, etc. Once a given ‘scope of government’ has been (pro tempore) established, it defines (confirms) the content of this dimension of citizenship. It has been proven by the recent experience of European states that this definition, once achieved, can be extremely resistant to change: faced with the rising costs of social citizenship in an ageing society, national governments have encountered a stubborn popular opposition to their attempts at reducing social expenditure. The mechanisms of parliamentary representation have been systematically used by citizens to protect their established social rights. At the end of this exploration of the semantic and empirical space of the concept of citizenship and certain neighbouring concepts, we can summarize our main findings in a graphical scheme. (Figure 5.2)

Extending these concepts to europe Extending these political concepts to the new polity of the European Union raises a number of issues and problems. In particular, it must be kept in mind that within the European space the concept of citizenship has already received ‘thick implementation’ at the national level. Given the particular traits of European integration, developing gradually on the basis of a consensus among Member States (Bartolini 2005), European citizenship is bound to coexist (probably for a long time) with well-established national definitions of citizenship. It has had therefore to face (and will continue to face for the foreseeable future) pre-existing models (which are at the same time strong ‘competitors’). This situation suggests that the European model of citizenship must necessarily have, for the time being and in the near future, a ‘delegated’ and ‘residual/ complementary’ character. This condition is quite different from the one which normally prevailed at the outset in national states, when a ‘purely’ national citizenship gained a dominant role and could affirm its uniqueness and sovereign status by erasing or drastically reducing previously existing forms of ‘membership’ of other

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political communities. Some cases, however, such as those of the USA, Switzerland and Germany, can be seen as examples of a less clear prevalence of a new citizenship over pre-existing ones, at least for a significant period of time. We have therefore to explore in greater detail what the coexistence of these two levels of citizenship implies. The first part of this exploration concerns citizenship as membership (what is the community we are members of? who are we?) (Huntington 2004). The main question here is whether it is possible to be a member of two political communities. This problem is in fact not new: it also frequently arises in different contexts, normally however between ‘separated’ political communities, such as two national states. Empirical experience shows that a solution to this problem is not so difficult to find at the individual level, as long as the two communities to which each individual belongs are not engaged in severe conflict and their demands are mutually compatible. In such cases the result is a situation of double citizenship and it is fundamentally left to the individuals to privately coordinate the two allegiances. A positive answer to this problem seems more difficult on a large scale and when a collective dimension is present (for instance the German problem with the large population of Turkish immigrants). In such a case double citizenship would entail uncertainty regarding the boundaries of the two communities involved and the spheres of their respective authorities. If the two communities are ‘nested’ (as happens in federal states and can be the case with the EU and its Member States) it is probably easier to conceive the coexistence of two citizenships, even at the collective and institutional level. In such a situation, the larger citizenship sphere would contain the smaller one. A collision between the part and the whole within a conceptual framework of complementarity (as for instance the one provided by the idea of subsidiarity which has been adopted in Europe) is less probable and dangerous than a collision between two wholes who conceive themselves as different, unique and sovereign. However, even with two ‘nested citizenships’ there are certain problems, mainly related to their relative statuses (which of the two predominates?) and to the scope of the two (which aspects are covered by each of the two?). The sources of the two citizenships are, from this perspective, rather important. On this point, two different models can be identified. The first is a bottom-up model: membership in the smaller community(ies) automatically produces membership for all its members in the larger community of which the smaller one is a subset (it is the Swiss example and a similar system has been adopted by the European treaties). The problem is whether or not the larger community can (wants to) impose any limits (or harmonization) on the powers of the member communities to accept citizens (who will become also citizens of the larger one). The second is a top-down model: in this case the larger polity – the EU in our case – exercises a control upon its citizenship essentially by deciding which states are accepted as members and thus entitled to produce ‘citizens of Europe’. The extension of European citizenship is thus defined not directly, by granting to individuals the access to EU citizenship, but indirectly by accepting or refusing new

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states as members. In this sense, states are in some way conceived as the ‘citizens of Europe’, and individuals belonging to them are, so to say, ‘derived citizens’. In the European Union, both models are at work. The second one seems to have been especially relevant for the new accession states with a shorter democratic tradition. The conditions imposed on these states have in fact contributed to shaping (or to consolidating) their national definition of citizenship and have thus worked as filters for the creation of new European citizens via the accession of new members. We may ask whether this special way of incorporating citizens also extends its effects to the associated aspect of identity and its definition. The question is indeed relevant as the topic of identity has over the last years increasingly gained importance in the political and academic debates about European integration and European democracy (Eder 2001; Eder and Giesen 2001; Delanty 2005). As with citizenship, we can assume that the ‘composite’ aspect is also predominant for identity. The identity of Europe, if there is one, is primarily an identity shared among the states who compose the Union, rather than among the individuals belonging to it. This aspect is once more illustrated by the enlargement processes: the new acceding states are being evaluated in connection with a set of aspects which define their identity (as states) and which have to be in accordance with the identity of Europe. Conditionality (and in particular democratic conditionality) can be interpreted therefore as an element of identity construction or identity maintenance for the European Union. The identity of the new individuals brought into the Community seems to play a lesser role. The European Union (rightly or wrongly) did not care if, identitywise, Poles or Estonians (etc.) were Europeans as individuals, but was instead concerned if, identity-wise, the Polish or the Estonian (etc.) state was European, and on this aspect has exerted its institutional pressure. However, things can also be more complicated. There are some signs, for instance, that in the discussion about the admission of Turkey the identity of ‘individual Turks’, in particular the fact that they are Muslims (while the Turkish state is not!), plays a role – if not explicitly, then at least implicitly (although most European politicians would strongly deny this) – and thus for the first time individual identity is considered to be a problem. At the same time however it must be noted that the accession process has induced the European Community (in order to ascertain the compatibility of the new members) to better define its identity per se, not simply as a pure composite of the Member States’ identities. In other words, the enlargement process brings into play both faces (the compound state level and the individual level) of European identity at the same time. As for the future, can we expect that a more specific European identity will develop from below or from above? And which factors are more likely to produce one or the other? From below, shared perceptions of common external threats could be a factor (the circumstance of neighbouring on an increasingly assertive Russia; or the problems of illegal immigration; or tensions with the USA over defence or international trade policies could perhaps come to play this role). From above, the need to increase the legitimacy of European institutions and their decisions and perhaps to make the sacrifices required by a common crisis more

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acceptable could play a role in stimulating a process of identity building. We have seen, in fact, that the Commission has recently started to promote identity-related symbols and policies more actively. The discussion in the Constitutional Convention about the religious and cultural identity of Europe shows that although this subject has become increasingly relevant, it is not easy to find from above (i.e. in an institutional European arena) a strong consensus on the defining elements of a European identity. Meanwhile, however, it is important to note that, according to surveys, feelings of a common European identity (coexisting with feelings of national identity) already exist among individuals and have a greater or lesser intensity among the populations of the old continent. The second step in our exploration concerns citizenship as a set of rights to act politically and of entitlements (what are the powers of the individuals over the governance of the community? what do they expect from political authorities?). How far has this aspect developed at the European level? How does it coexist with the well-established realities at the national level? How do the two levels interact? What kind of a trend can we find in this field? These are among the most relevant questions which arise here. With regard to the right to take political action, it is rather clear that the European Union provides for a double circuit of citizenship. The first and better established circuit is a form of indirect citizenship via the role of national governments (in respect of which individuals in each country have direct citizenship rights) in the European system of governance. The second is a direct form of citizenship which is implemented through the elections to the European Parliament and the influence of this institution upon the government of Europe. This means that on the one hand European citizenship ‘free rides’, so to say, on the existing national institutions of representation, which are also charged (through the members of national governments taking part in the European Council of Ministers) with the burden of ensuring the representation of European citizens and their interests (and not just the national citizens and interests). On the other hand there is, at least in theory, a specific channel through which European citizens can directly exercise their citizenship rights and ask for representation of their interests. The existence of two different (one direct, the other indirect) channels of citizenship/representation for the same polity is in itself not unprecedented. A similar solution in fact exists or has existed in a number of federal systems (for instance in the past in the USA when senators were elected by state parliaments; in Germany today with the Bundestag’s direct representation of individual citizens and the Bundesrat’s indirect representation of citizens through the Länder governments) (Fabbrini 2005; Sbragia 2005), as well as occasionally in non-federal ones (an example is the French bicameral parliament, with the Senate elected by representatives of local communities). The next question concerns the relative significance of the two channels: this indeed may vary significantly in such cases. The formal institutional aspect is however only one factor responsible for this. From what we know, also from the historical experience of Nation States, the existence in practice, and not just in theory, of a true national representation (and thus also of a true national citizenship) has significantly depended on both the existence of formal institutions and the development

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of political actors (in particular parties, but also leaders, interest groups, etc.) able to ‘weave’ the diversity of local interests into a more coherent national pattern and thus ‘construct’ the national empowerment of citizens. In the European case, this construction seems to be lagging behind. The long and well-established tradition of a nationally based ‘construction’ of citizenship and the circuits of representation is probably the main factor explaining why it is in practice difficult to build new circuits that are not purely dependent on the national ones. The new European representatives must compete in an already crowded space where extremely professionalized representative actors are not willing to give way. Given this situation, the indirect channel of representation of the interests of citizens (through ‘national representatives’ active in the European Council and the Council of Ministers), which is based on the national structuring of parties, rather naturally tends to prevail over the more direct one that cannot rely on an equally developed European structuring of parties (on this point, see Bartolini 2005). However, to a certain degree, this picture needs to be qualified. The indirect mechanism for representing national/European citizens is not necessarily closed to the possibility of representing a common ‘continental’ interest (particularly if we adopt a pluralist rather than monistic interpretation of what the European interest is, i.e. if we conceive of it as something which would necessarily have to consider and integrate a plurality of national and sub-national points of view, etc.). By working closely together (and by conflicting and coalescing) in the institutions of the Union, national representatives (such as the heads of state, prime ministers and ministers interacting in the supranational Councils, and the top national administrators preparing and completing their work) will also inevitably produce a common representation of European citizenship. On the other side, institutions specifically geared towards producing a direct European political citizenship, such as the European Parliament and its electoral processes, show a double face from the point of view of representation and citizenship. Since European elections are still dominated by national parties, they fall prey to the national dimension and therefore are often judged as national elections of a second order (Reif and Schmitt 1980). At the same time, however, within the European Parliament alignments and aggregations among MEPs substantially following ideological rather than purely territorial lines show that some important elements of a European representation process do exist (Hix et al. 2007). In fact, the possibility is not excluded, in principle, that a direct European circuit of representation would progressively become stronger, producing a Europeanization of representation (and thus also a more direct political citizenship) in the same way that the ‘nationalization’ of politics took place in the past within the Member States, overcoming the localistic characterization of elections (Caramani 2006; on nationalization theory see Schattschneider 1960, Clagget, et al. 1984 and Caramani 2004). If this happens it will probably be through combined action, from above, by political entrepreneurs (leaders, parties) willing and able to intercept (and to some extent to construct and encourage) possible European-wide demands and, from below, by voters becoming mobilized. This possibility seems today primarily preempted by the entrenchment of national circuits of representation, though it must

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be said that the problems which these circuits are facing are due not only to the increasing fragility of many national party-systems but also to the supranational nature of many hot issues, suggesting that this obstacle might prove to be less insurmountable in the future. A question often raised with regard to this aspect is: ‘To what extent does European representation presupposes a common European identity?’ This is the famous ‘demos/demoi’ question, which belongs to the large family of ‘chicken and egg’ questions. The European circuit of representation (citizenship) is weak because the European identity and therefore the European demos are weak; at the same time it is plausible to think that the European demos is weak because the European circuit of representation is also weak. The European demos question has even induced the Constitutional Court of a European state to express itself in a famous ruling.8 We know, however, drawing again from the experience of national states, that this problem is far from unprecedented: in fact, it took decades to ‘turn peasants into Frenchmen’ (Weber 1976) or, as the Risorgimento politician Massimo d’Azeglio aptly said, ‘Fatta l’Italia bisogna fare gli Italiani’ (‘Now that Italy is made we must make the Italians’). Well-formed national identities were not necessarily a precondition for the (imperfectly) working national circuits of representation; to an important extent they were the consequences of the latter, as representative elites projected upon the citizens the common frames of reference which they gradually elaborated. This might happen also at the European level, to the extent that a European discourse (Closa 2001) projected from the existing institutions is accepted by the public.9 With reference to the last dimension of citizenship, that of entitlements, which at the national level has reached extremely broad dimensions, we must note that the European Union has over time developed areas of policy intervention that provide direct answers to certain needs of the individuals who are its members. This essentially concerns economic rights of movement within the European space, but also involves entitlement to receive subsidies, if the position of a local community vis-à-vis the European average is disadvantaged, and the protection of a series of increasing social, environmental, and gender rights. Compared to the scope of the national entitlements, the European-level ones still remain underdeveloped (Ferrera 2005). Furthermore, their overall profile is less coherent and less ‘philosophically’ grounded (probably due to the weaker role of a European common space of debate). European entitlements were in fact conceived, to a significant extent, at least in the beginning, as being instrumental in more effectively acquiring the rights which had already been recognized nationally. Over time, this has increasingly changed and they have started to be more frequently defined in their own right. A crucial question concerning this dimension is whether the developments in relation to a European citizenship simply confirm, in a larger space, the contents of the national definitions of citizenship (and provide instruments which favour their implementation) or, instead, introduce conflicting definitions that reduce/ expand/change the national definitions. The fact that a strong debate over the costs of these entitlements (and, albeit to a more limited extent, their legitimacy)

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has surfaced in most countries of the Union (as elsewhere) and proposals for introducing some limitations to them have been put on the agenda, suggests that perhaps some of their elements could be shifted from the national level to the higher levels of the EU in the future. A further aspect of this dimension of citizenship regards its relationship with the topic of identity. The size and importance that social entitlements have acquired over time in all the European national states has led many to think that the welfare state policies on which they are grounded could in fact be considered an important component for defining the collective identity of Europe. The idea of a ‘social Europe’ (in contrast for example to the more market-oriented identity of the American polity) would rest on the fact that, on average, all the Member States share a common preference for rather high levels of social protection, in spite of many specific differences. This ‘high average’ in some way defines a common European identity. To conclude, we can say that an inspection of different dimensions of citizenship demonstrates that Europe combines indirect and direct forms of citizenship. On the one hand, it remains significantly dependent on the national definitions of citizenship, and on the other hand it produces its own definition of citizenship, which to an extent is a territorial extension of national definitions, though in part it dislodges or replaces them.

The relationship between the normative and descriptive/explanatory aspects of the discussion From what we have said until now, it should be clear that the subject of European citizenship is open to both normative/prescriptive and empirical/explanatory treatment. There is, on one side, a discourse that rests on the values and principles which (should) guide our political environment, and on the other side a discourse about factors and causality. Up to a certain point, the two discourses can be kept separate. However, we would delude ourselves in thinking that this could always be possible and desirable. As with democracy, liberty, and similar words, citizenship is a concept that has empirical underpinnings and can thus be used to observe reality, though at the same time it is also a concept full of normative content. The consequence is that it continuously stimulates discussion and differing interpretations of the values at stake. We must also add that, as many other valued norms, citizenship is to an extent a myth, something which is in fact never fully attained in real life, but as such has a ‘pull effect’ on reality, as Sartori once indicated with regard to democracy (Sartori 1987: 67). The content of this crucial norm (for modern Western political experience) has been subject to significant development over time and important variations across countries. The normative content and its development can be seen both as a powerful agent of change in contemporary political life (the cumulative and progressive discourse about values and ideals which triggers behavioural and institutional change), and as something which has been shaped by the constraints and opportunities offered by the existing political structures.

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This also applies to the specific discourse about citizenship at the European level. The normative force of the concept of citizenship has progressively extended its prescriptive impact upon a political construction, such as the European one, which, at the beginning, predominantly ‘spoke’ another language (that of market regulation/deregulation) (Maas 2006). Simultaneously, faced with the very specific political and institutional conditions characterizing the European polity, the normative content of citizenship has been forced to adapt itself to this reality (both at a national and supranational level). The rather exclusive and excluding (vis-à-vis non-nationals), though highly integrative (with regard to members of the community), interpretation of citizenship which has traditionally prevailed at the national level must recede to a certain extent in order to enable its coexistence with a broader (and narrower) European interpretation of what it means to be a citizen. At the supranational level, the centrality of economic mobility adds a special note to the idea of citizenship. The political and ideological battle which has been raging in Europe (since the nineteenth century) over the content of citizenship (in its different dimensions) has been taking place in more recent decades in a multi-level arena. The European arena with its programme oriented towards the creation of a more competitive continental market has somewhat played the role of a ‘brake’ to further extension of the national content of citizenship, whereas at the same time it has gradually opened the way for a (so far limited) degree of rebalancing at the upper European level. The debate over the values which should guide the construction of Europe and consequently define the content of a European citizenship still remains in its infancy. The question is: Can this situation last much longer? Can a very large polity such as the European Union, where the economic centre of gravity has predominantly migrated to the supranational level while the centre of gravity for social policies remains predominantly national, maintain this imbalance over the longer term? This question leads us to the final point: the problem of the ‘production’ of citizenship.

