Year XLVII, 2005, Number 1, Page 18
After the Constitutional Treaty
The Question of a Political Europe*
UGO DRAETTA
This discussion, which examines the question of a political Europe, or rather what the realization of a political Europe implies, must be preceded by a few preliminary remarks in order to banish any suggestion of Euroscepticism on my part. We should all, in fact, remember that no other geographical area boasts a level of integration equal to that which Europe, through the European Union, enjoys and which other international regional organizations take as a model. The creation of the single market has contributed enormously to the economic progress of the Community’s member states and, beyond the purely economic sphere, the process of European integration has achieved the objective that its far-sighted founding fathers had in mind: to create the conditions for enduring peace among the states themselves. In today’s 25-member Union, and also in a further enlarged Union — the EU indeed looks set to embrace more states in the not too distant future — there is no reason to believe that economic progress and enduring peace will not continue to characterize relations between the member states. This is an important achievement of which Europeans may justifiably be proud.
But in order to be able to continue this European journey, in pursuit of the political unification of the continent, we need to be well aware of the weaknesses of the current process of integration and of the limitations of the so-called European Constitution — weaknesses and limitations often masked by Community rhetoric and, if I might be permitted to say so, by a certain and rather widespread ignorance of the texts of the Treaties currently in force or in the process of being ratified. Unless light can be shed on these aspects, we will run the risk of losing sight of the objectives that need to be pursued and thus of doing the European cause a great disservice.
The Weaknesses of the Process of European Integration.
The process of European integration continues to present two fundamental weaknesses: one is the democratic deficit, which undermines at root level the legitimacy of the European institutions, and the other the inefficiency of the current decision-making process.
With regard to the first problem, that of the democratic deficit, the progressive extension of European competences in the sphere of inter-individual relations (consumer protection, privacy, the environment, etc.) has continued to exacerbate a problem that, in truth, has dogged the European Community from its very outset. I refer to the fact that legislative acts (the regulations), which are liable to affect the citizens directly, are made by bodies (the Council, on the recommendation of the Commission) that have not been elected by the citizens and, furthermore, that are subject to no effective, parliamentary-style control. The member states’ transfer of these competences to the Community has meant their effective removal from the sphere of democratic decision making and from the democratic control to which they would be subject were they exercised at national level.
Indeed, the European Parliament, although now enjoying greater democratic legitimization — it is now elected by direct universal suffrage —, has, within the ambit of the Community law making process, the right of veto only over the most important decisions. This gives it the capacity to block European legislation, but not to direct that legislation according to its own will. Indeed, European legislative power remains firmly in the hands of the European Council, on which sit the representatives of the executive powers of the member states. It is of course true that, with regard to the question of democratic control, it is the European Parliament that, in the ambit of the Community, has powers of political control, and that these can be likened to the powers that the national parliaments in the member states exercise in a representative democracy. But the analogy is a purely formal one, given that the European Parliament’s powers of political control have none of the substance of national parliamentary control. In particular, this political control is exercised over the Commission — not always in a coherent way, as recent episodes linked to the installation of the Barroso Commission have shown —, but it is not exercised over the body that is, in the final analysis, the repository of legislative power, i.e., the Council. Thus, even political control within the European system appears to be undermined by the existence of a basic democratic deficit, and the control that the national parliaments can exercise over the single members of the Council is too remote to remedy this deficit.
Clearly, there is only one way in which the democratic deficit can be eliminated, and that is to apply, within the European setting, a principle that has become deep rooted within the member states: I refer to the principle of the separation of powers, according to which legislative power is attributed to a democratically elected body, which also has political control over the executive power. This could be achieved in two ways, either by giving the European Parliament the legislative power within the Community (at the same time taking this power away from the Council, its present holder), or by having the citizens elect the Council directly, thereby transforming it from a representative body of the states into a sort of Higher Chamber or Senate, within a federal bicameral structure in which regional interests would be represented. But, of course, these solutions would imply movements in a federal direction, and thus the relinquishing of sovereignty by the member states — movements currently unthinkable to most of the twenty-five members of the European Union. This explains why, in spite of the fact that all the recent intergovernmental conferences convened to revise the Treaties have set themselves the task of finding a solution to the problem of the democratic deficit, the solution itself has been repeatedly postponed from one meeting to the next, and the problem has remained unsolved. Paradoxically, states that rightly regard themselves as pioneers of democracy and as defenders of the values of democracy at world level have, in the European Community, built themselves a very weakly democratic structure. This situation is, among other things, one of the main reasons for the current loss of faith in the European ideal among the continent’s citizens.
