Legitimating the European Union: Aspirations, Inputs and Performance

Legitimating the European Union Aspirations, Inputs and Performance

Janet Mather

Legitimating the European Union

Also by Janet Mather THE EUROPEAN UNION AND BRITISH DEMOCRACY: Towards Convergence

Legitimating the European Union Aspirations, Inputs and Performance Janet Mather Senior Lecturer, Department of Politics and Philosophy Manchester Metropolitan University, UK

© Janet Mather 2006 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2006 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 9781403921086 hardback ISBN-10: 1403921083 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Mather, Janet, 1949 Legitimating the European Union : aspirations, inputs, and performance / Janet Mather. p. cm. Includes bibliographical references and index. ISBN 1403921083 (cloth) 1. European Union. 2. Political participation“European Union countries. 3. Legitimacy of governments“European Union countries. 4. Democracy“European Union countries. I. Title. JN40.M34 2006 2006047484 341.242 2“dc22 10 9 8 7 6 5 4 3 2 1 15 14 13 12 11 10 09 08 07 06 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

For my new Europeans Luke, Emma and Zach

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Contents

List of Tables and Figures

xi

Acknowledgements

xii

List of Abbreviations

xiii

Introduction

1

1 Legitimacy and Legitimation in the Old Europe What is legitimacy? What is legitimacy for? Defining legitimacy Components of legitimacy The legitimacy spectrum The history of legitimacy in Europe The descending thesis of legitimate power The ascending thesis of legitimate power The liberal democratic thesis of legitimate power Towards a thesis of legitimate power for the twenty-first century

29

2 Adapting Legitimacy to the European Union Introduction A Technocratic Europe The cunning plan Development by Treaty: Paris and Rome Generating the Community State-Centric Europe Towards a Multi-level EU Planning for the future A multi-level polity? Towards the Federal Europe? A Treaty too far? Treaties even further EU legitimacy, parliaments and people Conclusion

33 33 35 35 37 41 42 45 46 48 49 49 52 56 57

vii

9 10 10 10 12 13 14 15 19 24

viii

Contents

3 Liberal Representative Democracy and EU Legitimacy Introduction Enacting the principles of liberal democracy: the impact of the election in the nation state Voters and democracy Voters and electoral choice Democratic inputs and democratic outcomes Enacting the principles of liberal democracy: the impact of the election in the EU EU voters and democracy EU voters and choice EU voters and representation Why vote in the EP elections? Liberal representative democracy and legitimating the national state: the issue of consent Opportunities for additional political activity Enhancing contentment Cives populi sumus The ‘least worst’ option Liberal representative democracy and legitimating the EU: the issue of consent Enhancing political activism in the EU Popular contentment and the EU Cives Europae sumus The EU as the ‘least worst’ option Legitimating the EU liberally, representatively and democratically Liberally legitimating the EU? On the road to accountability and transparency Representatively legitimating the EU: the Commission’s White Paper on Governance Democratically legitimating the EU: the Constitution for Europe Conclusion: liberal representative democracy and the ‘four Europes’

59 59

85

4 Acting and Interacting: Participatory Democracy and EU Legitimacy Introduction Categorising participation Tensions involved in participatory ends The EU and group participation Provision for interest group activity in the EU The consultative committees

87 87 87 91 92 93 93

59 60 61 62 62 62 64 64 66 68 69 69 69 70 70 71 71 72 75 78 78 79 82

Contents ix

Groups as advisors and experts Lobbying in the EU Interactive participation in the EU Popular participation and the EU: the referendum Enhancing participation Creating a civil society? The Commission’s White Paper on Governance The people in the Union: the Constitutional Treaty Conclusion: participatory democracy and the ‘four Europes’

95 96 98 104 107 107 109 111

5 A Citizens’ European Union Introduction Problems for performance-related legitimacy in the EU Political, economic and social benefits What do citizens want? Political stability Enlargement and extending political stability The 1980s enlargements The 2004 enlargement Turkey Human rights and the EU A charter of rights? EU minority ethnic groups Peace and security within the EU Enlargement and justice and home affairs Economic prosperity and the EU The EU’s financial instruments The Cohesion States The Accession States ‘Social Europe’ A Europe for all citizens: costs and benefits of enlargement Enlargement and the EU-15 Enlargement and the newest entrants Enlargement and legitimacy Conclusion: a citizens’ EU and the ‘four Europes’

114 114 115 116 117 118 118 118 120 122 123 123 125 126 130 130 131 132 132 135 138 138 139 140 141

6 The EU’s External Performance Introduction Trade, aid and development Trade Aid and trade Development and trade Developing the Third World

143 143 144 144 146 147 148

x

Contents

The EU in and around Europe: Economic and political development European Neighbourhood Policy (ENP) The EU and state-building in the wider Europe The Cyprus Problem The EU’s high politics – wars and all The evolution of high politics High politics and state sovereignty Arms inspectors in Iraq The invasion of Afghanistan Peacekeeping, diplomacy and the EU’s foreign policy agenda Enlargement and the international community Meeting the acquis Heterogeneity and harmony Conclusion: the EU’s external performance legitimacy and the ‘four Europes’

149 150 152 153 156 156 158 159 161 162 164 165 165 167

Conclusion Towards legitimating principles for the EU Incorporating the principles

170 171 173

Notes

179

Bibliography

211

Index

224

List of Tables and Figures Tables 3.1 Electoral systems used in the 2004 European Parliament Elections 3.2 Abstainers’ reasons for not voting in EP elections 2004 5.1 The most important issues facing their country as defined by EU citizens 5.2 GDP growth rates within the EU 2001–05

63 67 117 134

Figures 1.1 The legitimacy spectrum 2.1 Comparison between parliamentary ratification of the TEU and popular attitudes towards it 2.2 Comparison between support for EU membership and the Nice Treaty ratification 2.3 Comparison amongst popular attitudes towards the EU in 1991, 1998 and 2001 3.1 Voting levels amongst the EU-25 in their last three national elections (1990–2003) 3.2 Voter turnout for European Parliament elections and most recent relevant national elections 1979–2004

xi

13 51 55 56 60 66

Acknowledgements It has been said that it takes a whole village to raise a child. In the same spirit, I acknowledge that it takes a whole academic community to produce a book, and at the outset I want to thank those members of it whose work has directly informed my own and apologise to those whose indirect contribution, absorbed over the years, is not otherwise acknowledged herein. That said, my primary gratitude goes to the colleagues who assisted me by looking at my work as it progressed. These include: Clive Archer, Peter Barberis, John Gibbons, Mike O’Neill and Neill Nugent, all of whose constructive and encouraging comments have been of great assistance. I also owe a lot to the Politics and Philosophy staff at Manchester Metropolitan University, headed by Paul Cammack, who have been extremely supportive, with special mention of Gary Banham, whose specialist insights into Kantian philosophy were put at my disposal. My thanks are also directed to the anonymous reader who provided an overview of the book’s strengths and weaknesses. I want to thank my husband, Bob, who has proof read all my work, even though it does not belong to his own academic discipline, exercised incredible patience and supplied a lot of tea over the last few years. I also thank my daughters, Lisa and Annabel, and my sons-in-law, Richard and Steven, for providing me with three special incentives to complete my work – the new Europeans, my grandchildren.

xii

List of Abbreviations ACP AER CAP CCP CDP CEEC CEEP CEMR CET CFSP CoR Coreper EC ECHO ECJ ECSC ECU EDF EEC EFTA EIB EMS EMU ENP ENPI EP EPC EPU ERM ESC ESDP ETUC EU Euratom GDP GNP IGC ISPA JHA

Afro Caribbean Pacific [countries] Assembly of European Regions Common Agricultural Policy Common Commercial Policy Common Defence Policy Central and East European country Federation representing European Public Sector Firms Conference of European Municipalities and Regions Common External Tariff Common Foreign and Security Policy Committee of the Regions Committee of Permanent Representatives European Community European Office for Emergency Humanitarian Aid European Court of Justice European Coal and Steel Community European Currency Unit European Development Fund European Economic Community European Free Trade Area European Investment Bank European Monetary System Economic and Monetary Union European Neighbourhood Policy European Neighbourhood and Partnership Instrument European Parliament European Political Co-operation European Political Union Exchange Rate Mechanism Economic and Social Committee European Security and Defence Policy European Trade Union Congress European Union European Atomic Energy Community Gross Domestic Product Gross National Product Intergovernmental conference Structural Instrument for Pre-Accession Justice and Home Affairs xiii

xiv List of Abbreviations

MEP NATO QMV REGLEG RRM SEA SEM SMP TEU UNICE UNSCOM WEU WTO

Member of the European Parliament North Atlantic Treaty Organisation Qualified majority voting Conference of Regions with Legislative Powers Rapid Reaction Mechanism Single European Act Single European Market Single European Market Programme Treaty on European Union Federation of European Industry UN Special Commission Western European Union World Trade Organisation

Introduction

Not all that many people are all that interested in politics. It is true that there has been a decline in electoral turnouts over recent years, but it has always been the case that a minority corresponded to the Aristotelian and J.S. Mill model of the active citizen. The majority of citizens occupy the private sphere – concerning themselves with their families, their jobs, their other interests and so on – rather than participating extensively in the public sphere of collective action. Not many people are interested in the European Union (EU) either. That is partly because it is distant; partly because it is difficult to understand and partly because it is not very interesting a lot of the time. A glance at the language and acronyms associated with it – incomprehensible to the majority – helps explain a lack of popular enthusiasm. Opinions vary as to how much that matters. Many politicians, particularly those of a technocratic or bureaucratic bent, may prefer the notion of the plebiscitary citizen – voting (or not) for leaders and representatives and then leaving them to get on with the job of governing. The well-informed and interested citizen may cause as many problems as her/his participation resolves by calling leaders to account more frequently and sometimes less justifiably than the otherwise inactive voter. However, there may come a point at which mass popular indifference becomes dissatisfaction; and dissatisfaction becomes positive unrest. At this point, a government or regime – or system of government – is said to have lost legitimacy. This is regarded as more of a problem. Schmitter comments: ‘legitimacy converts power into authority’.1 Without authority, the exercise of power cannot be relied upon in the long run and it is also wasteful of resources because people may not act as they are required to straight away or even at all. It is also important to the citizen to feel that the government is legitimate. It supplies a sense of emotional security, and, if the majority of fellow citizens feel the same way, it provides stability to society to the mutual benefit of all. Defining legitimacy, however, in the absence of outright rebellion, is simultaneously very simple and outstandingly complicated. Everyone knows 1

2

Legitimating the European Union

when it is there, as we point out in Chapter 1, but no one can define what has established it – even to raise the question implies that it is absent. In the case of the EU, the question is raised quite frequently. It is raised by nation state political actors, especially when the EU can be held to be responsible for unpopular policies or when leaders’ unwillingness to reach a collective decision within the EU needs justification, and it is raised by the people, when they fail to turn out in high numbers for EU elections, and then have to try to explain to opinion pollsters why they have abstained from voting. The issue sometimes seems to approach crisis point – for example, when groups of citizens from nation states do turn out in high numbers to express their doubts about the EU in the form of a ‘no’ vote in a referendum on EU treaties. It is sometimes hard to understand why the popular debate about legitimacy concentrates upon the EU, which is only one grouping of nation states whose activities impinge upon the citizen. It may seem unfair that the EU, with some of the trappings of a liberal democratic polity, is regarded with suspicion, whilst other groupings of nations, without even a directly elected Parliament, attract relatively little popular attention or criticism. Frequently, discussions about legitimacy in the EU are set against the background that ‘the-EU-is-not-a-state’ – in that sense, it is no different from other international bodies. Thus, by implication, consideration of its legitimacy is either superfluous or unnecessary – the member states that comprise the EU are the holders of legitimacy, and that should be sufficient.2 This book rejects that argument. Whilst it is acknowledged that in an empirical sense, the EU is not sovereign and is therefore not-a-state in the same way as the countries that constitute it, the book argues that this is not the point. In fact, the idea of the EU as ‘not-a-state’ gives rise to more problems than it resolves. Member states’ leaders have consistently assured the EU’s citizens that ‘Europe’ is nothing more than business as usual in the field of international relations.3 This approach seems reminiscent of the maternal assertion that the spoonful of sugar the mother is offering is only sugar – it is not a method of administering cunningly concealed medication. The child, or the EU citizen, soon learns that this is a method whereby the distasteful/unfamiliar is dressed up as the sweet/familiar. Because it is camouflaged, it also implies that the additional ingredient is likely to taste unpleasant. The spoonful of sugary assurance thus creates distrust in the presenter, not trust in the remedy, and it will be even harder to get the child, or the EU citizen, to swallow the next dose. This distrust arises also because people, when considering government, will not usually think of statehood in terms of national sovereignty. ‘The state’ so far as they are concerned is that which has the power to rule their lives or some aspects of their lives. The point about legitimacy, in that sense, is whether that which has the power also has the right to rule. It is argued herein that the popular view of the state comes closer to the Kantian

Introduction

3

definition. A state is ‘simply a power’, but is also ‘a union of a multitude of human beings under the laws of right’.4 The challenge for the EU is that, as such, it should fulfil Kant’s requirements for this normative state. That is, it needs to demonstrate that its authority stems from the united popular will, and that those who rule within it are agents of that popular will.5 Looking at the EU and its governance from this perspective, it is not difficult to see where the issue of legitimacy comes in. The EU does not apparently suffer from a decline in legitimacy that used to be present. It suffers from a shortage of it. Somehow or other, the EU has never felt legitimate enough to do what it does. Always, alongside this perception, the EU has increased its scope so that a sense of legitimacy never seems to catch up with its increasing powers. The legitimacy that should act as a catalyst is not present, or not present in sufficient quantities, to convert those powers into authority. Political scientists have access to all sorts of theories that explain convincingly in political science terms that the EU is a perfectly legitimate polity.6 We also have an alternative set of theories that explain that the EU does not need legitimacy itself – it can live, parasitically, off the legitimacy of nation states (see above). We shall examine those theories in this book. But it makes no difference. Still the majority (a simple majority within the EU as a whole, and a convincing majority in the UK) are unhappy with the notion of ‘Brussels’ governing their lives.7 Neither political scientists nor politicians are very good at convincing people that they should feel differently on this question. And, in the end, legitimacy only exists if people feel that it does.8 Whilst this book does not attempt to convince people that they ought to feel differently, it does try to provide an explanation of why they feel as they do. It also attempts to put forward a few ideas about how legitimacy may be developed. The question of whether the EU ought to be legitimated is outside the scope of this book. However, the book does point out that if it is desirable for the EU to be legitimated, then fairly radical changes may be needed. To reach this conclusion, the book looks at legitimacy in relation to the EU from a number of perspectives, but always from the viewpoint of the citizens rather than from that of political actors or theorists. In other words, it links legitimacy theory to the way in which the EU’s citizens experience and react to supranational forms of governance. To simplify the complex nature of the EU, the book divides its development into four stages: the development of the technocratic polity; the evolution of the State-Centric EU; the emergence of the multi-level governance. The fourth ‘stage’ – the federal EU – exists in embryonic form in reality (although the Communities have always been organised along federal lines in the strict sense of the meaning), but its full emergence is currently only a vision, or perhaps a nightmare, to some political actors or citizens. Yet, the

4

Legitimating the European Union

EU has developed federal characteristics in terms of its division of competences, and this is relevant to the concept of legitimacy – which or what kind of competences should be granted to each level of governance? Hence, the book considers how different aspects of legitimation fit different models of the EU, but argues that in the end, the EU is experienced by its citizens as one thing, not several. It is suggested, following some political commentators, that the EU is sui generis.9 In the context of legitimation, this means that it is difficult to make predictions about what form of legitimacy may be needed as it evolves, and even whether it is possible to develop any form that would meet citizens’ demands. However, setting the debate in the context of Europe’s evolution to date gives a rational basis from which to consider future options. For this reason, Chapter 1 delves into Europe’s past as a means of examining sources of legitimacy. It provides a history of legitimacy, alongside a review of legitimacy theory, and it shows that legitimating factors have always been variable. Chapter 1 concludes by considering these factors first in relation to interactions between the citizen and the EU (i.e. to say, the potential that the EU’s forms of democratic activity have to confer a sense that its governance is acceptable) and secondly to the EU’s performance (how the EU, by virtue of its political effectiveness, could win popular support). As we commented above, the EU has never been perceived as being as legitimate as it needed to be, at least since the early 1970s. Since that point, legitimating factors, such as elections to the European Parliament (EP) alongside increasing EP powers, always seem to lag behind popular perceptions of what is needed at any one time. Chapter 2 looks at the EU’s development in this context, showing how the ‘four Europes’ of the EU’s governance evolved. It points out that the models are not successive. The ‘Technocratic Europe’, of the Communities’ earliest days, survived the ‘State-Centric’ development of the later 1960s and 1970s, and both continue to operate alongside a developing ‘multi-level governance Europe’. Federal Europe, in truth, present from the beginning, intertwines with the other three throughout. Thus, subsequent chapters explore how an active and powerful EU of the present and future could obtain the acceptance, and possibly even the allegiance, of its people. Each chapter notes, however, that each of the ‘four Europes’ have both different legitimating requirements and different potentials for increasing or reducing legitimacy. Chapters 3 and 4 concentrate on input legitimacy – that is to say, the impact of the roles people play within the EU. Chapter 3 examines the effect of the application of liberal representative democracy onto the supranational polity. It notes that, in this context, a little democracy, like a little learning, turns out to be a dangerous thing. A smidgeon of liberal democracy, Chapter 3 shows, is inadequate to satisfy a popular requirement for some degree of effective control. As Gorbachev discovered with glasnost and

Introduction

5

perestroika, providing a window of opportunity made people want to smash it, not gaze gratefully and admiringly through it. When a limited opportunity to vote (EP elections) is provided, it does not satisfy a demand for democracy; it focuses attention on it, and thus intensifies it. This provides another part of the explanation why the EU is regarded suspiciously in terms of its right to exercise power – the provision of direct EP elections opened the democratic can of worms. Since nation state leaders are clearly both unwilling to and incapable of offering much more (e.g., an elected EU president), other ideas need to be considered as well. To begin with, then, Chapter 4 looks to an alternative form of interactive and participatory democracy that is at least an EU-related phenomenon. Both chapters seek to show how legitimacy is demonstrated (how many people take part, and with what purpose) and what is its effect (how far has this led to an acceptance of the supranational level’s authority and a sense of identification with the supranational level). A second idea to be examined is that political legitimacy may be derived from outcomes. The next two chapters look at these prospects. Chapter 5 is interested in the EU and its citizens – what tangible benefits they have received from their citizenship, and how far this has led or could lead to popular consent to EU governance. To this end, the chapter looks at the kind of things that people want, and then examines the extent to which the EU supplies them. It also considers the extent to which people are encouraged to relate EU benefits to EU governance. Chapter 6 looks at the EU in the context of an international actor, asking whether the EU is gaining universal respect in the field of foreign policy, defence policy or as a humanitarian actor. If so, it argues, this respect could rub off on EU citizens, encouraging them to identify with a successful polity of which they are part. More than this, the extent to which the EU offers a different model of power – the way in which a post-state institution deals with the fundamental political questions – is considered. If the EU were developing a definable role and character on the world stage, one that could differentiate it from other models available, it could also be developing one of those elusive European values. The chapter suggests that, following Kagan, the EU does not come from Mars, but whether it comes from the peaceloving Venus or from the ponderous and bureaucratic Saturn, is another question. As a final point, the kernel of the argument of the book is advanced here. It is contended that successful EU integration is not dependent upon legitimation, but rather that successful legitimation is dependent upon integration. Unless and until the EU has sufficient capacity to deliver benefits under the jurisdiction of popular scrutiny, it will not ‘feel’ legitimate to its citizens. However, there is an obstacle. The obstacle is state sovereignty and the determination with which nation state leaders and member states’ citizens cling on to it. This statement seems contradictory. If people want

6

Legitimating the European Union

to hold on to national sovereignty, then they should hardly – legitimately – be deprived of it. However, the reason for the popularity of the concept of the nation state needs to be explored. People may well prefer the security of ‘belonging’ to a nation state; and in the past, the sovereign nation state has served its primary purpose of protecting them (give or take a couple of world wars and innumerable additional episodes). Nowadays, however, a sense of security may be an inappropriate response to an increasingly globalised world, wherein international problems such as international terrorism and world poverty affect the lives of nation state citizens, and from which the nation state can no longer offer effective protection. It may therefore be the responsibility of national leaders to put before their electorates a new prospect, wherein citizens’ rights and needs may be safeguarded better by the supranational polity, instead of resting upon the assumption that their primary purpose is to protect state sovereignty. The EU’s webpage makes the point that decisions are primarily made by a representative triad:10 “ • the European Parliament (EP), which represents the EU’s citizens and is directly elected by them; • the Council of the European Union, which represents the individual member states; • the European Commission, which seeks to uphold the interests of the Union as a whole.” This statement contains a comfortable assumption that neglects the fact that nation states have no interests to be represented at the supranational level.11 A nation state’s citizens have varied sets of interests, individually and in different collectives. The state itself has no single interest except in the purely notional sense of its legal identity because it is a state. Its only interest is therefore in protecting its sovereignty, in this case by preventing the encroachment of the supranational polity. Any other interests promoted are purely temporal, reflecting governmental not state interests, and are otherwise indefinable, except in the broadest sense. Laying aside the point that the definition of a state is symbiotic (legal identity makes a state a state; becoming a state gives rise to its legal identity), the logic implies that only representatives of national unity should be members of the Council of the European Union. The formal representatives of national unity are heads of state, not, in constitutional terms, heads of government – partisan politicians, who can only hope to represent a majority of national interests.12 In Belgium, Denmark, the Netherlands, Luxembourg, Spain, Sweden and the UK, for example, the hereditary monarch fulfils that function; in other countries it is the president.13 But it is as heads of government, not as heads of state, disinterested protectors of state unity, that national actors negotiate on behalf of ‘their’ nation states at meetings of the

Introduction

7

Council of the European Union. Their negotiations are termed ‘intergovernmental’, not ‘interstatal’, yet politicians’ legitimacy to be representatives of their state is rarely challenged as such. National ministers do not generally acknowledge the lack of logic in the function that they perform, although various sophistries, such as the constitutional assumption in the UK that they act on behalf of the Crown, are employed to allow ministers to negotiate on behalf of the ‘interests’ of their member states. However, since the EU’s citizens are already represented by the EP, national politicians have no real function in representing national interests within the EU. Yet, they continue to do so, and to claim, moreover, that the fact that this kind of negotiation takes place adds to EU legitimacy, on the grounds that their (usually indirect) election as a state’s government entitles them alone to represent the national interest.14 Instead of allowing that claim to stand unchallenged, this book suggests that what is really needed is a different role for national politicians to play at EU level – a role that enables them to work towards the creation, not the limitation, of the supranational polity, in the interests of the EU’s citizens. The EP could then assume the role of most national parliaments, considering and enacting legislation; scrutinising and tempering the activities of the political executive, on behalf of members’ constituents. Such a realignment of roles would do no more than replicate the arrangements for member state governance. No national cabinet or council of ministers is composed of representatives of territorial units, who regard their function purely in terms of defining and then defending the interest of those units. It may be objected that, quite apart from the ‘not-a-state’ argument, copying the arrangements current in member states is not an original idea, nor is it specifically suited to the supranational polity. This objection may be countered by pointing out that neither should the supranational polity be denied arrangements that have stood the test of time within member states, and that defining and separating functions between executive and legislature, whilst allowing them to check and balance each other, are demonstrably successful methods of ensuring that neither body abuses its powers. However, this counterargument is not entirely satisfactory. The EU, after all, whether or not it is a state, is a different development in terms of a polity, and copying and pasting member states’ governmental structures is unlikely to be fully appropriate. Nevertheless, it is argued that the suggestion is still valid, but on the premise of a necessary-but-not-sufficient mode of legitimating the EU. The EU does need more, just as nation state-based polities when they arose a few hundred years ago, needed more to justify their authority than did the Holy Roman Empire (see Chapter 1). More effective performance can help provide a legitimating factor, and may well be achievable following a redefinition of the roles of political actors, but, again, it is unlikely to be sufficient. If only because the EU is so large and so heterogeneous and because democracy, having been established, cannot be

8

Legitimating the European Union

discarded, there is a need to look to additional democratic practices, on top of those derived from liberal representative concepts. Suggestions made herein on this issue are more tentative, largely because they have not been tried. But it seems reasonable to suggest that more employment of participation, both in terms of consultation, expertise and actual policy making would help legitimation. Partly this could occur because of the input itself – involvement increases identification; partly because additional participation could improve effectiveness (see Chapter 4). Secondly, more use could be made of the EU’s citizens as a body. Referenda, for example, are problematic (see Chapter 4), but they do give an opportunity for a genuine voice of the majority – one of the bases for democracy – to emerge. Moreover, the strategic use of EU-wide referenda would enable the EU’s citizens to begin to see themselves as a unity. In the terms of the apparently discarded Constitutional Treaty, the EU could become ‘united in diversity’ by this means. Major issues, involving the supranational polity as a whole, could be determined by the collective; less significant ones, filling in the gaps of decisions made by the collective, could be resolved by extensive consultation with both groups that have special interests, and with groups that are definably disinterested. The EU and its development have always taken the form of a political experiment, and, as shown in Chapter 2, it began as a long-term experiment, the results of which would almost certainly be not delivered until long after its originators were dead. This kind of experiment, undertaken by those who were not seeking personal power, alone makes the EU unique. There is now, at the least, an opportunity for a new kind of supranational statesman/stateswoman to emerge that could lead the EU towards a new kind of legitimated political organisation. This book attempts to make a contribution to the process.

1 Legitimacy and Legitimation in the Old Europe

This chapter looks at legitimacy, considering how theories of legitimacy have developed alongside political developments since medieval times. From this, we consider how the ‘new Europe’ (the EU) may develop its own theory that can determine the legitimacy of its supranationalism. The chapter first analyses the meaning of ‘legitimacy’, and the way it is applied. The main part of the chapter examines the development of governmental legitimacy, as the relationship between government and people progressed. It shows how basic ‘top-down’ authority (where legitimacy was assumed to be God-given1 ) gave way to ‘bottom-up’ authority (where legitimacy was derived from the governed), as political thought and increased popular expectations gained sustenance from each other. The last part of the chapter discusses the similarities and differences between ‘old Europe’ (the Byzantine and the Holy Roman Empires) and the new. Europe has experienced integration before, and Charles de Gaulle, during the first discussions about the new European venture, had a vision of a resurrected Europe like that of the Emperor Charlemagne (see below), a prospect that ‘dazzled’ the veteran politician.2 It also inspired Jean Monnet, one of the EU’s Founding Fathers, to the thought that even if such a dream of a ‘ “Carolingian” Europe totally and immediately integrated’ must be rejected initially, that was no reason for not trying to achieve it in the longer term.3 Contemporary commentators have speculated that the EU has become something of a post-modern4 version of the Holy Roman Empire, with constituent states facing the same kind of problems (external threats) and having sufficient in common (cultural identity) to make forming an external legal system a rational response.5 The chapter concludes that a study of the history of legitimacy in Europe has two lessons for the EU. First, it demonstrates the adaptability of legitimating factors. Secondly, it points out that one-size-fits-all legitimacy is a relatively recent product. We may assume now that liberal representative democracy is the only show in town, but the system is less than two hundred 9

10 Legitimating the European Union

years old, and it did not evolve fully in Europe until the middle of the last century.6 Flexibility for legitimacy has been required in the past, and this chapter suggests that it may be required in the present and future.

What is legitimacy? What is legitimacy for? Legitimacy is a prerequisite of successful political government. It links those who rule to those who are ruled. The linkage may be a shared conviction. For example, both the ruler and those whom the ruler governs may believe in the divine right of kings. The linkage may be artificial – a device. A monarch may not need to believe that s/he has a divine right so long as her/his subjects do. The linkage may be an accepted system – for example, monarchy, oligarchy, theocracy, aristocracy or democracy. Alternatively, it may be invested in a particular government or individual, whose values and ends coincide with those of the citizens, and which, by whatever means, contrives to be popular or even revered. Defining legitimacy There are many definitions of legitimacy. It may be defined simply as the acknowledgement of the ruled to the rulers’ right to rule – in other words, it is the presence of authority. Yet, this does not define the prerequisite factors for authority. Schmitter suggested that legitimacy was comparable to a US High Court judge’s view on pornography: ‘I don’t know what it is, but I know it when I see it.’7 His own suggestion was that legitimacy only becomes a cause for concern when it is seen to be missing.8 At this point political scientists begin to analyse the origins of legitimacy. Schmitter made a fair comment, but it is not only political scientists who concern themselves with legitimacy. Building up popular consent has been seen as a task for governments for some time. Cox referred to the concept of trust, which she sees as the outcome of the level of social capital – the extent and quality of relationships between the ruler and the ruled.9 Usefully, Cox divided the term into interpersonal trust and institutional trust, which enables a distinction to be made between consent to government (interpersonal) and consent to a regime (institutional).10 Newman preferred the term ‘allegiance’, or loyalty to institutions of governance, which simplifies the concept.11 However, whilst this notion may be simpler, it adds to the basic idea of legitimacy. There is, for example, no need for demonstrated loyalty to governmental institutions or to ‘the flag’ for a system to be regarded as legitimate (although something more than tacit consent seems to be needed for modern democratic government to be considered legitimate). Even a protester or lawbreaker may instinctively accept the system that deflects or imprisons him or her. Similarly, the notion of allegiance omits some of the offsprings of legitimacy – for example

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political longevity. Protesters or lawbreakers may, despite their inner ‘allegiance’, break down a government or regime, if they are present in sufficient numbers, and if their disobedience is sufficiently extensive. Newman’s analysis was in part based upon Van Kerbergen’s article that compared allegiance to legitimacy. Van Kersbergen thought that allegiance was a more useful term than legitimacy, since he believed that legitimacy is normative12 . For him, it required rightfully instituted government, accepted government and popular acquiescence with the system (but not necessarily with a particular government).13 Van Kersbergen accepted that achieving the trappings of legitimacy does not guarantee allegiance, which he defined, following Milward, as:14 the willingness of a national public to approve and to support the decisions made by a government, in return for a more or less immediate reward or benefit to which the public is entitled on the basis of it having rendered approval and support. In other words, he called it a trade-off between the ruler and the ruled. However, it seems a curious redefinition of allegiance to include the idea of reward within it. Normally allegiance has been assumed to be one way – for example, from the vassal to the overlord, or from the subject to the state – an assumption acknowledged by van Kersbergen.15 Legitimacy, on the other hand, implies a two-way obligation, or at least that legitimacy has its price in terms of popular expectations. If those expectations are not met, at least in part, then there is a danger of reduced political legitimacy. Van Kersbergen’s overall argument, nevertheless, depends upon equating ‘trappings of legitimacy’ with legitimacy itself. They are not the same. Legitimacy is a concept – an idea, rather than a system. It may contain a normative element since there must be a practical or tangible means of securing it, but it is not the whole story. Beetham and Lord isolated three dimensions of normative legitimacy. They said that it should be rule bound (legal); that the rules should accord with socially accepted beliefs about the source of authority and the ends of governance (justifiable); and that those who have authority should do so by consent (legitimated).16 However, it is possible to think of systems, for example the EU, that have all of those elements, and yet are still not regarded as fully legitimate by the citizens. For Shore, legitimacy was bound up in the question of identity. His basic argument was that a regime cannot be legitimate unless its citizens share sufficient common interests to have a general will that can be embodied by their leaders.17 By this argument, the only legitimate governance is one that rules over a relatively homogeneous populace, and, he claimed, a democracy without a demos was left as a system that has only power – kratos.18 However, this assumption discounts the option of nation-building, which has been conducted with some success in the past. It is true, of course, that

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the unification of western European states has left behind it trails of subnationalism – for example, the French Bretons and Corsicans; the Spanish Basque and the British Scots, Welsh and Republican Northern Irish. Nevertheless, these regional identities, whose adherents are often in the minority even within their own areas, have not prevented the establishment of apparently legitimate national regimes. Cultural differences may be politicised, but they need not be. Often when they are, they require the assistance of myth, invented symbols and rewritten history. For example, the Young Pretender and his allies wore trews, not the kilt! In any case, a ‘common interest’ can take many forms, and it may be assumed that many citizens share an interest in a quiet life, alongside economic prosperity and social security. Fritz Scharpf, however, provided a more functional definition of legitimacy. He was concerned not with how legitimacy is derived, but rather with how it is demonstrated in terms of effective governance. Legitimacy required:19 a socially sanctioned obligation to comply with government policies even if these violate the actor’s own interests or normative preferences, and even if official sanctions could be avoided at low cost. Scharpf’s emphasis was therefore on the ends, rather than on the means of legitimation. He implied that one should be concerned about a legitimacy deficit at the point at which disobedience becomes a problem. Components of legitimacy From the above, we can see that legitimacy is complex, and that there is little agreement amongst commentators about its meaning. Drawing together the cited contributions, it may be said that a modern legitimate regime is one that: • has a normative element: rule bound, justifiable • has demonstrable popular consent, that is, citizens’ acceptance can be proved empirically • enables its citizens to identify with it20 • is authoritative – that is, it can claim sufficient unquestioned obedience from its citizens • meets popular expectations. Yet, there is still the impression that something is missing. Weber argued that the source of legitimacy was not important, but what matters was the idea that one’s government had the right to rule.21 If this argument is valid, the root of legitimacy is emotional, not substantial. People – not political theorists, governments or their bureaucracies – determine the extent to which a system is legitimate on the basis of their feelings towards it.

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From birth onwards, individuals experience authority. As babies, they do not question the right of their parents and carers to discipline them. Later (and sooner, rather than later, if their parents question their own authority), children begin to sense their own individuality, and their acceptance of parental control may become less automatic. Teenagers commonly rebel against those in ‘authority’. As adults, most individuals understand the need for authority, and tend – conditionally – to accept it. It is in the gap between the natural rebel and the rest of the citizenry that one may look for legitimacy. Where a majority or a sizeable minority, excluding, ‘the usual suspects’ are or become demonstrably dissatisfied, one may assume that political legitimacy is absent or in short supply. The legitimacy spectrum Legitimacy need not be absolute.22 Few governments, individuals or regimes have enjoyed total legitimacy. Legitimate governance is a governance that appears somewhere on the legitimacy spectrum (see Figure 1.1). Full legitimacy – that is a regime or government whose citizens accept without question its right to rule absolutely – is unlikely to exist in the twenty-first century. Most systems appear somewhere on the ‘conditional legitimacy’ part of the spectrum. A regime’s rights/powers depend upon its behaviour. In many cases, conditional legitimacy is assured by democracy. However, democracy is a double-edged sword. Whilst it protects the system, it does not protect the government, although those who lead in a democratic system still benefit because their temporary right to rule is guaranteed.23 Some systems and governments have limited legitimacy. A military dictatorship lacks legitimacy to the extent that it depends upon force. The more a regime depends upon force, the more limited its potential longevity.24 Thomas Aquinas, a supporter of monarchy as the best form of government, wrote in the thirteenth century that tyranny was unlikely to endure:25 For those who remain subject through fear will, when opportunity and the hope of success presents itself, rise up against those who command them: and the rising will be the more violent the more they have been constrained against their will and through fear alone    Tyrannical government cannot last long. This view is similar to Rousseau’s comment: ‘To yield to force is an act of necessity, not of will – at the most, an act of prudence.’26

Full legitimacy

Figure 1.1 The legitimacy spectrum

Conditional legitimacy

Limited legitimacy

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Other systems have limited legitimacy because they have not yet attained it, not because they never will. A state that is set up following forceful invasion or one that becomes unified for political, rather than cultural, reasons may or may not attain legitimacy. Some takeovers, military or otherwise, result in more or less accepted regimes; some do not.27 Hobbesian and Lockeian logic argues that a state will endure only to the extent that it fulfils the requirements of its citizens.28 Yet other systems live with limited legitimacy as one might live with a grumbling appendix. A regime soldiers on, suffering from flare-ups and painful episodes, but not reaching the point where its life is threatened. The EU currently provides a good example of this kind of system. The question here is whether the situation can be managed permanently in this manner, or whether the political equivalent of major surgery is required to resolve it. Europhiles tend to favour the first; Eurosceptics move towards the second; Europhobes would prefer the death of the patient.

The history of legitimacy in Europe One point that should be borne in mind in a study of the legitimacy of European governance is that it has a long history. The EU is not the first form of overarching government that has been experienced in Europe, and it is interesting to note that the development of legitimating governance has taken place alongside the development of government itself in Europe. It is particularly interesting that a different form of legitimacy was accepted for papal and imperial Europe than that which was accepted (and practised) at the local levels during the middle ages. It was not until the emergence of the nation state (early modern to modern) that a one-size-fits-all form of political legitimation began to appear. The following outline demonstrates the development. It is impossible to ascertain at what point in their social history people began consciously to demand legitimate government. Arblaster comments that the emergence of politics ‘as rational, regulated government as opposed to the arbitrary unpredictable rule of despots’29 was linked to the emergence of democracy in ancient Greece. It may be assumed that the subjects of these arbitrary rulers would not have considered the idea that the despots should have legitimacy. If the question had arisen, it is unlikely that the doubters would have been encouraged to explore the matter further. However, certainly from the development of democracy in Athens onwards, legitimate power, then derived from the people, became a requirement for government. This idea is known as the ascending theory of power; wherein a ruler or government relies upon the popular will to legitimise her/his rule. Tacitus (56–120 AD), in his De Germania published in 98 AD, described the Germanic tribes30 as representative democracies in which the ruler’s powers were limited to those which the electing assembly had given

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him, although more important matters were decided by the people, acting with the advice of their chiefs.31 A similar state existed in Celtic and in Nordic areas. A ruler who failed to represent the people’s will could be deposed with relative ease. The descending thesis of legitimate power However, from about the third until the thirteenth century AD, as Christianity took root, the thesis of the ascending theory of power gave way to the descending thesis, or, in this case, the theocratic thesis, in most of western Europe.32 There was, before the thirteenth century, no practical separation between church and state,33 and this made it possible for the ruler to invoke the deity’s authority anywhere s/he chose and thereby to achieve almost total control.34 The question was: who was to be the sovereign power in this early Europe with a supranationalist structure? Spiritual authority over Christians was established during the third century, giving rise to the ‘papal monarchy’35 and predating the establishment of the Holy Roman Empire by seven centuries. Pope Leo I (440–61) argued that popes were all the direct successors of St Peter (i.e., not of their immediate predecessors), who in turn had been given his authority by the Christ, and as such had complete control over the Christian church. Denys (or Dionysius) the Areopagite,36 a late-fifth to early-sixth century monk, developed the theory by linking it to the notion of hierarchy with God at the top of the celestial plane, with all power flowing from him. Imitating the assumed divine order, he applied this system to the temporal zone.37 St Augustine, writing during the sixth century, agreed that power was derived from God, and was delegated by him into the hands of rulers.38 Rulers were not, therefore, accountable to the people, but only to their Maker. Once established, this notion of centralised powers derived from the supreme deity was accepted almost without question for the next millennium. It did not, however, give guidance as to who was responsible for expressing God’s will. Ecclesiastical authorities were influential in perpetuating the descending thesis of power, but its success as a theocratic thesis was linked more closely with the political expertise of successive popes from Gregory I39 onwards. The arguments presented by Leo I, Denys and St Augustine applied in theory to the management of souls alone. They did not necessarily mean that the Church held authority over the secular ruler, although arguments defending its right to do so were also produced by ecclesiasts. During the fourth century, St Ambrose (c.340–97), the first person to develop a theory of the relationship between the church and state,40 had already put the secular ruler – then the Roman emperor – in his place, which was ‘within the church, not above it’.41 In his letter to the pragmatically Christian emperor, Valentinian,42 St Ambrose told him firmly that ‘in a matter I say of faith, – bishops are wont to judge of Christian emperors, not emperors of bishops’.43

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The conflict between the church and the emperor revolved around their differing concepts of the empire. Whilst the pope regarded Christendom (west and east Europe, with parts of Africa) as the Church, which happened to be the Roman (later Byzantine) Empire; the emperor regarded it as the Roman Empire, which happened to be a Christian one.44 Originally, the centre of the known world was Rome, whose emperor in pre- and early-Christian times, was in overall charge of an empire covering most of the present Europe and parts of Africa. However, in 330 AD, either to protect the centre from foreign invasion or because pagan Rome had become dangerous for him, Constantine, emperor45 since 306, moved the capital eastwards to Byzantium,46 which he renamed ‘Constantinople’. Constantinople then, rather than Rome, became the centre of the known world, and the Byzantine Empire was inarguably Christian. Constantine was the first Roman emperor to become a Christian, although historians differ as to why he took this step.47 Whatever the reason, Constantine’s choice of religion, along with his extensive powers, gave Christianity – a rather militaristic and elitist Christianity – legitimacy for the first time.48 His rule also resulted in codifying Christianity, after the Creed was adopted at the 325 Council of Nicaea called by Constantine. During Constantine’s tenure, the Church regarded the emperor as God’s vicegerent on earth, and hence acknowledged his absolute sovereignty. This belief lasted for several of Constantine’s successors.49 However, the papacy also regarded itself as sovereign. If a pope were validly elected (by the bishops, not by the people), he also was not thereafter answerable, as the direct successor to St Peter, to anyone – and this included to the emperor – except to God. Hence, a Christian emperor was held by the papacy to be a subject of papal jurisdiction50 – in spiritual matters. The problem lay in determining which matters were spiritual and which were secular, and, crucially, who had the power to determine which was which. The emperor held physical power; the papacy had the power of reason. Papal reasoning concluded that the emperor had duties, rather than rights, and that those duties were mainly concerned with defending the Church. Powers were conferred upon the emperor by divine favour, and no one receiving a favour could claim it as a right. In contrast, the pope, because he was the direct successor to St Peter, had absolute rights. Pope Gelastius I (492–96) defined the difference, arguing that the papacy held the (superior) authority (auctoritas) or legitimacy, whilst the emperor had only powers (potestas). As he wrote to the emperor Anastasius (491–518), eleventh in line after Constantine:51 There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power. Of these that of the priests is the more weighty, since they have to render an account for even the kings of men in the divine judgment.

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Anastasius’ successor, Justinus (518–27 AD), however, refused to recognise the pope as his superior, granting him only an honorary rank, and utilising imperial practical powers to ensure his own supremacy. For the next few decades, the papacy concerned itself more with doctrinal matters, but with Gregory I (590–604) the struggle for power began in a different form. Gregory I was a tactician, and he recognised that to obstruct the emperor openly would be dangerous. A widely travelled man, he also saw that, although most support for Christianity was in eastern Europe since the move to Constantinople (over three-quarters of Christians inhabited the east), the west had received much less political and theological attention.52 The west, therefore, might prove fruitful ground for papal propaganda. He therefore began to court western rulers, addressing them as ‘his dearest sons’ – that is, those for whom, rather than to whom, he was responsible. He also introduced the Latinised bible, succeeding in making Latin the main western Christian language, read and spoken by educated men (mostly priests), and also in codifying Roman law, since the bible was considered to be a legal document.53 The effect of Gregory’s campaign was to deepen the split between the east and west, in legal, cultural and linguistic54 terms. Gregory then demonstrated that the western rulers’ acceptance and exploitation of the descending theory of authority was a double-edged sword. Whilst ‘by the Grace of God’ deepened the legitimacy of western rulers, and avoided popular accountability, it also exposed their vulnerability towards a pontiff who had a claim to be even more spiritually designated. Gregory’s ‘dearest sons’ were beginning to owe their prestige to the papacy, and later popes incrementally increased this debt until the right to rule was both authorised and limited by St Peter’s heirs. It was Pope Stephen II (752–57) who, by backing the Christian Pippin’s seizure of power in the Frankish kingdom, helped increase the dependency of the western rulers on the papacy. He made use of a forged document, the Donation of Constantine, which appeared to show that Constantine had offered imperial power to the pope (then Silvester I). The Donation of Constantine agreed that the pope had refused it, but Stephen argued that since the power had been given, it still belonged to the pope, and could be reclaimed by him if he wished. Stephen presented this thesis to Pippin, who accepted it to the extent that he became the papacy’s faithful servant during his reign. Pippin also accepted a spiritual link between himself and the papacy, by agreeing to be anointed. His son, Charlemagne, forged another link when he was crowned ‘Emperor of the Romans’ by Leo III in 800, thus becoming the founder of the Holy Roman Empire. By this coronation, Charlemagne became the (reluctant) adversary of the official Emperor in Constantinople – the female ruler, Irene (797–802). Charlemagne accepted the pope’s jurisdiction over spiritual matters, although he retained the right to determine what those matters were. However, the relationships between his son, Louis; his grandson, Lothar; and his great grandson, Louis II, and

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the papacy made the authority of the Emperor of the Romans still more subordinate to that of the pope. By 875, the emperor, Charles the Bald, was actually appointed by the Pope, John VIII (872–82), and this practice continued until the thirteenth century.55 By now, ‘divine sanction’ had become the primary legitimation method of imperial rule. By this means, the eastern emperor became degraded to a Greek ruler, unsanctioned by God, and hence a valid target for the Crusaders of the thirteenth century. The importance of this account in relation to theories of legitimacy is that it shows, first, how a universal acceptance of the descending theory of legitimacy sprang from a power struggle between spiritual and temporal leaders. This suggests that political leaders are capable of utilising spiritual arguments to their own ends. Secondly, it shows the significance of legitimation. In the medieval case, it was important enough for western rulers to accept a reduction in their autonomy in order that they might achieve it. The western emperors were not aiming to become the servants of the Church, but by accepting the helping hand of successive popes they were led towards this situation. Ultimately, their legitimacy depended, not upon ‘the grace of God’, but upon a human being who claimed that he was the mediator for it.56 However, we are speaking of the medieval world. As noted earlier, this was a world that did not distinguish between the church and the state. It was also a world in which the norm of the nation state had yet to be born, and the names of countries referred primarily to geographical areas. Legitimacy was important, but it was not popular legitimacy that was required. The emperor needed the support, primarily, of the educated and the nobility – the only people likely to be aware of his existence. Where a feudal system existed, the majority of people were only a threat to an emperor inasmuch as local nobles could mobilise them in a strike against imperial power. If government meant anything in the first millennium AD, it was the local baron/leader and his servants who personified it. A feudal overlord needed legitimacy too, and this too was provided through the Church. If the local priest (tending to be the only one with a formal education) preached tellingly about the spiritually inspired duty of the lowest to their betters – that is to say, mirroring the hierarchical nature of the descending thesis – then the support needed for effective local government would be forthcoming. Where there was no feudal system (e.g., in Germany), there was a tendency for the lower strata of society to manage their own affairs in their village communities and townships, with the assistance of their elected officials. These communities were exercises in practical self-government – working under, although not consciously aware of, the ascending thesis of legitimate government. Comparatively little was written in medieval theology about the duties of those in charge towards the material well-being of the people. They were,

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however, held responsible for their subjects’ spiritual welfare, and this could be delivered through the medium of the priest. Pope Gregory I stressed the importance of setting a good example in priestly care for his ‘flock’, but he made it clear that he was referring to people’s spiritual, rather than their material, interests:57 For he who is required by the necessity of his position to speak the highest things is compelled by the same necessity to do the highest things. For that voice more readily penetrates the hearer’s heart, which the speaker’s life commends, since what he commands by speaking he helps the doing by showing. It may need emphasising that the descending thesis of power and authority leaves the people, in general, with almost no legitimate power, but with an impressive list of duties, headed by ‘unquestioning obedience to their betters’. The ascending thesis of legitimate power However, it should be noted that the Christian church was based upon a person who preached that riches were an evil, that poverty was a blessed state, and that everyone was responsible for their neighbour’s well-being. The parable of the Good Samaritan makes it plain that the man on the roadside needed practical, more than spiritual, assistance.58 In reality, particularly as the Middle Ages advanced, priests and monks developed a role as carers as well as preachers,59 and fathers of the Church too were beginning to concentrate upon matters such as poverty relief. This theme of responsibility, and later of duty, towards the lower orders of society was reflected in theological writings, and began to be framed in the language of a ‘social contract’, whereby a leader owed his people peace and justice in return for their support. This bargain, of course, initially applied only to the secular monarch. The papacy was still the elect of God, and was responsible only to him. An early example of this kind of thought can be found in the writings of Manegold of Lautenbach, said to be the first writer to argue in terms of a social contract.60 In Ad Gebehardum Liber, written c.1084, Manegold suggested that people were entitled to depose a tyrannical monarch who violated the agreement he had formed with them. He was writing at the request of the pope, Gregory VII (1073–85),61 who was concerned about the secular power of the German Emperor Henry IV (1084–1105) whom he had excommunicated in 1076. Therefore, Manegold was not suggesting that the right to overthrow applied to a spiritual authority. However, as resentments against papal jurisdiction (particularly amongst secular monarchs) arose, the argument could be equally well applied to it.

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The theologian St Thomas Aquinas (1224–74), who was not an advocate of popular rights,62 was not a supporter of arbitrary tyranny either. He wrote: ‘As government by a king is the best, so also government by a tyrant is the worst form of rule.’63 Like Manegold, Aquinas theorised that a community had the right to depose a ruler who had become despotic: ‘for the tyrant lays himself open to such treatment by his failure to discharge the duties of his office as governor of the community, and in consequence his subjects are no longer bound by their oath to him’.64 Whilst he believed that all power came from God, Aquinas considered that the people could serve as God’s instrument in delegating this power:65 The best ordering of power within a city or a kingdom is obtained when there is one virtuous head who commands overall; and who has under him others who govern virtuously; and when, furthermore, all participate in such government, both because all are eligible, and because all participate in the election of those who rule. This is the best form of constitution which results from a judicious admixture of the kingdom, in that there is one person at the head of it; of aristocracy in that many participate in the government according to virtue; and of democracy or popular rule, in that rulers may be elected from the people and the whole population has the right of electing its rulers. Aquinas, despite his religious life and outlook, brought a degree of secular rationalism to western political thought, at a time when the formerly unquestioned authority of the Church had worn a little thin. In effect, Aquinas discussed what government was for, and, in so doing, opened the question for later thinkers, such as Hobbes, who found answers in the context of a ruler’s duties, as well as his rights. This notion of a social contract was eventually to lead to a theory of government based on popular consent, and hence to the ascending notion of legitimate power in the western Christian world. However, it should be noted that there is no distinct correlation between theoretical writings and developments in political organisation. Philosophers’ and theologians’ thinking reflects their experience, and political developments tend to take place on the grounds of necessity as much as by means of the influence of theoretical argument. It was noted above that whilst popes and emperors and their bishops and supporters were engaging in a millennium-long battle for supremacy, the people in western Europe in general were simply living their lives as they had always done, either under a feudal overlord or in a self-governed community. In either case, powers and duties on both sides complemented each other. A lord needed the active support of his villeins or serfs in order to get his fields ploughed efficiently; the peasantry needed the assistance of the local baron in hard times. An official in a village community or township owed his post to his electors and

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they could depose him if they wished; the inhabitants needed to receive the fruits of the efforts of their officials. The idea, therefore, of the ascending thesis of legitimate power was being practised for centuries before it became a theory. During the later Middle Ages, there were signs of spiritual unrest. For example, the contentious question of whether the clergy should be allowed to marry had caused a split amongst ecclesiasts. Perhaps unwisely, the papacy appealed over the heads of the local clergy to their congregations. This action indicates that even the papacy was aware of the need for popular consent in extreme situations. However, the fact of the appeal was to lead to the mobilisation of the lay masses. The people, bred within communities where it was natural to believe that the right to exercise power came from themselves, once activated could utilise their experience against as well as on behalf of the Church.66 Unsurprisingly, the Church reacted repressively towards insurrection, whether on the part of the clergy or the laity, and, equally predictably, the result was additional, rather than reduced, discontent. As usual with political developments, actions undertaken for one purpose can have unexpected and unintended consequences. For example, the idea of the monarch being ‘by the Grace of God’, owing his authority to the supreme authority of the pope, had advantages to the extent that it was some centuries before the disadvantages of subordination were seen clearly. François Premier (1515–47), and his predecessors, kings of France from the ninth century onward, had ruled under the title ‘Most Christian King’, and the Roman emperors, by the time of Charles V (1519–56), had their authority enhanced by being titled ‘Holy Roman Emperors’. The king of England, Henry VIII (1509–47), had no such advantage, and it may have been his hopes of gaining it that encouraged him to write his book against Protestantism: In defence of the Seven Sacraments. The effort earned him the title of Fidei Defensor (Defender of the Faith), presented by Pope Leo X in 1521. However, Henry’s faith in the papacy did not survive Leo’s next but one successor’s refusal to countenance the king’s divorce from Catherine of Aragon. Henry’s response, 1532–34, was to ‘divorce’ Pope Clement V, designate himself as the head of the English (still Catholic) church and thereby grant his own divorce. The king failed to understand that not only had he awarded himself supreme authority by his action, he had also demonstrated that it was possible to cast off apparently supreme authority. Henry suffered little from this, since his own charisma carried him through, but his successors’ eventful reigns indicated that his subjects had learned the lesson he had provided to them. It was in these converging circumstances, although naturally they differed in the various countries within western Europe, that space for an opposing thesis of legitimate authority was created. The theory of the social contract, which took some centuries to emerge in full, was therefore as much a product as it was a shaper of its times.

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Whilst Manegold, Aquinas and their contemporaries had opened the question in theoretical terms, it was not until Thomas Hobbes (1588–1679) wrote his Leviathan (published 1651) that the idea took centre stage as a political theory. There are diverging views about Hobbes. Some scholars regard him as authoritarian, with his uncompromising statements on the absolute power of the ruler and the obligation of the subjects to obedience.67 However, if he were, then Hobbes was a utilitarian authoritarian. Hobbes required the sovereignty of the ruler since without it a ruler would be unable to carry out his (absolute) duty to his people – to secure them from both external invasion and internal insurrection.68 It is for this reason only that people had agreed to forsake the ‘state of nature’ (i.e., an imagined existence that pre-dates the formation of society), and form a civil state, or ‘commonwealth’.69 The people had not made a contract with the ruler, but the ruler was established by means of a once and final voluntary act, the contract (‘covenant’), that people had made amongst themselves in order to form what Hobbes designated ‘civil society’.70 The contract bound the people to obey the ruler, but it did not bind the ruler, who thenceforward had the absolute powers that he would need in order to guarantee the terms of the contract.71 The people agreed to form the contract, according to Hobbes, because their priority was security for lives and property,72 unavailable in a lawless state of nature, where even the strong man might be taken unawares.73 Although the sovereign was not bound to serve his people by protecting them, he would do so, because if he did not, he would be overthrown and replaced.74 Hobbes did not endow the people or a foreign invader with the right to overthrow the sovereign, but he knew that either could have the power to do so if the ruler were inadequate or if his competence were less than absolute. Hobbes, then, was not a supporter of the social contract in the sense of the trading of rights and responsibilities between the ruler and his people. He did, however, support the notion that government is for the people, if only in the sense that it existed and was founded upon, the basis of popular, rather than monarchical, need. Hobbes was a contract theorist in the sense that society, not sovereignty, is incorporated by means of a (notional) covenant. Hobbes was also a product of his times, however. It should be noted that he was writing during a turbulent period. A civil war75 had taken place in England between King and Parliament that ended with the beheading of Charles I (1625–49), a believer in the divine right of kings. Hobbes was perturbed by the implications, and, to some extent, Leviathan reflected his concerns. John Locke (1632–1704) took contract theory further. His contribution to the ascending theory of legitimate authority was the notion of popular consent. Locke argued that people were born free, equal and rational, in a state of nature less fearsome than Hobbes’, but lacking government, so that only people’s reason discouraged evil deeds and only natural consequences punished them if they were committed. People rescinded this state to form

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civil society only because the state of nature could not safeguard adequately their ‘life, liberty and estate’,76 particularly after the invention of money, which enabled individuals to accumulate more than they could use. There was a need for a neutral arbitrator that could be provided only by means of government operating under the rule of law. Locke’s government, therefore, was limited, rather than absolute. Its subjects had the right of appeal under a law that did not permit the ruler arbitrary powers,77 and a government that acted in an arbitrary or tyrannical fashion would be regarded as legitimately dissolved since it had taken from the people powers that they had never agreed to cede to it.78 In such a case, the people had the right to revert to their original freedom or to set up a new legislature.79 The members of the society were under an obligation to submit to majority will, because otherwise the society cannot survive, but the essence was the notion of consent, and the people ceded only enough power to government to ensure that their lives, freedom and property might be safeguarded:80 And this, that which begins and actually constitutes any political society is nothing but the consent of any number into such a society. And this is that, and that only, which did or could give beginning to any lawful government in the world. From Locke, then, we derive the principles, first, that only the people can institute legitimate authority, and, secondly, that they accept such authority only within limits and only under their own terms. Like Hobbes, Locke saw government as a means to popular ends. He differed only in terms of what comprises those ends. The notion of exchanging freedom for government, and exchanging political obligation for the satisfaction of needs under that government constituted a social contract that integrated the ascending notion of legitimate authority. Power arose from the people and was exercised for their ultimate benefit.81 With Locke, as with Hobbes, it is useful to note that his Second Treatise (1690) was both timeless and a product of his times. Locke is regarded as being one of the forefathers of both the American and the British constitutions and the doctrine of popular consent is now taken for granted. However, his views reflected the times that gave rise to the ‘Glorious Revolution’ of 1688–89 that ended with the abdication of James II of England and Scotland (1685–88) and the substitution of the Whig joint rulers – William III (1689–1702), grandson of Charles I, and his wife, Mary II (1689–94), James’ daughter. James II, like his father and grandfather, Charles I and James I (1603–25),82 had some notions of the divine rights of kings; William and Mary ruled under the doctrine of a monarchy limited by a constitution that guaranteed parliamentary rights.83 Locke’s arguments, however, were far from the notion of a government legitimised by democracy, or even by means of representation84 in the terms

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that we see it. His idea of consent was that of a single act, taking place when a society was founded, and undertaken by those who agreed to abandon their individual freedom in return for the protection offered by society. For their descendents, consent was tacit, indicated by the acceptance of political obligations, not by action.85 Even the right to overthrow a government existed only in theory. Locke offered no guidance as to a legitimate means of establishing an alternative. The liberal democratic thesis of legitimate power In the United Kingdom, the Glorious Revolution was the last one. Democracy thence evolved as a result of constitutional change, rather than of insurrection. However, in continental Europe there was an example that encouraged this constitutional development. In France, the substitution for an apparently absolute monarchy by a (short-lived) popular democracy was achieved by means of one of the most violent revolutions ever known. The French Revolution (1789–95) had many begetters. Political ambition on the part of the Duc d’Orléans and, later, the less noble Danton and Robespierre, was one instigator. The crumbling of the French system of government, which removed local barons from their estates and thus the care of their peasantry, and kept them dancing attendance on the king (it prevented their rebellion), was another cause. The weakness and prevarication of the last pre-revolutionary king, Louis XVI (1774–91) – a man who had inherited his predecessors’ belief in the divine right of kings, but not their abilities – and the propaganda about his family and their extravagance were other contributory factors. Economic crisis – the result of monarchical expenditure and a series of costly and ineffective wars between France and the rest of Europe – leading to excessive taxation on the peasantry (but not on the nobility) was yet another reason. However, the French Revolution also had theoretical forebears. These were a group of philosophers, including Montesquieu (1689–1755), Voltaire (1694–1778), Diderot (1713–84) and, particularly, Rousseau (1712–78), who helped to launch the Enlightenment. The Enlightenment envisaged a change in the style of thinking. Instead of unthinking acceptance of the old ways, backed by faith in God and in the institutions of government, Enlightenment rationalists encouraged questioning and reasoning. Montesquieu was opposed to arbitrary rule, and believed in government based upon political principle, such as a belief in the rights of individuals. He also advocated a form of democracy, albeit based upon the open ballot.86 Voltaire supported monarchy and hated violence, but believed in rational thinking and political reform. Diderot, the materialist philosopher, and editor of the Encyclopédie, to which almost all significant French writers on the Enlightenment contributed, opposed all established authority, whether secular or spiritual.87 All of these philosophers asked questions about the sources of authority, arguing

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that tradition or blind belief as bases of legitimacy should be replaced by a more active and participatory source. Jean-Jacques Rousseau went further than the others by developing a new principle for the legitimate basis of governance and also by providing a rather impractical method for bringing it about.88 Rousseau was a contract theorist, and, as such, based his principle on the ‘natural’ state of man without society. His state of nature, however, was founded upon freedom and equality – which he saw as an ideal state of affairs.89 Rousseau argued that any decision to move away from that situation and to enter into a contract to form civil society would be based only upon a desire to maximise that ideal.90 Thus, a society that practised coercion of any kind contradicted the purpose of having a society and automatically negated any contract made by its founders. Consequently, a leader who ruled by using force, or one who governed by ‘right’ of conquest, had no legitimate (natural) authority.91 Rousseau’s alternative was a society based upon the absolute ‘law of freedom’, to which every covenanter signed away all rights.92 Neither freedom nor equality (as in a state of nature) was lost thereby, since the principle of freedom to which each participant signed up was paramount, and since, because all had renounced their exclusive rights to society, no individual had power over any other person. It is a theory of popular sovereignty: that is, absolute democracy. The state is the people collectively, and each individual is bound equally by the state.93 A governing principle of the General Will was the bedrock of legitimacy in Rousseau’s theory. This will he assumed to be a will towards freedom, and it was the expression of the intrinsic nature of human beings, therefore shared by everyone. Hence, the General Will could never be a will towards coercion or one that restricted freedom. Certainly, individuals might have different wishes, and added up (forming the ‘will of all’), these wishes could, in theory, threaten freedom or equality. However, ideally, the people, when making decisions, would not consult their individual preferences. Instead, they would naturally consider, as citizens of a self-ruling state, what best maximised collective freedom and equality to the benefit of the whole society. If people were unable to see this (as human beings, they were fallible), it would make little difference, since individual preferences would be likely to cancel each other out, and hence lead to the General Will by a different route.94 Rousseau has been criticised on the grounds that he was a totalitarian, or that his theory would lead to a totalitarian state. Rousseau took pains to defend his theory against the accusation of totalitarianism. People would be ‘forced to be free’, but this initial use of force would only unlock their individual potential, liberating them from the constraints imposed upon them by their former society. People who refused to obey the general will could be punished, but what motive could they have for failing to want to maximise their own freedom and equality? The legitimacy principle withstands this criticism, at the least, for the majority.

