SUPRANATIONAL INSTITUTIONS AND REGIONAL INTEGRATION

Edward Best1

INTRODUCTION The role of supranational institutions has long been the subject of exchanges between

countries involved in processes of regional integration. As the European Union (EU)

moves towards adopting a Constitution2 and the further development of integration

systems is discussed in Central and South America, it is a particularly appropriate moment

to reflect on what one actually means when talking about ‘supranational institutions’, and

to ask what conclusions can be drawn from theory and from inter-regional comparison

regarding the appropriateness of one kind of institutional arrangement or another.

The first part of this paper therefore sets out to clarify some concepts and to establish

some basic terms for comparison. It stresses that the ‘supranational institutions’ should not

be understood simply as common organs with some kind of formal powers at a higher

level. The supranational level is only meaningful in practice as part of a multi-level system

of governance, while institutions are better understood as sets of rules which may be

applied by particular organizations. It also emphasizes that supranationalism is neither

exclusive nor monolithic. It is better seen as being a set of rules and instruments involving

some form of sharing of sovereignty, which may be combined in different ways with more

intergovernmental practices of regional cooperation. It then proposes a basic taxonomy of

supranational elements, and outlines some of the arguments for and against

supranationalism which can be drawn from theory.

The second part looks at European experiences. Since the focus of this discussion is the

birth and worth of supranational institutions, it seems appropriate to look, with a little more

detail than is often the case in general comparisons, into the extraordinary circumstances

which account for this ‘mutation’ in the evolutionary process of the European state system.

1 Head of Unit at the European Institute of Public Administration (EIPA), Maastricht, The Netherlands. This paper is presented in a purely personal capacity. 2 The Treaty establishing a Constitution for Europe was signed on 29 October 2004 and had to be ratified within two years by all 25 Member States. At the time of writing (March 2005), three had done so but there was concern that the Constitutional Treaty might not be supported in one or more of the various national referendums scheduled.

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This part therefore first asks how and why supranationalism emerged in Europe, looking at

the particular elements which came together to make possible the creation of a

supranational High Authority for Coal and Steel, the ‘relaunch’ of the integration process in

the mid-1950s, and the legal-institutional system which was eventually adopted for the

European Economic Community in the Treaty of Rome. It then discusses the evolution of

the legal order and of decisional supranationalism. Finally, it outlines the multi-dimensional

process by which, deepening supranationalism on the one hand and introducing non-

supranational methods in other spheres, the Union has moved from the Maastricht Treaty

to a Constitution for Europe.

The third part introduces some comparative perspectives. It recalls the diversity of

European experiences, drawing a contrast in particular between the Community approach

and Nordic cooperation, and looks briefly at recent initiatives in ASEAN and the African

Union. Finally, some general conclusions regarding supranational institutions are offered

as inputs for regional thinking about the choice of appropriate institutional arrangements.

I. SUPRANATIONAL INSTITUTIONS AND REGIONAL INTEGRATION:

CONCEPTS AND TERMS OF COMPARISON 1. What Do We Actually Mean?

‘Supranational institutions’ in regional systems are usually understood as being

synonymous with regional organs operating at a higher level, which are supranational by

virtue of their formal bases and powers. This is insufficient.

To start by stating what should be obvious, supranational action has to be seen as one

level within a multi-level system of governance. In some cases of political unification, a

separate, higher system of government may be established, as in federal states such as

the USA which are based on a division of competences. Otherwise, supranational action

can only be meaningful in practice as an organic complement to the state (and sub-state)

level of political organization. Indeed, as will be argued below, the effectiveness of

supranational action depends directly on the degree of interdependence between actors at

the two levels.

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Beyond this, however, some important qualifications need to be made. On the one hand,

the idea of ‘institutions’ goes beyond the organs of a regional agreement. Institutions are

rather the norms, rules and values which are accepted as governing a particular order.

These may or may not be applied by or become embodied in particular organizations,

which are thus better referred to as ‘institutional arrangements’ of the system.

On the other hand, supranationalism is neither a matter of ‘black and white’ nor of ‘all or

nothing’. To be sure, some fundamental choices are involved regarding the exercise of

national sovereignty – and if they are not recognized and accepted as such, there will be

problems. Yet there is no need to adopt supranationalism in all spheres of regional

cooperation: some areas of common concern may be the subject of common rules

adopted at a higher level, while intergovernmental cooperation may apply in others.

Moreover, supranationalism does not imply adoption of a single, monolithic, integration

method. It is better understood as a set of different rules, instruments, and actors – having

in common the fact that some kind of limitation of sovereign rights is involved - which can

be combined in different ways with more traditional approaches.

This part of the paper therefore aims to break down the concept of supranationalism into

its different elements as a basis for inter-regional comparison. The first section looks at

legal aspects, and the second at decision-making and politics. It is recognized that the

analysis is derived mainly from the experience of the EU.

2. Normative Supranationalism3 and National Sovereignty

In a basic legal definition, supranationalism means that sovereign states agree to abide by

norms which are adopted at a higher level of organization. In the EU, this is often, but

misleadingly, referred to in public debates as a decision to ‘transfer sovereignty’.

It is true that EU Member States have accepted, albeit not unconditionally, the supremacy

of Community law: in the event of conflict between a national law and Community law the

former must be set aside. Moreover, they accept the principle of direct effect, by which

3 I am here following the basic distinction between ‘normative supranationalism’ and ‘decisional supranationalism’ proposed in Joseph Weiler, ‘The Community System: The Dual Character of Supranationalism’, Yearbook of European Law, 1 (1981): 268-306.

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Community law creates rights and obligations directly for citizens. Together these

principles mean that the legal system of the Community has a federal nature.

Yet the Union retains its ‘unique character… as a polity having sovereign States as its

component political entities’. This is ‘true in a legal sense, since none of their international

partners would contest the status of the countries belonging to the Union as full subjects of

the international order’ and it is ‘true in the political sense, since the Member States remain

the principal focus of the collective loyalty of their nationals, and the principal forum of

democratic political activity.’4

The Union only has those powers which are conferred upon it by the Member States. This

is reiterated in the first article of the new Treaty establishing a Constitution for Europe.

1. Reflecting the will of the citizens and States of Europe to build a common

future, this Constitution establishes the European Union, on which the Member

States confer competences to attain objectives they have in common. The

Union shall coordinate the policies by which the Member States aim to achieve

these objectives, and shall exercise on a Community basis the competences

they confer on it. [emphasis added]

There is thus no ‘Kompetenz-Kompetenz’: the Union cannot modify its own powers. Ever

since the beginning there has been a ‘flexibility clause’ allowing the Council to take

necessary measures which were not specifically foreseen in the Treaty,5 but the Court has

ruled that this ‘cannot be used as a basis for the adoption of a provision whose effect

could, in substance, be to amend the Treaty.’6 Moreover, the Member States retain a

central role in decision-making, in interaction with the Commission and Parliament.

Beyond this, two legal distinctions are also relevant.

4 Alan Dashwood, ‘The Relationship between the Member States and the European Union/European Community’, Common Market Law Review 41 (2004): 355-381. pp.355-356. 5 Article 308 (ex 235) of the Treaty establishing the European Community (TEC): ‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.’ 6 Opinion 2/94 [1996] ECR I-1759 para 30.

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A transfer of ‘sovereign rights’, not a transfer of ‘sovereignty’ itself?

The first distinction is between a transfer of ‘sovereign rights’ and a transfer of

‘sovereignty’. The former has been recognized in many national constitutions in the EU

with regard to the role of international organizations in general. Already in the late 1940s,

even before the birth of the Communities, France, Germany and Italy adopted

constitutional provisions permitting the ‘limitation’ of sovereignty for the purposes of peace

and cooperation. Article 11 of the 1948 Italian Constitution thus states that:

‘Italy may consent, on equal terms with other States, to limitations of sovereignty

necessary to establish an order ensuring peace and justice among nations, and it

will favour international organizations which have that aim.’

An amendment was later inserted, for example, into the Belgian Constitution in 1970

stating that ‘… the exercise of delimited powers can be attributed by treaty or by law to

institutions of public international law’, making it clear that the attribution of powers to the

Community does not amount to a partial abandonment of sovereignty; it is only the

exercise of those powers which can be transferred.

The same language appears in key judgements of the European Court of Justice (ECJ). In

the 1963 Van Gend en Loos ruling which first asserted the principle of direct effect, the

ECJ declared that the states have ‘limited their sovereign rights’. In the 1964 Costa/ENEL

judgment which asserted the supremacy of Community law, it likewise argued that a

‘limitation of sovereignty or a transfer of powers from the states to the Community’ had

taken place.

A doctrinal compromise thus emerged in Europe concerning a ‘joint exercise of

sovereignty’. As summed up by Bruno de Witte: ‘Sovereignty continues to reside in the

people and is to be exercise primarily by the institutions of the state. The exercise of

sovereign powers may be dispersed horizontally, among the central institutions of the

state… but there is no conceptual obstacle to its vertical dispersion’ - whether this is to

allow sub-national institutions to participate or to attribute the exercise of powers to

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international institutions such as the European Community.7 Community action could thus

appear ‘as another mode for the Member States to assume their own sovereignty, not any

longer through autonomous, but through common decision-making.’8 This has not been

unproblematic, and has come under further strain since the Maastricht Treaty. Indeed that

treaty prompted a new wave of constitutional precisions. A new Article 88-1 was thus

introduced into the French Constitution, for example, explicitly providing that:

‘… the Republic shall participate in the European Communities and in the

European Union constituted by States that have freely chosen, by virtue of the

treaties that established them, to exercise some of their powers in common.’

Similar formulations have been adopted by most incoming Member States.

