Keynote Article - Princeton University

Keynote Article - Princeton University

Volume Journal of Common Market Studies 36, Annual Review September 1998 Keynote Article: Federal Ideals and Constitutional Realities in the Treaty...

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Volume

Journal of Common Market Studies

36, Annual Review September 1998

Keynote Article: Federal Ideals and Constitutional Realities in the Treaty of Amsterdam* ANDREW KALYPSO

MORAVCSIK and NICOLAiDIS

Harvard University

I. Introduction

The IntergovernmentalConference(IGC) that producedthe Treaty of Amsterdam was from the start a negotiation in search of a purpose. Large-scale negotiationsin EU history - from the Treaty of Rome to Maastricht - have usually centredon a major substantiveagenda,normally either tradeliberalization or exchange-ratestabilization, with secondaryissues and institutional changesdraggedin its wake. In the Amsterdam IGC, by contrast,therewas no compelling reasonto negotiatetheseparticularissuesat this particulartime. The MemberStatesconsideredno major expansionsin EU competencesandignored core economic concernsalmost entirely. With their primary focus clearly on managingthe transition to EMU, they wereextremely cautious,seekingabove all not to provoke domesticdebatesthat might upsetthis goal. In contrastto the Maastricht negotiations, where German unification, the Gulf War, and the impendingdissolution of Yugoslavia appearedto give someurgencyto foreign policy co-operation, no such crisis had such an impact on the Amsterdam discussions. * For comments on this paper we should like to thank Youri Devuyst, Nigel Evans, Philip Gordon, Christopher Hill, Simon Hix, Kathleen McNamara, Hugo Pa&men, John Peterson, Michel Petite, JO Shaw, Helen Wallace, and participants in seminars at Harvard University, Princeton University, and the 1998 Conference of Europeanists in Baltimore, Maryland (USA). 8 Biackwell

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The Amsterdam IGC arose instead out of three considerations. First, in the Maastricht Treaty the more federalist governments, notably that of Germany, had been promised rapid reconsideration of the political union issues on which no agreement could be reached. The unfinished business of Maastricht included the need to revisit Pillar II, on Common Foreign and Security Policy and, to a lesser extent, Pillar III on Justice and Home Affairs. Second, the national debates following the Danish and French referendums on the Maastricht Treaty, as well as the accession of Scandinavian countries, led to widespread calls to redress the ‘democratic deficit’. Bringing Europe ‘closer to its citizens’ -increased powers for the European Parliament and a desire to upgrade Community competences from human rights to employment policy-became a core aim of the new Treaty. Third, in 1993 European chief executives officially endorsed negotiations on an EU enlargement to countries in central and eastern Europe. By raising the prospect of eventually doubling EU membership, they called into question existing EU decision-making procedures. It was agreed that decision-making would eventually have to become more efficient. In addition, larger governments sought a series of modest adjustments to institutional structure, notably a reweighting of votes and integration of the Schengen arrangement into the EU, in advance of enlargement. After appearing in successive European Council communiques, these goals were summarized in the 1995 report of the intergovernmental Reflection Group chaired by Carlos Westendorp enlisted to frame the conference agenda (Ludlow, 1997a). Given its lack of a single, clear substantive focus, it is no surprise that Amsterdam, more than any Treaty of Rome revision since 1957, became a melting pot of disparate measures lacking coherent vision of either substantive co-operation in a particular area or the future institutional structure of Europe. Given the lack of clear positive-sum gains, institutional reform tended to get bogged down in zero-sum bargaining between large and small states, or more and less federalist ones. Those elements of the agenda above that commanded consensus - such as some institutional reform to facilitate enlargement or perhaps co-operation on immigration and policing - were not very precise and, above all, not pressing, particularly by comparison to EMU. Governments could easily put them off and did so. Hence the Amsterdam Treaty neither introduces major new Community competences (symbolic proposals on employment aside) nor significantly deepens co-operation in existing substantive fields. Its provisions for institutional reform-with the exception of an expansion of parliamentary co-decision - are modest. The division of the EU into three institutional ‘pillars’, the second and third of which remain mired in the grey area between pure intergovernmental decision-making under unanimity and the distinctive ‘Community system’ of exclusive Commission initiative, qualified majority voting in the Council of Ministers, amendment by the European Parliament, and

oversight by the European Court of Justice. With the acquiescence, even the advocacy, of even the most federalist governments, the Amsterdam Treaty introduced practices long considered anathema to those who support European integration, such as formal multi-track (nearly ‘h la carte’) institutions in which some can move ahead without others, highly differentiated decision-making procedures, and legal versions of the Luxembourg Compromise. Most assessments of the Treaty tend, therefore, to be highly critical. Lamberto Dini, Italian Foreign Minister, recalled: ‘The long night of Amsterdam closed on a note of bitter disappointment. We would not be honest with ourselves or with the others if we did not admit this’ (Dini, 1997, p. xxvii). Press commentators remained resolutely unimpressed by the results, with their assessment ‘ranging from muted to sceptic’ (Bertram, 1997, p. 64). To be sure, the German Government and the Commission Task Force initially attempted to present results as a success that realized the Commission’s expectations in many areas; but insofar as this was correct, it reflected in large part the extent to which the Commission ‘expectations’ had backed away from its initial proposals for ‘drastic institutional reform’ (CEC, 1997; Duff, 1997a, p. xxx; Hoyer, 1997). In any case, a pessimistic - or, as one federalist commentator put it, ‘realistic’ assessment soon reasserted itself (Duff ,1997, p. xxx). European Parliament reports called elements of the Treaty ‘disastrous’ and ‘missed historical opportunities’; they ‘constitute a significant reduction in democratic legitimacy’. In particular the Parliament ‘deplores that the CFSP will continue to be the result of the lowest common denominator between Member States, thus largely depending on the political will of each’, while ‘voicing its dismay at the outcome . . . in the area of free movement of peoples and the third pillar’. Provisions for flexibility ‘are in blatant contradiction with the Community spirit and constitute a regrettable precedent’ (European Parliament, 1997, pp. 15, 23, 38, 8, 74). Subsequently the Vice-President of the Commission criticized the outcome as ‘more than disappointing . . . disastrous’ (van Miert, 1998). Gloomy scholars and analysts echo dispirited policy-makers and journalists. Three long-time policy analysts speak of a ‘comprehensive failure ofinstitutional reform [and] of political leadership’ with ‘serious political consequences’. ‘Heads of government’, they conclude, ‘have totally failed in their self-appointed task’ (Crossick et al, 1997, pp. 1-Q). Some political scientists catalogue myriad ‘output failures’ (Wessels, 1997, pp. 4,lO). (Wessels’ language is, it is fair to note, more loaded than his analysis. He rejects any comparisons to an ‘optimal model’.) Philip Allot speaks for international lawyers horrified by the legal non-uniformity of the results: ‘The Amsterdam Treaty will mean the coexistence of dozens of different legal and economic sub-systems over the next ten years, a sort of nightmare resurrection of the Holy Roman Empire...’ (cited

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in Shaw, 1998,p. 11; also Walker 1998)A leading French federalist calls the outcome ‘miserable’ and ‘catastrophic’ (Bourlanges,1997). Were currentfailures not badenough,theso-called‘bicycle theory’ predicts that failure to restorethe momentum quickly will, as one prominent former Commissionerputs it, ‘place at seriousrisk much of what hasbeenachievedin the last 40 years’ (Sutherland,1997,p. 31). Otherspredict that ‘the EU cannot afford the repetition of a protractedprocessof intergovernmentalnegotiation followed by theanti-climax of negativepolitical conclusionsdrawnat theendof the day’ without people losing faith in integration (EuropeanPolicy Centre, 1997,Conclusion;also JorgensenandChristiansen,1997).A seasonedscholar of EU politics assertsthat ‘it is urgentto recreatethe global political cohesionof the Union characterizedby fragmentedsectorial policies, vision, and powers, andby different andevenincompatible decision-makingprocesses’(Sidjanski, forthcoming, ChapterVI, p. 11).A British federalistseeksto ‘shock the citizen out of complacencyabout how Europe is governed’ so as to assurethat ‘the Amsterdam IGC will have beenthe last of its kind’ (Duff, 1997a,p. xxxviii). In this articlewe seekto draw a more balancedassessmentof the significance andsuccessof theAmsterdamTreaty-issues of theoryandexplanationaredealt with elsewhere(Moravcsik and Nicolai’dis, forthcoming). Our central contention is thatthe nearwidespreadnegativeassessmentof the outcomeis misleading, not becausetheresultshavebeenunderestimated,but becausethe standard againstwhich they arejudged is unrealistic.Most criticisms of the Amsterdam Treaty implicitly or explicitly reflect a teleologicalunderstandingof European integrationasmoving inexorably, if at an unevenpace,towardgreatersubstantive scope,universal participation by expandingnumbersof participants,and greateruniformity in the application of institutional and legal procedures.This is the only future for Europe and if Europe doesnot maintain the momentum toward its, so goesthe ‘bicycle theory’, it is doomedto slip back, endangering current achievements. This view, we argue,is dated.Europeis enteringa phasetoday(perhapsit has beentherefor sometime) wherethis venerablefederalistvision of anexpanding, undifferentiated,and uniform Europe - constantincreasesin the substantive scopeof co-operation,adherenceto a undifferentiatedinstitutional orderacross issues,andco-operationonly if andwheregovernmentscanparticipateuniformly - seemsless compelling to Member State leaders,elites and publics. The teleological ideal - a ‘United Statesof Europe’ characterizedby centralized, uniform, universalandundifferentiatedinstitutions-is no longeran appropriate standard(if it everwas one) by which to judge further stepstoward integration. Even a visionary leaderlike JacquesDelors now renouncessucha goal: ‘There will neverbe a United Statesof Europe’, he statedrecently, ‘I refuseto identify myself with thosewho promotethe disappearanceof the nation-state. . . I seek