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The allegation that Rousseau’s theory would lead to a totalitarian state is fairer. There are two grounds for the charge. First, it could be said that Rousseau was impractical. To advocate establishing a society based upon an assumption of a general will towards freedom and equality was to misunderstand human nature (or at least human nature as it had already been deformed by existing societies) and to ignore the reality of heterogeneity. There was no general will of any kind to be found amongst people of different origin, class and background, so the legitimacy of a governing principle falls. Secondly, the effect of the French Revolution, which Rousseau is said to have inspired, did not lead to an ideal society based on freedom, equality and brotherhood. It led (despite the rhetoric) to a Reign of Terror based upon slaughter, coercion and inequality (as illegitimate as possible, and, as Burke predicted, destined to be short-lived). The Terror appeared to show the impracticability of Rousseau’s theories, although the small Swiss communes upon which they were based had more positive experiences. The last criticism highlights the relationship between theory and governmental practice. Rousseau provided the philosophy, but the revolutionaries interpreted it on their own terms, since they had the power to do so. Rousseau provided an ideological principle of legitimacy; the revolutionaries exploited it. Edmund Burke (1729–97), in his Reflections on the Revolution in France, written supposedly to alert his political colleagues to the dangers that they faced in the UK, inadvertently exposed this. He emphasised the motives of the revolutionaries, considering them self-interested, mercenary and immoderate,95 although the theoretical basis of his criticism was related to his view of the essential inequality of humanity.96 In Burke’s view, humanity had only a small proportion of men of wisdom (civilised persons), and it was they, if any, that should lead the process of change. Burke’s legitimating principle was based upon the idea that tradition and respect for authority (secular and divine) would constitute sufficient security amongst the people to make governance acceptable to them. His views can be regarded as conservative counterarguments to those of the Radicals and Enlightenment theorists. Burke accepted that governmental legitimacy ascended from the people, but it was to be found in time-hallowed institutions and constitutional arrangements that reflected the accumulative work and experience of past generations.97 Democracy was a poor substitute for tradition, because it could only make use of the judgement of contemporaries, which was bound, by its nature, to be short-termist and self-interested:98 The individual is foolish. The multitude, for the moment, is foolish, when they act without deliberation; but the species is wise, and when time is given to it, as a species it almost always acts right. Burke was a Whig, not a Tory – that is, he was a supporter of constitutional monarchy. He was opposed to what we should now term ‘illegitimate

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government’, which he applied to British rule in America, but not to the French ancien régime. Burke had supported the American War of Independence. He believed that British rule in the American colonies had lost legitimacy, because it had taxed them without their consent and without enabling them to be represented; subjecting the colonies to legal slavery,99 and thus could only be sustained by force. This meant that in the long term it was unsustainable.100 The French Revolution was a different matter. Burke thought that political change ought to be gradual, and, especially, it needed to be based on that accumulated ‘wisdom of the ages’ which he regarded as the equivalent of the wisdom of God, working through human experience.101 The French Revolution required sacrificing too much of this. It meant losing all that was good, as well as all that was faulty, within the ancien régime. It was ‘a war between the partisans of the ancient, civil, moral, and political order of Europe against a sect of fanatical and ambitious atheists which means to change them all’,102 whose leaders had ‘made a schism with the whole universe’.103 It had overthrown a right to rule that for Burke, as for the papal defenders of the medieval world, depended not upon the behaviour of the ruler but upon the means of his attaining office. In the case of France (and Britain), this right was hereditary.104 Moreover, Burke believed, the Revolution that had overthrown a whole society in this manner was bound to fail.105 Any system of government that arose from it would never be legitimate, because there was no security for the former subjects to depend upon. All that had sustained their daily lives – belief in God, ancient institutions and even the names of the months of the year – had vanished, leaving post-revolutionary citizens to find their own way in a strange and bewildering new world. Unrest was certain; counterrevolution was probable. Burke supported the British constitution. For him, the Glorious Revolution had issued in a close-to-perfect balance between the people and their leaders. The monarch was controlled by Parliament;106 a limited number of ‘the people’ could restrain Parliament by denying electoral support. Before the UK Reform Acts of the nineteenth and twentieth centuries, the franchise was very restricted, although propertied persons did have a vote in some boroughs.107 Burke did not simply want the franchise to be limited; he also believed that those who possessed the vote should place their trust in their representatives, and not aspire to exercise further democratic rights. Burke’s Bristol electorate were told that whilst a responsible representative should be prepared to listen to his constituents, they should not believe that they could mandate their member.108 The representative was responsible only to his [sic] own conscience and judgement, which would guide him into making wise decisions in the national, rather than local, interest.109 Burke’s choice of words shows that he shared with Rousseau a belief that there was such a thing as a collective national interest.110

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At this point, the majority of the political elite would have agreed with Burke’s views. However, the French example, which echoed to some extent Radical opinion in England, and which found expression in the earlynineteenth-century Radicals and the Chartists of the 1830s, persuaded the more progressive of the later Liberals to move towards the first of the extensions of the franchise in 1832 in Britain. From this point onwards, democracy, as opposed to representation alone, became a potential legitimating factor throughout Europe. Formerly, ‘democracy’ had been a pejorative term; now it became an ideal to which to aspire. In most of the current states of the EU, all men [sic] had the vote by the end of the First World War.111 It is difficult to say, however, whether democratic representation as a legitimating factor led or followed extensions to the vote and other components of liberal democracy. The vote was (arguably) sought as a means to an end. In the mid-nineteenth century, the new ideas, added to the experience of adverse economic and climatic conditions, brought about a sense of unrest that culminated in revolts in France, the German and Italian States and the Habsburg empire.112 All of the revolutionaries wanted freedoms. Frenchmen wanted universal male suffrage,113 but radicals in Germany and Italy were seeking national unity as well,114 whilst the rebelling citizens of the Habsburg countries wanted independence from the empire. Whilst the revolutions were generally held to have failed, gains in terms of freedoms and votes were made in the short term, and in the longer term, most of the radicals’ aspirations were met. The UK avoided revolution, but it experienced unrest. The Chartists, for example, showed signs of class-consciousness. Political equality was expected to lead to the economic and social benefits that the working classes lacked.115 On the other hand, extensions to the franchise in liberal terms were desirable as an end in themselves towards political, rather than towards economic or social, equality. It is reasonable to suggest that awakening political awareness, in part resulting from both revolution and radicalism, added to an increasing classconsciousness, resulted in attempts made by governments to suborn the aspirant, newly politicised classes by offering them the vote.116 In other words, it was political pragmatism, rather than philosophical reasoning, that led finally to universal suffrage. However, this pragmatism was a response to the new ideas, and the success of the policy demonstrated the legitimation potential of representative democracy. A second point that can be drawn is that the notion of a united nation state, rather than an empire or a sub-state, had gained in popularity. Neither Germany nor Italy gained unity by means of the revolution, and the Austrian empire still had some time to live,117 but the process of the formation of nation states, which had begun under the Peace of Westphalia in 1648,118 was soon to be completed by means of the 1914–18 World War. In fact, the development of the Westphalian state system led to the evolution of state, as well as national, identity. The ‘Peace’

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of Westphalia was the generator of militarily efficient states, whose ability to engage in conflict with one another became a defining norm of the nation state until at least the middle of the twentieth century, when the formation of the EC demonstrated a possible alternative. Hence, by the early twentieth century, the ballot was recognised both as a legitimate and as a legal means of establishing a government in what had become a Europe of sovereign states operating under the principle of liberal democracy. The older ideas of legitimacy had not entirely been discarded – for example, Article 6 of the Irish Constitution declares that ‘All powers of government, legislative, executive and judicial, derive, under God, from the people   ’119 (author’s emphasis). However, it is the people, not the deity and not his representatives on earth, who hold the key to modern political legitimacy.

Towards a thesis of legitimate power for the twenty-first century The examination of the development of the ‘old Europe’ shows that legitimating factors and sources differ depend upon the phase of development or upon the level at which government is delivered. It also shows that the requirement for popular legitimacy for the higher levels of government was a late entrant, although elites have generally been concerned about the legitimacy of other elites from the start. In particular, this concern related directly to their personal level of legitimacy. For an emperor to accept the legitimacy of the pope’s authority over secular matters, for example, was also to accept a corresponding reduction in his own legitimacy over those same matters. What complicated the picture, especially in the later phases of the Holy Roman Empire, was the rulers’ gradual acceptance over time that their rule was sanctified by the same pope. The later rulers laboured under the paradox of having their secular legitimacy diminished from the source that had, apparently, endowed them with it in the first place. Emperors and kings reacted violently, with some treating the descendants of St Peter as political pawns120 and others rebelling outright against their ultimate authority,121 to the detriment of the legitimacy of ruler and pope. The sociologist Max Weber (1864–1920) was not concerned about the sources of legitimacy. His interest in the subject was strictly empirical. If legitimacy were present, it did not matter from where it was derived. He suggested, however, that there were three ‘inner justifications’ – that is to say, justifications that were based upon intuition, rather than upon reason. These legitimating factors were: tradition (‘the authority of the “eternal yesterday” ’); charisma (the ‘extraordinary and personal gift of grace’); and legality (the validity of ‘rationally created rules’ and popular trust in them).122 Of these, the first two are recognisably descending, rather than ascending, theories of legitimacy.

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These factors provided ideal models only – Weber recognised that the ‘pure’ type was rarely found in reality, and he accepted that civic obedience resulted from fear and from hope as much as from acceptance of legitimate government.123 What is interesting about Weber’s theory is his lack of concern for means of legitimation. As a sociologist, Weber was interested in why people behaved in the way that they did, rather than in inventing a rationale for existing practices that commanded popular obedience. Weber died before learning from experience that charisma, as personified by Hitler, Mussolini and Franco, for example, could help establish regimes whose legitimacy was temporary, but whose powers went deep. However, Weber’s approach is helpful to the student of the EU in that it clears the way for theorising legitimating factors, without depending upon any past form. It would, one can infer from Weber, be a mistake to assume that representative democracy has now gained the ‘authority of the eternal yesterday’ as the only possible legitimating factor. The discussion above shows how legitimating factors have varied. ‘Tradition’, with sprinklings of ‘charisma’, was the dominant theory until the descending thesis of legitimacy gave way to the ascending thesis as the Middle Ages progressed. At this point, ‘legality’, at first defined by constitutionalism, then by liberal representation and finally by elected representation, became the primary means of establishing legitimate governance, although ‘charisma’ played a part in western Europe until the 1970s, when the last of the dictators in the southern states died or were deposed (see Chapter 5). Also, in the matter of elected representation, it is still possible to see a role for ‘charisma’, and, at least until the last three decades, there was a high degree of popular trust in traditional institutions.124 From the past discussion, then, we can note that there was correlation between political events and theories of legitimacy within Europe. As conditions in Europe changed – sometimes by evolution, occasionally by the actions of political leaders – so theories of legitimacy developed. The Roman Empire gave way to the holy writ, which in turn gave way to the Byzantine and Holy Roman Empires, and the empires gave way to the Europe of states. During the twentieth and twenty-first centuries, we are (arguably) seeing the growth of a new phenomenon in the supranationalist EU.125 There is a warning lesson here, though, for new Europe. If the emperors from Constantine onwards had not allowed their own legitimacy to depend upon the spiritual backing of the papacy, the Holy Roman Empire might have become a Secular Roman Empire – with its leaders developing their own autonomous form of ‘top-down’ legitimacy. The new Europe could take note of this lesson. The substitution of ‘liberal representative democracy’ for ‘papal-derived spiritual authority’, and hoping, like the emperors of old Europe, that this can be utilised at second hand, has already put at risk the development of an alternative form of legitimation. This is an uncomfortable thought – being in favour of liberal representative democracy is like

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being against sin. However, the extraordinarily limited liberal representative democratic opportunities provided to citizens of the EU has only made them notice the poor quality of liberal representative democracy within the EU, as Chapter 3 shows. The popes of the old Europe did not want to function only as legitimating factors for the emperor – they wanted power for themselves. The citizens of Europe may well feel the same way. Presumably, new Europe, like the old, can cope in terms of popular legitimation in the long run. New Europe, however, has a disadvantage not suffered from by the old – it is founded upon peace, rather than upon violence. In the old Europe, legitimation (from the point of view of the political elites) followed unsolicited and sometimes bloody absorption into Church and Empire, but force was an accepted ingredient of political interaction. Belief followed practice, and sometimes took centuries. The new Europe is in more of a hurry. It is growing more quickly, and whilst the political elites determine the pace of growth peaceably so that it appears to satisfy them, the same cannot be said of the population. The old Europe did not need to concern itself with the people. The idea of supranational democracy did not exist and the localities suffered little apparent interference from the centre. For the new Europe, the legitimacy time lag is more noticeable to an increasingly sophisticated public, informed and sometimes influenced by a mass media (another problem not encountered by the old Europe). The people too are aware of the impact of the EU, even though in some cases their awareness is not based upon extensive knowledge. New Europe, like the old, has grown faster than its legitimation (see Chapter 2), but legitimation is now demanded, rather than unimagined. To some extent, the requirement for legitimacy results from popular expectations raised by the aims of the Communities and from the institutional arrangements put in place to fulfil those aims. Thus, the simplicity and the ambition of the idea of peace amongst nations by means of free movement of persons, goods, capital and services raised hopes, whilst the formation of supranational organisations (needed to bring about this goal) raised fears. Both of these were dampened, in the popular mind, so long as the Community adhered to its initial practices (which were less extensive and intrusive than the Treaties of Paris and Rome permitted). However, the need for the Communities to adjust to changing global conditions of the 1970s and early 1980s meant that supranationalism was increased both in terms of the remit of the Communities and of the development of its institutions (see Chapter 2). This had the effect of setting questions about legitimacy and democracy closer to the forefront – for example, why have an elected body, and if there is an elected body, why are its powers relatively limited? A second lesson we can draw from the history of legitimacy, however, is that there is no particular reason why we should continue to depend upon a one-size-fits-all form of political legitimation. Old Europe managed

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reasonably well by utilising (albeit unconsciously) two different forms – the descending thesis to keep the elites within bounds, and the ascending thesis to disarm the people. The rise of social contract theory, followed by liberal representation, followed by representative democracy, more or less kept pace with the growth of the nation state. As the nineteenth century progressed, liberal and representative democracy became the form, to be applied to the localities as well as the central government. During the twentieth century, extensions to the franchise until every adult had the vote popularised the notion even further. However, as the twentieth century neared its end, its legitimating power became less convincing even within the nation state, as the practical returns in terms of economic prosperity and social security became less widespread. Attempting to ‘cut and paste’ its increasingly obsolescent form onto the supranational level, albeit in a partial fashion, is beginning to look impractical. The case for different and for varieties of forms of legitimacy is laid out. Following chapters will consider them.

2 Adapting Legitimacy to the European Union

Introduction Chapter 1 introduced the topic of EU evolution in relation to legitimacy, and Chapter 2 continues with this theme, giving a summary of the main aspects of EU development and relating them to sources and factors of legitimacy. This chapter shows why legitimacy was not regarded as an issue for the majority of the EU’s history. Primarily, it argues, this was because the Communities’ origins were created by technocrats and bureaucrats, who were focused upon the EU as a means to an end. If they thought about popular legitimation at all, they assumed that it would follow on its success. By contrast, nation state-building was a job undertaken primarily by selfinterested political actors, who regarded state-building as an end, and who therefore understood the need for legitimacy. Politicians have taken part in building the EU too, but their attention has until relatively recently been focused upon the impact of the European Communities (later ‘EU’) upon themselves. So far as they were concerned, it was not a matter of the political leaders proving the EU to their citizens – the EU needed to prove itself to them. The outcome, as this chapter shows, is a developed polity whose competences outstrip its authority. The new Europe, as its development shows, suffers to some extent from the same legitimacy dilemma as the old. Its dilemma, however, deepens because of the added factor of democracy. Current European rulers have to take into account that governmental legitimacy is necessary to claim acceptance from the people – not just from an elite few who can then manage the rest. We shall see, in this chapter, the extent to which leaders of the EU have tried to develop and utilise legitimating sources and factors. In the EU’s early stages, referred to herein as the ‘Technocratic Europe’,1 leaders sought to promote their aims of a peaceful Europe based on free trade and a customs union, by employing the services of experts and bureaucrats. The technocrats’ expertise and neutrality were intended as the means to 33

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acquire legitimacy by achieving these aims. Leaders found, however, that the Technocratic Europe was beginning to reduce their own legitimacy and autonomy, in the same way that the emperors of the old Europe discovered that papal sanction was a double-edged sword. The only partial success of the Technocrat Europe (partially successful, in some cases, because of the lack of co-operation from the fearful leaders) added to their uneasiness, and ‘State-Centric Europe’2 began to function, utilising the approach introduced by Charles de Gaulle. During this phase, from the early 1970s to mid-1980s, European leaders sought to restrain their technocrats and reassert their own dominance. The result, however, was the period later referred to as ‘Euro-stagnation’. A perception of discontent began to spread to the people of Europe, and an alternative direction seemed to be required. The new approach was explored by the Jacques Delors-led Commission (1985– 95), but it could not have worked without the co-operation of the member states. The European Communities were effectively ‘kick-started’, and there was a welding of the two Europes, so that for a time, the Technocratic and State-Centric Europes became symbiotic – feeding from each other, to the benefit of both. They formed a ‘confederal consociation’.3 Until the early 1990s, the views of the public on the uniting of Europe were taken for granted, although the EP was murmuring about democratic expression, and gained a few extra powers and slightly higher status on the strength of it. Economic prosperity was seen as a goal that the people shared, and for which they would accept the more distant rule of the European Communities. The road looked fairly clear ahead, despite some dissenting opinion, largely on the part of Danish and British political elites. The difficulty in ratifying the Maastricht Treaty in France and Denmark by means of referenda showed that the expectation of unchallenged integration led by politicians and bureaucrats was based on a false assumption. Integration could go too far for popular acceptance, when it was handled almost solely by governments and experts. The people showed themselves to be doubtful about accepting the legitimacy of a combination of political leadership and technocratic expertise after that point. However, as usual with actions undertaken with one purpose, the Maastricht Treaty, on the back of its forerunner, the Single European Act, led to additional outcomes as well as those intended. The Act and the Treaty generated a different kind of Europe, in which a restricted participation (going beyond the traditional consultation), as well as representative democratic input, became a potential legitimating feature. The ‘multi-level Europe’,4 in which non-governmental groups and sub-national levels of the EU take part in its governance, resulted from a combination of factors. In part it was the outcome of the Commission’s efforts to enlist support for its activities and information to improve its policy proposals. It was also, however, the effect of policy development. The EU made the discovery, like many ‘remote’ centres of government, that policy implementation

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required more than the passive acceptance of formal legal decisions. It also discovered that the active co-operation of more than the central states of its members was required, at least in some policy areas. For these two reasons, a new legitimating factor of political participation arose – although largely unintentionally. An important point, however, is that all of these Europes co-exist. ‘Technocratic Europe’ did not give way to ‘State-Centric’ Europe – it absorbed it. Similarly, ‘multi-level governance’ and ‘federal EU’ could not substitute entirely for either model. The EU’s governance is complex and interactive, and cannot be explained in accordance with any one model. The same applies to the EU’s legitimacy. A second point is that statis in relation to legitimacy has been achieved precisely because of the schizophrenic approach of member states’ leaders to the nature of the EU. On the one hand, only a fully integrated EU could expect to become fully legitimate. Nation states’ leaders also need the EU to be a success, partly because they know the stakes dependent upon success (e.g., economic prosperity, peace, unity) and partly because they have their own ‘judgement of history’ to consider. The EU cannot be successful without legitimacy. On the other hand, almost all member states’ leaders have an inbuilt inability to accept, let alone popularise, the idea of a fully integrated EU. Few politicians are motivated by a desire to lose power, especially, in this case, when there is a high level of uncertainty about what or who would gain it. Thus, they insist that the EU, at most, is an essentially voluntary ‘pooling of sovereignty’, which is dependent upon the good will of, not the legal demands made on, the leaders of autonomous nation states. Should the EU become something more, national sovereignty would be threatened, and so would the power and authority of national leaders. The proposal for a Constitutional Treaty shows the extent of political leaders’ awareness of the legitimacy gap and of the need to plug it. However, the Treaty’s apparent failure is indicative both of the size and of the nature of the gap in the minds of the EU’s leaders, as well as in those of its citizens.

A Technocratic Europe The cunning plan The question of evolution in political organisations is itself a problematic one. To what extent does any polity develop in accordance with anyone’s idea of its ultimate goals? It has been claimed, for example, that ‘the British Empire was founded in a fit of absence of mind’,5 and whilst this view may not be an adequate reflection of the thought processes of its founders, it is quite difficult to believe that they had had any specific aims or means of achieving them in mind. At any rate, none were stated at the time. Similarly, as Chapter 1 showed, the mode of development of old Europe implies a Darwinian, rather than spiritual or rational, explanation.

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However, the EU is a bit different. The intentions of its Founding Fathers, at least those of Jean Monnet and Robert Schuman, were fairly clear. Not only that, but Monnet and Schuman also had a ‘master plan’ to keep the Communities (as they were to begin with) on track towards integration. The American science-fiction writer, Isaac Asimov, in his Foundation trilogy,6 which was published at about the same time as the first Community treaty was signed, called this kind of predestined set-up ‘psychohistorical’. ‘Psychohistory’ was Asimov’s imagined science in which outcomes could be predicted, and thereafter determined, by means of applying elaborate mathematical formulae. In layman’s language, they involved the unseen hand of the original founders who built an organisation that was prefigured to develop in a distinctive way. To do this, the originators included within it unrecognised forces that would come automatically into operation as relevant developments occurred. There would be no need for awareness of the master plan on the part of later players. In effect, this reflected the approach taken by the EU’s founders. The new foundations, however, both for Asimov’s psychohistorians and for Monnet and Schuman, did not exactly develop according to plan. For the EU, the outcome (to date) would have surprised its Founding Fathers, as much as it continues to puzzle current actors and analysts.7 Monnet and Schuman were neofunctionalists in essence (although the term was coined later to explain and describe their approach). They believed that integration within the European continent would occur by a series of small steps away from an existing position, until enough steps had been taken to ensure that the new position was both very different from the original one and irreversible. In other words, they expected and intended that events would create their own momentum. Haas, an early developer of neofunctionalist theory, thought that integrating one section of the economy would inevitably spill over into other economic and political activities.8 This is known as ‘functional spillover’. Monnet and Schuman believed that creating an economic foundation – a common market in basic raw materials – would eventually and incrementally lead to political integration. So far as can be ascertained, they did not consider that this imperceptible integration required popular legitimation. As technocrats, the assumption was that success would bring about its own legitimacy. Lindberg, another early integration theorist, also thought that the process of integration would be inevitable because different policy actors in the process would automatically play their customary parts.9 For example, if the Commission enacted the roles designated for it in the Treaties of Paris10 and Rome,11 it would need to involve interest groups in some stages of the decision-making process for the sake of their expertise and of their future support for the resulting policy. In turn, interest groups, furthering their own ends, would discover the advantages of their relationship with the Community and its Commission, and would lobby their home governments

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for further integration. This is known as ‘political spillover’. Pryce, in 1962, commented that there had already been ‘a remarkable reshaping of the activities of those bodies which in the private sector of the economy exist to represent and promote the interests of particular groups’.12 They had, he reported, already contrived to co-ordinate their policies amongst groups throughout the Six. It would not be necessary, or even desirable, for either the Commission or interest groups to have integration as an ultimate aim in mind from the start. Integration would simply be the consequence of either body trying to achieve another purpose, which led towards ‘ever closer union’ as a by-product. It is clear from Jean Monnet’s Memoirs that even as a young man he had had a vision of a future integrated European community. This vision had been given focus by his experiences during the First World War, when he came to see national independence as a problem to be resolved, rather than a quality to be valued.13 Monnet understood – earlier than most – that the Westphalian model was based upon the assumption of the legitimate application of military power. As he also learned from the war, the alternative of a polity based upon community was a potential means to an end of perpetual peace within Europe (in 1950 – 5 years after the Second World War – such a peace looked unlikely). Monnet’s community would be one in which future war amongst its members would be made both impossible, because of their shared economic system, and unthinkable, because of their shared sense of purpose, and progressing political ties. Monnet, who was the First Commissioner of the French National Economic Plan, excelled at forward planning and he was well able to select his moment – and his partners. Development by Treaty: Paris and Rome Monnet’s moment came in the late 1940s, when people in countries throughout western Europe were beginning to recognise the need for greater unity following a war that had left a large part of Europe both economically devastated and politically challenged,14 and when there was a particular fear of a shortage of coal and steel.15 Several intergovernmental organisations were set up during these years, but all were based upon the assumption that sovereignty would be retained by the nation states that comprised them. Monnet’s intentions were based upon reducing sovereignty. His principal partners in developing the plan were Paul Reuter, a professor of law, and Etienne Hirsch, a former resistance fighter, engineer and planner. The three wrote the first draft of what later became the Schuman Declaration.16 The original draft ended with a statement of intent to limit national sovereignty:17 This proposal has an essential political objective: to make a breach in the ramparts of national sovereignty which will be narrow enough to secure consent, but deep enough to open the way towards the unity that is essential to peace.

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The sentence was omitted, however, in later versions. Monnet’s political partner was Robert Schuman, French Foreign Minister during 1948–53, who, in the Declaration of 9 May 1950, made explicit their long-term aim of integration and the method by which it would be achieved, but without using the blunt terms initially suggested by Monnet. Schuman proposed the formation of a coal and steel community – that is, a community that had common interests and a common market in basic materials – and continued:18 In this way, there will be realized simply and speedily that fusion of interest which is indispensable to the establishment of a common economic system; it may be the leaven from which may grow a wider and deeper community. The 1951 Treaty of Paris set up the European Coal and Steel Community (ECSC) in a way that would encourage both functional and political integration. It aimed to create a common market, rather than just a free trade union, and it contained a supranationalist and powerful organisation – the High Authority (a suggestive title that was amended to ‘European Commission’ for the later Communities), overseen by an Assembly of representatives from the Six’s parliaments, with little more than consultative powers.19 Rittberger argued that the inclusion of the representative Assembly implied that the political elites of the 1950s, as well as subsequent treaty shapers who expanded the Assemblies’ powers, were aware of the need for liberal democratic legitimacy. He regarded the installation of the Assembly as evidence that national elites were responding to the transfer of national, ergo popular, sovereignty.20 However, an appointed assembly is an inadequate substitute for national elected and constitutionally powerful parliaments. An alternative explanation could be that national elites had an eye for the liberal checking effect of a scrutiny body, or that they simply regarded a smattering of liberal democracy as a default option. The members of the High Authority were to be ‘completely independent in the performance of their duties’;21 were to ‘refrain from any action incompatible with the supranational character of their duties’, which ‘Each member state [undertook] to respect’;22 could act under their own initiative;23 and were given decision-making powers and implementation rights.24 This was new. It was the first time in western Europe that some of its states’ sovereignty faced dilution by the deliberate decision of their own leaders. There was also a Court of Justice. The Court had no direct powers granted to enforce Community law over the Six – most of its powers were over Community institutions.25 Nevertheless, it was a Court, and it was later to utilise its existing powers to interpret the EEC treaty to give Community law direct effect and make it supreme above national law. In this way, it gave itself, as the legal embodiment of the Community, powers over

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the member states.26 The treaty also established a Council of Ministers to represent member states’ interests, to avoid the concentration of High Authority power. It did not have the power of initiative, but it could check the actions of the High Authority. Interestingly, though, there was provision for qualified majority voting in the Council, intended primarily for budgetary purposes27 – but it could be extended. Monnet and Schuman, with the help of the Treaty’s signatories, had intentionally sown the seeds of supranationalist integration, by establishing a powerful, independent, overseeing body, the prototype of a Court, and a means of preventing individual member states from vetoing progress. They had not, however, given the question of democracy much thought. The point was that operating the first European Community was to be largely a matter for bureaucrats and experts. Decisions made under the ECSC would be largely those of a technical nature – determining customs duties,28 tariffs29 and quotas;30 the provision of guidance and assistance;31 and the promotion of technical and economic research.32 Naturally, these only involved regulating the coal and steel industries. There was, for example, nothing within the Treaty authorising the making of international agreements within these sectors by the Community.33 The ECSC might affect manufacturers, importers, exporters and governments, but it was not likely to be passing laws that would impinge directly upon the general public to a great extent. Monnet and Schuman’s ends were integrationist and hence highly political; however, their initial means were unpretentious and phrased in economic terms, and therefore posed no particular issue for democracy-watchers. For the first Community, as with the old Europe, legitimacy could be gained or lost only by and amongst political elites. In addition, where policies were almost entirely regulatory, there was no need for democracy as defined as ‘people power’. Instead, what Majone later called ‘non-majoritarian democracy’, whereby restraint of majority rule is obtained by placing authority in the hands of officials,34 was the practice. However, governments, more concerned about autonomy than about democracy, can become alarmed by the activities of bureaucrats and experts. Their worries are likely to intensify if it appears that non-political decision-makers are going to place them in compromising situations. The mistaken assumptions underlying the Treaty and the inadequacy of its implementers led to the relative failure of the ECSC and the reversion to type of the Six’s governments. The first assumption was found to be misplaced when coal did not remain a main source for energy. Secondly, the High Authority, despite the grandeur of its title, did not act as the interventionist and independent-minded planning body that Monnet35 and Schuman had in mind.36 Coal prices dropped dramatically in 1958–59 when supply outstripped demand. As prices fell, Belgium, France and West Germany restricted coal imports (in clear opposition to the Treaty37 ) to block external competition. This alarmed the High Authority, which tried to declare a state of

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crisis and to assume greater powers to deal with it. The French President, Charles de Gaulle, backed by the Netherlands, Italy and West Germany, firmly pronounced his first Community non to this notion, despite his initial support for the integrative principle.38 The result was that the High Authority lost both prestige and confidence, and failed thereafter to regulate the coal industry effectively.39 It was made plain, not for the last time in the evolution of the European Communities, that national governments make collective decisions for their own individual purposes, not because they have a high regard for the supranational ideal. It was also clear that however strong are the forces of neofunctionalism, governments of sovereign states have the power to block them simply by deciding to ignore their Treaty obligations or (later) to amend Treaty provisions. The notion of integrating by means of a painless incremental series of movements looked unfeasible after the first attempt. The legitimacy of the technocratic Europe already looked fragile. The second (partly concurrent) attempts were less apparently integrationist than the first, although they covered more ground in terms of policy areas. The Treaties of Rome resulted from a committee chaired by the Belgian Foreign Minister, Paul-Henri Spaak, set up at the Conference of Messina, 1955. The conclusions of this committee were debated and largely accepted by an intergovernmental conference (IGC), and the terms of the Treaties were agreed.40 Monnet had resigned the Presidency of the ECSC in disappointment at its relative failure, but he had not retired from politics, nor had he revised his ideas. He, with other integrationists, was particularly optimistic about the potential for the proposed atomic energy community,41 because of the amount of planning it would need.42 The Treaties of Rome 1957 created the European Atomic Energy Community (Euratom). More significantly, they also created an Internal Market in ‘goods, persons, services and capital’,43 and made provision for common policies in agriculture and transport, a common social and a common commercial policy and a customs union,44 amongst other matters, by means of the European Economic Community (EEC). In economic terms, the Communities established by the Rome Treaties were more ambitious than the ECSC, more comprehensive and potentially involving more harmonisation amongst its member states.45 A common market cannot be expected to work properly unless economies begin to converge. However, politically, the new Communities were less adventurous and left more to the discretion of the governments whose states comprised it. The objectives were less specific, lacking a timetable for and methods of implementation, and becoming, with the exception of the customs union, frameworks for decisions. The new Communities had Commissions, rather than High Authorities, that were entitled to propose legislation, but had less decision-making power,46 no immediate financial autonomy, and were no longer required to be supranationalist (the word was not used in the

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Treaty). The role of the Council was enhanced, giving it legislative power, making it, according to Kitzinger, a ‘governmental type of supranationality as against the Community type [that characterised the ECSC]’.47 Again, the Assembly had only consultative powers over legislation, and no control over the Council, although it retained its power to dismiss the Commission. The Euratom Community was a relative failure despite Monnet’s hopes and expectations, whilst the EEC was initially highly successful, in purely economic terms. Stephen George’s account shows that Euratom failed largely because its signatories wanted different things,48 although no crises arose in the earliest years to put pressure on the fragile treaty. However, Etienne Hirsch, Monnet’s former colleague and President of the Commission from 1959 attempted to exercise supranational authority when he permitted West Germany and Italy to purchase reactors from the United States, instead of from France, whilst trying to bring French plutonium plants under Euratom. The attempt failed and the French announced that Hirsch would not be renominated to the Commission. In 1961, Hirsch resigned, although he took the opportunity to warn the European Assembly of the dangers of such political manoeuvres on the part of member states.49 Neither the ECSC nor Euratom can be written off as total failures. Both continued to operate (the ECSC ended in 2002, at the end of its prescribed term), and both, in technical terms, provided a means of assisting states to work together (ECSC was more effective in dealing with steel than with coal). However, neither showed themselves to be the vehicle of integration that Monnet, Schuman and their colleagues had expected. The EEC was a different matter. Ironically, though, it was its relative failure during the 1970s that led to the relaunch in the 1980s – a relaunch that began a process towards a much more organically united Europe. Generating the Community Community activity during the early decades proceeded without too much controversy so far as the general public was concerned. An early commentator, Kitzinger, noted that progress could be observed if one knew where to look for it:50 A hive of activity in Brussels and diplomatic agitation between the capitals have begun to make an impact on economic rules and regulations, on business, on public and on private decisions. The Brussels Commission, like the Luxembourg High Authority, have buckled down to work; they are making their impact felt in a whole gamut of ways in a whole welter of different domains. University teachers, young people, lawyers, civil servants and trade unionists were also active, he continued, and new ideas mushroomed.51 But decisions were taken either within the Commission, considered on their technical

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merits, or within the Council of Ministers, almost always under unanimity in practice, thanks to the negotiating skills of their Permanent Representatives (Coreper) and the Special Committees. Decisions undertaken in private require less oratory and are not open to democratic scrutiny. There was little politicising and, of course, limited space for party political differences within either body. The primary political decision, within which apparent ‘technical’ decisions were taken, had been made. It could be interpreted to fit with any (or none) of the main parties’ ideological doctrines – collective decision-making for the benefit of all was a tenet of the Left; free trade in a common market was an economic principle of the Right. The non-elected consultative Assembly did organise itself into three party groups at an early stage, sat in groups and tended to vote on party lines.52 However, having no mandate to express the national popular voice, its members, who in any case had volunteered to serve because they tended to be pro-European, became ‘Europeanised’, and hence became semi-detached from the general public of their country of origin. There was, therefore, little incentive for popular engagement with the new Community. The Communities were objects of curiosity and concern for governments outside the Six, however, especially for the UK, which until the 1960s had repeatedly refused invitations to participate in their schemes. The UK had formed a European Free Trade Area (EFTA – ‘the Seven’) in 1959, which attempted an intergovernmental solution to reducing trade barriers. It was not, however, as successful as the EEC. In the first decade after the Treaties of Rome, steel production and investment rose substantially and internal EC trade quadrupled, growing twice as fast as world trade, and twice as fast as the US economy53 (although progress under Euratom was less impressive). On the other hand, EFTA, a smaller organisation (covering about 90 million people in comparison to the Six’s 170 million), not so united, and with additional transport costs (West Germany formed the centre of the Free Trade Area), was much less successful. To this was added renewed US support for the Communities, motivated by American fear for its balance of payments, and the Six’s increased external tariffs from 1961. The Communities’ successes put them in line for their first enlargement. However, the new Community would depend more heavily upon governmental support for its initiatives, and the Technocratic Europe would have to live alongside the State-Centric Europe.

State-Centric Europe De Gaulle had always had suspicions about the prospect of political integration. His vision was of a French Europe, rather than of a European France. An autocratic individual, he was also wary of threats to his leadership. The actions of the Walter Hallstein – former German Foreign Minister, Schuman Plan discussant, first President of the European Commission, 1958–67, and

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self-styled ‘Prime Minister of Europe’54 – confirmed de Gaulle’s mistrust. Hallstein was a technocratic integrationist and an effective operator, and, under his control, the Communities developed both its internal and external policies.55 Curiously, it was the funding of the Common Agricultural Policy (CAP), very much in France’s interests, that provided de Gaulle with an opportunity to defeat Hallstein’s agenda. In 1965, Hallstein’s Commission suggested that CAP should be funded by providing the Community with its own resources, to be collected from the common external tariff. Since national parliaments would not be in a position to scrutinise this budget, it was logical that the EP should be given powers to oversee it. It was logical – and legal – but both suggestions were recognisably integrationist. Monnet thought that the Commission had made a mistake by choosing this particular matter to fight on, but he conceded that the real point was that the French were determined to face down the Commission whatever the issue.56 De Gaulle demonstrated that national leaders had more power, if they chose to exercise it, in the Community than its Commission. He instructed his officials to withdraw from Community business indefinitely. The French chairs were left vacant,57 and hence, no effective decisions could be made, since qualified majority voting had not yet been phased in. The strategy was effective and achieved two purposes – it demonstrated the reality of the relationship between the Commission and the Council, and it enabled de Gaulle to frustrate the introduction of majority voting by means of the ‘Luxembourg Compromise/Accord’, which was reached six months later in January 1966. The title is a misnomer. It was written in Luxembourg (chosen symbolically as not being Brussels and thus outside the Community58 ), but it was neither a compromise nor an accord. The four paragraphs are contradictory59 – the second one recording the French disagreement with the other Five, who in the first paragraph stated that majority voting should not be used until the Council had attempted to reach agreement ‘within a reasonable time’: II    the French delegation considers that where very important interests are at stake, the discussion must be continued until unanimous agreement is reached.60 However, the Compromise more than served its purpose in terms of decelerating the integration process, because thereafter the Five interpreted it in accordance with the French opinion. It would have been unreasonable, as well as unacceptable, to allow France alone to determine its ‘very important interests’ or to veto progress on account of them. Six states, however, each prepared to stand firm if representatives believed that its interests would be adversely affected, led to a slow down in decision-making. The Compromise was not used frequently; but its existence meant that a long time was spent reaching agreements, and that the agreements when reached were

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not very radical.61 Hence, the crisis and its outcome had two effects on legitimation. First, it provided de Gaulle, whose commitment to democracy was ambivalent, with the opportunity to assert the role of the sovereign state, thereby halting any prospect of institutionalising Community-based democratic scrutiny. Secondly, it ensured that the Communities’ performance would be uninspiring in the immediate future. Unfortunately, the institutionalisation of stagnating Communities coincided with the first Communities’ enlargement of 1973, when the UK, Ireland and Denmark joined. They had had to wait until the retirement of de Gaulle in 1969 since he had consistently vetoed their membership.62 These three states’ governments were primarily concerned with the economic advantages of membership, but the obstacle towards collective decisionmaking ensured that the EEC was unable to respond to the first oil crisis brought about by the 1973 Middle Eastern War. There was no mention of oil in the Treaties, and member states, given the context of the Compromise, reverted to type and attempted to deal with their difficulties resulting from the increased price of oil unilaterally, refuting the Commission’s efforts to develop a common policy.63 The new states’ ministers soon realised that the expected economic benefits were not going to materialise immediately, and as quickly became less enthusiastic about Community membership. StateCentric Europe had failed to secure its new members’ support, and this had a knock-on effect upon those members’ citizens. The Communities’ relative lack of impact upon the new states’ economies raised a compound of doubt and distrust that has persisted ever since. The new states’ scepticism, allied to the effect of the Luxembourg Compromise and the economic recession, meant that the Communities entered a period later described as ‘Eurosclerosis’, reducing further the potential for Communities’ performance to deliver legitimation. Nevertheless, it can be seen from the above that the ‘State-Centric’ period of the Communities offered little in the way of ostentatious integration that would raise questions about legitimacy amongst the public. Bureaucratic and political elites managed (or did not manage) the process, by means of what Tsinisizelis and Chryssochoou have since called ‘confederal consociation’64 legitimating their actions, at least in their own eyes. In terms of the potential for liberal democratic legitimation, the EP had modest successes, particularly in terms of its control over the budget,65 and from 1962, it was calling itself a Parliament, rather than an Assembly. It was not, however, directly elected until 1979, even though provisions for elections were included in the EEC Treaty.66 The reason for delay was precisely the hint of federalisation that direct elections implied. Yet, without elections, which at the least provide an opportunity for an arousal of national interest, the activities of the Communities (often called ‘the Common Market’) were understood by few and worried few more. In one sense, apart from the interparty-generated excitement in the new member states, the 1970s and

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early 1980s were years in which there was less need for popular legitimacy for the Communities than during any others before or since. The Communities were not doing too much, and this enabled their leaders to feel comfortable with its legal supremacy. Nevertheless, there were the origins of issues that would assume more significance as the Communities’ future developed. These matters began to generate a level of unease, although this usually resulted from the efforts of sceptical politicians rather than from the Communities’ development. On the one hand, the Commission was coasting, but it still had potential. On the other, the newly elected EP was an independent Parliament in the sense that its members (mostly) were freed from the restraints resulting from membership of their national parliaments and governments, although they were still under the leadership of their national parties. Members of the EP were no longer simply delegates from their home parliaments – from 1979 they were representatives of the people. This development should have implied the beginnings of popular legitimacy via liberal democratic representation. The EP had insufficient power to be a full legislature; and its elections did not bring its members close enough to the people for the term ‘representative’ to be realistic.67 However, it was a start. At that point, there was the question of how much power the EP would have, or should have, but there were no doubts that the issue was one of democratic legitimacy versus effectiveness. A more powerful elected parliament might be more satisfactory to the people of Europe; but it also might unbalance the already wobbly relationship between the Commission and the Council. Increased EP power could be detrimental to the development of both the Technocratic Europe, favoured by the Commission, and the State-Centric Europe, favoured by the Council. Ironically, however, ‘more power to the Parliament’ was to prove problematic for both, but without giving value for money in terms of democratic legitimacy. The EP would be shown to be insufficient to legitimate the Communities’ activities as they became more conspicuous. Providing increased power to it was shown to be giving an inadequate answer to the wrong question.

Towards a Multi-level EU Jean Monnet died in 1974, and Walter Hallstein in 1982, but as the 1980s progressed, another individual, Jacques Delors, began his movement towards European prominence. After becoming a member of the EP (1979–81) and then working closely with François Mitterrand as his Economics and Finance Minister, Delors became the President of the European Commission in 1985, and stayed at its head for 10 years. Ross depicted him as a committed but pragmatic integrationist with strategic ability, common sense and high ambition. He commented that Delors was acceptable to most governments because he was positioned in the middle of the Communities’

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political spectrum, favouring a dynamic market but having social democratic tendencies.68 Delors’ terms of office included the most significant developments within the Communities since their origins, in terms of affecting the EC’s performance. The Single/Internal Market (successor to the Common Market) was formulated in 1985 and was given force by the Single European Act (SEA) in 1986. The third enlargement, with Spain and Portugal joining, took place in 1986. Germany was reunified in 1989 after the fall of the Berlin Wall. The Communities were merged into a European Union under the Maastricht Treaty (1992), which also contained policies that appeared to be profoundly integrationist. The EU’s fourth enlargement, of Austria, Finland and Sweden, took place in 1994–95. Planning for the future The first major political initiative undertaken under Delors, the Single European Market (SEM), was not billed as integrative. Using the Monnet/Schuman formula, it was promoted as a necessary act to enable the Communities (especially the EEC) to achieve their primary purposes – to maximise the EC’s performance as an internal trading bloc. The Common Market was not working well. States had too many non-tariff barriers to trade. The Cockfield White Paper, commissioned by the European Council,69 therefore contained 287 measures that the Commission regarded as necessary to remove the barriers and specified deadlines for the decisions that were needed to activate them.70 Drake commented that it is uncertain where the idea of the 1985 White Paper, ‘Completing the Internal Market’, originated.71 As she and Ross both noted, Delors, before taking office, had undertaken a ‘capitals tour’ in which he had identified an intergovernmental consensus in its favour, by the simple means of offering governments four integrative options, of which completing the SEM programme committed governments the least.72 The White Paper itself cited four declarations made by the European Council, made between 1982 and 1985, that instigated the Cockfield report. The Council’s pronouncements were, however, more specific about ends than about means, although the Brussels summit of March 1985 asked for ‘action to achieve a single large market by 1992’ and requested the Commission to ‘draw up a detailed programme with a specific timetable before its next meeting’.73 As Drake and Ross both commented, the Paper itself was short on rhetoric.74 The majority of the 55 pages contained only a listing of the measures needed, with little appeal to federalist enthusiasts, and an emphasis upon completion rather than introduction. Only the White Paper’s conclusion hinted at a greater purpose. It made the point that ‘the integration of the economies of Europe’, provided that there was the ‘political will’ to achieve it, was the only alternative to ‘mediocrity’ and argued that without economic

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integration, free trade would ‘fail to satisfy the aspirations of the people of Europe’.75 Interestingly, the conclusion also emphasised the EEC objective for ‘ever closer union among the peoples of Europe’, and suggested reassuringly that the White Paper proposals were merely ‘a further step along the road so clearly delineated in the Treaties’.76 The presentation of developments throughout as natural extensions of existing situations implied that the Commission assumed that additional legitimation was unnecessary. However, an acknowledgement of the requirement for popular legitimation was beginning to stir. In fact, the idea of a Single European Act, needed to ensure the adoption of the White Paper, arose from the work of the ‘Citizens’ Europe’ Committee (the Adonnino Committee). The Committee was concerned about the low impact the Communities were having on the people of Europe, although it formed few conclusions. In addition, an ad hoc Committee on Institutional Affairs, chaired by the former Irish Foreign Minister, James Dooge,77 seems to have been concerned about the lack of democratic legitimacy. The Dooge Committee, which reported to the European Council in 1985, presented contentious proposals for institutional improvements, including increased powers for the EP. These issues, the Dooge Committee advised, should be debated at an IGC. The European Council agreed. The decision to hold an IGC in 1985 was conveniently timed for Delors and Cockfield, who were able to dominate the agenda with their practical proposals for reaching the goals set out in the EEC Treaty of Rome.78 The resulting SEA, signed in 1986 and ratified in 1987, achieved both the Commission’s and the Dooge Committee’s purposes, and moved towards setting an agenda to address the ‘Citizens’ Europe’ Committee’s concerns. From the SEA, the EP gained two more procedures to add to its ‘consultation’ role. Co-operation79 (primarily for most of the SEM measures) and Assent80 (giving it a veto in matters of major importance, including the entry of new members) gave the EP more powers over both legislation and the Communities’ progression. In terms of the potential for improved performance, several new areas were added to the Communities’ policy portfolio. These were: ‘Economic and Social Cohesion’ (regional policy),81 environment,82 and research and development.83 European Political Co-operation (EPC – foreign policy)84 gained legal, but not Treaty, status.85 Finally, the SEA required a new chapter to be set into the Treaty entitled Co-operation in Economic and Monetary Policy (Economic and Monetary Union),86 which was worded tentatively, but which gave Treaty status to Delors’ next initiative. All of these areas would subsequently threaten to overburden the Communities’ fragile popular legitimacy,87 but they would also enhance the interests and thus the participation of Europe’s sub-national and/or nongovernmental groups. The SEA thus set the Communities’ governance on course for multi-level participation.

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A multi-level polity? The Commission, it may be inferred, had already perceived the benefits of increased participation. For example, John Peterson conducted a study of the way in which research and technological development came to be included in the SEA.88 His study provided a text book example of the application of the Monnet formula. Peterson commented that it was obvious to the Commission that common policies in this area were a logical step to take towards establishing an SEM in reality, but the Commission did not rely upon member states’ governments understanding this for themselves. Instead, Peterson found, the Commission worked directly to construct a network of European companies involved in advanced technology. This Commission-contrived network led to increased support for a Community policy initiative from electronic companies in their home states, who performed their expected role of lobbying their own governments. Peterson notes that consequently, when leaders gathered to discuss the terms of the Act, they were already prepared to look favourably on the inclusion of research and technological development. It was, however, the rationale of the SEM, rather than thoughts of legitimation, that drove forward the integration process. If states were to have equal access to the SEM, additional policy areas included in the SEA needed more than formal Treaty recognition. Similar environmental circumstances, reasonably equal conditions of employment, the pooling of research on technological developments, as well as international recognition of educational attainment would all be required to ensure the free movement of goods, services, persons and capital within the Communities’ area. Structural policy, centring on the regions of the member states, was to be developed; economic and monetary union, centring upon the collective requirements of all the Communities’ states, was also on the agenda. However, only a single currency and similar economic conditions could remove the most obstructive non-tariff barriers. The economic demands for a level playing field led inevitably towards political decisions impacting upon national sovereignty. Leonardi grasped the potential for multi-level participation:89 The realisation of the internal market permits, first of all, the EU to devise regional development policies that provide additionality to national regional-development efforts. Secondly, it creates the basis for Europeanwide interactions by individuals, enterprises, development agencies and subnational governments in the implementation of economic and social policies. Thirdly, it allows new economic markets to emerge. Further progress, moreover, was made compulsive because of the success of the SEM. EEC ministers, with the co-operation of the EP and with the potential for the application of Qualified Majority Voting (QMV), did

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their part, enacting 90 per cent of the White Paper proposals by 1992,90 and the economic community blossomed. In 1988, the Cecchini Report had estimated that completing Internal Market would bring a 5 per cent gain to the Community’s Gross Domestic Product (GDP).91 This proved to be an underestimate,92 and the Commission’s report The Impact and Effectiveness of the Single European Market, published in 1996, showed that income had grown, jobs and trade had increased and inflation rates were lower than they would have been without the SEM Programme (SMP).93 Technical success seemed to point to further integration, and the assumption that the improved dynamism created by it was understood and appreciated by the people of Europe, as well as by their leaders, was presumably made.

Towards the Federal Europe? The assumption permitted further development. Economic and Monetary Union (EMU) was the second of Delors’ major initiatives. Like most initiatives, it was not a new idea. It arose from the Hague summit in 1969, after the United States’ suspension of the convertibility of gold to the dollar, which led to the development of the European Monetary System (EMS) with a European Currency Unit, and the pegging of participating states’ currencies within a limited band of fluctuation by the 1980s. Delors was building on the success of the EMS in his Committee’s 1989 Report on Economic and Monetary Union,94 which laid out the criteria for EMU95 and proposed a European System of Central Banks to manage the system.96 It also advocated taking a ‘step by step’ and staged approach towards implementing EMU,97 including the further development of the policy areas, particularly regional and structural policy, newly incorporated into the Treaty, in order to maximise the benefits of the new system.98 Although the report, like the Cockfield Report, confined itself to reassuringly technical language in the main, the Delors Committee members were aware that it was promoting substantial further integration. The report acknowledged that new Treaty provision was required to go ahead, since the existing Treaty, as amended by the SEA, did not give sufficient powers to the EEC to transfer responsibility for economic and monetary policy from member states to the Community.99 A Treaty too far?100 Whilst Delors’ approach was intentionally integrationist, it seemed to fit the mood of most of the Communities’ political elites. To that extent, success in performance had led to a degree of Community legitimacy amongst them. Following the receipt of the EMU report, two parallel IGCs were set up, one considering EMU and the other European Political Union (EPU). The EMU IGC broadly accepted the Delors Committee’s recommendations

50 Legitimating the European Union

(except for the UK, which opposed all matters relating to EMU) and put them before the Maastricht European Council in December 1991. The EPU IGC proposed the structure of the new Treaty, which was also agreed by the Council. The Treaty on European Union (TEU, the Maastricht Treaty) was signed at the Maastricht summit and then submitted to member states’ peoples and parliaments for ratification in 1992. This was a decisive time for the Communities, although for a reason different from that intended by their leaders. It was the point at which apparently the peoples of Europe, who had previously been assumed to have limited interest in Communities’ proceedings, presented a different attitude towards integration, indicating that popular legitimation had not kept apace with development, even when it had been apparently successful. In some ways, this outcome was surprising, since the TEU included sections that were designed to appeal to all parties. For supranationalists, apart from a timetable, provisions and criteria for EMU,101 the TEU formed a European Union comprising a three-pillar structure.102 The first incorporated all three of the first Communities; the second was confined to Common Foreign and Security Policy (CFSP); and the third provided for co-operation in the field of Justice and Home Affairs (JHA).103 The TEU also included as an annex a Protocol on Social Policy – the ‘Social Chapter’ – although it was unable to incorporate it into the Treaty because the UK government objected. In terms of liberal democratic legitimation, the EP made gains. First, a new procedure was incorporated into the TEU, enabling the EP to become junior co-partners with the Council of Ministers in decision-making. ‘Co-decision’104 was to apply to many of the areas that had previously operated under co-operation (but not to EMU, which was made subject to co-operation). Secondly, the EP gained additional powers over the Commission – it could now veto the nominee for President, and refuse to ratify the whole Commission.105 Thirdly, the EP’s input in the policy areas was extended.106 State-centricity, or alternatively state-based legitimation, was commemorated first in the incorporation of the principle of subsidiarity – later interpreted as meaning that the EU would not act where the same result could be achieved by the member states.107 Secondly, the two new pillars, CFSP and JHA, were to operate via intergovernmentalism, reaching agreements rather than legal decisions for the most part, and giving weaker powers to the Commission, consultative rights only to the EP and no reference to the European Court of Justice (ECJ).108 Even the sub-national level of governance in the EU made gains by means of the establishment of the inaccurately titled ‘Committee of the Regions’ (CoR), which represented all sub-national tiers of government, and was to be consulted on any matters that the Treaty deemed significant to them.109 The need for popular identification (see Chapter 3) was also given consideration. The TEU established European citizenship,110 enabling, amongst

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other things, the peoples of the EU to approach each others’ embassies when in trouble abroad. It also provided for a citizens’ Ombudsman, under the control of the EP,111 for the purpose of giving people the right of appeal against bureaucratic decisions made against them at EU level. However, it was not a popular Treaty in either sense of the word. The Danish people rejected it in their first referendum (they accepted it when it was put to them subsequently), and more surprisingly, the French people accepted it by an extremely narrow majority after a rather bitter campaign. Of the twelve member states that made up the EU in 1992, six112 have constitutional provision for referenda for the ratifying of international treaties. Only three – Denmark, Ireland and France – of the six states that could have had a referendum at the time actually held one, although there was some talk of referenda in other states. In both Denmark and Ireland, all major parties supported approval, whilst in France it became a political issue surrounding the President, Mitterrand, and his increasingly unpopular government.113 Of the three states, only in Ireland was the result as expected. Since only three states took part in referenda, it is perhaps unfair to compare the results with those that took the parliamentary route towards ratification. Nevertheless, the differences are striking. Where a parliament voted, the results were on average at least 90 per cent in favour of ratification. Where there was a referendum, the votes in favour reached less than 60 per cent. These results illustrate the difference between the responses of the elites, through parliaments, and those of the people. The results do not prove that the people of countries that did not hold referenda took the same lukewarm approach, nor do they necessarily mean that the Danish and French voters were opposed to integration per se. However, Figure 2.1 suggests that the members of the public who were empowered to vote reflected the feelings of those who were not. Popular attitudes, as tested by the groundwork for Eurobarometer 38 (Autumn 1992), were not very positive about the Maastricht Treaty, although a large number of ‘don’t knows’ (not indicated on Figure 2.1), a small proportion of which 120 100 80 60 40 20 0 B

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Figure 2.1 Comparison between parliamentary114 ratification of the TEU and popular attitudes towards it115

52 Legitimating the European Union

tended towards the positive, as well as negatives, were also recorded by the survey. The question, as the European Commission put it, was whether it was the Treaty itself or other issues that affected popular attitudes. The Commission’s answer suggests that the ‘treaty too far’ was merely a ‘powerful accelerator’ of the change in public opinion.116 The real issues were: the impending completion of the Single Market, which had aroused public insecurities; economic decline; decline in confidence in national politicians; and the problems that followed from the ending of the Cold War, especially the conflict in the former Yugoslavia.117 This last, the Commission implied, suggested more rather than less EU – possibly an EU that could offer some answers to the problems of the former Soviet bloc.118 The Commission noted, however, that there was a need to take public opinion seriously, especially with regard to the ‘all of a sudden very visibly and audibly, real and evident’ democratic deficit.119 In particular, it found that the public seemed to favour a united Europe that respected and protected different identities and cultures, which enabled some democratic control and national input, and which would act only when it had become impossible for lower-tier governments to solve problems.120 At this point, then, EU legitimacy became an acknowledged issue. For the next decade, however, the question was phrased in terms of a ‘democratic deficit’ that could be resolved by extending parliamentary power – liberal democracy, in other words, was seen as the only potential legitimating factor. For the integrationists this meant increasing EP powers; for the sceptics it meant returning powers to national parliaments. Neither group appeared to consider the deeper question of how to legitimate a multi-level system. Neither group was prepared to accept the presence of a multi-level system – because the logical conclusion of accepting one was a formal recognition of the diminution of the sovereignty of the nation state or indeed of any multi-purpose, centralised power source, including the EU itself. Treaties even further It has become accepted that neither the Treaty of Amsterdam (1997) nor that of Nice (2001) had the significance of Maastricht. Popular fears had been resurrected, sufficiently at any rate to persuade the supranationalist Commission (from 1995 under the less energetic Jacques Santer, replaced in 1999, when the EP brought about that Commission’s resignation, by the more ebullient, but not especially effective, Romano Prodi) that emphasis upon policy expansion was misplaced. For the time being, the EU’s performance legitimacy depended upon doing better, rather than doing more. Intergovernmental actors had also had an unpleasant shock and their authority as ‘foreign policy’ players was shaken. It was unusual for them to experience unpopularity when they were working with, rather than fighting against, other countries.

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However, the EU had an urgent issue – applications for membership from 12 of the former communist states (and the ongoing application from Turkey). It was clear that the EU as it was constituted was neither structurally nor financially able to take on enlargement, and similarly clear that politically it had no choice. The EU’s leaders and their people had good reason to fear the alternative. Besides, despite the poverty of the applicants, the dream of a whole Europe peacefully united in a single market and customs union was there to be realised. Equally, in relation to the rest of the world, the EU had something to prove. Hence, the EU moved to eliminate the ‘Maastricht leftovers’ in the Treaty of Amsterdam, 1997, that sought to take on the issues of the forthcoming major enlargement, and then the ‘Amsterdam leftovers’ in the Treaty of Nice, 2001. The unappetising phrasing gives a flavour of these two treaties. Both were characterised by rather bad-tempered negotiations amongst the participating political elites, and neither managed to deliver the intended ends. Amsterdam was prefaced by a ‘Reflection Group’, comprising foreign ministers’ representatives, a Commissioner and two MEPs that met from 1995 to 1997 and an IGC that met from 1996 to 1997. These bodies attempted to sort out the problems of representation that the next enlargement would involve, but their proposals, although accepted by the June 1997 Amsterdam Council, did not resolve the contentious questions of how the EU-15121 could retain their current allocation. As Michel Petite remarked:122 some delegations considered that a satisfactory outcome was a necessary pre-condition for enlargement, while others were more concerned that the Conference should not upset an already wary public or jeopardise a delicate domestic political situation. On the whole, Amsterdam’s deliberations leaned towards a more statebased approach to the Treaty. There was, for example, little change to the Second Pillar, except that the Treaty introduced ‘constructive abstention’ into the Union’s procedures, whereby those states (carrying up to one-third of the total of QMV) that did not wish to accept a proposal might refrain from voting, but would not prevent the remainder from going ahead in partnership, with the agreement of Council and Commission, even when not all the states were in agreement.123 Amsterdam did take a half-hearted step towards ‘communitaurisation’ of the Third Pillar; and it included a protocol incorporating the Schengen agreement (see Chapter 5). However, the Treaty continued with the tradition of opt-outs, by including within the protocol a clause exempting the UK and Ireland from removing their border controls.124 On the other hand, Amsterdam attempted to clarify the Treaty’s provisions. It simplified co-decision and added transparency to the TEU’s principles.125

54 Legitimating the European Union

Proportionality was added to subsidiarity in another protocol,126 reassuring elites and the public that the EU would not go beyond action sufficient to secure a defined purpose. The Treaty also added a statement on fundamental rights but without committing the Union to full participant status in the European Convention on Human Rights and Fundamental Freedoms (see Chapter 5).127 Only two states called referenda to ratify the Treaty of Amsterdam. Both were held in May 1998. In Ireland, almost 62 per cent of the voters were in favour, but in Denmark, a grudging 55 per cent (lower than the Maastricht majority) voted positively in a 75.6 per cent turnout.128 The result followed a lengthy campaign backed by the government parties, the trade union movement and the private sector.129 The Danish campaign was also supported by energetic and successful efforts by its government to retain Denmark’s Maastricht opt-outs and to include an employment chapter, integration of environmental policy and a declaration on transparency in the new Treaty.130 The preparations for the Treaty of Nice began a month after as its predecessor had been ratified. The Cologne European Council (June 1999) convened an IGC for 2000 to re-masticate the ‘Amsterdam leftovers’ and to produce proposals for reforming the EU’s institutions. The results, again with a central-statist flavour, featured an extension of ‘enhanced co-operation’ to CFSP and JHA. On the other hand, it extended co-decision with the EP, albeit postponed until May 2004 for the more sensitive issues. A Charter of Fundamental Rights of the European Union was debated before the signing of the Treaty, but was not incorporated into it because of objections from the UK, supported by four other countries. Instead, a new means of attaching the Charter to the Treaty – ‘solemnly proclaiming it’ – was devised. It took two years to ratify the Treaty of Nice, although only one country held referenda – Ireland. Ireland needed two referenda because its people rejected the Treaty first time round, with only 46 per cent of those voting supporting it. This was a surprise to the EU and to the Irish government, which had some difficulty in determining the factors that had influenced the outcome. First, turnout was very low (35 per cent, almost the lowest turnout ever), suggesting that a majority of voters were uninterested in the Treaty.131 Secondly, the Taoiseach, Bertie Ahern, commented that voters had seemed confused about the contents of the Treaty.132 This may have been aided by scaremongering, led by Sinn Féin and the Green party,133 suggesting that Irish military neutrality and sovereignty were threatened. It had been intimated that Ireland, a small country, would be disadvantaged by Treaty developments in enhanced co-operation and be left out of the decisionmaking of ‘big states’. The Irish Minister for Foreign Affairs, Brian Cowen, also claimed that: ‘In recent weeks we have read that the European Union is a ‘leech’ and seen the remarkable contention that the Treaty of Nice would

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bring abortion, euthanasia and conscription to Ireland!’134 Thirdly, Irish ‘selfishness’ – wanting to withhold from the applicant states benefits already gained by Ireland – also received a mention.135 Gerry Adams had, in fact, hinted that EU membership had hurt the Irish agricultural industry,136 and Ahern agreed that voters were worried about the arrival of eastern Europe’s agricultural countries.137 Ahern also thought, though, that the EU was seen as unaccountable by Irish voters and that they had concerns about the end product of EU integration.138 Some commentators, including the then Commission President, Romano Prodi, read the result as a ‘wake-up call’ for the EU. Voters, he suggested, had been offended by the closed intergovernmental method of Treaty-framing, and consequently the EU should resolve that future major decisions should be made more openly. He announced that: ‘There will be no more summits where leaders stay up all night; instead, all new deals will be taken through conventions, which will be more democratic and open.’139 Although the Irish were finally made satisfied by their government, and in October 2002, 63 per cent of voters said ‘yes’ to the Nice treaty, the issues highlighted by Prodi and Ahern have some foundation. Looking at the public opinion survey conducted by Eurobarometer in Spring 2001, there is a wide gap, in most cases, between the Nice ratification majority in each state’s parliament and popular attitudes towards the EU. Figure 2.2 illustrates the difference, showing a comparison between the percentage vote in parliamentary ratifications between June 2001 and December 2002 (except for Ireland, where the result of the first referendum is given) and the public response to the pollsters’ question about public support for EU membership. Oddly, only in Ireland do popular attitudes indicate a higher percentage in favour of EU membership than the numbers who supported further EU integration as represented by the Nice Treaty.

