Feb 7, 2011

The Flexible Union: Rethinking Constitutionalism

In times of uncertainty, argues Almut Möller, people and governments want clarity. This desire stretches to the EU too, and there have been demands for a greater sense of finalité and purpose in its constitutional setup. But with this pressure, one of the major assets of the European integration project will be threatened: its capacity for adaptation. If those great fans of sui-generism and open-ended finalité, the Founding Fathers, were still around, how would they secure the European Union’s flexibility?

Adaptability is a major asset

The Community of six was founded in the 1950s to overcome the antagonism of Europe’s nation states. Without a master plan and without the comfort of a precedent, the Community started off with the courageous approach of pooling sovereignty and creating institutions jointly administered by its members. And it brought sustainable peace to a war-ridden continent.

From the very beginning, different philosophies about the objective of the integration project made it nigh on impossible to conceive a fully-fledged institutional setup. But this conceptual openness later became one of the major strengths of the European institutional experiment. Its inconclusive finalité turned out to be both a necessity and an asset. The member states kept in their hands the power to change and to transform the system when and where they agreed it was necessary.

Adaptability has been part of the Union’s DNA and provided the basis for major achievements over the last decades: the member states were able to respond to growing demands in foreign and security policy as well as home affairs by establishing new modes of cooperation with the Maastricht Treaty. By adapting the institutional and procedural makeup in a series of difficult treaty reforms in the 1990s, the Union has managed to integrate 12 countries and to work with almost twice the number of members. The constitutional innovations crafted within the Union provided for answers to the Cold War and the new post-Cold War era. It was not easy. Moreover, it is becoming harder. The Union is now challenged to provide answers to the unknowns of globalisation.

But today, member states fear the open-ended finalité, which previously proved such a boon. And they are nervous about the prospect of any new round of treaty reform because the European Union has become notorious for its constitutional deadlocks. The painful intergovernmental conferences of Amsterdam and Nice; the agony of the draft constitutional treaty and its eventual failure; the lukewarm second attempt ratified eventually as the “Lisbon Treaty” – they all have reduced the appetite of the Union’s governments for treaty change.

The Lisbon drama discredited the positive notion of treaty change as a means of institutional innovation. Its ratification after three negative referendums carries the stigma of having been pushed through against the popular vote. Treaty change has become associated with disrespect for democracy and with new powers transferred to the Union’s institutions which governments and citizens across Europe are increasingly rejecting. Right now, the political climate for adaptability could hardly be worse.

Yet, current events show that adaptability is just what is required. The Euro crisis has put the integration project per se into doubt. It has urgently revealed the need for the Union to once again adapt its rules and procedures, only one year into the signing of the Lisbon Treaty. And one can be sure there will be more adaptations needed in the future. How can these opposing trends be reconciled?

Flexibility through constitutionalism?

In order to preserve the Union’s adaptability, governments have always put great emphasis on treaty reform. As the Union is by nature a community of law, amending the treaties has so far been the key to adapting the system. The first major overhaul of the treaties was adopted with the European Single Act in 1986. But over successive treaty reforms – Maastricht, Amsterdam and Nice – the members realized the limitations of Intergovernmental Conferences (IGCs), the tool used for treaty reform. With the Lisbon Treaty, they therefore provided for new treaty-revision procedures.

These new procedures include: the possibility of the European Council amending Part III of the Lisbon Treaty, so long as the decision does not lead to a shift of competencies (Art. 48(6) TEU); a “general passerelle” that allows the European Council to shift voting requirements from unanimity to qualified-majority voting (QMV) in certain areas, or to decide to adapt a decision-making procedure from a special procedure to the ordinary legislative procedure (Art. 48(7) TEU); and a number of specific passerelle or passerelle-type provisions throughout the Lisbon Treaty. However, all of these provisions require a unanimous vote in the European Council, meaning that vetoes by individual member states are possible and may slow down the pace of change and adaptation.

Indeed, despite these innovations, the Lisbon experience has turned treaty change into a highly politicized issue. Governments played down the need to reform the Union’s currency regime in late 2010, suggesting it only needed a limited amendment that did not require referendums in member states.

This low-key approach illustrates why the – in some ways remarkably successful – European Convention is unlikely to be re-convened any time soon. Within 18 months, the Convention drafted a comprehensive constitutional document, and the forum was widely considered as a more efficient and transparent revision procedure compared to the IGC model. Even though this method is formally laid down in the Lisbon Treaty, it is very unlikely in the current political climate that governments will embark on a new, substantive treaty round of the kind that would trigger a Convention. Such a defensive approach to treaty change does not leave much breathing space for institutional ideas, let alone change.

Of course, the option of simplified treaty change laid down at Lisbon was not the first effort formally to open scope for adaptability. Over the years, a growing number of forms of “flexible” or “differentiated” integration have been permitted under the treaties. EU governments adopted formats such as enhanced cooperation and permanent structured cooperation to allow groups of member states to move ahead in a respective field, provided a number of criteria are met and the group remains open to stragglers. It has not been a wild success. Enhanced cooperation was created at Amsterdam in 1997 and since then was only applied once to the relatively niche area of divorce law in 2010. Permanent structured cooperation was only adopted with the Lisbon Treaty and there are still many open questions concerning member states’ commitment to make it work as well as to details of its implementation.

In short, in the EU of 27 it has become very difficult to adopt treaty amendments and to steer them through ratification. Member states are therefore likely to avoid anything but the lightest of constitutional changes and will instead stretch the Lisbon Treaty provisions to their limits. Yet, the forms of flexible action permitted under the Treaty are not just unwieldy but unpopular. Governments, Commission and Parliament all have reservations about the prospect of an “acquis différencié”. Constitutional law alone cannot provide the Union with the flexibility it needs.

