What Unity Is For

Abstract

The introduction recalls the origins of the European Union and the tensions that existed from the beginning between confederal and federal approaches to integration. The Russian invasion of Ukraine reminds us why European unity matters. The chapter summarises the work of the Convention on the Future of Europe which led, after setbacks, to the Treaty of Lisbon.

The Russian invasion of Ukraine is the starkest possible reminder of why European unity matters. The crisis shakes the European Union out of any complacency that its historic mission of “creating an ever closer union among the peoples of Europe” is already accomplished.¹ The EU has for too long been weak on the world stage and uncertainly governed at home. In the short term, President Putin may have galvanised solidarity among the Europeans but unity in the longer term cannot be taken for granted. Nationalist forces within Europe still oppose further integration. The future of the Union—its size, shape, competence and type of governance—is hotly contested. How the EU copes with the challenges it faces will be central to the future of the whole continent of Europe, and will dominate it.

It must be obvious, except to rabid nationalists of the British variety, that if the EU had not been in existence for over seventy years, something quite like it would be rapidly invented. Some believe that Europe can be organised as a straightforward confederation and run by diplomatic ways and means between consenting national governments. Others hope a united Europe can be a federation, with a supranational government created up above the level of the old nation-states, but coordinate with them.² That was the inspiration of Jean Monnet who in 1950 marshalled Robert Schuman and others into taking a binding step that, they hoped, would lead “to the realisation of the first concrete foundation of a European federation indispensable to the preservation of peace”.³

There was to be no linear progression, of course, from the European Coal and Steel Community to a complete federal union. Federalists were countered by the strong reaction of national governments which, while conceding the need for increased coordination between the states, nonetheless wished to preserve as much of their own sovereign powers as possible. At times, the confederal idea prevailed over the federal. Even where lip service has been paid to the goal of integration, confederal methods have usually been preferred by the governments of the member states represented in the Council. Conservatives have believed that a European confederation is a safer bet than the federal alternative. Eurosceptics want the EU to remain an alliance or league of states that come together for limited but specific purposes. According to the confederal thesis, national sovereignty is loaned to the joint endeavour only on the basis of international, not supranational, law. Citizenship remains with the states. National governments and their parliaments retain the right of veto on confederal activities, as well as the right to leave as they choose. Confederate solidarity against foreign threats remains negotiable. As eurosceptics are condemned to discover, however, and just as James Madison warned, confederations are difficult to run.

Federations are also difficult to run, but in a different way. Europe conceived as a federal union is a durable covenant based on pooled sovereignty, with a broad range of conferred competences and capable democratic institutions. A federation implies a solid collective defence against external threats. A federal state acquires a power of general competence subject only to the constraints of a constitution. Citizenship is federal. A member state should leave the federation only on terms agreed. In making arrangements for its own domestic constitution, a member state should have regard for the parameters of the federal constitution to which it adheres. Federal arrangements are in a constant quandary about how centralised they should be, putting the federal government in constant flux. An important federal principle is subsidiarity whereby decisions are taken and implemented in a decentralised manner subject only to the overall common purpose.

It took a series of economic, political and security crises, as well as new horizons raised by enlarging the membership of the European Union, for the objective of continual convergence to become accepted as the norm. But what we find is that while the EU succeeds in its internal market, trade and competition policies, it fails in macroeconomic policy and in foreign policy, security and defence. While the Union has no general competence, it enjoys some crucial exclusive competences and many other competences that are shared irrevocably between it and its member states. But the EU’s central government is weak and lacks full democratic legitimacy. Its constitutional treaties, the basic law, are deficient. A full seventy years since its foundation, the EU is still a hybrid organisation, a historical muddle, prone to controversy and liable to instability. And it may be in danger of losing sight of what European unity is for.

Writing in 2014, Henry Kissinger, then as now a hopeful admirer of the European Union, called it “a hybrid, constitutionally something between a state and a confederation, operating through ministerial meetings and a common bureaucracy—more like the Holy Roman Empire than the Europe of the nineteenth century” [Kissinger p. 92]. Another critic well-disposed to the EU describes the EU as a system of “semi-federalism” [Pagden p. 49]. Some find virtue in this half-state-like nature of the Union: others, including me, regret that our emerging polity is poised uneasily between one thing and another.

Political scientists debate theoretically about the complex character of the European Union in a vast literature which is, alas, incomprehensible to the general reader and, in our view, more or less unhelpful to the practitioners of European integration. In this revisionist book, we are less concerned, therefore, to intervene in scholarly dialogue between neo-intergovernmentalists and post-functionalists. Clearly, the days are over when Europe’s integration progressed by dint of functional spillover from one technical dossier to the next. Neither is integration today the result merely of the political will of the member states, even if expressed through supranational institutions. Based on empirical evidence, we suggest that integration is shaped by many forces at different levels of European society and some powerful external influences. The future of the EU seems best understood and explained as an emerging federal union in which the contest between federalists and their nationalist opponents is the predominant factor and essential driving force.