insteada federationamong strongnation-states’(Delors, 1996).Governments continueto move forward towardscentralizedfederalinstitutions in someareas - notably EMU -but seekpragmatic,flexible solutions in areaswhere the lack of negativeexternalitiesrendersdecentralizedpolicy-making a workable solution. This more measuredattitude is not the result of a lack of ‘political will’ or ‘vision’ -vague, analytically unhelpful phrasesgenerallyemployedto designate a generalmood of rising nationalism or public scepticism toward the EU, the domesticpolitical weaknessof national leaders,the disappearanceof geopolitical threatsresultingfrom Germanunification andtherecedingCold War, or the passingof thewartime generation.It reflects insteadthe lack of compelling and compatiblesubstantivenational interestsin deeper,more uniform co-operation in areaslike socialpolicy, cultural andeducationpolicy, taxation,foreign policy, andeven- thoughheretherearesomewhatgreaterincentives- environmental policy, consumer regulation, immigration, asylum, and policing. Moreover, governmentsnow seek to balance decision-making efficiency with greater accountabilityand expandedmembership.The problem in Europetoday is not thatgovernmentshavelost the ability to move forward strongly toward federalism when they acknowledge clear (generally economic) objectives - say, constructa single market, elaboratea common agricultural policy, establish a single currency,or participatein a multilateral tradenegotiation.This is clear from recentmovementtowardsEMU. It is insteadthe absenceof clear substantive interestsin doing so in new areassufficient to justify substantialsacrifices of sovereignty. We are witnessing not a resurgenceof nationalism but a diminution (or levelling off) of national interest. Judgedby the standardsof thepolitically possible,not thefederalistideal, the Amsterdam Treaty appearsinstead as a creative adaptation to new, more sophisticated,more differentiated and, in many areas,more modest national demands.The ability of the Amsterdam negotiatorsto accommodateshifting concernsdemonstratestheflexibility andresponsiveness of EU institutions.This suggeststhat in the future Europeangovernmentswill spendless time seeking to expandthe traditional institutions to new substantiveareasand increasingly focus on determiningwhat type of institutions andwhat scopeof participation areappropriateto particularissuesandcircumstances.The resulting debateswill be less substantiveand more constitutional. Governmentswill ask - and be forcedto justify-the preciselevel of centralization,uniformity, andscopeof cooperation in particular issue areas. Such constitutional debateswill not be resolvedby the application of a single ‘Community method’, but insteadby a balancing of competing philosophical and pragmatic claims for the pre-eminenceof democracy,universality, uniformity, and efficiency. Future debates will reflectsupportfor a morepragmatic,balancedevolution. Farfrom being ‘the

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last of its kind’, the Amsterdam Treaty is the harbinger of a new, more constitutionally self-consciousfuture for Europe. II. General Institutional Reform and New Competences Shifting the Balance between Large and Small: A Reweighted Council and a Streamlined Commission

At Amsterdam, largerMember Statescalled for are-weightingof nationalvotes in the EU’s primary legislative body, the Council of Ministers. With EU enlargementssince 1957,theinstitutional over-representationof smaller countries hadgrown progressivelymorepronounced.In anEU of 26, somecalculated, a qualified majority could be achieved with the support of government representingonly 48 per cent of the EU population; evensome smaller states concededthat suchan outcomemight be viewed asillegitimate. Yet appealsto principle could not hide theessentiallydistributive natureof theconflict. At the Extraordinary Summit at Noordwijk, two weeks before Amsterdam, negotiations on Council reform hadbecameanexercisein puredistributional bargaining between larger and smaller states.Calculatorsin handand tablesfrom the Commission and the Dutch Presidencyby their side, negotiatorsassessedand reassessed the impact of competingformulae on their country’srole in potential blockingalliancesunderdifferentenlargementscenarios. Two proposalsfor reweightingCouncil voteswereconsidered:anincreasein therelativeweight of the five largeststates(Britain, France,Germany,Italy, and Spain) and a ‘dual majority’ voting system in which decisionsmust achievea fixed percentageof weighted votes and votes from statesrepresentingsome percentage(also generally 60 per cent) of EU population. Smaller states supportedthe dual majority system,which would increasethe ability of larger statesto block legislation without diluting their own veto, but this was rejected by theFrench,becauseit would for thefirst time grantGermanymorevotesthan France.Germany,seekingnot to embarrassitself or France,sat on thefence- a symbolic setback- while other governmentsadvancedspecialdemands.Since smallerstateslost out from a reweighting,no matterhow it wasstructured,it was proposedto offset changesin the Council by streamlining the Commission limiting the number of Commissionersto one per country. This proposalwas presentedasa meansof renderingthe Commission more efficient after enlargement,when the number of Commissionerswould expandto 30 or more, but in fact was a quidpro quo to smallerstates.Matters werecomplicatedevenfurther whentheSpanishannouncedthatif theylost asecondCommissioner,theywould no longerbewilling to acceptfewer Council votes(eight ratherthanten)thanthe other large countries, and the Netherlands,despite its presidential role as an 0 Blackwell

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‘honestbroker’, demandedgreaterrepresentationthan Greeceand Belgium, eachwith a population50 per centsmaller. A Frenchproposalto streamlinethe Commission to around a dozen memberswas a non-starteramong the small states- who felt that their Commissioner was an indispensableconduit for information. Many in any casefelt that France was either bluffing or sought therebyto reducethe Commission to a conventionalsecretariat. Had the large statesreally wanted an agreement,surely they could have attainedoneduring the last few weeks.Yet Chancellor Kohl, concernedabout domesticratification of EMU, proposedthatthe statusquobe maintainedfor the time being and, alongwith PresidentChirac - one former headof government reports -quietly encouragedthe Dutch presidency to postpone agreement. Despitelast-minutewrangling, theTreaty postponesreform to a subsequentIGC with two caveats: first, a new comprehensivereview must takeplaceat leastone yearbeforeEU membershipexceeds20; and,at Spanishinsistence,therewould be one Commissioner per country at the date of the first enlargement, if agreementhad beenreachedon the re-weighting of votes in the Council. The significanceof the failure to reachagreementon institutional reform is easyto exaggerate.Internal Commission studies show that results in Council votesof the prior threeyearswould haveremainedunchangedunderany of the reweightingformulae -though this doesnot take accountof the possibility that some decisionsare taken ‘in the shadow’ of the vote. As far as Commission reform is concerned,internal reorganizationand consolidationappearsto be a much more significant determinantof efficiency thanthe number of Commissionersper se. After all, many national governments(not least the French), function coherentlywith alargernumberof ministers.It is alsounlikely-despite Commission efforts to generatea senseof urgency with this claim - that stalematejeopardizesthe timing of enlargementby requiring that yet another IGC would have to be held to settle institutional reform before the EU exceeds 20 members. As one top Commission negotiator remarked afterwards, the outlines of the likely agreementwere so clear to the participants that at some futuredateit could benegotiated‘in 24hours’; theproblembeingsimply to select theoptimal domesticpolitical momentto do so.Finally, while governmentswere concernedaboveall to avoid the impressionof symbolic failure, they remained concernedto avoid any domesticratification controversythatmight threatenthe transitionto EMU -a far more important andimmediate priority for all member governments,not least that of Germany. ‘Enhanced Co-operation

‘: How Flexible should the EU be ?

