Book Chapters by Finn Laursen

Book Chapters by Finn Laursen
Explaining the Maastricht Treaty

Draft of book Chapter, "Explaining the Maastricht Treaty"

which was published in book co-edited with Sophie Vanhoonacker, The Intergovernmental Conference on Political Union, Maastricht: EIPA, 1992

From Introduction

The Intergovernmental Conference (IGC) of the member states of the European Community that started in Rome in December 1990 and was concluded in December 1991 in Maastricht, the Netherlands, exhibited the usual bargaining that is common to intergovernmental relations among the Twelve. The member states all brought their perceived national interests to the IGC, as they had done to the talks that preceded the Conference. Does this mean that knowledge about those national interests will allow us to explain the outcome? Or, is the EC more than intergovernmental relations that can be explained by traditional theories of international relations? Are there certain dynamics within the EC that need to be taken into account? Does the EC's position in the wider international system need to be considered, too? Do we need to look at the dynamics of the negotiations themselves to understand the outcome? This chapter will attempt a discussion of these questions, which are of a fundamental theoretical nature. As the author has argued on an earlier occasion it is important for our understanding of the EC to ask such analytical questions.

Explaning the Amsterdam Treaty

25

Explaining and Evaluating the Amsterdam Treaty: Some Concluding Remarks

Finn Laursen

[Chapter from Finn Laursen, ed. The Amsterdam Treaty, Odense University Press, 2002]

Introduction

The Amsterdam Treaty was yet another treaty in the history of European integration. It was not normal politics; it was constitutive politics (Pedersen 1998, 56). It was yet another big bargain among the EU's Member States, setting some new rules for their cooperation. If we use the categories suggested by John Peterson, the type of decision finalized in Amsterdam in June 1997 was "history-making" and it took place at the super-systemic level. It was not policy-setting or policy-shaping, the more normal day-to-day decisions that take place at the systemic and sub-systemic levels. In the case of a history-making decision, the dominant actors would be the national governments in an Intergovernmental Conference (IGC) and the Heads of State and Government in the European Council. The kind of rationality, according to Peterson, would be political and legalistic, not the kind of technocratic, administrative rationality found at lover levels of decision-making (Peterson 1995).

In this final chapter the editor will suggest some conclusions from the chapters included in this volume and move beyond questions of explanation to briefly discuss how we can evaluate the Treaty of Amsterdam. How significant was it?

Explaining the Treaty of Nice

Chapter 25

Explaining the Treaty of Nice: Beyond Liberal Intergovernmentalism?

Finn Laursen

[Chapter from Finn Laursen, ed. The Treaty of Nice, Nijhoff, 2006]

Introduction

In this chapter we shall discuss how to explain the Treaty of Nice. In the introductory chapter we mentioned Andrew Moravcsik's approach, liberal intergovernmentalism (Moravcsik, 1993, 1998). This approach can structure an analysis of a treaty reform like the Treaty of Nice, but many authors, including contributors to this book, have also pointed to limitations in the approach (see also Christiansen, Falkner and Jørgensen 2002).

Some of the criticisms concern the first stage, the formation of national preferences. According to Moravcsik, the main explanation of national preferences is that economic actors make demands to the politicians. These in turn supply solutions mainly to get re-elected. Moravcsik's explanation therefore downgrades the role of geopolitics, including ideas. Further, domestic institutions such as parliaments, party systems and public opinion do not play important roles.

Criticisms concerning the second stage include assumptions about the negotiation process which is based on the so-called Nash bargaining solutions (Beach 2002). Such an approach downgrades the importance of specific institutional aspects of the negotiations, including the role of EU-level institutions, especially the Commission, the European Parliament and the Council Secretariat. Nor is there any particular role for Presidency entrepreneurship (see also Christiansen 2002, and Beach 2004).

Concerning the explanation of institutional choice in liberal intergovernmentalism, i.e. credible commitments, there have been fewer explicit criticisms. But scholars who question the rationality assumption of liberal intergovernmentalism will again ask about the role of norms and ideas at this stage, too (Wind, 1997; Risse, 2004; and Schimmelfennig 2003)

Some might argue that liberal intergovernmentalism fared well when it came to explaining European integration from the Treaty of Rome in 1957 to the Economic and Monetary Union (EMU) part of the Treaty of Maastricht in 1993. This part was mostly about economic integration, where economic actors should be expected to play an important role. But Maastricht was more than EMU. It took a step towards political union, where the geopolitics of the end of the Cold War in 1989 was a very important event (Laursen, 1992). In general one can argue that it was the bipolar system of the Cold War that created a situation in Western Europe that allowed the founding Member States of the EC to start economic integration (see also Rynning's contribution to this volume)

The post-Maastricht reforms, Amsterdam and Nice – and now also the draft Constitutional Treaty – must partly be seen as a response to the new situation in Europe after 1989. First some members of the European Free Trade Area (EFTA), then the former communist countries of Central and Eastern Europe (CEECs), started demanding membership of the EU. Would a much enlarged Union be able to function effectively? Further, the difficulties of getting Maastricht ratified in 1992-93 led to a new debate about the legitimacy of the process. The opinions of the wider public started to play a more important role. The permissive consensus of the early years was gone (Laursen, 1994). Institutional choice was now not only a matter of 'credible commitments' but also a question of legitimacy.