The production of citizenship at the European level. What is the role of elites, experts, the media and the masses? If we look at past developments and, even more, towards the present and the future, one of the most crucial empirical questions concerns the production of citizenship. How and by whom is it produced? We can identify four groups of political actors as having a crucial role in our understanding of the ‘citizenship game’ now in progress at the European level and in the attempt to predict its possible results. These four groups of political actors – national elites, experts, the media and mass public opinion – while still actively involved in the ‘citizenship game’ at the national level are also significantly engaged in the broader European game. A fifth group should be added to these four – though we will not discuss it here – which is that of the ‘truly European actors’ (i.e. those groups who identify themselves primarily with Community institutions). This citizenship game can primarily be seen as taking place between the masses and elites and to be a game of ‘supply and demand’: the elites supply

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citizenship content and the masses demand citizenship content. In both political and economic life the relationship between supply and demand is recursive: supply generates demand and vice versa. However it is also a game of ‘constraints and opportunities’, where an extension of citizenship rights will constrain elites (by strengthening their accountability), but can also empower them to intervene in new policy areas. What is the role of the media and the experts in this dynamic? Apparently, their role is less direct and central. However, in practice, they participate in a crucial way in these games. The media provide the ‘vehicle’ through which words, ideas and values concerning citizenship and its various aspects circulate among the masses, among the elites and between the two. As is well known, the ‘vehicle’ is never a purely passive agent but operates as a filter, an enhancer, a manipulator and a framer. It is extremely important therefore to devote specific attention to the ‘language about Europe’ circulating in a significant sample of the media. In this game the experts introduce their specific knowledge of the concrete problems that exist behind the more general and abstract discourses about citizenship pronounced by the other players. Experts also introduce their specific definitions of the problems. Their contribution is particularly important for the political elites, who typically lack that specific knowledge; experts are key providers of intellectual tools for them. Through the media reporting their views, experts can also, to some extent, orient the position of the masses. Their importance also lies in the fact that, due to the developments in their epistemic communities, they tend to be part of more international networks and to be less confined in their positions by national borders. How do all these actors connect the traditional national citizenship game with the new European game? What are the stakes at play? What is to be gained and to be lost? Given the history and architecture of an integrated Europe, national (mass and elite) political actors play a crucial role in the new citizenship game at the European level, but they are still deeply and fundamentally interested and involved in their respective national games. It is quite obvious, in particular, that national political elites derive their legitimacy and their ability to survive and succeed through their participation in the national game (Cotta 2006). The most important elections are still the national ones. And they are able to participate in the European game only in as much as they obtain success (win elections) in the national one (Cotta et al. 2005). With regard to the masses, the most important elements of citizenship are still being defined at the national level. At the same time, it is clear that both national elites – in an active way – and the masses, in a more passive (or permissive) mode, have contributed over the past decades to the development of a European citizenship discourse (and the associated legal norms and political phenomena). Can we expect that national elites will push further in this direction (or on the contrary, will resist further developments) and that the masses will provide the support for an expansion of European citizenship (or will rather oppose it)? More specifically, which aspects of a European citizenship would be perceived as more acceptable and which less? It seems reasonable to expect that elites would pay special attention to the compatibility between the requirements of European citizenship

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and those of the national one. As for the masses, they would probably be more open to the aspects of European citizenship which expand the national one, but much more prudent on trade-offs between the latter (the working of which is well established and known) and the former (which is still difficult to perceive). To search for more conclusive answers to these questions, it seems essential to systematically investigate in what measure the two main players of the democratic game (representative elites and voters) perceive complementarity and compatibility, or opposition and threats, in the coexistence of national and European citizenship. We must also discover how the media and experts contribute to this dialogue. Recent developments concerning the approval of the European Constitution, such as the French and Dutch referendums, have shown that even steps forward in the construction of a European order explicitly inspired by the idea of a supranational citizenship and submitted to the (electoral) test of an active citizenship can be perceived as threats to the existing national citizenship equilibrium and thus stimulate a negative answer. There is a bit of a ‘democratic paradox’ in this. In the past, advances in the direction of a European citizenship could be more easily obtained by following a more incremental and opportunistic way: European bureaucracies and experts and relatively obscure bargaining rounds between national governments would play a dominant role and citizenship would be one of the secondary bargaining chips. The people were fundamentally left outside of the game. Nowadays, as the topic is frequently thrown into the centre of more open, conflictual and democratic games with the populations involved (who are thus faced with difficult decisions between national and European citizenship content), the chances of rejection cannot be excluded. If this was the case, the effective working of the European representation process would become more important. Will there be political leaders willing and able to produce a European discourse that is more attractive than a purely defensive national discourse? Will they be able to convince European people or sufficient parts of them that a more developed European citizenship is feasible and persuade them to accept that its content could produce further limitations to those of the national citizenship? These questions have become increasingly relevant today. Investigations of the views of the mass public, elites, experts and the media on Europe should attempt to provide some of the answers.

Notes 1 The discussion presented here is linked to a large empirical research project (INTUNE – Integrated and United: A Quest for Citizenship in an ‘Ever Closer Europe’) conducted under our direction within the Sixth European Framework Programme (Project No. 513421 – Priority 7 Citizens and Governance in a Knowledge-based Society). 2 Sharpf indicates ‘output legitimacy’ as the guiding principle of European integration. This type of legitimacy also implies a community of interests but is less exclusive than input legitimacy and more easily admits multiple identities (1999). Output legitimacy however is not in itself contradictory and alternative to input legitimacy. Only if it is coupled with some idea of the superiority of experts, enlightened rulers, does it conflict with

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the idea of citizenship. This is not the case with Europe: its development is not a denial of the value of representative democracy as an optimal form of government but simply an answer to the obstacles posed to the solution of some important problems by the limited dimension of national states. The Treaty indicated also that the Community should strive to promote equality of conditions of living for workers (Article 117), an element that suggests the idea of a common belonging. In its preamble the SEA treaty explicitly introduced the democratic principle as a guiding principle of the Community, mentioning the European Parliament as the institution enabling its implementation for the European ‘peoples’ and the national and European charters of rights as its foundations. Interestingly enough the treaty sees, for the first time, the need to introduce the principle of respect for the national identity of the Member States, something which would not be needed if the Community was just an intergovernmental institution! In some cases even to illegal immigrants. This topic was, for instance, discussed during a ‘deliberative polling’ exercise held in Turin (March 2007) within the framework of the INTUNE research programme (for a report see www. Intune.it). The German Bundesverfassungsgericht, in its judgement of 12 October, 1993 (BverGE 155), discussed at length the consequences that the lack of a European ‘Volk’ (demos) would have for the nature of the European polity and its powers. Obviously we must not discount, either, the possibility of popular rejection of the frames of reference of the elites. This has also happend from time to time within national polities.

References Archibugi, D., Held, D. and Kohler, M. (eds) (1998) Re-imagining Political Community: Studies in Cosmopolitan Democracy, StanfordCA: Stanford University Press. Bartolini, S. (2005) Restructuring Europe, Cambridge: Cambridge University Press. Benhabib, S. (2002) The Claims of Culture: Equality and Diversity in the Global Era, Princeton, NJ: Princeton University Press. Bergman, T., Müller, W.C. and Strøm, K. (eds) (2003) Delegation and Accountability in West European Parliamentary Democracies, Oxford: Oxford University Press. Caramani, D. (2004) The Nationalisation of Politics. The Formation of National Electorates and Party Systems in Western Europe, Cambridge: Cambridge University Press. —— (2006) ‘Is There a European Electorate and What Does It Look Like? Evidence from Electoral Volatility Measures, 1972–2004’, West European Politics, 29(1): 1–27. Clagget, W., Flanigan W. and Zingale, N. (1984) ‘Nationalisation of American Electorate’, American Political Science Review, 78: 77–91. Closa, C. (2001) ‘Requirements of a European Public Sphere’, in K. Eder and B. Giesen (eds), European Citizenship Between National Legacies and Post-national Projects, Oxford: Oxford University Press. Cotta, M. (2006) Domestic Elites in the Transformation of the European Polity, in F. Engelstad and T. Gulbransen (eds) Comparative Studies of Social and Political Elites, Comparative Social Research, Vol. 23, Amsterdam: Elsevier. Cotta, M., Isernia, P. and Verzichelli, L. (eds) (2005) L’Europa in Italia, Bologna: Il Mulino.

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Delanty, G. (2005) ‘The Quest for European Identity’, in E.O. Eriksen (ed.), Making the European Polity. Reflexive Integration in the EU, London: Routledge. Eder, K. (2001) ‘Integration through Culture? The Paradox of the Search for a European Identity’, in K. Eder & B. Giesen (eds), European Citizenship Between National Legacies and Post-national Projects, Oxford: Oxford University Press. Eder, K. and Giesen, B. (eds) (2001) European Citizenship Between National Legacies and Post-national Projects, Oxford: Oxford University Press. Fabbrini, S. (2005) ‘Is the EU Exceptional? The EU and the US in Comparative Perspective’, in S. Fabbrini (ed.), Democracy and Federalism in the European Union and the United States, London: Routledge. Ferrera, M. (2005) The Boundaries of Welfare. European Integration and the New Spatial Politics of Social Protection, Oxford: Oxford University Press. Flora, P. and Alber, J. (1981) ‘Modernization, Democratization and the Development of Welfare States in Western Europe’, in P. Flora and A. Heidenheimer (eds), The Development of Welfare States in Europe and America, New Brunswick, NJ: Transaction. Fossum, J.E. (2005) ‘Contemporary European Constitution-Making: Constrained or Reflexive?’, in E.O. Eriksen (ed.) Making the European Polity. Reflexive Integration in the EU, London: Routledge. Habermas, J. (1992) ‘Staatsbürgerschaft und nationale Identität’, in J. Habermas (ed.), Faktizität und Geltung, Frankfurt am Main: Suhrkamp. Hirschman, A.O. (1970) Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations and States, Cambridge, MA: Harvard University Press. Hix, S., Noury, A. and Roland, G. (2007) Democratic Politics in the European Parliament, Cambridge: Cambridge University Press. Huntington, S. (2004) Who Are We?, New York: Simon and Schuster. Kuper, A. (2004) Democracy Beyond Borders, Oxford: Oxford University Press. Lupia, A. (2001) ‘Delegation of Power: Agency Theory’, in N.J. Smelser and P.B. Baltes, (2001) (eds), International Encyclopedia of the Social and Behavioral Sciences, Vol. 5, Oxford: Elsevier Science, pp. 3375–3377. Maas, W. (2006) ‘Challenges of European Citizenship,’ paper presented at the 102nd annual meeting of APSA at Philadelphia, 31 August – 3 September, 2006. Marshall, T.H. (1950) Citizenship and Social Class, Cambridge: Cambridge University Press. Moravcsik, A. (1998) The Choice for Europe, IthacaNY: Cornell University Press. —— (2006) ‘What Can We Learn from the Collapse of the European Constitutional Project?’ Politische Vierteljahresschrift, 47(2): 219–241. O’Leary, S. (1996) The Evolving Concept of Community Citizenship, The Hague: Kluwer. Olsen, J.P. (2007) Europe in Search of Political Order, Oxford: Oxford University Press. Pitkin, H. (1967) The Concept of Representation, Los Angeles, CA: University of California Press. Przeworski, A., Stokes, S. and Manin, B. (eds) (1999) Democracy, Accountability and Representation, Cambridge: Cambridge University Press. Reif, K.-H. and Schmitt, H. (1980) ‘Nine Second-Order National Elections. A Conceptual Framework for the Analysis of European Elections Results’, European Journal of Political Research, 8: 3–44. Rokkan, S. (1970) Citizens, Elections, Parties, Oslo: Universitetsforlaget. Sartori, G. (1987) The Theory of Democracy Revisited, Chatham, NJ: Chatham House.

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Sbragia, A. (2005) ‘Territory, Electorates and Markets in the US: The Construction of Democratic Federalism and its Implications for the EU’, in S. Fabbrini (ed.), Democracy and Federalism in the European Union and the United States, London: Routledge. Scharpf, F. (1999) Governing in Europe. Effective and Democratic?, Oxford: Oxford University Press. Schattschneider, E. (1960) The Semi-sovereign People. A Realist’s View of Democracy in America, New York: Halt, Rinehart and Winston. Sternberger, D. (1990) Verfassungspatriotismus, Frankfurt/Main: Insel. Weber, E. (1976) From Peasants into Frenchmen, StanfordCA: Stanford University Press. Weiler, J. (1999) The Constitution of Europe, Cambridge, Cambridge University Press.

6

Revising some ‘modest proposals’ for making the European Union more democratic Philippe C. Schmitter

Almost ten years ago, I proposed some ‘modest reforms’ that I thought could make the European Union more democratic (Schmitter 2000). They were intended as a ‘stealthful’ alternative to the more ‘aggressive’ strategy of adopting a formal constitution. A lot has happened in the ensuing years – including the rejection by referendum of that Constitutional Treaty in two Member States and, subsequently, the negotiation of a ‘down-sized’ version (the Lisbon Treaty) which is currently in the process of being ratified. In this chapter, I propose to re-visit some of the suggestions I made then and discuss what their present value might be. I persist in the assumption that it is desirable to democratize the EU, but that this cannot be accomplished simply by mimicking the institutions already present in the ‘domestic democracies’ of Member States. All of my proposals were rooted in a generic definition of democracy that was specifically not rooted in any particular configuration of institutions or level of political aggregation: ‘Modern political democracy’ is a regime or system of governance in which rulers are held accountable for their actions in the public realm by citizens acting indirectly through the competition and cooperation of their representatives. This definition provides three types of actors whose behaviour has to be coordinated in order to produce accountability: citizens, representatives and rulers. Reform of the EU’s institutions should be addressed to all three of them – and, ideally, they should take into account the interactive properties that are likely to emerge if and when it is implemented. In this chapter, I will revisit some of my initial proposals according to these three types of actors and will then make a case for their adoption. Some of these changes are more consensual among member national governments than others. The degree of elite acceptance of these changes to the functioning of the European political system and the impact these changes might have at the national, sub-national and European levels would inevitably dictate the pace and scope of reform. The EU offers a unique cultural and institutional setting for experimenting with democracy at the supranational level, yet the proposals for democratizing the EU which have been discussed and, possibly, incorporated into the various Treaty revisions have been much less innovative and comprehensive than expected.

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Citizenship Modest proposal No. 1 There is one potential measure which would be relatively easy to implement (and perhaps even be acceptable to member national governments under present conditions). Moreover, it would have a rapid and dramatic impact: the insertion of direct referendums into the existing Euro-elections. The EU has already had the indirect (and, probably, unintended) effect of encouraging its Member States to make greater use of this mechanism; why not incorporate it within its own practices?1 What if either the European Parliament by absolute majority or any group of European citizens over a certain size and distributed across a certain number of Member States could place two or three items on the ballot, for popular approval along with the usual lists for electing MEPs? The number would have to be limited for practical purposes and some mechanism would have to be set up to decide which items to favour at a given moment (the most democratic solution would be selection by lot). Even if the results of these referendums were not binding, they would almost assuredly have a considerable influence on policy-makers at both the national and supranational levels. Most importantly, competition for ‘yes’ and ‘no’ votes would definitely increase public attention with regard to European issues in general and raise the degree of public involvement with which specific measures were discussed and defended. The very fact that Euro-elections do not, by and large, coincide with national elections and that they presently involve only a rather simple choice of party candidates by closed national or regional lists (except in the United Kingdom) has created a potentially attractive ‘political opportunity space’ that could be utilized at very little additional cost.2 And, who knows, inserting referenda items on significant issues might even invert the present tendency toward declining participation.3 The issue of possible EU-level referendums was addressed in an oblique fashion in the Constitutional Treaty and retained in the revised Lisbon version, but quite differently from my proposal. Article 8B of the latter stipulates that one million or more citizens in ‘a significant number of Member States’ may initiate a request to the Commission on ‘any appropriate proposal … for the purpose of implementing the Treaties’. Nothing is said about whether the Commission is obliged to act favourably on this request and, in any case, its content cannot be interpreted to extend beyond matters not already contained within the Treaties. Most importantly, the provision does not foresee any EU-wide referendums alongside European Parliament elections, as would my proposal, nor is any role for the EP contemplated. Under these restricted and ambiguous conditions, it is difficult to imagine a political context in which such a mechanism would be applied. And, most significantly, the idea that Europe-wide referendums should become regular features of EP elections is (implicitly) rejected. As we know from recent experience at the national level in Portugal, France and the Netherlands, referendums held erratically are likely either to produce unanticipated results or unwelcome levels of abstention or both.

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Modest proposal No. 2 The European Union could, with relatively little effort and not much immediate effect, become the first polity in the world to practise universal citizenship, i.e. to grant full rights of membership of the community from the moment of birth to all persons born within its territory or to one of its citizens living abroad, as well as to those children who are subsequently naturalized. Recognizing the manifest incapacity of children to exercise formal political rights directly and independently, this reform further proposes that the parents of each child be empowered to exercise the right to vote until such time as the child reaches the age of maturity established by national law. To the best of my knowledge, the EU would be the first to accord multiple votes to adult child-raising citizens. In line with the general objectives of making the exercise of Euro-citizenship distinctive from that of national citizenship and of ensuring that Euro-citizenship supplements and does not supplant national citizenship, universal citizenship – even if vicariously exercised until maturity – would seem to have a number of political advantages: 1

2

3

4

It should make the emerging Euro-democracy more ‘future-oriented’. Not only would allowing children the vote constitute a symbolic recognition that the Euro-polity has a responsibility for future generations, but it would also provide a real incentive for these youngsters to develop an early interest in politics and to do so through an awareness of the importance of the European level of aggregation. Precisely because of this incentive, it is to be expected that children – once they become aware of the right that their parents are exercising in their name in elections to the European Parliament – will increasingly hold their parents accountable for the way in which they distribute their electoral preferences, which, in turn, might make the parents more aware of the importance of these elections. This also suggests that the measure should increase various forms of intergenerational discussion about political issues and partisan orientations in general – strengthening channels of political socialization and improving elements of citizen training within the family that seem to have considerably diminished in recent decades. It may even compensate for the prodigious decline in party identification at the national level and improve it at the supranational level. Enfranchising children and the young will contribute to greater equilibrium in the political process over the human life cycle. With increasing lifespans and a stable age of retirement, older persons have become a larger and larger component of the total citizenry and they have both the time and financial resources to participate disproportionately in the policy process – with the result that an increasing proportion of public funds are being spent on the health and welfare of the aged and a decreasing sum on the education and training of the young. In the longer run, this is bound to be a self-defeating process as a smaller and less productive set of active workers must pay for a larger and larger set of retired workers.