If Maastricht enshrinedthe notion that reluctant statescannot be forced into action,Amsterdampursuedtheallegedlycomplementarynotion:reluctantstates cannotstopothersfrom employing EU institutions to pursueactionsthey favour. (8 Blackwell

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As oneparticipantput it, ‘In Maastrichtwe took careof the rights of the minority - to opt out; in Amsterdam, we took careof the rights of the majority’. In the Reflection Group, all governmentsacceptedsome form of ‘flexibility’ clause permitting a majority of statesto moveforward without necessarilyincluding all. The motive force behind the shift in Europeanorthodoxy reflected not the oppositionof Eurosceptics,but the conversionof relatively federaliststateslike France and Germany, who soughta meansof bypassingreluctant stateslike Britain or potential laggardsin the eastand south.This ideawas introducedin the CDU/CSU paper preparedby Wolfgang Schauble and Karl Lamers in September1994,then taken up in an ambitious France-Germanproposal. Broadly speaking, the Member States split into two groups - probable membersof a federalcoreandprobablecandidatesfor exclusion-each of which sought an arrangementthat afforded its members the greatest freedom of manoeuvrewhile restricting the strategicoptions of the others.Leaving aside specific provisions for foreign policy, governmentsconsideredthreeaspectsof flexibility: the procedurefor invoking it, the scope of its application, and provisions for the participation of excluded states.On invoking flexibility, Britain, supportedby Greece,Denmark, Swedenand Ireland (and,to a lesser extentSpainandPortugal)insistedon veto rights overany flexible arrangement - a position FranceandGermanyresisted.The resultingcompromise,proposed by Britain andcloser to its position, permitted a qualified majority to establish flexible arrangementsbut with a veto possible ‘for important . . . reasonsof national policy’ - echoing the terms of the much maligned Luxembourg Compromise.On scope,therewas a consensusthat the formal flexibility clause ought not to threatenthe acquis communautaire,with the result it can only be employed, among other conditions, outside areas of exclusive Community competence;whereexisting programmesarenot affectedyet within currentEU powers,whereit doesnot discriminateamongEU nationals,andwheretradeand competition remainedunimpeded.Even on a narrow interpretation,thesecuveats probablyprecludemuch meaningfulco-operationoutsidethe third pillar. On the accessionof newparticipants,potentialoutsiderssoughtguaranteesthatthey could opt in at any time, provided they undertookthe commitments. The last minute replacementof a Council vote by a Commission assessmentof the suitability of new membersrepresenteda significant victory for the potential ‘outs’. Redressing the Democratic Deficit? Parliamentary Powers and Unemployment

Perhapsthe most surprising result of the Amsterdam IGC was an increasein parliamentary co-decision. Maastricht had introduced a new EU legislative procedure- ‘co-decision’-in which theParliamentandCouncil negotiatedface0 Blackwell

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to-faceover proposedparliamentaryamendmentsin 15 categoriesof first pillar legislation. At Amsterdam, Member States expandedand reformed the codecisionprocess.They replacedreferencesto theothermajor form of parliamentary involvement, the ‘co-operation’ procedure,in nearly all Pillar I business, excluding EMU -bringing to 38 (after five years40) the total numberof legal categoriessubject to co-decision. Areas like fiscal harmonization and CAP reform remained outside; only proceduresfor consultation applied. The codecision process was reformed, moreover, to remove the (negative) ‘third reading’, which had previously given the Council a final opportunity to pass legislation by QMV in the caseof a failure to reachan agreementin conciliation betweentheCouncil andParliament,subjectonly to vetoby anabsolutemajority vote of the Parliament.At the end of the legislative process,the Parliamentwas now on equal footing with the Council; if agreement is not reached, the legislationis dropped.The Parliamentalsogainedaformal rightto approvethenew CommissionPresident,thoughit remainsdifticult for theParliamentto exploitveto powerto compelacceptance of a particularcandidate.Finally, with theencouragementof thenewBritishGovernment,stepsweretakentowardsa uniformproportional representation electoralarrangementfor parliamentaryelections. The central issue at stake in the expansionof parliamentary powers, it is important to remember,is not the balancebetweennational andsupranational authority but the balanceof power among supranationalinstitutions. Leaving asidethe surprisingdecisionto eliminate the third reading,the preciseimplications of which aredisputed,the primary formal impact of expandedco-decision is to transfer influence from the Commission to the Parliament. Co-decision erodestheCommission’s traditional control over the text of proposalsthroughout theEU legislativeprocess.(As long asthetwo institutions agreesubstantively, theremay be a joint gain in influence via increaseddemocratic legitimacy (No&l, 1994, pp. 22-3).) Under co-decision,the Council is able to pass any compromise emergingout of the conciliation procedurewith Parliament by a qualified majority, while the Commissioncould no longer compel a unanimous vote on changesit opposes.Whether the Commission also lost its formal right to withdraw a proposalafterthe conciliation procedureremainsa matterof legal dispute,but exerciseof such a prerogativein the face of a united Council and Parliamentwould surely be politically costly (Nickel, 1998). The Commission did manage,however,to avoid more extreme curtailment of its powers.The GermanGovernment,which hadadvocatedat Maastricht that the Parliamentsharethe Commission’s power of initiative, repeatedlyproposed atAmsterdam thatthe Council be permittedto reviseCommission proposalsby qualified majority vote. This proposal,which would haveseverelycurtailed the latter’s agendacontrol, was acceptableneither to smaller statesnor to the Commission, whose representativeimmediately threatenedto recommend its 0 Blackwell

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resignationen masse (Nickel, 1998).For its part, the Parliamentheld backfrom demanding the power of initiative, knowing that this would trigger similar demandsfrom the Council - perhapsto the disadvantageof supranational institutionsasawhole (Petite,1998).Co-decisionaside(andnotwithstandingthe disputeover tradepolicy competence),therewasgreatersupportamongnational governmentsfor maintaining traditional Commission prerogativesat Amsterdam than had beenthe caseat Maastricht. The increasein parliamentarypoweris particularly striking given themarginal role playedby the Parliamentin the negotiations(Petite,1998).As in the SEA andMaastricht,parliamentaryrepresentativeswere activein early meetingsbut played a marginal role in later deliberations (cf. Moravcsik, 1998c). The expansionof parliamentaryprerogativeswas supportedinsteadprimarily by the successivenational presidenciesand by Germany, which kept co-decision provisions in the negotiating text. Also important were shifts in national positions.Shortly beforeAmsterdamthenew FrenchSocialistgovernment,with ElisabethGuigouasJusticeMinister, pressedstrongly for parliamentarypowers; PresidentChiracacquiescedandwasreportedto remarkto his advisersthatit was anissueof marginal importance.Moreover,the new British governmentof Tony Blair was lessadamantlyopposedthanits predecessor.Elsewhere,given thatthe elimination of the third readingwas not seenasa major shift - given the rarity with which it appearedto influenceactualoutcomes- it seemeda relatively easy concessionto quell democraticsentiment. Council Eficiency:

Major&y

Voting in the First Pillar

The Council of Ministers remainsthe most powerful institution within the EU system of governance;hencereform of the Council through increaseduse of QMV was consideredby the Commission and others as the most significant reform underconsiderationat Amsterdam (Devuyst, 1997,p. 14; Petite, 1998). The Commission, of course,preferreda maximalist solution,namely expansion of QMV to all areas- a proposalgenerallysupportedby the Benelux countries, Italy, andsomenew entrantslike Austria andFinland. (For this, theCommission advancedthe superficially persuasive,if analytically fallacious, argumentthat the probability of a veto would be many millions of times greater with 30 members than with 15. This neglects that the probability that any single governmentwill opposea measureis generallycorrelatedto theprobability that others will do so; Council politics are typically coalitional, not unilateral.) France,too, came to advocateQMV in theseareasafter an internal analysis revealedthat it hadmuch lesschanceof being outvotedthanof seeingdecisions it favouredovercomea potential veto by anotherMember State(Petite, 1998). Neither a Conservativenor a Labour Government in Britain was willing to 0 Blackwell