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Eurobarometer 55: % in favour of EU membership

Figure 2.2 Comparison between support for EU membership and the Nice Treaty ratification140

56 Legitimating the European Union

EU legitimacy, parliaments and people Both of the comparative figures shown above indicate that there is a wide gap between what the people’s governments and representatives accept in terms of EU integration and what the people themselves think. States’ parliaments’ responses to ratifying the Treaties of Maastricht and Nice varied little. The lowest parliamentary support for Maastricht came from the UK (79 per cent in favour; Commons’ second reading) and the highest from Greece (97 per cent from the unicameral Bó). ´ 141 In the case of Nice, the lowest parliamentary support was again from the UK (71 per cent in favour of ratification in the Commons); and the highest from Spain (98 per cent from the Congreso de los Diputados). Figure 2.3 shows a similar lack of variation of attitudes towards the EU from the Eurobarometer surveys conducted closest to the ratification votes in the parliaments. The UK’s support for the EU was lowest in 1991 (26 per cent in favour of Maastricht); whilst the Netherlands recorded the highest (61 per cent in favour). In 1998, in Sweden (then a relatively new state) only 26 per cent wanted to stay in the EU, although the other two ‘new’ states’ peoples were also unenthusiastic.143 The state with the highest number wanting to stay in the EU was Ireland (80 per cent in favour). In 2001, the UK had regained its place at the bottom (29 per cent in favour of staying in the EU), and Ireland was still at the top, although joined by Luxembourg, with 72 per cent of Euroenthusiasts. The data indicate that the level of support in general for the EU is much lower from the people than it is from their parliaments. It is possible, since the Commission’s polls do not enable the comparison of like with like, that people do not equate individual Treaty developments with integration in general. However, as the misunderstanding demonstrated by Irish voters indicates and as Chapter 4 shows, electors on the whole do not base their votes upon detailed knowledge upon Treaty contents. Whilst ratification via referenda is sometimes used as an opportunity to express views unrelated to

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Figure 2.3 Comparison amongst popular attitudes towards the EU in 1991, 1998 and 2001142

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the issue, there is a general impression of a distrust of further integration. The next chapter will examine these attitudes more closely.

Conclusion This chapter mapped out the history of EU integration alongside a history of EU legitimacy. It showed that the Technocratic Europe worked by means of ‘non-majoritarian democracy’; the State-Centric Europe worked up to a point with confederal consociation. But as the EU expanded its size and competences, these devices were insufficient to remove popular concerns. These anxieties were based in a lack of democracy, but they were also founded upon a lack of knowledge about the EU’s processes and procedures. This ignorance was not shared by all – indeed as the EU did more, it needed to rely more upon non-governmental and sub-national actors, and these actors, in a multi-level setting, became more connected to and more aware of the EU’s policy processes. The chapter noted that the EU has never experienced high levels of popular legitimacy, but that this fact was hidden originally because the Communities, in their early days, did not involve the people very much, either as voters or as recipients of the Communities’ policies. In fact, Menéndez makes the point that to date, ‘there is no explicit democratic basis of the material constitution of the European Union, which has been basically constructed and affirmed by courts.’144 (his italics). However, almost as soon as the people did become involved, first by voting in EP elections and then by the expansion of the Communities’ competences via the SEA, a gap between what the EU did, what its member state governments accepted and what its people were willing to approve was exposed. Subsequent treaty ratification processes demonstrated the differences even more clearly, and during the ratification of the Treaty of Nice the reluctance of the Irish (of all) people came close to derailing EU integration. As seen in Chapter 4, this prospect seems to have materialised with the rejection of the Constitutional Treaty by both Dutch and French voters. The lesson then appears to be that an appetiser of democracy is not enough. It results only in whetting the appetite for the full meal. Thus, it looks as if that liberal democracy needs to be extended. However, this conclusion may not be entirely justified when applied to the EU. First, it is certain that governments who showed themselves dismayed at the lack of control that they experienced during the Technocratic era are unlikely to agree to add the central distinctive feature of liberal democracy. The people may elect an EU parliament; they will not be allowed to elect an EU government or executive.145 Only in a fully ‘Federal EU’ could its people choose the top tier of government. Secondly, even if this were to come about, it is not easy to apply the familiar liberal representative form of democracy to an artificial construct of the age and size of the EU, as we shall see in Chapter 3. Both its short life, and its size and extensive range of heterogeneity would

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make it difficult to have a truly representative government, even if it were elected directly. An alternative possibility is related to participatory democracy, and links with the multi-level EU. However, multi-level activity is only a provisional legitimating factor. Many scholars, as well as many practitioners and members of the public, are yet to be convinced that ‘multi-level participation’ is necessarily the same as ‘multi-level governance’, or that it would make EU governance acceptable if it were.146 If it is not or does not, and activists become disenchanted, then either other directions will be explored in search of legitimacy or the EU will find that it is unable to operate in accordance with its present level of policies and powers. Chapter 4 considers whether there are enough sufficiently empowered actors in a multi-level EU to create a new legitimating factor by means of participatory democracy. Subsequent chapters explore this and other factors more fully, including both popular inputs into EU governance and outcomes as indicated by the EU’s performance.

3 Liberal Representative Democracy and EU Legitimacy

Introduction This chapter is the first of two that discuss the connections between democracy and political legitimacy. The chapter examines the prospects that the liberal representative norm has for legitimating the EU, by adapting its traditional trappings to the supranational context. To do this, it first identifies the accessories and then considers their impact upon EU political legitimacy. The chapter makes the point that, although the application of liberal representative democracy to date has not conclusively achieved political legitimacy for the EU, other ingredients derived from the liberal democratic culture are worth examining. The chapter therefore looks at these possibilities, drawing from the Commission’s White Paper on Governance,1 and the Constitution for Europe, signed 2004,2 and their potential impact upon the EU’s governmental system. The chapter’s conclusion is that conventional practices and principles of liberal representative democracy are insufficient for EU legitimation. First, they are only partially applied to the EU. Secondly, the limited application reflects the elitist approach taken by the first two Europes. Technocratic Europe saw no need for electoral democracy; State-Centric Europe recognised that, applied EU-wide, it had the potential to diminish the control of nation states’ leaders. Thirdly, national politicians have no incentive to encourage the other trappings of liberal democracy, such as the establishment of an EU-based demos, since the EU’s gain is likely to be the national level’s loss. Finally, the multi-level polity has little use for liberal democracy, since its functioning is determined by direct activity, rather than by direct elections.

Enacting the principles of liberal democracy: the impact of the election in the nation state Liberal representative democracy has three main principles. The first one, related to liberalism, is the concept of limited power. The second one, 59

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related to representation, is the idea that an individual is able to embody the views/wishes/needs of a group of people. The third one, related to democracy, is the concept of popular power. ‘Liberal representative democracy’ therefore means three things, not one, although it is usual to use the phrase, or to use a combination of its terms (‘liberal representation’, ‘liberal democracy’, ‘representative democracy’) as if it referred to a single concept. Voting levels are declining on average in nation states3 as shown in Figure 3.1,4 which illustrates the electoral turnout in three national elections between 1990 and 2003 in the EU-255 states. For the purposes of analysis, the states have been grouped. Group 1 comprises states using compulsory voting (Belgium, Greece, Luxembourg and Italy). Group 2 is composed of the remaining EU-15 states. Group 3 comprises the new Mediterranean states: Cyprus and Malta. Group 4 contains the new central and eastern European states. In all cases, parliamentary, rather than presidential, elections are used as the basis of comparison. Only Group 3, in which Cyprus uses strictly enforced compulsory voting,6 shows increased voting levels, and there only between the last two elections. A number of factors have contributed to the general decline, some of which are explored below, but here we are concerned with the extent to which increasing reluctance to vote has a rational basis – in other words, the significance of the vote in terms of voter control. Voters and democracy The extent of voter impact depends in part upon the form of election. A single member constituency system coupled with prime ministerial government means that the people have limited power over the eventual emergence of an executive, since they are not empowered to vote for it directly. However, if it is accompanied by a presidential system, collective popular power is enhanced, since individuals’ votes are amassed so that the eventual winner has the support of the majority of electors. On the other hand, a proportional representative system may give people more power over their 120 100 80 60 40 20 0 Group 1

Group 2 Election 1

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Average

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Figure 3.1 Voting levels amongst the EU-25 in their last three national elections (1990–2003)

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representatives (since each one’s seat in parliament depends upon attracting the support of a majority of electors), but probably provides less power over the executive. The executive that emerges from such a process, unless it is led by a separately elected President, is more likely to be the result of a coalition, whose composition is often unforeseeable by the electorate. It is worth noting, however, that the employment of either system does not necessarily mean that democracy itself is in short supply. The term ‘democracy’ has two meanings: it can refer to either popular inputs or popular outcomes. In other words, it can refer to popular participation or to the fulfilment of popular needs/wishes.7 The second is exemplified by the common complaint that such a result was ‘undemocratic’, when the speaker means not that s/he was outvoted but that the outcome was not in accordance with her/his desires. Voters and electoral choice Another consideration is that of effective electoral choice, both in terms of width and depth. A wide choice requires a large number of political parties/ideological positions whose representatives have the capacity to achieve elected office. A deep choice needs well-developed ideologies that are substantially different from each other whose representatives have the capacity to form a government. No liberal representative democratic system offers both because they conflict,8 but some systems can be said to offer neither. According to a Marxist analysis, depth of effective choice is only notional because all political systems are based upon their economic infrastructure. They therefore cannot go beyond the limits laid down by their economic functioning, in the same way that the shape of a house is dependent upon the composition of its foundation. Effective political choices are therefore eliminated in the liberal representative democratic system, because of the underlying capitalist economic system upon which it is based. In contrast, C. B. Macpherson pointed out that there are connections between the notion of freedom and limited government, exemplified by liberal democracy, and the idea of free enterprise and limited government interference exemplified by liberal capitalism.9 However, his conclusions about the range of democratic choice were similar, because as Macpherson pointed out, ‘liberal democracy and capitalism go together’, in the sense that liberal democracy was only found in capitalist societies, and almost every capitalist country had a liberal democracy.10 Capitalism, or a ‘possessive market society’, limits any possibility of the radical reformation of society by political means.11 Pluralist theory counters this claim by arguing that in a liberal democratic society, people are free to choose the kind of government that they want, and that an economic system, therefore, is the outcome of a political system rather than the other way round. Nevertheless, empirical evidence shows

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not only the link between capitalism and liberal democracy but also the link between political moderation and liberal democracy. There are no liberal representative democratic polities that are governed by extremist parties of either the right or the left, or by environmentalists or by fundamentalists. Democratic inputs and democratic outcomes More particularly, it can be seen that popular inputs and democratic outcomes do not always go together, although the terms ‘democracy’ and even ‘liberal representative democracy’ are often used to cover both. The experience of acceptable or desirable outcomes provides a potentially legitimating factor, which will be discussed further in Chapters 5 and 6. Here we can note that liberal representative democracy is responsible for outcomes only to a limited extent, because of the ‘broad brush’ effect of the election. ‘X’ marks the voter’s only spot. It is, no doubt, a coincidence that the preferred entry on the ballot paper is the same symbol as that which was once commonly used to substitute for the illiterate’s signature. In practice, executives, rather than parliaments or voters, determine outcomes. As Robert Michels, the Classical Elite theorist, pointed out, organically, executives and other elites have greater power than ‘the masses’, because they are inevitably more politically astute, more coherent and better organised.12 It may not be too fanciful to reflect that the current level and quality of popular input into the liberal representative democratic process owe more to the capacity of western elites to impose them than it does to the ability of the people to obtain them.13

Enacting the principles of liberal democracy: the impact of the election in the EU We have said, above, that national elections in the state provide different legitimating factors, so that the same event, by means of popular participation, legitimates the selection of both government and legislature. These factors apply less within EU. It may be, as Zweifel argued in his comparison of Switzerland, the United States and the EU, that ‘the EU does not suffer from a democratic deficit greater than that of the world’s most liberal democracies’,14 but this was in terms of comparing the institutions of liberal representative democracy. Here we are concerned with the popular perception of the impact of the liberal representative democratic construct of the election. EU voters and democracy The people do elect the legislature – the EP – but this activity does not secure a government. There is no directly elected President, and the results of the elections produce no direct changes in European Council, Council of the European Communities (Council of Ministers)15 or Commission.16

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Decker suggests that a directly elected Commission President could change that.17 The EU does not operate a parliamentary democracy (see below), but if voters could elect their own President, the impact of the election would be stronger. There would still be the question of effective representation (see below), however, and the difficulty of drawing up a shortlist of candidates, presumably by member states’ governments, in an amicable manner. At any rate, for the time being, the EP is the only body that is directly elected. The electoral system for the EP is now similar within all of the EU’s states. The elections are based upon list systems, so that each state’s voters select from a list of candidates (selected by national, not European-wide, parties) and seats are allocated proportionately. Most states have one list for the whole country but six have lists for each region. Most states’ lists offer the voter some opportunity to select individual candidates; nine have closed lists. Other differences include the voting system (most use proportional representation; three use the single transferable vote) and the threshold each party must achieve before it can win a seat (just over half have none; the other twelve use a threshold of between 3 and 5 per cent). Table 3.1 demonstrates the principal differences: So far, EP elections have always produced ‘hung’-style Parliaments, and such coalitions as are formed are temporary and related to issues as they arise.

Table 3.1 Electoral systems used in the 2004 European Parliament Elections18 Electoral basis

Electoral system

Voting system

States/threshold (%)

National

Open list

Proportional representation

National

Closed list

Proportional representation

Regional

Open list

Regional

Closed list

Proportional representation Proportional representation

National Regional

Single transferable vote Single transferable vote

Austria (4%); Czech Republic (5%); Denmark (5%); Estonia (none); Finland (none); Latvia (5%), Lithuania (5%); Luxembourg (none); Netherlands (none); Slovakia (none); Slovenia (5%); Sweden (4%) Cyprus (none); Greece (3%); Hungary (5%); Poland (5%); Portugal (none); Spain (none) Belgium (4 regions/no threshold); Italy (5 regions/no threshold) France (8 regions/5% threshold); Germany (16 regions/5% threshold); UK – excluding Northern Ireland – (10 regions/no threshold) Malta; Northern Ireland Ireland (4 regions)

64 Legitimating the European Union

EU voters and choice The same kind of difficulties occur when thinking about effective electoral choice. There is usually quite a wide choice in EP elections. It is quite likely that voters will see their favoured candidate/party win seats, especially in states where there is no threshold to be passed before a seat may be allocated. However, changes cannot be predicted accurately in the complexion of Parliament nor are any changes likely to have an impact on the executive whichever way electorates vote. Depth of choice is more likely to be on offer for EP elections, since radical groups throughout the EU can unite in funding election expenses, with a reasonable hope of seeing at least a few of their members in the EP. The degree of choice would be higher if more of the radical groups approached the EP elections in combination, but there is a tendency for even radical groups (especially anti-EU groups) to remain state-centred during the election campaign. EU voters and representation Quality and form of representation was said to be an issue for liberal democracy in the nation state. Even if the legislature has limited powers, there is still a role for the Member of the European Parliament (MEP) as advocate and as carrier of the political views of her/his voters. However, a survey conducted by Gallup for Flash Eurobarometer 161 in June 2004 found that only 34 per cent of respondents thought that their MEPs represented them well.19 This lack of appreciation may be because MEPs are themselves not sure whom or what they are supposed to regard as a priority. Scully and Farrell conducted a survey amongst MEPs, asking them to state in order of priority how important it was to represent a range of different interests on a range of one to five.20 Constituency representation was awarded a five by 37.4 per cent, but 36.2 per cent also awarded five to their member state and 32.1 per cent awarded ‘all the people in the EU’ a five as well. Political representation was rated as a five by 28.7 per cent; the national party was awarded five by 25.9 per cent; and the EP party group by 14.6 per cent. It is hoped that none of the respondents gave the highest rating to all categories, thereby risking political schizophrenia! Problems arising from such conflicting loyalties may be less significant than they appear in the EU, but for reasons that are largely negative. There is no link with the executive that would encourage a member hoping for promotion to support it against the wishes or needs of the voters, but an MEP also has an excessively limited relationship with her/his electorate. Proportional representation does not assist the process of acclimatising member to voter, and this difficulty is increased where the state operates a party list system, because personal choice is absent when votes are cast. There are other factors that influence the estrangement, one of which is proportionality. The Nice Treaty limited the total number of MEPs to 732.21

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This means that around 455,000,000 voters are now represented by a tiny number of MEPs in proportional terms – a ratio of around 621,000:1 (it was around 591,000:1 before the 2004 enlargement).22 Secondly, MEPs also tend to be remote geographically, except for voters living in or around Strasbourg and Brussels, where MEPs spend about three-quarters of their working time. A third factor relates to the general problem of the EU – it is perceived to be remote in other ways than that of distance. The issues upon which most MEPs spend their time are often technical and bureaucratic; but even when they are not, it is an exceptional MEP that succeeds in making her/his voters aware of representatives’ views or activities. Media attention is difficult to secure, unless it is to focus on a negative aspect of MEP activities – for example, the cost of a Parliament building or the size of MEP allowances. This disregard is unhelpful in terms of voter awareness. A UK MORI poll in September 2004 found that 80 per cent of those questioned did not know the name of any of their MEPs.23 On the positive side, however, is the fact that MEPs, although selected as candidates by national political parties, are geographically and politically remote from them as well. To some extent, isolation provides additional autonomy to individuals. Scully and Farrell found that those elected from open lists were more likely to be concerned with large-scale interests.24 On the other hand, those that represent states with party list systems need to exercise their freedom with discretion. In addition, the party groups that MEPs join within the EP tend to be broadly constituted, and whipping has to be applied with prudence.25 An MEP, then, as opposed to a national representative, has more opportunity to regard her/his voters’ interests as priorities. The outcomes of these positive and negative relationships between MEPs and their voters are disputable. The EP may not be a model of representative democracy,26 but it may be argued nevertheless that its decisions correlate with the preferences of its varied electorates as well as could be expected given that it has a greater variety of national, sub-national and other interests to represent.27 Crombez, for example, argued that the EU’s success in preserving its processes and institutions is ‘precisely because the policy output has been largely consistent with voters’ preferences’, given that it is the median outcome of preferences held by both the voters’ governmental and parliamentary representatives.28 Policy outputs are considered in Chapters 5 and 6, where it is suggested that this relationship is coincidental, but in any case, Crombez’ argument referred primarily to a normative democratic deficit, rather than an empirical legitimacy deficit. In other words, even if the EP represents its voters’ preferences, intentionally or not, its voters are frequently unaware of the fact. As Crombez admitted, a lack of transparency as well as the indirect nature of its elections (people voting on issues unrelated to the EP or the EU) tended to blur the quality of its democratic legitimacy.29

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Why vote in the EP elections? The turnout in EP elections seems to reflect popular awareness of limitations both of the election and of the Parliament itself. As Franklin noted, EP elections do not serve the function of representing voters or holding governments accountable.30 The voting level has deteriorated at each election since 1979 so that in 1999 and 2004, less than half of the eligible electors took part. Figure 3.2 shows the decline and levels compared with the voting levels in the nearest national parliamentary elections of the member states that comprised the EU by that year. These figures are generic. Blondel et al. considered the question of turnouts following the first four sets of elections, distinguishing particularly between circumstantial abstention (practical problems in voting or the availability of more attractive options) and voluntary abstention (deliberate intention to abstain from voting).33 They concluded that voting, in EP and in national elections, was higher amongst the middle of the age distribution range, but that in EP elections, whilst younger voters were less likely to vote, it was only at what they termed ‘ripe old age’ that voluntary abstention on the part of older people became apparent. On the other hand, voluntary abstention, as well as circumstantial abstention, was at its highest amongst the under 25s. There was less correlation between strong ideological orientation and voting in EP elections, although this may be explained by the weaker nature of EP party groupings and the unlikelihood of any one having sufficient MEPs to acquire an overall majority. Blondel et al. acknowledged that the number of variables made it difficult to form conclusions about the factors that influenced turnout in EP elections. Nevertheless, they suggested that compulsory voting (not surprisingly), voting on Sundays rather than weekdays and the concurrence of national and/or sub-national elections reduced abstention in general. The most surprising finding from the research, however, was that attitudes 100 80 60 40 20 0 1979

1984

1989

1994

1999

2004

Voter turnout (%) EP elections Voter turnout (%) national elections

Figure 3.2 Voter turnout for European Parliament elections and most recent relevant31 national elections 1979–200432

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towards the EU played only a small part in explaining circumstantial abstention, although they did have an effect upon voluntary abstention. People who supported the EU, or who supported integration or who felt well informed about the EU were less likely to decide to abstain from voting in EP elections; so were those who approved of the EP, or who thought of it as reliable, or who were familiar with the EP party structure or the political alignment of EP candidates. Blondel et al. found that although EP elections were not seen as ‘second order elections’, voting levels related to what was ‘seen to be at stake’ – suggesting that the quality of the campaign in terms of the active engagement with the electorate affected turnout at least in relation to those who were not serial abstainers. More recent research bears out Blondel et al.’s findings in general terms. Before the 2004 EP elections, a Gallup survey for Flash Eurobarometer 161 asked specific questions about voters’ intentions.34 Researchers found that of those intending to vote, 72 per cent were voting because of their interest in Europe (i.e., engagement with the EU). Almost 60 per cent thought that the Parliament did not deal with their concerns (i.e., distrust of the EP). However, of those who were voting because of their political interests, 2–3 per cent more were concerned with national rather than European issues. This finding is at variance with Blondel et al.’s conclusion that EP elections were not regarded as ‘second order’ elections. In addition, of those who were not intending to vote, almost 60 per cent thought that their vote would not change anything if they used it (i.e., that little was at stake). Following the elections, another Gallup survey for Flash Eurobarometer 162 was conducted for the purpose of analysing the low turnout.35 Instead of focusing on predetermined questions for this survey, researchers asked abstainers an open question as to why they had not voted.36 Here only 4 per cent stated specifically that they were dissatisfied with the EP as an institution. The (spontaneous) reasons given were aggregated in Table 3.2. Table 3.2 Abstainers’ reasons for not voting in EP elections 200437 Form of abstention

Reason for abstention

Voluntary

General disaffection with political process EU issues (ignorance, indifference, opposition) Voting in election low priority (other activities) Registration problems Other/don’t know

Voluntary Circumstantial Circumstantial n/a

Source: Flash Eurobarometer 162

EU-25 (%)

EU-15 (%)

NMS (%)

49

42

76

20

20

15

38

37

38

5 32

6 38

2 12

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These reasons resemble explanations for abstention supplied in member states, and may, in some cases (especially because they were spontaneous), be the repetition of formulae already familiar to abstainers. However, the responses apply to a larger proportion of people in the EU (see Figure 3.2). Grouping the results from the 2004 survey indicates that, so far as the responses can be taken as an honest reflection of abstainers’ views, a large part of the explanation for the difference (around two-thirds of it) lies in popular reaction to the EU. As Blondel et al. found out, disengagement is a factor in discouraging turnout, but in contrast to their findings, 10 years on from their survey, opposition to integration does have an effect. Blondel et al. queried, however, whether high abstention held great significance, pointing out that the connection between voting and legitimacy was not a simple one. Legitimacy, they agreed, had a number of different facets, and democracy could be applied only with difficulty at the supranational level. Extended participation would not, therefore, imply increased legitimacy – it would depend upon what kind of participation it was.38 However, there is reason to conclude that low participation in EP elections is really an indicator of a lack of legitimacy. We have shown that the impact of EP elections has an inconsequential effect on the EU’s governance. We have also noted that the effect of the system used for EP elections mean that the elector cannot forecast outcomes in terms of the complexion of the Parliament. Finally, looking at the representative function delivered by the EP election we saw that those elected inevitably play limited roles. This conclusion is reflected by the behaviour of the EU’s electorate whose overall low turnout suggests that it responds to this perception, as well as reducing legitimacy further by means of high levels of abstention.

Liberal representative democracy and legitimating the national state: the issue of consent We have argued, above, that so far as democracy is concerned, the liberal representative version gives little real power to people in comparison to that which it gives to their leaders. So far as liberal representative democracy is concerned, it does have the effect of limiting all three groups’ (executive, legislature and people) powers, but there is a substantial imbalance. If legislatures’ strength is more limited than executives’ powers, electoral clout is more limited than legislative influence. However, this does not explain why voting in national parliamentary elections is an average 25–30 per cent higher than it is in EP elections (see Figure 3.2). It appears that despite the shortcomings of their national liberal representative democracies, the majority of the EU’s citizens are still prepared to take part to the extent of turning out to vote in a general parliamentary election. The explanation may lie in additional legitimating factors that have kept the form of liberal representative democracy alive in established nation states, and have continued to add the ingredient of consent to governance.

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Opportunities for additional political activity The first is the opportunity for additional political activity – whilst every citizen is an eligible voter, s/he is also a potential candidate for political office, so long as s/he does not belong to any category of exclusion, normally age- or capacity-related. In addition, where liberal democracy exists, its logic of freedom also provides for the right to freedom of speech and freedom of association. In these ways, liberal representative democracy enables every citizen to take part in both the electoral process and in other forms of political activity, such as interest groups, for example.39 The extent to which either of these options is available or an effective means of achieving political ends varies from state to state in accordance with its social and political structure, but both exist. In relation to the new central and eastern European states, some of which are relatively new to liberal representative democracy, the quality of their civil life and the openness of their institutions were part of the criteria that measured them for fitness for EU membership.40 Enhancing contentment A second factor is contentment. Political commentary agrees that liberal representative democratic states tend to provide at the least minimum standards of social, political and economic security for the majority of their citizens. These states have, to a varying extent depending upon both place and circumstance, also moderated the impact of the working of the free market on their inhabitants. It may be argued that these outcomes are the effects of universal suffrage – when everyone has the vote, it is incumbent on political elites to compete in providing noticeable benefits for their electors. At any rate, there appears to be a significant connection between the nation state and the form of polity, involving liberal representative democracy, which delivers the civic community – well protected, well fed, and at least partly politically empowered.41 Cox cites Putnam’s thesis, based on his study of the Italian regioni, that civic communities and civic traditions are more important than economic development in increasing social capital and thereby producing active and fulfilled citizens.42 However, a government or a system of governance can contribute to the civic culture so long as there is trust between government and the governed. Cives populi sumus43 A third factor is the question of identification (see Chapter 1). Identification may be regime-centred – in this case, an appreciation of the liberal democratic ethos of relative political, economic, social and legal equality, coupled with political and economic freedom. All of these benefits result from limited governance and may contribute to popular consent. Identification may also be national, but connected to the system of governance. Sometimes affiliation is epitomised symbolically to suggest the unity of politics and civil

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society (the flag, the anthem, the ceremony, even the currency); sometimes it is organic/pseudo-organic (shared historic, linguistic or cultural roots).44 Sometimes it is both. The usefulness of national identity is, however, more problematic than other factors, mainly because few nation states, despite the term, actually house only one nation. For example, the expression ‘British’, even when coupled with the Union Jack, the National Anthem and the ceremonial events surrounding the monarchy, is insufficient to ally Welsh, Scottish and Irish nationalists with the majority English ethnic group that is perceived to be in control of the nation’s polity. Also, nationality identification, whether symbolic or organic, is also a factor that threatens state unity – for example in Spain, Belgium and Italy, as well as in the UK. The ‘least worst’ option There are plenty of recent examples of other forms of governance that can be contrasted unfavourably with liberal representative democracy (e.g., Nazi Germany, fascist Italy, communistic USSR). Wars of differing forms were fought and also won, in defending ‘our’ democracy and freedom from the assaults of states functioning under more intolerant regimes. Churchill’s well-known quotation that ‘democracy is the worst form of government – apart from all the others’ is one way of expressing the preference for the least worst option.45 Western regimes today are all variants on the common liberal democratic theme, albeit with differences in the form of election and of government as pointed out above. This commonality implies, perhaps subconsciously, to their inhabitants that liberal representative democracy is the form of regime – if it were not so good, why should so many states practise it? Francis Fukuyama’s view of the ‘end of history’46 was not accepted as the last word by political scientists, but the idea of a liberal democratic consensus now embraced by so many formerly more extremist states can be a comfort to the western citizen.

Liberal representative democracy and legitimating the EU: the issue of consent We have shown that, when applied in the EU, the practice of electoral democracy as a legitimating factor has even more shortcomings than when it is employed in the nation states. When looking at the EU’s form of governance, we are starting with the application of a political system that, as shown above, is flawed both in democratic and in liberal representative democratic terms, but which lingers on with a level of legitimacy in the nation state for a number of reasons not directly connected to the traditional democratic factor of the election.

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Moravcsik commented that the EU is legitimate if judged against existing advanced industrial democracies, rather than against an ideal plebiscitary or parliamentary democracy, presumably suggesting that voting is close to irrelevant.47 He argued that the liberal ingredient of a separation of powers, horizontally and vertically, best characterises the EU.48 The difficulty with this view, however, is that the idea of the ‘powers’ determining amongst themselves what is best for the citizens is not essentially popular. In order to regard a system as legitimate, people need to intuit at the least some degree of self-control over their destinies and/or to have some sense of belonging to a polity of which they can approve. When considering the legitimation of the EU, it is therefore rational to place more weight upon those additional legitimating factors, which may deliver the intangible consent to the EU’s authority. The difficulty for the EU, however, is that those additional factors that seem to work within nation states are less effective at the supranational level. Enhancing political activism in the EU The first factor – the opportunity for political activity – has two sides. Any adult member of any EU state does have the opportunity to stand for election in the EU, unless (in all cases but the UK) they are already a member of a national parliament. This opportunity, however, is available to very few since the 732 seats of EP are the only ones subject to direct popular election for the foreseeable future. The pursuit of interests at the EU level, on the other hand, may offer increased opportunity for activism. We shall examine further the ‘special relationship’ of interests to the EU in Chapter 4. Popular contentment and the EU In relation to the second factor, contentment, the EU may have succeeded in extending liberal concepts of legality, peace and prosperity on a wider basis, but it is not popularly regarded as their main agent. Peace and prosperity throughout Europe appeared an almost unattainable aim in the first half of the twentieth century, but the majority of the EU-15 states had achieved peace and relative prosperity for themselves under liberal democratic governance. Since member state leaders have tended to take the credit for such benefits, the role that the Communities/EU enacted then and later has always been inclined to be played down, as noted by the Commission’s 2001 White Paper on Governance.49 However, the question of ‘what is Europe about?’ has not only plagued political activitists and political scientists, but also obscured the EU’s successes from the majority of its citizens. It is surprising that the EU has continued to function and to progress in most areas, given the fundamental divergence of views, but achieving any form of consensus in these circumstances has been at the price of blurred integrative measures and – as Scharpf has commented – ‘sub-optimal’ agreements.50 A lack of clarity is unhelpful

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in presenting the EU’s achievements to its citizenry. Chapter 5 explores this situation further. Cives Europae sumus51 This issue leads to the question of identification, however. There is little expectation that the indirect benefits of liberal representative democracy will assist the EU’s citizens in identifying with it. It is, though, possible that if these benefits were seen to be enhanced directly by the EU, enabling some kind of supranational pride to emerge, some form of performancerelated legitimacy could accrue. This prospect will also be explored further in Chapter 5. For now, though, we can note that it is only nation states whose regime legitimacy appears to have been secured by these means. This assumption implies that some form of identification needs to take place if the EU is to gain its citizens’ consent. At first sight, there is a problem here. It is often commented by both political actors52 and academic commentators53 that the inescapable fact is that there is no EU demos. All attempts to legitimate the EU hit this impenetrable barrier. Without a demos, it is claimed, the question of legitimation becomes superfluous: no demos = no democracy = no legitimacy. However, this argument does not take account of the point made in Chapter 1 – that the current EU is not the first attempt at organising Europe on a grand scale (Christendom), and that although there were problems about who held it, and with what right, legitimacy itself was not an issue during the period of the Holy Roman Empire. Identification was accepted wherever it existed (usually at the manorial or tribal level) and the emperor’s involvement in the everyday life of his subjects consisted of benign neglect, unless he wanted them to fight his wars. He did not need them to vote for him. Thus a demos can exist without a democracy. Neither does the demos = democracy = legitimacy argument take into account the relationship of liberal representative democracy to the demos. A demos may be created by democracy, rather than the other way round.54 By achieving political unity amongst a formerly diverse populace, the demoi is turned into a demos. Closa, citing Giovanni Sartori, suggested that: ‘democratic forms are in fact imposed on either heterogeneous or homogeneous communities’55 (author’s italics). Weiler, similarly, pointed out that a demos is created by a constitutional settlement, as a married couple are created by their wedding ceremony. The development of unity follows, rather than supersedes, the act.56 The example of the UK substantiates this claim. The UK became a nation state earlier than most, but it has never consisted of a single homogeneous group. Liberal representative democracy accommodated, it did not resolve, nationality differences. Propaganda, largely consisting of symbols (see above) and political discourse centring on ‘the other’ from beyond the UK’s shores, also helped to cement to some extent an otherwise divergent polity.57

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Nevertheless, there is no comparable, democracy-created EU demos. Territorial-based identification leads to the question of multiple identities – what Faist calls ‘nested membership’ – wherein people place their EU citizenship amongst the other affiliations that they own.58 The concept seems to fit the profile of multi-level EU participants, active within and among different strata of governance. This model resembles Kohler-Koch’s notion of a ‘political society’ whose actors vary between being state-bound or Europeanised.59 Why should an individual not consider herself/himself to be equally a part of the EU; her/his nation state; her/his locality and so on? On paper, there is no reason. It may even be argued that all of the EU’s citizens do assume multiple identities, selecting the most appropriate one for the circumstances. One may, for example, call oneself a European when visiting another continent; a citizen of a particular member state when visiting within Europe; a resident of a region within a member state or a dweller in a town when visiting another town in the same region. However, Buonanno and Deakin point out that whilst the adoption of multiple identities appear to be a rational way forward in a multi-layered polity, it is much less certain that the majority of the EU’s citizens are susceptible to such reasoning processes.60 Disparate means of self-identification may be meaningful, or they may just be assumed as a matter of convenience. For example, when an inhabitant of Normandy identifies herself/himself as French, this is likely to be an accurate expression of what the individual feels herself/himself to be. However, if a citizen of Catalonia or of the Basque region defines herself/himself as ‘Spanish’, this is more likely to be a convenience, because the really meaningful identity is based on the autonomous community in which s/he was born. The point is that whilst everyone may have multiple identities, only one is likely to be regarded as the ‘real’ identity. The problem for the EU is that the ‘real’ identification as a European appears to apply to so few of its citizens so far. Eurobarometer has been in the habit of asking respondents on a regular basis whether they identify with the nation state alone, with the nation state plus the EU, with the EU plus the nation state or with the EU alone. This form of questioning has allowed respondents to dodge the question of primary identification. However, the Standard Eurobarometer 61 asked the usual question about identification to one-half of its EU-15 respondents61 and the same question, omitting the ‘European and nationality’ option, to the other half.62 The results were not very different. Of those asked the first form of the question, 4 per cent identified themselves as ‘European only’ and 6 per cent as ‘European and nationality’. Of those asked the second form, 6 per cent of the EU-15 identified themselves as ‘European only’. The results imply that there are still only a small percentage of people whose primary identification is European. Had Eurobarometer 61 omitted the option of ‘nationality and European’, putting the question as a straight choice between European and national identification, the answers might have been more revealing.

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In the Standard Eurobarometer 62, the question about identification was not put directly.63 However, respondents were asked whether they feared the loss of national identity and culture as a result of EU membership. Within the EU-25, 42 per cent said that they were afraid. One may consider that the phrasing of question implies both that the EU could threaten national identity and culture and that national identity and culture are themselves of high significance, and could therefore have provoked the kind of responses that resulted. Nevertheless, if such a high percentage of the EU’s citizens really fear the effect of the EU on their national identity, the prospect of the EU creating its own identification seems nebulous. However, both the surveys point out that the younger and better-educated individuals were more likely to identify positively with the EU than their elders and the less informed, suggesting that there may be better prospects for the future. The lack of positive identification with the EU as a territorially based polity may be because its democracy is in the fragile state that it is, or it may be because, like the social and economic-based benefits of liberal representative democracy, the rewards have already been milked by the member states. At any rate, from looking at differences within nation states, we can conclude that the want of a demos cannot be the immoveable stumbling block in the way of legitimation that it is sometimes said to be. There are also a growing number of people whose work or connections have familiarised them with the EU as an institution to the extent of Europeanising them. In this sense, participation and legitimation may be symbiotic. This question is explored in Chapter 4. There is also the possibility of non-territorial identity. Does the individual define herself/himself primarily as a woman/man, young/old, able-bodied/ disabled, employee/employer, believer/agnostic/atheist, socialist/fascist/ communist/liberal, ethnic minority/majority and so on, rather than as a member of a territorially based unit? All non-territorial-related distinctions exist within nation states as well as in the EU, and should not therefore prevent the establishment of an EU demos any more than they prevented the establishment of national identity. This point has particular resonance for persecuted minorities. For example, the Roma in Eastern Europe are defined, somewhat indeterminately, by their birth ethnic origin,64 and, as Judy Batt suggested, could find encouragement if the EU were able to help to legitimise sub-state country-less nationalities and movements (see Chapter 5).65 Marx’s view of identification with the nation state and its liberal benefits was that it was a propaganda-laden, bourgeois-driven hoax: ‘Law, morality, religion, are to [the proletarian] so many bourgeois prejudices, behind which lurk in ambush just as many bourgeois interests’66 and ‘The working men have no country’.67 His meaning was that the proletariat had more in common with each other than they had with their state of origin. If a form of affiliated identity were to arise and were to be applied in the EU, so that EU’s

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citizens identified with their condition, rather than with their nationality, an EU demos could arise.68 Ironically, though, this demos would be composed of citizens whose commonality derived from a shared appreciation of tolerance and liberalism – qualities that are said to be characteristic of the liberal representative state, but which are not associated primarily with the EU. Lacroix argued that universal principles of this kind are insufficient to establish a fixed political identity, which must include a common substantial culture at its heart.69 However, effective propaganda could help create such a culture. It has assisted the assimilation of diverse populations into nation states when they were at their formative stage from the 1648 Peace of Westphalia to the present. In the mid-1980s, the EU made an attempt with an anthem (Beethoven’s An die Freude – Ode to Joy70 ) and a flag (12 gold stars on a dark-blue background – the number 12 is traditionally a symbol of perfection, completion and unity) both of which were urged on the EU by the Council of Europe that had adopted them in the 1970s.71 There is also an annual Europe Day, 09 May, which celebrates the presentation of the Schuman Declaration (see Chapter 2),72 and each year, the Commission recommends the designation of one of the EU’s cities as the European City of Culture to the Council.73 There was also, of course, the launch of the Euro. The Constitution for Europe included a motto, appropriately: ‘united in diversity’.74 On the whole, however, symbolising the EU has not been very effective. The EU, it has been pointed out, is not-a-state, and therefore should not have the impertinence to claim the kinds of symbolic totems that states adopted.75 The fact that the idea was to establish state-like emblems with a view to expressing the EU as a quasi-state gave the criticism some force. However, this would not have mattered if the effort had been received with enthusiasm by the people. The EU’s flag does seem to have achieved recognition,76 largely because it is displayed on EU-funded projects. Europe Day is not a public holiday, and, when questioned by Eurobarometer in 2003, only 34 per cent of the EU-15 and 40 per cent of the (then) future citizens knew that it existed.77 The European City of Culture title is coveted, but more for the material benefits it offers than for the honour it confers. Only 25 per cent of the EU-15 and 47 per cent of future citizens knew that the EU had an anthem, and, although they were not asked what it was,78 it seems safe to assume that it is most familiar as a piece of Beethoven’s music.79 The EU as the ‘least worst’ option We pointed out (above) that nation states’ legitimacy is also assisted by the common certainty that liberal representative democratic government based on the nation state is the norm. The majority (but not all) of the EU’s current citizens have either experienced nothing else, or they have hoped for nothing else. The EU’s form of governance, apparently based upon the same values, provides nothing new in that sense, but at the same time it

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offers something unreassuringly different. A polity that is not in a formal sense a state, but that assumes some of the characteristics of a state, not least in its ability to legislate, can appear to threaten and/or usurp the stability of nation state-based liberal representative democracy. This effect may be heightened when it is possible to pinpoint areas where the EU is less liberal, or less representative, or less democratic than the familiar (to the majority of the EU-15 citizens) or the anticipated (to the majority of the new states’ citizens) national form of governance. However, the intention of the EU is not to destabilise; it is to guarantee liberal representative democracy throughout its member states. Manners and Whitman devised the model of the ‘difference engine’, to determine the EU’s international identity. They pointed out that attempts to conceptualise the EU in terms of the Westphalian state model were unhelpful because not only did the EU lack the hierarchical governance or the fixed and clear boundaries of the nation state, but the language of international relations itself had been developed to reflect the way in which such states managed their external affairs.80 This is considered further in Chapter 6, but here it is suggested that the formation of an international EU identity will depend more upon Manners and Whitman’s model built from diversity and multiple interactions amongst groups, institutions and individuals, whose strength depends upon the fact that these interactions are un-integrated and varied. Nevertheless, the EU as it is currently perceived suffers from not being regarded as a state. There are, therefore, no potential like-for-like comparisons, although this does not prevent attempts to evaluate the EU’s worth by means of considering what it is not. It is not, for example, the USSR plus its satellites – perceived today as a collective of the unwilling, ruled by the ideologically disabled and bureaucratically incompetent. The image of the former USSR, though, loses its force as the fall of the Berlin wall becomes a historical event. A more recent comparison was made by Robert Kagan between the EU and the United States. To some extent he accepted the notion of a change in discourse, although he popularises and oversimplifies Manners and Whitman’s model. ‘Europe’, according to Kagan, was from Venus, whilst the United States was from Mars.81 By this differentiation, he acknowledged that the EU had transformed Europe, so that it had transcended the Hobbesian world of the ‘warre of all against all’ with the survival of the fittest, which still characterised the United States. Europe had moved towards a community based upon the rule of law with outcomes based on compromise. Kagan agreed with the premise that the EU could be seen as a tolerant and co-operative polity:82 Europe is turning away from power, or to put it a little differently, it is moving beyond power into a self-contained world of laws and rules

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and transnational negotiation and cooperation. It is entering a posthistorical paradise of peace and relative prosperity, the realization of Kant’s ‘Perpetual Peace.’ He accepted that the contrast between the two is an overgeneralisation, noting that European states have attitudes different from each other in regard to foreign policy,83 but it was a generalisation that had some basis in reality. For Kagan, the EU did have a character that is essentially different from the US’, although he thought that most of the credit for this was due to the United States, which had permitted the EU to develop in this manner by protecting its borders.84 Kagan was not a neutral observer; he is himself a neo-con and hegemonistic ‘hawk’.85 He stated that it was not surprising that the EU had adopted a strategy different from the US’, given its weakness, whilst it was equally understandable that the United States had taken the stand that it has, given its strength. Great powers, Kagan commented, have always disliked limitations on their freedom of action, just as weaker states have always valued the rule of law.86 The prospect of becoming a citizen of a ‘Venusian’ halcyon polity has an appeal, despite the impression of living in a fool’s paradise that Kagan evoked. Peace through tolerance and co-operation is, after all, one of the promised outcomes of liberal democracy. The problem at present was, as Kagan acknowledged, that not every member state (notably the UK) would ascribe to this notion either in theory or in practice. In addition, Kagan’s comment that the weak always wish to co-operate whilst the strong prefer to enforce can be applied to political leaders, few of whom are likely to relish thinking of themselves as ‘weak’. The EU’s leaders, therefore, whilst they might prefer in practice working in a polity in which tolerance, compromise and the rule of law are supreme, are unlikely to portray themselves as doves to their own electorates or towards their fellow leaders. Even when pursuing inaction, rather than action, as in Jacques Chirac’s opposition to the Iraq invasion, it must be undertaken at the least from the appearance of a position of strength. As Chirac commented in a NATO summit press briefing in Istanbul 2004: there have been differences of views [on Iraq]. We are friends, allies, we aren’t servants, of course, and when we don’t agree, we say so. We don’t do it aggressively, as you’ll have noted, but we do it firmly. That’s been the case for everything to do with the American strategy vis-à-vis Iraq    87 Kagan’s slightly nostalgic view of America was that it guaranteed the consensual paradise that is the EU by means of its aggressive defence of Europe, but was automatically and eternally excluded from becoming part of it because its confrontational militancy could never be accommodated there.88 The EU may be destined to guarantee the liberal representative

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democracy that helps legitimate the member states, and similarly to deprive itself of that form of legitimacy because it has to exhibit non-state-like legislative power and control in order to achieve it for its members.

Legitimating the EU liberally, representatively and democratically For now, however, we are concerned with the EU’s efforts to reinvent itself within the terms of liberal representative democracy. It should be acknowledged that the EU’s decision-makers are not indifferent to the popular perception of a legitimacy shortfall. No minister, parliamentarian or bureaucrat currently operating within the EU has been politically nurtured on dictatorship or tyranny. Their experiences have taken place within the framework of democratic legitimacy; their assumptions are likely to be similar to those of the citizens’ – that is, that political legitimacy is a requirement of government. Both elites and citizens, however, share a problem with three dimensions. The first one is, as we have said, that both leaders and citizens have a core belief, derived from their environment, that political legitimacy is derived from liberal representative democracy – essentially a nation state construct, and traditionally associated with the nation state. The second dimension is that the EU is not-a-state, and is unlikely to become a state in the empirical sense. The third is that the political system of the EU was not designed with liberal representative democracy at its core (see Chapter 2). In the circumstances, the question must be whether or not it is possible for the EU to be legitimated in the same way as a nation state.89 Kohler-Koch commented that the characteristics of institutions are partly the result of their actors’ decisions, and partly the consequence of the structure within which these decisions are taken.90 If the EU were not designed as a liberal representative democratic state, neither the good intentions of its actors (even assuming that they were in accord) nor elections to an increasingly empowered EP are likely to make liberal representative democracy an effective legitimating factor for it. Liberally legitimating the EU? On the road to accountability and transparency This notion, though, is an uncomfortable one for the EU’s actors to accept. The EU has therefore on many occasions announced its commitment to democracy, transparency and accountability alongside the measures required to make it so. Tortuous and not overwhelmingly successful efforts have been made towards achieving the goals.91 For example, relating to transparency, in Maastricht, in December 1991,92 the European Council declared that: The Conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public’s confidence in the administration.

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From the June 1992 Lisbon Council to the June 1995 Cannes summit, the European Council put forward a variety of proposals for increasing transparency, and reaffirmed its commitment to the principle.93 In 1997, the Treaty of Amsterdam gave a treaty basis to transparency by adding the words ‘This Treaty marks a new stage in the process of creating an ever closer union among the people of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen’ (author’s emphasis) to Article 1. The Cardiff European Council 1998 required Commission, Council and Parliament to prepare for speedy implementation of the ‘new provisions on openness’.94 In 1999, the year of the resignation of the Commission following allegations of fraud and malpractice, the Cologne summit95 committed the Council to working with the then Commission President designate (Romano Prodi) towards creating a Commission dedicated to transparency as well as to integrity. The 2000 Treaty of Nice, however, only added an annexed declaration to the effect that there was a ‘need to improve the democratic legitimacy and transparency of the Union and its institutions to bring them closer to the citizens of the member states’.96 In the meantime, as Settembri pointed out, from October 2001, the EP had taken steps to reduce its transparency by limiting the access of citizens to the Parliament building and hence to its debates.97 The transparency theme was taken up by the German foreign minister, Joschka Fischer in May 2001,98 and the Laecken Council of December issued a Declaration on the Future of the Union:99 [The Nice] declaration and the prospects it opens mark a decisive step for the citizen towards a simpler Union, one that is stronger in the pursuit of its essential objectives and more definitely present in the world. To achieve this, the European Council announced its intention to convene a Constitutional Convention during 2002–03.100 The Convention, which would report to an IGC its proposals for a Constitution for Europe, was itself to be an exercise in increasing transparency, democracy and representativeness as shown by its widened membership. However, the Council continued, the process of adapting a soon-to-be enlarged Union to the twenty-first century would also be paralleled by the consideration of measures that did not need Treaty Amendment. In particular, it welcomed the proposals of the Commission’s White Paper on Governance, which contributed to this deliberation.101 Representatively legitimating the EU: the Commission’s White Paper on Governance The European Commission’s Paper, produced in the light of the dismal Santer Commission’s forced resignation in 1999, was a pragmatic document. A more philosophical approach would have been unfavourably received by the EU’s political leaders,102 especially in view of the forthcoming IGC, but it meant

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that the document turned out to be rather restrained.103 Thus, the Paper had little to say about improving the quality of the EU’s representative democracy and thereby benefiting from a directly legitimating factor.104 It did not, for example, advocate extending the electoral principle to other persons or institutions; nor did it consider reforming the unrepresentative nature of the EP.105 There were no expressed ambitions for a greatly extended role for the EP either. As Steinberg noted, there was no mention of political parties – aggregates of ideological beliefs.106 In fact, the main focus in the paper was on a ‘multi-level system’ wherein there was constant activity and information-sharing amongst participants at all of those levels, rather than upon representation.107 Thus, the Paper implied that the creation of a European civil society would be the primary basis for the EU’s political legitimacy. However, in the matter of institutional relationships there was a hint of radical, but anti-representative, democratic change. The Commission, suggesting that there should be a clarification of the roles of the institutions, advocated that the Council and the EP should be placed on a par as the two parts of the legislature, whilst the Commission itself became the sole executive under the Community method, which the Commission wanted to enhance:108 In dividing powers between the legislature and the executive, the [proposed] model follows that of national democracies. At European level, separating these two roles would make it easier to apply the principles of subsidiarity and proportionality. In the context of a gradual extension of the areas where decisions are taken jointly by the Council and the European Parliament (the so called codecision procedure), those two institutions should enjoy equal roles. That is not the case under the current Treaty. At the same time, this clarification of roles must allow the Commission to assume full executive responsibility. It depends upon what the Commission meant by ‘executive’. The liberal democratic experience of executives is that they frame, as well as implement, the policy agenda. In the EU within the First Pillar (under the Community method), the Treaty gives the right of initiative to the Commission alone. Nevertheless, the executive role is currently shared between the Council and the Commission. The European Council performs the primary executive role of setting the policy agenda by means of its four times a year meetings. The Commission performs a secondary function of framing legislative proposals that will put flesh on the bones of the Council’s agenda inasmuch as it affects the First (Community) Pillar. Even this secondary role is diluted because the Commission is less able than most executives to ensure that its proposed legislation proceeds successfully through the necessary stages.109 Also, both the Council and the EP can – and do – request specific policy proposals

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from the Commission. As such the input of the Council and of the EP is sometimes submitted as counter-claim against the undemocratic ‘Brussels’, epitomised by the (unelected) Commission. It is difficult, therefore, to see what the Commission intended by its suggestion that it should ‘assume full executive responsibility’. Inasmuch as the Commission already has the sole right of initiative in the First Pillar, its suggestion could mean extending the Community method to the other two pillars (Common Foreign and Security Policy, and Police and Judicial Co-operation in Criminal Matters), but this would hardly improve the current limited legitimacy – moving powers from one doubtfully elected group to one that has no democratic credentials at all.110 Otherwise, the only meanings could be either an aspiration to prevent the Council from agenda-setting or an intention to debar the Council and EP from requesting policy proposals. The Commission also suggested limiting the legislative role of Council and EP, by leaving regulatory details to the Commission.111 None of these suggestions would be likely to enhance the EU’s legitimacy on the grounds of its representative democratic credentials. Kohler-Koch commented: ‘We should not lower our democratic standards just because it is difficult to meet them in the European Union.’112 A plausible inference from the White Paper, adopted by several commentators, was that the Commission was keen to enhance its own role.113 Such an ambition is anomalous, considering that the White Paper tacitly assumed that the EU’s democracy was indirect – the inheritor of its member states’ democratic credentials114 – and inadequate, as we have already shown, to legitimate the supranational institution. Despite this incongruity, and although the European Commission’s Paper was about governance, implying effective management rather than political rule,115 and not (directly) about legitimation, it was clear that the Commission had identified some of the roots of the legitimacy problem. ‘   [M]any Europeans’, it stated, ‘feel alienated from the Union’s work’116 and ‘People need to understand better the political project which underpins the Union’.117 However, the White Paper did not discuss explicitly the additional legitimating factors that liberal representative democracy can provide. Where they were implicitly acknowledged, suggestions for reducing the legitimacy deficit were confined to advocating more and clearer information. It accepted that citizens did not identify with the EU, but argued that this was only because of the obscure and complex nature of EU decision-making or lack of information provided to citizens. The Commission put forward a large number of proposals to rectify these defects, apparently not appreciating that having more understanding and information would not necessarily make citizens more affectionate.118 However, the Commission’s unwritten brief was on governance, not democracy or legitimacy. A more radical approach towards addressing these problems was the work towards the Constitution for Europe.

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Democratically legitimating the EU: the Constitution for Europe There are three ways in which the Constitution for Europe might be considered to offer potential for democratic legitimation.119 First, people other than elites were involved in consultation over its terms. Secondly, a constitution, as noted above, usually serves as a means of popular control over the executive. Thirdly, ratification of a constitution normally involves the people or, at the least, their direct representatives. As Skach pointed out, the assumption was that the process of constitutionalisation would stimulate popular attention to the EU.120 This did not appear to be the case in practice, although all documents relating to the Convention were made public, and its meetings were open to the public.121 However, the EU’s Constitution was always in danger of exciting expectations that could not be met. Various commentators have criticised it on the grounds that elites offering a constitution for the purpose of legitimating their control, rather than as the outcome of popular demand, or following a radical reorganisation of a polity, indicates their failure to understand the issue.122 However, whilst one may criticise the rationale behind the Treaty Establishing a Constitution for Europe, its contents and its impact were of direct relevance to the issue of legitimating the EU. Following the Laecken Declaration (see above), the EU set up its first Constitutional Convention. The Convention differed from an IGC in that its membership was widened to include representation from the EP, from the EU-15 parliaments and from the Commission as well as EU-15 governmental representatives, and it involved the (then) candidate countries on a more-or-less equal basis. Representatives from the Economic and Social Committee, the Committee of the Regions and the EU’s Social Partners were also included in Convention proceedings as observers. In addition, civil society was brought in by means of a corresponding Forum intended to ‘broaden the public debate on the future of the Union that has already begun’.123 The intention was to democratise124 and to legitimate the treatymaking process,125 but the Convention also differed from an IGC in that its conclusions were not binding – it was a deliberative and preparatory, rather than a negotiating and decision-making, institution.126 The Convention, chaired by the former French President, Giscard Valéry d’Estaing, operated from February 2002 to July 2003, producing a draft Constitution. This document was then submitted to the IGC, which considered the draft from October 2003 to June 2004. The final version of the Constitution was agreed in Brussels, in June 2004, and signed by the members of the European Council in November 2004. The ratification process was to take place between 2004 and 2006, with an intention that it should enter into force in November 2006. Ratification was, however, interrupted by the refusal of the French and Dutch people to accept it by means of a referendum in spring 2005 (see Chapter 4).

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Although the brief for the Constitution could not be limited in the same way as the Commission’s White Paper, its discussions were, of course, automatically set within predetermined boundaries. Brunckhorst commented that essentially the Constitution for Europe was the ‘product of a more or less closed elitist politics’,127 whose practitioners accept and operate within those boundaries. Thus, the political and economic acquis were given; but there was a need to modernise, streamline and reconfigure the EU within that criteria so as to improve democracy, efficiency and effectiveness in a changed environment. The new environment included a demand for legitimacy in a multi-level Europe.128 Secondly, it included a need to find a way to incorporate more and more diverse states into the EU, ignoring, as Weiler pointed out, the fact that the decision to include them was ‘the single, most important constitutional decision taken in the last decade    ’ and that it had been taken in the absence of serious debate.129 Thirdly, it included a requirement for the EU to come to grips with its potential to be a major player within a more precarious global environment. In effect, the Laecken Council asked for the earth. In the circumstances, partial success would have been a major achievement. Brunckhort claimed that the Constitution could not hope to satisfy the people of Europe, because it was not designed by or for them. The inevitable winners, he commented, would have been the new political elites that evolved alongside the EU’s development, and who represented popular interests only coincidentally.130 Hence, the Constitution could never offer radical opportunity for democratic change, only the continuity of leaderships already in power. One symptom of this was the clause involving a more permanent EU President. This person was to be elected by and answerable to the European Council, not the people of the EU.131 The same applied to the new Union Minister for Foreign Affairs.132 National elites’ determination to take an intergovernmental approach to the Constitutional Treaty ensured that enhancing supranational democracy was ignored. A second symptom was the lack of any provision within the document for majority amendment, except by a reconvening of an IGC and a further unanimous decision taken by the Council and ratified throughout the nation states. Without this, Weiler pointed out, it really was a Constitutional Treaty that was proposed, as opposed to a constitution.133 It is therefore uncertain whether the clauses involving the enhancement of national parliaments’ involvement within the EU were intended to establish more firmly the rights of states directly, or whether they were meant to confirm the hold of national elites on EU decision-making processes. Any transfer of rights to the EU level involves a reduction in the powers of national parliaments, but not that of national elites, who simply move to another sphere of operation. However, these elites have a closer individual involvement with their own national parliaments than they can have, except collectively, with either the EP or the other supranational institutions.

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Hence, providing additional scrutiny powers to the national parliaments did not risk reducing the control of EU elites, just the power of the EU as an institution. It may be argued, therefore, that empowering national parliaments is a way of enhancing the control of national governmental elites by reducing the constraint of the supranational polity. Currently, national parliaments have variable control over their governmental representatives operating at the EU level.134 The enhancements offered to national parliaments were modest and mostly limited to scrutiny in the areas of justice and policy powers.135 However, the Constitution would also have given national parliaments a role in monitoring subsidiarity.136 It stated that if a given proportion of national parliaments believed that an EU act infringed subsidiarity, it needed to be reviewed, and then withdrawn, amended or retained as appropriate. The Protocol on national parliaments also committed the EU to providing sufficient information to enable them to carry out this function. Nevertheless, so long as ‘subsidiarity’ confined itself to a division of competences between the supranational and national levels of governance, this kind of gain to national parliaments would inevitably mean loss of control to the EP – the people’s representative in the supranational forum. The EP itself would have gained new powers through the Constitutional Treaty, however. Co-decision was to be replaced by an ‘ordinary legislative procedure’ and extended to a greater number of policy areas.137 The choice of the word ‘ordinary’ is interesting, implying that other than in exceptional circumstances, the EP was to be an equal decision-maker with the Council. The EP also gained parity with the Council in relation to budgetary matters, since the budget would be amongst the areas falling under the ‘ordinary legislative procedure’.138 In addition, the EP’s jurisdiction was extended to compulsory budgetary spending, since the distinction between compulsory and non-compulsory expenditure was to have been abolished in the Constitutional Treaty.139 In a minimal extension to representative democracy, the EP was also to be empowered to elect the President of the Commission, although only one nominee was to be presented at a time by the European Council for EP approval.140 The candidate, however, was to be selected bearing in mind the results of the EP elections, to try to enhance their significance.141 The nominee for the new Union Minister for Foreign Affairs would also require the EP’s consent.142 The Constitutional Treaty, however, failed, because the people of two member states rejected it in a referendum. It was designed in part to bridge the legitimacy gap as it was perceived; its failure implied that the size of the gap had been underestimated. One of the most substantial criticisms of the Constitution for Europe was made by Brunckhorst, who questioned the motives for writing it. He pointed out that constitutions are normally written either when a new regime is installed or when there is a popular demand for one.143 The EU fits into neither category. It has not undergone a radical

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transformation;144 neither have its citizens been clamouring for a new constitutional settlement. Since 1997, however, the Treaty emphasis has been not upon integration but on enlargement. The Constitution for Europe had, as we said (above), three objectives, but the EU could have waited to be made fit for a globalised environment, and it has already waited for more than 20 years for legitimation. It could not wait for the institutional change required for managing the input of 25 states, as opposed to the 6/9/12/15. An additional Treaty might have achieved this, but two unsuccessful attempts had already been made at Amsterdam and at Nice. The Constitution for Europe, seen in this light, was an attempt to achieve a grand slam. But the EU’s leaders, not the EU’s people, were the ones playing the game.

Conclusion: liberal representative democracy and the ‘four Europes’ During the eighteenth century, the word ‘democratic’ was a term of abuse. By the twentieth century, it was a required legitimating factor for any political activity. The EU now needs to face the possibility that ‘democratic’ in terms of a liberal representative system is a necessary, but not sufficient, legitimating factor; and that further legitimating factors need to be sought. The Technocratic Europe had at the outset neither use nor requirement for anything more than ‘non-majoritarian’ democracy. Rules made by elites, implemented by elites and followed by elites required political consensus only, not popular acceptance.145 Where consensus was lacking, the crude answer, supplied by de Gaulle, was inaction. The State-Centric Europe that emerged had no more need for citizen input or approval than had its predecessor/companion Technocratic Europe. The introduction of direct elections for the EP in 1979 could be regarded as the icing on the cake, or, possibly, as a precaution. The level of response to the EP elections in 1979, in terms of electoral turnout, may have been an irritation (was there really a need to bother?) to the Communities’ political elites. However, as the effects of inaction began to be felt, and the Communities were kick-started into doing more, the fact of direct EP elections was obviously considered sufficient to legitimate its updated role. When the electoral turnout fell in 1984 and again in 1989, no warning bells appear to have rung. From 1986 onwards, the Technocratic-cum-State-Centric Europe took on another dimension, merging with the present multi-level polity, but no formal changes took place in its political arrangements. Some initiatives (described above) were presented for the purpose of encouraging citizens to identify with the EU, but there have so far been no proposals for radical transformation. The Commission’s White Paper on Governance, for example, may be regarded as a restatement of the Technocratic Europe’s raison d’être – ‘leave it to the experts’.146 The State-Centric Constitution for Europe’s only concession to the liberal representative democratic principle was to give a

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modicum of additional powers to the EP and to national parliaments – failing to acknowledge that the one’s gain would be the other’s loss. There is, though, reason to doubt whether enabling the EU citizenry to elect directly a President or a Foreign Minister, or even a Commissioner or new upper chamber would have done the trick. Direct elections, as the experience of the EU’s parliament seem to have shown, only work as a liberal representative democratic factor in legitimation, if they take place against a solid constituency basis. Such a basis, resting upon identification, is, as we have shown, largely absent in the EU. There is another objection, however. In 1962, Charles de Gaulle recognised that his personal standing as the French President would increase were he be elected directly by the citizens. Since then, the French President has been able to claim legitimacy for his doings from all of the French – which has been a useful asset when confronted by the opposition or the ambition of his appointed prime minister. However, an EU president has more to lose than to gain from a direct election. Even if an electoral turnout were sufficient to be seen to legitimate her/his accession, the supranational standing that it would confer would be more than enough to alienate all other EU leaders. It is unlikely that State-Centric Europe would push for a president of all the nations.147 The same would apply (and to some extent already does apply to the EP) to any additional, directly elected individual or institution. Possibly, it was awareness of this circumstance that dissuaded the framers of the Constitution for Europe from extending the direct electoral principle in their document. For the flowering of such a principle, we shall have to wait for Federal Europe, since there is no reason to suppose that a multilevel polity has much use for conventional liberal democracy. Its emphasis is upon direct, rather than electoral, input. Liberal representative democracy, then, is not enough for the EU’s legitimation. We have shown that its limited application to date has been insufficient, and we have shown that its extension is practically unlikely – even impossible. The next chapter looks beyond to other forms of democratic input legitimation.

4 Acting and Interacting: Participatory Democracy and EU Legitimacy

Introduction The point has been made that the EU has enabled a wide variety of persons to become politically active, in ways that do not fit classic liberal democratic theory.1 This chapter examines the extent to which these activities have the potential to provide legitimating factors for the EU, drawing upon empirical evidence, and also, since lines of thought within the EU itself are also relevant within this context, the Commission’s White Paper on Governance and the Constitutional Treaty, focusing on the unfortunate experiences of attempts at its popular ratification. The chapter argues that if participation is widespread and uninhibited, and if it can be seen to be effective, then popular participation could become a legitimating factor within the three models: Technocratic Europe, Multilevel polity and Federal Europe, but that State-Centric EU acts as a barrier against participatory democracy. Given that there is no reason to suppose that the State-Centric facet of the EU is likely to melt away, the chapter concludes that the EU may need to look towards its performance to gain additional legitimating factors.