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Although I personally doubt the effect will be great, the reform might have a positive impact on the birth rate. It would even more assuredly provide a major signal of support for the integrity of the family and for ‘family values’. Providing multiple votes for families with children should provide a significant incentive for politicians to pay more attention to such issues. While this notion has surfaced occasionally at the national level, usually promoted by Christian Democratic or Green parties, no one seems yet to have entertained its desirability at the European level. Certainly, there was no discussion of it in the Convention or in the subsequent ‘downsizing’ of the (no longer) Constitutional Treaty. This is regrettable for two reasons: 1

2

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The decline in voter turnout has persisted almost monotonously from each European parliamentary election to the next and nothing seems to have been tried to arrest this decline. If the assumptions above prove to be accurate, granting the vote to everyone from the moment of birth with one parent actually exercising it until the child’s maturity would provide a significant incentive for increasing voter participation – especially among younger people, the age group least likely to vote in Euro-elections. The results of party competition at the European level have become increasingly diverse from those at the national level for the same political groupings: they cause particular embarrassment to ruling parties and demonstrate a misleading degree of support for more extremist right or left wing parties. Shifting to universal citizenship would have the indirect effect of establishing different criteria for eligibility to vote and, hence, a justification for why elections might produce different results at the two levels. The Member States of the EU already demonstrated when they drafted and ratified the Amsterdam Treaty that they were prepared to legislate to introduce uniform conditions for the conduct of EU elections. In the treaty, they stipulated that residents from other EU countries would be entitled to vote in these elections. This sets a clear precedent for imposing universal citizenship from above – either by treaty or directive – and the EU would have the added symbolic advantage of being the first polity to do so. Moreover, precisely because EP elections are not presently regarded with the same attention and seriousness as national ones, they would seem to be more susceptible to reform. Enfranchising children and their parents would have less of a likely impact on their partisan outcome or, if it did, would have fewer immediate consequences. Turnover rates among MEPs are already quite high, so they may be less concerned about the impact of such a reform upon their own chances of re-election.

Representation Modest proposal No. 3 Ideally, Euro-citizens should be given some direct say in the nomination process, either through local party caucuses or primaries, but this is rarely observed in the

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national politics of Member States and would be even more difficult to implement at the supranational level where partisan identities and organizational structures are much weaker. With so little possibility for their participation in the nomination process, attention has been focused almost exclusively on expanding the electoral role of Euro-citizens. For example, it has been suggested that they be accorded the opportunity to vote twice in each election, once by simple majority for individual candidates in sub-national constituencies and again by proportional representation for closed lists established by transnational political parties (Dewatripont et al. 1995). This has the virtue of resembling a well-established (if not always well-understood) procedure followed by one of the EU member states, the Federal Republic of Germany, but it seems unlikely that such a far-reaching change would be accepted unanimously by the others – which, after all, would have to be the case under the existing rules of the Council. If these countries cannot even agree on a much simpler common electoral procedure, how can we expect them to agree on something that would so dramatically empower transnational parties that barely exist! I propose something more modest; indeed, so modest that it might initially be implemented by simple majority vote of the EP under its present rules. What if the existing European party formations in the EP were given control over one half of the EU electoral funds allotted to each Member State? And what if these funds were distributed in support of national lists in which one half of the candidates were nominated by these very same, admittedly embryonic and often fragmented, parliamentary parties?4 Would this be enough to bring out latent voter preference for candidates with more transnational connections and appeal? Would national party oligarchies find it increasingly desirable to place candidates with more Euro-experience higher on their lists and become more reluctant to use it as a place to park their failed or retiring brethren? Would politicians, especially if they had the possibility of serving longer terms in the EP, come to attach their professional expectations more securely to that level of aggregation? If it could be demonstrated on this reduced scale that such candidacies and campaigns are viable, then it might become feasible to consider possibly more consequential reforms such as the creation of sub-national or explicitly crossnational constituencies (with either single member districts or smaller PR pools), double lists and voting for national and European candidates, strictly uniform procedures for nomination and vote assignment, and even additional financial and legal incentives for the formation of supranational party identities and structures independent of national ones. But this is for the distant future. In the meantime, just increasing the proportion of funds controlled by Euro-parties at each successive Euro-election should provide a badly needed impetus for change – and might even generate some desirable side-effects. Needless to say, nothing in either the Constitutional or the Lisbon Treaty comes close to addressing this delicate issue. The latter does contain an ambitious and ambiguous declaration that ‘Political parties at the European level contribute to forming European political awareness and to expressing the will of citizens of the Union’ (Article 8A), but it does absolutely nothing to promote their existence

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or expand their role. The obvious response is that constitutions are rarely explicit about the rules concerning political parties. This is left to normal legislation – and this legislation is notoriously difficult to change, once candidates nominated and promoted by existing parties have won the elections. Understandably, they are not likely to see much reason to change the rules in any way that might affect their prospects in future elections. Thanks to an increasing number of scandals involving MEP perquisites and EU funding of national parties (not to mention the high turnover of incumbents), there is some reason to hope that the EP will change its own rules and, perhaps, shift more control over electoral subsidies and, consequently, candidate nominations to the party secretariats in Strasburg and Brussels. In my opinion, such a change is needed more than ever now that the EP’s role is about to be greatly expanded – if and when the Lisbon Treaty is ratified. One serious danger to the public perception of European democracy is the ‘disconnect’ between the deliberations and decisions of the EP and their preferences – precisely because of the absence of links between individual citizens and party organizations at the European level. Whether my admittedly modest proposal would be sufficient to start the process of ‘separating’ and, in some cases, even ‘divorcing’ European parties from their national precursors is debatable – but worth trying in my opinion. Only by distinguishing between these levels of aggregation in financing campaigns and nominating candidates can one expect to begin the tortuous process of creating a genuine European party system.

Semi-conclusions with regard to representation The problem with democratizing the Euro-polity’s system of representation is that it does not create anything ex novo as was the case with Euro-citizenship. Plenty of interests and passions have already found their way to the corridors of Brussels. It is just that they are too skewed, in functional terms, towards business interests and too confined in territorial terms to groups articulated at the national level. Ironically, it may prove more difficult to improve this evolving system with its entrenched modes of access than to convince individual Europeans that the emerging Euro-polity can make a positive contribution to extending and guaranteeing their rights as citizens. Nevertheless, the potential exists for mobilizing the interests of other classes, sectors and professions at the supra- and sub-national levels – not to mention for reaching the passions behind so many social movements and environmental causes – and, if realized, it could provide a new momentum to the whole integration process. The modest proposals for reform suggested above will definitely not eliminate the favoured treatment of national and business interests (if they did, these proposals would no doubt be rejected sine die), but they should encourage the opening of new channels of representation and promote experimentation with new means of holding authorities accountable. In the absence of large-scale refounding, i.e. constitutionalizing, of the entire enterprise, I doubt if one could ask anything more at this stage. And, who knows, once some groups have demonstrated their success in representing ‘other’ interests and passions, this could even trigger more generalized (and irrepressible) responses.5

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Whether this sort of politicization would – on balance –prove to be positive for European integration in the future is a calculated risk, but one which should be taken. Without such an effort at enlarging the sphere of representation and without much further prospect of functional spillovers being cultivated surreptitiously, those who favour such an enterprise could, at best, find themselves defending a stagnant process and, at worst, managing a retreat to the status quo ante integrationem.

Decision-making rules Not quite so modest proposal No. 4 One distinctive feature of the EU as a polity is its treatment of Member States of different size. Small ones are egregiously over-represented – both in terms of weighted votes in the Council of Ministers and seats in the European Parliament. This has been the case since the founding of the EEU and has become more so due to successive enlargements. The last one was especially distorting since so many of the Eastern newcomers – not to mention Malta and Cyprus – were so much smaller than previous entrants. So, why not embed the recognizable and defensible diversity of size among EU Member States in its permanent decisionmaking structure by creating three electoral colleges based on the relative size of their respective citizenries? One composed of the largest states with 38.0–82.5 million citizens, i.e. at the moment one composed of Germany, France, the United Kingdom, Italy, Spain and Poland. A second composed of middle-size states with 6.3–21.6 million citizens: Romania, the Netherlands, Greece, Portugal, Belgium, the Czech Republic, Hungary, Sweden, Austria and Bulgaria. A third composed of small states with 0.2–5.4 million citizens: Denmark, Slovakia, Finland, Ireland, Lithuania, Latvia, Slovenia, Estonia, Cyprus, Luxembourg and Malta. With future enlargements, it should be possible to slot the new Member States into one of these three clusters without diluting their significance, although something special might have to be done to accommodate such mini-states as Andorra, Liechtenstein, San Marino and Monaco if they should choose to join.6 Within each cluster, the number of members of the European Parliament and the number of weighted votes in the Council of Ministers (or the possible Upper House) would be disproportionate in absolute terms – roughly proportionate, as I have suggested, to the square root of the total size of their respective citizenries or populations. Hence, for example, as the European Parliament as a whole is limited to 750 MEPs, that would assume an average of about 670,000 citizens for each representative (with the present contingent of 27 countries). That could be fixed as the average for the middle college, but a higher average coefficient (say, 800,000 citizens per MEP) would be applied to the large college and a lower coefficient (say, 300,000) to the small college. An equivalent weighting of votes could be applied in the Council of Ministers, where it might be desirable to limit their total number to 100 in order to facilitate

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calculation (and protect against the tendency for vote inflation in the future). As new members were admitted, the ratios would shift in order to remain within the overall limit of 750 seats in the EP and 100 votes in the Council of Ministers. The issue of size and its impact on votes and seats already began to play an overtly controversial role in the negotiation of the Treaty of Nice and it carried over into the Convention and the re-drafting of its Constitutional Treaty. The larger Member States were (understandably) preoccupied that their clout was being weakened with the incorporation of so many small ones; middle-sized countries such as Poland were anxious to be granted enhanced status; small countries became wary that any substantial institutional reform would diminish their role. The final Lisbon version did nothing to change weights in the Council or seats in the Parliament. They were set (after great controversy) by the Treaty of Nice. It did reduce the total number of Commissioners (but only in 2014) so that not all members would always have their own. Instead, ‘demographic and geographical range’ will be used to select members on a rotational basis from two- thirds of the Member States. My understanding is that something like my proposal for colleges was discussed in the Convention and immediately rejected when several countries objected to being classified as ‘small’ or ‘medium,’ or on the more general grounds that the size of Member States should not be used as a discriminatory principle. Nevertheless, I persist in believing that confronting this issue overtly makes good political sense. One of the most important (if latent) structural features of Europe as a region is that the size and wealth of its countries do not correlate with each other. There are small rich ones and large poor ones – and vice versa. Recognizing this cross-cutting of cleavages should be the foundation upon which the region’s intrinsic pluralism rests and its supranational institutions should be built. Not quite so modest proposal No. 5 By far the most consequential and contentious matter that will have to be resolved if the Euro-polity is to be democratized will be the specific rules that permit either the Council or the Parliament to take a decision that will be authoritatively binding, even upon those members who disagree with it. Empowering EU institutions to override the unanimity rule, even for serious issues in pillars two and three (foreign affairs and internal security), would mean a definitive break with ‘intergovernmentalism’ and is unlikely to be enacted without considerable resistance. No doubt, it will have to be introduced gradually and, should either the consortium or condominium model prevail, individual countries would be protected by their right to opt out with regard to specific functional policy areas – provided, as we have argued above, they continue to respect the hard core of common obligations.7 Nevertheless, such an irreversible transformation is essential if the entire enterprise is to become credible as an efficient decision-making body that can move beyond the will of its least supportive member. It has already acquired this status through qualified majority voting on issues of the liberalization and regulation of its internal market and in its external trade negotiations with third parties. If the project of monetary unification moves ahead in the future, the

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Euro-polity will have taken a further very substantial step in this direction – without, it should be noted, making any progress on democratization. One principle that just might permit such an institutional breakthrough is that of concurrent majorities. Instead of applying the standard principle of simple or qualified, one-time, majorities for the approval of legislation, the future Euro-democracy could work on the basis of multiple, concurrent majorities (Calhoun 1943: 28).8 The basic principle is simple: No measure would pass the Council of Ministers unless it obtained a majority in each of the three electoral colleges – a simple majority for ordinary directives and perhaps a qualified majority for such matters as amendments to the rules or admission of new members.9 This should be sufficient to reassure the smaller countries that they will not be outvoted as a category by the larger ones, although each country would still face the imperative of convincing a sufficient number of the fellow members of its college to reject a measure that it regarded as a specific threat to its national interests. The liberum veto or unanimity rule would disappear, but be replaced by a ‘categoric’ form of protection according to size.10 Needless to say, this reform would not do away with the possibility that lobbying and log-rolling might take place across the three colleges on any given issue or issues, but that is not intrinsically undemocratic. Large countries might very well attempt to ‘bully’ or ‘buy off’ selected countries in the other two colleges to get what they wanted. In any case, the small and medium-size countries would be accorded a few more chips to bargain with than might otherwise be the case. Moreover, if the proposal to attach several referendum items to the usual Euroelections were to prosper, the large countries would be periodically capable of demonstrating the existence of widespread support for specific measures – even if the results of these referendums were merely advisory. It should be noted that the concurrent majority principle would itself run concurrently with the functional pertinence and proportionate proportionality principles. The requisite majorities would only have to be assembled among those Member States that had accepted the full set of obligations in a given functional area and the weighting of seats in the Parliament or votes in the Council would remain approximately proportionate to the value of the square root of the total size of the Member State’s citizenry. This proposal was contingent upon prior acceptance of the ‘college system’ that would have established the assemblies within which simple majorities would have been calculated and concurrent ones combined with each other. So far, it would seem that the existing system of weights and seats continues to function reasonably well – despite the fears of enlargement towards the east. While there have been ‘incidents’ of obstreperous behaviour, important decisions on directives continue to be reached in the Council. The prospect of a ‘blocking minority’ of either small or poor Member States, creating stalemate, has not materialized – yet. What the Lisbon Treaty has introduced is a decision-making system based on a ‘double majority’: one based on at least 55 per cent of the members of the Council (and 15 states out of the total) and one based on at least 65 per cent of the total population of the EU. It also greatly expanded the issues subject to this voting system, including such controversial ones as migration, criminal justice, and police cooperation. Whether this will satisfy all Member States, with such diversity in size and capacity, and whether it will

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suffice to convey legitimacy, even in out-voted ones, remains to be seen. In any case, it will only be introduced between 2014 and 2017. My hunch is that the more transparent and coalition-building device of concurrent majorities is able to do a better job – but only if the Member States are willing to recognize and even be proud of their diversity in size and capacity.

Two reasons and a window of opportunity for experimentation . . . now There are, in my opinion, two good reasons why it may be timely for the EU to begin the experiment with supranational democracy sooner rather than later: 1

2

There is considerable evidence that citizens have been increasingly contesting the rules and practices of democracy at the national level. This has not (yet) taken the form of rebellious or even ‘unconventional’ behaviour, but, rather, the form of what Gramsci once called the ‘symptoms of morbidity’, e.g. greater electoral abstention, a decline in party identification, more frequent turnover among those in office and rejection of the party in power, lower prestige for politicians and greater unpopularity for chief executives, increased tax evasion and higher rates of litigation against authorities, escalating accusations of official corruption and, most generally, a widespread impression that contemporary European democracies are simply not working well to protect their citizens. It would be overly dramatic to label this ‘a general crisis of legitimacy’, but something is not going well – and most national politicians know it. There is even more compelling evidence that individuals and groups within the European Union have become aware of how much its regulations and directives are affecting their daily lives, and that they consider these decisions to have been taken in a remote, secretive, unintelligible and unaccountable fashion. Whatever comfort it may have given them in the past that ‘unwarranted interference’ by the Eurocrats in Brussels could be vetoed by their respective sovereign national governments, this has been dissipated by the advent of qualified majority voting. Europeans feel themselves, rightly or wrongly, at the mercy of a process of integration that they do not understand and certainly do not control – however much they may enjoy its material benefits. Again, it would be overdramatizing the issue to call this ‘a crisis of legitimacy’ but that ‘permissive consensus’ of the past is much less reliable – and supranational officials know it.

These two trends are probably related causally – and together they create a potentially serious ‘double bind’ for the future of democracy in Europe. If the shift of functions to and the increase in the supranational authority of the EU have been contributing to a decline in the legitimacy of ‘domestic democracy’ by calling into question whether national officials are still capable of responding to the demands of their citizenry, and if the institutions of the EU have yet to acquire a reputation

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for accountability to these very same citizens when aggregated at the supranational level, then democracy as such could be in jeopardy in this part of the world. Admittedly, the grip of this double bind is still loose, but it is tightening.11 The national ‘morbidity symptoms’ show no sign of abating; the supranational ‘permissive consensus’ shows abundant signs of waning. Between the two, there is still space for the introduction of democratic reforms – that has been a major premise of this book – but it is no means clear who will be willing (and able) to take advantage of the rather unusual window of political opportunity formed by monetary unification and eastern enlargement (not to mention, the increasingly skewed outcome of Euro-elections). The potential exists for pre-emptive action before the situation reaches a crisis point and before the compulsion to do something becomes so strong that politicians may overreact, but will it be exploited? Moreover, if my second hunch is correct, i.e. that the ‘Monnet Method’ of exploiting the spill-overs between functionally related issue arenas in order to advance the level and scope of integrative institutions has exhausted its potential – precisely because of increased citizen awareness and further politicization – then only switching to an overtly political strategy of democratization would be sufficient to renew the momentum that has clearly been lost since the defeat of the constitutional project at the Dutch and French referendums. If only it were possible to rekindle within the process of Euro-democratization that same logic of indirection and gradualism based on an underlying structure of functional interdependence and an emerging system of collective problem-solving, the process of European integration might be re-launched in the way that it has so frequently sought and so badly needs to be. Except that this time, the result may not be so foreseeable or controllable. Democratization, especially in such unprecedented circumstances and for such a large-scale polity, is bound to activate unexpected linkages, involve less predicable publics and generate less limited expectations.