On the other hand, to be realistic, it must be acknowledged that in the current stage of European integration, characterized by the abiding sovereignty of the member states, ultimate decision-making power cannot fail to take into account the will of the Council, which represents these states. Hence it must also be appreciated that the exercising of political control by the European Parliament over the Council would be possible only through a qualitative leap forward that would see Europe projected into an entirely different scenario, in which the member states would lose their status as sovereign subjects of international law and Community law would become the internal law of a new, federal type subject.
I will return later to the inefficiency of the decision-making process and the failure to find a solution to this problem. However, both the aforementioned problems, the democratic deficit and the inefficiency of the decision-making process, are destined, unless they can be resolved, to prevent the European Union from rising successfully to the challenges that now face it.
The Challenges Facing Europe.
These challenges are generally acknowledged to be the creation of a common foreign and security policy and of a single European economic policy. Without the former, the individual member states will, in the current global scenario, have no choice but to yield to the current dominant power or mount an opposition to that power that will be as sterile as it will be futile. On the other hand, a Europe equipped with its own foreign and security policy, a political Europe, could become — also within the United Nations — an effective balancing influence, drawing, in this role, on the ideals of democracy, liberty and respect for the rule of law that form its cultural heritage and on which the European Union is founded. But as long as Europe continues to lack a common foreign policy, it is meaningless to envisage a European seat at the UN, indispensable as this would be. Let us move on to the second challenge, that of a single economic policy for the European Union. Without such a policy the single currency itself cannot be regarded as an enduring and irreversible achievement, as the shrewdest economists have long been arguing and as current difficulties related to the Stability Pact demonstrate.
Neither of the methods through which the process of European integration has advanced to date, i.e., the intergovernmental method and the Community method, appear adequate to meet the above challenges. The first is too conditioned by the unanimity rule to bring appreciable results. It presupposes concerted efforts on the part of the member states that, in turn, presuppose a more than occasional coincidence of their particular interests — something that is far from easy to achieve, as the events even of recent history have shown us. The dissent of just one of the twenty-five member states would be sufficient to paralyze the Union and prevent it from acting.
Neither is it conceivable that the Community method, given its inherent democratic deficit, might, even in the unlikely event of a strengthening and simplification of the decision-making process, lead to the adoption of a common foreign and security policy or a single European economic policy. Indeed, decisions on matters of crucial importance (involving a choice between peace and war) and fiscal policy decisions (implicit in the definition of a common economic policy) can be referred only to democratically elected bodies. They cannot be entrusted to bureaucratic or executive bodies that escape effective democratic control.
Therefore, realistically, and looking beyond European rhetoric, it must be acknowledged that the twenty-five-member European Union really has reached a crossroads. If nothing changes, the process of European integration will see the member states re-appropriating some of the competences previously transferred to European level (thanks to the intergovernmental method’s gaining sway over the Community method, of which there are already clear signs); the process will also, increasingly, follow essentially economic lines: the development of the internal market and the progressive expansion of this market to new states. This will be a complex undertaking and one that will absorb Europe’s energies for some considerable time, given the economic situation of these new states. As indicated earlier, it is also an objective that must not be underestimated and that is certainly worth pursuing, given the undoubted advantages it will bring both the new and the old member states. In the context of Europe’s pursuit of these essentially economic objectives, the democratic deficit will appear tolerable and Europe’s decision-making process will probably be appropriately adjusted. In following this direction, however, and this is indeed the direction in which the process of building Europe seems inevitably to be moving, the European Union will have to abandon any more ambitious plans it might have for a single common and security policy and for a single economic policy: in other words, its plans for a political Europe, with all the consequences that this would bring. If, on the other hand, the member states are determined to pursue these latter objectives, they will have to use methods other than the intergovernmental and Community methods, finding solutions that deal with the problem of the democratic deficit and that introduce an efficient decision-making process.
The Federal Method.
The only method that will allow Europe to rise to and overcome the challenges it faces is the federal method, understood (according to the commonly accepted meaning of the term) as the transfer, by formerly sovereign states, of competences (few in number or more numerous) to a central power. As a result of this process, the formerly sovereign states become federated states and lose their status as players on the international stage, a role that instead falls exclusively to the new federal state. There is no doubt that use of the term “federal” can sometimes seem politically incorrect, given that it has, in spite of repeated attempts to insert it, been systematically excluded from the revised Treaties. This is due to the obvious resistance on the part of the member states which, like individuals, have a strong instinct for self-preservation.