Categorising participation Participatory democracy has become a popular means of trying to reduce the gap between leaders and citizens recently, moving, like liberal democracy during the nineteenth century, from being subject to contempt to becoming an essential ingredient of a legitimate polity. However, participatory democracy has a number of forms, and there are a number of motives for employing it. Paradoxically, the extent to which it has a potential to become a legitimating factor depends upon how far it is used to enhance democracy, rather than for the purpose of legitimating elite decision-making. Non-governmental participation can only become a legitimating factor if 87

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decision-makers accept the principle that popular rejection is as acceptable and as valuable as popular consent. It is helpful, then, to categorise participation. First, participation can be subdivided into ‘top-down’ or ‘bottom-up’ participation. That is, top-down participation is undertaken at the invitation of the decision-makers, whilst bottom-up participation takes place because of the efforts made by potential participants. In the former, the aims of the participation are set by the decision-maker; in the latter they are set by the participants. Both kinds are common in liberal democratic polities, but the second makes higher demands upon the tolerance of decision-makers. Secondly, participation may be categorised as formal or as informal. Sometimes participation (usually termed ‘consultation’) processes are built into the structure of governance; sometimes participation develops because people are working closely together, either in geographical or in ideological terms, and it seems natural to be in regular contact with a neighbouring or like-minded group or individuals. Formal participation, of course, is generally held at the behest of the decision-maker, whilst informal participation can originate from either decision-maker or participant, but is more likely to be entered into on the initiative of the participant. Thirdly, there is the question of how participation is undertaken. In liberal representative democratic polities, popular participation is usually mediated through groups, which take a number of different forms. They can be economic (sectional) groups – primarily self-interested; or they can be cause (promotional) groups – primarily concerned about issues that do not affect members directly. Groups can have elements of both – for example, members of an environmental group can be concerned about the impact of pollution on their own or on public health, but also about the longterm well-being of the planet. Liberal representative democratic polities can encompass group concerns, although the extent to which they are open to them varies. In a liberal representative democracy, groups can always be kept within bounds by being reminded of their unelected and hence irresponsible status. Since groups do not, and do not aspire to, hold political office, they cannot be ‘trusted’ to make the right decisions on behalf of the polity as a whole. In theory, this means that governments are free to listen to and free to ignore group input. In practice, the extent to which elites take note of groups depends upon their own security of tenure, the popularity of a group’s aims and/or the level of a group’s various resources. The question of whether interest group activity, powerful or otherwise, improves or detracts from democracy has been well rehearsed by academics. Briefly, pro-interest advocates argue that interest groups, like commercially produced lager, refresh parts of the body politic that other (elected) institutions cannot. The alternative perspective rests on the notion that some interests are more equal than others, and that in any case organised interests, again like commercially produced lager, cannot hope to reach all parts of

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the body politic (and that it might be disadvantageous if they did). Similar kinds of arguments may be produced in relation to the impact of groups on political legitimacy. Interest groups may improve decision-making by their input, in which case political legitimacy is heightened. On the other hand, if there is a perception that interest groups and government inhabit a closed world, excluding other potential participants, political legitimacy may be reduced. In a liberal representative democracy, plurality is a possible balancing factor. The extent to which a system responds to a multiplicity of diverse groups may determine how legitimate it is perceived to be. Such an effect is lost, however, if a high level of governmental responsiveness to interests is interpreted as vacillation or lack of political confidence. Direct popular participation within a liberal representative democracy is a separate issue. In theory, a democratic polity requires popular participation. However, a representative polity abhors it. There is no role for the representative if the people represent themselves instead of through the media of elected individuals, parties or groups. Referenda, for example, inviting direct popular input into a decision rather than relying upon representatives’ knowledge and experience, should have no place in liberal representative democratic polities. In theory, at best referenda are unnecessary. At worst, the outcome may reflect a serious flaw in the system of representation or may have disastrous consequences given that individuals have no collective sense of responsibility and may not be held to account for the results of a decision. In practice, referenda – binding or consultative – are called occasionally by European presidents, governments and/or parliaments.2 The feature of liberalism within modern western polities may be employed to permit referenda on the grounds that they add another dimension to individual freedom and/or to limitation on governmental power. Other forms of popular participation have been employed, for example, the ‘citizens’ jury’ or the ‘focus group’. There are democratic arguments in favour of these forms on the grounds that they may ensure that people who are either deeply affected or strictly disinterested can assist in political decision-making.3 Generally, however, groups of citizens are formed for the purpose of popularising views or of opinion sampling. Enhancing democracy is not the primary motivation of decision-makers who employ this form of participation. Fourthly, participation may be analysed by determining its effect – that is, whether ‘participation’ equals power or influence or is simply symbolic. Steven Lukes’ Power, a Radical View illustrates the dimensions of power, noting that the ultimate exercise of power (the third dimension – agendasetting) involves preventing awareness of issues arising. Power can also be used to prevent issues from being discussed (the second dimension – nondecision-making), as well as ensuring that the decision is made in the favour of the powerful (the first dimension – decision-making).4 Occasionally, the dependence of the decision-maker on a group is so high that the group has as much, or even more, power to affect outcomes than

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the titular decision-maker. A group may not need to participate directly to affect outcomes of decision-making, exercising the second and third dimensions of power. Thus, awareness of a group’s views, coupled with its standing and its strength, may be sufficient. Economic groups (e.g., international finance) sometimes have this kind of power, but more usually it is found amongst international groupings, such as the World Trade Organisation (WTO) or NATO. The established church and sometimes the elements of the mass media may also hold it. A particularly strong economic interest group, which includes the capacity to withdraw finance or withhold labour with significant effect, can be said to possess power rather than influence, although the input would be more likely to be an example of the first dimension of power. None of these groups need an invitation to participate, their input is a function of their power, and may therefore be termed ‘bottom up’. Lukes’ categorisation is helpful in analysing decision-making, but is less useful in terms of examining policy formulation. It is difficult to determine whether the adjustments in a particular policy have been made because of the power or influence of a group, or whether changes have been made because they are regarded as useful suggestions that enable the policy to fit the decision-makers’ agenda more exactly. The point at which power shades into influence involves the insider/outsider conundrum. An insider group can operate as described above, but usually such a group, termed ‘insider’ because it is taken into the confidence of the policy-maker (i.e., top-down), can influence decisions in an incremental manner only insofar as it sets no serious challenges to the decision-makers, and so long as it has some qualities or resources that are required by them. An insider group will therefore need to decide regularly how far its own preferences are served by its closeness to government. Groups that become so close to decision-makers that their own aims become secondary to the preservation of the relationship may be described as ‘captured’. At this point they have no power and very limited influence. An ‘outsider’ group is by definition not close to government, and thus fits within the ‘bottom-up’ category of pressure. Its isolation is sometimes achieved because its views and/or ends are not those of the government, and it lacks the resources described above to be able to inflict them anyway.5 Such a group might prefer insider status, but cannot obtain it. Alternatively, there are groups that prefer to separate themselves from government, because of the constraints that would otherwise operate on their activities, or because closeness to decision-makers would destroy their appeal to their own constituency. Either way, outsider groups cannot change decisions in a small way, since they lack the necessary proximity to the centre of power. They may have an impact on the wider agenda, however, given sufficient resources or popular appeal. Tactics include direct action, although public impressionability has diminished in recent years, and direct action may need to be extreme in terms of its form or its substance to make much of an

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impact. In some countries, environmental groups could be said to have this kind of agenda-forming influence. Recently, a form of top-down participation has had a growing symbolic and perhaps functional importance. The idea that participation, at least of the ‘right’ kind, is itself a potential legitimating factor has obviously occurred to political actors. Involving people – sometimes established groups but sometimes random selections of individuals – has the apparent effect of putting government on the side of angels. ‘Consultation’ is seen as a good in itself, irrespective of the outcome. The calling of a referendum may fit into the same category. ‘Asking the people’, in whatever formation, potentially indicates an open governmental mind, a willingness to listen and a determination to avoid autocratic dogmatism. It is, however, invariably a ‘top-down’ method of enabling participation. When such processes are otherwise avoidable, the intention is almost always to claim approval for (rather than input into) a policy decision, or for the elite that has sought popular endorsement. The results of a referendum, as some EU states have already discovered, are, however, unpredictable and the extent to which they express the popular will regarding a particular policy decision and thus the potential of popular participation is arguable (see below). The impact of top-down symbolic participation on policy outcomes is difficult to establish. Sometimes government includes non-governmental input to ensure that policies, informed by both the expertise and experience of interested groups, are likely to be better in themselves and/or more acceptable to those most affected by them, and therefore more effective as policies. In this kind of case, participants do not influence, but they may affect outcomes. They offer opinions or advice, rather than pressure or persuasion. Decision-makers may also attempt to popularise a policy by means of consultation, during which its otherwise undesirable aspects may be explained to potential recipients, and their displeasure reduced or removed. Here participants are not engaged in applying pressure; they are undergoing persuasion. The successful outcome of such a process requires the recipients to be broadly in favour of the policy in general. Participants wanting radical change, or who would prefer inaction, or who are in fundamental disagreement with the premise that has set the agenda, are unlikely to be consulted, because their input has limited potential to provide a legitimating factor.

Tensions involved in participatory ends There is a tension between the aims of the interested parties because, however it is conducted, participation by non-governmental organisations or by individuals is not generally undertaken for the purpose of legitimating governmental activity or to provide support for elite ventures. It is intended to amend, transform or invalidate governmental policies in the interests

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of the participant(s). There are a number of activities, ranging from innercircle consultation to violent demonstrations, which require an elite to take stock and, in some cases, change course on or desist from a particular action or policy. The reasonable prospect of a degree of success makes participation worthwhile, although a number of factors, familiar to all students of politics, mean that some groups or individuals are inevitably more likely to be successful than others. Participation from the bottom up is self-explanatory. Groups form and take action in order to fulfil their aims. They will not necessarily expect or receive encouragement from decision-makers, but groups take upon themselves the responsibility of gaining their attention and support. On the other hand, participation that is introduced from the top down is always intended for the benefit of the decision-makers, rather than for the good of the participants (although the results may not always be those that were intended). In such a case, prospects for legitimating decisions are likely to be higher than prospects for legitimating a governmental system. At the least, however, any participant in a liberal representative democratic polity has the potential to become a legitimating factor, and thereby may attract positive governmental attention. Since the stakes for legitimation get higher all the time, group action and popular participation have quite a promising future.

The EU and group participation Three features of the EU determine the form of participation that is acceptable within it. First, the EU has a schizophrenic nature, as illustrated by the ‘four Europes’. It is partly intergovernmental (ruled by agreements of its 25 governments through the European Council and the Council of the European Union) and partly supranational (ruled by its internal organisations: the Commission, the Parliament and the Court of Justice). Bottom-up group participation in the EU also has an intergovernmental and a supranational dimension, although the supranational dimension tends to dominate. Groups taking part in EU activity may restrict their activities to lobbying their own governments; more usually, however, they may work only within the EU, or they may operate in both spheres. The choice about the level at which to pitch group activities depends upon group aims and upon their resources. Secondly, the EU has a complex structure. Its decision-making procedures, taking place at different levels of governance and involving a variety of political and bureaucratic actors, provide relatively extensive opportunities for group input, and equally extensive potential for embracing group output (i.e., bottom up and top down). Scharpf commented that the EU probably incorporates a wider range of interests than any national polity.6

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Thirdly, primarily because of its two-headed nature and complex structure, the EU is fond of consensus. Inter-institutional and inter-state agreements are difficult to reach, so it is important to iron out as many differences as possible before the final stage of decision-making. Consultation that can depoliticise and/or legitimate decision-making makes EU actors’ jobs easier. Top-down group participation is therefore a feature of the EU. The right kinds of groups will be welcomed, especially by the Commission that is responsible for developing and implementing policies. Provision for interest group activity in the EU Group activity is institutionalised within the EU, although the form of input varies depending upon where group interests lie. Under the First Pillar (the Community Pillar), interest groups have an institutional presence, many with guaranteed access to the Commission as part of its advisory structure through its Directorate-Generals; to the Council through its committees and working groups; to the EP; to the advisory committees (Economic and Social Committee – ESC – and the CoR); and to the ECJ. In the Second (Common Foreign and Security Policy) and Third (Police and Judicial Co-operation in Criminal Matters) Pillars, however, decision-making is intergovernmental, with less input from Commission, EP and ECJ, and the access of groups is restricted to those that have resources to offer. However, examining formal group input into EU processes alone would underestimate the extent of involvement. The EU invites interests, but equally groups want access to the EU, so they lobby, formally and informally, as well as taking part in invited consultation. Advising and offering expertise do not necessarily exclude lobbying – some groups do both7 – but the degree of influence varies depending upon a group’s resources and tactics, as in any member state. As pointed out above, participation in the form of consultation is frequently used by elites as a legitimating factor. The EU has, in common with the governments of some of its member states, institutionalised consultation in two forms. First, it has statutory consultative Committees, and secondly, the Commission and Council have both instituted a series of ‘expert’ and ‘advisory’ committees and working groups that assist in and frequently prepare or even make their decisions. It also has an organised, self-governing lobbying system. The consultative committees The EU has two statutory consultative committees: the ESC and the CoR.8 Following the 2004 enlargement, the two Committees have 317 members apiece, and the CoR also has 317 alternate (substitute) members. The ESC has been part of the EC/EU’s institutions from 1957 and is similar to the founding states’ economic and social councils. It represents ‘civil society’, and comprises representatives of employers, employees and ‘various’ (usually consumer) interests. The CoR, on the other hand, dates only from 1994,

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and is without a comparator in any of the EU’s member states. ‘CoR’ is a misnomer. The Committee consists of representatives from the EU’s subnational governments, sub-regional and local, as well as regional, depending upon the sub-national structure of the EU’s member states. The institution of the ESC and the CoR indicate the extent to which the EC/EU is committed to consultation. Although the ESC was a copy-andpaste institution, the CoR was set up partly as a result of pressure: from powerful sub-national governments (the German Länder and the Belgian Regions) upon their home states,9 and from the pan-European groupings, the Assembly of European Regions (AER) and the Conference of European Municipalities and Regions (CEMR). The Commission favoured the establishment of a sub-national advisory body because of the assistance it envisaged in terms of policy-shaping and implementation. The CoR was also a partial answer to the issue of subsidiarity – that is, the principle that decisions should be made at the lowest possible level. Member states would never accept a literal interpretation of the principle included in the Treaty and the 1992 Edinburgh Council made it clear that ‘subsidiarity’ meant that decisions would be made by member states, unless it was essential that they be made at EU level. However, by inviting the input of sub-national governments on EU-level decisions, a form of subsidiarity was invoked – albeit in a very subsidiary manner. It could not be said that the Consultative Committees have added a convincing legitimating factor via participatory democracy, for a number of reasons. First, their independence and their expertise are compromised from the start. Members (not necessarily members of relevant groups in the case of the ESC) are nominated by member states, which follow their own procedures in determining the nominations, and are then appointed by the Council for a 4-year renewable term of office. Members are charged to be ‘independent’,10 and may therefore not be mandated by any group of which they are members. This has the effect eroding the specific representative function of the members of the Committees, although it may increase the generally representative functions of the Committees themselves. Secondly, although consultation is extensive – almost all policy decisions made under the Community Pillar now have a legal requirement for an ‘opinion’ from one or both consultative committees – it is not necessarily intensive. The Committees may offer an opinion on their own initiatives, and they may also be consulted if the Commission, Council or Parliament wishes to exercise that option. However, there is no obligation on the part of the EU’s ‘real’ decision-makers to follow ESC or CoR advice, and academic opinion is divided about the extent to which the Committees are influential.11 There is a tendency for the Committees to claim credit where their opinions have been accepted, but the Commission does not acknowledge the specific input of the advisory bodies in amended proposals, and therefore it is not certain whether the Council is even aware of it.12

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Thirdly, and perhaps most importantly, the ESC and CoR do not provide the only routes through which interests may express themselves at EU level. Sub-national governments, with Brussels-based offices have a better opportunity to affect policies on a day-to-day basis than the CoR (see below), and a grouping now called the Social Partners has more power in terms of decisionmaking than the ESC. The Social Partners are representatives of the European Trade Union Congress (ETUC); the Federation of European Industry (UNICE) and the federation representing European public sector firms (CEEP).13 Their significance has developed primarily since the Treaty of Nice. The TEC now gives the Social Partners an opportunity to make laws.14 If they inform the Commission at the first consultation on a proposal of their wish to reach agreement amongst themselves, they have (an extendable) nine months in which to do so. If they are successful in reaching agreement, the proposal may be implemented either by the Council or by its member states individually without further consultation. Reale points out that whilst this provision gives power to non-state participants, simultaneously it deprives all other actors, including the EP and the ESC. Incrementally, the Social Partners have developed into a new EU elite.15 Reale also suggests that since the Social Partners do not represent the recipients of social policies, this creates a deficit in terms of interest representation, with a consequence for democratic legitimacy.16 This criticism, of course, could also be applied to the ESC and the CoR. Neither Committee has an institutionalised relationship with those whom they are said to represent within the member states, and, since Committee members are not elected, accountability is at best dependent upon their good will. Consultative Committees do not provide a convincing legitimating factor by means of participatory democracy. Participation is restricted to a few people, selected by the EU itself, and apparently not extended further by contacts made with like-minded groups and individuals in the wider EU. On the power-to-influence-to-symbolism spectrum, their input belongs in the space between influence and symbolism. As Jeffery commented of the CoR: ‘   for those who had envisaged it as a powerful “third level” institution, the CoR was a profound disappointment.’17 Groups as advisors and experts The European Commission has a reputation of being open to groups. It has divided organised interests into profit (i.e., economic groups) and nonprofit making organisations. Of these, the second group can be further subdivided into public interest bodies (promotional groups) and sub-national governments. In 2002, there were around 1300 private; 300 public and 360 sub-national government interests working within the EU, employing an estimated 14,000–15,000 lobbyists, compared with the EU’s staff of around 34,000 direct- and agency-employed workers.18

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The Commission has a system of consultative expert and advisory committees that assist in policy formulation, whose members are appointed by the Commission. The Commission consults widely with outside interests, including business test panels and around 700 ad hoc consultation bodies;19 it has a self-regulatory lobby system and, with the EP, it helps finance some groups’ activities.20 It has a number of reasons for acting in this way. First, the Commission is a supranational organisation, which means that there is a basic tension between it and the intergovernmental Council – the input of expertise can smooth out some of this tension by depoliticising proposals.21 If the Commission is able to show the Council that a particular initiative has the general agreement of all sides, the Council has less reason to oppose, and fewer grounds to want to object to a proposal. Secondly, as noted above, the Commission is relatively small in terms of staffing. It cannot carry out its functions of initiating and implementing proposals by itself. It needs additional expertise,22 and it needs positive approval of legislation and legislative proposals if they are to be implemented successfully.23 The favourable verdict on the Commission’s approach to interest groups may therefore be tempered by the consideration that it is motivated by self interest – it is very much a top-down approach. Also, not all interests receive the same level of welcome by the Commission. For example, almost half of the consultative committees appointed cover agriculture and employment.24 The degree of plurality within the EU has been the subject of academic argument. Peters thought that, at least at the agenda-setting stage of policy-making, groups were significant.25 However, as Peterson pointed out, it would be unwise to regard the EU as a ‘Jeffersonian system of pluralism’, if only because activity at EU level requires extensive resources not available to all groups.26 On the whole, although it varies from DirectorateGeneral to Directorate-General,27 business (including agricultural) interests are more common than environmental, worker and consumer interests28 and are generally more successful. Economic groups that represent a wide spread of EU interests are particularly influential, extending even to actual decision-making, as seen above. However, the satisfaction of business interests is a necessary but not sufficient precondition for political legitimacy. The formal standing given to a variety of interests at the EU level by the Commission is of more significance. The fact that some groups appear to be more equal than others is unfortunate, however – an interest that is perceived as legitimate may repay the favour by conveying legitimacy to the organisation that recognised it. Lobbying in the EU Looking from the bottom-up perspective, as noted above, there are a large number of interest groups in the EU,29 many of whom have an office location close to the Commission,30 although the terms under which they

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operate vary. The preferred target for lobbying is usually the Commission. The Council is relatively inaccessible, and the two Consultative Committees are perceived to be relatively ineffective. The EP is an important secondary target, and is the most open towards lobbyists,31 although it should be noted that whilst MEPs welcome the input of groups, lobbyists’ manner of day-to-day working is often more suited to the permanent establishment of Commission staff than it is to that of a peripatetic Parliament, which spends only half of its time in Brussels.32 Beyers and Kerreman note that the approach adopted by lobbyists to the Commission depends primarily on offering advice and expertise, whilst when the EP is the target, lobbyists are usually seeking support for their political standpoints.33 Private interests represented in Brussels include pan-European business groups; major companies (who may operate within and apart from panEuropean groups); national chambers of commerce; law firms and political consultancies. They represent many nationalities, but tend to be UK- or US-dominated.34 There are also public interest groups. Normally those located in Brussels are the larger non-governmental organisations, such as environmental and human rights groups. Finally, there are non-EU national embassies and sub-national delegations, normally representing the more powerful regional authorities.35 For sub-national government, interest in locating in Brussels has developed alongside the development of the Structural Funds and alongside devolution, where it has evolved in some member states partly in response to the EU’s regional agenda. Sometimes lobbyists have a specific and/or wider ranging aim. For example, the Conference of Regions with Legislative Powers (REGLEG) developed as a lobbying institution from 2000 onwards, to try to give the more significant regions some say in the contents of the future Constitutional Treaty. Primarily, lobbying directed at the Commission is conducted informally and with relative discretion, whilst lobbying the EP tends to be rather more media-directed. More importantly, however, it is constant. The point about having an office in Brussels is to put a group on the spot. The point about having permanent staff there is to improve their effectiveness by means of experience and by means of extending networks and developing personal contacts with lobbyists’ targets.36 Obviously, groups that have the resources to maintain a fully staffed base in Brussels have an advantage over those that have not. Beyers and Kerreman found that the best known lobbyists were most likely to have specialised technical expertise, followed by strongly developed networks. Less frequently, they were likely to deal with issues of prominent public concern and to be able to mobilise support or to act as mediators.37 However, the same criteria for success apply. In his 1994 article, Peter John examined a number of case studies relating to UK’s sub-national governmental lobbying of the EU.38 He noted six examples where it could claim success and six where it failed. John pointed out that the failures were only in part

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because of poor tactics. In two cases, the EU’s environmental concerns had outweighed UK local governments’ wishes, and both sewage dumping at sea and the separation of waste for disposal took place despite their opposition. In the remaining four cases, relating to the reform of the Structural Funds, the views of EU central governments had taken precedence over those of its sub-national governments. John commented that he found few examples where lobbyists had succeeded despite the odds. The message appears to be, not surprisingly, that well-organised and well-resourced lobbying may be successful so long as its objectives do not deviate too far from those cherished by the EU, or from those of the member states’ governments. Interactive participation in the EU Up to this point, we have discussed group input from an institutional perspective – how groups organise and are organised into participation within the EU. We have also discussed the extent to which lobbying is conducted and how far it is effective. Most of the comments made above could relate equally to a nation state polity. The EU is (perhaps) more open to interest groups than are the majority of its member states and the organisation may vary, but nation states’ institutions too utilise expertise and advice; they have institutions that are open to lobbying and they tend to be more responsive to those interests that do not require a radical change in policies or ideology. What was omitted from the discussion was consideration of the characteristics of the EU as a supranational polity. As such it has been subjected to detailed analysis, all of which to date have had to contend with the unique nature of the EU. First, the EU is not-a-state; but it makes legally binding decisions. Those decisions rest alongside political considerations, some of which fit into the category of ‘high’ politics, meaning that implementation and enforcement can be activities that are as politically sensitive as decisionmaking – and thus creating a space for group involvement during the policy process. Secondly, the relationships amongst EU’s institutions have unfamiliar characteristics. The Commission is part executive/part servant to the Council, charged with implementation, but lacking serious resources to carry out that function. The Council is a part-time executive, lacking a parliament, and without inner coherence. The EP is a parliament with two governmental bodies, only one of which is accountable (or in fact connected) to it. Only the Court of Justice, of the EU’s main institutions, has recognisable characteristics with high courts in the member states. The hybrid nature of the EU institutions means that groups can sometimes penetrate to a greater depth than they might with national institutions. Thirdly, the realm of decision-making is extensive, but it is limited to that which is permitted by treaty. The EU cannot do what it likes, and it may not even do as much of what it can do as it likes. Proportionality

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and subsidiarity prevent it, at least in theory. The form of decision varies depending upon which area of policy-making is considered. The Treaties explicitly separate ‘home’ and ‘foreign’ affairs from Community business; but even in the First Pillar, practitioners need to refer regularly to the Treaty to determine the intricacies of matters that fall under QMV and those that do not; those requiring the formal opinion of the Consultative Committees and those where an opinion is optional; those that are subject to enhanced co-operation, and those that are not. And, overriding all of these uncertainties, is the realm of politics. The European Council can do as it pleases, so long as agreement is reached (unanimously in practice). Its agreements are not legally binding, but they may change the context in which any other decisions are made. The significance of this confused picture is the space that it creates for non-governmental or sub-national input in terms of policy-making. Costa et al. speculate that the EU may be led towards a new model of democracy, which they term ‘diffuse democracy’, as a result of the different mechanisms of control over its bodies and institutions.39 It may also be the case that diffused democracy results from different group input at different stages of the policy-cycle, with each layer legitimating the part with which they are concerned. Looking at the policy process as a cycle40 – agenda-setting; policyformulation; decision-making; implementation –, we can demonstrate where the spaces are filled in by groups. For agenda-setting, the EU is a dynamic institution, which means that its overall agenda is in a state of fluctuation. Important issues, such as Economic and Monetary Union (EMU) and enlargements, arise relatively frequently, sometimes resulting from external circumstances, and sometimes from the efforts of EC/EU policy-shapers (see Chapter 2). The experience of the EU’s most powerful sub-national institutions – subnational authorities with legislative powers – is a guide to the impact of groups upon the EU’s wider agenda. Until 1986, only institutions and individuals active at the nation state and/or EC level had attempted a direct input into agenda-setting. From 1987 onwards, however, regional governments with legislative capacity, led by the German Länder, worked towards changing the structure and direction of the EU. The Länder envisaged a threelevel federated union, in which the concept of subsidiarity was included; regional-level access to the Council was guaranteed; there was a CoR; and the regions had the right of appeal to the ECJ. Jeffery described their highly efficient and widespread campaign, which included mobilising other regions; the AER and, crucially, their home governments – since the Länder already had the power of veto over ratification of the future Maastricht Treaty.41 Success was partial – the first three objectives were achieved, after a fashion; the fourth was not and although the EU functions across multi-levels, the fully formed three-level institution has not yet emerged.

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Jeffery noted that the closing of the agenda after the pre-Maastricht IGC and the emergence of other priorities were the main reasons for the outcome, but his analysis does not take into account the attitude of other EU actors. Jeffery commented that the CoR, the German Länder and the regions in Europe ‘failed’ to take the agenda forward in the circumstances, but he did not ask what would have happened if the regional interests had been sustained and if their collective voice had remained coherent. Yet, with the possible exceptions of Germany and Belgium, and perhaps Italy and Spain, the member states of the EU have shown little enthusiasm for regional autonomy. It is unlikely that their leaders would accept the idea that their power within the EU should be shared with their sub-national governments. Opposition was not open – but it was the member states that were primarily responsible for determining the EU’s priorities after Maastricht, and also the limited role and complexion of the CoR. The example of regional mobilisation provides a useful demonstration of the limited ability of sub-national actors to affect the EU’s agenda fundamentally. Agenda-setting within policy areas is a different matter, and offers more possibilities, given that there is a powerful EU ally available. It is usually a task for lobbyists42 (where an agenda has not been preset by the EU or its power sources) but they need to work within the EU’s institutional structure. Fortunately, this is not difficult – in many cases lobbyists may rely upon the Commission’s supranationalist instincts, which encourage it to form networks specifically for the purpose of extending the EU’s policy agenda.43 Various academic studies demonstrate this propensity. For example, Bartle explicitly related the effectiveness of a multi-level process involving transnational actors to a project that set the issue of a pan-European regulator for telecommunications onto the EU’s agenda despite member state resistance.44 This form of agenda-setting is still from the top down, where the Commission has initiated activity, but the outcomes were beneficial to the groups who were mobilised, and at any rate demonstrates that there are areas of the EU’s agenda that remain relatively open. It may be noted, however, that spaces for this kind of activity are available only in the absence of leadership from the Council in specific policy areas. The Commission, like Nature, abhors a vacuum, and is normally ready to fill it with the help of groups and networks. Interested parties, groups and lobbyists try to work at the policyformulation stage of the policy-cycle for two reasons. First, their input is more likely to be welcomed when officials have the whole job of framing an initiative in front of them. Secondly, shaping a policy before it is decided is easier than changing a policy after it has been decided. In the EU context this is particularly applicable, given that the range of individuals involved at the early stages is smaller and more coherent than the range of institutions that become involved later – the advisory/expert committees; various DirectorateGenerals; the College of Commissioners; the Consultative Committees; the Council and its committees; Coreper; the EP and its committees.

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Héritier noted that at the policy-formulation stage, interaction amongst supranational, national, sub-national and non-governmental participants within a multi-level structure increased accountability and hence legitimacy.45 The Commission takes a top-down approach towards this kind of involvement as well, but, as Héritier recognised, the plurality of activity itself provided the kind of checks and balances in policyformulation that she traced back to Madisonian republicanism. The downside is reaching a proposal agreeable to all participants. However, Benz and Eberlein commented that co-operation of the lower strata characterised such activities, and that this enabled the system to work reasonably effectively.46 Given an inclusive and consensual approach, coupled with a collective assumption that an acceptable proposal was a final objective, an initiative developed under such an all-inclusive microscope could be regarded as legitimate by those whom it concerns most closely.47 The point is that such participation is interactive. There is no one institution that can lay down the law, although it may set out the context within which discussion is conducted. In some areas of policy-making, interests play a substantial role to the extent of decision-making within some policy-areas. As noted above, groups make many low-level decisions in their capacity as members of advisory and expert committees, but these committees are constituted by the Commission’s or by the Council’s bureaucracy. Regional policy, particularly relating to the Structural Funds, provides a different kind of case-study. In regional policy, the multi-level governance theory is said to operate,48 wherein economic and social interests at supranational, national, sub-national and non-governmental levels work with governmental institutions in determining the allocation of the Structural Funds on specific projects.49 However, it is essentially low-level decision-making that takes place here as well. Distributive policies, that is, how much is to be spent and where, are distinct from development policies which determine the scenario for spending and the total budget available for it.50 Member states have always been keen to keep control over the Structural Funds and decisionmaking is firstly a matter for the European Council – which determines the criteria for allocating the funds to the member states.51 The Council also decides the basis of distribution of the Structural Funds in accordance with the EU’s Objectives, and decides upon the budget; acting on a proposal from the Commission and negotiated with the Parliament.52 Individual national governments, with the involvement of their social partners and regional government,53 provide regional development plans to the Commission, which then negotiates and approves the programmes. ‘Partnership’ is stressed, and the Commission has used its role as paymaster to require the input of sub-national actors. However, the Commission has also used its powers to ensure that programmes comply with EU policies, for example, on the environment, equal opportunities and state aids.54 The decisions

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that remain for sub-national governments and non-governmental groups are then confined to choosing and approving specific schemes that meet the EU’s criteria. The extent of participation also varies from state to state and even within states. For example, regions with legislative power like the German Länder have more input into the process than regions without them, such as the English regions. However, as Benz and Eberlein point out, the relationship between the Länder and the Federal executives gives limited space for lower level sub-national government or for non-governmental groups.55 It is different in the UK. The Scottish Parliament and Welsh Assembly have more input than the (unelected) English regional government, but in all three countries there is a tradition of centrally administered regions and, more recently, there has been a declining role for local government.56 In England, social and economic groups, representatives of other interests, such as education, and public private-partnerships tend to play a significant part, alongside Government Offices, staffed by civil servants, and Regional Development Agencies, whose primarily business-dominated boards are appointed by national governments.57 The Commission is formally responsible for the implementation of EU policies and legislation,58 but it cannot do this directly since it has insufficient personnel. It therefore relies upon implementation within member states, backed by a system of reports, surveys and, in difficult cases, ECJ enforcement, including fines. Primarily, though, like all policy-makers, the EU depends upon the consent of those who directly put policies into action. The implementation stage of policy-making is a significant one, since it is at this stage that policies have a tendency to go wrong, and the EU is particularly vulnerable to policy-failure through poor implementation for two reasons. First, resources are short, and secondly, implementation falls into the unresolved area of supranationalism and intergovernmentalism. National actors share the theory of a united EU, but do not always accept the effect of a united EU on their national interests. In addition, sub-national actors, agencies and groups may have difficulty in reconciling the need for unity with the impact of collectivism. Thus, those who implement EU laws and policies cannot be relied upon to share the same aims as those who decided them, and in some cases they have an interest in not implementing policies that they may see as antagonistic to their own purposes. There is therefore a requirement for some means of conciliating the different approaches from the first. The compromise selected by the Council was ‘comitology’. Comitology is a means whereby standardised rules for implementation, sometimes involving drafting secondary legislation, are set by (around 244) advisory committees,59 chaired by the Commission, but whose members are national experts.60 The means of implementation therefore involves the participation of additional actors, but some commentators are sceptical about the sort

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of participation. For example, Dehousse painted a picture of transnational bureaucratic networks in which experts reached agreements easily, thereby forming an exclusivity that gave a problem to EU institutions and to national governments.61 Harlow argued that comitology constituted ‘an extended model of interest representation disguised behind a screen of supposedly impartial expertise’, and regarded it as a symptom of declining democracy.62 Claims have also been made that comitology helps to reduce transparency,63 suggesting that what legitimacy may gain on the swings of participation, it loses on the roundabout of accountability. Once rules and standards are set, national bureaucrats and agencies are the primary instrument of implementation, but they too have an overseeing role over large areas of EU policies. Agencies include bodies like tax and customs offices, and ministries of agriculture and trade. Sub-national authorities are responsible for implementing a range of policies from trading standards to environmental health. Although the line of command links with the centre state rather than with the EU, it is impossible for a growing number of agency bureaucrats and sub-national government officers and members to be unaware of the impact of EU policies on their working lives. To that extent, participation is unavoidable. From the Commission’s point of view, the need for support from those who implement policies has meant that its presence and influence can be felt at each of the multi-levels of governance. Implementation of EU policies also affects groups. All member states have an impressive record of transposing EU directives into national law,64 but they are not equally good at putting them into practice. This deficiency leaves a space for the input of groups. For example, those countries with an under-developed sense of concern for the environment can be ‘policed’ by their environmental groups, who may report inadequate implementation back to the Commission. It may be seen from the above that the participation of groups is relatively extensive within the EU policy process. At each level group input oils the wheels of the policy-cycle. It may also be seen, however, that participation takes place largely on the terms of the institutions, especially the Commission. The Commission’s welcome is for paying guests and it is up to them to achieve what they can of their overall aims by making use of whatever additional options present themselves during the process. Bache doubted whether that multi-level participation was the same as multilevel governance.65 In fact, examining the activities of non-elites within the EU policy-process gives cause to reflect that even decision-making, when concerned with the minutiae of policies, could be regarded as implementation instead. On the other hand, there is evidence that Europeanisation takes place amongst non-elites as a result of their activities. Particularly in centralised states, the EU has extended opportunities for increased autonomy for groups and sub-national government. The EU, by institutionalising this kind of participation, has also legitimated it, and as already pointed out,

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this process may be symbiotic. Participation by groups, although in the end open only to a minority of EU citizens, may provide a legitimating factor.

Popular participation and the EU: the referendum Direct popular participation, other than in EP elections, is a different matter. In the EU, it is currently restricted to the referendum, called in some member states to make some decisions about EU membership and/or major initiatives. Referenda are tricky. On the one hand, they epitomise democratic activity – all of the people taking part in making an important decision. The ancient Athenians, first employers of democracy, used a form of referenda, although restricted to citizens (male, free and born to Athenian parents). Given the secret ballot, modern referenda are even better – no-one can influence anyone else’s vote. Even where it is argued that all of the people are incapable of understanding enough of the issue to make a realistic decision, it may equally be argued that ignorance cancels itself out. As noted above, referenda are antipathetic to representative polities. However, there are also two ‘pure’ democratic downsides to using referenda. First, the result can be influenced by the elite that has set the question. For example, asking the public to vote for or against ‘a dynamic forward looking united EU’ may produce a result different from that obtained by asking them to vote for ‘reducing the power of the nation state’, but both may be implying the same outcome. Secondly, and paradoxically, elites have no power to determine which question citizens decide to answer. ‘Do you support the Constitutional Treaty?’ may be interpreted as ‘do you trust your leader sufficiently to vote the way s/he wants you to?’ or even ‘do you approve of the way in which the government is managing the economy?’. In other words, the result may have little to do with popular attitudes to the question itself, so the people cannot be said to have made a democratic decision on it. All the constitutions of the EU-25 include provisions for referenda, although most leave the decision about the circumstances surrounding calling them to political leaders. Only in Denmark, France, Ireland, Malta, Poland, Slovakia, Slovenia, Spain and Sweden does the constitution lay down circumstances that may require a binding referendum to be called on EU issues,66 although sometimes legal sleight of hand can be used to avoid one. In practice, this means that any EU government can call a referendum for a variety of political, rather than constitutional, reasons. It may want the additional legitimation of the agreement of the people in general for a particular decision, for example. Occasionally, a referendum is called or is promised as a means of avoiding inter-party conflict, or as a means of popularising a government, or as a means of avoiding a difficult political issue, frequently in the run-up to a general election.67 All of these devices

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have been used in the EU’s member states at one time or another. For example, Harold Wilson called a referendum on staying in the Community in 1975 to bypass his anti-EC Labour party; François Mitterrand called a referendum on the Maastricht Treaty in 1992 believing that it would enhance his democratic credentials; Blair promised a referendum on the Constitutional Treaty in 2005 to avoid having the EU made into a General Election issue. The unfortunate by-product of employing these political tactics is the demotion of the referendum as an instrument for direct democracy. The experience of ratifying the Constitution for Europe demonstrates how poor an advertisement for popular participation the referendum can be. Ten countries planned a referendum for ratification: the Czech Republic, Denmark, France, Ireland, Luxembourg, the Netherlands, Poland, Portugal, Spain and the UK. Of those, half were binding; and half were consultative. The results of the Spanish referendum (consultative) supported the Treaty: 77 per cent voted in its favour; 17 per cent against, although the turnout, at 42 per cent, was low. France was the next country to conduct a (binding) referendum, and all main parties campaigned for a ‘yes’ vote. There was a high turnout of 70 per cent, but with only 45 per cent of voters supporting the Treaty. The Netherlands was the third country to call a (binding) referendum, and again the political elites supported approval. Again the turnout, at 63 per cent, was high, but only 38 per cent supported ratification. In July 2005, Luxembourg held a (consultative) referendum. Here the Treaty was endorsed by 56 per cent of the voters, in a state where voting is compulsory. An opinion poll, conducted by TNS-Sofre for Le Monde after the results of the French referendum, listed the reasons in order of preference in accordance with correspondents’ answers.68 The highest ranked was a fear that the Treaty would increase unemployment (46 per cent of those surveyed); second, an expression of general irritation with the current situation in France (40 per cent); third, a wish to renegotiate the Treaty (35 per cent); fourth, a fear that the Treaty was too liberal – that is, that it threatened the French social democratic model – (35 per cent); fifth, a difficulty in understanding the Treaty (34 per cent); sixth, that Europe threatened French identity (19 per cent); seventh, the possibility of Turkey joining the EU (18 per cent) and eighth, a response to favoured French politicians calling for a ‘no’ vote. Those who did not vote abstained mainly because they found it hard to decide (35 per cent) or because they could not understand the Treaty (28 per cent). In the Netherlands, according to Keohane, the Dutch voted ‘no’ primarily because they were dissatisfied with Dutch politics, given a sluggish economy and a weak and divided government.69 Secondly the Dutch were unimpressed by the EU, with fears of losing sovereignty (particularly as a small state) and concerns about the erosion of the Netherlands’ liberal social policies. Thirdly, immigration was a worry, especially as anti-Muslim sentiment had grown. This made voters oppose the potential accession of Turkey,

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and there was a hope that voting against the Treaty would prevent it. It was pointed out, worryingly, that this was the first referendum ever held in the Netherlands on the EU, with the implication that, had the people been asked sooner, the fact that their views were different from their elites’ would have emerged earlier.70 It may be suggested that the argument put forward above – that voters do not always answer the question that is put – is vindicated. Certainly the size of the ‘no’ vote in both France and the Netherlands was influenced by the unpopularity of their current governments, and equally, the majority of reasons for voting ‘no’ did not concern the Treaty directly, except for the (probably justified) complaints that it was difficult to understand. There was nothing in the Treaty about enhancing an unpopular leader, or reducing French employment prospects, or preventing gay marriages in the Netherlands, or about inviting Turkey to join the EU. Nor did the Treaty lay out its plans to take away small states’ powers (in fact, they benefited slightly from the proposals about voting weights in the Council71 ) or national identities (the opposite was stressed72 ). And the whole Treaty process was supposed to have opened up the EU to citizens (see Chapter 3). There is, however, another point to be considered – all of these referenda were called within nation states by national governments. From the first, therefore, the EU’s citizens in Spain, France, the Netherlands and Luxembourg were implicitly invited to consider the impact of the Constitutional Treaty on their own country. There is nothing very surprising about this, since the EU is not-a-state. However, any idea that the Constitutional Treaty was about the EU, rather than about an individual state, was automatically lost by means of the state-based referenda. Yet the title of the Treaty was ‘a Constitution for Europe’. What would have been the outcome of a referendum that was called by the EU, wherein the people were treated as EU, rather than as member state, citizens, and were invited to express their opinion of the future of the EU, rather than the future of their country within the EU? This option was proposed,73 although not considered seriously during the Constitutional Convention negotiations, but has since been resurrected by the EP Constitutional Affairs Committee.74 Weiler pointed out that the absence of a Europewide plebiscite seeking popular approval implies elite-driven business-as-usual in terms of treaty, not constitution, ratification.75 It is possible that the popular response would have been different, and that the result might have been either an overall endorsement or a rejection of the EU’s treaty development. At least, the people could have expressed a collective voice as EU citizens – an opportunity which is denied to all of them by current procedures, whether or not they live in a state that calls referenda to determine these issues. At the time of writing, the Constitutional Treaty has an uncertain future. Voters in France and in the Netherlands have apparently been able to decide, on behalf of all of the people of the EU, that there will be no Constitution, or

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at least that any Constitution that emerges will be substantially different. Yet, the Treaty presented was a treaty that had been open to wider consultation and agreement over a longer period of time than any other EC/EU treaty. The range of consultation over the writing of the Treaty had its limitations, but it seems unsatisfactory that fewer than 8.1 per cent of the EU’s voters76 have contrived to dismiss the outcome of that consultation, in the main for reasons that had more to do with their dissatisfaction with their own national governments! It also seems undemocratic. It was theoretically possible for the EU’s states to continue to ratify the Treaty, either by referenda, as in Luxembourg, or through their parliaments. The ‘killing’ of the Constitutional Treaty was undertaken for political, rather than constitutional reasons. The announcement by the European Council at its Brussels meeting in June 2005 of a ‘period of reflection’, along with the observation that timetables for ratification in member states might be altered in the light of the circumstances,77 makes this clear. States’ leaders were afraid of the outcome on their leadership if ratification levels dropped like ninepins across the EU. Political reasons, however, have an effect only because the EU is intergovernmental, and because its leaders are determined to keep it so. Hence, referenda are deliberately restricted to the national sphere, even though their impact can be felt EU-wide. The democratic participation of ‘all the people’ is always problematic, for the reasons described above. Abromeit suggested that a ‘system of veto rights’ exercised by territorial or sectional subunits, enabling the EU’s people to stall developments considered to be significant to them (although this begs the questions of who would determine which ones were, and how to weight significant preferences against the general benefit).78 However, it seems reasonable to point out that the intergovernmental State-Centric facet of the EU has made such initiatives impossible in practical terms. The EU’s citizenry cannot (collectively) legitimate or repel even the broad direction of the EU’s development, although they may sporadically, as citizens of individual nation states, prevent progress.

Enhancing participation Participatory democracy and the involvement of civil society have featured to some extent in the initiatives that the EU has undertaken to try to bring the EU closer to its citizens. These initiatives are tentative, and far from radical, but they do suggest that EU actors have recognised that there is some potential for citizens, non-governmental groups and sub-national governments to provide legitimating factors. Creating a civil society? The Commission’s White Paper on Governance There was nothing in the Commission’s White Paper about direct popular participation. The only mention of the wider public was as the recipients

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of better communication to be promoted by member states.79 However, the White Paper was keen on the involvement of groups and sub-national levels of government. ‘Participation’ was one of the five political principles that supported the document,80 and the means by which it was to be established was by the creation of a civil society. The Commission was particularly concerned about sub-national government, whose experience and skills it thought to be underutilised.81 Participation, it stated, was an important ingredient of a successful policy,82 but there was insufficient interaction amongst the different levels of governance for this to work as it should, partly because of the failure of national governments to involve sub-national levels sufficiently.83 It proposed a more systematic dialogue amongst the sub-national governmental associations, both European and national.84 Civil society was also of interest – in particular trade unions and employers’ associations, whose input was compulsory in any case in social policy. Here the Social Partners (discussed above) should take an increased role.85 There is less in the White Paper about how increased involvement is to be achieved. Underpinning most of the Commission’s proposals is a faintly resentful acknowledgement that member states’ governments are responsible for involving sub-national governments in EU affairs,86 and that little can be done without their co-operation. Since centre-local relations is an area that is closely guarded by sovereign states, the potential for more participation amounts to little more than wishful thinking. The White Paper’s main recommendation for increasing involvement of civil society is a non-legally binding code of conduct for consultation.87 Whilst this might be useful in clarifying responsibilities and accountability, it is difficult to see how this would heighten the contribution of a wider range of civil society interests. Armstrong thought that the proposal was more indicative of increased responsibilities, rather than enhanced rights, for those who participated.88 Some of the commentary on the White Paper focused upon the elitist approach taken by the Commission, despite its apparent eagerness to extend participation. For example, Magnette deplored the Commission’s assumption that improved participation would take place under the current Community Method, commenting that this was an elitist intention, hardly likely to heighten the awareness of the general public.89 Steinberg bemoaned the fact that the Commission was only speaking of organised interest groups – another form, he notes, of elitism – and using them as a means of attempting to legitimate the status quo by excluding the interests of the disadvantaged.90 Follesdal pointed out that if, as the Commission implied, compliance was the purpose of participation, this automatically excluded those whose co-operation was not required. Partial participation, he suggested, could reduce legitimacy as the resentment of those who were left out led to increased dissatisfaction especially if they discovered that decisions were being made against their interests.91 Armstrong wondered

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whether one of the problems was that whilst the Commission appeared keen to embrace civil society as a means towards improving decision-making, it did not seem to know whether to exclude or to reach out to uncivil society, whose readiness to protest, as he pointed out, was one of the reasons for initiatives like the governance White Paper in the first place.92 It was not the only reason, of course. Chapter 3 noted that the Commission’s concern about legitimacy showed throughout the White Paper. It is aware that open protest is not the only way of demonstrating a lack of identification, trust and allegiance that constitute the EU’s legitimacy deficit. However, the creation of the Commission’s ‘civil society’ would be insufficient to remove it for three main reasons. First, as shown above, the Commission’s idea of a civil society is excessively limited. It is restricted to those that can assist the Commission in its task, which can hardly comprise the majority, or even the largest minority of the EU’s citizens, however widely the EU extends its activities. Secondly, the Commission’s proposals about extending the circle are only notional. There are no practical suggestions for increasing the range of groups and sub-national governments that already play a part, or for increasing the degree to which they participate. Thirdly, the depiction of a civil society is also limited. There is no community other than that held together by its links, not to the EU, but to the Commission, and by its sense of reciprocal benefits. A ‘community’ circling around an unelected body, for the purpose of the material gains it hopes to make, looks more like a pack of carnivorous animals gathering around their prey than a society of human beings engaged in civic participation. The people in the Union: the Constitutional Treaty The Constitutional Treaty, as noted in Chapter 3, was in part intended to bring people closer to the EU. It did not realise this objective. The constitutionwriting process was more inclusive than any treaty-making procedures had been in the past, but its inclusiveness did not popularise it. As noted above, objections to ratification did not appear to be rooted in an aversion to the Constitutional Treaty’s contents. It could, therefore, be argued that a failure to involve the people fully during the Treaty’s creation and ratification was responsible for the outcome. Skach named four ‘ideal’ types of constitution-making: polyarchic, in which the public are involved both in creation and ratification; oligarchic, in which creation is restricted to political leaders, but ratification is popular; inclusive hegemonic, where people are involved in the process, but mainly for the purposes of keeping them on board; and hegemonic, where people are not involved. She noted that some of the constitutions that have been most successful in achieving legitimacy, such as German Basic Law, fall into the last category.93 Skach was less clear about which model best fits the EU’s attempted constitution. The fact that the Constitution would not fit into any ideal

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model – few constitutions do – is not the reason for its failure, but looking at the models helps to illustrate where it was lacking. The EU’s constitutionmaking was polyarchic, but it was limited sectorally in terms of creation, and geographically in terms of ratification.94 Similarly, the constitution-making was also oligarchic, except that all of the people were not involved in ratification. The constitution-making was not inclusive-hegemonic or hegemonic. It could not be, given that its writers were diverse in terms of their ideology, nationality, culture and experience; that their aims were similarly varied; and that the people to whom the constitution needed to appeal were even more dissimilar than were its creators. The Constitution therefore, was written by a diverse elite, which consulted other elites in a restricted manner and was put inconsistently to popular ratification. The only thing that could save it would have been its contents (had they been sufficiently publicised), and, unfortunately, the Constitution offered no more that was attractive to participatory democracy than it offered to representative democracy. There was naturally no mention of the legitimacy deficit in the Constitutional Treaty, but the language adopted reflected its authors’ anxiety about popular perceptions. The much shorter Preamble95 was more inspirational, and the first recital (Preamble statement) included a reference to the ‘inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’ (author’s italics). The Preamble centred on individual and national identities rather than on the Union, unlike the TEU Preamble. There was not a lot within the Treaty about civil society. The only significant addition to its provisions was Article 1.48, which recognised – and which would presumably have institutionalised – the Social Partners. This term was used for the first time in a treaty, although it appears only in the first chapter. In the third chapter, the phrase ‘management and labour’, as in the TEC, is employed when referring to the Social Partners’ role in employment and in social policy.96 Articles III.211–212 repeated, but did not expand upon, the TEC provisions for enabling the Social Partners to engage in law-making. The Treaty recognised regional and local self government as ‘fundamental structures’ of the member states, which the Union would respect97 and undertook to respect also member states’ regional diversity.98 There was some movement on subsidiarity – the Treaty included EU activity at regional and local levels as a reason for invoking the subsidiarity principle.99 In addition, the Protocol on subsidiarity and proportionality would have committed the Commission to take into account the ‘regional and local dimension’ of a proposed legislative act, when it was undertaking its consultation, unless the proposed action were categorised as being of ‘exceptional urgency’.100 The Protocol also gave the CoR the right to refer the EU to the ECJ if it suspected an infringement of a piece of legislation that fell into the areas upon which it had consultative rights.101 Jeffery noted that REGLEG did not win additional status or consultatory scope for the CoR; nor was the access

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of regional politicians to the Council of Ministers guaranteed, let alone the implementation of the suggestion of votes to be split between regional and national ministers in the Council or the establishment of a Regional Affairs Council, attended only by regional ministers.102 He pointed out that the CoR would have made gains, but implied that this could have been a loss to the EU’s regional politicians unless the CoR had contrived to use its extended powers to the benefit of powerful regions that were not represented on the CoR. Jeffery doubted that the CoR would have been up to that challenge. Within the Constitution, Article 1.47 was headed ‘the principle of participatory democracy’. The article remained mostly at the stage of a principle whereby ‘participation’ related primarily to consultation and dialogue with ‘representative associations and civil society’. The only unusual feature was Clause 4, which would have enabled individual citizens to take action.103 There needed to be more than a million of them, and they had to be nationals of an unspecified, but ‘significant’, number of different member states (how many was to be determined by the EU). However, if these conditions were met, citizens could request the Commission to put forward a proposal for additional legislation in policy areas already included in the Constitution. There was no mention of any powers that could be exercised by citizens if the Commission declined to respond to the request, nor was there an indication of how seriously a ‘citizen’s law’ should be treated by the Council or the EP if transformed into a Commission proposal. Nevertheless, the provision in the Constitution comes close to giving a collective of citizens – likely to be an organised group – the same option to request a legislative proposal that the Council and EP already hold. Whether in practice, it would have amounted to much more than the right of petition provided in many member states’ constitutions104 is debatable (the EP already receives citizens’ petitions related to the impact of EU law on the citizen or institution105 – a right that was confirmed separately in the Constitutional Treaty).106 Nevertheless, it is possible that the weight of public opinion expressed across the EU, and voiced by a sizeable minority of the EU’s citizens, would have been difficult for the EU institutions to ignore, especially if it were accompanied by the attention of the European media. Importantly also, the suggestion implies a direct link between the citizens of the EU and its institutions, bypassing national governments and parliaments and the EP for the first time. There may have been, then, an opportunity for participatory democracy lost, unless it is resurrected in the future constitutionalisation of the EU. Otherwise the Treaty contents offered little to citizens that could encourage their endorsement.

Conclusion: participatory democracy and the ‘four Europes’ One of the more interesting aspects of the debate about EU development is relating, or disentangling, the dilemmas that stem from the ‘four Europes’,

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all of which co-exist to some extent. The majority of the EU’s citizens do not distinguish amongst the facets of the EU, however. The EU is seen as an entity, not as a composite, and this means that when people suspect a lack of democracy, they do not stop to consider whether they mean that technocratic management requires democracy or whether political leaders need accountability or whether insufficient people are participating throughout the EU’s policy process. As potential legitimating factor for the EU, participatory democracy has a tricky, but not entirely impossible, mission. This chapter has considered the input of groups, acting as expert advisors, as low-level decision-makers and as consultees. Those forms of participation could assist in legitimating the technocrat aspect of the EU, so long as the input were widened and included potential opponents of proposed policies. Similarly, especially in terms of legitimating the multi-level polity, the input of sub-national levels of government could be valuable. If multi-level participation developed into multi-level government, and embedded the Federal Europe more deeply, participatory democracy could even become a primary legitimating factor. State-Centric Europe, however, presents a different problem. As noted above, State-Centric Europe, dominated by national leaders and other actors, is antipathetic to participatory democracy. Traditionally, nation states in the west are liberal representative democracies. This system gives the people the role of electing their leaders and, through parliaments, holding their leaders to account to some extent. It also means that people are not supposed to decide things for themselves. The experience of the referenda for ratification of the Constitutional Treaty indicates that people are so unused to making political decisions that many of them are not even capable of focusing on the question. Such a judgement seems harsh, however, and needs to be tempered by the acknowledgement that voters were not encouraged or enabled to focus on it. The Constitutional Treaty, as with former European treaties and despite its more inclusive creative process, was lengthy, written in impenetrable language and contained little of direct significance for citizens. There was no concentrated EU-wide effort, led by an EU institution, to promote the Treaty as a constitution for Europe – despite the fact that this was the whole point (as well as the name) of it. The marketing of the Constitutional Treaty by political elites, within individual member states, emphasised only the significance, or lack of significance, of the Treaty to the state in question. Assuming that national political elites wanted the Treaty that they had signed to be ratified, they were caught in their own trap. They can never engage in activities that promote the EU as an entity because their own raison d’être as EU actors (and as important national politicians) depends upon their determination that the EU is not a state-in-making, and that the only significant decisionmaking apparatus that it possesses is composed of national representatives spending their time in zero-sum plea bargaining.

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Hence, State-Centric Europe, composed of sovereign states with liberal representative democratic political systems, cannot encompass participatory democracy. It could find space for popular endorsement of decisions made amongst national leaders; although only by running counter to its own fundamental precepts (see above). Therein lies a dilemma. The conclusion to this chapter is, therefore, that participatory democracy could become one of the legitimating factors for the EU only if it could shed the State-Centric aspect of its nature. Technocratic Europe; the Multi-level polity and the Federal Europe could live with direct popular involvement. All three Europes would need the constant and active participation of citizens, not only for legitimacy, but to keep the EU’s wheels turning. State-Centric Europe, on the other hand, constitutes a barricade against participatory democracy. However, we live with the EU that we have, not an amalgam of constructs that exist only in the mind. The fact that state-centricity exists within the EU does not mean that the quest for legitimacy is pointless. The EU has achieved a great many objectives in its first half century, and the twenty first century presents challenges and opportunities. The last two chapters explore these aspects of the EU to estimate the potential for the EU to gain legitimacy by means of its performance.

5 A Citizens’ European Union

Introduction This chapter is the first of two that look at the potential for the EU’s performance to gain legitimacy for its regime. The idea of performance legitimacy has gained support from a number of commentators during the later decades of the EU, as it appeared that the traditional forms of normative-derived legitimacy, which still work up to a point in nation states, were insufficient for the EU. The argument is that if the EU were to become an entity that could satisfy the needs and/or swell the hearts of its inhabitants, identification would follow, leading automatically to legitimation. In the post-modern era of political doubt and popular cynicism, it is unlikely that effective performance would be enough by itself, but it could provide a legitimating factor, to be added to what the EU already has or has the potential to gain. In terms of democracy, Moravcsik, Zweifel and others have noted that the EU has at least as much democratic form as nation states, which seem to contrive to be held legitimate.1 We showed (Chapters 3 and 4), however, that form does not equal substance, and that the EU’s democracy lacks substance. As Chapter 3 also noted, however, longevity, propaganda and exceptionalism have contributed to the sense of belonging that characterises liberal representative democratic nation states’ inhabitants, and none of those attributes are exclusive to the national body per se. The EU will get older; it could be promoted more enthusiastically and, as Chapter 3 also pointed out, it does have an exceptional quality, even if this is currently demonstrated only negatively as in the EU’s difference from the United States. The EU, then, has some democratic form and it has a potential for increasing identification. As Chapter 4 showed, participation also has some, albeit limited, potential to supply a legitimating factor. Effective performance could be the additional ingredient to square the circle and transform the EU’s population into the EU’s citizens.2 This chapter assesses the EU’s performance from the perspective of its inhabitants, considering the political, economic and social benefits, actual and potential, that they derive from EU membership. It is not all inclusive, but the 114

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subjects considered relate to the main areas of citizens’ lives. The ‘big issue’ is enlargement. The substantial increase in size, the (fairly) substantial reduction in wealth, and the enhanced heterogeneity of the EU presents both threats and opportunities in terms of the EU’s performance legitimacy as derived from the benefits offered to its citizens. These issues are considered below.

Problems for performance-related legitimacy in the EU Originally, the EU’s shapers seem to have taken it for granted that its performance would be sufficiently successful to gain popular acceptance of its regime. If they had not made this assumption, then more care might have been taken to ensure at least effective and demonstrable scrutiny of the EU’s unelected institutions. If they did make it, however, the Founding Fathers may have been adopting a rather cavalier attitude, better suited to less demanding and more deferential times, when setting up the Communities. In the era of globalisation, political performance is rarely so successful, or is seen to be so successful (given an invasive and sometimes cynical media), as to gain or to merit approval from a sceptical public. In addition, so long as political actors primarily derive their status from the nation state, the EU’s achievements are likely to be paraded in terms of national accomplishments, sometimes even as victories over ‘Brussels’ pulled off by state actors. At the same time, supranational failures are rarely claimed by national politicians. It should be pointed out also that there is no comprehensive EU media to proclaim EU success, and that the Commission lacks the power and the budget to show off EU’s achievements as supranational triumphs. If the argument that performance effectiveness is a requisite legitimating factor is viable, it is unfortunate that the EU needs it more and can demonstrate it less than its individual member states. However, inability to flaunt success is only one barrier to the appearance of effective performance by the EU. Achieving success is more problematic for the EU’s actors in any case for two main reasons. First, as noted in Chapters 3 and 4, the EU encompasses many differences amongst its units and amongst its inhabitants – political, economic, social and cultural, for example. These differences mean that it would be hard to set collective achievable and desirable ends acceptable to all member states, even assuming that every policy-maker viewed negotiations impartially. Secondly, and more specifically, as Scharpf pointed out, EU negotiators are not neutral. There are conflicts of interest amongst them, which, in his words, act to ‘paralyze European policy’.3 Scharpf remarked that peer pressure in the EU’s policy fora discourages too much posturing, but that this was insufficient to thrust the more controversial issues onto the Community agenda. Options such as the Open Method of Co-ordination, in which member states’ representatives determine voluntarily targets that they will meet, or differentiated (sometimes termed ‘enhanced’) co-operation, which

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involves only those states that wish to participate (a minimum of eight since Nice), can assist in resolving less contentious issues to the general benefit, but they are not of much use when national interests diverge most sharply. Hence, controversies tend to be avoided rather than resolved. Scharpf noted that this situation has implications for legitimacy, because whilst a limited agenda does not raise too many hackles, it is unhelpful given the challenges that cannot be met by states acting alone. Scharpf thought that legitimacy might not suffer, however, so long as the EU confined itself to specific policies rather than addressing general problems such as unemployment or crime. Nevertheless, as he agreed, the capacity to tackle these general problems from within nation states has been diminished by EU integration, which Scharpf characterises as ‘asymmetric’ – heavily weighted towards economic unity and legal commonality. The EU, he pointed out, has ‘greatly reduced [member states’] autonomous problemsolving capabilities by exposing them to new economic challenges while imposing increasingly tight legal constraints on their choice of potential responses’.4 If this analysis is correct, performance legitimacy is endangered in nation states too. It might not matter as much in states that have already achieved Weber’s ‘authority of the eternal yesterday’ (see Chapter 1), but the EU’s newer states have little of this type of legitimacy on which to fall back. It may therefore behove the EU to counter the challenge to its member states’ legitimacy as well as that to its own, by improving its problem-solving capacities. If the degree of the EU’s integration process to date has tied the hands of national policy-makers in a number of different fields, at the same time, national policy-makers are reluctant to concede enough additional competence to the EU to enable it to resolve the problems that integration has created. Nevertheless, it should be pointed out that the EU has already helped to achieve ‘impossible’ things, such as peace, relative prosperity over a large part of Europe, and the responsibility for improving prosperity over more of the continent. Also, an increased number of European states have taken the form of liberal representative democracies, and the EU may claim some credit for this, if only because it debars from membership states that have not. Some of these achievements result from goals set intentionally; others have been gained in a neofunctionalist manner. In terms of performance, if Scharpf’s asymmetric integration could be made shapelier by incremental means, then both foreign and domestic concerns could be addressed more effectively.