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contemplateextensionof QMV to social policy (rulesof worker representation andredundancywere proposed),but only to market liberalization. While an attractiveideain principle, generalQMV provedless promising in practice.Of around65Pillar I articlesrequiringunanimity, nearlyhalf concerned monetary and financial issuesand would thereforebecomeobsolete with the transition to EMU. An additional dozenconcernedcore institutional and financial competences,such as structural funding and nominationsto the Commission, on which governmentswere unlikely to favour QMV. (These issues are poised to become more controversial in coming years.) There remained 25 residual regulatoryand single market issues,of which over half were areasin which governmentshadextremereservationstoward extendingQMV - including free movement of peoples,social security, professionalservices, indirect taxation,culture, industrial policy, social policy andemployment. (CEC, 1997; Petite, 1998).On some of theseissues,opposition from Britain and numerous smaller counties might have been surmountedhad it not been for German reticence. Germanscepticismwas not new. Germanyhad enteredinto previous IGCs with strongrhetoricon QMV but long lists of exceptions.In negotiatingtheSEA, Kohl had insisted on the insertion of Art. lOOa granting derogations to governmentswith higherstandardsthanthe Europeannorm - a clausestrengthened in the environmental area at Amsterdam. (If backed by new scientific evidence,governmentsmay derogate,regardlessof their previousvoting record.) Germanyhadsubsequentlybeenoutvotedin theEU Council moreoften thanany other government. In the Amsterdam IGC, this reluctancetook the form of pressureagainstQMV from the Germanunder, which heldexclusive or shared jurisdiction in Germany’s federalsystemin most of the areasunderconsideration. Third pillar issueswere especiallysensitive.Diplomats, including Germany’s chief negotiatorin Brussels,apparentlyexpectedKohl to overridedomestic oppositionatthelastminute in thenameof federalism.Yet the Chancellor,surely with one eyeon theapproachingtransitionto EMU, surprisedall his partnersin thefinal weeksandhoursbeforeAmsterdamby opposingcompromiseproposals for abroadextensionof QMV. Extensionof majority voting to a dozenrelatively insignificant matters- suchascreationof an advisorybody on dataprotection, aid to the outmost regionsof the EU, andR&D, an areagovernedby voluntary participation and(albeitlessandlessovertime)juste retour- fooled no one. One top Commission official termedthe outcome‘meagre’ (Duff, 1997, pp. 155-6). New Competences:

Employment

Symbolically more salient, though substantivelyless significant, was the joint declaration at Amsterdam concerning unemployment in Europe. Unemployment reached11 per cent acrossEurope in 1996. Despite healthy scepticism 0 Blackwell

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concerningthe ability of governmentsto do anything in this domain, publics nonethelessconsideredaction in this areaas a test of EU relevance.The result was a chapteron employment - the only exception to the informal agreement amonggovernmentsnotto considernew substantivecompetencesin theAmsterdam Treaty. Countrieslike FranceandSwedenspokeof this chapteras embryonic ‘economic government’to counterbalancethenew EuropeanCentralBank (ECB)-e.g. the long overduespelling out of Article 103of theMaastrichtEMU provisions- a position opposedby Britain, Germany andthe Netherlands,who watereddowntheprovisions.The Germansflatly refusedto considerlast-minute proposalsby the new FrenchSocialist governmentof Lionel Jospinfor the use of EU fundsfor job creationor research(Duff, 1997,p. 64).The new chapterdoes permit the EuropeanCouncil to issue annual employment policy guidelines, surveillanceof theemploymentpolicies of Member States,andapilot projectof incentive measuresto encourageintergovernmentalco-operation- the latter watereddownto a pilot project.An Employment Committeewascreated.While, as one commentator noted, these ‘cosmetic’ changespermit the EU to ‘do nothingaboutunemploymentit wasnot ableto do beforehand’,at mostthey may provide a basis for eventual efforts to encourageco-operationby ‘shaming’ member governments.Modest changeswere also made in EC environment, consumerprotection, and public health policies. III. Foreign Policy and Home Affairs

Pillars Revisited

The Maastricht Treaty had reinforced co-operation in the two major noneconomicareas-foreign policy (including defence)andhomeaffairs (immigration, asylum, andpolice co-operation).Of the largecountries,suchco-operation was of primary importanceto Germany,which had a far less viable unilateral foreign policy thanFranceor Britain andwas the destinationof well over50 per cent of immigrants to the EU. In addition, immigration, justice, and policing _ were salient and potentially popular electoral issues for Kohl’s centre-right coalition. At Maastricht,France,Britain, andothershad refusedto communitarize thesesensitive areas.Instead,member governmentsagreedto the French proposalthat divided the EU into threepillars. Reform of the secondand third pillars was given a senseof urgencyby the failure to achieve any significant results after the entry into force of the Maastricht Treaty. This failure was much noted by commentatorsdespitethe absenceof objective evidencethat policies would have been different under more centralizedinstitutions. Some mistakenly argued that the Bosnian War would havebeendealtwith differently had CFSP beengiven more institutional backbone- a view largely discreditedby the historical record. A marginally strongercasecanbe madethatco-operationin thethird pillar would bedeepened 0 Blackwell

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by more centralized administration. Yet this, too, is unclear. Bureaucracies remain insular; some governmentsseelittle advantagein co-operation.Still, encouragedby the CommissionspokesmenandongoingGermanconcern,these areas,particularly the third pillar, came to be viewed as naturalareasin which small stepstowarddeeperco-operationcould betakenat amodestpolitical price. The Second Pillar:

Common Foreign and Security Policy

The MaastrichtTreaty hadprovidedfor a Common ForeignandSecurity Policy thatfunctionedthroughclassicalintergovernmentalmeans,thusformalizing the way ‘European Political Co-operation’ had functioned for two decades.At Amsterdam,thegovernmentsconsideredintroducing greaterQMV, flexibility, andbetter administrativesupport,but the gainswere modest.Instead,Amsterdamconfirms theessentiallyintergovernmentalnatureof EU foreign policy, but fine-tunesproceduresin the nameof efficiency. IntroducinggreaterQMV wasthe most significant potentialreform of CFSP consideredat the IGC. The Treaty introduces QMV in the General Affairs Council (where foreign ministers are represented)for ‘joint actions’ and ‘common positions’ implementing ‘common strategies’previously adoptedby unanimity at Europeansummits. Theseterms arenot well definedandmay lead to disagreement.A truly determinedgovernmentcould seekto employ narrow anddetailedinitial delegation-objectives, duration,andpermissiblemeans- to restrict all de facto use of QMV. Still, the generalizedadoption of QMV for second-tierdecisions on implementation shifts the implicit default in such circumstancesand had thus long beenresistedby the UK, France,and Greece. HowevertheTreaty permitsagovernmentto wield a ‘political’ vetoby declaring its oppositionto the adoptionof a decisionby QMV ‘for important and stated reasons’of nationalinterest.In suchcases,the ministers may refer the matter to headsof stateand governmentin the EuropeanCouncil, which then decidesby unanimity. An equally significant innovation lies in a unique flexibility clause introducedinto CFSP. ‘Constructive abstention’ createsthe possibility for a subgroup of Member Statesto conductjoint actionsusing EU institutions with the acquiescencebut not the participation of reluctant Member States.If one-third of the Member Statesabstain,no action is possible.If a group representingless than one-third abstainsfrom a decision,they arenot obliged to apply it but do acceptthat thedecisioncommits the EU asawhole. A subtledifferencefrom the enhancedco-operationclauseof the first pillar was that statesarecalled upon, thoughnot formally obliged, to refrain from any action likely to conflict with or impedeEU action. If this procedure,alreadypart of the implicit functioning of CFSP, hasany impact, it will be becauseit permits dissentingstatesto register their dissentvery visibly, often necessaryfor domesticreasons,without actually B Blackwell

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blocking joint action and retaining the option to opt in later. Non-military actions, moreover,may be funded out of joint funds, regardlessof abstention, thoughoperationsto complete‘Petersbergtasks’ (seebelow) must raisead hoc levies. Constructiveabstentionprovides governmentswith greaterflexibility, thoughit shouldnot be exaggerated.The policy tools that canbe manipulatedin this way are limited; unless abstaining countries actually implemented EU policy, for example, it would be difficult to impose effective sanctions or embargoes. A third areaof potential CFSP reform was centralized administration and leadership.Maastricht had createdan independentsecretariatto overseeCFSP, but thereremaineddiffering views concerninghow to institutionalize collective political leadership.The Commission and the French Government took traditional positions.The Commission pursuedits long-standingdesireto centralize foreign policy-making authority, like authority in so many other areas,in the Commission itself; it criticized the pillar design,noting that it might hampercoordination betweenthe EU economic and diplomatic policies. This proposal gained little support and was never discussedseriously (Petite, 1998). The French, by contrast,sought to empower a senior political figure with a high degreeof independencefrom the Commission. This position, dubbed‘Mr/Ms CFSP’ (or ratherperhapsM/Mme PESC),cynics noted,was likely to beheld by a Frenchman,possibly Valery Giscard d’Estaing. PresidentChirac’s quixotic insistenceon a more political post until the very last hours of the IGC testifies to the high priority attributedby the Frenchside to this issue- perhapsthe only one where a distinctively Frenchproposalhad any chanceof acceptance. Yet this was not to be. Most governmentssoughtto maintain an intergovemmental structure.The result was a ‘lowest common denominator’ compromise of sorts,one that moved only modestly from the statusquo. While denyingthe French ‘Mr/Ms CFSP’, the result reinforced the Anglo-French victory at Maastricht, which had preservedMember State initiative in this area. EU representationfor CFSP would continueto be handledby the rotating presidency, but the SecretaryGeneralof the Council (SG) would centrally administer CFSP andserve,alongsidethe nationalpresidency,as EU envoy andrepresentative of CFSP. The creation of a new Deputy SG would underscorethesenew responsibilities.Critics arguethat this doeslittle more thanauthorizea ‘bureaucrat’ to assumethe post of ‘special envoy’ alreadycreatedby the Maastricht Treaty; defenderspoint to the potential for greater continuity. In the end, something approachingthe French vision is possible only if a substantial majority of governmentsceasesupportingthe appointmentof a national civil servantasSG, asin the past,andturn to a major political figure. Even this might not be enough.The Commission is to be ‘closely associated’;in other words, it canbe invited to participatein discussions.This outcomemarks a clear victory 0 Blackwell

