Bread and Circus: The State of European Union

4 Colum. J. Eur. L. 223 (1998)

J.H.H. Weiler. Manley Hudson Professor of Law and Jean Monmet Chair, Harvard University.

The European Union is set to inaugurate Economic and Monetary Union and, almost simultaneously, the recently concluded Treaty of Amsterdam is to come into force. The combination of these two events is emblematic—exquisitely so- of the Janus-like state of European Union.

Even a surface examination of these two events yields interesting and contrasting reflections. The importance of Economic and Monetary Union-the subject of this symposium-is self-evident and obviates the need for lengthy discussion. Whilst there is still debate about the economic wisdom of EMU, there is broad consensus, by friend and foe alike, concerning the political monumentality of the move. “There is no serious government without a currency and no serious currency without a government”-is a catchy phrase coined during the recent British debate on EMU. It has more than a grain of truth to it. The Euroskeptics who coined it had, of course, one meaning in mind: A serious (British) government would not and should not relinquish a national currency and concomitant monetary and macroeconomic autonomy; likewise, those interested in a serious currency should not have as its custodian the non- government of the Union. But all coins, including the euro, have two sides. Could the advent of EMU not simply be a sign that the locus of serious governance has already shifted? Could the advent of EMU not, more credibly, be seen as an event reflective rather than constitutive of the advanced stage and inexorable dynamics of European Union?

Amsterdam is another matter. The general public would be hard pressed to remember the Amsterdam Summit and the existence of a pending Amsterdam Treaty. Even in the Financial Thmes–the only European “daily”–the Summit barely made the front page on the day after. And the Summit’s most memorable moment (if there was any at all) was not some great speech or even an old-fashioned political eruption, or conflict or deadlock. Surely it was the splendidly photogenic bicycle ride down the cobbled alleys of medieval Amsterdam. One should not, of course, make the mistake of Margaret Thatcher after the conclusion of the Single European Act. “A modest achievement” she said of that treaty which effectively buried the debilitating 1996 Luxembourg Compromise, confirmed majority voting in most major dimensions of the Community and consecrated the Single Market. So even though the Treaty of Amsterdam conspicuously failed to address, let alone resolve, the most pressing items on its official agenda such as weighting of Council votes and recasting Member State “representation” in the Commission, the Treaty was hugely important for that very fact, i.e., for what was not decided.

It was an Intergovernmental Conference which, arguably, should never have started: review was, admittedly, dictated by the Maastricht Treaty. But, unlike the objective of a Single Market which gave momentum to the Single European Act, and Economic and Monetary Union which drove Maastricht, there was, this time, no mobilizing force behind the exercise. There was also a conspicuous lack of leadership. Despite a very professional IGC Task Force, the Commission as a whole was devoid of ideas, ideals and vision.

It was, too, an Intergovernmental Conference which should never have ended. The Dutch Presidency, in an appalling display of political shortsightedness, was determined to conclude the IGC there and then. This was a technocratic blunder. There were simply too many open agenda items to be discussed and negotiated seriously in the ludicrously short time available at a summit. Leaving the hard issues to the end, setting deadlines and negotiating into the night may have been in the past the ingredients for success on some notable occasions. But you cannot use yesterday’s negotiating technology in a Community of fifteen with an increasingly complex agenda. Dutch diplomacy ended up simply greasing the race to the bottom: an inconclusive treaty leaving all hard issues for tomorrow.   One clear lesson of the Amsterdam debacle is to end the practice of IGCs as the sole means for revision and adaptation of Treaty provisions. Treaty amendment is akin to constitutional amendment in the Member States and should be treated similarly. The Member States do not convene full-blown constitutional conventions each time they wish to amend their respective constitutions. Until the Treaty amendment provisions can themselves be amended, the Union, respecting the letter of the law, would be well advised to have a permanent IGC in session with small batches of amendments submitted for approval to the regular summits.