It may be objected that all this is little more than a play on words: what matters is that

sovereignty is limited. Yet there is a very real difference both in political concept and in

public perception between the idea of sharing sovereignty between countries and the idea

of ‘ceding’ sovereignty to a higher level which is somehow above countries. At a time of

continued doubts about supranationalism in both Europe and Latin America, political and

institutional leaders who wish to advance ambitious integration schemes are well advised

to think carefully about the importance of language.

What kind of competence?

The second distinction concerns the kind of competence involved. Even in those fields

where rights and powers are transferred, the particular implications for national autonomy

may, in principle, be quite different.

In the case of the EU, there are in fact remarkably few spheres in which the Community

has been recognized as having an exclusive competence, in the sense that Member

States renounce a priori the right to all autonomous action. These include most external

economic relations, the customs union, some parts of competition policy, fisheries

conservation and monetary policy for the Eurozone.

7 Bruno de Witte, ‘Sovereignty and European Integration: The Weight of Legal Tradition’, Maastricht Journal of European and Comparative Law 2 (1995): 145-173 pp.151-152. 8 Koen Lenaerts, ‘Constitutionalism and the Many Faces of Federation’, American Journal of Comparative Law 38 (1990): 205 p.231.

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In most cases, Community competences are shared, meaning that Member States are

free to regulate in these spheres, subject to the treaty requirement for loyal cooperation9,

so long as the Community has not acted. The common rules then enjoy primacy over

national measures, and Member States must not enter into international commitments that

could affect those rules. Should the rules be repealed, however, the Member States

recover their freedom of action.

In virtually all cases, moreover, the EU relies on national and regional administrations and

courts for the practical implementation and monitoring of policies.

Again, the basis for the adoption of EU rules is not a simple transfer of decision-making

powers to a separate higher level of Union authorities – whether elected or autonomous –

but the interaction between national governments and Union institutions.

3. Decisional and Other Forms of Supranationalism

Looking beyond the legal order, supranationalism may be employed in decision-making,

monitoring and enforcement.10

Pooling of sovereignty and delegation of powers

As a first step one can distinguish between two kinds of supranational arrangement.11

9 Article 10 TEC: ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’ 10 Supranationalism is here distinguished from the multinational management of common actions designed to benefit from economies of scale or to deal with issues which by their transnational nature (environmental issues, disease, organized crime etc.) require a transnational response. Whereas these may be part of a supranational system, they may also operate on a purely intergovernmental basis in normative and decisional terms. 11 I am here partly following the distinction made by Andrew Moravscik in The Choice for Europe. Social Purpose and State Power from Messina to Maastricht. (Ithaca: Cornell University Press, 1998) p.67. Moravscik, however, does not explicitly mention exclusive competence. He also talks of a ‘delegation of sovereignty’, which I consider less precise, for the reasons given above, than a ‘delegation of powers’.

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One concerns the interaction between the governments (with or without other autonomous

institutions) and can be summarized as the pooling of sovereignty. Sovereignty is thus

pooled:

- when governments take decisions by voting procedures other than unanimity;

and/or

- when governments agree to act either jointly or not at all (exclusive competence),

even if by unanimity.

The other refers to the delegation of powers to autonomous institutions which are

created by the Member States.

When it comes to decision-making these include, in a rough descending order of degrees

of autonomous power:

- the right to adopt normative decisions (i.e. general rules) directly on the basis of the

Treaty and without the need for approval by the Member States;

- the need to agree with the Member States in adopting normative decisions;

- the exclusive right of initiative for the adoption of normative decisions by the

Member States;

- the autonomous right to adopt binding implementing acts;

- the exclusive right to adopt binding implementing acts with the approval of the

Member States.

When it comes to applying the rules, these tasks may include:

- judicial review of union acts by a Court;

- authoritative right of interpretation by a Court;

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- legal action before a Court to ensure fulfilment of obligations;

- direct inspection by centralized agencies.

In terms of the degree of ‘legalization’ as proposed by Abbott et al,12 supranational

features of agreements are those which have a high degree of obligation for member

states and/or a high degree of delegation to autonomous institutions, but not necessarily

a high degree of precision. Indeed, as discussed below, one of the reasons why states

may find it useful to create autonomous institutions is to be able to take decisions which

cannot be precisely foreseen in the constitutive agreements.

Discussions of supranationalism have tended to focus on the role of states and state-

created institutions in the adoption and application of rules. There are several other

important dimensions of supranationalism, however, which deserve mention at this

stage.13

The first is the question of funding. One of the nightmares of most integration schemes has

been lack of funding even for the basic institutions, far less for common policies or

compensatory mechanisms. Finding an alternative to dependence on national quotas (and

not just dependence on extra-regional financing) requires some form of automatic

mechanism to establish a system of ‘own resources’. Unless this were to take the shape of

a parallel self-commitment in each country’s constitution, some form of ‘supranational’

exercise is inevitably involved, such as pooled customs revenues in a customs union, a

levy on certain kinds of transactions or a share of indirect taxation.

The second is the role of political bodies which are formally supranational by virtue not of

their creation by governments but of their direct election by citizens: in other words, a

directly-elected common assembly. Such a body may be supranational both by its nature

and by its role. In the European case, as discussed below, the Parliament has, over time,

12 Kenneth W. Abbott, Robert O. Keohane, Andrew Moravscik, Anne-Marie Slaughter and Duncan Snidal, ‘The Concept of Legalization’, International Organization 54:3 (Summer 2000): 401-419. 13 Another notion which has emerged in Europe is the idea of ‘deliberative supranationalism’. In addition to the interplay between the central European institutions in adopting Community law, the policy discussions take place between the Commission, national officials and other experts and actors in the multiple networks of committees can in this light be seen as a legitimate form of consensual policy-making.

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not only taken on a supranational character by virtue of its direct election since 1979, but

also acquired a number of supranational powers in decision-making, budgetary control and

appointments.

Elsewhere, it may be the case that deliberation in such bodies – even if it does not result in

binding inputs or rights of control - can bring a meaningful supranational dimension to

regional systems. Unless there is a meaningful supranational system in other respects,

however, there may rather be a mismatch, with negative consequences for the overall

legitimacy of the regional arrangements.

At a more advanced level of integration, moreover, this supranational parliamentary

dimension raises much broader questions about whether there is a corresponding

consolidation at the union level of political debate, clearly-identifiable policy options, and

multi-level political parties. Without this, indeed, there may be another kind of mismatch,

this time between formal powers and citizen support.

4. What Can Theory Tell Us?

Theory can only go so far in making a priori prescriptions regarding the institutional

arrangements of particular integration systems. When it comes to the distribution of

functions in economic integration, 'neither the optimum mix of union and national

measures nor the areas where further integration will be most beneficial can be

determined a priori on theoretical grounds'.14 As Elinor Ostrom has put it when discussing

options for ‘Governing the Commons’: 'Instead of there being a single solution to a single

problem, … many solutions exist to cope with many different problems. Instead of

presuming that optimal institutional solutions can be designed easily and imposed at low

cost by external authorities, ... "getting the institutions right" is a difficult, time-consuming,

conflict-invoking process'.15

To reiterate the starting point given in my previous contribution:

14 Wim Molle, The Economics of European Integration 2nd ed. (Aldershot: Dartmouth, 1994) p.23. 15 Elinor Ostrom, Governing the Commons. The Evolution of Institutions for Collective Action (CUP, 1990) p.14.

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1) A regional system needs to have a level of problem-solving and stabilization

capacity which is adequate for dealing with the problems that are likely to be

generated in pursuing agreed integration objectives of a certain level of ambition.

2) A regional system must be appropriate not only to real needs arising in that region

but also to the specific historical, social and cultural traditions within and between

the countries involved.

A certain number of ‘rationally-based’ factors can be identified to shed light on when

supranationalism – understood as some mixture of pooling of sovereignty and delegation

of powers - is likely to be adopted and is probably appropriate to the needs. Elsewhere I

have suggested the following list of ‘key variables of complexity in regional-integration

arrangements’16 as a sort of check-list (or reality check) to help identify the real governing

needs and limits involved in a particular regional scheme:

- the number of member states

- the relative sizes of the participating countries

- different levels of development - scope of coverage

- type of impact - time perspectives

- degree of real interdependence

- the political framework

- perceptions, values and norms

Perhaps the most important single factor is the pursuit of credible commitments. As

summarised by Moravscik in the case of the EU, pooling or delegation are ‘means to

assure that other governments will accept agreed legislation or enforcement, to signal their

own credibility, or to lock in future decisions against domestic opposition’. Since it is not

always possible to specify precise rules in advance due to uncertainty about the future,

moreover:

16 Edward Best, ‘Capacities for Regional Integration: a Conceptual Framework for Comparative Analysis’ in Madeleine O. Hosli & Arild Saether (eds.) Free trade agreements and customs unions. Experiences, challenges and constraints. (Brussels & Maastricht: European Commission TACIS & EIPA, 1997) pp. 51-78.

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‘Pooling and delegation can be viewed as solutions to the problem of “incomplete

contracting” which arises when member governments share broad goals but find it

too costly or technically impossible to specify all future contingencies involved in

legislating or enforcing those goals.’

It may be hypothesized, therefore, that ‘delegation and pooling are most likely to arise in

issue-areas where joint gains are high and distributional conflicts are moderate, and where

there is uncertainty about future decisions’.17

The creation of a system with supranational elements may reduce the transaction costs of

future interactions simply by institutionalising the integrative dynamic and negotiation

procedure. In the case of ambitious framework treaties such as the Treaty of Rome, it

made sense to set up common institutions which have both the right and the duty

progressively to adopt decisions required to achieve long-term objectives, rather than to

reconvene intergovernmental conferences every time a major decision had to be taken.

