REFORM AND ENLARGEMENT
The summit of The Hague in 1969 and its famous slogan ‘completion, deepening and widening’ indicates that the member states which – through Intergovernmental Conferences and the European Council – take decisions on constitutional reforms as well as enlargement consider these two dynamic processes as mutually reinforcing and hence not as exclusive. At the beginning of the 1970s the EC set out to complete agricultural policy, deepen political integration and enlarge to northern EFTA countries, taking in the UK as a new member state. Ever since then the Community/EU has confi rmed its belief in a smooth relationship between further constitutionalization towards an ‘ever deeper Union’ (Article 1 TEU and Article 48 TEU) and growth in membership (Article 49 TEU).
When it comes to causal factors, enlargement has never been suffi cient to trigger treaty revisions or to fundamentally reshape policies and decision- making rules in the Union. A far more complex constellation of actors, interests and challenges is needed to boost deepening of the EU. So my main thesis is that enlargement is rather an incentive and opportunity to push forward the deepening and refi ning of the constitutional order of the EU through piece-meal reforms. This is often tried in anticipation but mostly done in retrospect after enlargement has already taken place, accepting the risk of sub-optimal and inadequate solutions. The reform project, however, has to coincide with other factors that refl ect essential interests and preferences of the member states. Prospects for constitutional reform and policy development were regularly considered when the Community was confronted with applications for membership or while already negotiating with candidates. Governments of the member states usually act and decide on the accession of new members without a clear picture of the effects on the constitution and policies of the EU and its functioning. The growing complexity of the acquis has considerably increased the problem of impact assessment. Given the fact that we do not know an optimal size of the EU, and given the normative decision of the Union to be principally open to European states that fulfi l membership criteria (Article 49 EU Treaty, formerly 237 EC Treaty, now even explicitly in Art. I (2), I-58 TCE), the EU’s
approach towards enlargement remained basically reactive and pragmatic (European Commission, 1992). The Community aims at controlling effects on the existing state of integration and resorts to protective measures (for example through the terms laid down in the Accession treaties and the doctrine of full application of the acquis on behalf of the newcomers).
Interestingly, enlargement was never accepted as an argument to slow down constitutional or policy development and freeze the acquis. The so-called Copenhagen criteria for membership also concerned the EU and its ‘capacity to absorb new members, while maintaining the momentum of European integration’ (European Council, 1993, point 7). So on the contrary, at least some member states, the Commission and the European Parliament are interested in using the momentum of enlargement for boosting deepening and policy development. They refer to enlargement as a challenge to improve the effi ciency, the capacity to act, and the legitimacy of the EU. Against this background the impact of enlargement on the constitutional order, namely institutions, and policies of the EC/EU will be reconsidered.
One can easily see that in terms of timing the two processes of enlargement and treaty reform do not run in sync. This observation is backed up by the simple fact that in the history of the Community, enlargement came fi rst. The fi rst and second rounds (1973 and 1981) took place without a signifi cant revision of the treaties of Rome. The changes in the institutional confi guration, of policies and tasks during the next rounds of enlargement were widely interpreted as an adaptation and extrapolation of the given constitutional order and the set of institutions and structures. A path- dependent evolution of the institutional system of the EU prevails (Nugent, 2003). However, in the run-up to the fi fth enlargement, the enlargement towards the East and the Eastern Mediterranean in 2004, the argument was put forward that – at last – it was high time for a radical reform of the institutions and procedures of the EU. Otherwise the EU of 25 member states would have to function on the basis of the institutional architecture of the EC6 and probably collapse (European Commission, 1997a, pp. 5–6;
Dehaene et al., 1999; Redmond and Rosenthal, 1998, p. 4).