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for the pillar design and, within it, the classically intergovernmentalCouncil Secretariatover the Commission’s more centralized,administratively uniform vision; shortof a radical changein nomination practices,no seriouscompetition to national foreign ministries is likely. Turning lastly to defenceco-operation,we observeonly modestchange.The French spoke of an independentEU defence identity, but advancedso few concreteproposalsthatotherssoonquestionedtheir motives. Insteadthe French, whetherout of commitment or calculation,joined Germanyin an eleventh-hour plan,backedby theotherfour original EC membersandSpain,for a progressive merger betweenthe EU and WEU with an explicit timetable and flexibility provisions. Traditional pro-NATO countries such as Britain and Portugal, scepticslike Greece,andtraditional neutralslike SwedenandIreland remained sceptical; it was an issue on which numerousgovernmentsseemedwilling to impose a veto. The final outcomecameclosestto the scepticalposition held by the neutrals and was not far - particularly when we considerfirm commitments ratherthan rhetoric - from the completely negativeviews advancedby Britain. A protocol called on the EU to draw up proposalsfor closer co-operationwith the WEU within a year,yet the languageis non-committal and preservesa veto; the EU may recommendactionsto the WEU. Governmentsmay discussa three-stage timetable for closerEU/WEU co-operation.EU defencepolicy may not prejudice the specific characterof NATO. The only explicit stepwas the incorporation, following a Swedish-Finnishinitiative, of the so-called ‘Petersbergtasks’ as part of CFSP. Thesetasks,which had becamepart of the WEU mission in 1992,include humanitarianintervention,rescue,peacekeepingand crisis management- all issuesthat are increasing in importance in the post-Cold War world, as the line between ‘crisis management’and more traditional defence operationsis increasinglyblurred.The Nordic countries,along with Ireland and Austria, were the most adamant proponentsof such inclusion, not only for positive reasonsbut also becauseit subtly disguisedtheir opposition to further moves towards a more traditional Europeandefence.For those dedicatedto a European defence identity, Amsterdam was viewed as a straightforward ‘failure’. Finally, while not strictly connectedwith CFSP, anotherforeign policy issue of extreme interest to the Commission concerned the scope of ‘exclusive competence’pertaining to international trade negotiations under Article 113 (Meunier and Nicoldidis, 1997). Under the Treaty of Rome the Commission enjoyed a monopoly over externalrepresentationin World Trade Organization (formerly GATT) negotiations(thoughoverseenby a Council committee), with governmentstaking final decisionsby QMV. With the Uruguay Round,however, Member States(led by France)successfullyarguedthat new issues- services 0 Blackwell

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trade,intellectual property,and investment-were not traditional ‘trade’ issues and thereforelay outsidethe scopeof exclusive Community competence.This subjectedthem both to unanimous vote in the Council and to ratification by individual national parliaments.At Amsterdam, a majority of Members States led by the Commission sought to extend Community competencebut the outcomereiteratedthe statusquo. Even the Germansprovedcautious.The only mitigating factor is that in the Treaty the Council can decidethe statusof new issuesby unanimity before upcoming negotiations- anotherproceduralhybrid that allows for somefutureextensionof Community competencewithout Treaty revision.

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Reform of the third pillar introducedby the MaastrichtTreaty,justice andhome affairs, was the most intensely debatedissuein the negotiations.Three broad topics were discussedtogether:reform of the common policy toward immigration and asylum vis-8-vis third-country nationals, the integration into the EU Treaty of the so-called‘Schengenacquis’ (the provisionson visas,bordersand proceduresnegotiatedunderthe SchengenAgreement,which aimed to abolish checksatintra-EC borders,signedon 14June1985);andco-operationin matters of policing andjustice. Thesethreeconcernswerelinked not simply becausethey all generallyconcernthe movementof peopleacrossbordersand becausethey are all handledby justice and home affairs ministries, but also becausecooperationonjudicial, police andimmigration mattersbecomesmore imperative asinternalbordersamongEU Member Statesdissolve,a singlemarketemerges, and enlargementto the east draws near. Even among sceptical governments, therewas some concernabout the needto pool resourcesboth to managethe pressuresof migration (and domesticdemandfor action associatedwith it) and to respondto the internationalizationof crime, not least drug trafficking. The third pillar was seenfrom the start, therefore,as the substantiveareawhere progressat Amsterdam was most likely. Governmentsthat favouredmore intensethird-pillar co-operationcalled for ‘communitarization’ - the integration of the third pillar into the normal EU economic policy-making institutions, as well as an expansion of activities alreadyconductedby the EU. Germany, a country on the front line vis-d-vis easternEurope,led by a Christian Democratic governmentfor which ‘law and order’ was an attractive andpopular issue,andcurrently responsiblefor taking well overhalf of EU asylum-seekersandimmigrants, took a leadershipposition. Communitarization of the Schengenacquis was also a particularly desirable strategybecauseit would automatically mean folding all current agreements underSchengeninto theEU - including bilateral arrangementsbetweenGermany andits easternneighbours,obliging thelatterto acceptthereturnof anyillegal

immigrants to Germanywho transitedthroughtheir territory, regardlessof their countryof origin (Burrows,1998).Even ChancellorKohl rejectedanyautomatic transition to QMV, however, in part becauseit threatenedcurrent under prerogatives. In the run-up to Amsterdam, critics made much of the lack of substantial resultsin the third pillar sincetheentry into force of theMaastricht Treaty. Such critics, like thosewho criticize EU secondpillar arrangementsfor failing to resolve the Yugoslav crisis, seldom explained the precise natureof preferred policies or how institutional reform would haveassuredthatbetterpolicy would emerge.Surelythelack of policy outputsreflectedsubstantialoppositionamong the Member States,as well as institutional bottlenecks. Immigration issues remainedpolitically volatile in all countries, not least Germany, France, and Britain, becauseof right-wing opposition, fundamentalconcernsaboutinstitutional sovereignty,or geographicalspecificity. More importantly, governmentsfound themselveswith widely disparate interests.Not only were somenot membersof the SchengenAccord, but at least two non-membersof Schengen- Britain and Ireland, the former with only 23 portsof entry -were far betterableto imposedefacto control over movements acrosstheir bordersthanalmostany continentalcountry.As a corollary, internal policing wastraditionally far lessintrusive thanon the continent.HenceBritain and Ireland rightly perceived less benefit and considerablecost imposed by international co-operation,a view that changedlittle with the election of the LabourGovernment.Despitethetemptationto findsome areain which to declare ‘success’ in the negotiations,opposition to communitarization by the UK, Ireland and Denmark meantthat agreementwas far from obvious until the last weeks beforeAmsterdam. Theintroductionof anewtitle in theTreatyonfreemovementof persons,asylum andimmigrationandtheconcurrentshiftoftheseissuesfromthethirdtothefirstpillar havebeendescribedasasuccessby manyobservers.Communitarizationextendsnot only to visa, asylumandimmigrationpolicy but alsoto somejudicial cooperation in the civil matters having cross-borderimplications; police cooperation and criminal mattersremainin theintergovernmental thirdpillar. Hencethescopeof the newly communitarizedpolicies is slightly broaderthan even the Commission initially sought.The Commissiongainedtheright of initiative, albeit sharedby the Council for at leastfive years,which may help place on the agendapolitically sensitiveproposalsthatsomeMemberStatescouldnot endorsepublicly. (It will be interestingto seewhethertherein fact existviableproposalsthatno singleMember Statewould proposebut the Commissiondoes.) The Treaty undeniably brings about gains in efficacy and accountability. Control by the Court, albeit excluding mattersconcerningthe maintenanceof law and order and the safeguardingof internal security, provides greater