Moreover, governments may see a mutual benefit in the long run from setting up strong

systems with high degrees of delegation ‘when the likelihood of opportunism and its costs

are high, and non-compliance is difficult to detect’.18 In other words, supranationalism may

assist national interests in issue areas in which there are reasonably clear added benefits

for everyone in the longer run if everyone plays by the rules, but in which there are also

predictable temptations to cheat in response to short-term pressures.

Put more broadly, pooling and delegation together may constitute an essential package for

building mutual confidence. In the EU, the delegation to the Commission of the exclusive

right of legislative initiative has been an important element in reassuring smaller countries

that their interests will be systematically taken into account rather than being left to the

vagaries of intergovernmental decision-making processes dictated more directly by relative

power. The installation of a strong legal-institutional system for monitoring and

enforcement by the Commission and Court was likewise an important element in building

confidence that commitments will be fulfilled by all countries large or small. Such

17 Andrew Moravscik, The Choice for Europe. Social Purpose and State Power from Messina to Maastricht. (Ithaca: Cornell University Press, 1998). pp.73,75. 18 Kenneth W. Abbott and Duncan Snidal, ‘Hard and Soft Law in International Governance’, International Organization 54:3 (Summer 2000): 421-456 p.431, passim.

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confidence was essential, in particular, if the Member States were to abandon the veto and

thus make possible progress in achieving the long term objectives.

This overlaps with another argument concerning credible commitments, namely the case

for delegation to ‘non-majoritarian’ bodies of agreed policies which need to be maintained

along known lines over time: 'all mature democracies choose to delegate powers to non-

majoritarian institutions such as independent central banks and regulatory agencies … to

preserve policy continuity against the changing preferences of variable parliamentary

majorities. In turn, policy continuity is seen as a necessary condition of policy credibility.'19

In many respects, the significance of the role of the European Commission (or the

European Central Bank) is thus that it is both supranational and non-majoritarian.

The degree of uncertainty about some issues, on the other hand, may be so high as to

discourage high degrees of delegation for future decision-making, and to lead to more

moderate forms of institutionalised cooperation aimed more at collective learning.

To sum up, independently of the influence of federalist actors who see supranationalism

as a means towards realizing ideological and/or cultural goals (or indeed of those actors

who reject supranationalism on principle on ideological and/or cultural grounds),

supranational elements may be adopted in a regional system for various reasons.

Some supranational elements may be inherent to the regional agreement. If the

agreement provides for a customs union, then there must automatically be exclusive

competence in commercial policy.

Other elements may be adopted primarily on functional grounds, as means to ensure the

operation of the system. If the results are seen as worth the sacrifice in terms of

sovereignty costs, then majority voting in particular may be seen as inevitable, if decision-

making is blocked by a unanimity requirement.

19 Giandomenico Majone and Michelle Everson, 'Institutional reform: independent agencies, oversight, coordination and procedural control': in Olivier De Schutter, Notis Lebessis and John Paterson (eds.) Governance in the European Union. (Luxembourg: OOP, 2001): 129-168. p.129.

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Beyond this, supranational elements may be adopted as means of boosting mutual

confidence and ensuring the credibility of commitments, between governments, to third

countries, to the market, and to the citizens.

In practice, of course, decisions are deeply shaped by the background of historical

relationships between the countries involved, the existence of perceived external threats or

the provision of external support, the nature of the relationship between their economies,

the existence or not of transnational social links

Beyond this, there are also always more specific factors at stake every time states create

or adopt fundamental modifications to integration agreements, notably

- ideological preference or, more precisely, the results of negotiation between parties

with different ideological preferences;

- the negotiation between actors with different interests within states; and, with time,

- the influence of supranational institutions themselves.

Furthermore, except on those rare (maybe even non-existent) occasions when the

institutional arrangements of an integration system are created from a void in terms of pre-

existing structures, there will inevitably be an important degree of path dependency. There

are in fact very few cases in which one can start tabula rasa in rationally designing

institutional systems. Central American arrangements have been around since the 1950s

and Andean ones since the 1960s. In a sense, Mercosur in 1991 could be seen as a major

exception. However, not only was it built around pre-existing bilateral arrangements

between Brazil and Argentina but, I suspect, its institutional designers were influenced by

a sort of ‘negative path dependency’, namely a conscious decision not to reproduce the

kind of formal institutional arrangements which had been set up elsewhere on the

continent, but had not always accompanied by a corresponding degree of real integration.

In the case of Europe, as discussed below, the starting point for a supranational system

was shaped not just by the general historical circumstances of the post-war years. The

elements can be traced very specifically to particular trends and instances dating back

several decades prior to the Schuman Plan. It is also striking just how little political

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reflection and public discussion there has actually been over the years with regard to the

rationale and principles underlying the EU system. To a very large extent, Europe has just

‘happened’, as the original institutional arrangements have been modified over time in

response to new substantive challenges, changing patterns of preference influenced by

successive enlargements and the internal dynamics of the institutional system itself.

II. THE EXPERIENCE OF THE EUROPEAN UNION

1. The Origins and Evolution of Supranationalism in Europe

The Constitution for Europe formally enshrines 9 May as ‘Europe Day’ and with much

justification. On that date in 1950 French Foreign Minister Robert Schuman presented the

‘Schuman Plan’ to place coal and steel under a supranational European authority. This

would make war ‘not only unthinkable but materially impossible’ and could be the first step

in the gradual creation of a European federation. The plan led to the creation of the first

European Community – the European Coal and Steel Community – which started the

process of integration which has produced today’s European Union.

The traditional account is the following. Historical rivalries between France and Germany,

particularly over the Rhineland and Ruhr coal and steel, had been one of the main sources

of conflict in modern Europe. After the First World War, France insisted on ruinous

reparations, thus fuelling fires for a Second War. After the Second World War, France

started by pursuing a hard line against Germany but then, in a stroke of vision, decided not

to repeat the same mistake, but to lead in creating a new and united Europe. This is rather

too simple an account.

At a time when French and American views have seemed to clash over how to manage

international conflicts, it may be all too easy to forget that the birth of Europe was. in large

measure, the result of a coming together of French and American interests in dealing with

‘the German question’ and in uniting Europe.

Even in the aftermath of the First World War, France’s long-term goal was clearly a

Germany ‘which, though industrially and financially sound, would be politically shackled’.

This meant detaching the Rhineland, while reaching agreements that would both serve

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France’s immediate needs and create the basis for a more equitable long-term

relationship.20 Already in the interwar period, international agreements to manage coal and

steel were explored, and were even seen as a means of helping to manage international

tensions. After the failure of the first French efforts, culminating in the 1923 French

occupation of the Ruhr, a series of agreements were signed in the context of the US–

backed Dawes Plan, including an International Steel Cartel created in 1926. That cartel

ceased to exist in 1931, but was revived in 1933, while in the 1930s a thickening network

of coal agreements also grew up as part of the ‘economic appeasement’ of Hitler’s

Germany.

At the end of the Second War, France was weak, facing coal shortages and steel

production problems, and was concerned that German recovery would outstrip her own.

France therefore needed access to Ruhr coal and agreement over steel production while

regulating German recovery. Even if reparations were to be taken, the ultimate objective of

occupation was not to destroy German production but ‘to integrate the productive forces of

Germany into a new international order’.21 Jean Monnet was the key figure, not least

because of the strength of his American backing.

The Americans, for their part, saw European cooperation and trade liberalization as

essential components of recovery. Marshall Plan aid was to be conditioned to cooperation,

which, it was hoped, would take place through the Organization for European Economic

Cooperation. The UK proved a disappointment to the US in this respect. Gradually, an

agreement emerged with France. ‘To achieve his dual aims of modernizing the French

economy by liberalizing Europe and working Germany into a peace settlement satisfactory

from the standpoint of French national interests, Monnet thought that France had to take

the lead in promoting economic cooperation as desired by the United States.’22

As the negotiations unfolded, albeit with continuing frictions between the French and the

‘Anglo-Saxons’, the French in 1948 proposed an International Authority for the Ruhr (IAR)

to ensure that the ‘resources of the [area] shall not in the future be used for aggression 20 This discussion of the origins of the Coal and Steel Community is drawn primarily from John Gillingham, Coal, steel, and the rebirth of Europe, 1945-1955. The Germans and French from Ruhr conflict to economic community. (Cambridge University Press, 1991). 21 March 1945 policy paper of the director of political affairs in the French Foreign Ministry quoted in Gillingham op.cit. p. 154. 22 Gillingham, op.cit. p.144.

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but… in the interests of peace’, to guarantee ‘European powers operating in the common

good … non-discriminatory access’ to the Ruhr coal and steel, and to encourage a general

lowering of trade barriers as well as the democratisation of Germany.23 At the end of 1949,

following the creation of the Federal Republic of Germany, the Ruhr dismantlements were

ended. Germany entered the IAR and the newly-created Council of Europe. In the same

year, moreover, proposals to create a European public authority to supervise a fully

cartelised industrial community were being adopted by the Consultative Assembly of the

Council of Europe. By early 1950, the conditions for a coal and steel community were

already more or less present.

The Schuman Plan on 9 May 1950 was a dramatic, brilliant and indeed visionary move to

take advantage of these conditions to achieve a new basis for peaceful cooperation (and

French leadership) on the European continent. In March 1951 the European Coal and

Steel Community (ECSC) was signed by France, Germany, Italy and the three Benelux

countries. At its institutional heart was a supranational High Authority, which thus

succeeded the International Authority in exercising control over the Ruhr, at that stage still

occupied by Allied forces. The High Authority had the right to take binding decisions. It was

accompanied by an Assembly for discussion and a Court to which the governments could

appeal. A special Council of Ministers was added, against Monnet’s preferences, with the

right to give its assent in some cases.