If the federal method is the only one through which it is possible to pursue the most ambitious objectives, which everyone seems to want to see realized, it is also clear that the European federation would have to be a “softly-treading” entity, whose competences would be limited strictly to those it would necessarily have to assume in its attempt to forge a common foreign and security policy and a single European economic policy. All the other competences would remain in the hands of the federated states. It would not be a “superstate” — this expression has authoritarian connotations and, for this reason, is sometimes exploited by supporters of the nation-state wanting to prevent movements in a federal direction —, but instead a state in which all Europeans would be democratically represented and, thanks to its ability to combine European, national and regional identities, one with which they would feel able to identify. Equally, this federal state would have nothing in common with certain ambiguous and contradictory formulas that have been advanced, such as the “Federation of Nation-States” or the “Federation of Sovereign States”, behind which, again, there sometimes lurk supporters of the nation-state.
So who can, realistically, begin a movement towards a European federation? The member states, naturally enough, are inclined to look after their own interests, and first and foremost to seek to retain their sovereignty. Political parties confront one another in their bid to win, or to hold on to, power. Since this power is to be found at nation-state level, this is the level at which political debate unfolds, even when it is a question of electing the members of the European Parliament.
Unless the European Parliament, strengthened by a position of uncontested democratic legitimacy, manages to find within itself the courage to set itself up as a Constituent Assembly, a true “Convention”, all we can do is hope for a repeat of those golden years in which the founding fathers of European integration and Europe’s heads of state and of government were one and the same. Unfortunately, neither scenario looks likely.
However, even though there is little cause for optimism, I feel that it is our duty to identify correctly the options facing Europe at the crossroads it has now reached. To succeed in this duty may in itself be considered an important achievement, constituting the premise, at least, for the reaching of conscious decisions. But, rhetoric and misinformation often prevail and confusion reigns, exacerbated by a widespread “corruption” of the terminology used in the debate. The very expression “European Constitution” is a case in point.
The Constitutional Treaty.
The text of the Treaty establishing a Constitution for Europe — often, for the sake of brevity, referred to as the “European Constitution” — is long and does not make for easy reading. Its 341 pages include over 448 articles that bring together the articles previously included in the Treaty on European Union, in the Treaties establishing the European Community and in the European Union’s Charter of Fundamental Rights; its 40 or so annexed protocols occupy a further 382 pages and there are also 50 annexed declarations, which add a further 121 pages. Those who drafted the Treaty have clearly failed in one of their objectives, which was to simplify it and turn it into a streamlined and readily comprehensible document. Finally, to talk knowledgably about the Treaty establishing a Constitution for Europe is difficult even for those who have the will, and the knowledge and expertise to do so. It is practically impossible for anyone who is not well acquainted with the previous Treaties and is thus unable to appreciate the differences between old and new texts. Clearly then, the idea of putting a text of this kind to referendum, as around a dozen of the European member states plan to do, poses the problem of the near impossibility of reducing this complex and muddled document to a single question that can be answered with a simple “Yes” or “No”.
In short, the new Treaty is just another revision — following those of The Single European Act (1987), of Maastricht (1993), of Amsterdam (1999), and of Nice (2003) — of the Treaty of Rome and of the Treaty on European Union. But whereas the previous revisions all stood out for some particular achievement (for example, the SEA introduced the internal market, Maastricht brought in the single currency and Amsterdam the agreement on social policy, and Nice marked the start of the restructuring of the European institutions in preparation for enlargement of the EU), it is much more difficult to pinpoint a similar feature characterizing the Treaty establishing a Constitution for Europe. There is no doubt that it introduces a series of modifications many of which are necessary and opportune, and on the basis of these alone, it should certainly be signed and hopefully be brought into force, but none of the changes it introduces justifies its being referred to, even loosely and inaccurately, as a “Constitution”. In particular, neither the fusion of the three so-called pillars of the European Union, nor the incorporation, in Part II of the new Treaty, of articles from the present European Charter of Fundamental Rights, can be deemed to be of “constitutional” import.
Other changes include adjustments of the powers of the European institutions and of the sphere of Community competences. All the previous revisions of the Treaty of Rome introduced changes of this kind, and even further-reaching ones.
There still remains the problem of the decision-making process within the European Community, and particularly that of the Council’s reaching of decisions by unanimity or by a qualified majority, a problem that ought to have been solved in order to prevent paralysis of the decision-making process following the Union’s enlargement to twenty-five members and also in order to set the European Union definitively on the road towards constitutional / federalist forms of integration. With regard to this problem, we can recall that the Italian government, during its presidency of the EU in the second half of 2003, failed in its efforts to find a solution acceptable to Spain and Poland (among others), which were concerned with protecting their national interests.