Notes 1 Referendums seem a particularly appropriate device for dealing with issues that cannot be processed in a ‘normal’ fashion by political parties and legislatures because they cut across the usual preferences of their members/voters. Since it is manifestly the case that many of Europe’s most venerable parties are badly split internally on issues involving the concession of more or less authority to the EU, it should be appealing to their politicians to offload responsibility to a referendum, rather than risk increasingly acrimonious factionalism. 2 It is important that Euro-elections continue to be separated from national ones, although tying them to local or provincial contests may occasionally be necessary (and have some impact on voter turnout). 3 For a more ambitious proposal along these lines sea Roland Erne, Andreas Gross, Bruno Kaufmann and Heinz Kleger (eds) (1995) Transnationale Demokratie. Impulse für ein demokratisch verfasstes Europa, Zürich: Realotopia. In a single sentence in a footnote Fritz Scharpf has summarily dismissed the idea of Euro-referendums on the grounds that such devices are only appropriately applied with a homogeneous demos – which is manifestly not the case of the EU. In my opinion, this involves a basic misunderstanding of

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how referenda have functioned historically. At the time they were introduced in Switzerland (the latter part of the nineteenth Century), that country had anything but a homogeneous demos. At first, they were used cautiously and infrequently just for that reason. They did, indeed, reveal some very substantial differences in preference that correlated with basic religious and linguistic divisions. However, over time, these tended to diminish. It could even be argued that the increasing frequency of recourse to referendums in that country has made a significant contribution to creating a more homogeneous demos (and to helping to stabilize its otherwise very fragmented party system). Stretching a point, I might even be prepared to make the same argument for California! (F. Scharpf (1997) ‘Economic Integration, Democracy and the Welfare State’, Journal of European Public Policy, 4(1): 18–36). The best and most up-to-date treatment I have read of this subject is by Frank L. Wilson (1995) ‘The Elusive European Party System’, a paper presented to the ECSA Meeting, Charleston, SC, 11–14 May. For an earlier analysis, see Karl-Heinz Reif and Oskar Niedermayer (1987) ‘The European Parliament and the Political Parties’, Journal of European Integration, 10(2/3): 157–172. There are already some signs of this, arising especially from the pressure of environmental movements. The EP has recently rejected several directives from the Commission. For a case study of one such ‘footnote,’ see David Earnshaw and David Judge (1993) ‘The European Parliament and the Sweeteners Directive: From Footnote to Inter-Institutional Conflict’, Journal of Common Market Studies, 31(1): 103–116. For a similar proposal (but put to a somewhat different purpose), see Justus Lipsius (1995) ‘The 1996 IGC’, European Law Journal, 20(3): 235–267. Also Gerda Falkner and Michael Nentwich (1995) European Union: Democratic Perspectives after 1996, Vienna: Service Fachverlag, p. 87. A point to note is that it should be possible to assign membership of colleges in a flexible fashion so that they would tend to divide the entire membership into more-or-less equal thirds. Countries approaching the upper or lower limit in terms of the size of their citizenry could be moved up or down as the case may be in order that one college would not become too large and, thereby, dilute the significance of any one member’s vote. It seems highly unlikely that the unanimity rule will ever be completely abolished within the Euro-polity. It will probably persist for future changes in major constitutional rules and may even be left in the present limbo with regard to any issue that threatens ‘the vital national interests of a Member State’ – although fellow members may increasingly insist on some role in defining the bona fides of such an assertion. Invoking it to protect one’s cereal producers or moviemakers from ‘unfair’ foreign competition may no longer be tolerated. This concept of ‘concurrent majority’ originated with the American political theoristcum-politician, John C. Calhoun, who put it to the unfortunate use of defending the minority slave-holding states of the South of the United States against the rising tide of the majority-forming Northern, non-slave-holding, states. (J.C. Calhoun (1943) A Disquisition on Government, New York: Peter Smith – originally published in 1853. The discussion of a concurrent majority can be found on p. 28). If this seems complicated, it should be noted that there is no reason that the three colleges would ever have to meet separately, much less have any staff or institutional framework of their own. The Council would meet, deliberate and vote as a whole – except that the tallies would be compiled separately. This would also do away with the two ‘spectres’ that have been haunting the Europolity, namely, that with enlargement (1) it will become technically possible for a

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minority of the European citizenry to override a majority and (2) depending on their numbers, it will become technically possible for the new Eastern members to block any legislation. By dividing the Euro-polity into three electoral colleges according to size, it would no longer be feasible to override the preferences of the largest countries (provided a majority of them agreed) and the votes of the prospective Eastern members would be distributed according to relative size, presumably with Poland being placed in the large category, the Baltic Republics, Cyprus, Malta, Slovakia and Slovenia going to the smallest, with the remainder, Hungary, the Czech Republic, Romania, Bulgaria and, perhaps, Croatia, going into the middle one. 11 Presumably, something like this double bind is what Fritz Scharpf had in mind when he wrote: ‘Since … Europe is part of the problem (of democratic legitimacy), European policies can also help alleviate it.’ (F. Scharpf (1999) Governing in Europe: Effective and Democratic,’ Oxford: Oxford University Press, p. 8).

References Calhoun, J. C. (1943) A Disquisition on Government, New York: Peter Smith. Dewatripont, M., Giavazzi, F., Von Hagen, J. and Harden, I. (1995) Flexible Integration. Towards a More Effective and Democratic Europe. Monitoring European Integration 6, London: Centre for Economic Policy Research. Earnshaw, D. and Judge, D. (1993) ‘The European Parliament and the Sweeteners Directive: From Footnote to Inter-Institutional Conflict’, Journal of Common Market Studies, 31(1): 103–116. Erne, R., Gross, A., Kaufmann. B. and Kleger, H. (eds) (1995) Transnationale Demokratie. Impulse für ein demokratisch verfasstes Europa, Zürich: Realotopia. Falkner, G. and Nentwich, M. (1995) European Union: Democratic Perspectives after 1996, Vienna: Service Fachverlag. Lipsius, J. (1995) ‘The 1996 IGC’, European Law Journal, 20(3): 235–267. Reif, K.-H. and Niedermayer, O. (1987) ‘The European Parliament and the Political Parties’, Journal of European Integration, 10(2/3): 157–172. Scharpf, F. (1997) ‘Economic Integration, Democracy and the Welfare State’, Journal of European Public Policy, 4(1): 18–36. —— (1999) ‘Governing in Europe: Effective and Democratic,’ Oxford: Oxford University Press. Schmitter, P. (2000) How to Democratize the European Union… and Why Bother?, New York: Rowman & Littlefield. Wilson, F.L. (1995) ‘The Elusive European Party System’, paper presented to the ESCA Meeting, Charleston, SC, 11–14 May.

7

The invisible transformation of codecision Problems of democratic legitimacy Adrienne Héritier and Henry Farrell

Introduction The codecision procedure was introduced in the Maastricht Treaty in order to increase the European Parliament’s say in the legislative process, and thus to strengthen the democratic legitimacy of the European Union. In many respects, it has succeeded beyond initial expectations. Council officials were initially worried that Parliament was incapable of playing a responsible role in helping to draft legislation – Members of the European Parliament were perceived as being undisciplined lightweights. These worries were unjustified; while Parliament has consistently sought to increase its own powers through careful legislative tactics, legislative relations between the Council and Parliament are now relatively stable and productive. The Parliament thus has become a co-legislator on an equal footing with the Council. However, codecision has also had unexpected side-effects. First, the relationship between Council and Parliament involves a plethora of informal and semi-formal meetings in which many of the real decisions about legislation are taken, with little scope for public oversight. Parliament has repeatedly complained that this undermines its democratic purpose. What is less frequently commented on is the negative effects this has for decision-making within the Council; larger Member States may now have greater influence, and in extreme cases, may have a ‘second bite at the cherry’, through their influence on their respective national MEPs in Parliament. We dub this process the ‘invisible transformation’ of the codecision procedure – but note that this transformation, while mostly invisible in terms of formal institutional change, has had very substantial effects. We argue that these informal relationships have had real consequences for legitimacy, affecting relations among governments within the Council, as well as making it more difficult for national parliaments to supervise how EU business is conducted. The chapter will start with a brief overview of codecision, concentrating less on the formalities of the process – which are reasonably well understood – than on the informal practices and institutions that have sprung up around it. It then goes on to highlight the problems that have arisen from the codecision process, for both Parliament and Council, and will end with some possible solutions to the problems addressed.

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The development of codecision over time Codecision, introduced in the Maastricht Treaty, involves Council and Parliament acting as effective co-legislators on the basis of a Commission proposal. The Parliament delivers its Opinion before the Council adopts a Common Position on the relevant proposal; when the Council delivers its position, the Parliament can then make amendments, which the Council in turn accepts or rejects, in a second reading. If it does not approve all amendments, the Council and the Parliament meet in a Conciliation Committee to hammer out a compromise. Originally, under the Maastricht Treaty, the Council could reaffirm its Common Position if the Conciliation Committee failed to reach agreement; the Parliament could then overturn this position only on the basis of an absolute majority. The Treaty of Amsterdam amended this, so that a legislative proposal fails if there is no agreement in the Conciliation Committee. It also introduced the possibility of ‘early agreement’, so that Parliament and Council can now reach agreement and conclude legislation in first reading; it also greatly expanded the subjects covered by the codecision procedure. Thus, the introduction of the codecision process seems to have achieved many of its key aims. The Parliament now plays a much more active role in legislation, and frequently acts to improve proposals, or to bring them more in line with the perceived wishes of national electorates. The Council has overcome its initial reservations, and has come to accept that the Parliament can play a responsible and useful role in preparing legislation.1 It is, however, not clear whether the very considerable increases in Parliament’s political power have been reflected in greater legitimacy for Parliament among European voters. Elections to the European Parliament remain ‘second order elections’ (Hix and Lord 1998), in which voters typically seek to punish or reward politicians for the performance of the national government, with little reference to the policies that MEPs are likely to pursue at the European level. All of the above is well known, and often discussed in policy debates and the academic literature on the EU, institutional change and democratic legitimacy. However, other developments associated with codecision have received much less attention, even though their implications for democracy, transparency and openness are equally profound. These have led to the ‘invisible transformation’ of codecision, as informal changes have followed on the formal introduction of the codecision procedure. First among these developments is the institution of ‘trialogues’, meetings between representatives in the Parliament, Council and Commission, which seek to reach compromise on politically contentious matters. While these trialogues greatly increase the efficiency of decision-making, they weaken the standards of democratic accountability that Parliament is supposed to live up to. Second are the even more shadowy meetings, also called trialogues, between Council representatives and certain representatives within the Parliament that frequently occur in the context of early agreements. Third, there is a growing trend, which stems in part from the first two problems discussed above: the increasing possibility that larger Member States use their clout in Parliament to manipulate the legislative process in a non-accountable, and non-democratic fashion.

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These three problems are interlinked; they all stem from the plethora of informal contacts between Council and Parliament that have sprung up in the wake of codecision. We discuss each in turn below.

The trialogue system Perhaps the most important unexpected consequence of codecision was the creation of trialogues and early agreements; these informal structures paved the way for later changes. The trialogue system results from an informal compromise reached between Council and Parliament in the wake of Maastricht. Initially, the Council Secretariat and COREPER had sought to impose a minimalist interpretation of the new codecision procedure, in which the Parliament would continue to play a subservient role (Farrell and Héritier 2004). They were unwilling to engage in bargaining with the Parliament, instead preferring to make a ‘take it or leave it’ offer, indicating which Parliament amendments the Council was prepared to accept, and which it opposed. Parliament, however, refused to go along with the Council’s behaviour, instead arguing that codecision involved Council and Parliament as co-equal partners in the legislative process, so that both should be actively engaged in the process of drafting legislation. This led to bitter battles between Council and Parliament in the early years after Maastricht, in which Parliament withheld its approval from particular items of legislation in order to strengthen its institutional position vis-àvis Council; the battle over comitology, where the Parliament wished to share authority with the Council over matters of implementation (Corbett 1998; Hix 2002; Bergström et al. 2007) in the decision on the open voice telephony directive is maybe the most well-known example. Eventually the Council was forced to back down, and to accept an active role for Parliament in the legislative process. Over 1994–1995, the Council, Parliament and Commission began to create a system of regular meetings, which would allow them to negotiate over legislative matters subject to codecision (Shackleton 2000). These meetings gradually assumed semi-recognized status as ‘trialogues’. The original type of trialogue usually takes place after the second reading, but before the Conciliation Committee’s meeting, in order to hammer out compromises over issues of dispute. It is fair to say that Conciliation Committee meetings are increasingly pro forma; much of the real politics and bargaining takes places in the informal trialogues that precede them. These meetings involve, inter alia, the vice-presidents of the Parliament, representatives of the Council’s Presidency, Parliament’s rapporteur, and the chairpersons of the relevant Committee and Council working parties. Trialogues are not formally binding; neither Council nor Parliament is obliged to adhere to agreements reached in these meetings. However, because Council and Parliament engage with each other repeatedly in the legislative process, it is usually in their interest to make agreements stick; otherwise the defaulting party is likely to lose credibility, and be punished in future interactions. In addition to this first type, trialogues preparing the meetings of the Conciliation Committee, another type of trialogue has been created, in order to avoid conciliation

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altogether. These informal meetings take place much earlier, during first reading, and before the second reading and seek to hammer out an ‘early agreement’ between members of COREPER 1 and the Parliament. These trialogues and the informal ‘early agreements’ resulting from them have increasingly gained overt recognition as ‘fast track legislation’ and as such a vital part of the legislative process. They have formally been incorporated into the Amsterdam Treaty. It is difficult to see how the legislative process could be conducted without trialogues, or something like them. Informal negotiations between Council and Parliament, with the Commission acting as (relatively) honest broker, are necessary to reach agreement on legislative texts. However, there are problems associated with the process. Most obviously, there is the problem of transparency. Trialogues conduct important business on an informal and relatively secretive basis, at the expense of more visible parts of the codecision procedure, such as the Conciliation Committee, as the Council’s guidelines to codecision acknowledge. Thus, these meetings are not open to public scrutiny, leading to the criticisms that the Parliament is failing in its responsibility to provide democratic accountability. For example, Parliament–Council discussions on freedom of information and the code of access to EU documents were themselves held in trialogues behind closed doors leading to acid criticism from public interest groups.2 While the Parliament is unhappy with the lack of transparency in the trialogue system (see below), it also sees trialogues and other committees as providing it with opportunities to increase its influence over the legislative process.3 The Council, for its part, views trialogues as a way to speed up legislation, and make it more efficient. Although it has recognized their existence in the Amsterdam Treaty, it is unwilling to have the Treaty prescribe any specific formal structure for them, in case that limits their flexibility.4

Early agreements The success of the codecision procedure, and of the trialogue system, spurred the Council Secretariat – as pointed out – to propose Treaty amendments at Amsterdam, which would allow for ‘early agreements’ on codecision dossiers. Under early agreements, the Parliament and Council seek to reach agreement on a proposed piece of legislation before the Council adopts a formal Common Position, or the Parliament provides its official opinion. This fast track legislation places a premium on informal negotiations between the respective representatives of Parliament and Council, aimed at reaching agreement before it is necessary to invoke the formal machineries of Parliament–Council negotiations. Originally, the early agreement procedure was intended for non-controversial dossiers, where there was little likelihood of substantial disagreement between Parliament and Council, and thus, little need for formal negotiations. However, it has increasingly been expanded to non-technical and politically salient dossiers which have some degree of urgency. Thus, for example, the conclusions of the Lisbon European Council stated the need for the EU to take rapid steps towards

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improving its approach towards information technology, and laid down hard deadlines by which legislation had to be adopted. This led to the use of the early agreement procedure in areas such as ‘the unbundling of the local loop’ in telecommunications, an area of policy that was highly technical, but that was also highly controversial (control of the local loop has allowed traditional telecommunications firms to maintain a stranglehold on high speed Internet access). Again, the early agreement procedure has negatively affected openness and transparency. Early agreement places a far greater emphasis on informal negotiations than the standard codecision procedure; when it works successfully, the Parliament and Council do little more than sign off on a deal that has already been negotiated among a small group of actors. In contrast to the trialogues preparing conciliation, there is no set of standard procedures governing the meetings that lead up to early agreement. However, there are emerging patterns of interaction and there are attempts on the part of Parliament to institutionalize specific procedures. Typically, the Council’s Presidency negotiates with the Parliament’s rapporteur for a specific legislative dossier; depending on circumstances, ‘shadow rapporteurs’ and power brokers from the major parties in Parliament (coordinators of the political groups) may also be involved. On occasion, the chairman of the relevant Parliamentary Committee may also play a role; this, however, is by no means guaranteed. On the Council’s side, the Presidency’s power and influence is clearly enhanced. COREPER may be sidelined by the successful attempts of the Presidency to dominate the policy-making process in the thrashing out of early agreements. These offer it a unique possibility to realize its policy agenda within six months. Those who appear to be losing out are the national ministers from non-Presidency parties, and national parliaments. The Parliament clearly derives some very significant advantages from early agreements. On the one hand, it has gained increasing power in its negotiations with Council representatives because its time horizon on average is longer than that of the Council, which is committed to self-set deadlines and has a Presidency that is eager to use the six-month window of opportunity (Farrell and Héritier 2004). On the other hand, if it plays its cards well, it can use early agreements strategically to affect deliberations within the Council itself; negotiations between the Parliament and Presidency take place before the Council has adopted a formal Common Position. However, the early agreement provisions also pose important problems for Parliament, both in terms of internal organization, and Parliament’s relations to Council. They have negative implications for some representatives within the Parliament, such as committee chairmen, while enhancing the power of others (rapporteurs, leaders of the large political groups). Smaller parties, such as the Greens, are put at an especial disadvantage. They have traditionally relied on their ability to propose formal amendments at committee stage as a means of influencing legislation. Now, they are finding themselves increasingly marginalized, as larger parties and the Council reach pre-arranged informal deals, which

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the large parties then push through by voting down amendments at Committee. The Council, in contrast, sees this as a more efficient way of doing business, and at one stage advocated a more direct formal role for large parties in trialogues; this proposal caused furore in Parliament, and had to be withdrawn. Thus, the new trialogues aimed at avoiding conciliation and the early agreement provisions at Amsterdam have even more marked implications for openness and transparency than the trialogue system instituted in the wake of codecision. Negotiations on early agreement dossiers are almost entirely informal – it is often extremely difficult for others within the Parliament, let alone outsiders, or even sometimes the Commission, to have any idea of what exactly is going on in a specific brief. This lack of accountability poses clear risks for Parliament’s democratic legitimacy. If Parliament does not take steps to redress the balance, it will mean that: Open and public debate in committee and plenary with the full participation of all political groups and members would tend to be reduced in importance by informal negotiations taking place elsewhere. The essential transparency of the legislative process would be put at risk, threatening the agora function of this institution.5 Thus, Parliament fears that it may be paying too high a price for influence, by being drawn into the kinds of secretive bargaining that better characterize interstate negotiations than democratic parliamentary decision-making processes. Parliament has sought to respond to these pressures by opening a new round of bargaining with the Council, suggesting that it will not participate in the informal trialogues that are required to reach early agreements unless the Council agrees to assume new responsibilities towards Parliament. Specifically, it has demanded that Ministers and other Council representatives be prepared to come to Parliamentary Committee meetings, to discuss dossiers, and thus transfer some of the negotiation process to a more formal and publicly accessible environment. The Council has indicated its continued unwillingness to do so, and it is by no means clear that Parliament can credibly deliver on its threat of noncooperation – many key power brokers within Parliament actually benefit from current arrangements. Nor is it clear that Parliament will not be prepared to sacrifice openness for increased power over the longer term. Early agreement has also consequences for democracy at the national level. Each Member State now has a specialized committee in its national-level Parliament dealing with European Union legislation (Caporaso 2003), although the effective power of these committees varies substantially from country to country. However, when legislation is brought through under early agreement provisions, it is difficult for these committees to exercise oversight; decisions are typically taken before the Member States have even had the chance to reach a consensus on a Common Position, let alone to defend their negotiating strategies to their respective domestic parliaments. Efficiency is enhanced at the expense of accountability.