Immediately after the Schuman Plan, moreover, a new set of pressures emerged, again

linked to Germany and the US, which seemed to present a new need and opportunity to

go further. On 25 June 1950 the Korean War started. Pressure for German rearmament

had been building up over the preceding years in response to the increased Soviet threat,

and the great imbalance in military forces on the ground, in Europe. In August, US

President Truman openly called for greater European acceptance of German rearmament.

In September the US made it clear that it would insist on fitting Germany into an integrated

command structure for NATO, and removing economic restrictions limiting Germany’s

defence contribution.

German rearmament, in other words, was the price for continuing American protection of

Western Europe. For France (and others), this would only be acceptable if it were part of a

23 Gillingham op.cit. p.161.

18

broader arrangement providing guarantees. European integration seemed the best,

perhaps the only, way forward. In October 1950 the Pleven Plan was thus announced to

create ‘a European Army attached to political institutions of a united Europe’. This would

do to the German military what the ECSC was to do to the Ruhr – namely neutralize the

potential threat posed by German strength by incorporating it into a united European

system. A treaty for a European Defence Community (EDC) was drawn up and signed in

Paris in May 1952, in parallel with the Bonn Treaty which ended the Occupation Regime.

Enthused by this apparent great leap forward toward European unification, the members of

the ECSC Assembly started work on what they saw as the political side of the equation,

namely the design of a ‘European Political Community’. They proposed an outright federal

system based on a bicameral European parliament, with a Senate made up of

representatives of the national parliaments, and a directly-elected Peoples' Chamber. This

was wildly out of line with political realities - Monnet himself seems to have considered it

the irresponsible work of ‘adventurers’.24

The whole process collapsed anyway when, in August 1954, the French Assembly failed

to ratify the EDC Treaty. Almost at the same time, moreover, it was becoming clear that

the Coal and Steel Community was not proving a great success. Indeed Monnet resigned

from the High Authority in November 1954 in order to devote himself to activism outside

the institutions, which he thought would have a greater impact on European integration.

For a short while, it seemed that the integration process would go no further. The first

phase of supranationalism – placing important economic sectors directly under an

autonomous High Authority – had not been a great success, while the premature efforts at

military (and even political) unification had been rejected. Yet there was a ‘relaunch’ quite

soon after. In 1955 the Messina Conference was convened. The Spaak Committee was

mandated to draw up plans. Negotiations in 1956 and 1957 led to the signature of the two

Treaties of Rome. The factors which made this possible may be quickly recapitulated.

First, security issues were taken out of the immediate integration equation. On the one

hand, the issue of German rearmament was solved separately. A modified version of the

Western European Union (created in 1948 as a defensive alliance primarily vis-à-vis

24 Quoted in François Duchêne, Jean Monnet (New York & London: W.W. Norton, 1994) p.253.

19

Germany) was signed in October 1954, now incorporating West Germany and Italy. Under

the same process, West Germany joined NATO, to which it was uniquely obliged to

incorporate all its forces. On the other hand, the Saar Treaty in 1955 ended the

outstanding territorial question between France and Germany.

Economic integration was thus not called on to do more than it could really be expected to

do by itself. To be sure, economic integration continued – and continues today – to have a

strong political and security dimension, as a means toward building peace. So much

interdependence was created, so many cooperative reflexes and transnational networks,

that a ‘security community’ was achieved, in the sense that the idea of violent conflict

between members simply came to lose all meaning. Yet the Member States to the West of

the Wall did, it must be recognized, have the tragic luxury of a broader ‘security vacuum’ in

which to do so. The Cold War transformed the European scene into part of a global theatre

and (more or less) froze all local conflicts.

Second, the combination of external threats and external support favoured acceptance of

an ambitious integration agreement in which sovereignty might be pooled. The most

uncertain and divided country among the Six was France. Getting the Common Market

Treaty passed by the French National Assembly was far from sure. France was going

through a traumatic process of decolonisation, which already seemed to raise questions as

to its ability to maintain international power and status alone. The last straw was the Suez

crisis in late 1956, when the Americans forced France and the UK to withdraw from their

Middle Eastern adventure to secure the canal. At the same time, however, the United

States remained strongly supportive of European integration. On the other hand, events in

central and eastern Europe, especially the Soviet intervention in Hungary in November

1956, helped create a climate in which deeper cooperation between western European

countries seemed essential, even if not all countries saw integration as the answer.

Third, there was also a favourable set of circumstances in terms of the balance of interests

between the parties involved. The Benelux countries were jointly pushing for a common

market (even if they did not share all points of view regarding the institutional set-up).

Post-war Germany under Konrad Adenauer remained deeply integrationist. A change of

government in France at the beginning of 1956 put a small group of European-minded

officials in key positions. Conversely, it has to be said that the early decision of the United

20

Kingdom to withdraw from the negotiations in October 1955 was probably a significant

help, given this country’s reluctance to accept any kind of supranationalism and its strong

preference for an industrial free trade area in Europe.

Nevertheless, there was not at that point universal enthusiasm for ‘supranationalism’ as it

had been tried in the Coal and Steel Community, especially not when it was a matter of

agreeing institutional arrangements for the progressive achievement of a full common

market over time, and not just empowering institutions to apply strong common rules in

particular sectors.

In retrospect it is striking that, in such circumstances, any part of the ECSC system was

preserved at all. There was no question of giving a body like the High Authority the same

direct decision-making powers as existed in the ECSC Treaty. Yet there was sufficient

support for the idea that some autonomous body would be required to make the common

market project work to convince the Six to accept a modified version of the existing

Community.

The solution found was not to create completely new institutional arrangements

comparable to those of the ECSC. While the Assembly and the Court would be shared by

the three Communities from the outset, different structures governing the relationship

between the autonomous institution and the Member States would apply for the European

Economic Community (EEC – the Common Market) and the European Atomic Energy

Community (known as ‘Euratom’). These rested on the idea of turning the Coal and Steel

arrangements for decision-making on their head: i.e., transforming the High Authority’s

power of decision, subject to approval by the Council, into a power of initiative, as a basis

for decision by the Council. In the first version considered, the Council would have been

unable to depart from the framework presented by the Commission – which would not

have been significantly different from the Coal and Steel principle. The compromise

eventually adopted was that, once the transitional period was over, the Council could,

where the legal basis so permitted, adopt the Commission’s proposal by qualified majority

but could, in all cases, overrule the Commission by unanimity.

In other words, since the very beginning, the Community system has been based on a

compromise. The Member States wanted to retain the ultimate powers of decision, while

21

accepting ‘the necessity for an independent organ, representing the will of the Community,

to ensure the application of theTreaty provisions at the supranational level. To this end, an

institutional system was set up with the aim of doing justice to both the intergovernmental

and the supranational concepts.’25

The Treaty was a mixture of rules and objectives. The customs union was to be created by

a series of more or less automatic steps laid down directly in the Treaty. In some other

cases, notably competition policy, rules were explicitly specified from the beginning. In

most cases, the treaty laid down objectives and procedures. The institutions were

empowered – and obliged – to take the necessary actions to achieve the stated objectives.

In this process, the ‘dialogue’ between Council and Commission was intended to maintain

a dynamic balance between Community goals and Member State realities.

Although the Commission would have the exclusive right of initiative in all cases of

legislation, decision-making procedures were differentiated according to area. In specified

areas, such as agriculture, the Council would eventually move to qualified-majority voting;

in others unanimity would continue to be required.

The Assembly (which came to call itself the European Parliament in 1962) would have the

right to be consulted, and to give a non-binding opinion in specified areas. Otherwise its

powers were basically limited to asking questions and, in theory, to firing the whole

Commission.

A modified (or at least renamed26) set of binding legal instruments was introduced, which

explicitly maintained the principle of direct applicability in some cases:

A regulation shall have general application. It shall be binding in its entirety and

directly applicable in all Member States.

25 Hanns Jürgen Küsters, ‘The Origins of the EEC Treaty’, in European Community Liaison Committee of Historians, The Relaunching of Europe and the Treaties of Rome. (Bruxelles/Bruylant, Milano/Giuffrè, Paris/ L.G.D.J., Baden-Baden/ Nomos, 1987): 211-.238 p.230. 26 Confusingly, the EEC Regulation corresponded to a ECSC Decision of general application and the EEC Directive to an ECSC Recommendation, while an EEC Recommendation was non-binding.

22

A directive shall be binding, as to the result to be achieved, upon each Member

State to which it is addressed, but shall leave to the national authorities the choice

of form and methods.

A decision shall be binding in its entirety upon those to whom it is addressed.

Much, however, remained to be defined and interpreted.

2. The Evolution of the Legal Order

The Community treaties started as a set of legal arrangements binding on the Member

States, but have evolved, with a lot of help from a creative European Court of Justice, into

‘a vertically integrated legal regime conferring judicially enforceable rights and obligations

on all legal persons and entities, public and private, within EC territory.’27

One key element in making this process accepted and effective was the fact that national

courts became agents of the Community order – more so than was originally foreseen.

‘The ECJ was created to fill three limited roles for the member states: ensuring that

the Commission and the Council of Ministers did not exceed their authority, filling in

vague aspects of EC laws through dispute resolution, and deciding on charges of

non-compliance raised by the Commission or by member states. None of these

roles required national courts to funnel individual challenges to national policy to

the ECJ or to enforce EC law against their governments. Indeed, negotiators

envisioned a limited role for national courts in the EU legal system.’28

Between 1962 and 1979, the Court developed the core constitutional principles of

supremacy and direct effect, for which the two leading cases have been cited above.

Neither of these principles is mentioned in the Community treaties.

27 Alec Stone Sweet and James A. Caporaso, ‘From Free Trade to Supranational Policy: The European Court and Integration’ in Wayne Sandholtz and Alec Stone Sweet (eds.), European Integration and Supranational Governance. (Oxford University Press, 1998): 92-133 p.102. 28 Karen J. Alter, ‘Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice’, International Organization 52 (1998): 121-147 p.124.