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guaranteesfor the protectionof individual rights - althoughthe Court’s rulings on the interpretationof the Title may not affect judgments of Member State courts which havebecomeresjr&c&z. The replacementof the secretive‘K4 committee’ by traditional COREPER structuresmay increasedemocratic accountability in this field aswell asthecoherencewith otherdomains.A transition to QMV may be possible after five years without national parliamentary ratification. Finally, EU directives or regulationsneedno longerbe ratified by national parliaments- a striking contrastto the unevenratification of conventions under Schengenand Maastricht arrangements.Since Maastricht entered into forceonly oneconvention(actually negotiatedbeforetheTreatywassigned) hasbeenapprovedby all 15 parliaments;a numberof agreementsarestill to be examinedby national parliaments,including on the operationsof EUROPOL, customsco-operationand the fight againstfraud. Still, even on the most optimistic of readings,these gains are moderate comparedto thoseto which advocatesaspired.The transition to QMV will not occur for at least five years and only then with unanimoussupport. For the moment, the Commission lacks the exclusiveright of initiative, excepton rules governing visas, for which there had already been a partial exception under Maastricht. A proposalfor automatictransition to QMV, eitherimmediately or in five years,was opposednot just by the traditional recalcitrantcountries,but by ChancellorKohl, who was respondingto pressurefrom the finder, aswell asother substantiveconcerns.Even in the longer run, it is hard to envisagean alternative to unanimity - in effect imposing new ‘potential citizens’ onto a Member State by qualified majority - occurring soon. The delicacy of the compromise is reflectedalso in the extremelegal complexity andambiguity of theresultingarrangement.Some detractorssuggestthatthe incorporationof the Schengenacquis into the Treaty will add complexity. NGOs supportingimmigrantrights criticize thecommunitarizationof bilateral arrangementsthatpermit west EuropeanMemberStatesto deportimmigrants.Finally, communitarization was possibleonly by grantingbroad opt-outsandflexibility to Britain, Ireland, and Denmark. The UK and Ireland each obtainedtwo opt-out protocols, one regardingthenewfreemovementof persons,theotherrecognizingthe Common Travel Area betweentheUK andIreland. Denmark obtaineda similar opt-out, madeevenbroaderby the inclusion of any decisionswith defenceimplication. The transition from Schengento the EU will take placeunderan ‘enhancedcooperation’ procedurenot involving all Member States.In this area,a precedent hasbeensetfor an extremelylooseform of variablegeometry,if still a bit short of a pure ‘Europectla carte’ scheme,in which recalcitrantcountrieschoosethe precise measureson which they would like to co-operate- though such cooperationwould requireunanimousapproval- andgovernmentscancollective0 Blackwell

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ly choosewhetherto actunderthe EU or Schengen.This raisesinterestinglegal andstrategicissuesfor the future. IV. Successand Failure Reconsidered: J?lexibility and Differentiation as Creative Adaptation It is traditional, at least among Europeanfederalists, to evaluatemajor EU agreementsteleologically. EU agreementsare successfulif governmentsembark on new schemesfor substantiveco-operationandembedthoseschemesby deepeninga uniform legal andadministrativeordercentralizedin Brussels.Only this, in the teleological view, generatesirreversible integration.This is the sort of vision that inspired the then Commission President, JacquesDelors, to proclaim in 1988that 80 percent of nationalregulationswould soonbemade in Brussels- a statementthat, while (almost) true, betrays a rather rule-bound perspectiveon what is most important about integration. The teleological approachtakesfor grantedthatdeeperco-operationis in thefundamentalinterest of Member States; failures to agree are therefore secondaryfactors: weak, ignorant or ill-intentioned politicians, random and incidental domestic pressures,the absenceof compelling geopolitical motivations for co-operation,or a generallack of ‘political will’. Evaluation is simple. Whatever deepensand widens co-operationand,in particular,whateverpools andcentralizesauthoritative decision-making,marks progress.In the teleological view, finally, it is essentialto overcome difficulties quickly not simply in order to exploit future possibilities to move toward federal union, but becausecontinuous forward motion - thus the ‘bicycle theory’ - is requiredto preserveexisting gains. From this perspectivetheAmsterdamTreaty seemsbitterly disappointing.It maintains the ‘pillar’ logic introducedat Maastricht ratherthan expandingthe full ‘Community method’ to foreign policy. Within the first pillar, the Treaty disappointedthe Commission’s ambition to generalizeQMV, expand its own participation, and extend (or retain) Community competenceto new trade negotiations(Devuyst, 1997).Explicit provisionsfor vetoes,akin to theLuxembourg Compromise,andextensiveprovisionsfor differentiation and flexibility are now embeddedfirmly in the Treaty. In striking contrast to the strategy employedin theoriginal Treaty of Rome,in which unanimousvoting procedures becameQMV nearly automatically,future movementafterAmsterdam continues to require explicit issue-specificunanimousvotes of the Member States. While somethird-pillar issuesof immigration andasylum-the onesetof issues in the negotiationswhere thereare clear economic or regulatorybenefits from co-operation- were moved into the first pillar, the maintenanceof unanimity voting and the lack of a unique Commission right of initiative mean that evolution toward a supranationaldecision-makingsystemwill be at best slow. 0 Blackwell

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Someflexibility provisionsmovecloseto a ‘pick andchoose’Europe‘cila carte’ (Shaw, 1998, p. 13). Even if the result doesnot, as one commentatorasserts, ‘push the Union in an integovemmental direction, it does reflect a striking willingness on the part of member statesto eschewthe “Community method” wheresatisfactoryhybrid dealsarepossible’ (Devuyst, 1997,p. 13). No wonder - aswe saw in the introductionto this essay-that thosewho mark the successes andfailures of integrationagainstan ideal federalstandardseeAmsterdam asa catastrophicfailure. At thevery least,it limits thescopefor future supranational solutions. Yet this teleological mode of evaluatingprogresstoward Europeanintegration - andthe pessimistic assessmentthat follows from it - increasinglyappear dated.Though newspapercolumnists nevertire of reciting how the Europeans seekto form a cohesivewhole thesize of the US andsupranationalofficials and membersof federalistgroupscontinueto promotecentralizationfor its own sake, national politicians, interestgroups,and individual citizens increasinglydoubt that the vision of a centralized,uniform, undifferentiatedEurope, let alone a ‘United Statesof Europe,’ is either desirableor feasible.Among EU member governments at Amsterdam, only Belgium and Italy consistently adopted anything resemblingthe traditional position; neitherGermany nor the Netherlandswas nearly as unambiguous,not to speakof France,Britain, and others. Even the SanterCommission, with the public approval even of Delors, shied away from proposing a radical overhaulof the pillar structure(Delors, 1996). There is an expandingconsensusthat the EU properly provides a structureto complement,co-ordinate,even in limited ways supplantthe policies of nationstates,correctingfor their manifestweaknesses;yet theEU hasnot,will not, and shouldnot replacethe nation-state(Milward, 1993;Moravcsik, 1998c;Weiler, 1996). Traditional federalistsattribute suchcaution to contingentfactors: the purportedshift in public opinion away from supportfor Europeanintegration,for which there is little evidence; the decline of geopolitical pressurefor cooperationafter the Cold War, Germanunification, andthe passingof a generation with personalexperienceof World War II; or the domestic weaknessand generallack of ‘political will’ amongnational politicians - all of which results in a deficit of ‘leadership’,not leastfrom the ‘France-Germanmotor’ (Devuyst, 1997).This both misinterpretsthe dominant motivations underlying European integrationin the pastandmisunderstandsthecurrentmood. Governmentshave traditionally pooledor delegatedsovereigntyin orderto lock in implementation and compliance with agreementsthat offer clear (generally economic) gains. Consensuson institutional form has been greatestwhere there is underlying consensuson substantivegoals,evenwhenkey participants-we needthink only of Charles de Gaulle, Helmut Schmidt, or Margaret Thatcher - were openly