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New alliances across Council and Parliament The third important consequence of codecision and the changing relationship between Council and Parliament is still in its birth throes but may perhaps have the most important consequences of all in the long run. This is the creation of new alliances between Member States, as represented in Council, and their national representatives in the European Parliament. Traditional political science is ill-suited to categorizing these relationships, precisely because the European Union is neither a standard democratic nation state, nor an intergovernmental organization, but something in between. There is no ‘government’ as such in the European Union, with a party to support it in Parliament; rather, there are 27 governments, each with specific mandates from their domestic population. As the Parliament’s influence over the legislative process has increased, individual Member States have begun to realize that they may sometimes achieve outcomes, which would otherwise have been difficult or impossible, through influencing MEPs. There are two situations in which Member States will be able to exercise unusual influence. First, and most obviously, Member States may seek to sway MEPs from their respective national delegations. Where they are successful in so doing, larger Member States will, ceteris paribus, be better able to influence legislative outcomes than smaller ones. Since larger Member States have greater numbers of MEPs, they are likely to be more effective in influencing Parliament’s behaviour. This emerging trend may have important repercussions for decision-making. It allows larger Member States a ‘second bite at the cherry’. Even if they find themselves marginalized in discussions over a specific piece of legislation within the Council, larger Member States may be able to mobilize support among MEPs so that the piece of legislation in question is amended to their satisfaction, or rejected. This possibility came to public attention in the controversy over the Takeovers Directive, where Germany found itself outvoted in the Council on a matter that it perceived as being of vital national interest. Continued disagreements between Parliament and Council culminated in a Conciliation Committee meeting, where Germany found itself with little choice but to accept the text agreed between Council and Parliament (Cioffi 2001). However, most unusually, the Conciliation Committee’s text was rejected by the Parliament in plenary session. Klaus-Heiner Lehne, a German Christian Democrat, who had been rapporteur on the Directive, played a key role in mobilizing opposition against the legislation, leading to accusations that Germany had sought to use Parliament to overturn a decision that it had been forced to accept in the Council. These accusations were based on rumours; there is no convincing evidence that Lehne coordinated his behaviour with the German Government although he was clearly responsive to many of the same concerns that had motivated German opposition within the Council (Farrell and Héritier 2004). However, interviews with MEPs and members of COREPER do suggest that coordination between governments and national delegations in Parliament is becoming increasingly prevalent. In the words of one MEP, ‘in a very important issue (MEPs)

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would mostly be advised by the governments what way they wish it to go ... and they very often comply’ (interview with authors). Second, an effect of the early agreement practice under codecision, more specifically, is that countries which hold the Presidency are in a privileged position in certain early agreement negotiations. Where the Member State have not yet reached a Common Position, the country holding the Presidency may be in a position of unique influence within the Council, presenting the Member States’ negotiating positions to the Parliament, and the Parliament’s position to the other Member States. It may potentially use this leverage to affect other actors’ perceptions of what is possible and what is not, and thus bring through outcomes which reflect its own preferences rather than the preferences of the Council as a whole. It is important to note that current constraints greatly limit the Presidency’s power to do this. Other Member States than the Presidency are likely to have their own informal lines of communication with Parliament. Furthermore, the Council Secretariat’s dorsale dealing with codecision issues has recently been strengthened, precisely to ensure uninterrupted communication flows among the Member States. Nonetheless, as one COREPER member describes it, ‘there is always the risk that the Presidency runs its own race and then just presents the deed when it is finished’ (Farrell and Héritier 2004).

Policy consequences of the ‘invisible transformation’ The ‘secret history’ of codecision has important lessons for policy, and for the discussions taking place at the Convention (and indeed, for later discussions among the Member States). First, it shows how formal reforms may have unexpected consequences, when one takes proper account of the informal dimension. When the codecision procedure was introduced in the Treaty of Maastricht, no one could have anticipated that it would give rise to the plethora of new relationships that it has. Furthermore, these informal relationships have in their own turn been the spur for new formal Treaty changes (Farrell and Héritier 2003). The creation of trialogues, and their success in expediting the legislative process was the main reason why representatives in the Council Secretariat pressed for the introduction of the early agreement provisions at Amsterdam. Thus, it can be seen that not only may formal changes to the Treaty have unexpected consequences in the short term – they may lead to new, and previously unanticipated, paths of long-term institutional development. Second, these informal relationships have important implications for democratic legitimacy that are not immediately obvious from an examination of the formalities of codecision. As discussed above, codecision was introduced in order to bolster the democratic legitimacy of the European Union. It strengthened the European Parliament, which is the appropriate Europe-level repository of democracy, according to one concept of legitimacy. And indeed, there is now a more publicly accessible debate of European legislation than there used to be. However, the proliferation of informal meetings and early agreements mean that this debate is not as open or transparent as it might be. Important decisions are

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made in meetings outside the formal legislative process, with little accountability. New relationships are being created between power brokers in the European Parliament and representatives within the Council, which may lead, in extreme cases, to the short-circuiting of democratic processes of deliberation in committee and extensive plenary discussions. Certainly, the less powerful parties within the Parliament are finding their influence to be ever more limited. The informal relationships that have sprung up around codecision have even more pronounced implications for the other sources of democratic legitimacy in the European Union – Member States who represent their national interests in the Council, and national-level Parliaments. As we have discussed, informal relations between Council and Parliament provide the larger Member States with a greater degree of influence than they otherwise would have over policy – they may be able to overturn agreements made in Council at later stages in the codecision process. This may over time come to erode the famed emphasis on consensual decision-making within the Council, which has been recognized as another source of legitimation under the principle of negotiating democracy where each actor has a veto and hence would not be forced to support a Pareto-inferior policy measure. There is some evidence to suggest that it is already giving rise to heightened suspicions among Member States. The extreme case – of a directoire of larger Member States dictating EU policy – is unlikely, but intermediate cases, in which smaller Member States have diminished ability to represent their national interests are quite possible. Finally, informal relationships, especially those occurring in the context of early agreements, have demonstrable negative consequences for national parliamentary control. Early agreements under codecision involve the Council and Parliament making a deal before either body has adopted a formal position on the matter in question. Our interviews with officials in COREPER and the Council Secretariat suggest that this presents serious problems for those countries which have strong European Affairs committees in their parliaments that are supposed to vet and approve their governments’ EU policies. Early agreement negotiations are often informal, and seek to conclude bargains swiftly, so that it is difficult for national parliamentary committees to gather information, and to reach a consensus on appropriate action speedily enough to have any impact on the final outcome of an early agreement dossier.

Policy recommendations Our policy recommendations are relatively modest in scope. This reflects the reality that formal institutional change will very nearly always have unexpected knock-on consequences. Actors will always seek to bargain over the ambiguities in new formal institutions, to their own advantage, and it will never be possible to fully eliminate these ambiguities. Thus, it would be unrealistic to recommend that these informal arrangements be legislated out of existence; further, this would fail to recognize that they do have some important advantages in smoothing the course of lawmaking within the EU. However, we do suggest that increased monitoring and

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control may mitigate the problems that we identify, even if it does not eliminate them. We group our recommendations according to the three types of actors which are the source of democratic legitimacy. We have extra reason for caution in that we seek to improve democratic accountability according to each of these three types. Very likely, major reforms seeking to increase accountability according to any one of these criteria is likely to have negative implications for accountability under the other two. By keeping the scope of our proposals modest, we hope to mitigate this risk.

The European Parliament The European Parliament finds itself in an awkward position. On the one hand, its power to shape legislation has increased very substantially due to codecision; all the more so given its success in bargaining under the informal institutions surrounding the codecision process (Héritier 2007). On the other, it is finding that such power comes at a price – it is increasingly finding itself embroiled in secretive and unaccountable forms of decision-making. The Parliament has, in a somewhat self-serving fashion, laid the blame for this on the Council. Certainly, the Council has been eager to draw representatives in Parliament into informal relationships; but delegates in Parliament, for their part, have been equally eager to accept the Parliament’s overtures. Further, the Council’s strategies reflect the realities of Parliament as they see it; in the absence of strong parties, the Council must necessarily turn to informal power brokers in order to ensure that legislation does not fall at the committee and plenary stages. Thus, the undemocratic aspects of codecision reflect both the imperatives of the Council, and internal problems within Parliament of looseness, unaccountability, and weak party structures. This said, Parliament’s suggestions for reform – such as having representatives in Council brief committees on specific dossiers – would, in some respects, improve democratic accountability. However, we note that this need by no means imply a typical parliament–government relationship, as is found in many national level parliamentary democracies. This would be misconceived because the Council is a legislative body as well as an executive body. There is no reason why one legislative body (the Council) should be forced to appear in another legislative body (the Parliament) to be held accountable for their positions on specific dossiers. However, members of the Council could present themselves in front of EP committees to give information, if not to justify their position. This might increase transparency and merely reflect the reality that important negotiations take place out of the public eye, and that accountability requires that there be some public scrutiny of them. We thus propose that Council representatives should indeed address Parliamentary committees – but, in order to assuage some of Council’s fears, that this should not be done as if the Council was directly accountable to the Parliament. Rather, this should involve information on the position reached, indications as to the joint rationales behind Council’s willingness or unwillingness to accept certain amendments (without revealing which governments oppose or support these amendments).

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To preserve parity, this should be combined with the rapporteur’s responsibilities to keep the committee updated regarding the process of negotiations.

The Council We identify two threats to consensual patterns of decision-making within the Council, both of which stem from the increase in informal relations between Council and Parliament, and the possibilities that these offer for individual Member States to act strategically. We note that the Council has already significantly strengthened its codecision dorsale, in part to make such opportunism more difficult for individual Member States. However, we also note a significant new threat to Council’s underlying rationale, stemming from the greater power of Member States to influence Parliament (through contacts with national MEPs). Both of these would mean that larger Member States would have greater opportunity to play politics in a non-transparent fashion in the codecision process. We suggest that Council members should pay direct attention to the long-term consequences of seeking to manipulate Parliament through contact with their national MEPs, and modify their behaviour accordingly. Indeed, there is a clear danger in the longer term not only of these states’ actions weakening the democratic legitimacy of Parliament, by ‘re-nationalizing’ European political questions, but also, even more pertinently, of their undermining confidence within the Council itself by offending the principle of ‘mutual diffuse reciprocity over time’ (also called the ‘solidarity’ principle of the Council, meaning that no Member State or group of Member States ever finds itself as part of a permanent structural minority). Normative consensus of this sort is inherently fragile, and requires trust between Member States. It has worked quite well in the past because each Member State set great store by this principle, refraining from putting other Member States into structural minority situations for fear of being put into a minority situation itself. The Commission has functioned as an honest broker in this context, seeking to maintain the balance of interests among national governments. The trust which has been established in this principle over time may be undermined if some Member States come to suspect that they are systematically losing out on important questions, even though they are capable of winning ‘within’ the Council, because other Member States are using their contacts with parliamentarians to overturn common positions at the codecision stage. National parliaments As we have previously discussed, national parliaments find their powers of scrutiny to be very nearly useless when decisions are taken in informal negotiations, before national parliamentary committees have time to examine the relevant policy questions, and issue recommendations. Therefore the exchange of information between the European Parliament and members of the national parliaments should be increased at all stages of the codecision procedure. Very likely

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the institutional context for such an exchange will be COSAC (Committee for Selected Community Affairs). Further, the early monitoring mechanism which has been included in the Lisbon Treaty, allowing national parliaments (if a third of national parliaments decide to do so) to stop a Commission legislative draft if it is not in compliance with subsidiarity principles, offers national parliaments a possibility to intervene at an early point in time. Although – according to the proposal – the Commission only has to ‘reconsider’ the draft, the ability of national parliaments to challenge the Commission proposal before the European Court of Justice can give this right of monitoring a real ‘bite’. This would carry all the more weight, if, as has been suggested by the British representatives, the Commission had to drop the proposal. Our general argument regarding the European Parliament – that the informal bargaining over the interpretation of ambiguous formal rules, if linked to a veto position, can provide rapid gains in power for an institution which previously had been provided with only a few formal rights – could be applied to national parliaments as well. If, in the future, national parliaments – under the early monitoring mechanism, and with the possible support of the European Court of Justice – could stop legislative drafts, they could use this veto power to negotiate a stronger formal position for themselves in the future institutional architecture of Europe, and thus transform their pawn into a queen. Or, as one member of the Convention said, it would be ‘tantamount to introducing a third chamber through the back door’ (European Voice 20–26 March 2003, p. 6). In view of these possible far-reaching implications we recommend an early monitoring mechanism of national parliaments that is only of an advisory nature.

Notes 1 See the comments of Mr Navarro, Spanish Deputy Permanent Representative in COREPER I, text available at www.europarl.eu.int/code/events/20021104/minutes_ en.pdf. 2 See the comments of Tony Bunyan, of the watchdog organization Statewatch, at www.statewatch.org/news/2001/feb/07evoice.htm. 3 See Parliament’s discussion document on the subject, available at www.statewatch. org/news/2001/mar/codecision.pdf. 4 See the comments of M. Jacqué, Director of the Codecision Unit of the Secretariat of the Council, text available at http://register.consilium.eu.int/pdf/en/02/cv00/00341en2.pdf. 5 See the Vice-President’s discussion document on ‘Improving the Functioning of the Codecision Procedure’, text available at http://www.statewatch.org/news/2001/mar/ codecision.pdf.

References Bergström, C.F., Farrell, H. and Héritier, A. (2003) ‘Legislate or Delegate? West European Politics, 38(2): 338–366. Caporaso, J. A. (ed.) (2003) ‘Integrating Institutions: Theory, Method, and the Study of the European Union’, Comparative Political Studies, 36(1).

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Cioffi, J. W. (2001) The Collapse of the European Union Directive on Corporate Takeovers: The EU, National Politics, and the Limits of Integration, Berkeley, CA: University of California Berkeley; Berkeley Roundtable on the International Economy, Discussion Paper 2001. Corbett, R. (1998) European Parliament’s Role in Closer EU Integration, Basingstoke: Macmillan. European Voice (2003) 20–26 March. Farrell, H. and Héritier, A. (2004) ‘Interorganizational Cooperation and Intraorganizational Power; Early Agreements under Codecision and their Impact on the Parliament and the Council,’ Comparative Political Studies, 37(10): 1184–1212. Héritier, A. (2007) Explaining Institutional Change in Europe, Oxford: Oxford University Press. Hix, S. (2002) ‘Constitutional Agenda-Setting through Discretion in Rule Interpretation: Why the European Parliament Won at Amsterdam’, British Journal of Political Science 32(2): 259–280. Hix, S. and Lord, C. (1997) Political Parties in the European Union, Basingstoke: Macmillan. Shackleton, M. (2000) ‘The Politics of Codecision’, Journal of Common Market Studies 38(2): 325–342.

8

The ‘democratic principle’ and the European Union The challenge of a post-national democracy Yves Mény

The debate in Europe and about Europe has largely changed in nature since the 1970s: during the decade preceding the creation of the Common Market and during the 15 years following the signing of the Treaty of Rome, the attention of pro- or anti-European militants as well as that of the media and observers was polarized around the how, or perhaps the why, of a disputed integration: What was Europe for? Which countries should or could join in this common venture? Little thought or discussion was dedicated – even by the founders – to the nature of this new creature and in particular to its compatibility with national political systems. The preoccupations of the time were to be found elsewhere and were fixated on the hugely symbolic and particularly delicate question of sovereignty. It seemed that the problem was one exclusively of the transfer of power from one level (that of the nation state) to another (supranational). The nature and the method of exercising that power did not appear to be on the agenda. The institutional semantics of the 1950s were significant in expressing the choice to remain, at least partially, outside the classic democratic referential framework. The European Coal and Steel Community (ECSC) had its ‘High Authority’ and, later, the EEC was represented by a Commission: these new institutions did their business by way of regulations or directives and not by way of legislative decisions. Nevertheless, it would be unfair to the founders of the future European Union to suspect them of having been indifferent to the democratic principle. Not only was the question of democracy central to the internal and international debate, but major initiatives like the creation of the Council of Europe were brought about in parallel with attempts at the economic organization of the continent. Furthermore, the seeds of a democratic organization, however fragile and modest, were sown in the fields where the new Europe was to grow: on the one hand, a fledgling representative assembly, even if this only enjoyed indirect and therefore weak legitimation; on the other, a tribunal with limited but supranational jurisdiction, the European Court of Justice. Doubtless it would have been impossible, nay counterproductive, to have pushed further at the time. Only a few visionary ‘Europeanists’ were willing to dream of a federal system, the United States of Europe, whose powers, structure and modus operandi would be modelled on American democracy. But the men in power, including the most European of them, such as De Gasperi, Schuman or Adenauer, if we limit ourselves to citing