23

The notion that international treaties prevail over national law was not new. In countries

with a so-called ‘monist’ legal order, moreover, it was already accepted that international

legal norms were automatically received within the national sphere without transposition.

When the treaties were signed, it was generally understood that ‘the status of international

legal rules within the domestic legal order was determined by the constitutional rules of

every single country’.29 What was new was that the European Court should lay these down

as being a) general principles covering all Community law, and b) principles which had to

be applied by all national courts. In other words, Community law not only prevailed on the

international plane (like any other treaty) but enjoyed ‘internal primacy’, meaning that

national courts themselves were obliged to set aside national provisions which were in

conflict (Simmenthal 1978). Even if this reasoning could, in principle, apply to any

international treaty, ‘the special feature of the EEC Treaty is that it, unlike other treaties,

provided for the ingenious judicial mechanism which allowed the Court of Justice to state

its supremacy doctrine and to request national courts to follow suit.’30 This was the system

by which national courts may - or, in the case of courts of last instance, must – ask the

European Court of Justice for a preliminary ruling in the event of doubt as to the

interpretation or validity of Community law when invoked in a national case.

Likewise, the Treaty specified only that Regulations are directly applicable (although they

may not have direct effect, depending on their formulation). The principle of direct effect was initially applied to negative obligations imposed by the Treaty on Member States, the

classic example being the stand-still clause in relation to tariffs (Van Gend en Loos, 1963).

It was then applied to a principle in the Treaty, i.e. the principle that men and women

should receive equal pay for equal work (Defrenne II, 1976). It was later extended by the

Court to Directives, albeit only as ‘vertical’ direct effect, meaning the possibility of invoking

Community law in disputes between individuals and Member States, rather than

‘horizontally’ between private parties. Other case law, however, has specified that national

courts are obliged to interpret national law in conformity with Community law. The

development of the principle of direct effect has transformed the freedoms set out in the

treaty into individual rights, and has proved ‘fundamental in creating the EU legal order

and, indeed, in transforming the treaty from a classical instrument of international law into

29 Bruno de Witte, ‘The Nature of the Legal Order’, in Paul Craig and Gráinne de Burca, The Evolution of EU Law. (OUP, 1999) pp.177-213 p.178. 30 De Witte, op. cit. p.183.

24

(or towards) the constitution of a quasi-federal organism.’31 The Court’s use of the

preliminary ruling system has again been central to this process. The preliminary ruling

system ‘was not designed to be a “decentralized” mechanism to facilitate greater

monitoring of member-state compliance with the treaty… The original idea was that if a

national court was having difficulty interpreting an EC regulation, it could ask the ECJ what

the regulation meant. It was not designed to enable individuals to challenge national laws

in national courts, or to have national courts ask if national law is compatible with EC

law.’32

In other respects too the Court developed the legal system beyond what was explicitly laid

down in the Treaty. The Court adopted a ‘remarkably broad’ approach over its right of

judicial review, except over the standing of individuals to challenge a measure directly

before the ECJ.33 The Treaty originally gave Court competence to review ‘acts of the

Council and the Commission other than recommendations and opinions’. By 1970,

however, the Court was willing to review Council proceedings regarding international

agreement, arguing that it had to be possible to review all measures intended to have legal

effect. By the mid-1980s, it could argue that ‘the Community is a Community based on the

rule of law, in which all measures taken by the institutions and the Member States are

subject to judicial review’.

It seems quite clear that the results were not what the signatory governments had intended

– although this does not necessarily mean that they would (all) have been opposed to

what was done. Especially given the contrast between this rather easy development of

normative supranationalism and the more problematic progress of decisional

supranationalism, it may seem striking that the Court ‘got away with it’. How is it possible

that, in exactly the same period in which Member States were failing to respect a clear

treaty commitment to move in certain areas to qualified-majority voting, nothing occurred

to stop the progressive consolidation of strong supranational, clearly federal, legal

principles in the evolving Community system?

31 Francis G. Jacobs, ‘The Evolution of the European Legal Order’, Common Market Law Review 41 (2004): 303-316 pp.307-8. 32 Alter op.cit. p.125. 33 Jacobs op.cit. p.314.

25

Various elements have been suggested to explain this phenomenon. Arguing that the

Court essentially ‘escaped Member States control’, Karen Alter has pointed to the

possibility for supranational institutions – at that point, the Court and the Commission – to

take deliberate advantage of the existence of different time horizons of Courts and

politicians in order to pursue the supranational agenda:

‘Member states were most concerned with protecting national interests in the

process of integration, while avoiding serious conflicts that could derail the

common market effort […] The ECJ took advantage of this political fixation on the

material consequences of cases to construct legal precedent without arousing

political concern […] the ECJ expanded its jurisdictional authority by establishing

legal principles, but not applying the principles to the cases at hand.’

The Commission was an accomplice in this tactic; it ‘selected infringement cases to bring

that were important in terms of building doctrine, especially doctrine that national courts

could apply, and avoided cases that would have undermined the integration process by

arousing political passions.’ 34

Yet the role of national actors is crucial. As Joseph Weiler has also emphasized, the fact

that it is the national courts which seek the preliminary reference – thereby acknowledging

that Community norms are necessary – increases the ‘compliance pull’ on governments as

a result of the empirical political fact that ‘governments find it harder to disobey their own

courts than international tribunals’. The higher the involvement of national courts, the

greater is the chance that Community norms will be regarded as part of that ‘law’ to which

all attach the habit of obedience. Moreover, the willingness of national courts, especially

lower ones, to play their role will widen the circle of actors who may build a stake and gain

an interest in the effectiveness of Community norms.35

34 Alter op.cit. p.131. 35 J.H.H.Weiler, ‘ Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration’, Journal of Common Market Studies 31 (1993): 417-446. See also Anne-Marie Burley and Walter Mattli, ‘Europe Before the Court: A Political Theory of Legal Integration’, International Organization 47 (1993): 41-76 and subsequent exchanges.

26

Some in Europe have seen this process as questionable.36 Those tending to share the

integrationist spirit underlying the Court’s attitude, on the other hand, will probably find

that, on balance, the ends justify the means. After all, without a hard core of Community

law, the whole integration process could all too easily have collapsed in the face of the

several crises which it has had to face over the decades. Yet the problem remains that this

consolidation of federal legal principles without clear public debate (criticized by opponents

as ‘integration by stealth’) has left the challenge of explaining to European citizens what

has happened and why. The Constitution finally ‘comes clean’ about some basic principles

of Community law. Article I-6 openly states that: ‘The Constitution and law adopted by the

institutions of the Union in exercising competences conferred on it shall have primacy over

the law of the Member States.’ The Member States who have accepted this now have to

explain to their citizens equally clearly why they should support it.

For the purposes of the present inter-regional comparison, however, the key point is that

the effectiveness of supranational institutions depends first and last on national institutions.

As Karen Alter concluded:

‘National judicial support was critical in limiting the ability of national governments

to simply ignore unwanted legal decisions from the international ECJ… The critical

role of national courts as enforcers of ECJ decisions also implies that in countries

where national courts are less legitimate, less vigilant, and a rule of law ideology is

not a significant political factor, politicians would be more likely to use extralegal

means to circumvent ECJ jurisprudence. The EU experience highlights the

importance of having domestic interlocutors to make adherence to international

institutions politically constraining at home.’37

Expanding on this argument, implementation cannot be seen as a matter mainly of the

formal and material ‘powers’ given to higher organs as means to ‘enforce’ compliance. If

EU Member States generally comply with EU law and rulings of the European Court of

Justice, it is not because there is any risk of sanctions or enforcement by supranational

forces, and it is only partially out of fear of having to pay fines to the Union or damages to

citizens. It is because of the existence of a) national cultures of respect for the law and b)

36 For a critical account, see Trevor C. Hartley, Constitutional Problems of the European Union. (Oxford and Portland: Hart, 1999). 37 Alter, op.cit., p.144.

27

national actors and forces which are interested in making it effective, whether through

national courts or political and public pressure. Community law is thus ‘institutionalised’ in

the deeper sense of being ‘internalised’ and accepted as part of the set of norms with

which one is expected to comply.

This is not to say that implementation in the EU is perfect. It is not, although the

implementation deficit is not of dramatic proportions. Nor is it to say that there are not

significant disagreements between Member States as to the ideal scope and nature of

Community law. There are. The point is simply that implementation does not depend only

on the existence of supranational institutions but also on the existence of incentives for

national actors to ensure effectiveness - and at bottom, on the existence of pluralist

societies based on the rule of law.

3. Decisional Supranationalism and the Road to Monetary Union

The EEC Treaty included a set of legal provisions and a judicial mechanism which made it

possible for a supranational organ – the Court of Justice - to consolidate supranational

law, to an extent greater than its signatories expected. The fact that immediate political

conflicts were avoided, while national courts were incorporated as actors in the Community

system, meant that governments did not perceive the Court’s actions as a threat which

needed to be dealt with.

The first stage of economic integration proceeded more or less automatically according to

the steps laid down in the Treaty itself, namely the establishment of a customs union, and

thereby the acceptance of a common commercial policy as an exclusive competence of

the Community. In addition, a number of key common policies were established already in

the early 1960s by which the governments recognized the supranational role of the

Commission. The clearest example was competition policy. The Treaty attributed some

autonomous powers of decision to the Commission in the sphere of state aid (i.e. directly

on the basis of Treaty provisions), given the objective need to empower an independent

body to apply agreed rules impartially in the face of predictable national pressures and

temptations. One of the earliest Community Regulations fixed the modalities by which the

Commission would exercise the power directly to ensure that undertakings respected anti-

trust rules.