Political, economic and social benefits It is difficult to categorise types of benefits. Having one’s human rights respected can, for example, be termed both ‘political’, in the sense that ‘rights’ are a political issue, and economic and social, in the sense that human rights according to the modern understanding stretch beyond the

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basic Lockeian rights to ‘life, liberty and estates’. This chapter bases the separation of political, economic and social benefits on that more extensive range, so that political benefits that could be enhanced because of the EU include the freedom to live in peace under the rule of law (i.e., equal treatment within the law and within society); economic benefits involve acceptable standards of living (including access to goods and services) and social benefits embrace access to employment (and to social welfare where employment is unobtainable) and to employment rights (including non-discrimination). What do citizens want? If legitimacy by means of citizen-identification with the EU is to derive from its performance, then the EU’s achievements are only significant inasmuch as it supplies what citizens want. This part of the chapter, therefore, concerns only the issues that have been identified as of primary importance, derived from responses to the Eurobarometer 63 survey in 2005. In focusing on such matters, several of the EU’s successes, particularly in the field of the environment, had to be omitted. The survey asked respondents to define the two most important issues facing their own country at the moment.5 Their responses may be broken down as shown in Table 5.1. It may be seen from the above that social issues predominated, with almost half of the EU’s citizens expressing concerns about them. Healthcare, education, and housing are mostly beyond the EU’s remit; public transport is only relevant in terms of trans-European networks. However, the EU has some responsibility for employment. In terms of economic issues, pensions and taxation are not (currently) relevant to the EU; but the EU is in part responsible for the economic system in general, and has a role to play in

Table 5.1 The most important issues facing their country as defined by EU citizens Social issues

%

Economic issues

%

Political issues

%

Unemployment Healthcare system Education system Housing

50 17 7 5

Economic situation Rising prices/inflation Pensions Taxation

27 16 11 7

Crime6 Immigration Terrorism Defence/foreign affairs

23 14 10 2

Environment protection Public transport Total Source: Eurobarometer 63

4 2 44

31

25

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controlling inflation. Most of the political issues identified by respondents (the question put to them appears to have been an open one) do fit in with the EU’s responsibilities, although only in partnership with member states.

Political stability Perhaps surprisingly, none of Eurobarometer’s respondents (above) seem to have mentioned fears of political insecurity, but this may reflect the fact that stability is now taken for granted. Nevertheless, the political situation within the EU contrasts with that of a half century ago, and it may be suggested that although the EU is not-a-state, it seems to have succeeded in supporting the Hobbesian function of a state – that of ensuring the primary safety of its citizens from inner turmoil and external invasion.7 We have already considered the political impact of the early Communities on the European continent after half a century of war (see Chapter 2). This chapter is therefore concerned about the way in which the EU has assisted democratisation amongst states that joined later. Conferring political stability is uncontroversial, because it is not a zero-sum game. One state’s stability is not gained at the cost of another’s and stable polities benefit everyone. It can be demonstrated empirically that no liberal representative democracy has ever declared war on another. A state of peace may not be as conspicuous as a state of war, but it tends to lead to a general sense of well-being. Enlargement and extending political stability On the whole, political gains for the EU’s more recent inhabitants are easier to achieve and to recognise than are economic or social benefits. The political benefits result simply from the fact that no state can join the EU unless it already has a liberal representative democratic system, functioning under the (human rights-based) rule of law, with accountable government.8 The EU, however, can encourage the development of liberal representative democracy as an incentive towards future membership. In this aim, it is assisted by the fact that to date states have been more enthusiastic about joining the EU than the EU has been about admitting them. The EU’s superior bargaining strength, therefore, has enabled it to ensure that new states conform, whilst its relative wealth and administrative capacity have enabled the EU to provide some necessary support and assistance in reforming former dictatorships. The 1980s enlargements The 1980s enlargements brought in Greece, Spain and Portugal, all of which had recently been dictatorships. The Communities were not entirely altruistic in admitting the new states, because stabilising democracy within Europe was advantageous to existing states, and, in particular, the prospect

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of widening European markets was attractive. There was an overall consensus amongst the Mediterranean states that joining the Communities would be a good thing. The Greek government applied for Community membership after the restoration of democracy in 1974, following a period under military rule from 1967. The Commission had reservations about supporting the Greek application because of the state of its economy, and suggested a pre-accession period so that necessary reforms could be implemented. This proposal was rejected by the Council of Ministers which was keen to ensure the stability of the new democracy in Greece, and membership negotiations were opened in July 1976. Greece joined the Communities in 1981. Spain applied to join the Community in 1962, but made little progress, as it was then under the dictatorship of General Franco, despite a short-lived trade agreement from 1970 to 1973. After Franco died, a new application was made as soon as the first democratic government was established in 1977. There was little internal opposition in Spain to joining the Communities either from Spanish politicians or from its public, but the Council was more hesitant. France was uncertain about the genuineness of the Spanish transition to democracy, which was on a knife edge in its early days. However, the main reason for French opposition was that Spain was a former leading European state and might therefore challenge French leadership. There was also a concern about the large Spanish agricultural industry that appeared to offer economic threats to French farming interests. The political climate surrounding the Spanish admission changed after Mitterrand became the President of France in 1981. With his better relationship with the German Chancellor, Helmut Kohl, the Franco-German partnership began to see new applicants as opportunities for investment. Spain was admitted to the Communities in 1986. Portugal’s accession to the EU in 1986, although equally protracted, was less problematic. The state was a dictatorship from a military coup of 1926 until a military uprising of 1974, which paved the way for a new democracy and made Communities’ membership possible. Like Spain, Portugal reapplied in 1977. There were concerns about cheap Portuguese labour moving northwards, but these were outweighed by the foreseen benefits of another stable democracy and widened economic base in Europe. Political considerations pursued by individual member states, then, formed part of the negotiations preceding the decision to enlarge the Nine to the Twelve. This was particularly relevant in the case of the Spanish succession, when France was the primary obstructive force – and its position only shifted when its leadership changed. Economic considerations – that is to say, the potential burden on the Communities – were less significant. The Nine were relatively wealthy, and the Nine’s individual contributions to the Communities’ budget was relatively small. These circumstances enabled the Council to pass over the Commission’s caution about admitting Greece,

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which might otherwise have been treated more seriously, given the Commission’s general keenness for enlargement. None of the countries of the 1980s enlargement owe their conversion to liberal democratic politics to the EC. Each had overthrown or lost its former dictator before membership applications were accepted. The circumstances surrounding all three countries’ change of political system were unrelated to the prospect of Communities’ membership. Greece’s military dictatorship survived only whilst it was backed by the United States, and when that support was withdrawn following the unsuccessful defence of Cyprus, the junta fell and parliamentary democracy was regained.9 The restoration of democracy in Spain resulted from King Juan Carlos’ co-operation with the new Prime Minister, Adolfo Suárez, after Franco’s death.10 A military coup, under the leadership of the army’s younger, radical officers, put an end to Portugal’s dictatorship.11 It is not a coincidence that all three dictatorships fell in the same decade, but it was not the prospect of EU membership, so much as the wider economic and social aspects of the international setting, that contributed to democratisation.12 In addition, it should be remembered that Greece did not join the EC until six years after it became a democracy, whilst Spain and Portugal had to wait nine and 12 years, respectively. Either the prospect of membership, rather than the actuality, ensured stability during the waiting period or the three countries (all members of international organisations by that time) contrived to remain stable democracies on their own merit. The EU, however, has probably contributed to the political stability of the three states since they joined it. Ginsberg thought that this was the case: ‘[The EU’s] stabilizing effect on Iberian and Greek democracy is a model for what the EU can do for the aspirants of the CEECs [central and east European countries]’.13 Political volatility for Greece, Spain and Portugal now seems part of the distant past, and it is arguable that the EU helps to account for the continuation of liberal representative democracies in those states. The 2004 enlargement As noted above, the progression of Greece, Spain and Portugal to full Communities’ membership was conducted in an ad hoc manner. The Treaty before Amsterdam was non-specific about how new members might be admitted: ‘Any European State may apply to become a member of the Community    The conditions of admission and the adjustment to the Treaty necessitated thereby shall be the subject of an agreement between the Member States and the applicant state.’14 However, in 1993, the Copenhagen Council determined more specific political criteria, requiring a candidate country to stabilise its institutions to ensure that it internalised the political benefits of a liberal representative democracy, as well as including economic criteria and the ability to take on the obligations of EU membership. The Treaty of Amsterdam subsequently amended the Treaty article on

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membership requiring a candidate state to respect the principles expressed in Article 6(1), that is, ‘liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law    ’.15 Hence, the progression of the CEECs, Cyprus and Malta towards membership was different from the 1980s enlargement. Negotiations for entry were formalised, with each candidate state being required to satisfy the EU that it could conform to its acquis communautaire (the body of existing legislation at the point of entry). Progress towards accession was strictly monitored by the European Commission, which issued a series of Regular Reports evaluating the candidate countries’ readiness for admission under 31 chapter headings. Before accession, the EU had to ‘close’ each of the chapters covering all aspects of political, economic, social and legal requirements on the part of the candidate country to meet the acquis. Transitional arrangements could be agreed, but no permanent exceptions were allowed.16 The 1993 Copenhagen Council marked the formal opening of the accession negotiations for the CEECs as well as Cyprus and Malta. Between 1994 and 1996, 10 CEECs applied for membership.17 After a period of uncertainty as to which CEECs were to join on the ‘first’ or ‘second’ waves, it was decided in 2000 that all 10 states, along with Cyprus and Malta, were to be put on an equal footing in terms of eligibility.18 Each country signed an Accession Partnership (Cyprus and Malta in 2000, the remainder in 1999) with the EU. The Accession Treaty was signed for all except Romania and Bulgaria in April 2003 in Athens, and ratified by the EU-15 and the 10 applicants between March 2003 and March 2004. The 10 states were admitted in May 2004. In the meantime, Romania and Bulgaria completed the pre-accession stages, and an accession treaty was signed in April 2005 in Luxembourg, with a view to accession in January 2007. Negotiations with Macedonia and Croatia began in 2004, and the accession process is expected to progress similarly to that of the ‘10 + 2’.19 The pre-accession formalities imply that any fears about the impact on the EU by the latest enlargement would be misplaced – states that can meet the Copenhagen criteria should offer no threat either to the prosperity of the EU or to the stability of its governance. However, the decision about admitting new states required a political as well as a technical judgement.20 The Commission claimed that enlargement is a ‘positive sum game’,21 basing this assessment upon analyses conducted by the Centre for Economic Policy Research.22 Any delay, it asserted, would have weakened the progression towards the political and economic stability of central and eastern European states, and would have added to the volatility of the region.23 This view was shared by the Council, and the benefits of accession were stressed in Copenhagen, in December 2002.24 To date, the peaceful incorporation of CEECs can be counted amongst one of the EU’s success stories, so far as enhanced political stability within is concerned. The majority of CEECs are post-1918 creations, following the

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collapse of the Austro-Hungarian and Russian empires. Many have experienced only a limited period of independent statehood, and, unlike that of the greater powers, their autonomy was usually dependent on the fact that no-one wanted to annex them or use them as bargaining counters.25 In the twentieth century, only Poland and Hungary amongst the CEECs were independent states before the 1990s.26 The CEECs’ people have had limited experience of citizenship under constitutional democratic government. Only four – Latvia, Lithuania, the Czech Republic and Slovakia – had longer than 3 years’ continuous experience of constitutional government during the twentieth century. All, at some stage, have had authoritarian and/or dictatorial regimes. Whilst it is too early to be certain that political stability within the new states, and consequently within Europe, is assured permanently, the signs are hopeful. It should be recognised that the establishment and continuation of constitutional democratic government in the CEECs is not necessarily a direct result from proposed or actual membership of the EU simply because it is connected to it. The Commission acknowledged the point when it commented that: ‘The credit for this success belongs mainly to the people of those countries themselves’.27 However, there is evidence, provided before accession in the Commission’s Regular Reports, that applicant states took the obligations of membership seriously, and it is reasonable to assume that the strictures of EU membership, as well as its potential benefits, will assist future political stability. Turkey The question of Turkey remains a sensitive one. A politically stable Turkey, containing the components of a liberal democratic polity would confer political benefits beyond the boundaries of the state itself. Yet, Turkey, which applied for EC membership first in 1959 and repeated it in 1987, was not invited to begin formal membership negotiations until 2005. The saga of Turkey shows better than the accession process of the latest entrants and applicants the degree to which the EU’s decision-making is affected by political factors. Most of Turkey is in Asia, so the fact that the EU’s leadership is even considering its entrance to the EU suggests that political considerations are significant.28 There are still practical impediments to Turkey’s accession, which are primarily economic and political – for example, Turkey’s large population and low economic base, and its poor human rights record. These issues are also the primary reasons why Turkey wants to join, and why the EU needs it to in the interests of political stability. However, the accession process would help equip Turkey for future membership. The EU, which created a customs union with Turkey in 1995 and an accession partnership in 2001, adopted a pre-accession financial instrument that resulted in funding for appropriate

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projects amounting to almost E2 billion up to 2005, with an anticipated E1 billion agreed for the 2007–13 budgetary period. Nevertheless, EU membership for Turkey also presents potential legitimacy problems in that it may threaten the EU’s fragile sense of homogeneity, at least so far as people in France and the Netherlands are concerned. On the other hand, the extent to which its potential membership is welcomed on the grounds that it may impede EU integration demonstrates a problem for EU legitimation from a different angle.

Human rights and the EU A charter of rights? The EU may have missed an opportunity to gain performance legitimacy via its response to enhancing human rights, inasmuch that the issue of human rights is closely bound to the question of identity. For example, Mayer and Palmowski suggest that the enhancement of distinctive common human rights could promote citizen identification with the EU.29 Although this is not an argument that would appeal to anti-integrationists, EU legitimacy depends in part upon this sort of commonality (see Chapter 3). In more practical terms, integrationists could also argue that there was no reason why the EU should not enshrine human rights, separately from the United Nations and Council of Europe, thereby putting them within the framework of the ECJ. In any case, it was felt by constitutional lawyers that the EU’s own body of law should be interpreted against human rights provision. However, member states’ leaders have not, to date, contrived to achieve the incorporation of human rights into the EU. The notion of the EU having its own version of human rights could seem superfluous. Most member states already have a constitution that incorporates a bill of rights, and even the UK, lacking a constitution, has a Human Rights Act. Constitutional provision in individual states for human rights is underpinned by the United Nations Universal Declaration on Human Rights adopted in 1948 and by the Council of Europe’s European Convention on Human Rights and its protocols, which were based on the United Nations Declaration, adopted in 1950.30 Both documents have been ratified by the EU-15 and by all new states before their accession. The idea of the EU itself becoming a signatory to either the Declaration or the Convention floundered on the familiar ‘the-EU-is-not-a-state’ argument.31 The outcome was the Charter of Fundamental Rights for the European Union. The Charter incorporates the same kind of rights as those of the United Nations Declaration and the European Convention, but they are adapted to the EU (e.g., Article 39 refers to the right to stand for the EP). Because the Charter is also based in part on Council of Europe’s Social Charter and the Community Charter of Fundamental Social Rights of Workers, it is more substantial than the Declaration or the Convention. For example, it refers to

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workers’ and unemployment rights (Articles 27–32), and to environmental and consumer protection (Articles 37 and 38). However, the Charter is also more limited in scope than the Declaration or the Convention. Article 51 notes first that the Charter addresses the EU’s institutions and bodies with respect to the principle of subsidiarity, and secondly, that it addresses the member states only when implementing EU law. It is difficult for the non-legal mind to determine how member states could potentially breach the Charter if they executed (Article 1) or tortured (Article 4) someone only when putting EU law into practice. So far the question has not arisen, presumably because EU law does not normally require either. A ‘convention process’ was invoked to draft and incorporate the Charter in the pre-Nice IGC.32 However, the only mention of it in the Treaty of Nice was an ambiguous ‘proclamation’ at the end of the document.33 The Nice negotiators postponed a decision as to the status of the Charter until the pre-Constitutional IGC that was to be convened in 2003. The result of the procrastination was that although the Constitutional Treaty included a Title II, Article 7, ‘the Fundamental rights of the citizen’, the Charter has no legal status unless the Treaty is ratified, and is simply a potential guide for ECJ judgements34 although the Court has proved to be reluctant to refer to it.35 Yet, without the timidity of Nice negotiators, the Charter would be part of the Treaty already, and could not, therefore, have been lost to EU citizens because of Constitutional Treaty ratification problems in two of its member states. In one sense, objections to the Charter may be understood. ‘Fundamental rights’ provide a strand of liberal representative democracy that the majority of citizens would not want to lose. On the other hand, by making fundamental rights subject to rules about subsidiarity, and relating them only to a body of law that primarily cannot threaten them, the Charter proclaims rights in a way that implies that they are not, in fact, fundamental. Seen from this perspective, the Charter weakens, rather than strengthens, fundamental rights. However, the Charter is mis-titled. Many of the articles in the Charter do not refer to basic rights.36 At the most they refer to additional rights, such as employment rights and consumer protection – not exactly fundamental rights. It is, however, possible that the EU’s citizens would regard them as well worth having and (arguably) worth legal protection. The drafters of the Charter could therefore be accused of costly posturing, if the reluctance of the Nice negotiators to incorporate them fully into the Treaty was based upon the notion of giving the EU status vis-à-vis fundamental rights. However, proclaiming fundamental rights per se was not the issue. Member states’ leaders were concerned first about the concept of involving the EU with rights at all, inasmuch as it suggested integration, and secondly about the additional rights that might do something to undermine the sovereignty of the nation states – for example, if they led to restrictions on individual states’ employment law. Since citizens are not given equal

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protection throughout the EU, state sovereignty could cost some of them additional benefits. EU minority ethnic groups For minority ethnic groups, the question of rights may be more elemental. As noted above, assuring liberal representative democratisation is likely to be beneficial in terms of human rights for individuals. However, not all of these rights are extended to all of the EU’s citizens. The Copenhagen criteria for accession included the requirement that applicants should be able to: ‘[guarantee]    human rights and respect for and protection of minorities    ’37 (author’s emphasis). The last principle may be difficult to achieve in practice, as the Commission’s 2002 Regular Reports made clear. In Poland, Slovakia and the Czech Republic, whilst activities at the national level met the criteria, there were concerns that at sub-national levels and in wider society, the spirit, as opposed to the letter, of the law was absent.38 In its summary paper on accession in 2002, the Commission noted that whilst progress had been made in implementing national plans, there were gaps in laws dealing with comprehensive anti-discrimination legislation in all countries with a substantial Roma population.39 Governmental difficulties in eradicating discrimination indicate that sometimes negative cultural attitudes persist. If they do, the situation of minority groups may be worsened by their country’s entry into the EU. Since any EU state automatically is assumed to be a ‘safe’ country, there is no right of asylum in any other EU state for a minority that finds itself persecuted, nevertheless, within its own country.40 In this context, it may be noted that between 1990 and 1999, 7232 asylum seekers from candidate countries (mainly from Poland, Slovakia and the Czech Republic) were granted refugee status in EU states.41 In time, all citizens from the accession states will have the right to live and work freely within any member state country, but this right is subject to transitional arrangements, applied at the discretion of each of the EU-15.42 It may be as much as seven years after accession before the free movement of persons is applied completely.43 The situation of minorities within the EU-25 states raises another issue to be considered in relation to legitimacy. As noted in Introduction, it has always been accepted that the EU comprises some kind of grouping of sovereign states, whose interests can be represented in the Council to ensure that they are never overridden. However, in practice, it is impossible to define the separate interests of a state, as opposed to those of groups of its citizens, or to those of its current government. The situation of some of the new states’ applicant minorities suggests that making this distinction is not just pedantry. Up to a point, the EU can try to better the situation of the Roma, but beyond that, minority ethnic groups’ experiences depend upon the attitudes of the majority groups within the countries in which they live, as the

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Commission recognised. So long as majority groups are confirmed in their national identities, progress is likely to be slow. Yet, national identities are not only accepted within the State-Centric Europe, but also actively encouraged by the repetition of terms such as ‘sovereignty’ and ‘statehood’. Judy Batt, heading research conducted in Birmingham University’s Centre for Russian and East Studies, implied that the idea of the sovereign state has always masked the complexities of multinational groups with varied ethnic identities. She cited Charles Ingrao who thought, like Monnet, that the nation state was the problem, not the solution, and referred to a body of CEE political thought stretching back to 1848 supporting that position.44 Batt found that the new EU states can be more accurately conceptualised in terms of ‘political fragmentation, the resurgence of regional and ethnic minority identities, and the devolution of state power’ rather than in terms of the (re-)emergence of the sovereign nation state after the fall of communism. Instead of making the assumption that full sovereign statehood should be the goal of the CEECs, the EU’s leaders could encourage the legitimation of the already existing sub-state nationalities and movements within its borders, leading the EU towards what Batt termed ‘Fuzzy Statehood’, as differentiated from the ‘hard model’ of the nation state. Batt’s conclusion was that ‘the way forward might be not to attempt to deny ethnic identity, but to detach it from claims over territory’.45 Such a proposition would mean that majority groups, including those of the original EU-15, would have to let go of the idea of territorial-based sovereignty. The idea may therefore be considered unrealistic, given that to date, the role that EU leaders have carved out for it is completely different, consistently explaining that the EU does not and cannot threaten national sovereignty.46 Nevertheless, a change in mindset could make the EU’s motto ‘united in diversity’ a description of the reality, rather than the expression of a wish, in an EU that encouraged difference and found in it a source of strength.

Peace and security within the EU We suggested (above) that the right to live peacefully under the rule of law can be included as a basic human right. No government, however, can guarantee this right, because no government has the absolute power needed to enforce the law absolutely. Individuals who live outside the law may be deterred or caught and punished, but they cannot be forced to play by the rules. Domestic security is one issue, but the integration within the EU has brought about the increased significance of international crime. At the same time, EU integration offers a potential means of addressing the problem by means of supranational policy-making. Dealing with international crime,

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which, of course, is experienced nationally, is an obvious candidate for the EU’s policy portfolio. Unfortunately, however, the EU has had limited success in the field of justice and home affairs. Issues within this policy area have largely been conducted by State-Centric EU through intergovernmental negotiations, beginning with the informal Trevi process in the mid-1970s, through which interior ministers and officials from member states were brought together with senior police and intelligence officers, meeting in semi-secrecy. The development of the Internal Market and the passing of the SEA, coupled with the Schengen Agreement, which dismantled border controls from 1985, also aided the free movement of criminals and trade in illegal substances as well as that of legitimate goods, services, capital and innocent persons. Hence, the IGC that preceded the TEU considered formalising arrangements. The outcome was the Treaty’s Third Pillar. From one perspective, the development of Title VI, ‘Provisions on cooperation within the field of Justice and Home Affairs’ in the TEU could be seen as a significant step towards EU integration, extending the EU’s responsibilities in that policy area, and providing for a common visa policy, a common asylum and immigration policy with increased police co-operation and the establishment of a European information system.47 The problem was the structure of the Pillar. Anderson et al. commented: ‘The Maastricht solution may best be described as hybrid: essentially intergovernmental but with a dash of the supranational, mainly pooling sovereignty but also partly transferring it.’48 Such a ‘solution’ reflected the political ambivalence of its negotiators. On the one hand, something needed to be done to draw JHA into the EU proper and to make decisions that could effectively improve internal security. On the other, the sensitivities of the protectors of state sovereignty made it impossible for them to structure the Pillar on the Community method of decision-making which could involve QMV, and bring in joint decision-making, via the EP, law-making, via the Commission and enforcement, via the ECJ. The result was an official intergovernmental forum that could discuss issues of mutual and significant concern, but could only agree – or agree to differ – on action. The decision-making procedures under the Third Pillar cost the EU both performance-related and normative legitimacy. The initial results were disappointing, providing little beyond vague declarations and causing HayesRenshaw and Wallace to comment that it said little for the effectiveness of the intergovernmental method as opposed to the Community method of decision-making.49 At the same time, third pillar policies were criticised owing to the secrecy under which policy-making was conducted. Part of this resulted from the complex decision-making apparatus, which gave a key function to the (then) K4 Coordinating Committee.50 The K4 Committee had the task of preparing decisions for the Council, similarly to that of CoReper under first pillar policies. Critics of the ‘big state’, like Tony Bunyan

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of Statewatch, implied that the illegitimated aspect of Technocratic Europe had come together with the elitist approach of the State-Centric EU, to the detriment of normative democratic legitimacy: The mechanism for decision-making between the EC states leaves power in the hands of officials (from Interior ministries, police, immigration, customs and security service) through a myriad of working groups. Senior officials (through the Trevi Senior Official Groups and the Coordinators’ Group) play a critical role in ensuring agreement between the different state officials. The EC Summit meetings, comprising the 12 Prime Ministers, simply rubber-stamp the conclusions agreed by the Interior and Justice Ministers. It is only then, in this intergovernmental process, that parliaments and people are informed (and then often only with the barest details).51 Anderson et al. considered that the role of the K4 Committee was ‘one of the most deliberate and significant institutional ambiguities’,52 and both sources were concerned at the exclusion of the EP, with its implications for reduced accountability as well as limited transparency. It was, however, the general perception of lack of effectiveness, not the lack of democratic legitimacy, that drove forward the integration process with regard to JHA. EU leaders were aware that there was a demand for security from the public, and a need for new thinking about how to provide it, given past EU-related issues (the development of the Internal Market), current international issues (the internationalisation of some kinds of crime), and future issues (especially enlargement).53 The result of this thinking was seen in the Treaty of Amsterdam, which transferred asylum, immigration and the rules governing the crossing of external borders from the Third to the First Pillar and placed them in a new chapter entitled ‘The progressive establishment of an area of freedom, security and justice’. The transfer made the issues subject to the Community method, leading Petite to comment that it was a ‘massive transfer of powers to the Community’.54 It meant that directives or regulations could be used instead of conventions and that they were subject to ECJ review. In time, the Commission would have sole right of initiative, but for the first five years from the signing of the Treaty, the member states shared it with the European Commission, for the familiar reason of fears of loss of sovereignty. Nentwich and Falkner thought that this constituted a partial ‘communautarization’, and the transferred areas of JHA to the First Pillar were referred to as ‘pillar 1a’.55 Police cooperation and judicial cooperation in criminal matters remained in the Third Pillar, with the intention of improving facilities for cooperation in those areas in order to make it more effective. Like the other changes, ambivalence can be sensed. Police and judicial cooperation have

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more explicit objectives with a ‘framework decision’ instrument which is binding on member states, but leaves them free to decide on the means of implementation designed to replace the conventions (thus giving a greater role to national parliaments). There were also institutional changes, which brought what remains of the ‘third pillar’ closer to the Community method. These included a Commission right of initiative, consultation with the EP and power to the ECJ to review the legality and interpretation of the acts. Little has changed since Amsterdam. The Treaty of Nice introduced enhanced cooperation amongst member states.56 The Constitutional Treaty included ‘the area of freedom, security and justice’ as an area of shared competence between the EU and its member states,57 emphasising ‘co-operation’, but retaining for member states the right of initiative in the field of police and judicial cooperation in criminal matters. It looked to develop common asylum and immigration policies,58 and to work towards common framework policies for judicial co-operation in civil and criminal matters, with the possibility of establishing a European Public Prosecutor’s office.59 Decisions made, however, were to be subject to unanimity, although enhanced co-operation was provided for in the case of judicial co-operation in criminal matters. In short, there was no suggestion that the ‘hybrid’ solution of Maastricht was to be transformed into a pure stock Community version, at least by means of a direct decision made by nation state leaders. There is, however, another actor within the field of JHA – the ECJ. In September 2005, the Court ruled that the EU’s competence to protect the environment included the power to require member states to use criminal sanctions for serious offences committed against EU anti-pollution law.60 The ECJ decision rode over a 2003 Council Framework Decision61 to leave this competence within the Third Pillar (i.e., subject to intergovernmental decision-making, and without penalties for infringement) and brought it within the provisions of the Community Pillar. Extending the principle, the decision implies that criminal offences committed against any kind of EU legal provision (although there is a limited number of policy areas to which it would apply) must be punished by means of appropriate sanctions, including imprisonment, in all member states.62 In other words, member states no longer have discretion, within criminal law, as to the means of applying punishment when EU law is broken. The case is relevant, not only because giving sharpened teeth to EU environmental legislation may benefit EU’s current and future citizens, but also because it shows how the Technocratic Europe can influence EU integration. Members of the ECJ, who, with the Commission that brought the case and the EP that supported the action, managed to override a decision of the State-Centric Council, are appointees. Community judges work within the EU; they do not represent individual member states. Also, they acted in a neofunctionalist manner. It is unlikely that there was any intention when ‘pillar 1a’ was constructed, that it should be used to extend EU competence

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to the enforcement of criminal law. Yet, the Amsterdam decision was used for this purpose. Enlargement and justice and home affairs The EU’s new citizens are optimistic about future security, with 68 per cent of respondents to the Candidate Countries’ Eurobarometer in 2001 believing that a peaceful and secure Europe was achievable. The contribution of the CEECs towards security is still problematic, however. Each CEEC closed its chapter on JHA, but as the Commission’s 2002 summary document points out, this does not mean that each state had met the acquis fully, particularly in terms of the structural alignment needed for implementation.63 It is evident from the Commission’s report that there were outstanding issues to be resolved with every candidate country, with the exception of Hungary. In particular, there were administrative and legislative deficits to be addressed,64 although progress had been made and was continuing.65 At the Brussels summit, October 2002, the European Council endorsed Commission proposals for additional safeguard clauses that could be invoked at the request of any member state for up to three years after accession.66 Such insurance may have calmed the nerves of the EU-15, especially those whose borders coincided with those of applicants. However, if new members feel distrusted as a result, it could be a Pyrrhic victory. Fink Hafner thought that the EU’s requirements for entry could be interpreted as idealistic; pointing out that not all existing members had met EU standards.67 Seen in this context, transitional measures may prove to be counterproductive. For the purpose of increasing a sense of legitimacy on the part of current and new publics, it is a question of getting the balance right.

Economic prosperity and the EU As noted in Chapter 2, at the start of the process, economic prosperity, based primarily upon free trade within and a degree of protectionism without, was the most noticeable goal for European Union. This project has been successful, especially following the internal market programme (see Chapter 2). EMU, seen by Delors as a natural follow-up to the single market, has had its ups and downs, but does not seem to have created an EU in financial freefall so far.68 Effective participation in the Internal Market leads to a successful market, which helps its members to achieve prosperous economies. This route towards mutual benefit accords with Adam Smith’s Wealth of Nations arguments,69 and it is an attractive prospect for participating states. Nevertheless, prosperity for a state is not the same thing as prosperity for its citizens, who depend upon more narrowly focussed economic policies and projects. The EU budget does have a redistributive element, whereby poorer states, and poorer regions within states, benefit from its funds, principally at the

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cost of wealthier states, particularly Germany. The objective of redistribution is not essentially a question of social justice, it is to befit, as far as the EU’s resources permit, all member states to participate on a ‘level playing field’ within the Internal Market. Nevertheless, groups of EU citizens are the direct beneficiaries. The EU’s financial instruments The EU has little substantial power to increase the wider prosperity, however. Its budget is too small (around one per cent of the EU’s member states’ Gross National Income (GNI)70 ) and its attempts to reduce inequality are too unambitious. Nevertheless, the EU has pre-accession packages for candidate countries and post-accession strategies for member states. The former are usually financial instruments within the context of Accession Partnerships, for example the Structural Instrument for Pre-Accession (ISPA), which operates similarly to the Cohesion Fund. The latter include the Cohesion Fund, the Structural Funds71 and the notorious subsidy system, the CAP. The Cohesion Fund is the tool of addressing inequality amongst states. It is available to any member state whose gross national product (GNP) is below 90 per cent of the average.72 The carrot of the Cohesion Fund is the opportunity to develop environmental or transport infrastructure projects. The stick is the requirement that the recipient conforms to the EMU convergence programme. There is also the additionality principle, whereby normally at least 10 per cent of the costs must be borne at source. From 2007, the intention is to integrate the Cohesion Fund into the mainstream Structural Funds. Structural policies, which make up over a third of the EU’s budget, are aimed more narrowly at either specific geographical areas or specific sections of people. They have existed since 1975, but were developed and formalised from 1987 by means of the Delors Report: Making a Success of the Single Act, which proposed strengthening the basis from which Funds could be distributed and committing the Community to doubling the resources available to it.73 The 12 member states accepted the proposal, primarily because Spain blocked negotiations of the 1988 budget until the rest gave way.74 From 1987 also, it has been the EU, rather than the recipient states, that decided which regions should benefit. Nevertheless, member states have always shown themselves keen to retain overall control of the Funds. For example, the Commission’s attempt to draw up a map of EC regions was overruled by the Council. The finance available for commitment from the Funds for the 2000– 06 period was E213 billion at 1999 prices. Funding was aimed at three primary Objectives.75 Objective One was designed to promote the development and structural adjustment of regions whose development is lagging behind. Objective Two supported the economic and social conversion of areas facing structural difficulties. It was allocated 11.5 per cent of the Structural Funds.76 Objective Three supported the adaptation and modernisation

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of policies and systems of education, training and employment. It was allocated 12.3 per cent of the Structural Funds.77 The long-term objective of the EU’s Financial Instruments is to eliminate the need for them. However, given the limited amount of provision and the jostling amongst states to maximise benefit from them, it is unlikely that they will be discarded in the near future. One of the problems is the disinclination of richer states to contribute – they are reluctant to increase their net payments to the 1.26 per cent suggested by the Commission for the 2007–13 period.78 In 2003, eight of the 15 were net contributors; six were net recipients and one (Finland) had an even balance. All of the 10 new states are recipients. The Cohesion States During the 1980s, the economic incentive of Communities’ membership was persuasive. The opportunity to become part of a prosperous group, supplied with a financial package to enable a share in that prosperity, seemed one that was worth ceding political autonomy. Greece, Portugal and Spain therefore had economic as well as political reasons for applying to join. All three had previously signed Association Agreements with the EC, which gave preferential access to markets as well as financial aid.79 From 1994, all three states were eligible for the Cohesion Fund. Since joining, Portugal has also benefited from the EU’s Structural Funds, and Greece and Spain have benefited from agricultural subsidies. Nevertheless, southern Europe is said to be still essentially dependent upon the EU. Dunphy, for example, thought that if the EU reduced its support for the Mediterranean countries it would still have a dramatic effect upon their level of prosperity.80 So far there is little cause for concern, as they still continue to receive the lion’s share (see below). The Accession States There is a political as well as an economic issue about establishing strong economies within the EU. Günter Verheugen, the then Enlargement Commissioner, commented during his EP hearing in July 1999 that stable democracies would do better if they functioned from a ‘sound economic basis’, and it was therefore important to give the acceding states the chance to catch up with the rest of the EU. Hence, the newest states benefit from a number of financial instruments. For example, the Accession Partnerships, formed before the 2004 enlargement, included three financial instruments that were intended to assist candidate countries in meeting the requirements of the acquis.81 The sum set aside for this was E22 billion between 2000 and 2006.82 Post accession, however, there was a dilemma. Baun estimated that the ten 2004 entrants would lower the EU’s per capita GDP by 16 per cent with only a 4 per cent increase in its total GDP.83 These figures implied

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that ‘catching up’ on their part was likely to weigh heavily on the EU’s budget. Nevertheless, if the new states were allowed to languish without receiving adequate aid packages, then their prosperity and consequently their trading viability would also lag behind and they would be dependent for longer on the EU’s resources. There would also be the question of popular response if economic benefits were not noticeable in the early years post accession. The question was how to help improve the new states’ economies without disturbing the income received by the older members, and without increasing their contribution. The Commission document, Agenda 2000: for a stronger and wider Union, provided an apparent solution.84 Agenda 2000 set out a new Financial Framework to prepare the EU for enlargement. It included a new Financial Perspective (a ceiling on the EU’s spending), added to reform of the Structural Funds and of the CAP. The paper denied that the admission of new states would put substantial longterm demands upon the EU’s resources, arguing that its proposals would enable enlargement to be financed within the existing limits of expenditure. Moreover, the EU-15 could continue to receive assistance from the EU in accordance with the existing criteria. Agenda 2000’s proposals were accepted by the Berlin European Council in 1999, and the decision about the amount and allocation of the Cohesion and Structural Funds for the 2000–06 period was agreed unanimously there. They were adjusted – but not substantially altered – at the 2002 Copenhagen summit, following the decision to admit 10, rather than eight, states in 2004. The agreement means that new states do not benefit from EU funding at the expense of the older member recipients, the primary argument being that they do not have the capacity to absorb, manage and co-finance the funds.85 Hence, Structural and Cohesion Fund activities were phased in over the 2000–06 period and were capped at four per cent of a new state’s GDP. The Mediterranean States continued to have claims on Cohesion Funds so long as their per capita GNP stayed under 90 per cent of the EU’s average.86 Between 2004 and 2006 the new states received E24 billion in Structural and Cohesion Funds.87 This included just half of the Cohesion budget (E8.49 billion), although there are more of them and they are much poorer than the Mediterranean states.88 The Regional Commissioner, Danuta Hübner, noted a year after enlargement that the new states had had no problems in ‘absorbing the assistance’, despite the pre-accession concerns.89 The question, therefore, of the legitimacy of the EU-15 negotiators’ decision stands. A similar kind of decision was made in relation to agricultural support. The Brussels European Council in October 2002 accepted a proposal to give CEEC farmers only 25 per cent of direct aid given to EU-15 farmers in agricultural subsidies, to be scaled upwards by 2013.90 This development was expected, given France’s concern about its own agriculture. A ceiling for total expenditure on CAP was set at the 2006 level, so that between 2007 and 2013, all EU states will share the same amount,91 under the assumption that

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growth and development will enable the phasing off of agricultural subsidies. The European leaders also made it plain that delays in adjustment on the part of new states could mean exclusion from the subsidies.92 According to the Candidate Countries’ Eurobarometer 2001, citizens of states heavily dependent upon agriculture (Poland, Latvia and Slovenia) feared the impact of EU membership on farming before joining. The decision of limiting access to aid cannot have reassured them, although Polish and Romanian negotiators managed to persuade the EU-15 to speed up the scaling of funds at the 2002 Copenhagen summit. In any case, Agenda 2000 set an optimistic framework from which to proceed. It contained two key suppositions. First, internal EU growth was assumed to be set at 2.5 per cent per year between 2000 and 2006; secondly, it was assumed that the applicant states’ economies would grow more quickly than that – at four per cent per year.93 The Commission’s forecasts were overoptimistic for the EU-15; and may be optimistic for the CEECs.94 Table 5.2 shows how growth rates have progressed. The figures show that the EU’s overall growth rate did not meet the EU’s expectations. The new states have done better. In his speech to the European Parliament, on 09 October 2002, Verheugen reported that most of the acceding states had ‘managed to exceed the average EU growth of 2.6 per cent’ between 1997 and 2001.96 Many have done so since, but the above figures conceal major differences amongst the eight CEECs. For example, between 2001 and 2005, the Baltic states demonstrate consistently the highest increases in growth rates; whilst the states of eastern Europe, especially Poland and Hungary, show the lowest. Sustainability of growth is another issue. The World Bank expected EU membership to attract higher foreign direct investment, which in turn would fuel growth, but the Bank noted that its optimism would be misplaced if global trade and growth were ‘more sluggish than anticipated’, especially if EU recovery were delayed, or if the EU’s new states failed to reduce their deficit substantially and/or were unable to join the Exchange Rate Table 5.2 GDP growth rates within the EU 2001–0595 Year

2001

2002

2003

2004

2005

EU-15 average growth rate % EU-25 average growth rate % CEECs average growth rate % highest growth rate % /state lowest growth rate % /state

1.8 1.8 4.2 6.5 Estonia 1.0 Poland

1.1 1.1 4.3 7.2 Estonia 1.4 Poland

0.9 1.0 5.1 9.7 Lithuania 2.5 Slovenia

2.2 2.3 5.9 8.5 Latvia 4.2 Hungary

1.9* 2.0* 5.1* 7.2* Latvia 3.7* Slovenia

* Forecast

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Mechanism (ERM II).97 The Bank noted in 2005 that five of the eight states (Czech Republic, Estonia, Hungary, Latvia and Poland) did have high fiscal deficits,98 and up to May 2005, only Estonia, Latvia, Lithuania and Slovenia (with Cyprus and Malta) had joined ERM II, on the high fluctuation band of +/ − 15 per cent.99 It should be emphasised that if Agenda 2000 calculations were wrong, then legitimacy would be lost as EU citizens see prosperity decline. None of these points, however, should diminish the fact that the EU has absorbed a number of poorer economies, and that those economies have continued to develop since EU entry. Growth within the EU-15 has slowed down, but the decline began well before 2004, and so far, forecasts for the future are optimistic. Beugelsdijk and Euffinger, in their study on the effectiveness of structural policy on the EU-15 between 1995 and 2001, concluded that channelling funds to the new states between 2007 and 2013 is likely to contribute to their higher economic growth.100

‘Social Europe’ However, credit for general economic prosperity is unlikely to be awarded to the EU by citizens who are not direct beneficiaries of an EU-supporting programme. As shown in Table 5.1, people tend to be concerned about matters closer to home, under the general caption of ‘social issues’, and headed by unemployment. Social Europe, however, is the least developed of the facets of the EU. Social policy in the EU covers a lot of ground, but primarily it is concerned with employment issues, such as employment rights, health and safety at work, equal rights and opportunities, and with unemployment. It also covers general social rights and social inclusion although, usually, these matters are left to member states in practice. Social policy was not included in the Treaty of Rome, but it was developed by means of a series of Commission Social Action Programmes, beginning in the early 1970s. A Social Fund was agreed by the Council in 1972, and, from the mid-1970s, action was directed towards harmonising national legislation on social policy, including employment protection and equal treatment for male and female workers. As with other issues, the development of the Internal Market led to the development of social policy, and the SEA contained an unambiguous statement to strengthen economic and social cohesion,101 requiring member states to co-ordinate their policies in order to achieve that aim.102 From the mid-1980s, then, a social democratic model was starting to take off. The reason for this was partly the need to level the playing field for the Single Market, but it was also partly because Germany, and particularly France, the leaders of the Community, tended to practise social democracy within domestic politics. Because of concerns that the Single Market could lead to a levelling down of social provision, a Social Charter was drawn up

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and signed by eleven of the member states’ governments (the UK declined) in October 1989. The Commission’s second Social Action Programme was designed to implement the objectives of the Charter and to develop the social dimension of the single market. The eleven governments that had approved the Social Charter wanted to incorporate a Social Chapter in the TEU 1992, to place the Charter within the Treaty proper. The UK blocked this initiative, with the result that a Social Chapter was annexed as a protocol to the TEU, with the UK being granted an opt-out from its provisions. The ‘enhanced co-operation’ (although not entitled as such) initiative was born at this point – the idea being that the eleven governments could use Community institutions, without UK participation, to develop social policy. However, the facility was not used very much, with only two directives adopted under it before Amsterdam: the European Works Council directive (1994) and a parental leave directive (1996). Amsterdam, however, was a turning point. In particular, employment was emphasised as a ‘matter of common concern’,103 and it was given a Title, which specified employment objectives and how they should be fulfilled.104 In addition, after the election of a UK Labour government in 1997, the objection to the inclusion of the Social Chapter was dropped. Nevertheless, not all of the areas of social policy were subject to majority decision-making. Social security and social protection of workers, protection of workers whose employment contract is terminated and financial contributions for employment promotion are still under unanimity, and other matters, such as pay, the right to form a union and the right to strike, still remain with the member states. Global competitiveness is a more recent theme, and was the subject of the Lisbon European Council meeting in 2000. The ‘Lisbon Strategy’ aimed to invigorate the Community’s policies and to look at long-term measures to promote innovation and knowledge, in particular to befit the EU to operate on equal terms globally with the development of information and communication technologies. Full employment was regarded as possible, although the impact of reduced growth has since meant that unemployment has risen, rather than fallen. In 2005, it stood at eight per cent for the EU-15 and 8.8 per cent for the EU-25.105 This represented, since 2003, a rise for the EU-15 of 0.1 per cent and a fall for the EU-25 of 0.3 per cent.106 Unfortunately, however, from the perspective of legitimating EU integration, the more particularly integrative measures seem to be having a negative impact. For example, the Eurozone states (i.e., the states that are part of EMU, the EU-15 minus the UK, Sweden and Denmark) have a higher unemployment rate than the EU-15 as a whole – 8.8 per cent in 2005.107 Although the difference is small, it may magnify public fears of rising unemployment. Also, the Stability and Growth Pact, adopted in 1997 and designed to keep taxation and government spending down within the context of

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EMU, seems to be having the opposite effect. Both France and Germany, for example, have wavered, trying to keep up public investment, but both states’ citizens have shown dissatisfaction with the declining level of social spending nonetheless. The problem that the EU has had in developing social policy has three dimensions. First, it is plagued, like most integrative measures, with the general reluctance of governments to push policy-making upwards – hence the refusal to put pay and industrial relations within the competences of the EU. Secondly, there is the inherent contradiction between social policy and economic liberalism, which, focussed on the single market, underpins the EU’s economic strategy. Any interference with the working of the market, such as a minimum wage or employment protection, limits the effect of the market. Hence, EU-developed social policy is likely to be restricted until or unless the EU changes its overall approach to economic management. The third dimension straddles the first two, and results from social democracy (itself, one may reflect, inherently contradicting unfettered capitalism). Governments within the EU, particularly within the so-called ‘old’ Europe, have been long-term practitioners of social democracy in principle, even when the practice has been bound by the EU’s fiscal discipline. Social democracy delivers noticeable social benefits, which are frequently welcomed by voters. However, the development of EMU, coupled with the rather tight Maastricht criteria of low inflation, low debt and low deficits, made for a return of economic orthodoxy. Meeting the criteria was difficult for states whose citizens were used to more substantial social provision, and their difficulties showed up in their inability to stick to the terms of the Stability and Growth Pact and in reduced social investment as they tried to square the circle. The situation gives rise to the question of how far social Europe, potentially demonstrating EU-based benefits to its citizens, can continue to co-exist with economic Europe, when member states’ governments have an ambivalent approach. The issue is likely to grow in importance, given that if social policies are to be developed, they need to be developed across the EU as a whole to prevent one state or another obtaining an unfair advantage in the single market that needs a level playing field to function efficiently. In relation to legitimation, it can sometimes be the case that such governments ‘blame’ the EU for cuts in public spending, for which they themselves have some responsibility, whilst taking the credit for economic successes, properly belonging to the effectiveness of a common currency and economic policies. If social Europe is made to pay the price for economic Europe in the short term, it is to be hoped that economic Europe becomes successful enough for its citizens to recognise where credit really belongs in the long term.

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A Europe for all citizens: costs and benefits of enlargement As noted at the start of the chapter, enlargement is a big issue for the EU’s legitimacy. Its facets transcend political, economic and social issues. A problem that has been thrown into relief with enlargement is the question of zero-sum outcomes. If one group of citizens perceive that they are losing out to another set, there will be the two undesirable effects of a lack of common identity and of resentment towards the system that has brought about the situation. Both of these would be unfortunate in terms of the legitimation of the EU. This concern suggests that the 2004 enlargement was one of the riskier strategies undertaken by the EU. Enlargement was a test upon the EU’s older and newer states. The EU tried to shorten the odds on passing this test by means of applying the Copenhagen criteria, accompanied by the extensive demands of the negotiating chapters on the acquis, to the candidate countries. However, even if the new states satisfy the demands in form, it has been shown that the level of risk also relates to substance, particularly in relation to minority rights within some of the new states. Enlargement and the EU-15 The EU-15 governments exhibited some ambivalence, not about the principle of enlargement but about the extent to which they would need to make adjustments to incorporate it. Two treaties, for example, were required for an institutional settlement; neither succeeded, and the problems in ratifying the Constitutional Treaty have put the position in limbo for the time being. In addition, fears relating to costs and a reluctance to disturb the EU-15’s separate interests were allowed to predominate when calculating the terms upon which new countries could be enabled to accede. Pre-enlargement, there was optimism, albeit cautious, on the part of the population of existing states. According to the Eurobarometer 57 survey of Autumn 2002, a high number (63 per cent) of the EU-15 public thought that enlargement would increase the EU’s importance in the world, would make it culturally richer (61 per cent), and would help guarantee European peace and security (53 per cent). On the negative side, 65 per cent thought that EU decision-making would be harder; 49 per cent believed that their own country would receive less financial aid; and 41 per cent feared an increase in unemployment.108 To date, we have shown that hopes have been justified, but that the main fears, apart from the issue of EU decision-making, have not. At least initially, EU-15 citizens have little to worry about in relation to losing benefits from EU membership – their negotiators, with the advantage of already belonging to the club, have seen to that. It is possible that costs to current citizens will by offset by benefits accruing from an increased and more active market. Redistribution of the EU’s resources will seem less of an issue if additional prosperity is enjoyed all round.

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Nevertheless, there is some concern about future enlargement amongst the people of the EU-15. Eurobarometer 63 reported that whilst 50 per cent of the respondents throughout the EU-25 supported further enlargement, this was a reduction of three per cent on the previous year, whilst the number opposing it had increased by three per cent to 38 per cent.109 Citizens of the EU-15 averaged less than 47 per cent in favour overall. The ones that appeared most negative are those from the more affluent states, such as Germany (33 per cent) and France (32 per cent). Their responses may reflect their concerns of the impact on the EU’s budget to which their governments contribute most heavily, although, given that the EU’s budget is capped at 1.27 per cent of member states’ GDP, and that the actual overall contribution is much less, these concerns seem exaggerated. On the other hand, citizens of former dictatorships in Greece, Portugal and Spain were three of the four most enthusiastic about further enlargement, even though, as the largest net recipients of EU funds, they might have been expected to be wary of the admission of more poor countries. The fourth was Italy – a state whose citizens may also feel appreciative of the political stability that the EU offers. Enlargement and the newest entrants The Commission’s Candidate Countries’ Eurobarometer of 2001 stated that about two-thirds of the public in applicant states were optimistic about joining the EU, believing that their countries were ‘naturally’ part of Europe (65 per cent). The majority thought that increased economic prosperity was likely (69 per cent) and that cultural enrichment was an additional benefit (65 per cent). Respondents also thought that a peaceful and secure Europe was achievable (68 per cent) and that the EU’s international prestige would be enhanced (69 per cent). At the same time, however, 25 per cent expected increased unemployment and most member states’ respondents had worries relating to a fear of increased international crime, the expense of accession 110 and the loss of symbols of national sovereignty. Countries heavily dependent upon agriculture (Poland, Latvia and Slovenia) also feared the impact of EU membership on farming. European Union membership requires a great deal of adjustment in cultural and political, as well as economic, aspects of citizens’ lives. Some of these changes may be uncomfortable and difficult to accept. However, they may be part of a price worth paying if increased prosperity closely follows accession. This outcome is less certain for the CEECs and Cyprus and Malta than it is for existing members. ‘Getting rich quick’ may be impossible for states that are so far behind as to be unable to utilise substantial resources, although evidence currently available implies that this is an unjustified concern (see above). It appears, however, that the calculation of the resources new states receive owes more to the determination of current states to preserve their benefits than it does to the capacity of applicants

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to absorb more economic assistance. If the calculation has been made on this basis, then disappointment may follow. Richter pointed out that the opportunity costs of remaining outside the EU would, in any case, be higher, but he commented that the new citizens might be disappointed in their first experiences of EU membership.111 With the exception of Cyprus and Malta, all the newer states had more than a decade to get used to the notion that liberation from the USSR’s political and economic system was insufficient to bring about contentment. Prospective citizens may lose patience if their second step towards the western liberal settlement does not deliver its promise promptly. Stabilising CEECs’ polities may not compensate for challenging their cultural norms, if enriching their economies does not weight the scales. The newer states’ governments, as we have shown, have been able to align their institutions, laws and practices with those of the EU. However, in democracies, even quite new ones, governments are accountable to their people. The people of the newer states can influence their governments away from conformity with an institution of which they disapprove. The effect could be intensified if the new states’ governments, like the old, use conformity with jointly agreed EU decisions to deflect criticism from themselves. In such a case, a discordant EU, unworthy of respect from within as well as from outside its borders, could emerge. However, according to Eurobarometer 63, the new entrants’ citizens were more positive about further enlargement than were those of the EU-15, with over 68 per cent welcoming the idea.112 It appears that the latest entrants’ citizens are not ready to slam the door through which they have passed, possibly because they do appreciate the political benefits of EU membership and want them to be extended to others. Their attitude is a hopeful sign. Enlargement and legitimacy Although both ‘sides’ needed enlargement, applicants had to do a great deal more adjusting and undertake a great many more risks, in particular in relation to reassuring their populations, in order for it to take place. The equity of this could be questioned, but a moral judgement is not called for here, except inasmuch as it relates to the subject of legitimation. If a perceived ‘unfairness’ on the part of the EU emerges and the concept of a two-tier citizenry materialises, then the EU may not be able to ‘govern’ effectively a divided state. Nevertheless, there is something compelling about the concept of an enlarged EU, even with attendant teething troubles, having the capacity to impress if not to dominate the international scene and to rebalance the major powers. The prize of successful further enlargement could be not only the appreciation of current and future citizens but also the approval of the wider world. As Feldman commented: ‘External and internal legitimacy are linked through efforts to extend the experience of postwar reconciliation to the rest of Europe.’113 Such an EU may not be entirely

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hegemonic, but liberalism does not require hegemony. The newer states’ citizens may, by recognising that there is more that unites them with than divides them from the more established population, find it possible to accept EU governance and enable the EU to capitalise upon enlargement. On the other hand, legitimacy is not assured by brushing aside popular concerns, so that a overall reduction in public support for further enlargement is worrying. Possibly the issue could be resolved by means of more information. If the increasing rigour of the EU’s monitoring, coupled with more sophisticated means of pre-accession assistance, were communicated more effectively, fears could be alleviated. Additional legitimation may follow.

Conclusion: a citizens’ EU and the ‘four Europes’ This chapter concludes that, whilst assessment is necessarily subjective, there is sufficient in the EU’s current performance to indicate that it could become a legitimating factor. First, we have shown that the EU’s achievements are impressive, although the lack of capacity to publicise them makes them appear more modest. Secondly, the EU has the potential, if not the competence, to do more, particularly in the field of human rights, which could extend beyond the fundamentals towards further social protection. In particular, in the context of the models outlined in Chapter 2, the concept of a citizens’ Europe could help legitimate all of the four Europes. A Technocratic Europe can deliver the tangible benefits and this aspect of the EU’s success could receive more favourable attention than it does. A Multi-level EU or a Federal EU, including the more extensive participation that these Europes entail, can supply to citizens a practical demonstration of the links amongst rights, duties and responsibilities. The StateCentric EU will not debar performance-identification-legitimation, assuming the potential for its population to add the EU to their existing multiple identities. However, citizens are unlikely to make a rational calculation of costs and benefits derived in order to determine the degree of their consent to the EU’s governance. Benefits need to be felt before they figure within the sum; whilst costs may be unjustly inflated to meet media or political agenda. Realignment of public perceptions is a task for the EU’s political leaders – to that extent they could increase performance-related legitimation. Nevertheless, state centricity poses a problem for performance legitimation. The development of both social and political Europe has lagged behind economic Europe. Political leaders have been essentially unanimous in proclaiming the benefits of a single market, although their governments have had to make many adjustments in order to get it to operate effectively. Arguments about the fundamental differences about each state’s systems and standards cut little ice when negotiations on the development of the Internal

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Market took place, although they applied equally to non-tariff barriers to trade as they do, for example, to terms of employment or to border control. There seems a lack of logic in the position, which could be addressed more actively by the EU’s political leaders. This suggestion, however, should not devalue the achievements made by the EU’s political actors in all fora. There is a lot in the EU’s ‘domestic’ performance to be going on with. However, it is suggested that the fixing of political identification with the EU may require a more ostentatious demonstration that the EU, and therefore EU citizenship, ‘means something’ to the world at large. This is the main topic of Chapter 6.

6 The EU’s External Performance

Introduction This chapter considers the prospects for the EU to become a global performer in which its citizens can feel pride, arguing that if it succeeded, this would give the EU higher legitimacy, since a sense of affiliation could follow satisfaction. The chapter will therefore examine three aspects of the EU as an international actor: the EU’s role in trade, aid and development; its activities in the wider Europe; and finally, the part that it plays in world politics. As shown below, the EU is an important player in relation to aid and development, as well as being the largest trading bloc in the world. In an era when the issue of world poverty is beginning to excite increasing attention, the EU therefore plays an important role, and could gain credit for being a good performer. However, the extent to which its impact is wholly beneficial is questioned. The chapter notes that the EU aid and development approach suffers from three problems. First, it is linked noticeably to the EU’s trading policies, which means that the overall goal of aid and development is improvement in the prosperity of the EU, rather than that of the Third World. Improvement in internal prosperity is not likely to lose citizens’ approval, of course, but improvement depends upon the effectiveness of the prescription. The second problem is that the EU practises protectionism and subsidisation of its own markets, as well as dumping its surplus produce, meaning that developing countries have less opportunity to gain from the EU’s trade policies, and hence their development is slowed down. The third problem is that the EU’s hands are tied. On the one hand, it is composed of liberal democracies based on market economies, and on the other, it is a member of the WTO, composed of states operating on a similar economic model. Hence EU policies on aid and development necessarily reflect those of the national and international levels. However, to date there has been little demonstration that their approach has had much impact on Third World development.1 Bringing about peace and prosperity within the wider Europe probably offers the best route towards gaining international approval. The notion, 143

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derived from Manners and Whitman, is that the EU could have, rather than be, an international identity by this means.2 Enlargement, examined in Chapter 5, is one means of achieving a stable and economically developed Europe, but it is not the appropriate response towards the whole of Europe in the short to medium term. However, there are other avenues that the EU is exploring. The European Neighbourhood Policy (ENP), whereby the EU works with and assists those states that border it following the 2004 enlargement, is one. A second approach is formed of state-building initiatives, in which the EU attempts to support states, such as those that made up the former Yugoslavia, in their development towards stable governance. These kinds of policies are unlikely to lose or to gain much legitimacy directly, largely because, with the exception of the signing of agreements, they fall under the ‘technical’ side of the EU’s activities. However, if successful, the EU gains international attention and (albeit qualified) respect. The status of an institution within the global context can reassure its citizens, because it may be assumed that the ‘higher’ authority has also a higher level of understanding.3 Hence, if the EU’s performance within Europe wins its respect from the international community, such esteem may be transferred to its own people. However, the EU’s role as a foreign policy actor proper is less developed than its other external activities. The reason for this immaturity – the difficulty that political actors in leading EU states have in letting go of national status – reflects the overriding obstacle that the EU faces if it looks to its role in the world to gain it performance legitimacy. As already argued, and as shown below, EU integration and its legitimacy are linked. The performance legitimacy that may be derived from the EU as an international actor depends in part (although, as the chapter shows, alternative means of interaction in the global community are being developed) upon the EU becoming more integrated, and, particularly in the field of foreign policy proper, upon demonstrating a united front. Earning the kind of legitimacy that fosters internal allegiance because it commands world respect requires the EU’s leaders to pool their resources, not to guard them in the name of national sovereignty. The EU may be in a chicken-and-egg situation. The conclusion is, then, that there is potential for the EU’s external activities to provide it with an additional legitimating factor – not sufficient by itself, but it could be added to the other factors identified in previous chapters.

Trade, aid and development Trade The EU’s external trade policy has evolved considerably since the 1950s. Its Common Commercial Policy (CCP) and its Common External Tariff (CET) oblige the member states of the EU to act in common when dealing with international trade – including trade agreements, taking action to prevent dumping and negotiating agreements with Third World countries.4 Although

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member states have individual WTO membership, the EU also takes the lead in negotiations with the WTO, where the need to speak with a single voice has become more significant in recent years. This position sometimes causes difficulties, since some countries, such as France, Italy, Spain and Greece, tend to be more protectionist than others, such as Germany and the UK.5 Nevertheless, the EU and its member states see trade as a priority and the EU has a great deal of strength in the world market in its own right, even in comparison to other economic giants, such as the United States and Japan. It accounts for 17 per cent of global exports (compared with 16 per cent from the United States) and 18 per cent of imports (compared with 19 per cent to the United States).6 The EU’s market consists of about 455 million people (compared with that of the United States consisting of 250 million people).7 As noted above, the EU’s market strength, combined with its trading policies, gives it both the power and the means to develop as a ‘civil’ power, and, as Meunier and Nicolaïdis suggest, there is a prospect of the EU becoming ‘an important foreign policy actor through the back door, by using trade instead of more diplomatic or military means’.8 They point out that the EU’s potential hegemonic power in this field is equal to that of the United States, whilst its long experience of trade bargaining (internally as well as externally) have made it a major and effective figure in the multilateral trading system.9 In particular, Meunier and Nicolaïdis note, the EU–US relationship is underpinned by trading policies based upon transatlantic agreements, including Mutual Recognition Agreements on specific areas, which the EU has exported successfully to the rest of the world.10 The EU, however, whilst being committed to free trade within, does not always act consistently when dealing with the rest of the world. Protectionism, in practice, is always ready to surface. Subsidies are used, particularly for agriculture, whose subsidies take up a far higher percentage of the EU’s budget than does aid and development.11 In addition, the EU sets quotas for other countries’ exports – for example, on cheap clothing from China.12 These policies hit developing countries hardest, since it is they who could provide EU states with the most competition in those products, and frequently they who have little else with which to trade. At the same time, the EU has been instrumental in arguing for an extension of a free trade policy to those areas where it does have the advantage – that is to services and intellectual property – and this approach can have significant adverse consequences for developing countries. The overall EU position to trade, aid and development has therefore become contradictory. On the one hand, like the WTO, it sees liberal free trade as a cure for poverty, and, as shown below, has succeeded in linking humanitarian aid provision with development. On the other, the EU protects its own markets against poorer nations who have been forced to open theirs, and even ‘dumps’ its surplus agricultural produce on them, undercutting local producers and putting them out of business.13 In other words, the

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EU encourages and sometimes enforces a free trade approach that could only work if all, including the EU, practised it. Franz Fischler, the former EU agriculture commissioner, criticised poor countries and development campaigners for attacking CAP and making ‘extreme’ proposals for reducing protectionism before the (abortive) September 2003 Cancún Fifth Ministerial Conference of the World Trade Organisation, whilst making little effort to become competitive themselves:14 We will vigorously defend our right to support our farmers. It is not up to the WTO, or to some of our trading partners to tell us that we have to wipe out European agriculture with all the jobs, the environmental benefits, the cultural heritage our farmers provide. Societies around the world must have the right to choose which public goods and services are important to them and what they want to support. But, of course, this has to be done in trade-friendly way. ‘Trade friendliness’, as Fischler used the phrase, could be interpreted in a number of different ways. Aid and trade Moreover, the EU’s approach to humanitarian aid is underpinned by the idea that free trade will provide a lasting answer to poverty, to the extent that its aid programme is tied in with its development and trade policies. Response to need was undertaken in a piecemeal manner during the 1960s and 1970s. However, after the end of the Cold War, the need for humanitarian aid throughout the Second World increased, and in 1992, the European Office for Emergency Humanitarian Aid (ECHO) was set up. The major crises of the 1990s – in Iraq, Bangladesh, Africa, the former Soviet Union, Albania and former Yugoslavia – required donors and relief organisations to put in a more sustained effort,15 and ECHO developed pragmatically in response to those crises. Since the late 1990s, ECHO’s operations have been scrutinised more thoroughly and it is becoming more structured. Between them, the EU and its member states contribute 55 per cent of all humanitarian aid worldwide, and 30 per cent is contributed via ECHO although only a small proportion of funding is allocated directly by that body. Instead, the institution works mainly through partner agencies, such as non-governmental organisations (60 per cent), agencies of the United Nations (28 per cent), the Red Cross and other international organisations (8 per cent). The EU assists in over 60 countries, although over half of its funding (52 per cent in 2004) is directed at sub-Saharan Africa.16 In 2004, ECHO expenditure was over E 550 million, but it should be emphasised that this is still a small part of a small budget. The structure of the EU’s humanitarian programme indicates how its liberalising agenda has a tendency to dominate. It does provide immediate relief

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by means of goods and services, for example food supplies, medicine, clothes and shelter. However, since the mid-1990s, the EU’s humanitarian assistance programme has been increasingly linked to its development policy. The Commission’s 1996 Communication Linking relief, rehabilitation and development (LRRD) stated that: ‘humanitarian aid will seek where possible to bear in mind and remain compatible with longer-term developmental objectives’.17 In 2001 the European Commission published its Linking relief, rehabilitation and development [LRRD]: an assessment, which divided humanitarian aid into three kinds: natural disasters, violent conflicts and structural crises.18 For the first, apart from necessary goods and services, aid might be needed to prevent recurrence, for example tree-planting schemes to reduce the risk of future flooding, but no economic or political strings could be attached. For the second, there might be a need for the EU to adjust its generosity in order to encourage recipient governments’ political stability. For the third, the Commission saw the issue in terms of governmental or economic mismanagement. In that context, development, rather than emergency aid, should be the key towards resolving the problem. In such a case, further assistance would be dependent upon the recipient country agreeing to restructure its governance or its economy. ‘Restructuring’ would, naturally, require a government to liberalise its economy – that is, open it up to competition from external service providers, remove any barriers to trade and put into place the conditions (e.g., low tax rates) to encourage foreign direct investment. The EU thus seeks a high reward for relatively small output and limited effort. Development and trade Just as the EU has firmed up the links, or blurred the distinction, between aid and trade quite effectively by means of its aid programme, similar trends can be identified in relation to its extensive development policies, where EU hard-headedness similarly reduces its claim to moral authority. They involve almost all Third World states, and, with its member states, the EU contributes 55 per cent of all development assistance, although only 10 per cent of that comes from the EU’s own resources, and most policies depend upon member states’ agreements.19 Hence, the EU’s development programme complements the policies of the member states and, where possible, it is undertaken in co-ordination with the other donors at global level, both with countries (e.g., Japan and the United States) and with international organisations (e.g., the World Bank, the International Monetary Fund or the Africa Development Bank).20 The programme is directly funded, and development assistance is also provided through two more specific financial instruments: the European Development Fund (EDF), which is funded by contributions from Member States, and the European Investment Bank (EIB), which grants loans in the context of its external activities.