Looking at the relationship between enlargement and treaty reform from the fi rst enlargement in 1973 up to the present, we get the following broad picture. Even without treaty revisions in the period covering the northern and the fi rst southern enlargement of 1981 important changes occurred with respect to three central categories of constitutionalization: governance, legitimacy and policies (see Appendix). Shortly after the accession of the UK, Denmark and Ireland the European Council was formally established in 1974 and started to meet on a regular basis. This purely intergovernmental institution – originally outside the treaties but gradually incorporated – became the umbrella and top steering and decision-making institution for
all activities, not only with regard to deepening and widening. The fi rst direct elections of members of the European Parliament in 1979 can be regarded as some sort of supranational counterweight. Neither institutional innovation was induced by enlargement but by the demand for a relance of European integration (after the empty chair crisis and de Gaulle’s refusal of British membership in the 1960s) and a fulfi lment of a long-standing political goal.
However, the accession of the UK affected the political balance in the EC.
Also smaller countries saw advantages in having a formalized exchange between the heads of state and government in the European Council instead of the emergence of an implicit directoire.
The creation of the system of own resources and a renewed budgetary procedure (starting in 1970) went hand in hand with the new albeit politically less visible institution, the Court of Auditors established in 1975. Moreover, even before the three Northern countries joined the EC it had extended its competencies to new policies such as fi sheries. The fi rst enlargement involved the creation of a modest regional policy which should also parallel plans for an economic and monetary union and increase transfers from the EU budget to the UK (Preston, 1997, p. 139). In 1975 the ERDF was established using Article 308 EC-T (then Article 235) as the legal basis to further an objective not covered by a specifi c treaty article. The Werner Plan for a monetary union and the more restricted project of a European Monetary System (EMS) were also launched in response to external challenges such as the breakdown of the system of Bretton Woods, the oil price crisis and the end of détente in the second half of the 1970s. The accession of the UK – a permanent member in the Security Council of the United Nations and a country with strategic foreign policy interests and outlook – improved the basis for the EC9 to play a more substantial role in international politics and reinforced attempts to coordinate foreign policy in the Community framework. So in the 1970s, new members and institutional players as well as new policy areas came into the realm of the Community without a formal revision of the treaties. The proliferation of policy studies such as the reports of Tindemans in 19751 and of the Dooge Committee on institutional affairs (1985), as well as political initiatives such as that of Genscher and Colombo (1981/82),2 and the White Paper on the internal market (European Commission, 1985) all signalled the mounting pressure for reform of EC governance and policies (Bengel et al., 1983). A strengthening of the European Council and a reform of the decision-making system towards more majority voting were key proposals.
The reforms of 1986 had a long incubation period and produced their own momentum, to which the second southern enlargement was successfully linked. In terms of timing and substance this round of enlargement coincided with the fi rst big reform of the treaties of Rome of 1957, the
Single European Act (SEA) in 1986. It is widely acknowledged that the SEA, which brought together the treaty changes, depended on a conjunction of events of which the expansion of membership was only one element (Keohane and Hoffmann, 1991, p. 25). Other factors which point at the complexity of constellation and the need to fi nd a package solution were the agreement on the rebate for the UK, a legacy of the fi rst round of enlargement which had paralysed EU decision making for some years. The agreement of Fontainebleau in 1984 to introduce compensatory payments for the UK allowed progress with regard to other imminent projects. In order to meet the challenge of increased competition with countries of Asia and the USA and in order to reinvigorate the sluggish European economy, the Commission proposed the completion of the single market up to 1992 on the basis of an indicative programme. Policy development (completion of the four freedoms) should complement the reform of EC governance.