28

In other respects, however, the supranationalist project ran into trouble. Three main

elements were concerned:

- the move to qualified majority voting in certain areas foreseen in the Treaty;

- the creation of a system of Community ‘own resources’; and

- the institutional pretensions of the European Commission.

French President de Gaulle had made it clear in the early 1960s that his own preference

was for a more confederal approach – a strong European union, especially in international

affairs, but one based clearly on the nation state. Indeed he openly stated that

supranationalism had only been built into the treaty because of temporary French

weakness. In 1965, he came into open conflict with the Commission, and France

boycotted Council meetings for some six months (known as the period of the ‘empty

chair’). The result was the so-called Luxembourg compromise, which essentially meant

retention of the national veto. Majority voting did not in fact take place until the early

1980s.

The crisis had a broader impact. It put an end to simple visions of communautaire

integration gradually spreading across more and more areas, fuelled by elite interests and

led by the Commission, until unification was achieved. In the next phase of integration, the

common market goals and the Community legal order would have a decision-making

system in which Member States would be firmly in charge.

Moreover, that system would be changed in another way. During the 1960s General de

Gaulle had twice vetoed the entry of the United Kingdom into the Community. When the

Member States came to consider how they should address new goals and challenges,

following the establishment of the customs union and the departure of de Gaulle, they

would have expanded to include the UK, Ireland and Denmark, thus significantly altering

the balance of preferences within the Community as to how European cooperation should

proceed.

Over the 1970s and early 1980s several parallel processes took place. A hard core of

economic and legal integration had been achieved. However, the creation of a common

market was frustrated as attempts to deal with non-tariff barriers ran into the unanimity

29

requirement. There were also further conflicts over specific supranational elements,

notably the argument over the UK contribution to the budget.

Yet cooperation continued to grow in other ways around that core. In 1974 agreement was

reached to hold regular political summits as the ‘European Council’. In various economic

and social areas for which there was no explicit treaty provision (e.g., environment,

research or consumer protection) common actions of a ‘pre-communautaire’ nature were

adopted using the flexibility article38 in the Treaty, soft-law instruments or other devices

such as taking decisions in the guise of ‘Representatives of the Member States meeting in

the Framework of the Council’. In pursuit of a single voice in foreign policy to accompany

the common commercial policy, a system of ‘European Political Cooperation’ started in

1970, by which the foreign ministries of the Member States carried out regular

communications, consultation and concertation of positions. New structures for

cooperation in matters of security (anti-terrorism, anti-drug trafficking) also emerged, some

between the Member States, and some overlapping with the Council of Europe.

Conventions were also adopted for judicial cooperation, thus building up a parallel –

neither very coordinated nor very transparent – web of cooperation involving justice and

interior ministries and associated agencies. And a ‘second relaunch’ did take place in the

early 1980s, due to a coincidence of various factors, notably the following:

- resolution of particular conflicts (mainly the UK budget question);

- favourable external pressures (common perceptions of a competitiveness threat

from the US and Japan);

- a broad coalition of strong private and public interests pressing to overcome the

obstacles to a full common market (pressures from big industry, the directly-elected

European Parliament and the new European Commission of Jacques Delors);

38 Article 308 (then 235) provides that: ‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.’

30

- the creation of new mechanisms - mutual recognition and the New Approach -

which would facilitate market integration without the need for detailed centralized

harmonization (which was in any case proving impossible to achieve by unanimity).

The result was the Single European Act (SEA), signed in 1986 and entering into force in

1987. The institutional deal reached then was the most important turning point in European

integration since the Treaty of Rome.

Above all, majority voting in the Council was reaffirmed. All countries could see

advantages in completion of the internal market. Without qualified majority voting (QMV) it

was clear to everyone that it simply would not happen. Even Mrs Thatcher could therefore

agree to use QMV for this purpose (although she later repented of the decision, claiming

that she had not realised what the consequences would be).

It was also seen as appropriate to strengthen the powers of the European Parliament.

Majority voting meant a fundamental change in the role of national parliaments. However

strongly a national parliament might insist on giving binding mandates to the governmental

delegation, if a country could be outvoted in the Council, the concept of national

parliamentary control would be transformed. In most of the areas in which majority voting

would apply, the Parliament was thus given the right to a non-binding second reading

under the so-called ‘cooperation procedure’ as well as the right of ‘assent’ (the right to

say yes or no) over some important steps such as enlargement and association

agreements.

There was also a limited expansion of Community competences: environment, research

and development and cohesion were now formally included. Moreover, the overall

package included a great increase in the structural funds, seen as an essential

compensation, especially in the context of the Mediterranean enlargements, to assist

those who would have to adapt most strongly in the face of market liberalization.

At the same time, however, the SEA marked the beginning of the formalization of parallel,

intergovernmental structures of cooperation between the Member States. European

Political Cooperation was thus incorporated as a separate Title. The Foreign Ministers of

the Member States would meet as a different legal entity from the General Affairs Council.

31

The Commission would be associated but not have its powers of exclusive initiative or of

control. The Maastricht Treaty would shortly afterwards take much further this pattern of

development - that is, a strengthening of supranationalism in some respects and a

formalization of more intergovernmental forms of cooperation in others.

The SEA produced a number of ‘internal’ dynamics which constituted a rather

contradictory set of pressures: to extend competences in some directions and to deepen

integration institutionally, while simultaneously establishing some limits on the

competences of the Community.

The SEA notably included the commitment to establish an ‘area without internal frontiers’.

This necessarily meant reaching further agreements over visas, immigration and asylum

policies, control of external borders and police cooperation. Yet these were areas of the

greatest sensitivity for the Member States, which would not easily be subjected to

supranational institutions.

Moreover, the very process of completion of the internal market seemed to touch on all

sorts of spheres of life – more than was often expected or wanted. Even as market

integration was welcomed, there were thus simultaneous pressures to establish some

clear limits to Community action. The answer was the concept of ‘subsidiarity’, introduced

into the Treaty of Maastricht in the following formulation (new Article 3b)

‘The Community shall act within the limits of the powers conferred upon it by this

Treaty and of the objectives assigned to it therein.

‘In areas which do not fall within its exclusive competence, the Community shall

take action, in accordance with the principle of subsidiarity, only if and in so far as

the objectives of the proposed action cannot be sufficiently achieved by the

Member States and can therefore, by reason of the scale or effects of the proposed

action, be better achieved by the Community.

‘Any action by the Community shall not go beyond what is necessary to achieve

the objectives of this Treaty.’

32

Qualified majority voting itself also provoked further moves. On the one hand, it fuelled

arguments that the SEA’s increase in the European Parliament’s powers had been

insufficient. The result was to introduce at Maastricht the ‘co-decision’ procedure. In

various policy areas the European Parliament henceforth had nearly equal rights of

decision with the Council of Ministers, and would, if necessary, negotiate directly with the

Council. The 1997 Amsterdam Treaty (which came into force in 1999) greatly extended the

scope of co-decision as well as removing most remaining procedural inequalities between

the institutions. The introduction of co-decision appears to have been seen as an

incremental change in the Parliament’s powers. Yet it has, in reality, entailed a

fundamental change in the ‘institutional balance’ of the Union, generally to the detriment of

the Commission, while the Parliament’s powers of supervision of the Commission also

began to be strengthened. The Parliament first received the formal right to approve the

Commission as a College before it was appointed, and later the right also to give its

approval first to the person designated as President.

On the other hand, majority voting fuelled concerns about the role of national parliaments,

many of whom only now ‘woke up’ to the challenges posed for them by European

integration. This debate has continued – unresolved – until the present day.

***

Yet the core of the whole Maastricht deal was a very specific set of circumstances, again

reflecting French-led (and German-accepted) moves to ensure that Germany’s greater

power was safely built into a tighter European union.

Almost immediately after the SEA entered into force, a committee chaired by Jacques

Delors began work on a plan for monetary union. This was largely based on the economic

arguments that a single market should be accompanied by a single currency, and that a

single currency would lead to substantial reductions in transaction costs. Yet even before

the fall of the Berlin wall, this was also clearly a political project. The Deutschmark was

the anchor currency in the European Monetary System. The other countries, while

benefiting by borrowing that currency’s credibility, had to follow the decisions taken by the

German Bundesbank in fulfilment of its national mandate to ensure German price stability.

33

The French, in particular, clearly hoped to share in that decision-making through monetary

union.

Then came the fall of the Berlin wall. The prospect of German unification was not greeted

with enthusiasm on all sides. There is neither room nor need here for further details of the

negotiations. Germany itself urged that its unification should take place in the context of

deeper European political union: ‘German unification and European unification are two

sides of the same coin’, said Chancellor Kohl. The French were less enthusiastic about

further European political unification along federal lines. What they did want was monetary

union which was, in a sense, a condition for German unification.

Supranationalism was thus mightily advanced, both through monetary union and the

strengthening of the European Parliament’s powers in decision-making. At the same time,

however, the Maastricht Treaty, in establishing the European Union, also consolidated

cooperation by other means.

On the one hand, the ‘temple’ structure was created, by which the European Union

consists of a ‘supranational’ Community legal order and a set of parallel arrangements

outside the Community system. The Community Treaties and the body of Community law

were the heart of the Union, alongside which two more intergovernmental ‘pillars’ were

added. European Political Cooperation was transformed into the ‘Common Foreign and

Security Policy’, the ‘Second Pillar’. The various instances of cooperation concerning

external borders and internal security were grouped under the title of Cooperation in

Justice and Home Affairs as a ‘Third Pillar’. There was a partial ‘communitisation’ of the

area of Justice and Home Affairs through the Amsterdam Treaty, which transferred

cooperation in asylum, immigration and external borders to the Community, leaving Police

and Judicial Cooperation in Criminal Matters as the new Third Pillar. In that new Third

Pillar, moreover, were changes that brought about a certain rapprochement with

Community methods and instruments.39 The Constitution will formally abolish these pillars,

but some important specificities in decision-making will remain in both cases.