critical of supranationalofficials, institutions,andideology (Moravcsik, 1998c; Milward, 1993). And today, if we are to believe that the modesty of the Amsterdam Treaty stemmed from atavistic nationalism or an extraordinary sensitivity to sacrificesof sovereignty,how dowe explainsimultaneousprogress toward EMU? The failure to move forward morestrongly stems,more fundamentally,from the lack of any compelling substantivereasonto deepenco-operation.What governmentsand publics seem to desire today - as they always have - is a Europeanstructure that solves practical problems while undermining state sovereigntyto the minimum extentpossible.While the needfor the EU structure tradeliberalization wasobvious,it is far lessclearwhetherthegainsfrom deeper economicregulationfully offset the sacrificeof control over free movement of peoples,social security,professionalservices,indirect taxation, culture, industrial policy, social policy, employment, or fiscal policy - or, more precisely, governmentshavefar more diversepreferencesconcerningtheseforms of cooperation.In comparisonwith previoustreatyreforms,nearly all of which were driven by an overriding substantive,generallyeconomic goal- the elimination of tariffs and quotas, the construction of the common agricultural policy, exchange-rateco-ordination, the completion of the single market (‘Europe 1992’),andmonetaryunion-the AmsterdamTreatywasprecededby aneartotal lack of concretesubstantiveproposalsfor policies that could be pursuedunder new institutional provisions. In the future, modestforward movement is likely in justice andhomeaffairs,dueto relatively clearsubstantivegainsfor a majority of statesfrom co-ordinatedvisa and policing policies; elsewherethe prospects are lesspromising. In historical perspectivetheAmsterdamdebatewas striking in its vagueness. The SEA andMaastricht were precededby detailedsubstantiveagendasin the form, respectively, of the ‘White Paper’with its almost 300 proposalsformed into a plan for ‘Europe 1992’ and thevision, whethertechnically soundor not, of a single currency and ‘Economic and Monetary Union.’ By contrast, the preparationfor Amsterdam was strikingly devoid of discussionabout precise scenariosand concretepurposesfor which secondand third pillar institutions were to be reformed, let alone the concretebenefits of co-ordinating residual economicregulation,culture,education,taxation,or socialpolicy. In short,there hasbeenmuch debateaboutwho belongsin the ‘core’ of Europeandmuch less aboutwhat the core is. Onereasonis that Europeangovernmentssimply do not agreeon overriding objectives. Peter Ludlow is therefore half right when he observes,‘The age of the pioneersis over.That of thesystemmanagersis alreadywith us-or oughtto be. [Amsterdam]was boundto bedifferentfrom its predecessors-forthevery good reasonthat the latter haddonemost of the systembuilding that was needed’.It

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could only be successfulif it managed‘to show that its modesty was its glory ratherthanits shame’ (Ludlow, 1997a,pp. 4,13). Ludlow is correctthat the EU is moving beyondan erain which the primary focus hasbeenon the expansion of common policies. Far from being the last of its kind, the Amsterdam Treaty is the harbingerof the future. Yet we should not assume,therefore,that there remainsnothingfundamentalto be debatedat future IGCs.We havenot reached the ‘end of history’ in Europein which one can only, as did Alexandre Kojbve in his time, retire to Brusselsand cultivate the CAP. Europestandsinsteadbeforea seriesof ongoing constitutionaldebates.The focus in the future - disguisedup to now by the increasesin the scopeof EU policy-making in coreeconomicareaswhereacommon legalorderanduniversal participation were and remain unquestioned- will be on the constructionof a legitimate constitutional order for policy-making responsiveto the desiresof nationalgovernmentsandtheir citizens.The questionfacing the EU today is no longerhow to expandthe idealof centralizedinstitutions anduniform participation to new areas,but whether and when to do so. As in most constitutional polities, fundamental issuesof this kind are unlikely to be resolved by the application of a single definitive principle, let alone by commitment to a centralizingteleology. Constitutionalbargainstend insteadto emergefrom the balancesbetweendifferent underlying principles (Shaw,1998; Coglianeseand Nicoldidis, 1998).Not sincethe daysof Charlesde Gaulle havesuch questions beendebatedas explicitly as they are today. Within the EU, tensions are emerging between fundamentalprinciples of democratization,uniformity, universality and efficiency (Brinkhorst, 1997). Further democratization of the EU legislative process,for example, clearly requires either reduction in the prerogatives of the Council of Ministers or reductionin thoseof the Commission. The former is unlikely and,accordingly, the Commission found itself in a defensiveposition at Maastricht andAmsterdam, asthemoreradical proposalsfor strengtheningtheParliament,particularly thoseadvancedby Germany,cameat the expenseof the traditional Commission monopoly on the right of initiative. How long will it be beforethe Frenchdesire to strengthenthe Council and the German desireto strengthenthe Parliament come togetherin an openalliance againstthe Commission?Yet might this not undermine the record of successof the Commission-centredsystem more insulatedfrom specialinterests,more technocraticin its decision-making,and, therefore,more effective at promoting the common Europeaninterest? Similarly, thereis increasinglyopentensionbetweena universalanduniform legal order, on the one hand, and effective decision-making,on the other. At Amsterdam the result was a greaterwillingness of governmentsto dilute the uniformity and universality of EU commitments (outsidecore EU issues,such asmarketliberalization) in the interestof achievingsubstantiveco-operationof

interestto somegovernments.Despiteefforts to simplify thelegislative process, divergentinstitutional proceduresare employed anddifferent setsof members areinvolved acrossissues.Clearly, if someflanking policies becomekey to the successof monetaryco-operation,laggardstatescannotimposea veto; if some Member Statesdisagreewith a foreign policy action,they neednot be involved; and if countrieshold to different traditions of internal and external control of personalmovement,they cannotbe compelled to join a border-freeEurope. In such circumstances,‘evolutionary pragmatism’ increasingly dominates legal simplicity - evenmore so thanhasbeenthe casesincethe signing of the Treaty of Rome in 1957. Proceduresranging from no EU involvement at all to full communitarization are instituted, with each designedto create a distinctive balance between national prerogativesand community competence.Policy innovation in the years to come will be ever more focused within the grey area betweenthe classical extremesof intergovernmentaland supranational institutions. This was not a novel innovation at Amsterdam, asfederalistswho attribute theresult to recentgeopolitical or ideological shifts would haveit. It wasinstead the extensionof a deep,acceleratingtrend over decadeswithin Europetoward greaterdifferentiation acrosscountriesand issues.Article 233 of the Treaty of Rome governing the Benelux countries, the EMS and EMU, the Schengen agreement,ESPRIT, Article lOOa of the SEA, British andDanish opt-outs on issueslike social policy, budgetarybargains,and EuropeanPolitical Co-operation all involved de facto acknowledgementsthat not all governmentswould be treatedthe same.Credible threatsto exclude recalcitrantMember Stateswere critical to both the SEA andMaastrichtagreements.Prospectiveenlargementto 21 or more increasinglydiverseMember Statesonly intensifies the problems.It seemsclear that the CAP will not be applied to new membersin the sameway it is applied to existing members- with long transition periods serving to differentiatebetweenthe two groups to anevengreaterextentthan in the Iberian enlargementof the 1980s. The difference betweenAmsterdam and previous negotiations lies in the legitimacy andopennessof suchproposals.In 1988,MargaretThatcher’scall for a ‘multi-track’ Europe in her notorious Bruges speechwas dismissed as the height of Euroscepticism(Moravcsik, 1998~).Even after Maastricht, flexible arrangementswerestill spokenof by most Europeansasunfortunateexceptions, with a uniform acquis communautaire the clear ideal. In the decade that followed, thedebateoverEuropehasbeenturnedon its head.Today it is themore federalist countries that demanddifferentiation and flexibility - now termed ‘differentiated solidarity’, ‘avant-garde’,‘ federal core’, or ‘enhancedco-operation’. In responseandovertheobjectionsof traditional federalists,theAmsterdam Treaty elevated‘flexibility into one of the constitutional principles of the