A package was agreed upon that could transcend cleavages between intergovernmentalists and supporters of a stronger community method/
communitarization. So, even the sovereignty-minded British government under Prime Minister Thatcher supported the introduction of Qualifi ed Majority Voting (even if limited to areas concerning the internal market) and of the cooperation procedure which also involves a stronger engagement of the European Parliament in law making. Other constitutional changes through the SEA were the right of assent of the European Parliament to the accession of new members and also to association agreements, the legal recognition of the European Council and the stronger institutionalization of EPC which was put on a legal basis and which should become more operational through a small secretariat in Brussels. Moreover, a new Court of fi rst instance was established to cope with a growing workload and growth in membership. Directly related to enlargement were provisions in the Single European Act on economic and social cohesion (new title V in EC-T) which was also mirrored in the budget. Other new policies such as environment or research and technology were seen as fl anking policies but also held a signal for closeness to the EC citizens. To fi nance both the new policies and also enlargement, the SEA was linked to the fi rst ever agreement on a multi-annual fi nancial perspective for the EC, the so-called Delors I package for the years 1988 up to 1992. Interestingly, this reform package – SEA, completion of the internal market and Delors I – was driven by diverse preferences of the member states’ governments but by a clear economic programme and neoliberal ideology. The approach of economic deregulation was paralleled by the strengthening of distributive politics, so that negative and positive integration (structural/cohesion policy) were combined in a comprehensive political project initiated and chaired by the European Commission and supported by the big member states. Thus signifi cant
expansion of the spending on structural policy was due to bargains over a wider agenda (including constitutional reform). Moreover, structural funds developed as a reservoir for side payments in order to facilitate broader compromise and buy off reluctant players. For example this was the case with the introduction of an Integrated Mediterranean Programme for Italy, Greece and France before the second Southern enlargement.
As a follow-up to the Single European Act and against the background of the momentous German unifi cation, two IGCs – on European monetary union and on political union (1990/91) – were called in. They agreed on the establishment of a European Union as part of the so-called Maastricht Treaty. Reforms concerned both governance and policies and again the treaty revision was followed by an agreement on a seven-year fi nancial perspective for the EU (1993–99), the so-called Delors II package. Innovations such as the introduction of the co-decision procedure, the extension of qualifi ed majority voting, the formal acknowledgement of the principle of subsidiarity, the creation of a committee of the regions and of an ombudsman were only in a very general way linked to the prospect that the Community would more than double its original membership. The schedule for a staged introduction of a single currency, a major step in the history of European integration, as well as the establishment of the second and third pillars of the EU, for Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA), took up projects such as the European Political Community and the European Defence Community of the early 1950s or the Schengen agreement of the 1980s. So we observe a functional spill-over and widening of tasks and competencies of the EC. The introduction of the cohesion fund in 1993 was directly linked to the two Southern enlargements. For the poorer member states which have to cope with the challenges of the single market and the strict criteria for the monetary union all at the same time special payments were earmarked for the improvement of infrastructure and the environment. The opt-out for the countries of the fi rst northern enlargement of parts of Justice and Home Affairs and the British opt- out of the social policy, however, indicated the wide range and spread of interests in the EU12. Heterogeneity of preferences as well as of basic orientations towards European integration increased with every round of enlargement. Already the fi rst enlargement set off a debate (Dahrendorf in 1973,3 Brandt in 1974;4 the Tindemans report of 1975) on differentiation in the governance of the EU and discussed concepts such as l’Europe à la carte,
‘abgestufte Integration’ (Scharrer, 1984) or multi-speed Europe. However, steps towards a permanent differentiation among the willing and able were rejected (Grabitz, 1984; Wallace, 1985).