The current system derives from the Nice Treaty, modified by the Act of Adhesion which came into force on May 1st, 2004. In around 50 situations (all relating to key areas), it allows only unanimous decisions, i.e., that require the consensus of all twenty-five member states. For decisions that can be taken by a qualified majority, the current rules require the reaching of a given quota of weighted votes. This weighted voting system has been present since the very start of the European Community and in a Community made up of a small number of members, it was a logical solution. With each subsequent enlargement of the Community, the weighting of the votes was adjusted to take the new states into account, but the system itself remained the same. In today’s 25-member Union, it has become difficult to manage. One need only consider the fact that the so-called blocking minority, that is the number of votes required to block a decision that must be taken by a qualified majority, can currently be reached by three large states in alliance with one small state, including Malta, and that this combination is all that it takes to block a decision by the Council on which all the other twenty-one states are in agreement.
The need to eliminate the weighted voting system upon the enlargement of the EU to twenty-five members and to replace it with a simpler, more efficient system had been evident for a long time. Indeed, this would have been an important — possibly the only important — innovation introduced by the new Treaty.
Instead, the Treaty establishing the so-called Constitution for Europe, has, in twenty-five cases, retained the unanimity requirement in relation to decisions in areas of capital importance — for example, fiscal, social, foreign and security policy, cohesion (i.e., structural aid), justice and internal affairs —, thus limiting the chances of progressing towards deeper forms of integration in these fields. As regards cases in which provision is made for decisions by a qualified majority, the original text — not approved — of the Draft Treaty stated that the system of weighted voting would be eliminated as from November 1st, 2009, after which date any decision by a qualified majority would have to be based on its ratification by the majority (currently thirteen out of the twenty-five states), providing this majority represented at least 60 per cent of the total population of the EU. Although this formula would not have improved the decision-making process that much, it would have rendered it more simple. However, it generated the insurmountable objections of Spain and Poland, to which I alluded earlier.
More negotiations followed. In order to placate the objectors (in view of the need to approve the new Treaty unanimously), the formula ultimately included was completely different (even though 1st November 2009 was kept as the date for its application), and, as a result, muddled and complex. Indeed, the new Treaty states that “a qualified majority shall be defined as at least 55 per cent of the other members of the Council, representing member states comprising at least 65 per cent of the population of the participating member states”. Thus, as long as the EU continues to have twenty-five members, the agreement of fifteen states will be required (and not 14 as in the case of the 55 per cent formula). The threshold of the total EU population was increased to 65 per cent to satisfy Spain and Poland. To complicate the decision-making process further, a document has, with the agreement of the member states, been annexed to the new Treaty. This document states that if a number of members of the Council representing the number of member states (or the population threshold) needed to constitute a blocking minority indicate their opposition to the Council’s reaching of a decision by a qualified majority, the Council will do all it can, “within a reasonable time and without prejudicing obligatory time limits laid down by Union law”, to reach a satisfactory solution that takes into account the concerns of the aforesaid members of the Council. This is a contorted way of saying that a substantial level of unanimity will still have to be sought.
It seems highly unlikely that these rules, moreover not applicable until November 1st, 2009, will help to increase the decision-making efficiency of a Union that already has twenty-five members and appears destined to grow, and thereby prevent its machinery from seizing up altogether. In the meantime, the current system, imperfect by definition (given the recognition of the need to change it) will continue to be employed.
With regard to the other question, that of the democratic deficit, which I mentioned earlier, the new Treaty does not even tackle this problem: as we have seen, this deficit can only be eliminated through the attribution of legislative powers to the European Parliament (or through the direct election of the Council, which currently holds these powers), in short, through a federal solution of the kind none of the member states currently appears to favour.
In this framework, the choice of the term “Constitution” for the new Treaty emerges as particularly unfortunate. It is not a Constitution because it does not have the necessary requisites, either in form (drafting by a democratically elected constituent assembly), or substance (failure to make provision, in the constitution, for democratically elected legislative bodies). The term “Constitution” will serve only to alarm and distance still further from the European cause the electors in some countries, such as the United Kingdom, that plan to put the question of their ratification of the Treaty to popular referendum. The fact is, there can exist states without a constitution, but not a constitution without a state. Given that the European Union is not remotely comparable to a federal state, to talk of “Constitution”, in reference to what is nothing more than a fifth revision of the Treaty of Rome, is simply to stir up pernicious confusion and to generate expectations or fears (depending on the point of view) that are totally without justification.
Europe at a Crossroads.