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the fundamental European trinity, could only take modest, one might say masked, steps. European integration, democracy in this new federal context, could only be attained by way of a functionalist disguise à la Jean Monnet (Anderson 2008). But let us hold fast to the fact that even in these first tentative moves the European Economic Community contained the building blocks of the two fundamental (and complementary) pillars of democracy: popular legitimacy and the rule of law, i.e. an embryonic parliament and a supranational court. It is interesting to note here that, even if all democratic political systems rest on these two elements, the relative weight of the two components and their historic development vary considerably. There are many examples of these imbalances and distortions but a few illustrations will confirm the observation: France, for example, brutally and swiftly replaced the monarchy with popular legitimation but with blackouts (1800–1870), jolts (1848) and delays (the vote for women) while the pillar of constitutionalism developed more slowly, thanks to the State Council, under the shadow of parliamentary supremacy, with a very tardy recognition of constitutionality checks (late 1970s). The same observation may be made for Germany, where the Rechtsstaat long preceded the emergence of a democracy of the people, and the United States, where the inverse phenomenon may be seen, i.e. the blossoming of a popularly driven democracy whereas the respect for fundamental rights developed more slowly and above all in a ‘spotty’ way until the late 1950s when civil rights legislation began to put an end to the anomalous situation in the South. Criticism of the democratic weaknesses of the European Union, then, is legitimate but at the same time is a demonstration of historical amnesia. There are only very rare instances of democracies which have been born fully formed. Democracies are generally the imperfect and perfectible result of a specific course even when they have followed a pattern, the Western model, whose rhythm, tempo and inflexions are determined by the political, economic and social environment of each community. The European process is no exception to this rule. It is taking place in a slow, incremental manner, without a preordained roadmap but thanks to an often confused mixture of big decisions and little accidents, of political will and unintended effects, and of explicit decisions and implicit or inevitable consequences. As pointed out above, a turning point was reached in the 1970s, and change has continued to burgeon over these last three decades, not only, of course, as regards Europe. Pretty much everywhere in the world there has been a groundswell of democratic demands that are always based on the two essential elements of legitimacy and popular participation on the one hand and of the rule of law and fundamental rights on the other. The European Community and subsequently the European Union could not escape this groundswell, especially as the powers of ‘Brussels’ continued to grow. And it is not surprising either that the emphasis was placed – often in a polemical way – on the ‘democratic deficit’, by which was meant insufficient popular legitimation rather than the absence of constitutional safeguards or citizens’ rights. On this, as it happens, the Community not only did not seem to be too ‘under-developed’ compared with the Member States, but on certain points had something to teach States that were disinclined to submit their

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actions to the courts. Besides, since the early 1960s, the Luxembourg Court had been learning the lessons of a potential federal system under construction. With its case law establishing both the supremacy of Community law and the direct effect of directives, the court was developing the logic of a European constitutional state. The ‘popular’ deficit only seemed somewhat more flagrant. The ‘democratic deficit’ became the fashionable leitmotiv following an article by David Marquand (a British political commentator) criticizing the weak legitimacy of a European Parliament that, at the start of the 1970s, was still indirectly elected. The success of this European-flavoured accusation has its roots in a number of different areas. Apart from the witty semantics (the juxtaposition of two strongly opposing terms), the analysis brought back familiar echoes. In the first place, it was based on an easy and commonly used method of analysis and evaluation consisting of judging the new in comparison with the known, the already acquired. In other words, the democratic character of the Community was defined by measuring it against the traditions and rules in force in European political societies. If, for example, the democratic character of a parliament is established by the mere fact of its having been directly elected by universal suffrage, it easily follows that a parliament which does not meet this criterion may be undemocratic or insufficiently democratic. In the second place, the democratic deficit argument obtains easy leverage by making use of the widespread and deeply rooted conviction that ‘democracy is the people’. Etymologically the definition is correct, but the reality of democratic systems teaches us that democracy such as we have known it is a ‘mixture’ made up of popular input and constitutionalism (limitation and separation of powers, the rule of law, etc). In making the equation: ‘weakness of parliament = democratic deficit’, it is easy to reactivate beliefs that are deeply rooted in the collective subconscious and in the historical process of democratic development. In an exaggerated and simplified manner bordering on caricature, the present populist argument merely harks back to this idealized or primitive definition of democracy. But the echo evoked by this criticism – partial but certainly not without foundation – would not have been so loud if this formula had not lent itself to being transformed into a slogan and rallying cry for an eclectic and oddly assorted coalition. Its inventor has been forgotten, but the bright idea has flourished, reduced as it has been to two magic words: ‘democratic deficit’. There is a bit of everything in this ‘auberge espagnole’: learned academics who subscribe to the analysis but also judges, even judges of supreme courts like the German Constitutional Court, who vainly went in search of a European demos; British tabloids of the ‘gutter press’ but also reputedly serious newspapers; convinced Europeans who want more Europe and a more democratic Europe; Eurosceptics who are only too happy with the thesis and are willing – like certain Gaullists, for example – to put up with an undernourished democracy at home while posing as vehement critics of the European deficit; and, last but not least, numerous members of the European Parliament justly desirous of strengthening the powers of the Parliament and unhesitating in mounting this formidable battle charger.

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To tell the truth, not everybody was bothered by this democratic deficit, in particular some of those who deny that Europe could be – or become – a polity. This ‘realistic’ approach (which could sometimes be seen as rather cynical) takes the view that democracies are not what we pretend they are (or would like them to be) and that trying to democratize the Union is bound to fail because ‘political learning, mobilization, deliberation and participation are extremely expensive for rational citizens’ (Moravcsik 2007: 221). So, according to Moravcsik’s radical point of view, there is no need to bother. The Union is not a democracy and we should be happy with what it actually is, i.e. an intergovernmental bargaining game. Majone reaches more or less the same conclusions but from a different angle. He argues that given the competences allocated to the Union (for the most, regulatory powers) the democratic requirements are not only counterproductive but unnecessary from a theoretical point of view. ‘Reliance upon such qualities as expertise, credibility, fairness or independence has always been considered more important than reliance upon direct political accountability’ (Majone 2003: 311). However that may be and whatever may have been the reasons and motivation triggering the analyses, debates and polemics, the essential thing was to place the question of the democratic principle on the political agenda. It has been there for 30 years and this persistent question that torments the elites as well as public opinion is basically a healthy sign. The progress of the Convention and its results were the most recent, though only provisional, demonstration. In all probability the debate and confrontation on this theme have many good years to run. The multiple facets of the ‘democratic principle’ are not only to be found in its definition and substance, which have been adapted and developed by a fertile ambiguity. The same diversity may be observed in the use that has been made of it and the impact it has had at different levels, whether national, regional or European. In many ways, we are faced with Tocqueville’s dilemma when trying to understand and define a new political system coming to life in America: ‘One has found a form of government that is neither precisely national nor federal; but one stops there and the New World that should express the new thing does not exist’(Tocqueville 2000: 149). Within the limited context of this paper, I shall content myself with outlining the areas in which the development of the European democratic principle has had particularly fruitful ramifications. I shall deal with three of them covering the de-nationalization of the principle: the spill-over effects on the Member States, the impact on democratic consolidation in candidate countries, and lastly the impact of that democratic conditionality on relations with third countries. The first element, concerning the de-nationalization of the democratic principle, is without doubt the one that has the least immediate and visible impact but that is in fact the most revolutionary. In order to understand the earthquake that the very concept of the democratic principle causes, it is useful to make a brief historical detour and to go back to the Age of Enlightenment. Europe in the eighteenth century saw the flourishing of all sorts of utopias and the development of great intellectual ferment, including intense reflection on the origin and organization of political power. And in spite of divergences in both analytical and normative viewpoints, an

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almost natural consensus emerged: democracy is without doubt the best possible system, but unfortunately its own requirements and the demanding conditions for its functioning confine it to a very restricted type of society. It is designed for a ‘godlike people’ or in the best case it is limited to minuscule societies, as the rare experiences of the past have seemed to show: democracy is Athenian in origin, in known practice but also in its very limitations. Democracy in a large country is not imagined and indeed is unimaginable because it is identified in its ways and means with a specific historical experience. The intellectual revolution was to arrive along with the American and French political revolutions even though in both of these the talk was of a republic rather than of democracy. And this revolution was to become possible thanks to contamination with another revolution, English this time in its origin and above all in its development, the principle of representation. A new meaning is given to the democratic principle: it is no longer the whole demos which assembles in the agora but representatives who, chosen by the people, decide in the name of the people and are responsible to the people. The word itself, democracy, became synonymous with a different arrangement and this intellectual mutation made it possible to think the unthinkable: democracy for a large country. In a corresponding way, Europe is obliging us to undergo a new revolution of the same kind. Just as in the eighteenth century, there persists a ‘positivist’ current of thought: the only recognized democratic model is the one that has been observed in the past. In other words, for those who advocate this theory, democracy is not possible or conceivable except at the national level, just as formerly it had to be limited to micro-states. The argument is both simple and radical: democracy is founded on a pre-existing demos which serves as a substructure and legitimate raison d’être. Today, according to the upholders of this thesis, there is no European demos but, at best, a series of demoi that make up the continent's mosaic of states and democracies. Needless to say, this apparently irresistible argument is particularly fallacious both at a normative and empirical level. The definition of demos is in fact rather arbitrary. Examples are legion of democracies which have excluded either in law and/or in practice important portions of their populations. Without harking back to the elitist definition of demos in Athens, we might remind ourselves of the curtailed voting rights practised everywhere in the nineteenth century, even in the supposed democracies: the exclusion of women, the exclusion of young adults and even today the exclusion of foreigners who are foreigners because access to naturalization is limited and difficult and the right to citizenship in the country where they live is refused to them. Now, all these legally justified exclusions have resulted in different definitions of the demos, according to the historical context. On an empirical level, the same observations can be made. By God’s grace, not all democracies have or claim to have been born out of the brain of Jupiter as ‘one and indivisible’. The French demos is an artificial construction built on the ruins of minorities and regional languages. The republican myth has its grandeur but only if one does not delude oneself about the historic conditions of its formation. Looked at another way, one may observe that democratic regimes work in spite of

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ethnic, racial and linguistic differences. Switzerland is an example of this in the heart of Europe as are, each in their own way, countries as different as the United States, Canada or India. The notion of a people is an artifact and as such must not become an obstacle to the development of the democratic principle beyond its ‘natural’ development environment, the nation state. Contrary to what may be claimed by French Jacobins of all stripes, whether left or right wing, or by British conservatives, democracy is possible at the supranational level so long as we are willing, as at the end of the eighteenth century, to rethink the meaning and substance of the object we call ‘democracy’. But in certain respects, the criticisms of the Eurosceptics and Jacobin democrats are useful. By maintaining that democracy is impossible at a supranational level, when every day the strictly defined national framework demonstrates its inability to solve the problems which are theoretically within its range of responsibilities, the ‘national-democrats’ condemn themselves to impotence and sterility; indeed, most contemporary problems would not be addressed by any democratic intervention for lack of the appropriate tools at the appropriate level. Supranational democracy is therefore a must if we do not want democracy at the national level to become nothing more than an empty shell. The history of European integration can be reread from this perspective: it has been a long trek towards the establishment of a continent-wide democracy that is no longer identified with a single ‘people’ or a single state and that is progressively becoming a reality in incremental stages by way of the two pillars that sustain it, popular legitimacy and the development of constitutionalism. It is easy to see that it has been the second of these, the constitutional pillar, which has developed better and more rapidly. But the former – partly thanks to the mutually opposing but converging criticisms of the Europhiles and Eurosceptics – has also gained momentum with the election of the European Parliament by universal suffrage, the extension of its powers, the writing of a quasi-constitution, and the emergence of transnational political groupings or forces. The democratic principle developing at a European level has effects which are not confined simply to the supranational level, though those are, as was pointed out above, of primary importance. The European Community and subsequently the European Union are not just instruments for transferring responsibilities whose impact then falls back ‘top-down’ on the Member States. The construction of Europe is made up of the constant daily comparing of different points of view, of heterogeneous institutions, of disparate procedures, of divergent economic and social models, and of a wide assortment of practices and ranges of action. Brussels is becoming a vast ‘clearing house’ or exchange for ideas, comparisons or, to use the fashionable jargon, ‘benchmarking’. So we are witnessing at all levels (and not just in the economic sphere) a systematic reinterpretation of national experience through the prism of an ongoing Europeanization. This process of analysis, comparison and imitation is not specific to the Union and does not need the institutional apparatus of Brussels to proceed. Human history is made up of these reciprocal borrowings, though they experienced an unprecedented surge with colonialism and, above all, the first globalization at the end of the nineteenth century. But the European Union, by its

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very construction, constitutes a fantastic accelerator and stimulator of these processes of learning by experience or these phenomena of ideological or institutional spill-over. Numerous studies have probed these transformations but mostly from an administrative or economic rather than political standpoint. Yet there are many, many examples of the influence of Europe on our national democratic concepts and customs. I cannot here go into all the facets of such impacts in all their diversity and intensity. But one simple set of examples will serve to give an idea of the multiplicity of these influences in all directions: the possibility of electing EU citizens at European and local elections; the introduction of electoral rules (proportional representation) in political systems opposed to such rules on account of their political impact (the UK, France); the acceptance of higher-level rules to which all national authorities, including parliaments and the constitutional courts are subject; the adapting of the rules and structures of national parliaments; the introduction of new general principles often unknown in one system or another and now part and parcel of the debate and laws in the Member States, such as, for example, to cite just a few, the principles of subsidiary, proportionality, federal loyalty, transparency. Often these legal and political revolutions have not been fully perceived because they have come about progressively and slowly. The result is no less tangible for all that. The consolidation of democracy in a large part of Europe also owes a great deal to the growth of the democratic element within the Community and, subsequently, the Union. At the time of the creation of the ECSC and then the EEC, a political goal nested within the economic strategies of the European market: to guarantee peace or, at least, to avoid war. Democracy as a goal was absent or at least only appeared in a very diffuse way through the development of the four (economic) freedoms. On the other hand, the move towards democracy was already clearly apparent with the integration of Greece, at a time when all the arguments seemed to speak for its exclusion except one, to protect the cradle of democracy against a return to dictatorship. This turn was confirmed with the accession of Spain and Portugal, whose democratic systems were still fragile. Since then, Europe has become not just a common market but a protective cocoon, an ‘incubator’ of democracy, a club whose membership is reserved for those who subscribe to common democratic principles. Proof positive was provided by the Austrian affair and the entry of Haider’s party into the government of that country (Falkner 2001; Merlinger et al. 2001). The sanctions adopted by the 14 were certainly inadequate, poorly conceived and badly executed. But from this adventurous management of the democratic principle a few positive elements emerge: a sharper awareness of and attention to the dangers that extremist parties may pose to democracy; the reinforcement on this occasion of a public European space, still embryonic but necessary for democratic development; and the writing into the Constitutional Treaty of rules and procedures for dealing more effectively with such perils in the future if, unfortunately, a Member State should break away from democratic principles (Article 58 of the Draft Constitution). Finally, an even more decisive step in laying claim to democratic principles was taken when the EU15 affirmed their democratic beliefs as a condition of access for

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candidate countries from Eastern Europe. Even though elements of democratic conditionality were already present in a number of association agreements, it was in the Copenhagen Declaration of June 1993 that the European Union formalized, in the most precise manner, the economic and political ways and means that candidate countries had to accept in order to apply for membership. Let us leave aside the economic criteria, which, compared with the subject under discussion, are a side issue. For the first time, on the other hand, the political criteria explicitly spelt out the meaning and concrete substance of the democratic principle. According to the EU15 heads of state and government, participation as a member of the Union required that institutional stability should guarantee democracy, the rule of law and human rights, and that respect for and the promotion of minorities should have been achieved. In combination with the economic criteria and the desire not to be left by the wayside, this requirement has played a substantial role in the period of transition toward democracy on the part of all the candidate countries. Certainly, the working of these new democracies is still often imperfect, but is that not the case for all democratic systems, including those that proclaim long and loud their own credentials of good conduct? The decisive progress made in the last decade can be observed empirically but the positive impact of the EU’s policies goes well beyond that. The protective barriers put up by the Union have also helped stop a resurgence – despite the terrible lessons of the past – of policies harmful to minorities: they may be intended as antidotes to problems and curb that nationalist fervour that is always lying in wait. In Hungary, Romania, Slovakia, and the Baltic countries, the Union has played a role in peace-keeping, in transition, in democratization, ensuring that dramas like those in ex-Yugoslavia do not spread to the whole of eastern and central Europe. The same positive impact, even if it is slower and more difficult, can be observed in relation to Turkey, to the point that certain observers demand that the Union adopt more incisive policies, more formally and conditionally linking progress on the democracy front with entry to the Union. A Turkish observer noted: On 3 August 2002, the Turkish Parliament approved a 14-article package of legislation drafted to harmonize the country’s law with those of the European Union, which included abolishing the death penalty in peacetime, granting the right to conduct broadcasting and education in languages other than Turkish, increasing the rights of religious minorities and easing press restrictions ….. I contend that the achievements so far indicate that political conditionality is working and has contributed substantially to the liberalization of the Turkish political system. (Kardas 2003) Nevertheless, the same observer emphasizes that the ball is now in the Union’s court: for conditionality to work correctly, he underlines, it is necessary that, as with Eastern Europe, the other side of the bargain should be precisely defined. In other words, accession to the Union should become a right if the conditions are fulfilled and not remain a distant and uncertain hypothesis.

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The effectiveness of political conditionality in connection with access to the ‘Club’ has encouraged the EU to require the same rules of conduct from third countries. In a resolution of 28 November 1991 following a report of 25 March of that same year, the Council judged it important that ‘the Community and its Member States adopt a common approach with the aim of promoting human rights and democracy in developing countries’. It emphasized that different initiatives could be undertaken providing active support: for countries that are making an effort to establish democracy and improve the situation regarding human rights; for the holding of elections, the creation of new democratic institutions and the strengthening of the rule of law; for the strengthening of the judicial system, the exercise of justice, the prevention of crime and the treatment of criminals; for the adoption of a decentralized approach to cooperation; for actions intended to ensure equal opportunity for all. At the request of the Commission or one of the Member States, the possibility of increasing aid to developing countries where positive and substantial changes have taken place in terms of human rights and democracy will be examined. The good intentions are there, but it is not unduly pessimistic to say that commercial concerns, access to raw materials, and diplomatic, military and geostrategic considerations have attenuated the potential impact of this ‘resolution’. Although the EU has been a partner of prime importance or the principal provider of funds, this policy has not been as effective as was hoped, either because of the divisions amongst Member States regarding a certain country which has not respected democracy or fundamental rights, or because of the absence of a strong conditionality, analogous to that pertaining to would-be candidates for membership of the Union. The Union has been unable or unwilling in its relations with developing countries to identify a credible element of conditionality, probably because it is aware that it would never have the political strength and capability to uphold it. This setback with regard to the more distant circle of our economic, commercial and political partners must not lead us however to make an overly pessimistic assessment. Indeed, on balance, results have been decidedly positive: over the years, the Community and subsequently the Union have adopted the goal of the Member States as their own, i.e. that of democratic government, even though that was not their primary vocation. The democratic principle was subsequently applied at the supranational level and this in itself heralded the development of a democracy that was no longer identified exclusively with the state or the nation. From there, the democratic debate has rebounded in an enriched form upon the Member States and then upon the candidate countries. Third countries, though less effectively, are also involved in this strategy, which, in spite of its slowness and certain setbacks, has shown some progress. Lastly, for all the countries that are trying – with enormous difficulty – to put regional organizations in place, Europe remains a model and a challenge in that it is a supranational edifice whose institutions – though incomplete – have achieved the highest degree of democratization.