The IGC of Maastricht did not succeed in updating the European Union to the challenges and new constellations after the end of the cold
war. Moreover, the ensuing problems in ratifying the Maastricht Treaty in some member states (such as Denmark, France and Germany) slowed down ambitions for further deepening. The European Parliament initially threatened to withdraw its assent to enlargement without prior reform of the institutions and decision-making procedures. But the EU decided to start negotiations with the four EFTA countries (originally also Norway) even before the ratifi cation of the Maastricht Treaty was completed albeit after having ratifi ed the Delors II package. The smooth enlargement of 1995 added three net payers that were already closely integrated into the internal market. It increased reform pressure because of the unsatisfactory depth of reforms in the Maastricht Treaty as far as the political union was concerned. In order to make up with EFTA enlargement and in anticipation of the impending and big eastern enlargement, ‘enlargement’
became the rationale for the next IGC 1996/97 (Sedelmeier, 2000, p. 223;
Dinan, 1998, p. 36). However, exactly those problems which the EU15 intended to solve in order to be prepared for enlargement to the East were again postponed to a next IGC that should take place before accession of new members. The ‘leftovers of Amsterdam’ concerned the reweighting of votes in the Council, the size and composition of the Commission (the size of the European Parliament), and the extension of majority voting to new areas as well as the extension of the co-decision procedure. The most memorable change in the governance of the European Union connected with the Amsterdam Treaty was the introduction of enhanced cooperation and the incorporation of the Schengen acquis as core provisions of a novel Area of Freedom, Security and Justice. The need to have an inbuilt possibility of differentiation in an ever bigger and more complex European Union was acknowledged. Including the TCE, provisions on enhanced cooperation have always been designed as a last resort. They are neither foreseen as a standard procedure to cope with diversity nor as a means to establish a community of concentric circles around a core group of member states (Schäuble and Lamers, 1994; Wallace and Wallace, 1995; Fischer, 2000). Its key purpose is to circumvent veto positions and to give a group of avant-garde states the opportunity to stimulate further integration and open up new policy fi elds.
Adaptation and reform of policies, namely of the CAP and structural policy, that were possible without treaty reform were de-coupled from the IGC of Amsterdam and dealt with under the so-called ‘Agenda 2000’. It also contained proposals for a fi nancial perspective that covered the period 2000–2006 and hypothetically took into account enlargement of the EU in 2002. The political link between the treaty reforms of Amsterdam and Nice and Agenda 2000 (which was tabled in 1997, agreed only in 1999 and adapted to the accession negotiations in 2002) was far looser than in the case
of the SEA. However, initially, in the mid-1990s the EU had the ambition to accommodate constitutional and political reforms and enlargement in a coherent strategy. Agenda 2000 (European Commission, 1997a; 1997b) was the fi rst attempt at a comprehensive analysis of the implications of enlargement for the EU institutions and in particular its policies and the budget. The aim of the Commission was to control the process and to get a grip on probable effects of enlargement, so that widening would not take over while reforms were lagging behind. The Commission was concerned that the process of enlargement would get carried away (European Commission, 1997a, p. 5), and rightly so. Adherents of deepening before widening, such as Belgium, France and Italy, who attached a declaration on the necessary strengthening of the institutions in view of enlargement to the Amsterdam Treaty, were unable to make substantial reforms a precondition for enlargement and so used enlargement as a leverage for reforms. Adherents of widening and deepening, mainly Germany, shied away from a rigid linkage between the processes because they came to realize that there was no solid majority inside the EU for enlargement, not to speak of a consensus on burden sharing and depth of reforms. The EU had committed itself to start negotiations with Cyprus and Malta six months after the end of the IGC of Amsterdam. Given the haphazard rate of institutional reforms under the Amsterdam and Nice summits on treaty reforms, enlargement was moving in the fast lane. The slogan ‘erosion or integration’ (Fischer, 2000) echoed concerns as to whether the EU after a big bang enlargement that was now scheduled for 2004 would be capable of governing a Union of 25 effectively. In his speech at Humboldt University German Foreign Minister Fischer outlined his idea that ‘enlargement will render imperative a fundamental reform of European institutions’ (Fischer, 2000) and the vision of a European federation of nation-states, while PM Blair insisted on a ‘superpower, but not a superstate’ at the Polish stock exchange (Blair, 2000).
The restricted agenda of the IGC 2000 was focused on the leftovers of Amsterdam mentioned above which concerned the balance of power between big, and between small and big member states. The principle of the equality of sovereign states and the principle of representative government and democratic representation had to be balanced in a new defi nition of the qualifi ed majority. Moreover, for the fi rst time in the history of European integration the parity between Germany and France in the Council was at stake and led to serious confl icts between the two countries. At the summit in Nice, an – albeit inconsistent – shift of power from the small to the bigger member states was agreed upon by reweighting of votes in the Council. A new formula defi ned qualifi ed majority as a majority of states,