As long as integration in Europe was economic in nature, including the internal market and monetary integration, so-called 'output legitimacy' was sufficient. If the Communities made good decisions economic and political actors would be supportive (Lindberg and Scheingold, 1970). As long as integration was 'negative' integration, i.e. the abolishing of barriers, output legitimacy was sufficient. But as the European Communities (EC) moved towards 'positive integration', i.e. the development of common policies, the process became more politicized, and questions of transparency and democracy were now on the agenda. A concern for 'input' legitimacy emerged (Scharpf, 1999). The issue of the 'democratic deficit' was on the agenda of successive treaty reforms. The main result was the introduction of the co-decision procedure in Maastricht for internal market related legislation. This procedure made the European Parliament a co-legislator together with the Council of Ministers. The use of co-decision was subsequently extended by the Amsterdam and Nice treaties. This made the European Parliament an institutional winner in the most recent institutional reforms. This concern for input legitimacy goes beyond 'credible commitments' and can thus not be fully explained by liberal intergovernmentalism. Indeed, institutions and ideas do matter.

Explaining the Constitutional Treay

CHAPTER 25

CONCLUDING REMARKS: THE CONSTITUTIONAL TREATY IS DEAD, LONG LIVE EUROPEAN CONSTITUTIONALISM

Finn Laursen

[Chapter from Finn Laursen, ed., The Rise and Fall of the Constitutional Treaty, Nijhoff, 2008]

INTRODUCTION

The Constitutional Treaty died when the French and Dutch electorates voted 'no' to ratification in 2005. The death was formally announced by the Member States in June 2007 when it was decided to drop efforts to resuscitate the Constitution and instead negotiate another treaty called a Reform Treaty. Although the Reform Treaty will include most of the institutional innovations of the Constitutional Treaty all references to 'Constitution' have been dropped. So have references to symbols of constitutionalism.

The constitutionalist rhetoric had backfired. The rhetoric had made it sound as if the proposed treaty was more than it was. After all it was still a treaty among sovereign states. It was not a real constitution of a state. The Member States remained the 'masters of the treaty.' Had it been ratified future changes would still have required unanimity.

The term 'constitution' is not well-defined. It has different meanings in different time periods and in different countries. But normally it refers to the organisation of a government and it implies the existence of restraints upon that government. Such restraints can exist through a division of powers among legislative, executive and judicial authorities as advocated by Charles-Louis de Montesquieu. Restraints can also be introduced by a vertical division of powers between different levels of government as we find in federal states. The famous US checks-and-balances would be a good example of a constitutional arrangement. Stipulations about individual rights also put restraints on governments (Friedrich, 1968).

The moment we say 'government' we tend to think of 'states.' But the EU is not a state. It is an intergovernmental organisation of a special kind. By 'pooling' and 'delegating' certain powers to common institutions the Member States have created a governance system that is unique. Some decisions in the Council of Ministers can be made by a qualified majority vote (QMV). The Community institutions, first of all the Commission and the European Court of Justice (ECJ), have certain autonomy. EU institutions have supra-national powers, not found in other international organisations.

This sui generis nature of the EU makes it difficult to use the concepts when we study national governments or states. Still, the supra-national aspects of the EU give it state-like features, and the EU has a system of governance with many built-in restraints. As such you can argue that it already has a constitution.

Politics of the Constitutional Treay: Four Analyses

"The Politics of the Constitutional Treaty: Elements of Four Analyses"

Finn Laursen

[Chapter from Johan From and Nick Sitter (eds.), Europe's Nascent State? Public Policy in the European Union. Essays in Honour of Kjell A. Eliasen. Oslo: Gyldendal Akademisk, 2006]

Introduction

The European Union (EU) has gone through a number of treaty reforms in recent years. The EU itself was formed by the Maastricht Treaty in 1992 (Laursen and Vanhoonacker, 1992 and 1994). It combined the pre-existing European Communities (EC) in reformed versions, including plans for Economic and Monetary Union (EMU), with two new pillars: Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA) cooperation. Further reforms followed through the Amsterdam Treaty in 1997 (Laursen 2002) and the Nice Treaty in 2001 (Laursen, 2006). Starting in February 2002 a Convention on the Future of Europe prepared a Draft Treaty Establishing a Constitution for Europe, usually referred to a Constitutional Treaty. The draft was completed in the summer of 2003. An Intergovernmental Conference (IGC) then met from October 2003 until June 2004 finalising a new draft treaty on the basis of the draft from the Convention. The ratification process started afterwards, but on 29 May the French and 1 June 2005 the Dutch voters voted 'No' to ratification in referenda. At the time of writing (December 2005) the future of the treaty is uncertain even if a majority of the member states have ratified it.