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That being said, we cannot content ourselves with the present unsatisfactory situation. It is not possible to continue to denounce the ‘democratic deficit’ and at the same time refuse any change which could contribute to improving the democratic quality of the enterprise. If democracy has to be introduced at the supranational level – and it has to be done unless we accept that democracy is concerned only with the leftovers of a global system of governance – we have to change or adapt expectations, rules and institutions. The worst would be to replicate, through mimicry, the national rules and practices at the national level. The temptation is powerful, as it is much easier to address the unknown with the well-known rules of the game. But this is a recipe for disillusion, as the experience of the European Parliament shows. It is not enough. Adding a second chamber, as suggested by some governments and groups, would be a remedy worse than the sickness. Such a solution is appealing as it reminds everybody of familiar schemes. But far from solving the democratic deficit it would probably contribute to exacerbating the problem by adding to the already overloaded system of checks and balances, by making an already too cumbersome decision-making system even more complex and by making the application of accountability principles more difficult. However, even if the so-called democratic deficit is not what it is said to be in the public debate, nobody can deny that there is a real problem in that many citizens feel frustrated by the way the European institutions work. And this challenge must be addressed. As a matter of conclusion, I will content myself with underlining the following points when considering the question: ‘What should we do?’. If we wish to make the European Union more democratic, we have to invent new paradigms, rules and institutions rather than try to duplicate national recipes. It is a major intellectual shift, comparable to the one that took place at the time of the American and French Revolutions. Up to these major political changes, there was a general consensus about, on the one hand, the eminent quality of democracy (the best possible regime) and, on the other hand, about its intrinsic limitation (democracy, it was argued, unfortunately can work only in tiny states and cities). The ‘miracle’ resulted from the combination of the representative principle with the democratic principle into something that was still called ‘democracy’ but did not have much to do with what the Enlightenment had in mind. The challenge we have to face today is similar in nature. Our task is to conceive something called democracy at a higher, supranational level. But it would be wrong to think that a simple transposition of our national schemes could work. We have to invent not only adequate rules but, first of all, a new concept of ‘post-national democracy’. As nobody has yet been able to propose a credible and acceptable solution, progress can only result – at least for the time being – from adjustments, tentative exploration, and trial and error. For my part, I would suggest going along the lines through which democracy has progressively transformed itself over time, i.e. shifting from a pure and theoretical popular regime to a mixed and impure system, not only taking the power of the demos on board but also the liberal components (checks and balances, separation of powers), the rule of law, the social contract, etc. As underlined previously, I would argue that the ‘liberal’ component of the European Union is overdeveloped

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while the popular pillar is rather meagre. The situation might be redressed through various adjustments rather than by one or two big – but disappointing – changes. For instance, by making all the elements of the ‘triangle institutionnel’ (Commission, Council, Parliament) more accountable directly or indirectly to the people, by strengthening the transmission belts (such as transnational parties and organizations), by reinforcing the role of the national parliaments vis-à-vis Union policies, by defining the respective powers more effectively, by introducing – why not? – some forms of direct democracy such as European referendums, etc. There is a real need to redress the present imbalance and even to rethink the merits of certain innovations accepted too easily without an ‘esprit critique’. For instance, a European charter of fundamental rights is certainly an excellent thing in itself. But its concrete impact is as simple as it is brutal: the constitutional pillar is more powerful than ever while nothing has been done to strengthen the popular one. Finally, by focusing on the democratic deficit we might miss the target, at least partially. The problem might be one of legitimacy rather than democracy. Let us repeat the concluding premise: the democratic credentials of the EU are not worse than most of those in use in the uncontested democracies; they can even be favourably compared in some cases. But a larger and larger part of public opinion refuses the Union the right to interfere in certain questions or domains which, in their view, should be addressed elsewhere, at the local or national levels. These views are sometimes wrong or full of illusions. They are not specific to Europe, as the American experience testifies. In the United States, the Washington bureaucracy does not attract less hatred and anger than the Brussels bureaucracy. Such a battle over the attribution of power is an unavoidable part of the political process and nothing should be done to repress these legitimate claims. The ‘acquis communautaire’ discourse might not be the most appropriate answer from this point of view. The legitimacy battle over who does what, at what level and according to what rules will be with us forever, but it is not a sufficient reason to practise some kind of sleight of hand to maintain the status quo. It means, on the contrary, that we have to accept changes, disparities and differences over time and space and not consider this as a traumatic situation. Far from being a rational, well-ordered, uniform type of polity, the European Union can only survive by accepting – and organizing – these variations, be they beliefs, rules or institutions. In conclusion, I would like to recall the wisdom of both Tocqueville and Madison. They concur in underlying the need for a fresh approach to new problems. Let us consider Tocqueville’s views first, when he underlines the necessity to refer to empirical observation rather than past knowledge. When I compare the Greek and Roman republics with these American states; the manuscript libraries of the former, and their rude population, with the innumerable journals and the enlightened people of the latter; when I remember all the attempts that are made to judge the modern republics by the aid of those of antiquity, and to infer what will happen in our time from what took place two thousand years ago, I am tempted to burn my books in order to apply none but novel ideas to so novel a condition of society. (Tocqueville 1994: 315–316)

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Fifty years before, Madison was coming to similar conclusions, underlining the major innovation put forward by the American Revolution. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment, have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (Hamilton et al. 1974) The American model cannot be copied and replicated. But we can still draw lessons from the past. Europe cannot simply copy the well-known recipes of previous experience. Europe has to invent a new democratic system, a system which, as yet, has no name.

References Anderson, P. (2008) ‘Theories of European Integration: A Geoculture’. Text available at www.eui.eu/MaxWeberProgramme/Publications.shtml#lectureseries08. Falkner, G. (2001) ‘The Europeanisation of Austria: Misfit, Adaptation and Controversies’ European Integration online Papers (EIOP), 5(13). Text available at eiop.or.at/eiop/texte/ 2001-013a.htm. Hamilton, A., Madison, J. and Jay, J. (1974) The Federalist, Cambridge, MA: The Belknap Press of Harvard University Press. Kardas, S. (2003) ‘Human Rights and Democracy Promotions: The Case of Turkey–EU Relations’, Alternatives: Turkish Journal of International Relations, 1(3): 136–150. Majone, G. (2003) ‘The Politics of Regulation and European Regulatory Institutions’, in J. Hayward and A. Menon (eds), Governing Europe, Oxford: Oxford University Press. Merlinger, M., Mudde, C. and Sedelmeier, U. (2001) ‘The Right and the Righteous? European Norms, Domestic Politics and the Sanctions against Austria’, Journal of Common Market Studies, 31(1): 59–77. Moravcsik, A. (2007) ‘What Can We Learn from the Collapse of the European Constitutional Project?’, Politische Vierteljahresschrift, 47(2): 219–41. Tocqueville, A. (1994) Democracy in America, London: David Campbell Publishers. —— (2000) Democracy in America, Chicago, IL: University of Chicago Press.

Conclusions Facing the challenges Catherine Moury and Luís de Sousa

In our introduction, we identified some of the main challenges facing the European Union today, as discussed in the burgeoning literature and the public debate. Identifying problems is a necessary first step in any assessment aimed at producing scientific knowledge or inducing decision-makers to take action, but what is glaringly absent in the current academic literature is the elaboration of solutions. Although we do not share the view that human sciences are second-rate sciences because it is believed that they rarely provide answers to the problems they so eagerly raise, we cannot ignore the fact that most social scientists tend to downplay their praxeological responsibilities. As the US linguist and political scientist Noam Chomsky put it bluntly in a television interview in 1978, ‘As soon as questions of will or decision or reason or choice of action arise, human science is at a loss’. In this book, we have invited our contributors to discuss the challenges facing the European Union and critically assess the three interrelated core concepts – constitutionalization, democratization and institutionalization – that help us to understand how the EU is evolving to meet those same challenges. We have also asked them to provide our readers with possible solutions to European institutional problems and express their expert views on the recent European reforms. The task was not easy, given the uniqueness of the European political system, where ‘Multiple identities, multiple tiers of policy-making and policy implementation, interlocking processes of ratification and scrutiny’ (Wallace 2000: 531) make the institutional dynamics less tidy and predictable than the processes of state-building in nineteenth-century Europe. The complex singularity of the EU and, hence, the lack of comparative regional cases often forces scholars into systematically comparing the EU with the nation state in order to solve European constitutional dilemmas. However, several authors in this book reject this analytical trend because it prevents us not only from being innovative but also from choosing the right solutions to what is essentially a new polity. Schmitter believes the democratization of the EU cannot be accomplished by simply ‘mimicking’ the domestic democracies of the Member States, while Mény considers that it is fallacious to take state-level democracy as a model to emulate at the European level just because it is the only tested democratic experiment so far. As Maduro

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elegantly underlines, it is not very efficient to try to solve a problem by using inadequate solutions, just because these solutions are easier to understand. The contributors to this book have successfully gone beyond this traditional comparative approach and ventured into discussing solutions, reforms and disclosure scenarios in which the EU is taken as a new political entity in its own right. In this last section, we shall present a summary of the major points raised by the various authors with regard to the three main challenges identified earlier: the multifaceted impacts of enlargement, the end of the permissive consensus and the pressure to democratize the EU.

The multifaceted impacts of enlargement In the literature (and public discourse), enlargement is often described as an important challenge to European institutions. Indeed the increased number and diversity of the Member States makes power disputes more complex, increases the number of veto players and/or blockading coalitions, moves the EU boundaries close to troubled borders and tends to strengthen (rather than diminish) local ‘patriotism’, thus making it difficult to create a ‘European demos’. If the challenge is recognized by all, certain authors diverge regarding the possible responses. For example, Zielonka and Cox have different views on what can be done to face the increased number and diversity of Member States. On the one hand, Zielonka has argued that what he calls the hierarchical mode of governance is rendered inadequate by enlargement and that the EU should rather embrace more flexible, decentralized and soft modes of governance. According to the author, the strong pressure to establish more of a hierarchy in the current European arrangement is wrong, because the new Member States, who have had recent experience of tight hierarchical rules under communism, do not want to see a powerful centre in Brussels applying uniform policies. In particular, new Member States such as Poland, which have complex relations with their neighbours and fear that European foreign policy will undermine NATO, would be opposed to any strong centralization of European foreign and security policy. Furthermore, Zielonka argues that if the existing and much criticized system for adopting foreign and security policies prevents the EU from being a global actor in this domain, capable of taking quick decisions and giving rapid responses to crisis situations, it nevertheless creates the conditions for deliberation and ensures that the Union does not rush into ill-conceived courses of action. For that reason, Zielonka clearly disapproves of the measures introduced in the Reform Treaty abolishing the rotating presidency in matters of foreign policy. The new arrangements raise two problems, which, according to the author, seriously hamper the emergence of a genuine European raison d’état: without rotation, small and medium-sized Member States are likely to feel bypassed in major decisions (in particular those concerning security), and this will give Eurosceptic politicians more reason to blame Europe for possible misfortunes; secondly, there is no guarantee that the permanent presidency (of the European Council and the

Conclusions: Facing the challenges 135 Foreign Affairs Council) will be able to ensure a more effective decision-making process than the rotating presidency offers. For instance, the European Council President is likely to discover that his formal powers and field of action largely overlap those of the High Representative of the Union for Foreign Affairs and Security Policy and this might lead to decision-making paralysis. Cox, on the contrary, believes that the Union should have adopted a more hierarchical mode of governance in foreign and security policy. He regrets that the Lisbon Treaty did not deepen integration in this domain and that most foreign policy arrangements will remain essentially intergovernmental, as they were. This, he says, risks creating a serious mismatch between the expectations of public opinion – public opinion polls reveal that citizens would like the EU to act more vigorously and unanimously in CFSP matters – and what is actually delivered. The challenges of enlargement do not merely concern the expansion of the EU’s borders and the future role of the Union in international politics. It is also about the construction of a political unit whose centre (Brussels/Strasbourg/ Frankfurt) has gradually been consolidated and acknowledged, but whose territory and population have been in constant mutation. In this volume, Cotta and Isernia discuss the impact of enlargement upon the creation of a European demos. Whilst up till now, the idea of European identity has not been problematic because the EU was primarily conceived as an intergovernmental organization whose identity was the sum of all national identities that composed the Union (rather than the identity of the individuals belonging to it), they rightly remark that this identity (unity in diversity) has been and will be challenged by recent and future enlargements. The authors remind us that, in the everlasting debate about the admission of Turkey, it is no longer the identity of the state but that of individual Turks (in particular the fact that they are Muslims) that is at stake for some Europeans. Another issue relating to enlargement, discussed in De Witte’s chapter, concerns the procedures for constitutional change. Despite various resolutions by the European Parliament and the Commission during the late 1990s, which recommended the simplification of the treaties, this problem has only now been taken seriously, following the rejection of two treaties in less than four years in national referendums. For De Witte, there is a clear mismatch between the procedures for constitutional change and the growing complexity of the EU’s composition. Whilst Europe has been growing in numbers and complexity, requiring flexibility and adaptation, the rigidity of the rules for revising treaties has remained unaltered. Each Treaty revision still takes place on the basis of a two-level unanimity rule: a first level of unanimity in which a common agreement needs to be hammered out between 27 governments, each with its own vision, and then a second level of unanimity which consists of ratification of the treaty at the national level. If the first part of the process has become increasingly difficult to manage through diplomatic negotiations and compromise, though not impossible (as the last German and Portuguese presidencies have shown), the same cannot be said of the second level.

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The Constitutional Treaty, as we know, was rejected by referendums in France and the Netherlands and the ratification of the Lisbon Treaty has been made very difficult by its recent rejection in Ireland. De Witte thus deplores the fact that the rules introduced in the Lisbon Treaty to amend future treaties are a far cry from being sufficient to address the problem of over-rigidity in the treaties. These rules, which provide for two simplified revision procedures (allowing shifts from unanimity to a qualified majority in Council decision-making, and the adoption of codecision as the law-making procedure in new fields), do not cancel the unanimity requirement for amendments to the greater part of the treaties. In view of recent events, De Witte suggests that Member States should agree to confront the ‘taboo’ requirement of unanimity for Treaty revisions and replace the consensus rule with some kind of super-qualified majority rule for amending the present Treaty, at least for certain parts of the document. Member States could then require the assent of the European Parliament, to compensate for the fact that the individual national parliaments will lose their power of veto. This constitutional reform may not seem realistic in the short term, but it will grow in importance as the Union considers further enlargement.

The end of the permissive consensus The second main challenge faced by the EU concerns the end of the permissive consensus. In other words, citizens are more informed and politicized about European integration than before – even though not sufficiently politicized to make Euro-parties and Euro-elections a meaningful reality – and are less willing to accept the tacit consent and elite consensus that characterized the traditional modus operandi of the Union. The end of the permissive consensus has a great deal to do with the ‘underperformance’ of the EU, whether real or just perceived by the citizens. Mény, Maduro and Cotta argue that European economic integration has limited the capacity of states to pursue traditional functions of governance, in particular those regarding market regulation and distributive policies, but that these limits are not compensated for by the degree of EU intervention to secure those functions. Cox also warns against the ‘delivery gap’. States commit themselves to certain general EU policy objectives, which they are unable to implement at the national level. The incapacity of Member States to deliver certain important policies that they have agreed to is partly due to the fact that they are tied by the national interest perspective when it comes to implementation. These problems are indeed well illustrated by the Lisbon Agenda or the discussion on environmental policies. As Cox has eloquently written: ‘[This delivery gap] exposed the weakness in a system of governance that agrees centralised objectives but depends on decentralised instruments and political will at Member State level for their achievement’. Maduro discusses at length why the current strategies to solve this problem will not be sufficient. He argues that the strategies are unsatisfactory because they only focus on institutions and procedures but fail to justify the very need for a European political community. He suggests legitimating the Union’s polity by

Conclusions: Facing the challenges 137 focusing on the construction of a plural form of citizenship, which would, in its turn, improve the democracy of the national political process with regard to nationals of other Member States and nationals living abroad. European legitimacy could also be built, he believes, by improving the prevention of negative externalities generated by European economic integration and by regaining control over the market, which has been lost through globalization.

The pressure to democratize the EU A third challenge, which is related to the previous one, is the pressure to democratize the EU. Schmitter believes the question of legitimacy and democratization cannot be dealt with separately. An ambitious political strategy of democratization may be sufficient to renew the legitimacy of the EU. Starting from the early set of recommendations discussed in his book, How to Democratize the European Union… and Why Bother? (2000), the author challenges the current institutional reforms with the same sharpness and the same quest for innovation by making a series of daring proposals. These include the insertion of direct referendums (not necessarily binding) into the existing Euro-elections, with questions on the citizens’ opinion regarding a small number of items; the granting to parents of a vote for each child that they have; double lists and voting for national and European candidates, and even additional financial and legal incentives for the formation of supranational party identities and structures independent of national ones. Finally, Schmitter proposes the creation of distinct Colegii, composed of the largest, middle-sized and small Member States. Within each of these clusters, the number of deputies for the European Parliament and the number of weighted votes in the Council of Ministers would be proportionate to the square root of the total size of their populations and, to be adopted, decisions would need to have obtained a majority in each of the three Colegii. Schmitter’s major concern is how to make Europe more political and politicized by strengthening the sources of direct and indirect democratic legitimacy. Needless to say, the reforms introduced in the Lisbon Treaty are not meeting his expectations. First, the issue of EU-level referendums was addressed, but in a too restricted manner. Article 8B, which stipulates that one million or more citizens in ‘a significant number of Member States’ may initiate a request to the Commission regarding ‘any appropriate proposal … for the purpose of implementing the Treaties’ does not oblige the Commission to act favourably and it only concerns matters already contained within the Treaties. Moreover, Schmitter deplores the fact that this possibility is not linked to Euro-elections and hence is likely to produce high levels of abstention. His ideas about Colegii, citizenship(s) and the strengthening of European Parliamentary groups have not been addressed or discussed, and the author particularly deplores the latter. Since the EP’s role would be expanded, he rightly points out, the absence of links between individual citizens and Euro-parties risks widening the public’s perception of a ‘disconnection’ between the EP’s decisions and their preferences.