39 The original set of instruments were replaced by ‘decisions’ and ‘framework decisions’, but it is specified that these do not have direct effect. Nor can the Commission initiative infringement procedures for failure to transpose. As a result, there is nothing which can be done to force a Member State to comply - as continues to be the case at the time of writing for Italy in the case of the European arrest warrant.

34

In addition, the Maastricht Treaty began the process of consolidating non-supranational

methods of cooperation within the Community. This mainly means the non-binding

coordination of national policies in areas where competence is not given to the

Community. In these cases, European goals and guidelines are laid down. Member States

are expected to carry out their policies in this context. Different kinds of multilateral

surveillance are carried out. Performance is measured by indicators and benchmarks, with

recommendations issued in some cases. Areas covered by this approach include

economic policy, employment policy, several aspects of social policy (social inclusion,

pensions...) and key areas for improving European competitiveness (research, enterprise

policy, education…). These different approaches will continue to be used even after

adoption of the Constitution.

4. Supranationalism and Politics: Some Issues and Challenges

One important dimension of the evolution of the EU system has been the constant

strengthening of the supranational European Parliament (EP). On the one hand, the

Parliament has been directly elected since 1979, which is assumed to give it greater

democratic legitimacy. On the other, it has acquired ever stronger formal powers. For

those favourable to the consolidation of a European polity, this is only natural and

desirable: the gradual implementation of the principle of representative democracy at the

European level. For others, it is more the result of a series of institutional adjustments.

In the 1970s, the Community established a system of ‘own resources’. Even though this

was not strictly speaking a system of direct taxation for which direct representation was a

necessary corollary, it seemed appropriate to have a directly-elected European assembly

which would be responsible for oversight of the budget.

Since the 1980s, the Parliament’s powers in decision-making have been progressively

increased in the context of the extension of majority voting in the Council, as a means to

enhance the democratic quality of the Union. Its role has been seen as that of

‘democratising’ a supranational decision-making process originally conceived as a

‘dialogue’ between an independent Commission, promoting the common interest, and the

Council, bringing together national interests. Co-decision, by which the Parliament and the

35

Council must agree on a legislative act, on the basis of a Commission proposal, is now to

become the ‘ordinary legislative procedure’ of a constitutionalised Union.

It is worth emphasising that this process of progressive parliamentarisation of the EU

system has to a large extent just ‘happened’. As Jean–Paul Jacqué, Director in the Legal

Service of the Council of the EU, recently noted, the gradual increase in EP powers:

‘has taken place without prior reflection, simply pulled along by the strongest

current. No-one took the trouble to wonder what consequences the innovations

from the various treaty amendments would have on the balance of powers in

general within the Community […] the authors of the various revisions of the

treaties acted on the basis of successive additions without wondering what long-

term effect the changes made to the treaties might have. The Community lacked

an architect with an overall vision of the building that was constructed […]

Surprisingly enough, the Convention on the future of Europe did not reflect on this

either. It was satisfied with extrapolating the development started by the Single

European Act, without stopping for one moment to take the time to have an overall

look at the system as it would be on completion’40

And the system as it has emerged does raise some important questions with regard to the

future of European supranationalism and European politics.

The first challenge is, perhaps ironically, that of building popular support for a

supranational body which was brought in to democratise the Union process. It is a

regrettable fact that, in almost exactly inverse proportion to the progressive increase in the

Parliament’s formal powers, the average turnout in European elections across the

Community/Union has fallen with each successive election (see figure below).

40 Jean-Paul Jacqué, ‘The Principle of Institutional Balance’, Common Market Law Review 41 (2004): 383-391. p.387.

36

The European Parliament – Evolution of Electoral Turnout and of Formal Powers

The 2004 enlargement did not, as hoped, help reverse this trend. On the contrary, the

average turnout in the June 2004 European elections was a record low of only 45.7%. The

rate was often low in the old Member States, although it did increase in certain countries,

and in overall terms was only slightly lower than in 1999. The most striking aspect, however, was just how little interest there was in most new Member States. Turnout was

below the EU average except in Malta, Cyprus and, if only just, in Lithuania. Moreover in

five of the ten, turnout was below 30%, including Poland with 21% and Slovakia with an

all-time record anywhere of 17%. Some commentators have suggested that the falling

turnout rate in European elections is open to misinterpretation, inasmuch as there has

been a more general disenchantment with politics in general. Turnout, it is suggested, is

lower in all elections, not just in those to the European Parliament. Yet turnout in the 2004

European elections was lower than turnout in the latest national elections in every single

country of the 25 except Luxembourg. This ‘Euro Gap’ (i.e. the difference between the two

turnout rates) was a full 53% in Slovakia; over 40% in Sweden, Austria and The

1993 codecision

1987 - assent

- “cooperation”

1975 budgetary

powers

1958 consultation

Average EUTurnout (%)

The Growth of Formal Powers

1999 codecision extended

100

50

01979 1984 1989 1994 1999 2004

63% 61% 59% 57%49%

46%

37

Netherlands; and 30% or more in Denmark, Hungary, Estonia, the Czech Republic, Latvia

and Slovenia.41

A second, related, challenge is whether this de facto parliamentarisation of

supranationalism can be transformed into a genuine system of European party politics.

Can the European Parliament’s Political Groups - and the emerging set of European

political parties – come to provide clear options for European-level politics? That is, can

they offer platforms which people see as offering choices which are both meaningful, in the

sense of reflecting substantive options, and important, in that they concern issues which

are felt to have a high saliency for the population? Without the creation of such a

‘European political debate’ or ‘space’, there will (and perhaps should) be a serious

questioning of the parliamentarian assumptions which underlie so much of the current

institutional arrangements of the Union.

Third, there is a need to think through and explain the future relationship between two

different kinds of supranational interest aggregation - that of the Commission as policy

initiator in the traditional Community method, and that of European political parties – as

well as between the different kinds of democratic legitimacy involved in the EU. It is

interesting that the Constitution does in fact encompass these different aspects. The new

chapter on ‘The Democratic Life of the Union’ is not limited to an article on representative

democracy – which emphasises, incidentally, that this principle is not exclusively served by

the European Parliament but also by the national governments meeting in the Council,

which are accountable to their national parliaments and citizens. It is followed by an article

dedicated to ‘The principle of participatory democracy’ which makes explicit reference to

the importance of the Commission’s consultations with ‘parties concerned’ – i.e. a

recognition of non-majoritarian principles - as well as the importance of dialogue between

all institutions with ‘representative associations and civil society’.

41 International IDEA, Elections in the European Union – A Comparative Overview. The UK Electoral Commission, European Parliamentary Elections Seminar, Cardiff, July 2004.

38

III. SOME COMPARATIVE PERSPECTIVES

1. The Diversity of European Experiences

First of all, it is worth recalling the diversity of European experiences regarding the

institutional arrangements of regional cooperation. In two notable cases, important

degrees of real integration in specific economic and/or social dimensions were reached

without adopting supranational institutions on the Community model.

The 1921 Economic Union between Belgium and Luxembourg created a common

currency as well as joint negotiation in economic agreements (to be precise, Belgium

would negotiate after consulting Luxembourg). Yet the subsequent Benelux agreement,

although as a customs union it necessarily entailed a pooling of sovereignty with regard to

competences in trade policy, did not have any supranational decision-making features.

The Committee of Ministers acted by unanimity, and there was no equivalent of the

Commission. The ‘Benelux Parliament’ is made up of national parliamentarians (its formal

name is the Benelux Interparliamentary Consultative Council) and has no binding powers.

The arbitration college which was foreseen never came into operation. A Court of Justice

was added in 1974, with the power to give binding preliminary rulings on interpretation of

Benelux rules, in the case of litigation, and non-binding rulings on interpretation at the

request of national governments.

Perhaps the most interesting comparison is between the European Community and

Nordic cooperation. The Nordic countries succeeded in establishing a Passport Union

and a Common Labour Market in the 1950s, as well as broad functional cooperation and

transnational societal cooperation, without any supranational elements whatsoever.

However, they failed to achieve economic integration or strong cooperation in foreign-

policy and security matters. The strong underlying similarities in social structure and

values made it easy to achieve deep inter-societal integration on a consensual basis of

‘parallel national action’. Yet, the significant underlying differences in terms of economic

structure and security posture (as well as significant national differences and sensitivities

within the Nordic family) made it impossible, to achieve economic integration or security

cooperation using the same approach - and there was no set of historical circumstances

which could make it seem necessary to adopt a more supranationalist approach.

39

2. Evolving Institutional Systems in Other Regions

Looking around the globe at the beginning of the 21st century, regional attitudes to formal

supranational institutions reveal important differences, but supranationalism as it has been

experienced in the EU is generally not being adopted. In most cases, this is probably an

appropriate choice in view of the real level of regional commitments and the real needs of

regional cooperation. In some others, however, adoption of an appropriate form and

degree of supranationalism is probably required in order to make ambitious sub-regional

schemes work.

ASEAN

The Association of South-East Asian Nations (ASEAN) has always rejected

supranationalism and the idea of strong regional institutions. The ‘illustrative’ scheme

reproduced below visibly reflects the principle that the ASEAN Secretariat is below, rather

than in any sense above, the national level. The ASEAN agreements provide for no

pooling of sovereignty.