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As well as focusing on different sectors requiring development, such as the environment or public health, the EU takes a commercial approach through its Generalised System of Preferences, with the intention of encouraging developing countries to industrialise more quickly by removing or reducing customs duties from their exports. The countries themselves are required not to discriminate among EU countries when importing goods. The approach is less successful from the point of view of poor countries than it might have been because of the EU’s protective attitude to its own markets. Developing the Third World Initially, the EEC was involved with the overseas colonies and territories of the original Six, particularly those belonging to France. Its involvement therefore reflected the political concerns of its member states, rather than an inclination to assume moral responsibility. As these overseas colonies and territories gained independence during the 1960s, the EEC found it important to continue to work with them, which they did under the Yaoundé Conventions, initially involving only 18 African states, of 1963 and 1969. However, things became more complicated during the 1970s, especially after the UK joined the Communities in 1973. The UK had its own priorities for former colonial development and therefore further co-ordination with a larger group of partners was needed on the part of the EEC. By the end of the twentieth century, almost all Third World countries were linked to the EU’s development policy. Its effort is mainly concentrated on the Afro Caribbean Pacific (ACP) countries, primarily because the historical links of EU member states to those areas are more defined rather than because their needs are greater,21 although the EU has been working on a financial and technical aid programme for Latin America and Asia since 1976. The programmes for ACP countries have been fully expanded and are quite elaborate and relatively well financed. The EU’s direct outgoings for development and relations with ACP states were E1316 million in 2005.22 From 1975 to 2000 the programmes were extended by means of the Lomé Conventions – agreements signed between Community and ACP country representatives. There were four programmes in total, and the areas that they covered became more inclusive with each successive convention, from the Generalised System of Preferences (only on non-agricultural products) of Lomé I to human rights (Lomé III) and to the environment (Lomé IV). By the time the Lomé IV programme came to an end in 2000, the international context had changed considerably, particularly following the formation of the WTO in 1995. WTO rules tended to supersede the old arrangements between the EU and the ACP countries, and it meant that new deals that took WTO rules into account had to be negotiated. These rules included trade liberalisation, and they brought to light the fact that the limited reduction in trade barriers under the Lomé agreements had been more grudging than generous, despite the language in which they were

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clothed.23 Besides, there was a growing sense of unease about the approach of the Lomé Conventions – a feeling that they tended to be ‘top-down’ and exclusive. Agreements were made only between elites of the EU and the ACP countries, and tended to reflect the idiosyncrasies of their negotiators. At any rate, the results of the agreements were counterproductive – the ACP countries’ share of the EU market had declined to a mere 2.8 per cent by 1999.24 There was, therefore, no Lomé V. Instead, a new partnership agreement between the European Union and the ACP countries was signed in June 2000 in Cotonou, the capital of Bénin. The Cotonou Agreement covers 78 ACP states and is based on four pillars: poverty reduction (which may include questions of governance within ACP states); a potential trade agreement with an extension of trade liberalisation to be worth around $30 billion, between some of the ACP states and the EU (but not until 2008);25 an attempt to anticipate crises, through what is called an ‘on-going political dialogue’ (again, the assumption is that this will mean involvement with ACP governance); and, finally, in response to earlier criticisms, an intention to involve civil society, through NGOs as well as individuals within ACP states. The Cotonou Agreement, however, did not come into force until April 2003. It was signed by ACP countries in June 2000, but it took so long for the EU’s member states to ratify it that the ACP states began to doubt the EU’s commitment.26 Nevertheless, the Agreement was put into practice from the date that it was signed, and it is intended to last until 2020, with 5-yearly revisions. The first revision took place in 2005, and included a more formalised and structured political dialogue. It extended the Agreement to co-operation in countering the development of weapons of mass destruction and preventing terrorism. It also added a number of themes, including working towards the Millennium Goals, making the involvement of non-state actors easier, and the promotion of traditional knowledge. In future, resources should be allocated more flexibly, and the EU has made a commitment to continue with at least the same level of funding. The outcome of the first revision suggests that the Cotonou Agreement, like its predecessor Lomé, seems likely to extend its boundaries, blurring the distinction between aid, trade and development (already smudged under Lomé) and international relations. However, there is also an indication that the EU has begun to map out a more socially aware response to dealing with Third World countries.

The EU in and around Europe: Economic and political development Closer to home, the EU has had to find an appropriate response to the fall of communism, especially those countries that are close to EU borders.

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The majority of central and eastern European states emerged by the end of the twentieth century from a period of dictatorship and unrest, with a relatively low state of economic development. For these countries, the EU, and particularly the prospect of EU membership, represents the potential for both peace and prosperity. Thus, one of the greatest challenges for the EU since the fall of the Berlin Wall and the break-up of Yugoslavia has been how to approach relations with European former dictatorships. None, to begin with, were thought to be suitable for EU membership, although eight countries were admitted in 2004, with two others to be admitted in 2007 (see Chapter 5). Negotiations for EU entry are quite far advanced for a few others, such as Croatia and Macedonia, but for the rest, membership is unlikely in the short term, given the political and economic differences that exist between them and the EU and given the EU’s own state of indecisiveness (increased because of the problematic status of the EU constitution). In addition, there are the southern Mediterranean states – close to the EU geographically, but not European, and hence ineligible for EU membership. They too suffer from varying degrees of political instability and low levels of economic development, and thus represent both a threat and an opportunity to the EU, in relation to its evolution towards an international identity. The EU has adopted a twin-hatted approach to most neighbouring non-EU states, whether or not membership is an eventual goal. It tries to improve their economic development and it assists in state-building. The two programmes, like the aid and development policies directed at the Third World, are linked together, so that development assistance is provided so long as state-building approaches receive a positive response. There may be an indication here that the EU is coming into its own. As shown below, the EU is beginning to develop what Manners and Whitman termed a ‘multi-perspectival’ style: working on different levels, engaging in inter-regionalism with other areas and operating across flexible borders by means of its policies for its nearest neighbours.27 European Neighbourhood Policy (ENP) The European Neighbourhood incorporates all those states that have come closer to the EU following the 2004 enlargement. Currently, ENP covers 16 countries. Six are in Eastern Europe and the Southern Caucuses: Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine; and ten are in the southern Mediterranean: Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, the Palestinian Authority, Syria and Tunisia. European Neighbourhood Policy derives in part from the 1995 Barcelona Process, which involves economic, social and political partnerships with the southern Mediterranean states. The ENP programme itself began in 2001, when the Commission issued a paper on the impact of enlargement on regions bordering the (then) candidate countries,28 and followed this up with a progress report in November 2002. The request from the Council for

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‘firmer proposals’ was met by the Commission’s document A Wider Europe that proposed ‘that the EU should aim to develop a zone of prosperity and a friendly neighbourhood    with whom the EU enjoys close, peaceful and co-operative relations’.29 The document suggested that the neighbourhood partners, and Russia, should be offered a stake in the EU’s Internal Market, in exchange for progress made towards the EU’s norms and values on the part of the ENP countries. The Commission followed up with an ENP Strategy Paper in May 2004, which set out the principles, geographical scope and methodology for implementation of the ENP.30 It suggested defining priorities for individual countries, to be based upon tailored Action Plans for each ENP state. These Action Plans were to be drawn up following Country Reports that covered progress in implementation of bilateral agreements and related reforms. The reports reflected the political, economic, social and institutional situation in the countries and focused on the priority areas of ENP. A Wider Europe also explained how financial support for the implementation of the ENP was to be provided. For the 2007–2013 period, the EU replaces its current TACIS and MEDA programmes in the ENP states and in Russia with a new financial instrument: the European Neighbourhood and Partnership Instrument (ENPI).31 Its budget will be E14.9 billion over the seven years, rather than the E8.5 billion covering the 2000–06 period. An innovative component of the new financial package is the matter of cross-border co-operation at the EU’s external borders. This addendum takes the new instrument beyond anti-poverty measures and sustainable development, and may lead to the ENP states increasingly participating in the EU’s Internal Market. Overall, flexibility can be discerned, but the notion of enlightened self-interest is also evident. The evolution of ENP has varied, depending upon the progress of the countries covered by it. Draft Action Plans with a first group of ENP partner countries, Moldova, Ukraine, Morocco, Tunisia, Jordan, Israel and the Palestinian Authority, were presented by the Commission in December 2004.32 The Moldova and Ukraine Action plans were adopted in February 2005, and Country Reports for Lebanon, Georgia, Egypt, Azerbaijan and Armenia were received in March 2005. Up to 2005, no Country Report had been issued for Algeria. The progress towards ENP with Belarus was stalled because its executive did not respond to the EU’s state-building requirements. Lukashenko’s government failed to implement democratic and economic reforms or to improve the human rights needed ‘to bring the country closer to European common values’.33 Lukashenko’s apparently undemocratic re-election in 2006 resulted in sanctions being imposed by the EU. Similarly, little progress was made with Syria, after the disappointment of the limited impact of the new President Bashar Al-Assad (2000) on Syria’s record on human rights and democracy. No progress has been made with Libya, and the EU has no formal relations with the state, except that Libya has observer status within the Barcelona Process. Again, the problems are socio-political, rather than

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economic. Libya’s record on human rights is the main sticking point, particularly its treatment of suspects and its refusal to abolish the death sentence. The EU does not pretend that its approach towards its new neighbours is entirely altruistic. As Benita Ferrero-Waldner, Commissioner responsible for ENP, put it:34 The European Neighbourhood Policy is a new policy that invites our neighbours to the East and the South to share in the peace, stability and prosperity that we enjoy in the European Union and which aims to create a ring of friends around the borders of the new enlarged EU. In fact, the ENP states are intended to remain good friends only. They are not to be invited to marry into the EU family, although some, notably Ukraine, have proposed and been rejected on a number of occasions. The EU, reflecting its approach to the Third World, offers necessary – humanitarian – aid, and will assist development so that countries can evolve into effective trading partners, but it has expressly ruled out further commitment towards them. This limited promise may inhibit the EU’s development as a ‘soft power’, unless trading agreements provide sufficient inducement to potential partners to incorporate European values. The EU and state-building in the wider Europe State-building as an activity falls under the heading of foreign policy. It is a political activity, and it has the long-term result of protecting the EU’s own interests. However, it is a non-traditional, and rather modern and progressive foreign policy in that it is not pursued by either diplomatic or aggressive military means and is directed (albeit, as with ENP, not altogether altruistically) at the interests of another state. State-building, moreover, although it may make use of military force, is protective rather than hostile, although it may need a redefinition of the term ‘soft power’.35 The EU has had some success in state-building. It has policies covering the former Yugoslavia states of Bosnia-Herzegovina, Croatia, Macedonia and Serbia-Montenegro, with Albania. All of these states are part of the EU’s Stability Programme for South-East Europe, and most have association agreements with the EU that contain trade, aid, cultural and political cooperation aspects which have as their main purpose the promotion of, and assistance with, internal reforms and development. In Bosnia and Herzegovina in 2003, the EU took over police training from the United Nations, and in 2004, it became the leader of the peacekeeping force there. The currencies are pegged to the Euro, and the EU is promoting taxation and customs systems, with the development of an independent judiciary. Braithwaite commented that whilst the 1995 Dayton Agreement provided the framework for the conversion of Bosnia, its long-term viability depends upon the continuous efforts of the EU’s institutions.36

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Nevertheless, whilst the EU helps to build states, it is not necessarily recognised universally as a state-builder, mainly because such efforts often go unnoticed except by those who benefit directly from them. As Manners and Whitman commented, the EU lacks the ‘hierarchical governance, fixed territory or clear boundaries’ of the Westphalian state. It is therefore unlikely to become a hard power in the Westphalian sense, because it lacks both the will and the legitimacy to do so. Manners and Whitman, however, emphasised that this was not necessarily a problem – an approach centring upon moderating conflict by means of encouraging the development of norms and values that make future conflict ‘not merely unthinkable but materially impossible’.37 These kinds of norms and values, of course, as Chapter 2 noted, reflect those cherished by the EC’s own Founding Fathers. However, such persuasive non-militaristic attempts may be undervalued because they are unstate-like. Some of Kagan’s comments, for example, although they appeared to applaud the EU’s peace-loving approach, also seemed to suggest that it is not quite as impressive as the kind of external politics practised by a proper ‘macho’ state. Kagan’s work drew a picture of a young, confident and decisive United States, contrasting favourably with an aging, milder and more timorous EU. Americans, he said, want ‘problems solved, threats eliminated’, whereas Europeans are ‘more tolerant of failure, more patient when solutions don’t come quickly’. Kagan admitted that the picture was composed of caricatures, but caricatures capturing an essential truth.38 Peace pursuits, including state-building, one infers, are not practised by the powerful, and as such remain a kind of second-order foreign policy, suitable for aging, rather than dynamic, powers. And they are not as exciting. Perhaps the EU is having the wrong kind of success to attract the respect of the international community. The Cyprus Problem An opportunity for impressing the wider world was provided by the Cyprus Problem, which presents a test on the EU’s ability to reconcile political differences based in high politics, rather than those that result from cultural and economic divergence. To date, however, the EU has failed, and its failure ironically may be presented as a result of its determination to depend upon persuasion rather than force. On the economic front, Cyprus gave few concerns to the EU when its application for membership was put forward.39 It was also able to close all but three of its negotiating chapters by October 2002. Nevertheless, those successes did not belong to all of Cyprus – just to the southern Greek part of the island. The other part is essentially a different country, albeit part of the same since 1960 when the island became independent. The issue dates from the 1974 invasion of the northern part of Cyprus (about 37 per cent of the whole, with about one-third of Cyprus’ population) by Turkish troops and the subsequent occupation of that part of the island

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ever since. It is a concern for the United Nations, as well as for the Greek Cypriot and Turkish Cypriot communities. The United Nations Resolutions 1218, 1250 and 1251, 1998–99, called for a peaceful settlement by means of joint negotiations between the two leaders. The Secretary General of the United Nations, Kofi Annan, was active in attempting to bring about a resolution to the issue by means of arranging ‘proximity talks’ between the leaders both through his representative and in person.40 There is still a United Nations Peacekeeping Force in Cyprus whose mandate began in 1964 and which has been periodically extended up to the present.41 However, the United Nations’ capacity to settle, as opposed to contain, the dispute was limited since it had only powers of persuasion to offer. The EU, on the other hand, had a tactical weapon in the shape of the prospect of EU membership. Cyprus’ Foreign Affairs minister, Ioannis Kasoulides, admitted, before Cyprus was accepted, that: ‘Our accession to the union would act as the catalyst for the settlement of the Cyprus problem.’42 However, to date it has not, primarily because the EU missed an opportunity to use EU membership to persuade Greek Cyprus. Initially, the EU utilised the carrot of potential membership quite effectively in regard to northern Cyprus by stipulating that whilst the Republic of Cyprus was admitted to the EU, benefits of EU membership would be extended only to the part that was recognised.43 This decision was important, since the unrecognised Turkish Republic of Northern Cyprus is much less economically advanced, and is heavily dependent upon Turkey. Hence, it brought the Turkish government onside, albeit reluctantly. However, the EU did not appreciate that this reduced the incentive on the part of the Greek Cypriots to come to terms with the Turkish sector. The Helsinki European Council, meeting in December 1999, replicated the shortsightedness in deciding to accept the Republic of Cyprus, with or without a political settlement,44 instead of making membership conditional on reunification backed by both sides. In the first instance, nevertheless, the decision provided a spur that drew the then President of the Republic of Cyprus, Glafcos Clerides, and the President of the Turkish Republic of Northern Cyprus, Rauf Denktash, into talks,45 along with the foreign ministers of Greece (Giorgos Papandreou) and Turkey (Ismail Cem). These talks were a step forward, but achieved little in practical terms,46 although the Commission noted, in its 2002 summary document, that relations between Greece and Turkey were improving.47 Because the EU did not recognise that the Greek Cypriots had little reason to support unification in the circumstances, its propaganda continued to be aimed at northern Cyprus. For example, Günter Verheugen, the former Enlargement Commissioner, assured the protagonists that effective EU membership for Northern Cyprus depended upon unity. Accession would not be granted to the Turkish Republic of Northern Cyprus separately, and it would not become part of the Turkish accession process.48 The EU stressed

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the need for Cyprus to exercise a united voice, but until the two sides were reconciled, it accepted that the ‘united voice’ would be that of the recognised Republic of Cyprus. Once Greek Cyprus membership of the EU was no longer in doubt, there was little incentive for the Greek Cypriots to compromise with the Turkish Cypriots, and in 2002 the Greek Cypriot President Clerides indicated his reluctance to do so.49 When talks between the two sides seemed to have led to stalemate, the United Nations Secretary General attempted to resolve the issue by suggesting a popular referendum immediately before the Cypriot accession – the Annan Plan of 2003. If the people voted in favour of unity, then the whole of Cyprus would join the EU. If not, then only the Greek part would accede. In April 2004, the referendum was held. The majority of Turkish Cypriots – 65 per cent – voted for unification (despite the opposition of Rauf Denktash). The Greek Cypriots, however, were motivated by fears of the economic impact of the poorer north, and their opposition was supported by their new President Tassos Papadopoulos, the media, most of the political parties and the Greek Orthodox Church. Seventy-six per cent of the Greek Cypriots (who outnumber the Turkish) voted against reuniting the island. The referendum therefore seems to have frustrated the potential for unification in the short to medium term. Although it was difficult to foresee the attitude of the Greek Cypriot people, the problem was heightened because of the EU’s approach. It did not lead the unification negotiations, preferring to leave the running to the United Nations rather than to act to resolve the political situation of its applicant. If the EU had been prepared to conduct the negotiations, adopting an international relations approach based on the prospect of nonEU membership vis-à-vis the Greek Cypriots, their government would have been more likely to support the prospect of reunification when the opportunity arose. In May 2005, Olli Rehn, the current Enlargement Commissioner, in a speech at the Cyprus International Conference Centre, Nicosia, pleaded for ‘reconciliation and vision, for courage and far-sightedness on both sides’,50 but there was little he could offer to the Greek Cypriots to persuade them to demonstrate those qualities. Cyprus has, as Rehn said, achieved EU membership, which means that the Greek part of Cyprus has become an equal partner within the EU, and that there are no legal means of preventing it from receiving the benefits due to a member state. The EU, therefore, has played its main card, and although, as Rehn pointed out, ‘the current status quo does not correspond to European norms’ there is little more the EU can do to talk the Greek Cypriots round. In fact, the EU’s own democratic principles make it more difficult to intervene after the referendum. The people of Cyprus have spoken, and although it is unfortunate that they collectively said the ‘wrong’ thing, their views have to be accepted, in accordance with the EU’s respect for democracy, unless, of course, they can be persuaded to change them.

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This deadlock, as with the French and Dutch rejection of the Constitution for Europe, characterises modern polities’ dilemma with democratic expression through a referendum. A referendum, as pointed out in Chapter 4, is a clumsy vehicle for democracy, but it can be an effective one for majority self-interest. Democracy theorists like Giovanni Sartori have wrestled with the anti-democratic potential of ‘one person, one vote’. Sartori noted that the principle does not take into account the level of interest that each voter has in the result, so that the votes of those with less to lose or less with which to concern them may outweigh the votes of those whose ‘intensity of preference’ is much greater.51 The stalemate that the referendum caused for the Cyprus Problem is an example of that particular kind of drawback. It need not, however, be seen as a setback for the EU’s ‘soft policy’ approach to the outside world – just as a warning to practise it more effectively.

The EU’s high politics – wars and all The EU does not restrict its foreign pursuits to enlargement, development and state-building within and outside its borders; it also has an embryonic foreign policy in the traditional sense. This kind of foreign policy, sometimes referred to as ‘high’ politics (presumably because of the level at which it takes place, rather than because of its odour), is usually interpreted as the pursuance of a polity’s interests as opposed to the political interests of countries outside its borders. A pursuit of this kind of foreign policy interests conventionally encompasses two broad approaches – diplomacy or military action. The EU does not have its own standing army in the traditional sense or weaponry, but it does have diplomats operating in every country outside the EU’s borders. Foreign policy interests themselves traditionally take two forms – security from external invasion and the addition of new territory. Since, as noted above, the EU manages to add new territory with the active complicity of those whom it incorporates, it leaves only security policy for the EU to manage. Hence the EU has a Common Foreign and Security Policy (CFSP), a Common Defence Policy (CDP) and a European Security Strategy. When crisis looms, none are found to be very wide-ranging nor do they seem to be very Common, although the EU has a better record in relation to managing chronic problems, as with its state-building activities within Europe. The failure of its military capability allied to the relative success of its normative approach again indicates the potential for the development of the EU’s international identity as a post-Westphalian polity. The evolution of high politics Little attempt was made to develop foreign policy in the early days of the Communities. Monnet and Schuman recognised that any such efforts would have been counterproductive, and, whilst Europe was divided, and the world

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itself seemed to be made up of the liberal west and the communist east, the input of a few European states would have been negligible. The arguments of the EC as ‘not-a-state’, and therefore having no territory or common interests to defend, were also applied. EPC, structured informally and without any enforcing capacity, therefore remained limited from the 1970s until the early 1990s. As noted in Chapter 2, the SEA gave EPC its own section, but it was not incorporated into the founding Treaties. However, the fall of the Berlin Wall and the ending of the Cold War changed matters. At the least, the Communities had to determine how to engage with the newly liberated European states, and to ensure that the enlarged Germany remained part of the European family. More ambitiously, the fall of Communism provided a moment that could be seized. More prosaically, the 1991 Gulf War had certainly threatened the Communities’ members’ interests, but it exposed the Communities’ inability to protect them collectively. The Communities lacked the competence to undertake more than the co-ordination of diplomatic action and the imposition of economic sanctions. Member states acted individualistically. Hence the 1992 TEU contained a Second Pillar: A Common Foreign and Security Policy, albeit equipped with decision-making methods decidedly intergovernmental and closely resembling those conducted under the Third Pillar (see Chapter 5). A High Representative was appointed under the TEU.52 Under the draft Constitution, that role would have been upgraded to a Union Minister for Foreign Affairs, empowered to conduct the EU’s foreign policy and to put forward proposals to develop it in conjunction with the member states.53 The Second Pillar also set in motion the formation of a Common Defence Policy, as part of CFSP,54 with the assumption that the Western European Union (WEU) would implement the army-less and unarmed EU’s military policies. The Amsterdam Treaty put flesh on the bones with its Article 17, which gave a basis for the European Security and Defence Policy (ESDP). Primarily the policy was to be aimed at crisis management and peacekeeping activities, collectively known as the ‘Petersberg Tasks’ (after the town in Germany where they were formulated in 1992). It became clear that the Tasks could be undertaken effectively only when the EU had the capacity to deploy troops, and so the 1999 Helsinki European Council decided that by 2003 member states collectively should be required to have at hand military forces up to 60,000 strong, able to be deployed at short notice and able to perform the necessary peace-keeping functions – without, of course, prejudicing states’ own political autonomy.55 Similarly, civil forces of up to 5000 police officers are also to be held in readiness. Operations are confined to those that support the United Nations’ principles. Nevertheless, recent commentators56 have expressed concerns that the ‘militarisation’ of the EU under its security strategy may endanger the development of the normative ‘soft power’ approach as exercised by its treaty-and-trade initiatives (see below).

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The EU’s approach to security still reflects, however, Kagan’s characterisation of a Europe from Venus (see Chapter 3), as opposed to the Martian/martial United States. Kagan theorised that the EU was peaceable for two reasons. First, it was militarily weak, and secondly it was so because the United States protected it and its interests, although Kagan did not make it clear whether US protection enabled or ensured EU military weakness. Neither did his analysis extend to considering that there might be internal structural reasons why the EU’s members were moving towards what he characterised as a community based on the rule of law and transnational negotiation and co-operation.57 It might be suggested that the EU operates in this manner because it has no choice. So long as it is composed of sovereign states, whose leaders’ individual wills may not be overridden by the collective, negotiation and co-operation are inevitable. High politics and state sovereignty The approach has its drawbacks, however, as noted in Chapter 5, when policies considered to be the nub of state sovereignty remain embryonic even to the detriment of EU citizens. It is also disadvantageous in foreign policy where there are positions to be upheld – giving rise in part to Kagan’s analysis. EU’s activity in high politics is low level, because there is limited agreement amongst the major states’ leaders, and because they are protective of their foreign policy history and traditions.58 Much of this history and tradition is irrelevant in the twenty-first century and, where it is still significant, casts an unfavourable light upon the major states. The exploitation of the subjects of the former British Empire and the unhappy experiences of the inhabitants of France’s former colonies as they tried to shake off French imperialism do not provide the UK or France with much moral authority per se. Despite this, different experiences have provided both states with a distinctive approach, ensuring, even without the varying inputs of the other 23 states, that the EU does not develop a common foreign policy that can enable it to rise to the occasion when disaster occurs. This is unfortunate, because it means not only that the EU has no real and effective foreign policy in these circumstances, but that neither do its member states. The smaller states have (arguably) never had effective foreign policies – even their autonomy, inasmuch as it existed, historically depended upon foreign policy decisions made by more powerful states (see Chapter 5). The larger states have had conspicuous foreign policies in the past, as epitomised by their ability to wage war on one another, or to annex smaller states’ territory. They do not, however, have the capacity for effective foreign policy in the present – they have the choice of remaining under the (increasingly fragile) United Nations umbrella, or, where its policies differ, aligning themselves with the United States. Hence, one of the main areas that remains to be resolved is the EU’s relationship with the United States. Currently, the United States is the only

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world superpower, but it is neither as big, nor as highly populated, nor as rich in resources as the EU. It seems that some states, led by France and sometimes referred to as ‘old Europe’, would like the EU to provide some kind of rival, whilst others, led by the UK and some of the newest member states, would prefer a political alliance with the United States, leading to the establishment of western political hegemony across the majority of the world. Neither group is all that clear about its intentions, if only because to elucidate would itself imply that there is a foreign policy role for the EU. However, there have been several instances that illustrate the basic difference in attitude. Arms inspectors in Iraq The most recent example is the invasion of Iraq in 2003 – characterised by Hill as an initiative that none of the EU states, including Britain, would have embarked upon independently.59 When the United States acted, however, the UK joined in to the extent of providing manpower and weaponry under US command, despite the withholding of a United Nations resolution to authorise war; whilst France did all in its power to prevent action, including ensuring that the United Nations resolution was withheld. The EU’s CFSP was therefore necessarily absent during the conflict. However, an earlier episode relating to arms inspectors in Iraq – a prelude to the conflict – is as illustrative of internal division, although not as dramatic and less well documented. Examining the approaches taken by the various participants shows that the EU’s response to the actual invasion was predictable. By October 1997, Iraq had been subject to inspections from the United Nations Special Commission (UNSCOM) and sanctions for seven years because of its apparent failure to dismantle its weapons of mass destruction after the 1991 Gulf War. In October, the United Nations threatened Iraq with further sanctions, including a ban on travel abroad by Iraqi officials, unless it improved its co-operation with the United Nations arms inspectors. Iraq, suspecting that the United States was behind this move, responded by barring Americans from inspection teams on its territory, and gave them a week to leave the country. After another statement of defiance by Iraq, UNSCOM suspended all of its field operations and the United States refused to rule out any option, including military action, in reaction to the bar. France, with Russia, hoped that the crisis could be resolved peacefully, but cautioned against unilateral anti-Iraqi action. Further posturing on the part of Iraq, which threatened to shoot down U-2 spy planes flying over its territory, whilst refusing to admit three American members of the United Nations team arriving to continue with the inspection, was followed by intercession by the United Nations Secretary General, Kofi Annan. He persuaded Saddam Hussein, the Iraqi leader, to defer further action until his envoys had visited Baghdad to assess the situation. The envoys were unsuccessful in persuading Iraq to permit the full

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resumption of arms inspection, but the Iraqi Deputy Prime Minister offered to undertake ‘constructive dialogue’ with the United Nations and UNSCOM, whilst permitting the US inspectors to remain. In the meantime, the United States continued to send U-2 planes over Iraq, without incident, although the Iraqi foreign ministers said that the U-2s were regarded as ‘alien aircraft’, and US weapons inspectors were given limited access to Iraqi sites. At the same time, several hundred Iraqi families headed towards the presidential palaces claiming that they would act as human shields in case of US attack. In November, the United Nations Security Council60 unanimously imposed an international travel ban on Iraqi officials and condemned Iraq for blocking American arms inspectors. It threatened further, but unspecified, measures if Iraq failed to comply. Iraq responded by expelling American arms inspectors immediately, and the whole United Nations team withdrew in protest. No dissent was observed amongst the United Nations Security Council members up to this point. However, by mid-November, the then US President, Bill Clinton, had sent a second US aircraft carrier to the Gulf, and the UK immediately supported the action by placing a squadron of warplanes on 48-hour alert, without consulting co-members of the United Nations or of the EU.61 Further, in January 1998, a British aircraft carrier, later joined by RAF and Royal Navy Harrier bombers, was sent to the Gulf. George Robertson, the then UK Defence Secretary, said that this should be taken as an indication that the UK was ready to use force if diplomacy did not work62 and Blair and Clinton made a joint radio broadcast giving warning of the use of military action.63 The position of UK and US (still pursued without consultation) was not supported by the other members of the Security Council. Amongst the EU major states, the French, in particular, were antagonistic towards military action. The French Foreign Minister, Hubert Védrine, opposed the use of force, stating it to be both undesirable and ineffective, and Chirac was said to prefer a diplomatic approach.64 Germany’s position was between the two – offering the United States use of its air bases in case of war, but trying not to oppose the French approach openly.65 The crisis passed, however, for the time being. In February 1998, Kofi Annan secured a deal allowing United Nations arms inspectors full access to Iraq’s suspected weapons sites, and offering the promise of lifted sanctions, which was presented to the Security Council at the end of the month.66 The announcement was greeted with relief by the EU General Affairs Council,67 but the UK and France, the only EU states to be permanent members of the Security Council, again took different approaches to the wording of the United Nations resolution that followed. The UK’s language at the Security Council, like that of the United States, was aggressive, rather than conciliatory, pointing to the ‘severest consequences’ if Iraq did not live up to the deal, and the wording was repeated in the Security Resolution, SCR 1154, agreed in March. The French view (with China and Russia) was less harshly

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expressed. The EU Presidency, which was held by the UK, did not convene a meeting of the EU-15 at any point, but it declared its welcome for the Resolution, noting the threat of ‘severest consequences’ for non-compliance.68 The US and UK forces remained in the Gulf – just in case Iraq failed to honour the agreement. Willem van Eekelen, former Secretary General of the WEU, commented that the 1997–98 Iraq crisis did not ‘augur well’ for the development of CFSP, given the opposing positions of the UK and France at the Security Council. He suggested that the reason for the failure of the UK Presidency to convene the EU-15 was because it knew that consensus would be unlikely.69 The invasion of Afghanistan A second example supports van Eekelen’s thesis. Less than three years after the arms inspectors in Iraq crisis, the issue of foreign policy occupied the attention of the whole world when (apparently) Taliban-inspired suicide pilots flew into New York’s Twin Towers with devastating consequences. Like the rest of the international community, the EU was quick to voice its horror following the events of 11 September 2001. Romano Prodi, then President of the European Commission, expressed ‘   the need to send the strongest possible signal of European solidarity with the American people’ and said that he would ‘call for a common European approach to all aspects of this tragedy    ’.70 The EU’s heads of state and government, the Presidents of the EP and Commission and the High Representative jointly promised that ‘The US Administration and the American people can count on our complete solidarity and full cooperation to ensure that justice is done    ’.71 The United States almost immediately launched a counter-offensive by invading Afghanistan, the centre of the Taliban regime held to be responsible for the attacks. When the attack began in October 2001, again the EU collectively indicated its backing. For example, the EU General Affairs Council stated its ‘wholehearted support for the action that is being taken in self-defence’.72 These initial responses, however, give an inaccurate picture of EU unity. The overthrow of Afghanistan’s Taliban regime was accomplished within a couple of months. Even so, victory was delayed sufficiently so that Chirac had time to emphasise the need for a diplomatic, rather than a military, solution to the problem, giving warning of cracks to come in anything like a joint policy approach on the part of the EU’s states – let alone on the part of the EU itself. In practice, various member states reacted idiosyncratically. The UK immediately allied itself with the United States, giving military support, whilst paying lip-service only to consulting EU allies. Italy was lukewarm, and its people mounted peace demonstrations. The Belgian Prime Minister, Guy Verhofstadt, was initially supportive, but became more cautious, whilst his foreign minister, Louis Michel, accused the UK of being ‘bellicose’. Germany was divided about the usefulness of the action.

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More than the different positions taken up, however, the way in which the member states’ leaders handled the issue in terms of foreign relations illustrated the limited respect that they held for common foreign policy. The French president called a mini-summit in October 2001 to discuss the Afghanistan affair, but he invited only UK and German leaders to attend, to the irritation of their EU fellow members. Although he justified this action by pointing out that only those three countries had been asked to provide military assistance, the implication was that this was a meeting of the leaders of three sovereign states, convening outside the EU forum, rather than taking part in discussions within it. This interpretation was strengthened when, following the protests, Blair called a second meeting in November to discuss Afghanistan, inviting the Italian, Spanish and Belgian prime ministers, as well as French and German leaders, to attend. The status of this meeting was hazy because Javier Solana, the EU High Representative, was invited as well. Still, it was made clear that the meeting was called outside the formal EU structure – the meeting was convened by a leader of a major state, not by the current EU president, although, since Belgium held the rotating EU presidency, the EU president attended it. Also, a special EU summit would have included all EU leaders, as well as Commission representatives. None was called. Hill called the affair ‘a humiliating public demonstration of the tensions between national and collective criteria and between the stronger and weaker members of the European foreign policy system’.73 One of the significant aspects of this particular event is that it shows that the EU was unable to adopt a joint, still less common, approach even in a situation where one of its core values – democracy – was apparently threatened directly. This impression results partly from the manner in which EU leaders conducted their discussions, and partly from the autonomy exhibited by the UK when it committed itself to the United States without prior discussion, behaving in the same way as it had acted in the case of the barring of arms inspectors in Iraq. The idea of the EU developing a common approach was made irrelevant before any of its members had the opportunity to consider it. Peacekeeping, diplomacy and the EU’s foreign policy agenda The EU approach in these kinds of situations was further demonstrated during the Iraq War. This conflict, seen from the perspective of EU solidarity, indicated that member states slipped effortlessly into the same kind of positioning whose tracks had been laid down by the first invasion of Iraq. In doing so, they acted as if they had forgotten that they were members of the EU and thus endangered EU unity. If this kind of example of the EU’s foreign policy excursions were the only kind available, the potential for the EU to gain international respect, and through that internal approval, would be extremely limited. However, not all modern foreign policy falls into the category of aggressive intrusion (however justified) into other states.

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Smith pointed out that the EU’s foreign policy was not formulated as ‘high politics’ – as a end in itself – but rather as a means to an end: to prevent international issues from disturbing Community business, and, albeit as a secondary objective, to insert a common European approach into the international community. In these aims, Smith commented, the EU has enjoyed relative success to the extent of increasing its authority within the world.74 As shown above, the EU has a practical day-to-day approach to issues such as state-building. It has also succeeded to some extent as a peacekeeper. The EU’s leaders have taken some of the steps needed to equip the EU for such a role – for example, the Helsinki decision (see above), which was elaborated by the 2001 Council regulation that put in place the Rapid Reaction Mechanism (RRM).75 The RRM enables (hopefully) speedy, temporary (in place for no longer than six months) and flexible responses to potential crisis situations, where there exists no other EU instrument that authorises activity. Whilst the level of success depends upon many factors relevant to individual situations, the RRM instrument, in the hands of the EU’s administration, provides a less emotive means of external intervention than occupying or attacking others’ territory. The RRM is not the only means whereby the EU can practise its foreign policy. The EU also has its diplomatic side, and, it is here, as with its statebuilding amongst its near neighbours, and with the ACP countries, that there are increasing signs of the EU developing an international identity. For example, Szymanski and Smith noted the significance of the 2000 EUMexico Global Agreement. It was the first pact accepted by Mexico to impose successfully conditions relating to democracy and human rights, which the EU termed ‘a partnership between equals’,76 using a similar language and methods as those applied in its state-building activities. Szymanski and Smith suggested that the Commission’s Machiavellian and relentless approach was primarily responsible for the success,77 implying that so long as state sovereignty is not an issue, the EU’s methods can achieve results. Indeed, Braithwaite suggested that measuring the EU against the criterion of its inability to manage crises meant that attention was distracted from the positive aspects of the EU’s external activities. Manners and Whitman went further in pointing out that the language of international relations was itself written in accordance with Westphalian state-based norms reflecting distinct boundaries and self-defence, and was therefore ill suited to define, in positive terms, the manner of the EU’s external activities.78 Braithwaite added that as a ‘Committee-led’ institution, the EU was ill-suited for making the kind of rapid and risky decisions demanded by crises. But this kind of institution was good at the long-term ‘grind of process and standards’ required for managing chronic conditions, and so the EU had proved.79 The EU, he noted, had a talent for gradually transforming unstable regimes. Braithwaite’s argument suggests that the EU is not, as Kagan suggested, from Venus; rather it is from Saturn – essentially patient and benign, but ponderous and big enough to

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impose. However, there is no doubt that state-building and peacekeeping activities can only work if they are welcomed, and the fact that the EU has managed to help to transform at least the parts of Europe that now comprise the EU, as well as gaining modest success outside the continent, suggests that its efforts have been received positively. An explanation for the EU’s achievements was provided by Chalmers who argued, similarly to Manners and Whitman, that from the point of view of transformed states, the EU was successful because it was not-a-state in the empirical – and imperial – sense. It could intervene effectively in others’ polities precisely because it was not trying to make them subject to a higher power. Chalmers pointed out that, instead, membership on equal terms, and only with the consent of the state in question, was the limit of the EU’s intentions within Europe,80 whilst mutually beneficial associational agreements were the ultimate goal outside it. Paradoxically, within Europe itself, it is more likely to be those that are states not offered EU membership that are seen as being hard done by, rather than those who are assimilated by the EU. Chalmer’s point is valid, although, however benign the EU’s statebuilding and peacekeeping activities are, like ENP, their aim is essentially homogeneous – the formation and preservation of states that fit the EU model and provide it with effective trading partners. The extent to which this is really respectful of state sovereignty is open to question – as Sjursen asked, can we be sure that the EU’s norms ‘ought’ to be exported?81 – although the irony seems to have escaped EU leaders’ attention.

Enlargement and the international community Another question relating to international approval is the impact of enlargement on the EU’s external relations. As shown above, the EU has not so far succeeded in speaking with one voice when crisis issues arise. The assumption could be that this disunity would increase with enlargement, since it obviously leads to further heterogeneity.82 There are currently eight more former Communist states to assimilate; as well as Malta and Cyprus, with its unrecognised government of northern Cyprus. This means that there are ten additional EU states that have a variety of foreign policy issues. Incorporating these states is a first step. The second step is using the enlarged EU as a basis from which to develop the EU’s relationship with the rest of the world. Günter Verheugen initially expressed fears that enlargement might be too successful in this respect. In his 1999 hearing with the European Parliament, he commented that conflict could arise because of the perceived contrast between a prosperous and contented enlarged EU and its immediate neighbours: As for a shift in the border between rich and poor in Europe, the possibility that the EU’s external border will become a border between rich and poor

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really is one of the biggest dangers and the gravest risks that we have to face. This must not be allowed to happen. It is therefore important that we increase, rather than reduce, the opportunities for developing trade and other relations between regions, i.e. regional links between countries that have just joined the EU and their eastern neighbours. As we have shown (see above), following enlargement, the EU developed ENP for the purpose of addressing this issue. The other issue relating to enlargement is the impact the new states’ approaches to the rest of the world had upon the impression of the EU as a benevolent neighbour. Meeting the acquis In practice, there seems little about which to be concerned. When measuring the candidate countries against the EU’s acquis, a chapter (27) on foreign and security policy was included. It covered essentially three areas. First, an applicant needed to demonstrate its capacity to contribute to EU initiatives; secondly, it needed to share the EU’s broad positions on foreign policy, including international peacekeeping; and thirdly, it should have achieved reasonable relations with its neighbours and, where applicable, traditional adversaries. The EU was not anxious to import strained foreign relations. In fact, the foreign and security policy chapter was closed provisionally early in the negotiations by all countries. No state took longer than two years to achieve closure, suggesting that this was a relatively easy set of conditions for the applicant states to fulfil. The Commission was satisfied that each country had made sufficient substantial as well as formal progress to be included in the acquis and no countries asked for transitional arrangements. The candidate states satisfied the criterion of being able to contribute to EU initiatives. According to the Commission’s Regular Reports of 2002, all, with the exception of the Czech Republic and Estonia, were able to contribute to the EU’s Rapid Reaction Force; all were ready to be associated with the EU Police Force/Mission, except for Estonia. Meeting the criterion about sharing the EU’s broad foreign policy positions was similarly unproblematic. All accession states were said to be in alignment with the EU’s statements and declarations and to have associated themselves with EU joint actions.83 The Commission’s 2004 pre-accession report simply recorded formally that all acceding countries would take over and implement the acquis under Chapter 27 from the date of accession.84 Heterogeneity and harmony More concern had been expressed about the EU’s newest member states’ relations with their neighbours. For example, in their book published in 1998, Nello and Smith argued that enlargement could lead to problems with Russia.85 The new members, they mused, could ‘push for a harder stance’ against Russia, which would make it difficult for the EU to continue with

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its attempts to strengthen political and economic relations with it. If that did not happen, Russia might make itself difficult with the EU, by trying to push it to improve Estonia’s treatment of its Russian minority, for example. How, Nello and Smith wondered, would the EU handle that issue, should it arise? In any case, the EU would inherit any former poor relations between the CEECs and non-accession central and east European countries. These predictions do not seem to have been borne out by events to date. In general, the applicant states appeared to have settled any differences with their neighbours and traditional enemies (Cyprus apart, see above). The Commission, in its Regular Report on Estonia in 2002, stated that: ‘Relations with Russia have remained stable’, and was satisfied that Russian-origin minorities86 were being treated with more fairness in terms of their language and voting rights.87 A border agreement with Russia had been formed and, although not formally ratified by the Russian parliament, was being applied in practice.88 Latvia, Lithuania and Poland were also reported to enjoy good relations with Russia. Cyprus and Malta had ‘constructive’, ‘intensive’ relationships in their areas. Additional funding for cross-border co-operation programmes for Slovenia had led to strengthened relations with Austria, Hungary and Italy. The only outstanding issue listed by the Commission in its 2002 Regular Reports concerned Hungary. Its General evaluation on Hungary’s readiness was the only one of all the reports to highlight concerns about the chapter on foreign and security policy. Whilst Hungary had constructive relations with its immediate neighbours, it had encountered some tension with Romania and Slovakia regarding the Law on the Hungarian Minorities Living in Neighbouring Countries, adopted in June 2001, promulgated with insufficient consultation. The Commission stated that this needed to be resolved and to be aligned with the acquis when Hungary joined the EU,89 although it did not prevent Hungary’s chapter on common foreign and security policy from being closed. The picture that emerges shows an enlarged EU in which former differences amongst its new members have been primarily resolved, and which is at least as able to speak with one voice as its smaller predecessor. This may be a limited vision, reflecting only the reality that, as noted above, the EU’s foreign policy is embryonic, and that ‘common positions’, as also indicated above, are often so broad as to be lacking in content. Enlargement, in this respect, may make little difference. However, there are signs of increasing authority to be found in the readiness of new states to involve themselves in foreign policy initiatives. It may be that the newest states, not fully conscious of the problems surrounding the development of new foreign policies, but entirely aware of their own difficulties in that field, will encourage a larger EU to move forward faster towards converging its foreign policies at least inasmuch as it affects its newest members. International opinion may, therefore, be influenced by small, as opposed to all-encompassing initiatives in the field of foreign policy.

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Conclusion: the EU’s external performance legitimacy and the ‘four Europes’ Monnet and Schuman offered little guidance to future EU actors in terms of the Communities’ relations in the wider world. The idea that the EU could become a deliverer of world peace or that it would ever feature prominently in terms of aid and development for less prosperous parts would have seemed imaginative in the 1950s. On the contrary, Europe had been a focus for a half century of war, which had destroyed and worn out a large part of its own industry; it was still bitterly divided and it had had trouble enough feeding itself for a large part of that time. The only possible relationship between the Communities and the rest of the world that was foreseeable in the early days was based upon trade. As seen above, trade is still a powerful motivator, but the development of trade turned out to have a number of dimensions attached – such as aid, development and state-building. Hence, these aspects of the EU’s activities have evolved in accordance with neofunctionalist theory – which would not have surprised the EU’s Founding Fathers, who, as seen in Chapter 2, expected that one thing would lead to another. The Technocratic Europe still plays the part designated for it in some way, even though extended to areas unforeseen initially. The EU’s response to humanitarian aid and its linking of aid to development and then to trade are essentially technocratic and pragmatic – the approach of the bureaucrat, rather than of the visionary. State-building within and outside Europe too, although supported by political decisions, appears primarily to belong in the practical, technical side of the EU. Chronic situations, as Braithwaite noted, are suitable for the attentions of non-political actors. As suggested above, the EU is gaining something of a reputation as being a force for this sort of peace and prosperity within the wider world, although it may take time before this characterisation of the EU will filter down towards its current citizens. Should it do so, though, there is a prospect of heightened legitimacy. An EU that managed to show itself as a progressive dealer in foreign policy, acting with enlightened self-interest, sometimes even with disinterest, could well prove to be an attractive model for its citizens to respect and with which they could identify. ‘We, in the EU’ could have ‘our way of spreading the modernising and progressive message abroad, in contrast to the more backward polities that still depend upon “old-fashioned” force and threat’. This kind of enterprise may be strengthened by means of the Multi-level EU, whose experiences of co-operation and shared responsibilities can be applied to wider situations. This point was noted by Manners and Whitman, who thought that networks bound up with the EU, containing a non-hierarchical collection of states, sub-national regions, interest groups and companies, co-ordinated by the Commission, helped to shape its

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international identity.90 Szymanski and Smith, in their case study on the Mexico Global Agreement, credited its success to the EU partnership principle, a term frequently used (although with varying levels of accuracy) within multi-level governance-type projects. The Federal Europe, should it develop, could evolve along these lines. The Holy Roman Empire (see Chapter 1) had its own distinguishing characteristics, combining conquest with benign neglect for most of its time. A federalised EU could represent an alternative picture of assimilation mingled with benevolent, but attentive, disinterest – at least unless its trading policies were threatened. It is true that trading policies, or more accurately, protection, subsidisation and dumping are not practised in a very disinterested manner currently, but the EU may be forced to open its markets by international organisations such as the WTO. The WTO has the political, if not the legal, power to do this, and the EU is only one of its decision-makers. Hence, that particular problem may be resolved in the long run, although, of course, it may create others if real free trade does not prove to be a solution to world poverty and want. The trouble is that not all foreign issues can be easily assimilated into this kind of mode. There is still high potential for divergence – real or imagined – of interests. Foreign policy as determined by the pursuit of selfish concerns is the kind of foreign policy that gets noticed; it is this kind of foreign policy that is controversial; and it is this kind of foreign policy that in practice still determines the essence of a polity. At this point, State-Centric Europe takes over. CFSP and ESDP still largely exclude all but state-based actors and there is no prospect at present for the EU to develop a unified approach by means of decision-making on the part of its political leaders. There are a number of historical, cultural and political reasons why they, or at least the more significant of them, cannot agree. In any case, overriding the concrete reasons, national leaders also have a vested interest in not agreeing with each other when crises emerge. If the EU were to put forward a common approach towards a future Iraq or Iran, it would imply that the EU was taking on the characteristics of the empirical state – thereby undermining nation state sovereignty. In such a case, there would be a great deal of difficulty in ensuring that the language used conveyed the right messages – that the EU leaders stood together, but somehow separately and only because they happened to agree; that agreement should not be seen as setting any kind of precedent, let alone one that involved the EU collectively; and that in any case, the EU’s activity would be delegated to a suitable United Nations body – but the linguistic effort would be made, nevertheless. To date, EU leaders have not needed to use this approach, because the major crises that have taken place have touched upon established fault lines – particularly regarding US–European relationships.

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There appears to be no likelihood of resolution here. Previous leadership changes within member states have made only small adjustments in practice. If the EU’s performance legitimacy depends upon further substantial integration in foreign and defence policies, then further progress is problematic. For the foreseeable future, therefore, it appears that the EU does have the capacity to identify itself as a foreign actor, but only to the extent that it has the capacity to rewrite the language of international relations.

Conclusion

We can see from the description of the four Europes how legitimacy relates to the complexity of the EU. The Technocratic Europe consists largely of regulation, and requires legitimation more as regulations and rules increase. The suggestion has been made to reduce them, and simplification would help. However, it seems unrealistic to expect that any reduction would be noticeable enough to provide a positive legitimating factor. The average small businessman, for example, could heave a sigh of relief as one piece of red tape is removed, but is unlikely to think that the disappearance of one rule makes all the rest perfectly acceptable, and thereby transform his resentment of EU regulation into contentment with the system that delivered it. Nevertheless, as Chapter 6 showed, Technocratic Europe, for example by exercising the EU’s ‘soft power’ in sensitive areas in non-EU states, has potential to enhance the EU’s world standing, and thereby add to its citizens’ sense of identification. In theory, State-Centric Europe makes the question of EU-based legitimation superfluous. The EU has no need of its own legitimacy, because decision-making within it is conducted by means of international (supranational?) relations amongst representatives of member states. This argument has been advanced by a number of commentators, but there are three problems with their assumptions, even if the doubtful provenance of member states’ claim to representation of their heterogeneous citizenry were to be ignored. First, sometimes outcomes of negotiations are popularly unacceptable, either within individual member states or, in their effect, within the EU as a whole. Secondly, as Scharpf has pointed out, decisions tend to be ‘sub-optimal’ sometimes to the point of being useless, so that EU performance is not improved to any degree. Thirdly, member states’ legitimacy is not as secure as it was, and this can only deteriorate insofar as their capacity to deal with problems reduces.1 A fourth point is that the State-Centric EU co-exists with the other Europes, and their doings impact upon decisions made (or not made – things happen, even in the absence of decisions) in the Council. 170

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The third Europe is the Multi-level polity. To some extent, there is potential for the Multi-level polity to generate its own legitimacy. The system operates in a number of ways, but there is a general tendency towards co-operation. One level of governance cannot move effectively alone, and co-operation leads to the sense of belonging and identification, which is a component of legitimacy. A second advantage for legitimation is that multi-level polity includes a large number of participants, who both gain and confer legitimacy by means of their activities. However, there are equally clear obstacles for legitimacy within the multi-level polity. First, it operates only within restricted spheres at present, and those spheres do not include the areas of greatest importance, such as justice and home affairs or the traditional form of foreign policy (although there is a possibility within the ‘soft power’ area of the EU’s activities). Hence the potential for multi-level governance to address significant problems is limited. Secondly, although the multi-level polity includes a large number of participants, it is still excessively exclusive, involving only a small proportion of the EU’s citizens overall. This small proportion may all be players on the EU stage, but by definition this gives them little in common with those who are not involved. So far, the fourth Europe – the Federal Europe – exists (apart from in the purely technical sense) only within imaginations, and these have such varying visions that it is difficult to estimate how legitimation would work in it. At the least, however, the Federal Europe would be an integrated Europe, and this book argues that integration is at the core of the issue of legitimacy, but for the opposite reason to that normally cited. It is not that further integration depends upon increased legitimacy, but that increased legitimacy depends upon further integration. A more fully integrated polity can be both more democratic and more effective.

Towards legitimating principles for the EU The nation state is an artificial and relatively recent construct. Therefore, the idea of it having interests that can be defended at a higher level is dubious. In the EU (and in other multinational organisations), the gap is bridged by national actors making the fictitious assumption that its people are sufficiently homogeneous for them to aggregate their interests within ‘national interests’. The fact that few of the EU’s nation states encompass homogeneity is effectively ignored. Rousseau commented that only individuals can only represent themselves – that is, that no-one can represent all interests (and that groups cannot represent the interests of all of their members), and, conversely, that the individual alone can represent her/his separate set of interests. If this observation is accurate – and it does seem intuitive – the claim of nation state actors to represent ‘their’ countries seems spurious, and it becomes a shaky basis for EU legitimacy, as argued above (see Introduction). Difficulties arise within nation states, as well as within

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the EU, as soon as popular interests become bound up with variations in, for example, culture, tradition, religion and nationality. The EU does not have a monopoly on the issues caused by heterogeneity, and it is therefore illogical to make intra-EU divergence the argument for the continuance of a state-dominated Europe. In any case, the means whereby nation states have dealt with the problem of heterogeneity have a doubtful democratic basis. Only majorities (or largest minorities), commanding the largest shares of the votes, may be represented satisfactorily, and this has meant that non-political differences sometimes achieve a totemic status, so that ‘politics’ becomes synonymous with, or shorthand for, a bundle of cultural, traditional, religious and regional distinctions. Where this problem has been contained, it has been by means of liberal governance – a lightness of touch when it comes to law-making that enables different groups to rub along together, with their ‘otherness’ respected within the rule of law. This option is also available to the EU – more particularly since, unlike most of its member states, its borders are elastic. Liberal governance, based on the rule of law, therefore, seems a useful initial legitimating principle for the EU. Institutionalising this principle is not likely to be difficult, given that in theory and in practice the EU has always operated on a basis of not acting unless it is necessary, and given that it, above all multinational institutions, has a formal legal basis. An adjusted Technocratic Europe could epitomise the liberal governance principle, although the EU would have to ensure that liberalism did not become deformed by means of bureaucratic creep. However, there are groups within the EU that would not benefit from rulebased limited governance alone. These groups, primarily, are those whose ‘otherness’ has not been accommodated satisfactorily within nation states, or those who are effectively state-less (e.g., the Roma). For the first, the EU already represents a hope – the notion of a Europe of the Regions has been an attractive one for many non-state nationalities, since the EU gives them a second chance to acquire political legitimacy based upon parity of esteem. For the second, the EU presents an opportunity, expressed in terms of Batt’s ‘fuzzy statehood’ (see Chapter 5). A second potential legitimating principle for the EU is therefore a new form of representation – accommodating and respecting, but not sanctifying, sub-national and non-state groups. It would, though, mean abandoning state-centricity. The nation state’s significance would either be obliterated, or, more practically in the short to medium term, the nation state would be regarded as no more (and no less) significant than other groups. Institutionalising this principle would be extremely difficult, given that powerful actors within the EU have a natural interest in retaining the status quo. In addition, the new form of representation would be untidy, since different kinds of groups would need to be included with roughly equal powers, but organised in different ways. This difficulty would be minimised, however, since the EU has always been accustomed operating in accordance

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with parity amongst its member states, even though they are of very different sizes and significance. At any rate, Federal Europe, albeit reformed from the current ideal, offers some prospects for improving representation. Yet, Rousseau’s point is not entirely satisfied by way of new forms of liberal governance, rule of law and representation. The means whereby individuals represent themselves need to be taken into account. Popular voting may become more significant, but it is not enough so long as interests continue to be aggregated. Alienation of citizen from governance is a relatively new phenomenon, achieved by means of a combination of democracy, which has raised expectations, and of the prevalence of the mass media, which has dampened them. Contrary to the Commission’s assumptions in its White Paper on Governance, knowing more tends to increase cynicism, not affection. Popular participation, however, either in terms of activity or in terms of decision-making, has potential to remake links. Effective participation as a third legitimating principle for the EU is more problematic than the other two, however, since it appears to require sacrificing both of them, as well as setting in place a notion that is likely to be resisted by most of the EU’s current powerful interests.

Incorporating the principles Nevertheless, drawing together the evidence presented in this book, Chapters 1 and 2 implied first that more and deeper legitimating factors based on those principles are needed for the EU at its present state of integration than they would be for a loose confederation. Secondly, it was noted that the EU has, for most of its history, overreached itself with regard to what its citizens are prepared to tolerate in the absence of full popular accountability or control as shown in the Chapters 3 and 4. Thirdly, if we rely upon performance to achieve legitimacy, Chapters 5 and 6 showed that, whilst there are grounds for optimism, it depends upon re-conceptualising the role of a modern polity. A fourth point, developed throughout the book, was that legitimacy is a complexity, made up of a number of factors. It was implied also that means of legitimation need to be rethought to develop forms of legitimacy appropriate to a situation that can no longer depend upon deference, given that popular awareness is heightened by means of the mass media, and that popular demands increase proportionately with popular benefits. We showed in Chapters 3 and 4 that both liberal representative and participatory democracy still have potential as legitimating factors, but that they do not work too well within the EU. The main reason for this is that the EU, because it is regarded as ‘not-a-state’ in the Westphalian mode, has no powers to put them into practice. As Chapters 2 and 3 demonstrated, liberal representative democracy was grafted onto the EU, and was limited, deliberately, to voting for the EP. It is unclear whether this concession was a

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genuine intent to bring in democracy or a cynical exercise in pretending that the (then) Communities really were popularly accountable, or whether it was undertaken from a mixture of motives.2 Whatever the intent, however, it failed substantially. The chicken-and-egg situation is appropriate to the EP. Because the essence of the Communities was indeterminate, electors could not be sure why or for what they were voting. The outcome is that the EP is not terribly representative, both in terms of its complexion and in terms of the limited proportion of votes that put it in place (this particular issue is intensified with each successive EP election). Because the EP is unrepresentative and not very popular, its powers have been slow to develop. It may be contended that the EP is a ‘proper’ parliament, especially with its codecision powers, but it may also be contended that it is not, since it lacks one important ingredient – the power to scrutinise the executive as embodied in the Council. In any case, so far there has been an inverse correlation between the increase in EP powers and voting levels at EP elections. The EP gains powers, but an increasing number of voters effectively lose them because of their decision not to vote. In terms of what can be done to resolve the paradox, the only appropriate answer on the face of it seems to be the helpless reply in the old Irish joke ‘if I were trying to get to    , I should not start from here’. Yet, impotence is not the only response. Further powers, not to the EP but to the EU, could start the process of bringing the EU’s Council executive under democratic control. The Commission’s exercise of executive powers is already accountable to the EP. If the Commission’s competences were increased (with a corresponding reduction to the Council’s powers), increased accountability would then follow automatically. However, this is not the whole answer either, so long as the Commission is appointed by member states’ governments. Citizens are unable to exercise any control over such appointments, other than very indirectly by means of a general election. A directly elected Commission, or at least a directly elected Commission President, empowered to act on behalf of the EU, scrutinised by the EP, would make liberal representative democracy a reality within the EU. It is possible, although less likely, that a directly elected Council President, under the direct scrutiny of the EP, would serve the same kind of purpose. Or again, perhaps the EP could itself appoint either a Commission or a Council President, or perhaps such a person could emerge from the EP electoral process, like the UK prime minister – this at least would enable a second-hand form of liberal democracy. Many of these ideas are already practised in some of the member states that comprise the EU, and provide legitimating factors for them, but only EP elections have been permitted for the EU. It is not surprising, therefore, that this smattering of liberal representative democratic practice has not provided a sufficient legitimating factor. The book argued, though, that liberal representative democracy has had its day as an adequate single legitimating factor. There are other options

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suggested in Chapter 4, relating to participatory democracy. The quality of participatory democracy in the EU was questioned – it was implied that it was exclusive, or that it was used excessively for the purpose of persuading rather than empowering participants. However, it was also suggested therein that the potential for the participation of all of the EU’s people has been squandered. At least one reason for the failure of the Constitutional Treaty referenda was that they were carried out within (some) member states, at different times, and under the jurisdiction of member states’ governments. There was no EU-wide referendum, conducted and promoted by the EU. The majority of the EU’s citizens, therefore, were disenfranchised, and the EU lost an opportunity to present itself to the people as an autonomous body governed by the rules laid down in its own constitution. It should be acknowledged that referenda are clumsy instruments, given that people do not necessarily address the question that is asked, and given that responsibility for their response is felt only in terms of outcomes, rather than in terms of accountability. However, referenda have often been regarded (albeit sometimes mistakenly) as a means of legitimation of a government or governmental system within member states. It seems illogical that the EU has been denied the chance. The problem is that all of the prospects for enhanced democracy, whether from a liberal representative or participatory perspective, depend upon the agreement of member states’ political elites, all of whom define themselves in accordance with the familiar Westphalian model of the state. The proposed Constitution, as noted in Chapters 3 and 4, included none of the suggestions made above and it contained almost nothing of substance for increasing democracy in any other way. State-Centric Europe has been unable to find a state-based means of legitimation for the EU, but it is capable of ensuring that no other means of democratic legitimation is available to it. The emphasis on the EU as ‘not-a-state’ has enabled political elites to win every argument about extending democratic legitimacy within the EU. This obstruction works equally in terms of the EU’s performance. The EU cannot ‘perform’ well enough to attract popular support, because it lacks the powers to do so. As shown in Chapters 5 and 6, the EU cannot, for example, act effectively to combat poverty either within its borders or in the wider world, because it lacks the financial capacity. The EU lacks funds because member states’ leaders practise an economic liberal perspective with regard to the EU’s budget. There is no sense of collective provision, and states’ leaders tend to take the Thatcherite ‘my money’ approach when the idea of increasing the EU’s budget (e.g., for enlargement) arises. It may be argued that this does not matter. The EU’s states, for example, all practise anti-poverty redistributive measures, and individually their contribution towards relieving world poverty is relatively substantial. However, all member states do not act in the same way, either because they cannot, or because they will not. But whilst member states retain ‘their own money’,

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the EU cannot act to the collective benefit. It may be objected that the notion of collective provision is outdated, but legitimacy has often been linked to welfare. In addition, one of the effects of globalisation has been to heighten popular awareness of world poverty. This issue has also been given high prominence amongst enlightened elites, on the Adam Smith/Keynesian premise that prosperity for all benefits all. The EU is a substantial player on the world scene. With higher funding, dispensed from the centre, it could do more. Benefits of increased prosperity can be appreciated, and appreciation can provide a legitimating factor. The question about collective versus individual provision is a controversial one. However, another effect of globalisation has been an increase in global terrorism. The notion of addressing this collectively is less contentious. Individual states are hit, indiscriminately or not, and people throughout the EU have grounds, if not reasons, for fear for their future. Yet the EU’s hands are tied. It cannot deliver substantial benefits in the field of justice and home affairs, because such matters are sensitive, and related to the issue of sovereignty. An effective and co-ordinated, no reservations, approach to combating terrorism would add to the EU’s legitimacy assuming the likely effectiveness of such an approach. But keeping people safe has been regarded as the prime duty of the sovereign, since the times of the early contract theorists. The EU, of course, is not sovereign, and hence its role in protecting its citizens can only be a subsidiary one. It has been sometimes suggested that the question of ‘sovereignty’ is now redundant, especially because of the EU. The issue of addressing terrorism suggests that continuing to claim it on behalf of the nation state may even be counterproductive. A similar point can be made about foreign policy. Chapter 6 showed that successes on the part of the EU had not been achieved by means of realist zero-sum bargaining characteristic of Westphalian state leaders. Wars have been fought (and won or lost, depending upon one’s criteria for success) by some of the EU’s member states, but never by the EU acting collectively. On the contrary, every political crisis has been illustrated by the sight of member states’ leaders going in different directions. On the other hand, it was shown that the area of foreign policy in which the EU has had the greatest success is that achieved on the back of the EU’s trading status. Agreements and treaties, often with governance clauses attached, with third countries have been negotiated successfully because the EU has access to the single market to dangle before them. An example of this was the way in which the EU has developed its state-building and peacekeeping roles, extending to persuading states formerly hostile to pacts to sign treaties. It may be pointed out that the development of the single market provides perhaps the fullest example of the diminution of national sovereignty. It is the most ‘common’ and the most successful of all of the EU’s common policies. All of the issues above seem to point in the same direction. The EU’s legitimacy depends upon it carrying out the some of the functions of a

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modern post-Westphalian or Kantian state, guided and controlled by the same sort of popular input that member states have, and enhancing popular input as appropriate to deal with changing circumstances. Moreover, such functions, it may be argued, can now be more properly and more effectively conducted by the supranational polity than they can be by its component parts acting individually. However, this potential has to remain unrealised because the EU is ‘not-a-state’, and sovereignty must remain within the EU’s member states individually. At this point, the question of ‘who decided that?’ seems a fair one to put. The answer, at present is: ‘the EU’s political elites’ and ‘the EU’s people’. There is, after all, no evidence that the EU’s citizens fancy the thought of a fully integrated EU. On the other hand, little has been done, as pointed out in Chapter 3, to encourage people to identify with the EU or to regard integration as a positive step. It is, surely, political elites, who are responsible for this situation? People, left to themselves, tend to stay with what they are familiar, unless it is truly dreadful. But politicians are expected to hold a wider view. After all, few people join political parties and aim for governmental posts with the expressed or unconscious intention of ensuring that nothing changes. Chapter 2 introduced a few of the EU’s visionaries, from Monnet to Delors, and omitted reference to many more because of limited space. It should be noted, however, that these were Community, not member state, visionaries. Does the limited vision put before the people of the EU today indicate a deficiency on the part of current political classes? It may be unfair to describe the problem in terms of political elites’ failure. The reality is different, and it has been often explained by academics such as Fritz Scharpf. Game theory shows why actors within the Council have little choice but to conduct their negotiations according to the rules of international relations. Zero sum objectives and uncertainty about how far another actor will concede ensure that each keeps her/his own counsel and reserves her/his own bargaining position. The outcome of this game playing is that the whole issue of EU integration and policy-making becomes seen in terms of potential losses to the state, rather than potential gains to the people whom negotiators represent. Who, in a group with 24 peers, would be able to break the chain, and argue that whilst her/his state would definitely lose out in the short run, concessions should be made for the good of the whole? The EU could therefore be caught in a trap of its own making. Nevertheless, this problem does not fully excuse the consistent playing of the ‘sovereignty’ card (frequently played along with the ‘identity’ or ‘cultural’ cards) amongst home audiences. It may well be difficult for states’ leaders to act as anything other than international relations players when faced with a round of Council negotiations. They could, however, take responsibility for encouraging people in their home states to look outwards toward the opportunities provided by a more integrated EU. Instead of regarding themselves, resting on assumptions that are theoretically dubious, as the embodiment

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of the nation state on the supranational level, national leaders could take on EU-wide roles working together to integrate the EU in ways which could be to the long term benefit of the EU’s citizens. Meanwhile, questions of statehood and of national sovereignty could be played down, rather than played up. In many member states this would require political courage, but this does not necessarily mean that it could not happen. The situation regarding legitimacy does not stay the same. As the EU is seen to take on more powers, but appears to be able to act no more effectively, the instinct is to regard it with less favour and no respect. Yet disempowering the EU is not a viable option if the overall goal is to resolve, rather than to increase, problems that are global in nature. Seen from that perspective, it is not so much that the EU threatens state sovereignty (as it is often accused), but that state sovereignty threatens the EU’s utility. The global nature of problems applies as much within states as within the wider world. Nevertheless, attempting to square the circle by giving the EU the powers to act could, ‘at a stroke’ help to reduce poverty and combat terrorism, for example, and, thereby, increase legitimacy for the EU as a by-product. At the same time, if the EU’s leaders could make a full concession on democracy in the EU – enabling EU-wide referenda, and/or votes for the EU president and other notable figures, again legitimacy would be enhanced. As a conclusion, the point needs to be repeated – modern legitimacy is made up of a number of factors, none of which nowadays include the former failsafe of popular deference. Although it has been suggested that the EU’s legitimacy should depend upon the legitimacy of those states that comprise it, the legitimacy of member states is becoming less sufficient even for their own needs. Nation states throughout the world cannot permanently depend upon liberal democratic factors, as their inability to deal with globally derived problems becomes more apparent. For the states that make up the EU, there is an alternative – the EU could become the focus for legitimacy, and member states’ legitimacy could then depend upon the EU’s.