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Schmitter is not alone in this ambitious quest for democratization. In a similar way, Mény proposes making the Commission, the Council, and the Parliament more accountable directly or indirectly to the people, strengthening transnational parties, reinforcing the role of national parliaments vis-à-vis Union policies, and introducing certain forms of direct democracy such as European referendums. Héritier and Farrell, for their part, have looked at one particular aspect of democratization. Interestingly, the authors point out that the adoption of legislation by the codecision procedure, which is commonly applauded as having strengthened the EP, and therefore democracy, also has certain negative consequences for transparency and accountability in the decision-making process. They show that codecision has led to the creation of a plethora of informal and semi-formal meetings in which many of the real decisions are taken by a very limited number of people – thus excluding other actors invested with democratic legitimacy (MEPs and national MPs) and the general public from gaining information about what exactly is going on with regard to a specific piece of legislation. Héritier and Farrell also demonstrate that codecision has enabled new alliances between Member States, via their national representatives at the Council and the EP, which gives larger states a supplementary tool to influence legislative outcomes. The authors suggest specific reforms aimed at addressing the lack of transparency arising from the new practices in the codecision procedure. They propose that Council representatives should address parliamentary committees in order to give them information on positions reached and indications of the joint rationale behind the Council’s willingness or unwillingness to accept certain amendments. Even if the Reform Treaty has made little progress to counter the lack of transparency and accountability surrounding codecision, which now affects most community decisions, Héritier and Farrell welcome the early monitoring mechanism adopted in the new treaty, allowing national parliaments to stop a Commission legislative draft if it is not in compliance with the principles of subsidiarity, as this preventive measure might increase the exchange of information between the European Parliament and members of the national parliaments. In his contribution, De Witte also addresses a specific problem for European democracy: the mechanisms of European treaty reform. First, he rightly recalls that, traditionally, these important reforms take place ‘behind closed doors’. Even if the work of the recent Convention, which should be the default system after the ratification of the Lisbon Treaty (negotiated in the traditional way!), was much more accessible, he doubts whether the Convention was truly more representative, or more deliberative, than an IGC. He recalls that the effort to involve a broader band of public opinion through the creation of a Forum and through meetings with selected interest groups was largely unsuccessful and that certain initial studies confirm the leading role played by the Convention’s Praesidium and its secretariat and the relatively minor role played by the delegates of national parliaments and civil society. Finally, he deplores the fact that intergovernmental negotiations still took place for resolving some of the questions, mainly those relating directly to the composition and role of the EU institutions, thus pre-empting the choices possible for the Convention.

Conclusions: Facing the challenges 139 For his part, Maduro argues that the current strategies adopted in the Reform Treaty (the shift towards majoritarian decision-making and stronger parliamentary control) are not sufficient. It is because, he argues, these overestimate the legitimating power of this institutional reform (as discussed above) and also assume the superiority, in democratic terms, of majoritarian decision-making, which is not necessarily true. He correctly recalls that democracy should not only address the democratic will of the majority, but also the rights of the minority. He finally argues, as Mény does, that in focusing on the democratic deficit we might miss the target. The problem, he believes, might be more a question of legitimacy rather than democracy. Mény – and we shall grant him the last word - warns us not to underestimate EU democracy. First, we should not ignore the positive effect of European integration on the performance of national democracies, e.g. the possibility of electing EU citizens in European and local elections; the introduction of PR electoral rules into political systems opposed to such rules on account of their political impact; the impact on democratic consolidation in candidate countries and, finally, the more limited impact of democratic conditionality on relations with third countries. Another mistake to be avoided, Mény warns us, is the tendency to forget that the EU is still a relatively young polity (51 years) and that its democratization will only take place in a slow and incremental manner, as Schmitter maintains. Mény persuasively argues that progress can only result from adjustments, tentative exploration, and trial and error, rather than by one or two big – but disappointing – changes.

Prospects for the future As we conclude this book (August 2008), official discussions on the future of the Reform Treaty proceed. No matter what the final result will be, it is clear that Europe is not going through one of its best moments. For the first time in the 51 years of its existence, two treaties have been rejected in national referendums in less than four years, a fact that has seriously rocked the boat of the European project yet again. The Irish reluctance, though we should not ignore that of the Dutch, French and other European citizens who did not have the chance to directly manifest their discontent, is not only related to the distribution of funds or elite power quarrels, but is also a symptom of a deeper crisis of legitimacy and representation facing EU institutions. Not only are citizens increasingly reluctant to delegate more power to their leaders so that they can further European integration, there is a growing perception that European integration can only bring marginal gains to their well-being and, sometimes, these gains are not even sufficient to counterbalance the negative externalities of globalization upon their economies. Despite this, paradoxically, many citizens believe European institutions perform better than their own and expect more from the EU than it is actually capable of delivering. At the time of writing, there are a series of uncertainties over the short-term future of European integration: uncertainties concerning the approval of the treaty and the future methods of revision; uncertainties in relation to the future contents

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and format of the treaty; uncertainties about who will be left out in the next round of enlargement. But the indecision has deeper roots than the issue of the treaty. What is at stake is the future of the European project. This is not just a matter of boundaries and the eternal question of Turkey, but also a question of what the EU will be able to offer its citizens in years to come. Has the process of European integration reached its optimal point and will it only be able to make a few minor or marginal gains in the near future, or are we still at the beginning of that integration? Is it possible to show Europe’s disillusioned citizens the purpose it serves and what it is good at? The crisis Europe is experiencing today is not only self-inflicted but also multifaceted, as we were able to learn from the various chapters in this book. However, as the Chinese proverb goes, in every crisis there are dangers and opportunities. It is therefore opportune to reflect upon the possible solutions to the various challenges Europe is facing. It is hard to tell what the effects of the ideas launched in this book will be. As the contributors are certainly well aware, their impact on national and European decision-makers may well fall short of their aspirations. Notwithstanding the relevance of epistemic communities to the European project, a certain gap is felt to exist between the perspectives of academics and practitioners. Academics are too often critical of the political decisions taken, but too rarely involved in offering practitioners cues from their theoretical work which could help them make the right choices. Politicians lament the abstract nature of most scholarly work, but have rarely incorporated theoretical reflections and empirical findings into their reforms. Still, we believe that discussing academic reflections on the solutions to the problems that exist is as useful and important as learning how this new political system operates and how it is evolving.

References Schmitter, Philippe C. (2000) How to Democratize the European Union… And why bother?, Lantham: Rowman and Littlefield. Wallace, William (2000) ‘Collective Governance: The EU political process’ in Hellen Wallace and William Wallace (eds) Policy-Making in the European Union. Oxford: Oxford University Press, pp. 523–542.

Index

Note: Numbers in bold denote page references to figures or tables Adenauer, K. 121 Africa: policy towards 21 Alber, J. 77 Andersen, S. 9 Anderson, P. 122 Archibugi, D. 73 Barroso, J. 20 Bartolini, S. 9–10, 77, 78, 82, 86 Benhabib, S. 71 Bergman, T. 81 Bergström, C. 110 Blair, T. 21 Buchanan, J. 53 Burley, A.-M. 46 Burns, R. 9 Calhoun, J. 103 candidate countries: democracy as condition of access 127–8, 129, 139 Caporaso, J. 113 Caramani, D. 86 Carrubba, C. 7 Cassese, S. 46 Chalmers, D. 59 Chomsky, N. 133 Cioffi, J. 114 citizenship 10; action and entitlement dimension 76, 77, 78, 78; components extending beyond the confines of the state 72, 73; dimensions of 76, 76–8; identity and 79, 80, 82; legitimation 72, 73; membership dimension 76, 76, 77, 78; patriotism and 80, 82; representation and 81, 82; scope of government 81, 82, 82; see also European citizenship Clagget, W. 86 Closa, C. 87

codecision procedure 108, 109; democratic legitimacy 111, 112, 113, 115–16, 117, 138; early agreements 111, 112, 113, 115, 119; EP relationship with Council 114, 115, 117–18, 138; exchange of information between EP and members of national parliaments 118–19, 138; informal procedures 108, 109; need for increased monitoring and control 116–17; policy consequences of 115; trialogues 110, 111 Commission of the European Communities 26, 27 competences strategy of legitimation 57–8 concurrent majorities 103, 104 constitutional law 33, 34, 40; abundance of constitutional law 35–7; mechanisms of informal constitutional change 34; unanimity rule 37; see also Treaty revisions constitutional strategy for legitimation 58–61 constitutionalization 44; conflict between national and EU legal orders 50, 59–60; democratic deficit 46–8; and Europeanization 44–6; governance functions 48; independent claim of political and legal authority 44; redistributive effects of policies 48–9; see also legitimacy constraining consensus 7 Corbett, R. 110 Costa, O. 9 Cotta, M. 90 Council: relationship with European Parliament 114, 115, 117–18, 138; see also codecision procedure Cowles, M. 8

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Dalton, R. 7 d’Azeglio, M. 87 De Gasperi, A. 121 de-nationalization of the democratic principle 124–6, 129 De Wilde, P. 7, 9 De Witte, B. 44 decision-making rules: concurrent majorities 103, 104; overriding unanimity rule 102; three electoral colleges proposal 101–2, 137 Dehousse, R. 5 Delanty, G. 84 delivery gap 18, 19, 136 Delors, J. 2 democracy: accountability 95; analysis of 124; as condition of access for candidate countries 127–8, 129, 139; de-nationalization of the democratic principle 124–6, 129; decline in legitimacy of domestic democracy 104, 105; definition of 95; development of EU democracy 121, 122; enlargement, effect of 10–11; necessity of democratic requirements 124; popular legitimacy 122; post-national democracy 130–32, 139; reasons for reform 104–5; relations with third countries 129, 139; rule of law 122; spill-over effects from Europe to national democracies 126–7, 129, 139; see also democratic deficit; legitimacy democratic deficit 8, 9, 121, 122, 123, 124, 131; citizenship reform proposals 96–8; decision-making reform proposals 101–4, 137; direct election of MEPs 9; elections fought on domestic issues 9; EU too distant from European citizens 9; founding of the EU 8–9; judicial control, weakening of 48; liberal constitutionalist and democratic pillars 8; minoritarian bias 47–8; minority rights 139; power of the EP 9, 46–7; proportional representation, lack of 47; representation reform proposals 98–101; rule of law 10; unanimity 47; see also codecision procedure; democracy; legitimacy Dewatripont, M. 99 diversity 5, 24, 27; plurilateral governance 25 Eder, K. 9, 84 Eichenberg, R. 7 Ekengren, M. 30

enlargement 4, 134; democratization, effect on 10–11; diversity 5, 24, 27; European frontiers 5; European identity 84, 135; flexible economic arrangements 28; foreign policy 28; hierarchical governance 27, 28, 134; national parliaments, role of 27; paralysis of decision-making 4–5; plurilateral governance 30–31, 134; rotating Presidency 27; subsidiarity 27; tension between enlargement and creating a ‘United State of Europe’ 6 European citizenship 10; action and entitlement dimension 85–8; coexistence with national citizenship 82–8; decision-making role of people 75; discourse 74–5, 88, 89; early development of 74; EU non-denial of citizenship aspect of states 73, 74; fundamental rights strategy 56; identity 8, 84, 85, 88, 135; membership dimension 83–4; plural citizenship 63–4, 136–7; production of citizenship and the role of different actors 89–91; referendums 96, 137; universal citizenship 97–8, 137; see also citizenship European Council 26 European Parliament (EP): direct election of MEPs 9; exchange of information between EP and members of national parliaments 118–19, 138; power of the EP 9, 46–7; relationship with Council 114, 115, 117–18, 138; see also codecision procedure European party formations: greater control for 99–100 European Union: citizens’ view of 139; political definition 3; as a political system 2, 3; as a result of a process of experiment 3; tensions and balances 11; unique nature of 2 European Voice 119 Europeanization: and constitutionalization 44–6 Euroscepticism 7–8 Fabbrini, S. 85 Falkner, G. 127 Farrell, H. 3, 110, 112, 114, 115 fear of the few see minoritarian bias fear of the many see majoritarian strategy Ferrera, M. 87 ‘flexible integration’ 3–4 Flora, P. 77

Index foreign policy, 16, 134; Africa, policy towards 21; bilateral relations of Member States 19–20, 28; budget constraints 21, 22; capacity to act in global terms 15; collective interests 30; delivery gap 18, 19; divide and rule 19; enlargement of EU 28; future of 21–2; governance system 18–19, 28–30, 31, 134, 135; ‘inbetweenness’ 17; institutional framework 16–17; intergovernmentalism 18; national preferences, vulnerability to 20; ownership of 30; politics of the lowest common denominator 21, 28; profile of 18; responsibility for expenditure 17; rotating Presidency 30, 134–5; Russia– EU relations 19–20; soft power of the EU 15–16; ‘speaking with one voice’ 17; unanimity of decisions 17, 28; unity of, challenges for 17–18 Fossum, J. 35, 71, 75 Franklin, M. 7 fundamental rights strategy 54–7; European citizenship 56 Giesen, B. 84 governance 23, 24, 26; constitutionalization 48; foreign policy 18–19, 28–30, 31, 134, 135; hierarchical governance 24, 25, 26–7, 28, 29, 134, 135; hybrid system of European governance 23, 25–6; plurilateral governance 25, 26, 28, 29, 30–31, 134 Gramsci, A. 104 Habermas, J. 48, 80 Haider, J. 56 Hamilton, A. 132 Hassner, P. 29 Held, D. 62 Héritier, A. 3, 110, 112, 114, 115 hierarchical governance see governance Hirschman, A. 78 Hix, S. 2, 9, 86, 109, 110 Höjelid, S. 8 Hood, C. 24 Hooghe, L. 7, 25 Huntington, S. 83 identity: and citizenship 79, 80, 82; see also citizenship; European citizenship Imig, D. 7 intergovernmentalism: foreign policy 18

143

Kagan , R. 15 Kardas, S. 128 Kelemen, D. 26 Kersbergen, K. 8 Khodorkovsky, M. 19 Kohler-Koch, B. 26 Komesar, N. 53 Kooiman, J. 25 Koopmans, R. 7 Kuper, A. 73 Kuzniar, R. 27 Laïdi, Z. 29 Lane, J.-E. 3 Leech, D. 52 legal rules: constitutional law 33, 34, 35–7, 40; flexibility 33; ordinary law 33, 34; rigidity 33, 34; see also Treaty revisions legitimacy 61, 65, 122, 139; competences strategy 57–8; constitutional strategy 58–61; democratic value of the market 64–5; fundamental rights strategy 54–7; inclusiveness 63–4; institutional malfunction in national democracies 63; justification for new form of political community 61–2; majoritarian strategy 51–4; minority interests 62–3; regime legitimacy 61; regulatory functions 64; second order legitimacy 61; transnational processes 62; see also citizenship; codecision procedure; constitutionalization; democracy Lehne, K.-H. 114 Lindberg, L. 6 Litvinenko, A. 20 Lord, C. 109 Lupia, A. 81 Maas, W. 89 Madison, J. 132 Magnette, P. 9, 30 Mair, P. 9 Majone, G. 10, 124 majoritarian strategy 51–4; fear of the many 53, 54; proportional representation 51, 52, 52, 53 Marks, G. 7, 9, 25 Marquand, D. 123 Marshall, T. 72 Mattila, M. 3 Mattli, W. 46 Menéndez, A. 35 Mény, Y. 5, 8 Merkel, A. 20, 21

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Index

Merlinger, M. 127 Mestre, C. 49 Milczarek, D. 28 Millward, A. 6 minoritarian bias 47–8, 53, 54, 64 Monnet, J. 3, 122 Moravcsik, A. 6, 10, 73, 75, 124 Mortelmans, K. 59 Moury, C. 3 Mudde, C. 7, 8 national parliaments: early monitoring mechanism 119, 138; enlargement 27; exchange of information between EP and members of national parliaments 118–19, 138 Nicolaïdis, K. 30 Nugent, N. 2 Nye, J. 15 O’Leary, S. 74 Olsen, J. 71 patriotism: and citizenship 80, 82 permissive consensus, end of 6, 7, 9–10, 104, 105, 136 Petit, Y. 49 Pitkin, H. 81 plurilateral governance see governance Pochet, P. 26 Poggi, G. 24 politicization of Europe 6, 7, 9–10, 104, 105, 136 politics of the lowest common denominator 21, 28 Politkovskaya, A. 20 post-national democracy 130–32, 139 proportional representation 47, 51, 52, 52, 53; see also three electoral colleges Przeworski, A. 81 Putin, V. 19, 20 redistributive effects of policies 48–9 referendums 96, 137 Reif, K.-H. 86 Reime, H. 52 representation: and citizenship 81, 82; reform proposals 98–101 Rokkan, S. 78 rotating Presidency 27, 30, 115, 134–5 Russia: politics of the near abroad 19–20

Sabel, C. 26 Sadurski, W. 27 Sartori, G. 88 Sbragia, A. 85 Scharpf, F. 8, 47, 48, 73 Schattschneider, E. 86 Scheingold, S. 6 Schmitt, H. 86 Schmitter, P. 95, 137 Schroeder, G. 20 Schuman, R. 1, 121 scope of government: and citizenship 81, 82, 82 Shackleton, M. 110 Smith, K. 28 Solana, J. 17 Sternberger, D. 80 Stone Sweet, A. 10 Straw, J. 36 Stubb, A. 4 Tarrow, S. 7 three electoral colleges: reform proposal 101–2, 137 Tocqueville, A. 124, 131 Treaty revisions 34, 35, 138; Convention method 38; criticisms 35; rigidity 34, 35, 37, 39, 40, 135–6; simplified revision procedures 38, 39; unanimity rule 37, 38, 39, 40, 136; see also constitutional law Trenz, H.-J. 9 Trubek, D. 10 Tullock, G. 53 Tupy, M. 28 unanimity rule 37, 47; foreign policy 17, 28; overriding 102; Treaty revisions 37, 38, 39, 40, 136 Van der Eijk, C. 7 Wallace, H. 11, 25 Wallace, W. 25, 133 Weber, E. 87 Weiler, J. 8, 44, 47, 54 Wessels, W. 24 Zakaria, F. 28 Zeitlin, J. 26 Zielonka, Y. 5, 6, 11