A revival of federal studies, therefore, would be of the greatest practical benefit to Europe’s lawmakers, policy thinkers and public servants [Burgess; Montani; Fabbrini; Pagden]. Understanding the federal paradigm comes naturally to lawyers and business folk who have learned how to operate successfully within the large single market, as well as to workers, students, tourists and pensioners who enjoy the fruits of freedom of movement. Politicians who still stand out against the European project are looking increasingly marginalised and reactionary. EU citizens seem gradually to be awakening to the potential of their new polity. They see the EU’s relevance to tackling climate change. They assume that the Union contributes to collective defence against Russian irredentism as well as Islamist terrorism. In the coronavirus pandemic, people looked instinctively to the Union to act regardless of questions of legal competence. Treating the Union as a practical federal concept, and having faith in it politically, should be how Europe lives. It is axiomatic that the more democratic the Union gets to be, the closer it will come to fulfilling its potential.

The Convention and After

Twenty years ago, a Convention on the Future of Europe was summoned under the chairmanship of former French President Valéry Giscard d’Estaing to try to sort out the constitutional muddle. I was a member of the Convention, in the federalist camp. Against us were nationalists of different hues, led by the British contingent, some more overt than others. Many who came to the Convention, especially those representing national parliaments, needed a crash course in the current state of the Union—to learn, that is, how far integration had advanced in recent years when they had not been paying much attention. The imminence of the big enlargement of the Union, due to take place in 2004, with the attendant risks new member states might pose to the acquis communautaire served to concentrate minds wonderfully. Giscard, ever subtle, knew he needed both the federalist and nationalist camps on board if the Convention was to succeed [Duff 2005; Norman].

After a lot of work, the Convention colluded in drafting a new constitutional treaty which was eventually accepted in most particulars by the European Council. It was, of course, a classic European compromise, laced with ambiguity: the federalists could welcome its permissive character and the potential it gave for the EU to continue to develop towards an ever closer union; the nationalists took comfort in those clauses of a prohibitive type that provided brakes that could (and would) be applied to the federal project [Piris 2006]. Nevertheless, had it entered into force, the Constitutional Treaty of 2004 would have rationalised the conferral of competences, made law making more democratic and clarified to a large extent where power lay. The treaty did not establish a federal union, but it pushed integration in the federal direction to such an extent that the UK greatly disliked it. Then in 2005, a referendum in France killed the project—ironically on the grounds that, at least as far as the French left was concerned, it seemed too British.

Two years later, after a considerable hiatus in which some of the more ‘constitutional’ elements of the Giscard treaty were ditched, a new compromise treaty was signed. The Treaty of Lisbon suffered the indignity of a first referendum defeat in Ireland and was then challenged in various constitutional courts before it could eventually enter into force on 1 November 2009. Although its genesis was troubled, the Lisbon treaty has undoubted merit [Duff 2009]. But the British were still not satisfied and, in 2016, they decided to leave the Union altogether, taking advantage of one of Lisbon’s new clauses which allows a member state to secede in a more or less orderly fashion [Stephens; Duff 2022].⁴

Brexit aside, however, the EU has still not exploited the Treaty of Lisbon to the full. In particular, Lisbon installed a number of bridging clauses or passerelles, which permit the EU to move its decision-making further in the federal direction.⁵ These remain unused. And where sensible options are permitted under Lisbon—for example, to turn the European Commission into a streamlined executive—the status quo has been preferred.⁶ Other innovations, such as the procedure for electing the Commission president, intended to make the governance of the Union more democratic, have been bungled.⁷ A new mechanism to enforce the rule of law across the bloc has been mishandled.⁸ And provisions—‘enhanced cooperation’—allowing a federally minded group of member states to move forward further and faster than others have seldom even been attempted.⁹

Two major crises that then befell the Union—the financial crash in 2008–2009 and the migration surge in 2015–2016—were managed pragmatically but did not lead to radical change. The EU is good at patching things up but tends to promise more than it delivers. Efforts to develop a common foreign and security policy have been frustrated. Some of the newer member states are challenging the values on which the Union is founded. Enlargement of the bloc to include new members has ground to a halt. Certain national parliaments, alleging breaches of the treaty-based principle of subsidiarity, are tempted to claw back powers from the European Parliament.¹⁰ The Commission vies with the Council for control of the executive, so that nobody, at home or abroad, really knows who is in charge. Press reports from Brussels are peppered with the language of crisis.

So the muddle persists and governance of the EU remains in flux. New and unexpected challenges come thick and fast while old problems lie unresolved. The question arises, therefore, about whether the European Union can continue to be governed so ineptly or whether a new push for constitutional reform is now needed. In 2021, the three political institutions of the EU just about managed to agree to set up a Conference on the Future of Europe involving certain citizens, chosen at random, in an elaborate exercise of consultation and deliberation. The Conference, which we discuss more in Chap. 9, concluded its business on 9 May 2022. The European Parliament and France’s President Macron now argue for a new bout of treaty revision.

This book looks at the reforms needed of each institution if the Union is to fulfil its federal promise. We will make some recommendations for the constitutional amendment of the Union in the light of the deliberations of the Conference. As the COVID-19 pandemic begins to recede, the prospect of major economic reform advances. Russia’s attack on Ukraine, meanwhile, has galvanised the EU into an unprecedented level of integration in the security field. While it is entirely possible that such unity may only be short-lived, the long-term structural problems of the Union will continue. It is these, and remedies for them, that we discuss in the following chapters. To draw the story together, we recommend that another Convention is called to work towards a revised EU treaty in time for 2029, the 50th anniversary of the first direct election by universal suffrage of the European Parliament.