In spite of all these observations, it will nevertheless be a good thing if the new Treaty is ratified and comes into force, as it will (like the previous modifying Treaties) result in certain sorely-needed improvements, of a mainly technical nature, to the current situation. In Italy, it falls to the President of the Republic to ratify the Treaty, and he is authorized in this task by the Parliament, through a special law. This law authorizing this ratification by the President also contains the implementation order needed for the subsequent incorporation of the Treaty into Italian law (art. 80 of the Italian Constitution). This was the procedure adopted for the Treaty of Rome and for subsequent modifications of the same. No provision is made for referenda either on the Parliament’s authorization of the President’s ratification of international treaties, or on possible repeals of the laws that allow such authorizations (art. 70 of the Italian Constitution). On just one occasion, through a special Constitutional law (n. 2 of April 3rd 1989), provision was made for the proclamation of a referendum of orientation in relation to the conferring of a constituent mandate on the European Parliament, on the occasion the 1989 European Parliamentary elections. Were we now, once again, hypothetically, to consider a similar initiative, that is, a referendum of orientation, it would be essential to focus attention on one question, simple but that encapsulated the challenges currently faced by the process of European integration with regard to its progress towards a political Europe. I will begin by attempting to formulate this question, and then briefly consider its implications: “Do the citizens of Italy wish the Italian state to renounce its sovereign prerogatives in matters relating to foreign, security and economic policy, and to confer these prerogatives on a European Union that, in this way, would become a federal state, or do the citizens of Italy wish to renounce the possibility of a truly European foreign, security and economic policy, leaving the European Union, as a result, to concentrate on exclusively economic forms of integration along the lines of a strengthened customs union?”
Let me explain this question better. The first alternative is clear: if one genuinely wants a single foreign, security and economic policy, and thus a political Europe, it follows that in these three spheres the states wishing to follow this course (which, in all probability, would be far fewer in number than the current twenty-five) would have to renounce their national sovereignty and transfer it to a new entity that would be responsible, through a democratically elected body, for making decisions in these areas. One may call this entity by many different names, but substantially it would be a federal state. The other alternative is for Europe consciously to give up the possibility of a single foreign, security and economic policy and concentrate, instead, on the forms of economic integration that have to date, enjoyed success, and that would probably grant the prospect of economic progress and peace to a much larger area of Europe, which could easily be extended to include yet more states (Turkey, Russia, Israel, Morocco, etc.).
But going beyond Community rhetoric and the effusive tones of the Preamble to the Treaty, the signing of which Italy hosted, these are the real terms of the problem. Each of the alternatives presented has its rationale: the important thing is to define correctly what, in each case, this rationale is, and not to claim that this new Treaty gives us either a true Constitution, or the true unitary foreign, security and economic policies that there have to be if we are to be able to talk of a political Europe. A referendum of orientation on these questions would not weaken Italy’s support for a Treaty to whose negotiation it has made such a huge contribution, but it would serve to establish whether there exist the conditions that might allow our country to set itself more ambitious objectives with regard to its policy on Europe, in the full awareness of what the new Treaty effectively gives us, and above all, of that from which it distances us: the dream of a federal Europe, the inspiration of the founding fathers of the Community of Six, the dream of a political Europe, the “European dream” tout court, which does not necessarily coincide with the “American dream”.
Let us return, then, to the federal hypothesis. Clearly, if hypothesizing a federal future was impossible when the European Community numbered fifteen states (because of the considerable divergences between its members and the radical opposition on the part of the United Kingdom), the question cannot even be put to the European Union’s newest members: these are countries that are enjoying freedoms and liberties too long denied them, and which they certainly would not be willing to jeopardize in the name of a European Federation. In fact, they are countries in which, on the contrary, strong nationalistic tendencies are now emerging. Thus, it is only within the ambit of a small number of states that efforts to found a European federation have any hope of success, that is within the ambit of a “hard core” of states that ultimately comes down to the six countries that first began the process of European integration. I am talking about a European federation that is a vital and active member of a European Union that might eventually and without reservations be enlarged to include yet more states, i.e., a federation within the confederation; a federation that all the states of the Union would be free, subsequently, to join and that would thus serve as a magnet, attracting all those states that share its ideals. This is exactly what happened at the start of the EEC, which all the EFTA states, including the United Kingdom, progressively joined. On the basis of this precedent, it is easy to predict that, if Europe’s founding states can find within themselves the courage needed to take the initiative and form the first federal core, then gradually all, or almost all, the states of the Union will follow their example and join as well. In this way, the Union will become a solid and economically well-governed political reality, founded on popular sovereignty, and a leading actor on the world political stage.
* This paper was delivered at the convention “Dopo il trattato costituzionale. La questione dell’Europa politica” held in Milan on January 31st 2005 and organized by the regional committee of former Italian parliamentarians, the Lombardy branch of ANCI, and the Lombardy headquarters of the AEDE and MFE.