Terminating the IGC in Amsterdam was more than a tactical blunder. It was a potentially dangerous strategic gamble. Amsterdam failed to achieve its single most important objective: restructuring of European governance in anticipation of pending enlargement. A resolute Commission would have built a coalition to extend the conference and, risking crisis, block enlargement until consensus could be found on the key institutional and constitutional issues which a Union of eighteen or twenty or twenty-five requires. After all, only those who dare win. Instead, in the crucial battle to deepen before widening, the towel was thrown in. The Commission, never short of catchy names and phony deadlines is, under the title Agenda 2000, to lead, yet again, an enlargement cycle with no fundamental changes to the Union’s institutional and constitutional architecture. Maybe just as the economic and functional logic of the Single Market conditioned the institutional changes brought by the Single European Act, the Commission is gambling that the equally compelling economic and functional logic of EMU will render the eventual difficult institutional changes. The stakes are high since consensus, required for Treaty amendment, will become ever more difficult as the Union enlarges. And yet, the one thing that has become clear in the wake of Amsterdam is that Enlargement is to proceed.

There is a telling aspect to this-the lack of public debate on Enlargement. Maybe one should not be surprised. The official line, after all, is clear and compelling: Europe has a moral and historical duty to integrate the new East European democracies into the Union. Failure to do so, it is said, may undermine the long term stability of these states and that of the Continent as a whole. If you were to follow official statements and the bombast of Heads of State and Foreign Ministers it seems as if the only questions concerning Enlargement are practical-i.e., the order of accession (who will enter first) and the timetable. And yet, comer any politician or Union official beyond the reach of the media, and you will be privy to a very different Enlargement discourse characterized by uncertainty, prevarication, and sometimes even hostility.   Why the whispering? Because it has become taboo to raise any question concerning the principle of Enlargement itself and now the Amsterdam Treaty has put an end to that would-be debate, forever it seems.

And yet, this discrepancy between the official rhetoric and undercurrent concern is bad for the civic life of the Union. Enlargement, especially of the magnitude envisioned now, is of huge consequence-no less than, say, EMU or any other fundamental Union policy. Now, it appears, it will just “happen,” incrementally, bit by bit, with a deus ex mach/na inevitability.

Will it work? You could have thought that Enlargement should be legitimated in the European public forum if it is to be successful. But who knows with a public which seems to accept all if there is enough butter on the bread. The taboos on debate are also bad for the Enlargement process itself. Repressed objections and repressed hesitations will work their way through protracted negotiations and delays, souring the atmosphere and creating chagrin and disappointment among the candidates.

It would be too easy to throw all blame for Amsterdam on the Commission and the hapless Dutch. France, with two heads, effectively had none. Kohl, abject prisoner of his domestic difficulties, undercut the French and a lot more besides. Blair, with Clintonesque flair, proclaimed his everlasting commitment to Europe whilst adopting positions which even Mrs. Thatcher would approve. Spain, seduced by a German promise to be in the first round of EMU (as if this really depended on the Germans) became a tail to the lions instead of leading the pack of middle-range European foxes. But the explanation should go deeper still. Amsterdam represents the end of a certain road-an operating system that was put in place at the inception of the Community, that served well a Community of six, reasonably well the Community of nine, somewhat less so the Community of ten, twelve and fifteen, and that will become increasingly dysfunctional as the numbers continue to grow. Whatever their individual
aspirations and commitments, heads of states and government understood, with the bitter memories of the post-Maastricht debate- in mind, that they were operating in a public climate that was increasingly suspicious, skeptical and even hostile to further structural moves of integration. There is not exactly dancing in the streets at the advent of the euro. It has been accepted by many as an inevitable necessity and as a sign of the inexorable onward march of integration.

The advent of EMU is, indeed, a landmark in the progress of European integration, but the resignation accompanying it reflected in the minimalist Treaty of Amsterdam is also a sign of deep-seated popular affective angst and a simmering legitimacy crisis.