best-supranational institutions and regional integration.pdf
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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.