Notes Introduction 1. Schmitter, P. (2001), ‘What is there to legitimize in the European Union    and how might this be accomplished?’ (contribution to the Jean Monnet Working Paper No. 6/01 Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance). 2. For example, Tsinisizelis and Chryssochoou argue that the EU does not need direct legitimacy. They have suggested that ‘confederal consociation’ defines EU modes of decision-making. In this model, the EU is managed by means of ‘demoi’ involved in mutual rather than democratic governance. By deduction, this makes EU legitimacy dependent upon the prior legitimacy of the member states that comprise it. (Tsinisizelis, J. and Chryssochoou, D. (1998), ‘The European Union: Trends in theory and reform’ in Weale, A. and Nentwich, M. (eds), Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship (London and New York, Routledge), pp. 83–97 passim). 3. Wind, M. (2001), ‘The Commission White Paper: Bridging the gap between the governed and the governing?’ (contribution to the Jean Monnet Working Paper No. 6/01 Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance). 4. Kant, I. ([1797–1798] 1996), ‘Public Right, Section I: The Right of a State’ in The Metaphysics of Morals (Cambridge, Cambridge University Press). 5. Ibid. 6. Scharpf summarises arguments from commentators such as Majone in his paper: Scharpf, F. (2003), ‘Problem-Solving Effectiveness and Democratic Accountability in the EU’ (Max Planck Institute for the Study of Societies; MPIfG Working Paper 03/1). 7. We shall examine data about popular attitudes in Chapter 3. 8. Lord, C. and Magnette, P. (2004), ‘Creative disagreement about legitimacy in the EU’ (Journal of Common Market Studies 42:1), p. 195. 9. This thesis is contested, for example, by Simon Hix, but it will be argued that there are sufficient differences between the EU and other groupings of nation states, past and present, to show that the EU is a unique organisation. 10. http://www.deltwn.cec.eu.int/EN/whattheeuis/whodoeswhatintheeu.htm 11. Marks, G. Hooghe, L. and Blank, K. (1996), ‘European integration from the 1980s: State-centric v Multi-level Governance’ (Journal of Common Market Studies 34:3), p. 347. 12. Bogdanor, for example, explains that the monarch’s role as a unitary representative is depreciated to the extent that s/he exercises ‘efficient’, that is, political, functions, since when doing so s/he represents only the faction(s) which happen to support her/his actions. Bogdanor, V (1995), The Monarch and the Constitution (Oxford, Clarendon Press), p. 62. 13. Some Presidents combine the function of head of state and head of government, for example, the Presidents of France, Greece, and Portugal. 14. It may be argued that the ‘national interest’ vis-à-vis the EU does not change with changing governments. However, even if this were the case (and policies towards 179

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Notes the EU do change from time to time), the argument would be insufficient to justify the assumption that any government is equally capable of defining and protecting the ‘national interest’ with regard to the EU, and hence assume that its power to do so should remain forever unchallenged.

1. Legitimacy and legitimation in the old Europe 1. See Romans, 13:2 ‘Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.’ The Bible, Authorised Version (London, The British Foreign and Bible Society). 2. Monnet, J. (1978), Memoirs (London, Collins), p. 287. 3. Ibid. 4. The Third Reich considered itself to be a modern version of the Holy Roman Empire. 5. See, for example, Osiander, A (2001), ‘Sovereignty, international relations, and the Westphalian Myth’ (International Organization, 55:2), p. 283. 6. Laski, H. (1936), The Rise of Liberalism: The Philosophy of a Business Civilization (New York: Harper and Brothers, 1936), p. 2. 7. Schmitter, p. (2001). 8. Ibid. 9. Cox, M. (2003b), ‘When trust matters: explaining differences in voter turnout’ (Journal of Common Market Studies 41:4), pp. 758–9. 10. Cox (2003b), p. 575. 11. Newman, M. (2001), ‘Allegiance, legitimation, democracy and the European Union’ (European University Institute Working Papers HEC No. 2001/5). 12. Van Kersbergen, K. (2000), ‘Political allegiance and European integration’ (European Journal of Political Research 31:1), p. 7. 13. Ibid., p. 8. 14. Ibid., p. 5, referring to Milward, S. (1997), ‘The springs of integration’ in Gowan, P. and Anderson, P. (eds), The Question of Europe (London and New York: Verso), p. 11. 15. Van Kersbergen, K. (2000), p. 6. 16. Beetham, D. and Lord, C. (1998), Legitimacy and the European Union (London and New York, Longman), p. 3. 17. Shore, C. (2000), Building Europe: The Cultural Politics of European Integration (London and New York, Routledge), p. 19. 18. Ibid., p. 20. 19. Scharpf (2003). 20. Beetham and Lord (1998). 21. Gerth, H. and Mills, C.W. (1967), From Max Weber (London, Routledge & Kegan Paul Ltd), pp. 78–9. 22. Beetham and Lord (1998), p. 9. 23. Mather, J. (2000), The EU and British Democracy: Towards Convergence (Basingstoke, Macmillan), pp. 3–4. 24. Finer, S.E. (1988), Man on Horseback (Colorado, Westview Press), p. 15. 25. D’Entrèves, A (ed.) (1965), Aquinas: Selected Political Writings (Oxford, Blackwell), p. 59.

Notes 181 26. Rousseau, J.-J. ([1762, 1750, 1755] 1990), The Social Contract and Discourses (London, Everyman), p. 184. 27. It is interesting to consider the contemporary attitude of some UK Scots and Welsh people, or to speculate about the future of Iraq, in this context. 28. See Hobbes, T. ([1651] 1988), Leviathan (London, Penguin), p. 220 and Locke, J. ([1690] 1986), Two Treatises of Government (London, Everyman), pp. 183–4. 29. Arblaster, A. (1991), Democracy (Milton Keynes, Open University Press), p. 22. 30. Those living in the land to the northeast of the Alps at that time. 31. Tacitus (98 AD): De Germania (www.unrv.com/tacitus/tacitusgermania. php) 32. It did not take a hold to the same extent in the modern Germany or Scandinavia. 33. Technically, ‘render unto Caesar’ (St Paul’s letter to the Romans) enabled the Christian to separate his obligations, but not when the secular authority received his authority from God direct, of course. 34. See, for example, the Bible, St James’ version, First Epistle of Saint Peter, Chapter 2, verses 13–14: ‘Submit yourselves to every ordinance of man for the lord’s sake: whether it be to the king, as supreme; or unto governors    For so is the will of God.’ 35. Coleman, J. (2000a), A History of Political Thought: From the Middle Ages to the Renaissance (Oxford, Blackwell), p. 22. 36. He was also known as ‘Pseudo-Denis’ since he claimed that he was the Denys who was a follower of St Paul (Acts of the Apostles xvii, 33–34). 37. Ullman, W. (1964), Medieval Political Thought (Harmondsworth, Penguin), p. 31. 38. Coleman, J. (2000b), Political Thought from Ancient Greece to Early Christianity (Oxford, Blackwell), p. 335. 39. ‘Gregory the Great’, later canonised. 40. Hughes, p. (1934), A History of The Church. Volume I: The Church and the World in Which the Church was Founded (http://www.netacc.net/∼mafg/book/v1c8.htm). 41. St Ambrose (c.364 AD): Sermon against Auxentius on the giving up of the Basilicas; http://www.ccel.org/fathers2/NPNF2-10/Npnf2-10-50.htm#P7813_2063315 42. Valentinian I. (364–375 AD). 43. St Ambrose (c.364 AD) Letter XXI; http://www.synaxis.org/ecf/volume33/ ECF00022.htm 44. Ullman (1964), p. 38. 45. Constantine was a proclaimed, not a hereditary, emperor. 46. In modern Turkey. 47. Constantine was not baptised until his deathbed in 337 AD, although the year 312 is the ‘official’ date of his conversion. His late baptism can be explained by prudence – it enabled him to die with his soul cleansed, and Constantine had great need of this after a lifetime of killing, including murder. It also enabled Constantine to keep the church away from him during that lifetime. 48. It was Constantine’s Toleration Edict of Milan (313) that gave the Christian religion equal status with other religions (Ullman (1964), p. 39). 49. Except for Julian the Apostate, who rejected Christianity, but only ruled for two years (Ullman (1964), p. 39). 50. Ullman (1964), p. 39. 51. Gelastius I: Letter of Pope Gelasius to Emperor Anastasius on the Superiority of the Spiritual over Temporal Power (Mediaeval Source Book, http://www.fordham.edu/ halsall/sbook.html). 52. The work of the Christian church in the west was suspended with the move to Constantinople. 53. Ullman (1964), pp. 45–53 passim.

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54. Greek was the language spoken and written throughout the Byzantium empire. 55. Ullman (1964), p. 109. 56. Although, as David Starkey (BBC2, 08 November 2004) notes, Henry II of England (1154–1189) discovered that he had paid a high price for the grace of God, when a ‘turbulent priest’ claiming popish suzerainty for himself was prepared to do battle on the strength of it. 57. Gregory I. (c.590): The Book of Pastoral Rule (Mediaeval Source Book, http://www.fordham.edu/halsall/source/590greg1-pastoralrule2.html). 58. The Gospel according to St Luke 10:25–37. 59. Keen, M. (1990), English Society in the Later Middle Ages 1348–1500 (Harmondsworth, Penguin), pp. 240–70 passim. 60. Gough, J. (1936), The Social Contract (Oxford, Clarendon Press), p. 28. 61. Gregory VII was also later canonised. 62. D’Entrèves (1965), p. xxvi. 63. Aquinas, T. (c.1265–67), ‘De Regimine Principum (On Princely Government)’ in D’Entrèves, A (ed.), p. 15. 64. Ibid., p. 31. 65. Aquinas, T. (c.1266–73), ‘Summa Theologica (Main points of theology)’ in D’Entrèves, A (ed.), p. 149. 66. Ullman (1964), p. 162. 67. Hobbes (1988), pp. 228–39 passim. 68. Ibid., pp. 224–8 passim. 69. Ibid., pp. 64, 190, 192. 70. Ibid., p. 192. 71. Ibid., p. 202. 72. Ibid., pp. 186–7. 73. Ibid., p. 183. 74. Ibid., pp. 375–6. 75. There were actually three civil wars: 1642–1646, 1648 and 1650–1651. 76. Locke (1986), p. 159. 77. Ibid., pp. 184–9; 205–6. 78. Ibid., pp. 220–9 passim. 79. Ibid., pp. 228–30. 80. Ibid., p. 166. 81. Ibid., pp. 189, 233. 82. James I, in a speech to the Lords and Commons of Parliament at Whitehall, 21 March 1609 is quoted as saying: ‘The state of Monarchie is the supremest thing vpon earth: for Kings are not onely Gods Lieutenants vpon earth, and sit vpon Gods throne, but euen by God himselfe they are called Gods’, although, as Locke himself noted (1986, pp. 218–19), even James I accepted the limits of the law over his behaviour. 83. See the English Bill of Rights 1689, which guaranteed the rights of parliament against the Crown: ‘That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal’ and therefore formally put an end to the theory of the divine right of kings. 84. Locke (1986, p. 198) does dip a toe in the water of representation, but he does not mean full popular elected representation. 85. Locke (1986), pp. 172, 177–9. 86. ‘Il faut que le petit peuple soit éclairé par les principaux et contenu par la gravité de certains personages’ – ‘it is necessary that lesser people be clear on the principles and be contained by the seriousness of their betters’ – Montesquieu, Baron de (1748): Esprit des Lois Book II Chapter ii. http://socserv2.socsci. mcmaster.ca/∼econ/ugcm/3ll3/montesquieu/

Notes 183 87. ‘Men will never be free until the last king is strangled with the entrails of the last priest.’ Diderot, D Oeuvres complètes, vol. 9. 88. Rousseau’s idea was a Legislator, who would help to set up the society, but would not be a member of it. He could therefore be disinterested (cf. Rawls Theory of Justice) – Rousseau (1990), pp. 213–17. 89. Human beings who give up freedom are not, in Rousseau’s view, moral human beings at all (Rousseau 1990, p. 186). 90. Rousseau (1990), p. 190. 91. Ibid., pp. 185, 188. 92. Ibid., pp. 191–2. 93. Ibid., p. 194. 94. Ibid., p. 203. 95. Burke, E. ([1790] 1993), Reflections on the Revolution in France (Oxford and New York, Oxford University Press). 96. In this, Burke echoes Plato, one of whose main criticisms of democracy was that it enabled the wrong people to rise to the top. 97. Burke, E. ([1782] 1874), ‘Speech on the Reform of the Representation of the Commons in Parliament’ in Payne, E. (ed.), Select Works of Edmund Burke (Oxford: Clarendon Press). 98. Ibid. 99. Burke, E. ([1775] 1975), ‘On American Taxation’ in Hill, B. (ed.), Edmund Burke on Government; Politics and Society (London, Fontana), pp. 150–1. 100. Burke, E. ([1775] 1975), ‘Speech on Reconciliation with the Colonies’ in Hill, B. (ed.), Edmund Burke on Government; Politics and Society (London, Fontana). 101. Freeman, M. (1980), Edmund Burke and the Critique of Political Radicalism (Oxford, Blackwell), p. 29. 102. Burke, E. (1796), Two Letters Addressed to a Member of the Present Parliament, on the Proposals for Peace with the Regicide Directory of France by the right honourable Edmund Burke: Letter II: On the Genius and Character of the French Revolution as it regards other Nations’, http://www.econlib.org/library/LFBooks/Burke/brkSWv3c1.html#bottom 103. Burke, E. (1796), Two Letters Addressed to a Member of the Present Parliament, on the Proposals for Peace with the Regicide Directory of France by the right honourable Edmund Burke: Letter I: ‘On the Overtures of Peace’, http://www.econlib.org/library/LFBooks/Burke/brkSWv3c1.html#bottom 104. Burke, E. ([1790] 1993). 105. Ibid., p. 52. 106. That is to say, Parliament could refuse to support the monarch’s cause (Burke, E. (1770), ‘Thoughts on the cause of the Present Discontents’ in Hill, B. (1975), p. 104). 107. Others were owned or purchased by wealthy individuals, who appointed their own nominees as members. 108. Burke, E. (1774), ‘Speech to the Electors of Bristol’ in Hill, B. (1975), p. 157. 109. Ibid., p. 157. 110. Although Rousseau did not think that any but the individual could represent himself. 111. Although votes for women had less appeal. Finland enfranchised its female citizens in 1906; Italian, Belgian and French women did not get the vote until after the Second World War. 112. The Habsburg Empire included Austrian Germans, Hungarians, Slovenes, Poles, Czechs, Slovaks, Ruthenians, Romanians, Serbs and Croats.

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113. Which they had held, briefly, after the French Revolution until the return of the monarchy. 114. Mid-nineteenth century Germany and Italy were collections of regions loosely bound together, not nation states. 115. Marx believed that enfranchisement could lead to a peaceful revolution, when the working class had sufficient representation in parliament; but inasmuch as the extension to the franchise was responsible for improving working conditions and benefits, it apparently had the opposite effect. 116. Although an important date in British political history, 1832, in fact, saw the smallest extension (from 2 per cent to 2 and a half per cent) to the franchise throughout Europe. Lenz, G. and Ladd, J., ‘A Quantitative Investigation of the Extension of the Franchise in the West’ (Paper presented at the Annual Meeting of the American Political Science Association, 28–31 August 2003, Philadelphia, Pennsylvania, http://www.princeton.edu/∼jladd/LenzLaddSufferagePaper.pdf). It did, however, have a discouraging effect on Chartism. 117. It collapsed at the end of the First World War in 1918. 118. The Peace of Westphalia ended the Thirty Years War. It parcelled out territory within western Europe and created new ‘countries’ each of which contained several groupings of nationalities. 119. Constitution of Ireland, Enacted by the People on 1st July 1937, in operation as from 29th December 1937. 120. For example, Charles V captured the pope during the fifteenth century. 121. For example, Henry VIII and Elizabeth I of England, who reacted to the respective popes’ strictures by ‘divorcing’ the pope and assuming ultimate authority themselves. 122. Weber, M. ([1918] 1948), ‘Politics as a vocation’ in Gerth, H. and Wright Mills, C., From Max Weber: Essays in Sociology (London, Routledge & Kegan Paul Ltd), pp. 78–9. 123. Ibid., p. 79. 124. Although this may have been based on ‘hope’ inspired by the creation of the social democratic welfare state. 125. This is a debatable point, but it is difficult to deny that, if for no other reason, the binding nature of EU legislation has an impact upon the ‘Europe of states’.

2. Adapting legitimacy to the European Union 1. Technocratic Europe: The European Coal and Steel Community (ECSC); the European Atomic Energy Community; the European Economic Community (from the 1950s to early 1970s) – communities with limited impact, served by administrators. 2. State Centric Europe: The applicability of this model dates from the mid-1970s, primarily post UK/Denmark/Ireland entry – their scepticism forced the debate about how much ‘Europe’ was permissible on the one hand, and raised public consciousness about just how much ‘Europe’ there was on the other. This also coincided with a developing consciousness of the (then) self-styled ‘European Parliament’ (EP), and eventually led to the first direct elections in 1979. 3. Tsinisizelis and Chryssochoou (1998). 4. A Multi-level EU: the theory about this model dates from the mid-late 1990s, but the empirical evidence from it is rooted earlier, in the mid-1980s, with the Single European Act and the Single European Market (SEM). Both of these

Notes 185

5. 6. 7. 8.

9. 10.

11.

12.

13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

23.

24. 25. 26. 27.

28.

brought into prominence the participation (not necessarily the influence) of a number of sub-national and non-governmental agencies, both within and outside the EC. Cited by Davis, L. and Huttenback, R. (1988), Mammon and the Pursuit of Empire: The Economics of British Imperialism (Cambridge, Cambridge University Press), p. 7. Foundation, Foundation and Empire and Second Foundation were first published 1951–53. The versions cited were published by Panther Books, London, 1962. Leonardi, R. (1995), Convergence, Cohesion and Integration in the European Union (New York, St Martin’s Press), p. 263. Cited by Lindberg, L. (1963), ‘Political integration: definitions and hypotheses’ in Nelsen, B.F. and Stubb A.C.-G. (eds) (1996), The European Union – Readings on the Theory and Practice of European Integration (Basingstoke, Macmillan), p. 107. Ibid. ‘It shall be the duty of the Commission to ensure that the objectives set out in this Treaty are attained in accordance with the provisions thereof’ (Treaty of Paris 1951, Article 8). [The Commission shall] ‘formulate recommendations or deliver opinions on matters dealt with in this Treaty, if it expressly so provides or if the Commission considers it necessary’ (Treaty of Rome, Article 155; TEC Article 211). Pryce, R. (1962), The Political Future of the European Community (London, John Marshbank Ltd, with the Federal Trust), p. 21. The ‘Six’ were the six original signatories to the Treaties of Paris and Rome: France, West Germany, Italy and the Benelux countries. Monnet, J. (1978), Memoirs (London, Collins), pp. 53–71 passim. Nicoll, W. and Salmon, T. (2001), Understanding the European Union (Harlow, Longman), pp. 9–11. Pryce R. (1962), p. 29. Monnet (1978), pp. 294–5. Ibid., p. 296. Schuman, R. (1950), The Schuman Declaration, http://europa.eu.int/abc/symbols/ 9-may/decl_en.htm The Treaty of Paris provided for the option of direct universal elections (Article 21), but it took until 1979 for this option to be adopted. Rittberger, B. (2004), ‘The politics of democratic legitimation in the European Union’ (Nuffield College, Working Papers in Politics, 2004-W4), p. 9. Treaty of Paris (1951), Article 9. Ibid., Article 9 – the words ‘supranational character of’ were removed from the Treaty under the Merger Treaty 1965 cited in Church, C. and Phinnemore, D. (2002), The Penguin Guide to the European Treaties (London, Penguin), p. 569. Ibid., Article 72 – making proposals to the Council for setting the rate of customs duties against third countries and issuing opinions re amendments of national tariffs. Ibid., Article 14 – ‘recommendations’ are binding insofar as their aims must be met, but leave the states (usually) to determine how to achieve those aims. Ibid., Articles 31–44. Van Gend en Loos 1963 and Costa v ENEL 1964 cited by Kuper, R. (1998), The Politics of the European Court of Justice (London, Kogan Page), pp. 5–6. Treaty of Paris (1951), Articles 18 and 78. Qualified majority voting weights ministers’ votes in rough proportion to their states’ population size. It also makes it impossible for any one state to veto a decision. Ibid., Article 72.

186 29. 30. 31. 32. 33. 34. 35. 36. 37.

38.

39. 40.

41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59.

60. 61.

Notes Ibid., Article 71. Ibid., Article 58. Ibid., Article 5. Ibid., Article 55. Hartley, T. (1988), The Foundations of European Community Law (Oxford, Clarendon Press), pp. 167–8. Majone, G. (1996), Regulating Europe (London, Routledge). Leading Monnet, its first President, to resign in 1955. George, S. (1996), Politics and Policy in the European Union (Oxford, Oxford University Press), p. 153. The Treaty of Paris (1951) states in Article 4 that: ‘The following are recognized as incompatible with the common market for coal and steel and shall accordingly be abolished and prohibited within the Community, as provided in this Treaty.’ Included in the list are: ‘import and export duties, or charges having equivalent effect, and quantitative restrictions on the movement of products’. de Gaulle’s Memoirs show that he accepted the idea that ‘the process of evolution might lead to [European States’] confederation’ but he was less keen on the idea of ‘some stateless construction’ – de Gaulle, C. (1958–1962, trans. 1971), Memoirs of Hope (London, Cox and Wyman Ltd), pp. 171, 177. George (1996), p. 154. These treaties, however, followed the collapse of the proposed European Defence Community, for which a treaty had been signed by the Six in 1952. However, it failed to be ratified by the French National Assembly in 1954, and was ‘replaced’ by the Western European Union (WEU), which was not based upon supranationalism. Church and Phinnemore (2002), p. 574. George (1996), p. 155. Treaty of Rome (1957), Article 3. A customs union has common external trade barriers. Treaty of Rome (1957), Article 2. Ibid., Article 155. Kitzinger, U. (1961), The Challenge of the Common Market (Oxford, Blackwell), p. 55. George (1996), pp. 155–9 passim. Pryce (1962), p. 34. Kitzinger (1961), pp. 46–7. Ibid. Kitzinger (1961), pp. 61–3. Laffan, B. (1992), Integration and Co-operation in Europe (London and New York, Routledge), p. 50. Nicoll and Salmon (2001), p. 23. Laffan (1992), p. 50. Monnet (1978), p. 481. This period was known as ‘The Empty Chair crisis’. Nicoll and Salmon (2001), p. 24. The third and fourth paragraphs were also contradictory, stating both that there was ‘divergence of views’ and that this divergence (a fundamental one) should not stop the Community’s work from proceeding as normal. Bulletin of the European Community 1966, No. 3:8–9 cited in full by Nugent (2003), p. 170. Nugent (2003), p. 171.

Notes 187 62. A number of reasons have been suggested for de Gaulle’s inflexibility. See Nugent 2003, p. 25 for a summary of them. 63. George (1996), p. 161. 64. Tsinisizelis and Chryssochoou (1998), pp. 83–97 passim. 65. See the Treaty Amending Certain Budgetary Provisions, 1970 and the Treaty Amending Certain Financial Provisions, 1975. 66. Article 138, now renumbered Article 190. 67. Mather (2000), pp. 103–15 passim. 68. Ross, G. (1995), Jacques Delors and European Integration (Cambridge, Polity Press), pp. 28–9. 69. High-level meetings of Heads of Government and State, with Communities’ foreign ministers and Commission representation, institutionalised in 1974, but not legally recognised until the Single European Act of 1986 (Title I; Article 2), and not incorporated into the Treaty until 1992. 70. European Commission (1985), Completion of the Internal Market (COM (85) 310 final 14 June 1985), p. 4. 71. Drake, H. (2000), Jacques Delors: Perspectives on a European leader (London and New York, Routledge), p. 92. 72. Drake (2000), p. 92; Ross (1995), p. 30. The other options were Economic and Monetary Union; defence and security co-operation and federalism. 73. European Commission (1985), p. 3. 74. Ross (1995), p. 28; Drake (2000), pp. 92–3. 75. European Commission (1985), p. 55. 76. Ibid. This reference to the Treaty is also used in the White Paper’s introduction, p. 4. 77. Nicolls and Salmon (2001), pp. 34–5. 78. Ross (1995), p. 32. 79. SEA Title II, Articles 6, stating the application of co-operation, and 7, defining the procedure (inserted into the EEC Treaty as Article 149. It was repealed by the Amsterdam Treaty). The co-operation procedure meant that if the EP rejected or amended the Council’s common position, a subsequent decision made by the Council had to be subject to unanimity. It also set a time limit of three months to complete the procedure. 80. Ibid., Article 9, amending Article 238 of the EEC Treaty, now renumbered Article 310. 81. Ibid., Article 23, inserting a new Title V, Articles 130a–130e, into part three of the EEC Treaty, now renumbered Articles 158–162. 82. Ibid., Article 25, adding a new Title VII, Articles 130r–130t, into part three of the EEC Treaty, now renumbered Articles 174–176. 83. Ibid., Article 24, adding a new Title VI, Articles 130f–130q, to part three of the EEC Treaty, now renumbered Articles 163–173 (Article 130q was repealed). 84. SEA Title III, Article 30. 85. This had to wait for the 1992 Maastricht Treaty – see below. 86. SEA Title II, Article 22, inserting a new Article 102a into the EEC Treaty, now renumbered Article 98. 87. Scharpf (2003). 88. Peterson, J. (1991), ‘Technology policy in Europe: explaining the framework programme and eureka in theory and practice’ (Journal of Common Market Policies), pp. 269–90, passim. 89. Leonardi (1995), p. 220.

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90. Pinder, J. (1993), ‘The Single Market: a step towards union’ in Lodge, J. (ed.), The European Community and the Challenge of the Future 2nd edition (London, Pinter), p. 59. 91. Ibid. 92. Nugent, N. (1994), The Government and Politics of the European Union (Basingstoke, Macmillan), p. 278. 93. European Commission (1996a), The Impact and Effectiveness of the Single Market (Brussels, 30 October), p. 4. 94. European Commission (1989), Report on Economic Monetary Union in the European Community (Brussels, 17 April). The report was requested by the European Council meeting in Hanover, June 1988. 95. Ibid., pp. 14–15 and 16. 96. Ibid., p. 21. 97. Ibid., pp. 27–8. 98. Ibid., pp. 16–17. 99. Ibid., p. 37. The report suggests that there may be need for more than one treaty. 100. This term was first used by Margaret Thatcher referring to the TEU. 101. TEC Articles 109g–109m, now renumbered Articles 119–124; TEC Articles 102a–104c, now renumbered 98–104 (economic policy) and 105–109, now renumbered 105–111 (monetary policy) Treaty on European Union (TEU) (1992): Article D, now renumbered Article 4 respectively. 102. TEU (1992), Article 8. They were termed ‘pillars’ rather than ‘branches’ – the original suggestion, because the UK government did not like notion of one entity, symbolised by a tree with a common trunk and three branches. Separate pillars provided a more acceptable image. For a similar reason ‘federalism’ became ‘ever closer union’. 103. Ibid., Article B, now renumbered Article 2; TEU (1992), Articles J1–J18, now renumbered Articles 11–28, TEU, Articles K1–K14, now renumbered Articles 29–42 respectively. 104. TEC, Article 189b, now renumbered Article 251. Co-decision includes a number of readings in the EP and attempts to reach agreement (although it has since been simplified). The bottom line is that the EP has a veto over Council proposals, if no agreement can be formed. 105. Ibid., Article 158, now renumbered Article 214. 106. Ibid., Articles 117–130y, now renumbered Articles 136–181. 107. This is not the usual meaning of subsidiarity, which normally refers to making decisions at the lowest possible level. See Spicker, P. (1996), ‘Concepts of subsidiarity in the European community’ (Current Politics and Economics in Europe 5:2/3) and Mather (2000), pp. 117–22. However, the 1992 Edinburgh Council defined the word more restrictively in terms of state centricity (11–12 December, Part III (a): Procedures and Practices). 108. The first pillar was to continue to make decisions having legal force by the supranationalist community method, giving the Commission the right of initiative, involving the EP and including the ECJ’s powers to interpret Community law. 109. TEC Articles 198a–198ce, now renumbered Articles 263–265. 110. Ibid., Article 8, now renumbered Article 17. Incidentally, this was the first time that the people of the UK had any kind of citizenship, since they are formally subjects of the Crown. 111. Ibid., Article 138e, now renumbered Article 195. 112. Denmark, France, Greece, Ireland, Portugal and Spain.

Notes 189 113. Duff, A. (1994), ‘The main reforms’ in Duff, A. Pinder, J. and Pryce, R. (eds), Maastricht and Beyond (London and New York, Routledge), p. 58. 114. Some states have bicameral legislatures. In these case, the result of votes in the lower house is recorded. 115. Figureures obtained from European Commission (1992), Eurobarometer 38, Autumn 1992, p. 30. 116. Eurobarometer 38, p. v. 117. Ibid., p. vii. 118. Ibid., pp. v–vi. 119. Ibid., p. vi. 120. Ibid., p. ix. 121. The EU-15 are the states that comprised the EU before the 2004 enlargement. 122. Petite, M. (1998), ‘The Treaty of Amsterdam’ (Harvard University on-line papers, http://www.law.harvard.edu/Programs/JeanMonnet/papers/98/98-2-05.htm). 123. Article J13, renumbered Article 23, TEU; Article K15, renumbered Article 43, TEU and Article 5a, renumbered Article 11, TEC. 124. Article 4 of the Protocol states that the UK and Denmark ‘may at any time request to take part in some or all of the provisions of this acquis’. 125. Amendment to Article A, renumbered Article 1, TEU. 126. Protocol (number 30) on the Application of the Principles of Subsidiarity and Proportionality. 127. A new Article F1, renumbered Article 7, TEU. 128. Petersen, N. (1998), ‘The Danish Referendum on the Treaty of Amsterdam’ (Bonn Zentrum für Europäische Integrationsforschung, Rheinische Friedrich WilhelmsUniversität Discussion Paper C 17), p. 29. 129. Social Democrats and the Social Liberals (Petersen (1998), p. 27); Confederation of Trade Unions (LO); Central Organisation of Industrial Employees in Denmark and Confederation of Danish Industries (http://www. eiro.eurofound.eu.int/1997/09/feature/dk9709128f.html) respectively. 130. Petersen (1998), pp. 17–18. 131. Although two more referenda re removing capital punishment from the constitution and establishing an international court to deal with war criminals were held on the same day – both were passed. 132. Ahern, B. (2001), Press statement, 12 July 2001 http://foreignaffairs.gov. ie/information/display.asp?ID=1004 133. Fianna Fail, Fine Gael, Labour and the Progressive Democrats, as well as the trade unions, farming associations, the Irish Business and Employers Confederation and the Catholic Church, had all campaigned for a ‘yes’ vote. 134. Cowen, B. (2001), Press statement, 30 April 2001 http://foreignaffairs.gov. ie/information/display.asp?ID=768 135. This assertion was made by the Church of Ireland Bishop of Cork, the Rt. Rev. Paul Colton, cited by the Irish Independent, 09 June 2001. 136. Claimed by Brian Cowen in his Press Statement of 10 May 2001 http://foreignaffairs.gov.ie/ information/display.asp?ID=780 137. Ahern, B. (2001), cited in the Irish Independent, 14 June 2001. 138. Cowen, B, press statement, 12 June 2001 http://foreignaffairs.gov.ie/ information/display.asp?ID=801 139. Prodi, R. (2001), cited in the Irish Independent, 14 June 2001. 140. European Commission (2001a): Eurobarometer 55 based on survey work undertaken Spring 2001.

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141. These Figures disregard the confirmatory nem con ratifications by the Irish Parliament after the referenda and upper chambers’ supportive confirmations of lower houses’ ratification. 142. No data is, of course, available for Austria, Finland and Sweden’s response to the Maastricht Treaty, since those states did not join until 1995. 143. The UK, registering 41 per cent support, was the lowest of the ‘old’ states. 144. Menéndez, A. (2005), ‘Neither Constitution, nor Treaty: A deliberativedemocratic analysis of the Constitutional Treaty of the European Union’ (Oslo, Arena, Centre for European Studies, University of Oslo), p. 3. 145. The Commission makes the point (http://europa.eu.int/abc/obj/amst/en/qa. htm#20) that the EU government is popularly elected by people in the home states; however, it omits to acknowledge that it is governors (individually) rather than government (collectively) which are elected. 146. Bache, I. (1999), ‘The extended gatekeeper: central government and the implementation of EC regional policy in the UK’ (Journal of European Public Policy 6:1), p. 42

3. Liberal representative democracy and EU legitimacy 1. European Commission (2001b), European Governance: A White Paper (Brussels, COM (2001) 428 final). 2. European Council (2004), Treaty Establishing a Constitution for Europe (Brussels, GIG 87/1/04 REV1). Its future is, however, doubtful. 3. Franklin argued that EP elections, adding to the already frequent opportunities to cast a vote, had the effect of depressing national turnouts (Franklin, M. (2003), ‘Too much democracy? How elections to the European Parliament depress turnout at national elections in Europe’ (Marburg, Paper prepared for the 2003 Congress of the European Consortium for Political Research), p. 11). 4. Sources: IDEA (2004), International IDEA 2004: Country View of National Parliamentary Elections, http://www.idea.int/vt/parl.cfm; IPU Parline Database http://www.ipu.org/english/home.htm 5. The EU-25 states are those that made up the EU after the 2004 enlargement. They include the eight central and eastern European states, and Cyprus and Malta. 6. IDEA (2004). 7. It may be argued that the two are inevitably connected, although this presupposes that democracy means only that the will of the majority should prevail, and that the majority never changes its mind. 8. A system that allows a large number of parties to gain elected office for their representatives tends to prevent sufficient representatives being elected to enable any one ideologically strong party to form a government. 9. Macpherson, C.B. (1966), The Real World of Democracy (Oxford, Clarendon Press). 10. Ibid., p. 4. 11. Townshend, J. (2000), ‘C.B. Macpherson and contemporary democratic theory: ethics, ontology and capitalism’ (London, Paper for the Political Studies Association –UK 50th Annual Conference). 12. Michels, R. ([1915] 1962), Political Parties (London, Collier-Macmillan), pp. 109, 122, 370. 13. Obtaining the vote for all adults was, of course, a popular struggle in the first place throughout western Europe.

Notes 191 14. Zweifel, T. (2002), ‘   Who is without sin cast the first stone: the EU’s democratic deficit in comparison’ (Journal of European Public Policy 9:5), p. 812. 15. Sbragia, A. (2002), ‘The dilemma of governance with government’ (Jean Monnet Working Paper 3/02). 16. The European Commission’s term of office is now co-terminus with that of the Parliament, and its President and membership as a whole must be endorsed by the EP, after a series of hearings. This power is worth having, as demonstrated in 2004, when the EP forced the withdrawal of one of the Commissioners-designate – Rocco Buttiglione, but it does not add up to changing the complexion of government. 17. Decker, F. (2002), ‘Governance beyond the nation-state. Reflections on the democratic deficit of the European Union’ (Journal of European Public Policy 9:2), pp. 265–7 passim. 18. Source: http://www.elections2004.eu.int/highlights/en/101.html 19. European Commission, Directorate General (Press and Communications) (2004a), Flash EuroBarometer 161: ‘Post European Elections 2004 report’ (Brussels, Commission of the European Communities). 20. Scully, R. and Farrell, D. (2003), ‘MEPs as Representatives: Individual and Institutional Roles’ (Journal of Common Market Studies 41:2), p. 272. 21. Amsterdam recommended 700. 22. These are average figures. There are proportionally more MEPs to voters in the smaller states and fewer in larger states. 23. MORI (2004), ‘UK on Europe: low on knowledge; low on trust’ (http://www. mori.com/polls/2004/ifc.shtml). 24. Scully and Farrell (2003), p. 278. 25. In a letter to Edward McMillan-Scott, MEP, then leader of the British Conservatives in the EP, from Hans-Gert Poettering, the Chairman of the then EPP, 16 September 1999, provided to the author by Mr McMillan-Scott, Herr Poettering accepted that the Conservatives would not be bound by the group whip. He also acknowledged that the UK Conservatives were free to act in accordance with the British Conservative manifesto where it conflicted with EPP policy. 26. See Mather, J. (2001), ‘The European Parliament: a model of representative democracy?’ (West European Politics 24:1). 27. Schmitt, H. and Thomassen, J. (1999), ‘Introduction’ in Schmitt, H. and Thomassen, J. (eds), Political Representation and Legitimacy in the European Union (Oxford, Oxford University Press). 28. Crombez, C. (2003), ‘The democratic deficit in the European Union: Much ado about nothing?’ (European Union Politics 4:1), pp. 105, 111. 29. Ibid., pp. 112, 115. 30. Franklin, M. (2001), ‘European Elections and the European Voter’ in Richardson, J. (ed.), European Union, Power and Policy-Making, 2nd edition (London, Routledge). 31. Only the countries that were members of the EC/EU at the time of the various EP elections are used as a basis for comparison. 32. Sources: European Commission, Directorate General (Press and Communications) (2004b), Flash EuroBarometer 162: ‘Post European Elections 2004 report’ (Brussels, Commission of the European Communities), p. 6; International IDEA (2004). 33. Blondel, J., Sinnott, R. and Svensson, P. (1998), People and Parliament in the European Union (Oxford, Clarendon Press), pp. 199–236 passim. 34. European Commission, Directorate General (Press and Communications) (2004a). 35. European Commission, Directorate General (Press and Communications) (2004b). 36. Ibid., pp. 17–19.

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37. The responses have been grouped for the purpose of this figure. Some respondents gave more than one reason. 38. Blondel et al. (1998) pp. 237–8. 39. There is a whole set of arguments related to the effectiveness or otherwise of interest group activity. See, for example, Olson, M. (1971), The Logic of Collective Action (Boston, Harvard University Press). 40. See the European Commission’s Regular Reports for candidate countries, which monitor the development of each candidate, which include chapters concerning social, political and economic rights. 41. Decker (2002), p. 263. 42. Cox (2003a), p. 761. 43. Latin: ‘We are citizens of our nation state’. 44. Sometimes histories are invented, rather than reflecting reality, and cultures are constructed, rather than inherited. Even languages may be restored or preserved, rather than being retained by means of constant use. 45. Churchill, W. (1947). Churchill was speaking as Leader of the Opposition in a speech before the House of Commons. The occasion was the Second Reading of the Parliament Bill, proposing to reduce the delaying period of the House of Lords on non-finance bills from two years to one (Hansard, 11 November 1947). It should be appreciated, however, that Churchill was speaking in favour of liberal representative democracy at the time – he was opposing a weakening of the rights of the House of Lords, not attempting to defend popular democracy as such. 46. Fukuyama, F. (1992), The End of History and the Last Man (New York, Avon Books). Fukuyama argued that the legitimacy of liberal democracy had achieved consensus, and had outlasted rival ideologies such as hereditary monarchy, fascism and communism. The point of dispute with this thesis arises from Fukuyama’s failure to appreciate the impact of the growth of newer ideologies, such as Islamic fundamentalism, environmentalism and feminism. 47. Moravcsik, A. (2002), ‘Reassessing legitimacy in the European Union’ (Journal of Common Market Studies 40:4), p. 605. 48. Ibid., p. 610. 49. European Commission (2001b), p. 7. 50. Scharpf, F. (1988), ‘The Joint Decision Trap: Lessons from German Federalism and European Integration’ (Public Administration 66), p. 165. 51. Latin: ‘We are European citizens’. 52. Enoch Powell first made this comment in his 1971–72 Bruges speeches. However, it has often been repeated by Eurosceptic Conservative politicians, such as David Heathcoate-Amory and 19 other Conservative MPs, in their contribution to the European Constitutional Convention evidence (24 October 2002); Norman Tebbit, member of the House of Lords (Bruges Group, http://www.brugesgroup. com/mediacentre/interviews.live?article=141) and Roger Helmer, MEP, in his speech to the Sixth Congress for Democracy, London, 13 July 2001 (http://www. congressfordemocracy.org.uk/ Helmer%20speech.html). 53. Decker (2002), p. 258. 54. Kohler-Koch, B. (2001), ‘The Commission White Paper and the Improvement of European Governance’ (contribution to the Jean Monnet Working Paper No. 6/01 Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance). 55. Closa, C. (1998), ‘EU citizenship and supranational democracy’ in Weale, A. and Nentwich, M. (eds), Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship (London, Routledge), p. 173.

Notes 193 56. Weiler, J. (2003), ‘A Constitution for Europe: some hard choices’ in Weiler, J., Begg, I. and Peterson, J. (eds): Integration in an Expanding European Union: Reassessing the Fundamentals (Oxford, Blackwell), p. 20. 57. Buonanno and Deakin, citing Tönies (1957), point out that artificial state construct of identity (Gesselschaft) tends to be less stable than the organic ‘deep sense of belonging’ (Gemeinschaft) formed from close relationships between the individual and her/his family, neighbourhood and village. Buonanno, L. and Deakin, A. (2004), ‘European Identity’ in Nugent, N. (ed.), European Enlargement (Basingstoke, Palgrave), p. 85. Lacroix (2002) suggests, citing Waltzer 1997, that where the two forms of community (the moral and the legal) do not coincide, legitimacy is always called into question. Lacroix, J. (2002), ‘For a European Constitutional Patriotism’ (Political Studies 50:5), p. 944. 58. Faist, T. (2001), ‘Social Citizenship in the European Union: Nested Membership’ (Journal of Common Market Studies 39:1), p. 46. 59. Kohler-Koch (2001). 60. Buonanno and Deakin (2004), pp. 92–3. 61. EU-15 only – the new member states were asked to describe themselves as either ‘nationality only’ or ‘European to some extent’. However, the Candidate Countries’ Eurobarometer 2003, found that only in Latvian and Slovakian were as many of 6 per cent respondents were prepared to state that they would regard themselves as ‘European Only’ after enlargement. European Commission, Directorate General (Press and Communications) (2003), Candidate Countries’ EuroBarometer (Brussels, Commission of the European Communities), p. 60. 62. European Commission, Directorate General (Press and Communications) (2004c), Standard EuroBarometer 61 (Brussels, Commission of the European Communities). 63. European Commission, Directorate General (Press and Communications) (2004d), Standard EuroBarometer 62 (Brussels, Commission of the European Communities). 64. Pogany, I. (2005), ‘Post-Communist Legal Orders and the Roma: Some implications for EU enlargement’ in Sadurski, W., Czarnota A. and Krygier, M. (eds), Spreading Democracy and the Rule of Law? Implications of EU Enlargement for the Rule of Law, Democracy and Constitutionalism in Post-Communist Legal Orders (Dordrecht, Springer Science). 65. Batt, J. (2001), ‘ “Fuzzy Statehood” and European integration in central and eastern Europe’ (Birmingham: Centre for Russian and East European Studies, http://www.crees.bham.ac.uk/research/statehood/index.htm). 66. Marx, K. ([1848] 1988), The Communist Manifesto (New York and London, W.W. Norton and Company), p. 65. 67. Ibid., p. 72. 68. Armstrong, K. (2001a), ‘The White Paper and the rediscovery of civil society’ in ‘EUSA Review Forum: The Commission White Paper and European Governance’ (EUSA Review 14:4). 69. Lacroix (2002), p. 945. 70. From Beethoven’s Ninth Symphony (1823) using the wording of Schiller’s 1875 poem. 71. The EU’s symbols: http://europa.eu.int/abc/symbols/emblem/index_en.htm 72. The EU’s symbols: http://europa.eu.int/abc/symbols/9-may/index_en.htm 73. http://europa.eu.int/comm/culture/eac/other_actions/cap_europ/cap_eu_en.html From 1985–2004, the decision was made intergovernmentally, but Decision 1419/1999/EC formalised the procedures from 2005. 74. European Council (2004), Article 1–8.

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75. For example, Magnette, P., Lequesne, C., Jabko, N. and Costa, O. (2003), ‘Conclusion: diffuse democracy in the European Union: the pathologies of delegation’ (Journal of European Public Policy 10:5). 76. European Commission, Directorate General (Press and Communications) (2004c). 81 per cent of the EU-15 and 87 per cent of (then) future citizens knew that it was blue with yellow stars; but 67 per cent of both groups thought that there was one star for each member state. 77. European Commission, Directorate General (Press and Communications) (2004c). 78. Ibid. 79. Ironically, Beethoven himself was a citizen of Bonn, originally in Westphalia, which became part of Prussia in 1815. It is unlikely that Beethoven considered himself primarily as German during his lifetime from 1770 to 1827, well before German unification 1848–71, but he has since been regarded as a German composer. The citizens of the EU could now, if they wished, similarly claim Beethoven and every other European artist of distinction as their own by adopting a ‘real’ European identity. 80. Manners, I. and Whitman, R. (2003), ‘The “difference engine”: constructing and representing the international identity of the European Union’ (Journal of European Public Policy 10:3), pp. 391–2. 81. Kagan, R. (2002), ‘Power and Weakness’ (Policy Review 113:3), http://www.policyreview.org/JUN02/kagan.html 82. Ibid. 83. Ibid. 84. Ibid. 85. Cox, M. (2003a), ‘Martians and Venutians in the New World Order’ review of Kagan (2003), Paradise and Power, America and Europe in the New World Order (London, New Atlantic Books) (International Affairs 2003 79:3 523–32), pp. 530, 531. 86. Kagan (2002). 87. Chirac, J. (2004), NATO summit press briefing, Istanbul 2004, http://www.elysee. fr/elysee/anglais/speeches_of_president_chirac/2004 88. Kagan (2002). 89. Decker (2002), p. 270. 90. Kohler-Koch, B. (2000), ‘Framing: the bottleneck of constructing legitimate institutions’ (Journal of European Public Policy 7:4), p. 514. 91. Wind (2001) pointed out that what matters is the public perception of transparency, not the actual position. 92. European Council (1991), Conclusions of the Presidency (Maastricht). 93. European Council (1992a), Conclusions of the Presidency (Lisbon); European Council (1992b); Conclusions of the Presidency (Edinburgh); European Council (1993); Conclusions of the Presidency (Brussels); Doc 93/730/EC, OJ L 340; European Council (1995), joint answer to written questions E-45/95 and E399/95,OJ C 230. 94. European Council (1998), Conclusions of the Presidency (Cardiff). 95. European Council (1999a), Conclusions of the Presidency (Cologne). 96. European Council (2000), Treaty of Nice: Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts (Brussels, OJ 2001/C 80) Declaration 23. 97. Settembri, P. (2005), ‘Transparency and the EU legislator’ (Journal of Common Market Studies 43:3), pp. 646–7. 98. Menéndez (2005), p. 8.

Notes 195 99. European Council (2001), Conclusions of the Presidency – the Laecken Declaration (Laecken). 100. Ibid. 101. Ibid. 102. Follesdal, A. (2003), ‘The political theory of The White Paper on governance: hidden and fascinating’ (European Public Law 9:1). 103. Curtin, D. (2001), ‘The European Commission’s White Paper on governance: A vista of unbearable democratic lightness in the EU?’ (Statewatch 11:6). 104. Eriksen, E. (2001), ‘Democratic or technocratic governance?’ (contribution to the Jean Monnet Working Paper No. 6/01, Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance). 105. MacCormick, N. (2001), ‘A comment on the Governance Paper’ (contribution to the Jean Monnet Working Paper No. 6/01 Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance). 106. Steinberg, P. (2001), ‘Agencies, Co-Regulation and Comitology – and what about politics? A critical appraisal of the Commission’s White Paper on governance’ (contribution to the Jean Monnet Working Paper No. 6/01, Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance). 107. European Commission (2001a), p. 16. 108. Wincott, D. (2001), ‘The White Paper, the Commission and the “Future of Europe” ’ in ‘EUSA Review Forum: The Commission White Paper and European Governance’ (EUSA Review 14:4). 109. Sbragia (2002). 110. MacCormick (2001). 111. Héritier, A. (2001), ‘The White Paper on European Governance: A response to shifting weights in inter-institutional decision-making’ (contribution to the Jean Monnet Working Paper No. 6/01 Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance). 112. Kohler-Koch (2001). 113. See Walker, N. (2001), ‘The White Paper in Constitutional Context’ (contribution to the Jean Monnet Working Paper No. 6/01 Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance) Kohler-Koch (2001); Wincott (2001); Héritier (2001); Eriksen (2001); Wind (2001) for example. 114. Eriksen (2001). 115. Ibid. See Eriksen’s paper for a more detailed description of governance. See also Wind (2001), who points out that Prodi himself equated ‘governance’ with ‘democracy’, and Kohler-Koch (2001). 116. European Commission (2001a), p. 7. 117. Ibid., p. 28. 118. Armstrong (2001a); Eriksen (2001). 119. Skach, C. (2005), ‘Constitutionalizing the European Union’ (Journal of Common Market Studies 43:1). 120. Ibid., pp. 149–50. 121. Menéndez (2005), p. 11. 122. Brunckhorst, H. (2003), A. Polity without a State? European Constitutionalism between evolution and Revolution, in Eriksen, E.O., Fossum, J.E. and Menéndez, A.J. (eds), Developing a Constitution for Europe (London, Routledge); Skach 2005, pp. 152–9 passim. 123. European Council (2001).

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124. Fossum, J. and Menéndez, A. (2005), ‘The Constitution’s Gift? A deliberative democratic analysis of constitution-making in the European Union’ (Oslo, Arena Centre for European Studies, Working Paper 05/13). 125. Pollak, J. and Slominski, P. (2004), ‘The representative quality of EU treaty reform: a comparison between the IGC and the convention’ (Journal of European Integration 26:3). 126. Closa, C. (2003), ‘Improving EU Constitutional Politics? A Preliminary Assessment of the Convention’ (Constitutionalism Web-Papers, ConWEB No. 1/2003 http://les1.man.ac.uk/conweb/). 127. Brunckhorst (2003). 128. Skach (2005), p. 151 noted that for many commentators, this was the main reason. 129. Weiler (2003), p. 18. 130. Brunckhorst (2003). 131. European Council (2004), Article I–22. 132. Ibid., Article 1–28. 133. Weiler (2003), p. 19. 134. Maurer, A. (2005), ‘The Convention and the national parliamentary dimension’ (Oslo, Arena Centre for European Studies, Working Paper 05/01). 135. European Council (2004), Articles I–42; III–276. 136. ibid., Articles III–259 (Area of Freedom, Security and Justice); IV-444 (Simplified Revision Procedure); Protocol on the role of national parliaments in the decisionmaking process; Protocol on the application of the principles of subsidiarity and proportionality. 137. Ibid., Articles I–34 and III–396. 138. Ibid., Articles III–403 to III–409. 139. Ibid. 140. Ibid., Article I–27 (1). 141. Ibid. 142. Ibid., Article I–27 (2). 143. Brunckhorst (2003). 144. Enlargement is certainly significant, but it poses logistic rather than radical issues for the EU, and, given that the ‘big bang’ of the entry of the CEEC states has taken a decade to achieve, the EU has had plenty of time to prepare for it. 145. Scharpf (2003), p. 1. 146. See Lequesne, C. and Rivaud, P. (2003), ‘The Committees of Independent Experts: expertise in the service of democracy?’ (Journal of European Public Policy 10:5). Their article points out that even the Committees of Independent Experts used by the EP risk the possibility of capture by the EP, and, thereby a reduction of supranational legitimacy. 147. See Höreth, M. (1999), ‘No way out for the beast? The unsolved legitimacy problem of European governance’ (Journal of European Public Policy 6:2) for a more detailed discussion of this dilemma.

4. Acting and interacting: participatory democracy and EU legitimacy 1. For example, Mather, J. (2000), The European Union and British Democracy: Towards Convergence (Basingstoke, Macmillan). See also Banchoff, T. and Smith, M. (1999), ‘Introduction: conceptualizing legitimacy in a contested polity’ in

Notes 197

2.

3. 4. 5. 6. 7. 8. 9. 10. 11.

12. 13. 14.

15.

16. 17.

18.

19. 20.

21. 22.

23. 24.

Banchoff, T. and Smith, M. (eds), Legitimacy and the European Union (London, Routledge). There is provision in the Portuguese and Hungarian constitutions for a referendum to be called by the people. The Irish constitution requires a referendum whenever there is a question of a transfer of power. See Mather (2000), pp. 21–8 for a more extensive discussion on forms and limits of participatory democracy. Lukes, S. (1974), Power: A Radical View (London and Basingstoke, Macmillan Press Ltd). Beyers, J. (2002), Voice and Access: Political practices of diffuse and specific interest associations in European policy-making (Arena Working Papers WP 02/39). Scharpf (2003). Beyers (2002). The Committees and their functions are constituted under Articles TEC 257–262 (ESC) and TEC 263–265 (CoR). Marks, Hooghe and Blank (1996), p. 360. TEC Article 258 (ESC) and Article 263 (CoR). See Jeffery, C. (2002b), ‘Social and Regional Interests: ESC and Committee of the Regions’ in Peterson, J. and Shackleton, M. (eds), The Institutions of the European Union (Oxford, Oxford University Press), pp. 326–7 and Bourne (2001), ‘Regional Europe’ in Cini, M. (ed.), European Union Politics (Oxford, Oxford University Press), p. 281 (re CoR). Nicoll and Salmon (2001), pp. 159–60. The Social Partners are not necessarily members of the ESC, although they may have connections with it. Articles 138–139, as amended by Treaty of Nice (2000). See Reale, A. (2003), ‘Representation of interests, participatory democracy and lawmaking in the European Union: which role and which rules of the social Partners?’ (Jean Monnet Working Paper 15/03), pp. 7–8 for a fuller explanation of this procedure. Szyszczak, E. (2002), ‘Social Policy in the post-Nice era’ in Arnull, A. and Wincott, D. (eds), Accountability and Legitimacy in the European Union (Oxford, Oxford University Press), p. 339. Reale (2003), p. 8. The Commission White Paper on Governance, p. 15 , suggests more use of the Social Partners in this context. Jeffery, C. (2001), ‘Regions and the European Union: letting them in and leaving them alone’ (Federal Trust, accessed via http://www.fedtrust.co.uk/uploads/ constitution/jeffery.pdf), p. 5. Watson, R. and Shackleton, M. (2003), ‘Organized interests and lobbying in the EU’ in Bomberg, E. and Stubb, A. (eds), The European Union: How Does it Work? (Oxford, Oxford University Press), p. 89. White Paper on Governance, p. 17. Mahoney, C. (2004), ‘The Power of Institutions: state and interest group activity in the European Union’ (European Union Politics 5:1), p. 446. She notes that most of these groups are citizen/social organisations. Ibid., p. 448. Beyers, J. and Kerremans, B. (2004), ‘Bureaucrats, politicians and societal interests: how is European policy-making politicized?’ (Comparative Political Studies 37:10), p. 1123. They estimate that there are about 16,000 officials, not all of whom are technical specialists. Acknowledged in the Commission White Paper on Governance (2001), pp. 9, 33. Mahoney (2004), p. 449.

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25. Peters, B.G. (1994), ‘Agenda setting in the European Community’ (Journal of European Public Policy 1:1), p. 20. 26. Peterson, J. (1995a), ‘Decision-making in the European Union: towards a framework for analysis’: (Journal of European Public Policy 2:1), p. 88. 27. Peterson, J. (1995b), ‘Playing the Transparency Game: Consultation and Policy-making in the European Commission’ (Public Administration 73:3). 28. Eising, R. (2003), ‘Interest groups and the European Union’ in Cini, M. (ed.), European Union Politics (Oxford, Oxford University Press), p. 200. He notes that about 82 per cent of organisations listed by the Commission are producer or employer interest groups and comments that business groups have a greater capacity for organisation and more flexibility in terms of responding to EU integration than other interests. Mahoney (2004, p. 450) found that there was a greater proportion of business than any other representation on the Commission’s consultative committees; whilst most groups had no representation at all (p. 455). On the other hand, Beyers and Kerremans (2004), p. 1136 comment that consumer and environmental interests have a more favourable position than organised labour and sectoral business interests, because they have a more privileged access to the EP. 29. Eising (2003), p. 193. 30. Lobbying groups can be based in a member state, but pan-European Groups (Euro-groups) are now more common. 31. Beyers and Kerremans (2004), p. 1136. 32. Some lobbyists do travel to and work in Strasbourg, though, because MEPs are easy targets when they are travelling between Brussels and Strasbourg or in the evenings when they are otherwise free (see Watson and Shackleton (2003), p. 104). 33. Beyers and Kerremans (2004), p. 1124. 34. Watson and Shackleton (2003), p. 91. 35. In 2001, the Committee of the Regions estimated that there were about 190 sub-national authorities with Brussels offices (Watson and Shackleton, p. 94). 36. Tongue, C. (2003), ‘EU lobbying: a view from both sides’ in Morgan, R. and Steed, M. (eds), Choice and Representation in the European Union (London, Kogan Page, Federal Trust Series). A former MEP, Tongue noted that the lobbyists who had most influence were those who were ‘personable’, who developed ‘longterm personal relationships’, and who gave ‘consistent expert advice’ that busy, technically ignorant MEPs needed. 37. Beyers and Kerremans (2004), p. 1141. 38. John, P. (1994), ‘The Presence and Influence of United Kingdom Local Authorities in Brussels’ (Joseph Rowntree Foundation, accessed via: http://www.psa.ac. uk/cps/1994/john.pdf). 39. Costa, O., Jabko, N., Lequesne, C. and Magnette, P. (2003), Diffuse control mechanisms in the European Union: towards a new democracy?’ (Journal of European Public Policy 10:5), p. 666. 40. The policy-cycle model is a useful tool for analysing policy-making, although critics have commented that it oversimplifies the complexities of policy-making in the real world. Here, however, it is adopted because it is possible to see from it how groups input into the different stages of policy-making varies. 41. See Jeffery, C. (2002a), ‘The “Europe of the Regions” from Maastricht to Nice’ (Queen’s Papers on Europeanisation, No. 7/2002) for a full account of the aims and achievements of this campaign. 42. Popular demands are unlikely to exert too much pressure on the EU’s decisionmaking processes, because to date, it appears that the EU’s citizens want it to do less, rather than more.