Soft law: Conducive to healthy flexibility

“Hard” forms of flexibility of the kind sketched above have thus become ever more difficult to exploit. Happily, “softer” arrangements such as the open methods of coordination (OMCs) offer an alternative. Yet, these too entail drawbacks. The Union’s hard constitutional framework provides the background for the 27 member states to interact in a formalised and predictable manner under a common umbrella. A steadily expanding Union faced with growing centrifugal forces and internal pressures depends to a great extent on a solid legal foundation. Constitutionalism serves as glue. In practice, softer forms of cooperation have undermined the Union’s legal coherence as well as its efficiency.

The OMCs illustrate the point. Applied since 2000 in a disparate range of areas in which hard law was not available, they have failed to achieve their potential – indeed, have rather become table-filling exercises for European and national administrations without a real impact. In principle, the informal OMC approach should help overcome member states’ resistance to hard legislation while responding to an agreed and growing demand of coordination and learning. But at the same time it almost seems as if an overall discomfort about experimenting with flexible instruments has prevented the Union and its members from setting up OMCs that are sufficiently clear with regard to their respective objectives, procedures and results.

Successful OMCs will probably be even harder to set up than successful hard measures, and should not be seen as a political shortcut. Yet, for member states under pressure to take action and without the time to do the usual laborious groundwork of formal cooperation, this is precisely what they have become. The potential costs of lazy soft arrangements – fragmentation, a lack of clarity and even ineffectiveness – may pall into insignificance when member states feel the need to cooperate at speed. More drastically, member governments might even favour informal arrangements outside the treaties to the Union’s constitutional rules and cumbersome soft tools. With 2005’s Prüm Treaty (so-called Schengen-II) and the recent defence deal between France and the UK, groups of member countries are already concluding deals outside the Treaties. If this trend continues, it could have a major impact on the future role of the Union’s constitutional law. As the number of informal or extra-EU agreements grows, the constitutional identity of the Union as a “Rechtsgemeinschaft” (community of law) alters.

A political climate that nourishes flexibility

With both its hard and soft tools apparently misfiring, it sounds as if the EU has reached something of a dead-end. But that is only because of the focus of the analysis so far: what counts is not the rules themselves, but the spirit in which they are exercised. The EU may be a “Rechtsgemeinschaft” – a characteristic that accession countries learn the hard way –, but the Union is more than a mere set of rules. It is a political project. And if the political backing for the Union is missing it is hard to imagine its legal order succeeding. Neither formal nor informal rules alone can guarantee the future adaptability of the Union. The flexible Union requires a political climate that allows for and nourishes adaptability. How can the member states get there in the current political constellation that is characterized by a new level of mistrust and the temptation to return to the nation-state?

Political action in the Union cannot function without trust and good faith between governments. It is a truism, certainly; but one which the 27 governments seem to disregard. Yet, this spirit of trust and good faith is particularly necessary for flexible solutions to function well: without it, flexible solutions will simply be exploited as an easy shortcut where bad faith and dissent would otherwise block consensus – or indeed they will not be used at all. In order to rediscover the Union’s capacity for flexibility, governments therefore need to work on improving these underlying political conditions.

Firstly, the member governments should view the flexible forms of political cooperation available to them from a different perspective. Governments have most often used formats such as OMCs or extra-Treaty cooperation where disagreement between governments and hostility from publics make other, more formal action difficult; or, in the case of enhanced cooperation, governments used it to threaten unwilling member states. That is a misuse. These flexible solutions should instead be exploited when these are better suited to the policy challenges at hand than more formal EU formats. In other words, these tools should be used less in response to difficulties within the Brussels bubble, and more as an enrichment of the EU’s policy repertoire when dealing with policy challenges on the ground. How, for example, can OMCs be used imaginatively as an alternative to hard law where formal harmonisation would have deleterious side-effects? Under what circumstances can cooperation outside the scope of the treaties (à la Schengen-I) or enhanced cooperation actually add to the common good in a way that EU-wide means cannot?

Secondly, with greater trust and faith between them, the Union and its members should also be able to overcome their fear of using flexible formats such as enhanced cooperation and permanent structured cooperation. After all, the EU’s failure to make use of such tools often lies in member governments’ fear that these would encourage permanently exclusive clubs and a Union of insiders and outsiders. With such fears allayed, the governments would instead be able to concentrate on more strategic questions related to these formats, such as how to employ them without jeopardising the clarity and coherence of the EU. After all, the “acquis différencié” has already become more of a reality than it is widely assumed.

Thirdly, when seeking to innovate further forms of flexibility, the member states must free themselves from the taboos that have plagued past institutional reforms. This means resisting the temptation to pursue intergovernmentalist or “Community” solutions because of a sentimental attachment to one or the other and a misplaced idea that one necessarily means more nation-state and the other more Europe. That also means acknowledging that institutional change can often best achieve flexibility not by reducing the scope for disgruntled parties to block decision-making (shifts to QMV, for example) but by building the political spirit behind cooperation. More thought should be given as to how institutional change can create a feeling of trust and mutual responsibility between member states.
Above all, to show a sign of the vitality of the Union, Europeans must be ambitious again and cultivate the Union’s character as a laboratory for post-modern state solutions. As the Founding Fathers would surely recognise: the Union of tomorrow will only thrive under a flow of futuristic ideas.

Almut Möller is a political analyst based in Berlin. She is the head of the Alfred von Oppenheim Center for European Policy Studies at the German Council on Foreign Relations (DGAP).