Treaty reforms have been major events in the history of European integration (Moravcsik, 1998; Beach, 2005). Usually they have included both policy and institutional changes, although the Nice Treaty as well as the Constitutional Treaty mainly included institutional changes. Many treaty reforms have been linked with enlargements. So were the Nice and the Constitutional Treaties. On 1 May 2004 the EU went through the largest enlargement so far taking the membership to 25. It was deemed necessary to change the institutions to make such a much enlarged union work. In order to increase efficiency the idea was to introduce more qualified majority voting (QMV) in the Council of Ministers. In order to increase the legitimacy of the union it was deemed necessary to enhance the roles of the European and national parliaments. Other considerations entered of course and recent treaty reforms have been very controversial. Especially institutional issues – where questions of future power are decided – tend to become very sensitive politically.

Amsterdam Treaty: Introduction

1

Introduction: Overview of the 1996-97 Inter-governmental Conference (IGC) and the Treaty of Amsterdam

Finn Laursen

[Chapter from Finn Laursen, ed. The Amsterdam Treaty, Odense University Press, 2002]

Background

The Amsterdam Treaty, which was finally negotiated in Amsterdam 16-17 June 1997, resulted from an Intergovernmental Conference (IGC), which had started on 29 March 1996. It was the longest IGC so far in the history of the European Union (EU). Further, the IGC had itself been prepared through the so-called Reflection Group during the second half of 1995.

That such an IGC took place at this point in time was not due to a great wish on the part of the Member States to further deepen integration (Dinan 1999, 169). It took place because the preceding treaty reform resulting in the Maastricht Treaty had included the stipulation in the Treaty's Art. N, that such an IGC should take place in 1996.

Article N specified:

1. The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded.

If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

2. A conference of representatives of the governments of the Member States shall be convened in 1996 to examine those provisions of this Treaty for which revision is provided, in accordance with the objectives set out in Articles A and B (Council & Commission 1992, 138).

Amsterdam Treaty: Limited Institutional Reforms

23

Institutions and Procedures: The Limited Reforms

Finn Laursen

[Chapter from Finn Laursen, ed. The Amsterdam Treaty, Odense University Press 2002]

Introduction

The Intergovernmental Conference (IGC) which negotiated the Amsterdam Treaty was called under Article N(2) of the Maastricht Treaty. Article B in that Treaty referred to the IGC as a possible forum for considering whether the policies and forms of cooperation, which were introduced by the treaty, should be revised to ensure the effectiveness of the mechanisms and institutions of the Community. More specifically, Article 189B(8) mentioned the scope of co-decision as an item for the agenda of the IGC. The Treaty further mentioned Common Foreign and Security Policy (CFSP) (Art. J 10) and the role of the Western European Union (WEU) (Art. J 4(6)) as agenda items for the IGC. This, of course, included institutional issues, especially the question of whether the role of the Commission in the second pillar should be increased.

The European Council meeting in Brussels 10-11 December 1993 was more specific: the IGC should look at the role of the European Parliament, the number of members of the Commission, the weights of member states' votes in the Council and the efficiency of the institutions (EC-Bulletin 12-1993, point I.17). Thus, it was a clear idea from the outset that the role, composition and functions of EU institutions would be central items on the agenda.

Nice Treaty: Introduction

Chapter 1

Introduction: Overview of the Intergovernmental Conference 2000 and the Treaty of Nice

Finn Laursen

[Chapter from Finn Laursen, ed. The Treaty of Nice, Nijhoff, 2006]

Introduction

The Treaty of Nice was negotiated by an Intergovernmental Conference (IGC), which ran through most of the year 2000. The European Council in Nice, France, concluded the negotiations in December 2000. This treaty introduced a number of institutional changes in the EU. The changes were related to future enlargements, which took membership to 25 in May 2004. The treaty determines the number of votes in a future EU-27. The 12 future members are 10 countries from Central and Eastern Europe (CEECs) as well as Cyprus and Malta. Turkey is also a candidate for membership but no future number of votes in the Council was assigned to Turkey in Nice.

Nice dealt with three related issues known as the Amsterdam 'leftovers' because the Treaty of Amsterdam in 1997 had failed to solved them (Laursen, 2002):

1. Re-weighting of votes in the Council

2. Increased use of Qualified Majority Voting (QMV) in the Council

3. Size and composition of the Commission.

It was the large Member States that demanded a re-weighting of votes, claiming that they were relatively underrepresented according to the old weighting, and that this would become a bigger issue in a much enlarged Union, since most new Member States are relatively small, with the main exception of Poland. A re-weighting of votes they hoped would increase the legitimacy of the system.