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EU’ (Ehlermann, 1997,p. 60; de La Serreand Wallace, 1997).The debatehas shiftedto therelativeburdensto be acceptedby ‘ins’ and‘outs’ -whether Europe shouldprovide choices‘b la carte’ or be centredon ‘hard core’. Will flexibility underminethe threatsof exclusion that haveforcedrecalcitrantstatesto accept Europeansolutions in thepast- witnessthreatsaimed at theFrenchin the early yearsof the EU andthe British more recently-or will it offer new opportunities for governmentsto make such threats?The answerdependson the outcomeof the emerging constitutional debate(Pisani-Ferry, 1998). The Europeanproject has evolved into the most successfulexample of voluntary internationalco-operationin history.For its first four decades,this was achievedthroughthe progressiveextensionof the scopeof co-operationamong Member States.With EMU and intergovernmentalco-operationin the second and third pillars, this phaseis nearingcompletion. Amsterdam representsthe beginningof anew phaseof flexible, pragmaticconstitution-buildingin orderto accommodatethe diversity of a continent-widepolity. This is not to say thatthe EU is dissolving. The oppositeis true.The ‘bicycle theory’, whereby integration will recedeif it does not progress,is a fetching metaphor but one without substance(Ash, 1998). The EU is proving quite capableof moving forward where it is perceivedasnecessary,as in EMU, and it is proving capableof protecting the acquis communautaire. The onepoint of agreementat Amsterdam,from themost Euroscepticalgovernmentto the most federalist,was the sanctity of provisions guaranteeingfree tradein goodsand services. Even lessplausibleis the spectreof World War III - fearthat makesunlikely rhetorical bedfellows of Helmut Kohl and Martin Feldstein (Feldstein, 1997). Those who assertthat the failure to continue progressingtowards a federal Europe(or the collapseof certain schemescurrently directedto that end) will spark a geopolitical conflagration are forced to invoke historical analysisand political scienceovertwo generationsold. The primary causeof peacein postwar Europe has not been European integration, but the law-like propensity of developeddemocraciesto avoid war with one another.The major geopolitical bargainsunderlyingpost-warEurope- the US commitment, the repatriationof the Saar,the remilitarization of Germany,the formation of NATO, andthe like -were precursors,not productsof theTreatyof Rome in 1957(Moravcsik, 1996, 199%). Whathasheld Europetogetherandpropelledit forwardhasbeena series of mutually beneficial bargains,largely economic in nature, to promote the interestsof Europeanproducersandconsumers.Thosewho continueto believe that the EU is fragile - too fragile to withstand constitutional debate- because it has been powered forward by fears of reliving World War II, dosesof federalist idealism,constraintsimposedby federalinstitutions, andthe intermittent ‘political will’ of nationalleaders,ratherthana stablepatternof co-operationtailored 0 Blackwell

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References Ash, T.G. (1998) ‘Europe’s Endangered Liberal Order’. ForeignAf)eairs, Vol. 77, No. 2, March-April, pp. 51-66. Bertram, C. (1997) ‘Germany’. In European Policy Centre, pp. 64-5. Bourlanges, J.-L. (1997) ‘The Amsterdam Paradox’. In European Policy Centre, Brussels p. 70. Brinkhorst, L. J. (1997) ‘Efficiency and Democracy’. In European Policy Centre, p. 57. Burrows, N. (1998) Presentation at the Conference of Europeanists, Baltimore, MD. Coglianese, C. and Nicoldidis, K. (1998) ‘Securing Subsidiarity: Mechanisms for Allocating Authority in Tiered Regimes’. In Woolcock, S. (ed.), Subsidiarity in the Governance ofthe Global Economy (Cambridge: Cambridge University Press). Commission of the European Commmunities (1997) ‘Assessing the Achievements of the Commission’s Objectives for the IGC (1996 IGC Task Force), Brussels MP/bw D(97). Crossick, S, Kohnstamm, M. and Pinder, J. (1997) ‘The Treaty of Amsterdam’. In European Policy Centre, pp. l-4. de la Serre, F. and Wallace, H. (1997) ‘Les cooperations renfordes: une fausse bonne idee?’ S&ie &des et recherches, No. 2 (Paris: Groupement d’btudes et recherches, Notre Europe). Delors, J. (1996) Speech at Harvard University. Devuyst, Y. (1997) ‘The Treaty of Amsterdam: An Introductory Analysis’ . ECSA Review, Vol. 10, No. 3, Fall. Dini, L. (1997) ‘TheEuropean UnionafterAmsterdam’.In Duff 1997b, pp. xxvii-xxix. Duff, A. (1997a) ‘Supranational Institutions for Post-national Europe’ in Duff 1997b, .. . XXX-XXXVlll. Duff, A. (ed.)(1997b)The Treaty of Amsterdam: Text and Commentary (London: Federal Trust) Ehlermann, C. (1997) ‘Flexibility’. In European Policy Centre , pp. 59-60. European Parliament,Committeeon InstitutionalAffairs (1997)‘Report on the Treaty of Amsterdam - Annex’ (Brussels: European Parliament). European Policy Centre (1997) Making Sense of the Amsterdam Treaty: Challenge Europe, Brussels. Feldstein, M. S. (1997) ‘EMU and International Conflict’. ForeignAA(birs, Vol. 76, No. 6, November, pp. 6&74. Hoyer, W. (1997) ‘The German Government’. In European Policy Centre, p. 41. Jorgensen, K. E. and Christiansen, T. ‘The Amsterdam Process: A Structurationist Perspective on EU Treaty Reform’. In Edwards, G. and Philippart, E. (eds) Theorising European Integrafion (forthcoming). Ludlow, P. (1997a) ‘The Intergovernmental Conference: An Evaluation’ (Brussels: Centre for European Policy Studies), unpublished mimeo. 0 Blackwell

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Ludlow, P. (1997b) ‘Institutional Balance’. In European Policy Centre, p. 52. Meunier, S. and NicolaIdis, K. (1997) ‘National Sovereignty vs. International Efficiency: The Delegation of Trade Authority in the European Union’. Paper presented at the Center for European Studies, Harvard University, December. Milward, A. S. (1993) The European Rescue of the Nation-State (London: Routledge). Moravcsik, A. (1996) ‘Federalism and Peace: A Structural Liberal Perspective’. Zeitschriftfir internationale Beziehungen, Vol. 2, No. 2, Spring. Moravcsik, A. (1998a) ‘European Integration in the 1990s: Meeting the Challenges of Deepening, Diversity, and Democracy’. In Moravcsik (1998b). Moravcsik, A. (ed.)( 1998b) European Integration in the 1990s: Meeting the Challenges of Deepening, Diversity, and Democracy (New York and Washington: Council on Foreign Relations and Brookings Institution). Moravcsik, A. (1998c) The Choice for Europe: Social Purpose and State Power from Messinu to Maastricht (Ithaca: Cornell University Press). Moravcsik, A. and Nicoldidis, K. (forthcoming) ‘Negotiating the Treaty of Amsterdam: Interests, Influence, Institutions’, Journal of Common Market Studies. Nickel, D. (1998) ‘European Institutions after the Amsterdam Treaty’. Paper presented at the Seminar on the EU, NAFTA, and the WTO, Harvard University. Petite, M. (1998) ‘The Commission and the Amsterdam Treaty’. Paper presented at the Seminar on the EU, NAFTA, and the WTO, Harvard University, April. Pisani-Ferry, J. (1998) Variable Geometry in Europe (Brussels: Centre for European Policy Studies). Shaw, J. (1998) ‘Constitutional Settlements and the Citizen after the Treaty of Amsterdam’. In Neunreither, K-H. and Wiener, A., Beyond Amsterdam: Znstitutional Dynamics and Prospects for Democracy in the EU (Oxford: Oxford University Press). Sidjanski, D. (forthcoming) TheFederalist Future ofEurope (Ann Arbor: University of Michigan Press). Sutherland, P. (1997) ‘Has the IGC Succeeded?‘. In European Policy Centre, pp. 29-31. Van Miert, K. (1998) ‘EU Institutions after the Amsterdam Treaty’. Paper presented at Harvard University, April. Walker, N. (1998) ‘Sovereignty and Differentiated Integration in the European Union’. Paper prepared for Workshop in Legal Theory and the European Union, Edinburgh, February. Weiler, J.H.H. (1996) ‘Legitimacy and Democracy of Union Governance: The 1996 Intergovernmental Agenda and Beyond’. Oslo: Arena Working Paper, November. Wessels, W. (1997) ‘The Amsterdam Treaty in View of the Fusion Theory’. Paper presented at BISA Annual Conference, Leeds, December.

Volume 36, Annual Review September 1998

Journal of Common Market Studies

Governance and Institutions

RICHARD

CORBETT

Member of the European Parliament for Merseyside West

I. Introduction The key institutional

event in 1997 was the conclusion of the Intergovernmental

Conference(IGC) andthe signing of the Treaty of Amsterdam. Other developments took place within the context of the existing Treaties, not least the preparations for the single currency and the beginning of preparations for enlargement. Routine institutional life also continued. II. The Treaty of Amsterdam One and a half years of Intergovernmental Conference preceded by half a year of work by the Reflection Group culminated in agreementon a Treaty which many found to be disappointing in failing adequately to address a number of problems facing the Union, not least in view of its forthcoming enlargement. Nonetheless, the Treaty, if ratified, will bring in about 20 significant changes to the institutional structures and the governance of the European Union. Of particular significance are the following. 1. The UK opt-out of the Social Agreement will come to an end, thereby enabling it to be integratedinto the body of the Treaty and ending a two-tier

systemin this field. 8 Blackwell

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OX4 lJF, UKand 350 Main Stw,et, MaIden, ~~02148,

USA