Source: adapted from ASEAN Secretariat

http://www.aseansec.org/13103.htm

AEM : ASEAN Economic Ministers

AMM : ASEAN Ministerial Meeting

AFMM : ASEAN Finance Ministers Meeting

SEOM : Senior Economic Officials Meeting

ASC : ASEAN Standing Committee

SOM : Senior Officials Meeting

ASFOM : ASEAN Senior Finance Officials Meeting

40

In October 2003, the member states agreed to create a set of three Communities by 2020:

an ASEAN Security Community; an ASEAN Economic Community; and an ASEAN Socio-

Cultural Community. Yet they explicitly reaffirmed ‘ASEAN’s principles of non-interference,

consensus-based decision-making, national and regional resilience, respect for national

sovereignty, the renunciation of the threat or the use of force, and peaceful settlement of

differences and disputes.’ The Economic Community remains a Free Trade Area, and is

said to be based on ‘a convergence of interests among ASEAN members’.

Supranationalism is not in the air.

The African Union

By contrast, the formal structure of the African Union (AU), which was created on the basis

of the former Organization of African Unity (OAU), is superficially modelled on the EU.

Yet there is – appropriately – little supranationalism even formally built into the system.

The powers of decision, monitoring and enforcement are attributed to the Assembly, which

is the political summit meeting of the Union – although these powers can be delegated to

other organs. In the case of the Parliament, there is no ambition to replicate the European

Parliament, either in terms of its nature or its powers. Article 2 (3) of the relevant Protocol

states that ‘The ultimate aim of the Pan-African Parliament shall be to evolve into an

institution with full legislative powers, whose members are elected by universal adult

suffrage. However, until such time as the Member States decide otherwise by an

amendment to this Protocol: i) The Pan-African Parliament shall have consultative and

advisory powers only;…’ It remains to be seen what will occur with the proposed Court.

The Organs of the African Union � The Assembly: Heads of State and Government or their duly accredited representatives.

� The Executive Council: Composed of Ministers or Authorities designated by the

Governments of Members States. The Executive Council is responsible to the Assembly.

� The Commission: Composed of the Chairperson, the Deputy Chairperson, eight

Commissioners and Staff members; Each Commissioner shall be responsible for a

portfolio.

41

� The Permanent Representatives' Committee: charged with the responsibility of preparing

the work of the Executive Council.

� Peace and Security Council (PSC)

� Pan-African Parliament:

� ECOSOCC: The Economic, Social and Cultural Council, an advisory organ composed of

different social and professional groups of the Member States of the Union.

� The Court of Justice

� The Specialised Technical Committees (at Ministerial Level)

� The Financial Institutions: The African Central bank, The African Monetary Fund, The

African Investment Bank

What is perhaps most interesting in the pan-African case is the creation of innovative

intergovernmental approaches. The regional agenda in Africa (in addition to cooperation

over the vital demands in terms of health, education and so on) seems primarily to relate

to the promotion of peace and good governance. An African Peer Review Mechanism

(APRM) was established in 2001 in the context of the New Partnership for Africa’s

Development (NEPAD). Key objectives are laid down concerning consolidation in all

countries of ‘a constitutional political order in which democracy, respect for human rights,

the rule of law, the separation of powers and effective, responsive public service are

realised to ensure sustainable development and a peaceful and stable society’. These are

then broken down into more specific objectives, accompanied by standards (mainly

international treaties and declarations), indicative criteria and examples of indicators. The

procedure is to be overseen, under the aegis of an APR Heads of State Forum, by a Panel

of Eminent Persons, on the basis of a report from a Country Review Team.

Central America

Central America, finally, presents a quite different case. Having begun independent life as

a Federation in the early 19th century, Central America has lived through repeated efforts

to achieve unification of one sort of another. Indeed the Constitutions of both Guatemala

and El Salvador – the most integrationist of the Central American republics, that are

42

presently leading these efforts through a proposed customs union – not only recall that

historical unity but actually oblige the countries to pursue unification.42

Yet this supranational tradition – as well as a genuine underlying Central American shared

sense, and all sorts of social, economic and political arguments in favour of unity - has

never outweighed the factors militating against integration: ambitions of local leaders,

competing economic structures, territorial conflicts, political differences, external

interference, and so on. Moreover, modern supranationalism has tended to take on formal

forms which are perhaps inappropriate to Central American realities, while those

supranational elements which probably could help achieve the benefits of integration

continue not to be taken up.

Attention has often focussed on the Central American Parliament, which was first created

with European support in the 1980s in the context of the regional peace process and has

been maintained until the present, with strong links to the European Parliament. Its

Members were directly elected. However, this superficially supranational body has existed

in the absence of a real supranational legal or institutional system. The mismatch between

the Central American Parliament’s pretensions, privileges and formal characteristics, on

the other hand, and the needs and expectations of Central Americans, on the other, has

generally contributed to a weakening of popular support for formal integration.

The latest round of discussions about institutional reform in Central America ended with

modest changes at the end of 2004 which seemed to be dictated more by concerns about

institutional finance and individual behaviour than about the real role of a regional

parliament (and of national parliaments) in regional integration.

42 ‘Guatemala, como parte de la comunidad centroamericana, mantendrá y cultivará relaciones de cooperación y solidaridad con los demás Estados que formaron la Federación de Centroamérica; deberá adoptar las medidas adecuadas para llevar a la práctica, en forma parcial o total, la unión política o económica de Centroamérica. Las autoridades competentes están obligadas a fortalecer la integración económica centroamericana sobre bases de equidad. ‘(Art. 150).‘El Salvador alentará y promoverá la integración humana, económica, social y cultural con las repúblicas americanas y especialmente con las del istmo centroamericano. La integración podrá efectuarse mediante tratados o convenios con las repúblicas interesadas, los cuales podrán contemplar la creación de organismos con funciones supranacionales. También propiciará la reconstrucción total o parcial de la República de Centro América, en forma unitaria, federal o confederada, con plena garantía de respeto a los principios democráticos y republicanos y de los derechos individuales y sociales de sus habitantes.’ (Art. 89).

43

At the same time, it remains to be seen whether any new steps will be taken to introduce

more supranationalism in the sense of mechanisms to ensure compliance with common

norms, which would certainly increase the viability and credibility of the customs union and

deeper integration.

CONCLUDING REMARKS

The first general conclusion of this paper is that the institutional arrangements of any

regional integration scheme must be appropriate to – and indeed should grow out of – the

specific historical circumstances of the group of countries in question. Supranationalism

emerged in Europe in the 1950s because of a very specific set of historical circumstances.

These circumstances made a change in the rules of the European game seem the only

way forward. Moreover, they centred around a very specific issue – the management of

coal and steel in frontier zones – that could be transformed from being the symbol of the

historical problem, into the symbol of the historical solution. The genius of Jean Monnet

was not to create the moment but to see and to seize the opportunity. This was, so to

speak, a ‘mutation’ in the evolution of the European system of states. The regional mutant

survived (something which could not be taken for granted in the early years), and then

developed, to pursue the biological metaphor, hrough a sort of ‘punctuated equilibrium’

reflecting the course of modern European history.

Three main factors can be identified, which could have parallels elsewhere.

The first was the early consolidation of ‘hard cores’ around which the regional system

could develop, exploring cooperation in new areas on by ‘softer’ means if necessary,

adapting in the face of crises, but without undoing the longer-term commitment. In the

European case, there were two such cores, on the one hand, the establishment of a

customs union made it possible to move ahead both within the Community, in dealing with

non-tariff barriers and developing common policies, and internationally, inasmuch as the

Community, by virtue of the common commercial policy, became de facto an international

actor which could be expected to develop a broader international role. On the other hand,

consolidation of the Community legal system helped ensure continuity of the basic

supranational commitment despite serious political differences. This was due not only to

the activism of a supranational Court but, crucially, to the involvement of national actors

44

and the growing acceptance by and in the Member States of the legitimacy of Community

law.

The second factor in the development of European supranationalism was the fact that

Europe successively faced conjunctions of pressures which prompted a series of historic package deals. These were based on some fundamental political deals which seemed

inevitable at the time (international competitiveness and national veto rights in the Single

European Act; monetary union and German unification at Maastricht), and which resulted

in broad agreements including changes in substantive competences, decision-making

procedures and diverse compensatory mechanisms.

Finally, the very logic of the system made the deepening of formal supranationalism in

some dimensions seem inevitable, even if very few people (if any) clearly saw what kind of

political evolution was taking place. In particular, greater majority voting has strengthened

the case for stronger involvement of the European Parliament, although this self-

deepening logic of the institutional system has not been matched by a corresponding

internalisation on the part of the European public.

A second broad conclusion is to insist that supranational institutions in any region should

be seen as part of a complex system of multi-level governance. On the one hand,

supranationalism has to be seen as a set of norms, instruments and institutional

arrangements which can be used selectively and in combination with other approaches.

Except in the case of outright political unification, it is most unlikely that all spheres of

activity will be covered by any kind of supranational arrangement. There are likely to be

different combinations of supranational and intergovernmental elements in different issue-

areas, according to the degree of sensitivity, the likelihood of opportunism, and the need

for uniformity in each case. On the other hand, the effectiveness of supranational action

depends crucially on the strength of interdependence between the supranational and

national levels.

While emphasizing the specificity of each regional experience, three general conclusions

are therefore offered as inputs for regional choices regarding institutional arrangements:

45

- Some supranational elements are probably objectively necessary for ambitious

integration schemes, i.e. those which do not ‘come naturally’ but require sustained

commitment and continuity in the face of predictable pressures, especially in order

to consolidate early on in the process a hard core around which more flexibility can

be adopted.

- However supranational the union level may be in principle and however perfect its

institutional arrangements at that level may seem, effectiveness of the system will

depend crucially on its acceptance and implementation by national actors.

- Formal supranational bodies alone cannot create integration, and if such bodies

are created out of context they may not help at all. Indeed a serious mismatch

between formal supranationalism and real needs and results may actually weaken

support for the integration process. Intergovernmental and inter-parliamentary

action may in fact be more appropriate and more effective for some areas of

common concern. And in all cases, the creation of transnational associations and

inter-societal ties is the key to success of regional integration in the long term.