An increased use of QMV should improve the decision-making capacity of the Union. As long as unanimity is required, one single Member State can veto decisions. With a QMV it will take a small group of states – a so-called blocking minority – to block a decision. The size of this group depends on the definition of the QMV, which in Nice was closely linked to the re-weighting of votes.

The third question, the size and composition of the Commission, was also difficult because most Member States wish to be represented in the College of Commissioners. At the time, in EU-15, there were 20 Commissioners, two from each of the big five and one from each of the 10 smaller Member States. But was the Commission not already becoming too big to function as a collegial body and for leaving meaningful portfolios for all members?

It took a lot of 'horse-trading' in Nice in December 2000 to solve these issues. And in the end most of the Heads of State or Government meeting in Nice were rather unhappy about the outcome.

In many ways Nice was unique. Past IGCs had usually dealt with both substantive policy issues and some institutional issues. This time the agenda was largely limited to institutional issues. These were to include a fourth issue that was added during the conference, viz. 'closer' (or 'enhanced') cooperation or 'flexibility.' The Treaty of Amsterdam had introduced clauses allowing a group of Member States to go further in the integration process than the more hesitant and slow Member States, but the conditions for such 'closer cooperation' were rather strict (Stubb, 2002). The issue in the Nice negotiations was whether the conditions should be made less strict. This would make it easier for pro-integration members to move faster than integration-sceptical Member States and possibly form an avant garde.

Nice Treaty: Reweighting of Votes

Chapter 1

Introduction: Overview of the Intergovernmental Conference 2000 and the Treaty of Nice

Finn Laursen

[Chapter from Finn Laursen, ed. The Treaty of Nice, Nijhoff, 2006]

Introduction

The Treaty of Nice was negotiated by an Intergovernmental Conference (IGC), which ran through most of the year 2000. The European Council in Nice, France, concluded the negotiations in December 2000. This treaty introduced a number of institutional changes in the EU. The changes were related to future enlargements, which took membership to 25 in May 2004. The treaty determines the number of votes in a future EU-27. The 12 future members are 10 countries from Central and Eastern Europe (CEECs) as well as Cyprus and Malta. Turkey is also a candidate for membership but no future number of votes in the Council was assigned to Turkey in Nice.

Nice dealt with three related issues known as the Amsterdam 'leftovers' because the Treaty of Amsterdam in 1997 had failed to solved them (Laursen, 2002):

1. Re-weighting of votes in the Council

2. Increased use of Qualified Majority Voting (QMV) in the Council

3. Size and composition of the Commission.

It was the large Member States that demanded a re-weighting of votes, claiming that they were relatively underrepresented according to the old weighting, and that this would become a bigger issue in a much enlarged Union, since most new Member States are relatively small, with the main exception of Poland. A re-weighting of votes they hoped would increase the legitimacy of the system.

An increased use of QMV should improve the decision-making capacity of the Union. As long as unanimity is required, one single Member State can veto decisions. With a QMV it will take a small group of states – a so-called blocking minority – to block a decision. The size of this group depends on the definition of the QMV, which in Nice was closely linked to the re-weighting of votes.

The third question, the size and composition of the Commission, was also difficult because most Member States wish to be represented in the College of Commissioners. At the time, in EU-15, there were 20 Commissioners, two from each of the big five and one from each of the 10 smaller Member States. But was the Commission not already becoming too big to function as a collegial body and for leaving meaningful portfolios for all members?

It took a lot of 'horse-trading' in Nice in December 2000 to solve these issues. And in the end most of the Heads of State or Government meeting in Nice were rather unhappy about the outcome.

In many ways Nice was unique. Past IGCs had usually dealt with both substantive policy issues and some institutional issues. This time the agenda was largely limited to institutional issues. These were to include a fourth issue that was added during the conference, viz. 'closer' (or 'enhanced') cooperation or 'flexibility.' The Treaty of Amsterdam had introduced clauses allowing a group of Member States to go further in the integration process than the more hesitant and slow Member States, but the conditions for such 'closer cooperation' were rather strict (Stubb, 2002). The issue in the Nice negotiations was whether the conditions should be made less strict. This would make it easier for pro-integration members to move faster than integration-sceptical Member States and possibly form an avant garde.

Introduction: Overview of the Constitutional Treaty Process and Main Elements of the Treaty

Finn Laursen, "Introduction: Overview of the Constitutional Treaty Process and Main Elements of the Treaty", in Finn Laursen (ed.), The Rise and Fall of the EU's Constitutional Treaty. Leiden: Martibus Nijhoff Publishers, 2008, pp. 1-22.

Dr. Finn Laursen