Notes 199 43. Héritier, A. (1999), ‘Elements of democratic legitimation in Europe: an alternative perspective’ (Journal of European Public Policy 6:2), p. 273. 44. Bartle, I. (1999), ‘A future pan-European regulator for telecommunications?: Agenda-setting in a system of multi-level governance’ (Paper presented to European Consortium for Political Research (ECPR), Joint Sessions, Mannheim, Germany, March 26–31). To date the appointment of a regulator has not been accepted by member states. 45. Héritier (1999), p. 274. 46. Benz, A. and Eberlein, B. (1999), ‘The Europeanization of regional policies: patterns of multi-level governance’ (Journal of European Public Policy 6:2). 47. There is a body of literature concerning the evaluation, in democratic terms, of participation, especially in relation to who should take part. The arguments are examined in Mather (2000), pp. 30–2, and in Mather, J. (1995), ‘Democratic impediments to participatory democracy’ (Politics 15:3). It is a matter of judgement as to whether the primary participants ought, from the point of view of legitimacy, be those who have most to gain, or those who are disinterested. However, a policy that suits those who have the greatest interest in it is most likely to be thought legitimate. 48. See, for example, Marks et al. (1996). 49. Marshall, A. (2005), ‘Europeanization at the urban level: local actors, institutions and the dynamics of multi-level interaction’ (Journal of European Public Policy 12:4), p. 671. 50. Benz and Eberlein (1999), p. 336. 51. European Council (1999), Conclusions of the Presidency (Berlin, European Council, 24 and 25 March). 52. http://europa.eu.int/comm/regional_policy/intro/regions7_en.htm 53. The 1999 Berlin Council decided that central governments should continue to select their partners. 54. http://europa.eu.int/comm/regional_policy/intro/regions7_en.htm 55. See Benz and Eberlein (1999), pp. 336–7 for a full account of the part played by the German Länder in Structural Fund policies. 56. Marshall (2005), pp. 674–5. 57. Department of Employment, Transport and the Regions (1997), Building Partnerships for Prosperity: Sustainable Growth, Competitiveness and Employment in the English Regions (London, The Stationery Office Ltd), p. 48. 58. Article 211 TEC. 59. Dehousse, R. (2003), ‘Comitology: who watches the watchmen?’ (Journal of European Public Policy 10:5), p. 800. 60. Council of the European Union (1999), ‘Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission’ – Article 3 (Official Journal, L184, 1999/468/EC). 61. Dehousse (2003), p. 810. 62. Harlow, C. (2002), Accountability in the European Union (Oxford, Oxford University Press), p. 68. 63. Archer, C. (2001), The European Union: Structure and Process (London and New York, Continuum), p. 43 citing Evans, A. (1998), ‘European Union decision-making; third states and comitology’ (International and Comparative Law Quarterly, 47:2). 64. According to the Commission’s 2005 report, the range was between almost 97 to almost 100 per cent (see http://europa.eu.int/comm/secretariat_general/ sgb/droit_com/index_en.htm#transpositions). 65. Bache (1999), p. 42.

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66. Closa, C. (2004), ‘Ratifying the EU Constitution: Referendums and their implications’ (Washington DC, the Brookings Institution, US-Europe Analysis series). As he points out, a referendum is not needed in any EU state to ratify an international treaty. Because of the intergovernmental nature of the EU, strictly speaking an EU treaty qualifies as an international treaty. However, referenda are required in some states where the constitution is affected by an international treaty. 67. See Closa (2004) for a wider discussion of the reasons for calling referenda. 68. http://www.tns-sofres.com/etudes/pol/290505_referendum_r.htm 69. Keohane, D. (2005), ‘Don’t forget the Dutch referendum’ (Centre for European Reform, Briefing Note; www.cer.org.uk). 70. Eighty-five per cent of the House of Representatives, as well as the government, advised a ‘yes’ vote – Nicolaï, A. (2005), ‘Modest, Honest and Ambitious: Towards a New Europe for the People’ (The Hague, Netherlands Institute of International Relations, speech by the Dutch Minister for European Affairs, marking start of the UK presidency of the EU, 15 July 2005). 71. The proposed weighted majority would require at least fifteen states encompassing at least 65 per cent of the population (Conference of the Representatives of the Governments of the Member States (2004)), Treaty Establishing a Constitution for Europe (Brussels, CIG 87/1/04, Rev 1, 13 October), Article 1.25. 72. See the Preamble, the Charter of Fundamental Rights of the Union and Section III on culture in the Treaty. 73. Duff, A. (2002), ‘Contribution by Mr Andrew Duff, Member of the Contention “A Model Constitution for a Federal Union of Europe” ’ (Brussels, The European Convention, Conv 234/02; Contribution 82). Duff suggested that an option for ratification could be by a two thirds majority vote in the EP and ‘by a referendum of all the EU’s citizens’. 74. Duff, A. and Voggenhuber, J. (2005), Report on the period of reflection: the structure, subjects and context for an assessment of the debate on the European Union (Brussels, Committee on Constitutional Affairs, A6-0414.2005; 2005/2146(INI)) – supporting material from the Foreign Affairs Committee. 75. Weiler (2003), pp. 19–20. 76. This figure is calculated from the number of voters in France and in the Netherlands who voted against ratifying the Treaty as a percentage of the size of the EU electorate. 77. European Council (2005), Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty Establishing a Constitution for Europe (Brussels, European Council, SN117/05 18 June 2005). The Austrian presidency of 2006 has, however, suggested taking the process further. 78. Abromeit, H. (1998), Democracy in Europe: Legitimising Politics in a Non-State Polity (New York and Oxford, Berghahn Books), pp. 102–27 passim. 79. White Paper on Governance (2001), pp. 11–12. 80. Ibid., p. 32. 81. Ibid., p. 33. 82. Ibid., p. 9. 83. Ibid., p. 12. 84. Ibid., p. 13. 85. Ibid., p. 14. 86. For example, ibid., pp. 14, 33 – national governments would have to act in order to make greater use of regional and local actors’ skills and experience. 87. White Paper on Governance (2001), p. 17.

Notes 201 88. Armstrong, K. (2001b), ‘Civil Society and the White Paper – bridging or jumping the gaps?’ (Symposium: Mountain or Molehill: a Critical Appraisal of the Commission White Paper on Governance, Jean Monnet Working Paper 6/01). 89. Magnette, P. (2003), ‘European governance and civic participation: beyond elitist citizenship?’ (Political Studies 51:1). 90. Steinberg (2001). 91. Follesdal (2003). 92. Armstrong (2001a). 93. Skach (2005), pp. 161–5 passim. 94. Menéndez (2005), p. 1. 95. 250 words, compared to the original Treaty’s 420. 96. European Council (2004), Articles III. 203–208 (employment) and III 209–219 (social policy). 97. Ibid., Article 1.5. 98. Ibid., Article III.280. 99. Ibid., Article 1.11. 100. Ibid. Protocol on the Application of the Principles of Subsidiarity and Proportionality, Article 2. 101. ibid. Protocol on the Application of the Principles of Subsidiarity and Proportionality, Article 8. 102. Jeffery (2001). 103. European Council (2004), Article 1.47. 104. For example, Germany, Article 17; France, Article 72.1; Italy, Article 15; The Netherlands, Article 5; Belgium, Article 28 and Greece, Article 10. 105. TEC Articles 21 and 194. 106. European Council (2004), Articles I. 10; II. 104 and III. 334.

5. A citizens’ European Union 1. Moravcsik (2002); Zweifel (2002). 2. Of course, the EU is composed of citizens already since the Maastricht Treaty, but they are citizens only in the formal sense. They have (admittedly limited) rights, but not the duties, and certainly not the responsibilities of citizens. Since individual citizens are not governed by the EU, duties are irrelevant. However, any citizen can take on responsibilities towards a polity, so long as s/he feels a sense of liability. Appreciation for, or pride in, a polity could develop responsibility. 3. Scharpf (2003). 4. Ibid. 5. European Commission, Directorate General (Press and Communications) (2005), EuroBarometer 63, First Results (Brussels, European Commission). 6. Is crime a social, economic or a political issue? To the extent that crime may arise from social and/or economic circumstances, it may be a social or economic issue, but international criminal activities may be political in nature, and dealing with it is primarily a political issue, especially in terms of international crime, which is the basis for EU activity in the field of justice and home affairs. 7. Hobbes (1988), p. 223: ‘The finall Cause, End, or Designe of men,    in the introduction of that restraint upon themselves    is the foresight of their own preservation, and of a more contented life thereby; that is to say, of getting themselves out from that miserable condition of Warre, which is necessarily consequent    to the naturall Passions of men, when there is no visible Power to keep them in awe, and tye them by fear of punishment    ’.

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8. It should be acknowledged that liberal representative democracies are not necessarily perfect examples of polities, and also that the extent of liberalism, representativeness and democracy varies amongst and within states. Nevertheless, living in a state based on human rights, the rule of law and accountable government is likely to be preferable to living under an authoritarian dictatorship to the majority of people. 9. Dunphy (2000), p. 173. 10. Gibbons, J. (1999), Spanish Politics today (Manchester, Manchester University Press). 11. Dunphy (2000), p. 169. 12. Ibid., pp. 166–7 Dunphy lists other factors, such as urbanisation, the decline of religion and the liability of weaker politics to become vulnerable to economic, cultural and political penetration. 13. Ginsberg, R. (1998), ‘The Impact of Enlargement on the Role of the European Union in the World’ in Redmond, J. and Rosenthal, G. (eds), The Expanding European Union: Past, Present, Future (Boulder, London, Lynne Rienner publishers), p. 205. 14. EEC, Article 237 (from the Treaty of Rome), incorporated into the TEU as Article O, renumbered Article 49 following the Treaty of Amsterdam renumbering of Treaty articles. 15. Formerly TEU Article F. 16. Baun (2000), p. 4. The Commission’s 2002 report: Towards The Enlarged Union – Strategy Paper and Report of the European Commission on the progress towards accession by each of the candidate countries (Brussels, 9.10.2002 COM (2002) 700 final) notes that: ‘These principles state that any transitional measure has to be limited in time and scope and be accompanied by a plan clearly defining stages for the application of the acquis. In addition, transitional measures must not involve amendments to the rules and policies of the Union, disrupt their proper functioning, or lead to significant distortions of competition.’ 17. Hungary, Poland, Czech Republic, Slovakia, Slovenia, Estonia, Lithuania, Latvia, Bulgaria, Romania. 18. In November, the Commission set out a revised enlargement strategy, which was accepted at the Nice European Council in December. 19. The CEECs plus Malta and Cyprus. 20. Although Hans van den Broek, then Commissioner for External Relations, commented in 1996 that ‘[candidate countries] cannot assume that enlargement will go ahead anyway for broadly political reasons or that serious shortcomings in preparations for membership will be taken care of by derogations or exceptions from Union rules’ Speech /96/150. European Union Rapid 7/6/96. 21. http://europa.eu.int/comm/enlargement/welcome.htm 22. ‘The Costs and Benefits of Eastern Enlargement’, Baldwin R., François J.F. and Portes R., Economic Policy 24, 1997, cited by the European Commission, http://europa.eu.int/comm/enlargement/welcome.htm 23. http://europa.eu.int/comm/enlargement/welcome.htm 24. European Council (2002b), Conclusions of the Presidency (Copenhagen, December). 25. For example, the readiness with which the US and the UK promised the Baltic states to Stalin in return for his co-operation during the Second World War. 26. Mather, J. (2004), ‘The citizenry: legitimacy and democracy’ in Nugent, N. (ed.), European Union Enlargement (Basingstoke, Palgrave), pp. 108–9. 27. European Commission (2002c).

Notes 203 28. The Treaty (Article 49) still states that: ‘Any European state    may apply to become a member    ’. 29. Mayer, F. and Palowski, J. (2004), ‘European identities and the EU’ (Journal of Common Market Studies 42:3), pp. 592–3. 30. The Five protocols were adopted between 1952 and 1966. 31. Weiler, J. and Fries, S. (1999), ‘The Human Rights context in which the European Union functions’ in Alston, P. (ed.), The EU and Human Rights (Oxford, Oxford University Press), p. 150. They note that the EU acceding to the World Trade Organisation (WTO) raised no such controversy. 32. The members of the body drafting the Charter were representatives of heads of government of the EU-15; the Commission, the EP and national parliaments (Annex to the Conclusions of the Presidency, Tampere 1999). 33. Declaration 23. 34. Heim, M. (2001), ‘The Charter of Fundamental Rights of The European Union; Recent Developments Following The Nice European Summit’ (http://www.theepc. be/Challenge_Europe/). 35. Mayer and Palmowski (2004), p. 589. 36. Heim (2001). 37. European Council (1993b):Conclusions of the Presidency (Copenhagen) 7 (iii). 38. See European Commission (2002f): Regular Report on Poland’s Progress Towards Accession (Brussels, 9.10.2002; SEC (2002) 1408; COM (2002) 700 final); European Commission (2002a), Regular Report on Slovakia’s Progress Towards Accession (Brussels, 9.10.2002; SEC (2002) 1410; COM (2002) 700 final) and European Commission (2002c), Regular Report on the Czech Republic’s Progress Towards Accession (Brussels, 9.10.2002; SEC (2002) 1402) COM (2002) 700 final) respectively. 39. European Commission (2002d): Towards The Enlarged Union – Strategy Paper and Report of the European Commission on the progress towards accession by each of the candidate countries (Brussels, 9.10.2002; COM (2002) 700 final). 40. Prasad, R. (2002), ‘No place of refuge’ (Guardian, 24 October 2002). This assumption is framed in Protocol C. (‘The Spanish Protocol’) in the Treaty of Amsterdam: ‘Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters’. 41. House of Lords, Select Committee on the European Union (2002), Defining Refugee Status and Those in Need of International Protection with Evidence, 28th Report (HL Paper 156, London, the Stationery Office Limited). 42. With the exception of Cyprus. 43. http://europa.eu.int/comm/enlargement/negotiations/chapters/chap2/index.htm – Poland, the Czech Republic and Slovakia are amongst the nine countries that have accepted the arrangement. 44. Batt, J. (2002), ‘Fuzzy Statehood’ versus Hard Borders: the impact of EU enlargement on Romania and Yugoslavia (ERSC ‘One Europe Or Several?’ Programme, Working Paper 46/02) citing Ingrao, C. (1999) ‘Understanding Ethnic Conflict in Central Europe: an Historical Perspective’ in Nationalities Papers, vol. 27, no. 2. 45. Ibid. 46. Newman, M. (1996), Democracy, Sovereignty and the European Union (London: Hurst and Company), p. 172. 47. Nugent (1994), p. 283. 48. Anderson, M., Boer, den M. and Miller, G. (1994), ‘European citizenship and cooperation in justice and home affairs’ in Duff, A., Pinder, J. and Pryce, R. (eds), Maastricht and Beyond (London and New York, Routledge), pp. 115–6.

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49. Hayes-Renshaw, F. and Wallace, H. (1995), ‘Executive power in the European Union: the functions and limits of the Council of Ministers’(Journal of European Public Policy 2:4), p. 568. 50. It was termed the K4 Co-ordinating Committee because it was set up under Article K4 of the TEU. It is now the Article 32 Committee under the renumbering of articles at Amsterdam. 51. Bunyan, T. (1993), ‘Secret Europe’ in Bunyan, T., Statewatching the new Europe (London, Statewatch), p. 39. 52. Anderson et al. (1994), p. 117. 53. Petite (1998). 54. Ibid. 55. Nentwich, M. and Falkner, G. (1997), ‘The Treaty of Amsterdam: Towards a new Institutional Balance’ (European Integration online Papers, vol. 1 No. 015, http://eiop.or.at/eiop/texte/1997–0115a.htm). 56. Article 24 TEC. 57. Constitutional Treaty Article I-14. 58. Ibid. Articles III-266 and 267. 59. Ibid. Articles III-269 and 270–277. 60. European Court of Justice (2003), Case number C176/03: Action for annulment – Articles 29 EU, 31(e) EU, 34 EU and 47 EU – Framework Decision 2003/80/JHA – Protection of the environment – Criminal penalties – Community competence – Legal basis – Article 175 EC. 61. Council Framework Decision 2003/80. 62. European Commission (2005), ‘Court of Justice strengthens democracy and efficiency in European Community lawmaking’ (Brussels, Press release, IP/05/11136). 63. European Commission (2002), Towards the Enlarged Union (Brussels, COM 2002 (700) final; SEC (2002) 1400–1412). 64. Ibid., p. 18. 65. Ibid., p. 26. 66. Ibid., p. 4. 67. Fink Hafner, D. (1999), ‘Dilemmas in managing the expanding EU: the EU and applicant states’ points of view’ (Journal of European Public Policy 6:5), p. 793. 68. Only twelve states are members of EMU, although all states are required to produce an annual report on their economic performance, and all, except the UK and Denmark, are required to join as soon as they meet the Maastricht criteria. 69. Smith commented: ‘As a rich man is likely to be a better customer to the industrious people in his neighbourhood than a poor, so is likewise a rich nation’, Smith, A. ([1776]1952), An Enquiry into the Nature and Causes of the Wealth of Nations (London, Benton), p. 212. 70. Richter, S. (2005), ‘Scenarios for the Financial Redistribution across Member States in the European Union in 2007–2013’ (Vienna, the Vienna Institute for National Economic Studies). 71. Incorporating the European Regional Development Fund (ERDF), the European Social Fund (ESF) the European Agricultural Guidance and Guarantee Fund (EAGGF) and the Financial Instrument for Fisheries Guidance (FIFG). 72. EU-15 beneficiaries are Spain, Portugal and Greece. Ireland, which lost eligibility in 2003, was originally included. 73. European Commission (1987), Making a Success of the Single Act: A New Frontier for Europe (Brussels, COM (87) 100). 74. Magone, J. (2004), ‘Spain: a middle-sized country with ambitions’ (Manchester Metropolitan University, Conference on the Size of EU States, November).

Notes 205 75. This was narrowed down from seven Objectives in the 1994–1999 period, in accordance with Council Regulation (EC) ‘laying down general provisions on the Structural Funds 1998’, and as agreed by the Berlin European Council 1999. 76. It is funded from ERDF, ESF and FIFG; with support from EAGGF to rural development. 77. It is funded from ESF. 78. Richter (2005). 79. Although in the Greek case it was suspended in 1967 when Greece reverted to dictatorship. 80. Dunphy, R. (2000), ‘Escaping from the jackboots: Spain, Portugal, Greece’ in Gowland, D., O’Neill, B. and Dunphy, R. (eds), The European Mosaic (Harlow, Longman). 81. These are the Phare programme, aimed at improving administration and investment; the Instrument for Structural Policies for Pre-Accession and the Special Accession Programme for Agriculture and Rural Development. 82. Verheugen hearing to European Parliament, July 1999. 83. Baun, M. (2000), A Wider Europe: The Process and Politics of European Union Enlargement (Maryland, Rowman and Littlefield Publishers), p. 5. 84. European Commission (1997b): Bulletin of the European Union, Supplement 5.97 (Luxembourg, OOP, 1997). 85. Dehousse, F. and Coussens, W. (2004), ‘The Commission’s propositions for the enlargement negotiations on agriculture, structural funds and the budget: an analysis’. http://www.irri-kiib.be/papers/DehousseCoussens2.pdf 86. European Commission (1999), Draft of Commission Information Brochure for the General Public on Agenda 2000 Priority Publications Programme 1999, X/D/5 Final version 31.8. 87. Hübner, D. (2005), ‘Commissioner Hübner celebrates one year of cohesion policy in the enlarged EU: successes so far and challenges ahead’ (Brussels, Press Release, IP/05/516, 29 April). 88. Baun (2000) noted that the CEECs’ per capita GDP was only 40 per cent of the EU average – and less than half that of the Cohesion states. 89. Hübner (2005). 90. European Council (2002). 91. Ibid. 92. Czerwinska, ´ I. (2002), Warsaw Voice (issue No. 44 (732), 03 November 2002) http://www.warsawvoice.pl/v728/Business07.html 93. European Commission (1997a): ‘Agenda 2000: For a stronger and wider Union’, Bulletin of the European Union, Supplement 5.97 (Luxembourg, OOP, 1997). 94. The Directorate General for Economic and Financial Affairs repeats this assumption in its paper: ‘The economic impact of enlargement’ (European Communities K-AA-01-001-EN-C Number 4 June 2001), p. 31. 95. Eurostat figures, adapted, accessed via http://epp.eurostat.cec.eu.int/portal/page?_ pageid=1996,39140985 & _ dad = portal & _ schema = PORTAL & screen = detailref & language=en&product=SDI_MAIN&root=SDI _MAIN/sdi/sdi_ed/sdi_ed_inv/sdi_ ed1110 96. Verheugen, G. (2002), Speech to European Parliament (Speech 02/464 http:// europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=SPEECH/02/ 4620RAPID&lg=EN). 97. World Bank (2004), Global Economic Prospects, Appendix One: Regional economic prospects http://siteresources.worldbank.org/INTRGEP2004/Resources/ appendix1.pdf

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98. EBRD (2005), http://www.ebrd.com/country/index.htm 99. http://europa.eu.int/scadplus/leg/en/lvb/l25047.htm 100. Beugelsdijk, M. and Euffinger, S. (2005), ‘The effectiveness of structural policy in the EU’ (Journal of Common Market Studies 43:1), p. 50. 101. Article 130a, renumbered Article 158 TEC. 102. Article 130b, renumbered Article 159 TEC. 103. Article 2 TEC. 104. Articles 125–130 TEC. 105. http://www.ibeurope.com/Factfile/78unemp.htm 106. http://europa.eu.int/comm/employment_social/employment_analysis/employ_ 2004_en.htm 107. http://www.ibeurope.com/Factfile/78unemp.htm 108. European Commission, Directorate General (Press and Communications) (2002), Eurobarometer 57 (Brussels, Commission of the European Communities). 109. European Commission, Directorate General (Press and Communications) (2005). 110. Surprisingly, respondents seemed relatively unaware of existing EU financial support. 111. Richter, S. (2002), ‘The EU enlargement process: current state of play and stumbling blocks’ (Vienna, The Vienna Institute for International Economic Studies), http://www.wiiw.ac.at/summCA17.html 112. European Commission, Directorate General (Press and Communications) (2005). 113. Feldman, L (1999), ‘Foreign relations and enlargement of the EU’ in Thomas Banchoff and Mitchell P. Smith (eds), Legitimacy and the European Union: The Contested Polity (London, Routledge), p. 78.

6. The EU’s external performance 1. There is a wealth of literature on this subject. Perhaps the most telling account, however, is the UN Human Development Report 2005: International Cooperation at a Crossroads: Aid, Trade and Security in an Unequal World (New York, United Nations Development Programme). 2. Manners and Whitman (2003), p. 382. 3. See also Feldman, L. (1999), ‘Reconciliation and legitimacy: foreign relations and enlargement of the European Union’ in Banchoff, T. and Smith, M.P. (eds), Legitimacy and the European Union (London, Routledge). 4. Nugent, N. (2003), The Government and Politics of the European Union, 5th edition (Basingstoke, Palgrave), p. 407. 5. Ibid., p. 413. 6. Ibid., p. 408 (ed.). 7. Nugent, N. (ed.) (2004), ‘The EU and the 10 + 2 enlargement round: opportunities and challenges’, The Enlargement of the EU (Basingstoke, Palgrave). 8. Meunier, S. and Nicolaïdis, K. (2005), ‘The European Union as a trade power’ in Hill, C. and Smith, M. (eds), International Relations and the European Union (Oxford, Oxford University Press), p. 266. 9. Ibid., p. 265. 10. Ibid., p. 264. 11. Nugent (2003), pp. 408–9. 12. Mandelson, P. (2005), Statement by Commissioner Mandelson on the Chinese Textile issue (Brussels, Directorate General Trade of the European Union). 13. Oxfam (2003) (http://www.maketradefair.com).

Notes 207 14. Osborne, A. and Elliot, L. (2003), ‘EU farm chief slams poor nations’ demands’ (Guardian 05.09.03); Fischler, F. (2003), ‘Ten ingredients to make Cancun success’, Press conference Before WTO Ministerial in Cancún Brussels, 4 September 2003 – speech/03/384 http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action. gettxt=gt&doc=SPEECH/03/3840RAPID&lg=EN&display= 15. European Commission (2002g), Evaluating Humanitarian Action A guide (http://europa.eu.int/comm/echo). 16. Source: http://europa.eu.int/comm/echo 17. European Commission (1996b), Linking Relief, Rehabilitation and Development (LRRD) (Brussels, COM (1996) 153). 18. European Commission (2001d), Linking Relief, Rehabilitation and Development: An Assessment (Brussels, COM (2001) 153). 19. Vanhoonacker, S. (2005), ‘The Institutional Framework’ in Hill, C. and Smith, M. (eds), International Relations and the European Union (Oxford, Oxford University Press), pp. 74, 75. 20. http://europa.eu.int/comm/development/index_en.htm 21. Holland, M. (2002), The EU and the Third World (Basingstoke, Palgrave), p. 2. 22. European Communities (2005), Title 21: Development and relations with African, Caribbean and Pacific (ACP) states (Official Journal L60, vol. 48), p. II/1173. 23. Holland (2002), p. 198. 24. Ibid., p. 196. 25. http://www.asiapac.org.fj/cafepacific/resources/aspac/fijiacp.html 26. http://www.twnside.org.sg/title/ratification.htm 27. Manners and Whitman (2003), pp. 384–6 passim. 28. European Commission (2001c), Communication on the Impact of Enlargement on Regions Bordering Candidate Countries: Community Action for Border Regions (Brussels). 29. European Commission (2003), Communication from the Commission to the Council and the European Parliament: Wider Europe Neighbourhood: A New Framework for Relations with Our Eastern and Southern Neighbours (Brussels, COM (2003) 104 final), p. 3. 30. European Commission (2004c), Communication from the Commission: European Neighbourhood Policy Strategy Paper (Brussels, COM (2004) 373 final). 31. European Commission (2004a), Proposal for the New Financial Instrument (Brussels, COM (2004) 628 final). 32. European Commission (2004b), ‘European Neighbourhood Policy: the First Action Plans’ (Brussels, Press Release, IP/04/1453, 09 December). 33. Council of the European Union (2004), Statement on Belarus (Brussels, 14724/04). 34. Home page of ENP: http://europa.eu.int/comm/world/enp/index_en.htm 35. Sjursen, H. (2006a), ‘What kind of power?’ (Journal of European Public Policy 13:2). 36. Braithwaite, J. (2005), ‘State Building and the European Union’ in Chambers, M. (ed.), Global Europe Report 3: Rescuing the State: Europe’s Next Challenge (London, the Foreign Policy Centre, British Council; European Commission; Wilton Park), pp. 33–4. 37. Manners and Whitman (2003), pp. 390–1. 38. Kagan (2002). 39. Its GDP per capita is the highest of all of the accession states, and it is already 80 per cent of the EU average. It also has the lowest inflation rate. (European Commission (2002c)). 40. http://www.un.org/Depts/DPKO/Missions/unficyp/unficypB.html 41. Ibid.

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42. Kasoulides, I. (2002), Statement by the Minister of Foreign Affairs of Cyprus, Mr. Ioannis Kasoulides at the 10th Meeting of the Intergovernmental Conference for the Accession of Cyprus to the EU, at Ministerial Level (http://www.cypruseu.org.cy/eng/06_news/news093.htm). 43. Since the Turkish occupation of Northern Cyprus is unrecognised, its status postaccession would be ambiguous. However, the acquis applies only to the areas under the control of the Greek Cypriots, meaning that in practice, the Turkish area would be effectively ignored. 44. The Helsinki European Council, meeting in December (1999b), decided that: ‘The European Council underlines that a political settlement will facilitate the accession of Cyprus to the European Union. If no settlement has been reached by the completion of accession negotiations, the Council’s decision on accession will be made without the above being a precondition. In this the Council will take account of all relevant factors.’ This position was confirmed at the Seville summit in June 2002. 45. Vassiliou, G. (l Chief Negotiator for Cyprus Accession to the European Union, 2002), ‘European Union enlargement and Cyprus: political and economic implications’ (http://www.cyprus-eu.org.cy/eng/06_news/news081.htm). 46. The Commission’s Regular Report on Cyprus’s Progress Towards Accession (2002d), notes that: ‘by 2 August, after five rounds of talks, a total of over 50 sessions had been held without agreement on any core issue’. The talks were resumed in August, under the supervision of the UN’s Special Adviser (Brussels, SEC (2002) 1401; COM (2002) 700 final). 47. European Commission (2002a), Towards the Enlarged Union (Brussels, SEC (2002) 1400–1412, COM (2002) 700 final). 48. Verheugen, G. (2001), The Enlargement Process after Nice (Brussels, speech /01/7) http://www.eic.ac.cy/EN/Verheugen0101.htm 49. Clerides, G. (2002), http://www.hri.org/news/cyprus/cna/2002/02-11-04_1.cna. html Clerides later changed his mind and campaigned in favour of the Annan Plan, but at that point he was no longer President. 50. Rehn, O. (2005), ‘Cyprus: one year after Accession’ (Nicosia, Cyprus International Centre, Speech/05/278, 13 May 2005). 51. Sartori, G. (1987), The Theory of Democracy Revisited (London, Chatham House), p. 225. 52. Originally J-8 and J-16 , TEU; renumbered Articles 18 and 26 respectively. 53. Constitution for Europe, Articles I-28, I-40. 54. Originally Article J-4 TEU; renumbered Article 14 TEU. 55. European Council (1999c), Conclusions of the Presidency (Helsinki, 10–11 December) paragraphs 25–28. 56. Manners, I. (2006), ‘Normative power Europe reconsidered: beyond the crossroads’ (Journal of European Public Policy 13:2). 57. Kagan (2002). 58. See Hill, C. (2004), ‘EU foreign policy since 11 September 2001’ (Journal of Common Market Studies 42:1), pp. 152–4 for a more detailed analysis of the reasons for CFSP stagnation. 59. Hill (2004), pp. 151–2. 60. The UN Security Council’s permanent members are those that are permitted nuclear weapons under the 1968 Treaty on Non-Proliferation of Nuclear Weapons. As such they include both the UK and France, as well as China, Russia and the US. 61. Reuters, 14 November 1997.

Notes 209 62. Kozaryn, L. (1997), ‘British Forces ready if needed’ (American Forces Press Service, US Department of Defense). 63. King, L. (1998a), CNN February 7, with the Associated Press and Reuters. 64. Butcher, T. (1998), Electronic Telegraph, Thursday 29 January. 65. King (1998a). 66. King, L. (1998b), CNN February 23, with the Associated Press and Reuters. 67. General Affairs Council (1998), 2070th Council meeting General Affairs (Brussels, 23 February). 68. Presidency of the European Union (1998), Declaration on Behalf of the European Union on Iraq (Brussels, 03 March). 69. van Eekelen, W. (1998), ‘Debating European Security, 1948–1998’ (Sdu, The Hague, in cooperation with the Centre for European Policy Studies, 1 Place du Congrès, B1000 Brussels, 15 April 1998). 70. European Commission (2001a), ‘Statement by President Prodi on the attacks against the United States’ (Brussels, Europa Press release IP/01/1265). 71. European Council (2001b), ‘EU Joint declaration: September 11 attacks in the US’ (Brussels, CL01-054EN). 72. European Commission (2001e), ‘Action by the European Union following the attacks on 11 September’ (Brussels, Europa Press release, memo/01/327). 73. Hill (2004), p. 147. 74. Smith, M. (2004), Europe’s Foreign and Security Policy (Cambridge, Cambridge University Press), pp. 4–5. 75. Council of the European Union (2001), ‘Council Regulation (EC) No. 381/2001 of 26 February 2001, creating a rapid-reaction mechanism’ (Brussels, Official Journal L 57/5). 76. Szymanski, M. and Smith, M. (2005), ‘Coherence and conditionality in European foreign policy’ (Journal of Common Market Studies 43:1), p. 185. 77. Ibid., pp. 180–7 passim. 78. Manners and Whitman (2003), p. 392. 79. Braithwaite (2005), pp. 34–5. 80. Chalmers, M. (ed.) (2005), ‘Rescuing the State’, Global Europe Report 3: Rescuing the State: Europe’s Next Challenge (London, the Foreign Policy Centre, British Council; European Commission; Wilton Park), p. 21. 81. Sjursen, H. (2006), ‘The EU as a “normative” power: how can this be?’ (Journal of European Public Policy 13:2). 82. Avery, G. and Cameron, F. (1998), The Enlargement of the European Union (Sheffield, Sheffield Academic Press, UACES, Contemporary European Studies 1), p. 144. 83. European Commission (2002a), Regular Reports on Candidate Countries’ Progress Towards Accession (Brussels, 9.10.2002; SEC (2002) 1400–1411; COM (2002) 700 final). 84. European Commission (2004d), Report on the Results of the Negotiations on the Accession of Cyprus, Malta, Hungary, Poland, the Slovak Republic, Latvia, Estonia, Lithuania, the Czech Republic and Slovenia to the European Union (Brussels, European Commission). 85. Nello, S. and Smith, K. (1998), The European Union and Central and Eastern Europe (Aldershot, Ashgate), p. 56. 86. The Regular Report on Estonia states that over a quarter of its citizens are of Russian origin (European Commission (2002a) 1402). 87. See European Commission (2002a) 1402, pp. 23, 31, 33. 88. Ibid., p. 100. 89. European Commission (2002) 1404, p. 131. 90. Manners and Whitman (2003), pp. 385–6.

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Conclusion 1. As noted in Chapter 5, paradoxically the EU itself is responsible for diminished capacity within member states, but this is not the only reason. Some problems are simply too big to be dealt with by individual member states. 2. But see Rittberger’s (2004) argument that Treaty formers have given a stronger emphasis on legitimation than generally appreciated.

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Index

Accession Partnerships, 121, 122, 131, 132 accountability, 15, 17, 55, 66, 78–81, 95, 98, 101, 108, 112, 118, 128, 140 acquis communautaire, 83, 121, 130, 132, 138 and foreign policy, 165, 166 Adams, Gerry, 55 Adonnino Committee, the, 47 Afghanistan, invasion of, 161–2 Africa, 16, 146, 148 Africa Development Bank, the, 147 Afro Caribbean Pacific (ACP) countries, 148–9, 163 Agenda 2000, see under European Commission Ahern, Bertie, 54, 55 Al-Assad, Bashar, 151 Albania, 146 Algeria, 150 Ambrose, St, 15 American War of Independence, 27 Anastasius, emperor, see under European emperors Annan, Kofi, 154, 155 Annan Plan, 2003, 155 and arms inspection in Iraq, 159–60 Aquinas, St Thomas, 13, 20, 22 Armenia, 150, 151 Asia, 148 Asimov, Isaac, 36 Assembly of European Regions (AER), 94 Assembly, Welsh, 102 Association Agreements, 132, 152, 164 Augustine, St of Hippo, 15 Austria, 46, 63, 166 Austro-Hungarian empire, the, see under European empires Azerbaijan, 150, 151 Bangladesh, 146 Barcelona Process, the, 151

Beethoven, Ludwig van, 75 Belarus, 150, 151 Belgium, 6, 39, 60, 63, 70, 100 regions of, 94 Berlin Wall, fall of, 46, 76, 150, 157 Blair, Tony, 105, 160, 162 Bosnia-Herzegovina, 152 British Empire, the, see under European Empires budget, EU, 43, 44, 84, 101, 115, 119, 123, 130–1, 133, 139, 145, 146, 151, 175 Bulgaria, 121 Burke, Edmund, 26–8 Byzantine Empire, the, see under European Empires Catherine of Aragon, 21 Cecchini Report (on the Single Market Programme), 49 Cem, Ismail, 154 central and east European countries (CEECs), 120, 121, 122, 126, 130, 134, 139, 140, 150, 166 farmers, 133 Charlemagne, see under European emperors Charles the Bald, see under European emperors Charles I, see under European monarchs Charles V, see under European emperors Charter of Fundamental Rights of the European Union, 54, 123–5 Charter of Fundamental Social Rights of Workers, 123 Chartists, the, 28 China, 145, 160 Chirac, Jacques, 77, 160, 161 Churchill, Winston, 70

224

Index 225 ‘Citizens’ Europe’ Committee, see Adonnino Committee, the citizenship, 1, 2, 3, 69, 85, 173 European, 50–1, 73, 77, 111, 117, 123, 142 national, 73, 122 civil society, 22, 23, 25, 80, 82, 93, 107, 108–9, 110, 111 civil war, the English, 22 Clement V, see under papacy, the Clerides, Glafcos, 154, 155 Clinton, Bill, 160 Cockfield, Francis, 46, 49 Cockfield Report, see under European Commission, reports of co-decision procedure, the, 50, 53, 54, 84 Cohesion Fund, 131–2 Cold War, the, 52, 146, 157 comitology, 102–3 Committee of the Regions (CoR), 50, 82, 93–5, 99–100, 110–11 Common Agricultural Policy (CAP), 43, 131, 133–4, 146 Common Commercial Policy (CCP), 144 Common Defence Policy (CDP), 156, 157 Common External Tariff (CET), 144 Common Foreign and Security Pillar, 93 Common Foreign and Security Policy (CFSP), 50, 53, 54, 81, 156, 157, 168 Community method (of decision-making), 80, 81, 108 Community Pillar, the, 50, 80, 81, 93, 94, 99, 129 confederal consociation, 34, 44, 57 Conference of European Municipalities and Regions (CEMR), 94 Conference of Regions with Legislative Powers (REGLEG), 97, 110 Conservatism, Burkeian, 26–8 Constantine, see under European emperors Donation of, 17 Constitution for Europe, 59, 75, 79, 82–5, 86, 105, 106, 109, 110, 111, 112 Constitutional Convention (2002–03), 79, 82, 106 constitutional monarchy, 23, 26 constitution making, 109–10

constitutions, 20, 83, 104, 106, 107, 109, 111 German (Basic Law), 109 Irish, 29 UK, 23, 27 US, 23 contract theory, see social contract, the co-operation in the field of Justice and Home Affairs (JHA), 50, 53, 54, 81, 93, 127, 128–30, 157, 171, 176 Cotonou Agreement, 149 Council of Europe, 75 European Convention on Human Rights and Fundamental Freedoms, 54, 123 Social Charter, 123 Council of Ministers, 6, 7, 39, 41, 42, 43, 45, 50, 62, 79, 84, 92, 93, 94, 95, 96, 97, 98, 100, 101, 111, 119, 125, 170, 174, 177 General Affairs Council, 53, 127, 150, 160, 161 Justice and Home Affairs Council, 127 Special Committees of, 42 and the White Paper on Governance, 80–1 Council of Permanent Representatives (Coreper), 42, 100, 127 Council of the European Community/Union, see Council of Ministers Cowen, Brian, 54 crime, international, 116, 117, 126, 128, 139 Croatia, 121, 150, 152 Cyprus, 60, 120, 121, 135, 139, 140, 164, 166 Cyprus Problem, the, 153–6 Turkish Republic of Northern, 154, 164 Czech Republic, 63, 105, 122, 125, 135, 165 Danton, Georges Jacques, 24 Dayton Agreement, the, 152 d’Estaing, Giscard Valéry, 82 de Gaulle, Charles, 9, 34, 40, 42–4, 85, 86

226

Index

Delors, Jacques, 34, 45, 46, 47, 49, 130, 177 Delors Reports Making a Success of the Single Act 1987, 131 on Economic and Monetary Union 1989, 49 democracy Athenian, 104 and consent, 10, 12, 24, 68–78 and consultation, 14, 82, 96, 107, 173, 175 and the demos, 11, 59, 72–5 ‘diffuse’, 99 as an ideal, 28, 71 liberal representative, 2, 4, 8, 9, 14–15, 28, 30, 31, 32, 38, 45, 52, 57, 59–86, 87, 88, 89, 92, 112, 113, 114, 116, 118, 120, 122, 124, 125, 143, 173, 174, 175, 178 and the EU impact of elections, 62–8 representativeness of EP, 65, 80 and inputs and outcomes, 62 principles of, 59–60 and voting, 60–2 and liberalism, 28, 29, 38, 59–60, 61, 71, 74, 75, 78–9, 89, 140, 141, 145, 146, 157, 172, 173 its meaning, 61 non-majoritarian, 39, 57, 85 participatory, 5, 25, 58, 61, 87, 88, 89, 94, 95, 107, 110, 111, 112, 113, 173, 175 and the referendum, 8, 89, 91, 104, 112, 156, 175, 178 social, 46, 135, 137 democratic deficit, the, 52, 62, 65 Denmark, 6, 34, 54, 63, 104, 105, 136 joining the Communities 1973, 44 rejection of Maastricht Treaty 1992, 51 Dooge, James, 47 Dooge Committee, the, 47 Economic and Monetary Policy, see Economic and Monetary Union (EMU) Economic and Monetary Union (EMU), 47, 48, 49, 50, 99, 131, 136, 137

Economic and Social Cohesion, see regional policy Economic and Social Committee (ESC), 82, 93–5, 100 economic liberalism, 137, 147, 148, 149, 175 education, 102, 117, 132 Egypt, 150, 151 electoral systems, 60–3, 68, 112 ‘Empty Chair crisis’, 43 enhanced co-operation, 99, 115, 136 enlargement, 42, 44, 46, 53, 65, 85, 93, 115, 128 costs and benefits of, 138–41 and economic prosperity, 132–5 and justice and home affairs, 130 and legitimacy, 140–1 and political stability, 118–23 Enlightenment, the, 24–6 philosophers of, 24–6 environment, 47, 101, 103, 117, 129, 148 Estonia, 63, 134, 135, 165, 166 EU-Mexico Global Agreement 2000, 163, 168 European Assembly, 38, 41, 42, 44 European Atomic Energy Community (Euratom), see Treaty of Rome European centre of enterprises with public participation (CEEP), 94 European Coal and Steel Community (ECSC), see Treaty of Paris European Commission, 6, 34, 36, 37, 38, 40, 41, 42, 43, 45, 46, 47, 48, 52, 53, 62, 75, 79, 82, 92, 93, 94, 98, 100, 101, 102, 103, 107–9, 110, 111, 115, 119, 121, 122, 125, 127, 128, 129, 130, 132, 134, 150–1, 174 College of Commissioners, 100 Directorate-Generals, 93, 96, 100 expert and advisory committees, 93, 96, 100, 101 and lobbyists, 95, 97–8, 100 and the Maastricht Treaty, 50, 52 planning documents of ENP Action Plans, 151 Social Action Programmes, 135, 136 reports of Agenda 2000: for a stronger and wider Union, 133–4

Index 227 Impact and Effectiveness of the Single European Market, 49 Regular Reports (on accession states), 121, 122, 125, 130, 154, 165 White Paper on Governance, 59, 71, 79–81, 83, 85, 173 White Paper: Completion of the Internal Market (the Cockfield Report), 46–7, 49 see also Delors, Jacques, Delors Reports resignation of, 52 European Community/Union Treaties, 56, 57, 80, 94, 98, 99, 106, 107, 109, 110, 120 Accession 2003, 121 Accession 2005, 121 Amsterdam 1997, 52–4, 79, 85, 120, 128, 137 Reflection Group, 53 Constitutional 2004, 8, 35, 57, 82–5, 87–97, 104–7, 109–11, 112, 124, 136, 175 ratification of, 105–7 on European Union, see European Community/Union Treaties, Maastricht 1992 Establishing a Constitution for Europe, see under European Community/Union Treaties, Constitutional, 2004 Maastricht 1992, 34, 46, 49–52, 54, 56, 99, 100, 105, 136 Nice 2000, 52, 53, 54–5, 56, 57, 64, 79, 85, 95, 124, 129 Paris 1951, 31, 36, 37–40 Rome 1957, 31, 36, 40–2, 44, 47, 49, 135 European Council, 46, 62, 75, 80, 83, 84, 92, 94, 99, 101, 119, 129, 135, 150 meetings of Amsterdam 2000, 53 Berlin 1999, 133 Brussels 1985, 46, 47 Brussels 2002, 130, 133 Brussels June 2004, 82 Brussels November 2004, 82 Brussels June 2005, 107 Cannes 1995, 79 Cardiff 1998, 79

Cologne 1999, 54, 79 Copenhagen 1993, 120, 121 Copenhagen 2002, 120 Edinburgh 1992, 94 Helsinki 1999, 154, 157 Laecken 2001, 79, 82, 83 Lisbon 1992, 79 Lisbon 2000, 136 Maastricht 1991, 50, 78 European Court of Justice (ECJ), 2, 38, 39, 50, 93, 98, 99, 102, 110, 123, 124, 127, 128, 129 European Development Fund (EDF), the, 147 European Economic Community (EEC), see Treaty of Rome European emperors, 15–21 Anastasius, 16, 17 Charlemagne, 9, 17 Charles the Bald, 18 Charles V, 21 Constantine, 16, 17, 30 Henry IV, 19 Irene (official Emperor in Constantinople), 17 Justinus, 17 Lothar, 17 Louis, 17 Louis II, 17 Pippin, 17 Valentinian, 15 European empires Austro-Hungarian, 122 British, 158 Byzantine, 9, 16, 30 Habsburg, 28 Holy Roman, 7, 9, 15, 17, 21, 29, 30, 72, 168 Roman, 15, 16, 17, 18, 21, 30 Russian, 122 European Free Trade Association (EFTA), 42 European monarchs Charles I (England), 22, 23 François I (France), 21 Henry VIII (England), 21 James I (England), 23 James II (England), 23 Louis XIV (France), 24 William III and Mary II (England), 23

228

Index

European Monetary System (EMS), 49 European Parliament (EP), 2, 4, 6, 44, 45, 48, 51, 52, 79, 80, 82, 92, 93, 94, 96, 97, 98, 100, 101, 111, 134, 164, 174 and the Constitution for Europe, 83–4, 86 Constitutional Affairs Committee, 106 developing powers of, 45, 47, 50, 52 elections to, 57, 63, 66–8, 71, 85, 86 and lobbyists, 97 relevance to electors of, 64–8 and the resignation of the Santer Commission, 52 and the White Paper on Governance, 80–1, 83 European Political Co-operation, see foreign policy European Trade Union Congress (ETUC), 95 European Union Consultative Committees, see Committee of the Regions (CoR); Economic and Social Committee (ESC) European Union Minister for Foreign Affairs, suggestion for, 83, 84, 86, 157 European Union President, suggestion for, 83, 86 ‘Eurosclerosis’, 44 Federal EU, 3, 4, 35, 49, 57, 86, 87, 112, 113, 141, 168, 171, 173 Federation of European Industry (UNICE), 95 Finland, 46, 63, 132 First Pillar, the, see Community Pillar, the First World War, the, 28, 37 Fischer, Joschka, 79 Fischler, Franz, 146 foreign policy, 5, 47, 50, 52, 77, 81, 93, 99, 116, 117, 144, 145, 152, 153, 156–64, 165, 166–9 France, 12, 21, 24, 25, 27, 28, 34, 39, 41, 42, 43, 73, 104, 105, 119, 123, 133, 135, 136, 139, 145, 148, 158, 159 and the 1789–95 Revolution, 24–7 and the 1848 Revolution, 28 and arms inspection in Iraq, 159–61 and colonisation, 158

and near rejection of Maastricht Treaty 1992, 51 and rejection of the Constitutional Treaty, 57, 82, 105–6, 123, 156 and the invasion of Afghanistan, 161–2 Franco-German partnership, 119 Franco, Francisco, 30 ‘Fuzzy Statehood’, 126, 172 Gelastius I, pope, see under papacy, the Generalised System of Preferences, 148 Georgia, 150, 151 Germany, 18, 63, 100, 109, 131, 135, 137, 139, 145, 157, 160, 161, 162 Länder, 94, 99–100, 102 Nazi, 70 reunification of, 46 states of, 28 tribes of, 14 West, 39, 40, 41, 42 globalisation, 6, 31, 83, 85, 115, 134, 136, 143, 144, 145, 147, 176, 178 Glorious Revolution, the, 23, 24, 27 Gorbachev, Mikhail, 4 Government Offices (England), 102 Greece, 56, 60, 63, 118, 119–20, 132, 139, 145, 153, 154 Gregory I, see under papacy, the Gregory VII, see under papacy, the Gulf War 1991, 157, 159 Haas, Ernst B., 36 Habsburg empire, see under European empires Hallstein, Walter, 42–3, 45 health, environmental, 188 health, public, 88, 135, 148 Henry IV, Emperor, see under European emperors Henry VIII – King of England, see under European monarchs High Authority, the, 38, 39, 40, 41 High Representative (foreign policy), 157, 161, 162 Hirsch, Etienne, 37, 41 Hitler, Adolf, 30 Hobbes, Thomas, 20, 22, 23, 76 housing, 117 Hübner, Danuta, 133 Human Rights Act, UK, 123

Index 229 humanitarian aid, 143, 144–7, 149, 150, 152, 167 Hungary, 63, 122, 130, 134, 135, 166 immigration, 105, 117, 127, 128, 129 inflation, 117, 118, 137 interest groups, see under non-governmental organisations (NGOs) Intergovernmental conferences (IGCs), 83 1955–56 (pre Rome), 40 1985 (pre Maastricht), 47, 100 1990 (Economic and Monetary Union), 49–50 1990 (European Political Union), 49–50 1996–97 (pre Amsterdam), 53 2000 (pre Nice), 54 2003–04 (pre Constitutional Treaty), 79, 82 and differences from the Constitutional Convention, 82 intergovernmental method (of decision-making), 55, 93, 127, 129, 157 intergovernmentalism, 7, 42, 46, 50, 52, 83, 92, 96, 102, 107, 127, 128 internal market, see Single European Market (SEM) International Monetary Fund (IMF), the, 147 Iran, 168 Iraq, 77, 146, 168 arms inspection of, 159–61 Ireland, 51, 53, 54–5, 56, 57, 63, 104, 105 joining the Communities 1973, 44 Irene, Emperor, see under European emperors Israel, 150, 151 Italy, 28, 40, 41, 60, 63, 70, 100, 139, 145, 161, 162, 166 fascist, 70 regions of, 69 states of, 28 James I (English king), see under European monarchs James II (English king), see under European monarchs

Japan, 145, 174 Jordan, 150, 151 Juan Carlos, King, 120 Justinus, emperor, see under European emperors K4 Coordinating Committee, 127 Kantian state, 2–3, 77, 177 Kasoulides, Ioannis, 154 Kohl, Helmut, 119 Laecken Declaration, see European Council, meetings of, Laecken Latin America, 148 Latvia, 63, 122, 134, 135, 139, 166 Lebanon, 150, 151 legitimacy, 9–14 and allegiance, 10–11, 109, 144 ascending thesis of, 19–24 and authority, 1, 3, 5, 7, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 29, 30, 33, 35, 71, 116, 147, 158, 163, 166 and charisma, 21, 29, 30 and complexity, 12, 35, 170, 173 and confederal consociation, 44, 57 and consent, 5, 10, 11, 12, 20, 21, 22–4, 27, 37, 68–78, 102, 141 and constitutionalism, 30, 82, 122 and contentment, 69–71 deficit in, 12, 65, 81, 84, 110 definition of, 10–12 and democracy, 4, 5, 8, 10–14, 20, 23, 24–9, 30–2, 31, 34, 38–43, 44–5, 47, 50, 52, 58, 59, 78 descending thesis of, 15–19, 29, 30 and economic prosperity, 12, 69, 114, 116, 130–5, 139 and elites, 18, 29, 31, 39, 82, 85, 87, 91, 93, 106, 175 empirical, 11, 12, 29–30, 65 and enlargement, 115, 118–23, 140–1, 164–5, 166 and European integration, 5, 36, 44, 50, 52, 56, 57, 65, 80, 123, 128, 136, 144, 171, 173 and the feudal system, 18, 20 and the General Will, 25 and high politics, 143, 144, 153, 158–62, 167, 169

230

Index

legitimacy – continued history of, 14–29 and identification, 69–70, 72–5, 81, 86, 109 and the international community, 164–6 and legality, 11, 29, 30, 31, 71 and liberal democratic representation, 11, 24–9, 30, 31, 38, 44, 45, 59–86 and the Constitution for Europe, 82–5 in the EU, 78–85 and the White Paper on Governance, 79–82 liberal democratic thesis of, 19–29 and a multi-level system, 52, 57, 58, 80, 83, 101, 141, 171, 112 and non-governmental organisations (NGOs), 87–8, 89, 96, 101, 103, 108, 113 normative, 11, 12, 65, 114, 127, 128 and papal authority, 15, 16, 17–18, 20, 21, 29, 30 and parliaments, 4, 52, 56–7, 71, 86, 112 and participation, 5, 8, 11, 20, 24–5, 34, 35, 47, 58, 62, 68, 69, 71, 74, 87–113, 117 and EU Consultative Committees, 94 and the Constitution for Europe, 109–11 and the White Paper on Governance, 107–9 and peace and security, 19, 31, 71, 77, 126–30, 143, 167, 176 and peace-keeping, diplomacy, 152–3, 162–4 and people, 56–7, 58 and political stability, 118–23 and representation, 23–4, 28, 30, 45, 78, 86, 172, 173 and ‘Social Europe’, 135–7 spectrum of, 13–14 and state building, 144, 152–3, 167, 176 and tradition, 26, 30 and trust, 10, 29, 30, 69, 109 Weberian conceptualisation, 12, 29–30, 116 what is it for?, 10

Libya, 150, 151 Lindberg, Leon, 36 Lisbon Strategy, 136 Lithuania, 122, 165 Locke, John, 14, 22–4, 117 Lomé Conventions, the, 148–9 Lothar, Emperor, see under European emperors Louis XVI (French king), see under European monarchs Louis, Emperor, see under European emperors Lukashenko, Alexander, 151 Luxembourg, 6, 56, 60, 105, 106, 107, 121 Luxembourg Compromise/Accord, 43–4 Macedonia, 150, 152 Macpherson, C.B., 61 Malta, 60, 63, 104, 121, 135, 139, 140, 164, 166 Manegold of Lautenbach, 19 Marx, Karl, 61, 74 MEDA programme, 151 Messina, Conference of (1955), 40 Michel, Louis, 161 Michels, Robert, 62 Middle Eastern War (1973), 44 Millennium Goals, 149 Mitterrand, François, 45, 51, 105, 119 Moldova, 150, 151 Monnet, Jean, 9, 36, 37, 39, 40, 41, 43, 45, 156, 167, 177 Montesquieu, Baron de, see Enlightenment, the, philosophers of Morocco, 150, 151 multi-level EU, 3, 4, 35, 48–9, 58, 59, 83, 86, 99, 112, 113, 141, 167, 171 multi-level governance, 35, 58, 80, 101, 168, 171 Mussolini, Benito, 30 neofunctionalism, 36, 40, 116, 129, 167 functional spillover and, 36 political spillover and, 37 Netherlands, the, 6, 40, 56, 57, 63, 105, 106, 123 rejection of Constitutional Treaty, 57, 82, 105–6, 156 Nicaea, Council of, 16

Index 231 non-governmental organisations (NGOs), 36, 47, 48, 89 ‘bottom-up’ approach from, 88, 90, 92 and the EU, 92–104 as advisers and experts, 93, 95–6, 112 ‘bottom-up’ approach from, 92, 96 as decision-makers (‘Social Partners’), 95, 108, 110, 112 interactivity, 98–104 lobbying, 92, 93, 96–8 provision for, 93 ‘top-down’ approach towards, 92, 93, 96, 100, 101 and the White Paper on Governance, 108, 109 impact of, 89–91 informal participation of, 87 means of, 88–9 multi-level, 47, 48, 58 outsider groups, 90–1 tensions within, 91–2 ‘top-down’ approach towards, 87, 88, 90, 91, 92

non-governmental organisations (NGOs), see under non-governmental organisations (NGOs) referenda, see under referenda Pippin, Emperor, see under European emperors Poland, 63, 104, 105, 122, 125, 134, 135, 139, 166 Police and Judicial Co-operation in Criminal Matters, see co-operation in the field of Justice and Home Affairs (JHA) political stability, 118–23 passim Portugal, 46, 63, 105, 118, 119, 120, 132, 139 Prodi, Romano, 52, 54, 79, 161 proportionality, 53, 98–9, 110 Protocol on Social Policy, 50, 136 Protocol on subsidiarity and proportionality, 110

papacy, the, 15–21, 29, 30, 31, 34 Clement V, 21 Gelastius, 16 Gregory I, 15, 17 Gregory VII, 19 Stephen II, 17 parliament, Russian, 166 parliament, Scottish, 102 parliaments, national, 7, 38, 43, 45, 50, 51, 52, 55, 56–7, 62, 71, 82, 89, 107, 111, 112, 128, 129 development of, 14, 22, 23, 27 elections to, 60, 61, 66, 68 impact of the Constitution for Europe on, 83–4, 86 Protocol on national parliaments, 84 participation, political, 87–113 ‘bottom-up’, 88, 92 categorising, 87–91 and consultation, 91 and democracy, 88–9 enhancement of, 107–11 formal, 87 forms of ‘Citizens’ Jury’, 89 focus groups, 89

Radicals, the, 28 Rapid Reaction Force (RRF), 165 Rapid Reaction Mechanism (RRM), 163 Red Cross, the, 146 referenda, 8, 89, 91, 104–7, 175, 178 Amsterdam referenda, 54 Cyprus referendum, 155–6 Maastricht referenda, 51 Nice referenda, 54–5 Regional Development Agencies, 102 regional government, see sub-national governance regional policy, 47, 48, 49, 101, 131, 135 Rehn, Olli, 155 research and technological development, see under Single European Act, the (SEA) Reuter, Paul, 37 Robertson, George, 160 Robespierre, Maximilien, 24 Roma, the, 74, 125, 172 Romania, 121, 134, 166 Rousseau, Jean-Jacques, 13, 24, 25–6, 27 Russia, 151, 159, 160, 165–6 Russian empire, the, see under European Empires

qualified majority voting (QMV), 39, 43, 48, 53, 99, 127

232

Index

Saddam, Hussein, 159 Santer, Jacques, 52, 79 Schengen Agreement, 53, 127 Schuman, Robert, 36, 38, 39, 41, 46, 156, 167 Schuman Declaration/Plan, the, 37, 38, 42, 75 Second Pillar, the, see Common Foreign and Security Policy (CFSP) Second World War, 37 Serbia-Montenegro, 152 single currency, see Economic and Monetary Union (EMU) Single European Act, the (SEA), 34, 46, 47, 48, 49, 57, 127, 135, 157 and research and technological development, 48 Single European Market (SEM), 46, 47, 48, 49, 52, 127, 130, 135, 136, 137, 141–2, 151, 176 Slovakia, 63, 104, 122, 125 Slovenia, 63, 104, 134, 135, 139 Social Chapter, the, see Protocol on Social Policy Social Charter, the, 123, 135–6 social contract, the, 19, 21–4, 32 Social Fund, the, 135 Social Partners, the, 82, 95, 100, 108 social policy, 48, 95, 105, 108, 110, 116, 135–7 Solana, Javier, 162 sovereignty, 16, 22, 25 and high politics, 158–9 state/national, 2, 5, 6, 52, 105, 124, 125, 127, 144, 163, 168, 176–8 and the EU, 35, 37, 38, 48, 52, 54, 124, 126, 127, 128, 139, 168, 176, 178 Soviet Union, the former, 52, 70, 76, 140, 146 Spaak, Paul Henry, 40 Spain, 6, 12, 46, 56, 63, 70, 74, 100, 104, 105, 106, 118–20, 131, 132, 139, 145, 162 Stability and Growth Pact, the, 136, 137 Stability Programme for South-East Europe, 152 state-building, 33, 144, 150, 151, 152–3, 156, 163, 164, 167, 176

State-Centric EU/Europe, 3, 4, 34, 35, 42–5, 50, 57, 59, 85, 86, 87, 107, 112–13, 126, 127, 128, 141, 168, 170, 175 Stephen II, pope, see under papacy, the Structural Funds, the, 1, 97, 98, 101, 131–3 Structural Instrument for Pre-Accession, 131 structural policy, see regional policy Suárez, Adolfo, 120 sub-national authority(ies), see sub-national governance sub-national governance, 34, 47, 50, 57, 65, 94, 97, 99, 100, 101, 102, 103, 107, 108, 109, 110, 112, 125, 172 as lobbyists, 95, 97–8 subsidiarity, 50, 54, 80, 84, 94, 99, 110, 124 supranational polity, 3, 4, 5, 6, 7, 8, 30, 38, 40, 41, 59, 68, 71, 81, 83, 84, 86, 92, 96, 98, 101, 102, 126, 177, 178 supranationalism, 9, 15, 31, 39, 50, 52, 100, 102 Sweden, 6, 46, 56, 63, 104, 136 Syria, 150 TACIS programme, 151 Tacitus, 14 Taliban, the, 161 taxation, 117, 136, 147, 152 Technocratic Europe, 3, 4, 33–4, 35–42, 45, 57, 59, 85, 113, 127, 129, 141, 167, 170 terrorism, 6, 117, 149, 176, 178 Third Pillar, the, see co-operation in the field of Justice and Home Affairs (JHA) Third World, the, 143, 144, 150, 152 development of, 143, 147–9 three-pillar structure (Maastricht Treaty), 50 trade, 33, 42, 46, 47, 49, 103, 122, 124, 127, 130, 142, 143, 144–6, 148, 167 and Mutual Recognition Agreements, 145 trading policies, 46, 143, 145–6, 147, 149, 152, 157, 164, 165, 168, 176 transparency, 53, 54, 65, 78–9, 103, 128 transport, 40, 42, 117, 131

Index 233 Trevi process, the, 128 Treaty of Rome, 47, 135 Treaty of Paris, 38, 185 Tunisia, 150, 151 Turkey, 105, 106, 122–3, 154 accession partnership with, 122 application for membership of EU, 53 customs union with, 122 opposition to its membership of EU, 122 pre-accession financial instrument, 122 UK, the, 6, 7, 28, 42, 50, 56, 70, 72, 105, 136, 145, 148 joining the Communities 1973, 44 Ukraine, 150, 151, 152 unemployment, 116, 117, 124, 135, 138, 139 United Nations (UN), 123, 152, 157, 158, 168 Security Council of the, 160 Special Commission (UNSCOM), 159–60 and the Cyprus Problem, 154–5 Universal Declaration on Human Rights, 123 United States of America (US), 10, 42, 97, 145, 147, 153, 158, 168 and EU foreign policy, 158–62, 176 and the Kagan thesis, 76–7, 158 and trade with the EU, 145

USSR (former), see Soviet Union, the former Valentinian, emperor, see under European emperors Védrine, Hubert, 160 Verheugen, Günter, 132, 134, 154, 164 Verhofstadt, Guy, 161 Voltaire, François-Marie Arouet, see Enlightenment, the, philosophers of voting, see democracy, its meaning, and voting weapons of mass destruction, 159 Weber, Max, 12, 29–30 Western European Union (WEU), 157 Westphalia, Peace of, 28, 29, 75 Westphalian model, 37, 76, 173, 175 Westphalian state, 28, 76, 153, 156, 163, 176, 177 William III and Mary II (English monarchs), see under European monarchs Wilson, Harold, 105 World Bank, the, 134–5 World Trade Organisation (WTO), the, 90, 143, 145, 148, 168 Cancún Fifth Ministerial Conference of, 146 Yaoundé Conventions, the, 148 Yugoslavia (the former), 52, 144, 146, 150