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Home , Maastricht, Richard Corbett, Treaty of Amsterdam

Journal of Common Market Studies Volume 36, Annual Review September 1998

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

ANDREW MORAVCSIK and KALYPSO NICOLAiDIS Harvard University

I. Introduction The IntergovernmentalConference (IGC) that producedthe Treaty of Amster- dam was from the start a negotiation in search of a purpose. Large-scale negotiations in EU history - from the to - have usually centredon a major substantiveagenda, normally either trade liberaliza- tion or exchange-ratestabilization, with secondary issues and institutional changesdragged in its wake. In the Amsterdam IGC, by contrast, therewas no compelling reasonto negotiatethese particular issuesat this particulartime. The Member Statesconsidered no major expansionsin EU competencesand ignored core economic concernsalmost entirely. With their primary focus clearly on managingthe transition to EMU, they were extremely cautious,seeking above all not to provoke domestic debatesthat might upset this goal. In contrastto the Maastricht negotiations, where German unification, the Gulf War, and the impending dissolution of Yugoslavia appearedto give some urgency to foreign policy co-operation, no such crisis had such an impact on the Amsterdam discussions.

* For comments on this paper we should like to thank Youri Devuyst, Nigel Evans, Philip Gordon, Christopher Hill, Simon Hix, Kathleen McNamara, Hugo Pa&men, John Peterson, Michel Petite, JO Shaw, Helen Wallace, and participants in seminars at Harvard University, Princeton University, and the 1998 Conference of Europeanists in Baltimore, Maryland (USA).

8 Biackwell Publishers Ltd 1998,108 tiwley Road, Oxford OX4 IJF, UK and 350 Main Street, MaIden, MA 02148, USA 14 ANDREW MORAVCSIK AND KALYPSO NICOLAiDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 15 The Amsterdam IGC arose instead out of three considerations. First, in the oversight by the European Court of Justice. With the acquiescence, even the the more federalist governments, notably that of , advocacy, of even the most federalist governments, the Amsterdam Treaty had been promised rapid reconsideration of the political union issues on which introduced practices long considered anathema to those who support European no agreement could be reached. The unfinished business of Maastricht included integration, such as formal multi-track (nearly ‘h la carte’) institutions in which the need to revisit Pillar II, on Common Foreign and Security Policy and, to a some can move ahead without others, highly differentiated decision-making lesser extent, Pillar III on Justice and Home Affairs. Second, the national debates procedures, and legal versions of the Compromise. following the Danish and French referendums on the Maastricht Treaty, as well Most assessments of the Treaty tend, therefore, to be highly critical. Lamber- as the accession of Scandinavian countries, led to widespread calls to redress the to Dini, Italian Foreign Minister, recalled: ‘The long night of Amsterdam closed ‘democratic deficit’. Bringing ‘closer to its citizens’ -increased powers on a note of bitter disappointment. We would not be honest with ourselves or with for the and a desire to upgrade Community competences the others if we did not admit this’ (Dini, 1997, p. xxvii). Press commentators from human rights to employment policy-became a core aim of the new Treaty. remained resolutely unimpressed by the results, with their assessment ‘ranging Third, in 1993 European chief executives officially endorsed negotiations on an from muted to sceptic’ (Bertram, 1997, p. 64). To be sure, the German EU enlargement to countries in central and eastern Europe. By raising the Government and the Commission Task Force initially attempted to present prospect of eventually doubling EU membership, they called into question results as a success that realized the Commission’s expectations in many areas; existing EU decision-making procedures. It was agreed that decision-making but insofar as this was correct, it reflected in large part the extent to which the would eventually have to become more efficient. In addition, larger governments Commission ‘expectations’ had backed away from its initial proposals for sought a series of modest adjustments to institutional structure, notably a ‘drastic institutional reform’ (CEC, 1997; Duff, 1997a, p. xxx; Hoyer, 1997). In reweighting of votes and integration of the Schengen arrangement into the EU, any case, a pessimistic - or, as one federalist commentator put it, ‘realistic’ - in advance of enlargement. After appearing in successive assessment soon reasserted itself (Duff ,1997, p. xxx). European Parliament communiques, these goals were summarized in the 1995 report of the intergov- reports called elements of the Treaty ‘disastrous’ and ‘missed historical oppor- ernmental Reflection Group chaired by Carlos Westendorp enlisted to frame the tunities’; they ‘constitute a significant reduction in democratic legitimacy’. In conference agenda (Ludlow, 1997a). particular the Parliament ‘deplores that the CFSP will continue to be the result Given its lack of a single, clear substantive focus, it is no surprise that of the lowest common denominator between Member States, thus largely Amsterdam, more than any Treaty of Rome revision since 1957, became a depending on the political will of each’, while ‘voicing its dismay at the outcome melting pot of disparate measures lacking coherent vision of either substantive . . . in the area of free movement of peoples and the third pillar’. Provisions for co-operation in a particular area or the future institutional structure of Europe. flexibility ‘are in blatant contradiction with the Community spirit and constitute Given the lack of clear positive-sum gains, institutional reform tended to get a regrettable precedent’ (European Parliament, 1997, pp. 15, 23, 38, 8, 74). bogged down in zero-sum bargaining between large and small states, or more and Subsequently the Vice-President of the Commission criticized the outcome as less federalist ones. Those elements of the agenda above that commanded ‘more than disappointing . . . disastrous’ (van Miert, 1998). consensus - such as some institutional reform to facilitate enlargement or Gloomy scholars and analysts echo dispirited policy-makers and journalists. perhaps co-operation on immigration and policing - were not very precise and, Three long-time policy analysts speak of a ‘comprehensive failure ofinstitution- above all, not pressing, particularly by comparison to EMU. Governments could al reform [and] of political leadership’ with ‘serious political consequences’. easily put them off and did so. Hence the Amsterdam Treaty neither introduces ‘Heads of government’, they conclude, ‘have totally failed in their self-appoint- major new Community competences (symbolic proposals on employment aside) ed task’ (Crossick et al, 1997, pp. 1-Q). Some political scientists catalogue nor significantly deepens co-operation in existing substantive fields. Its provi- myriad ‘output failures’ (Wessels, 1997, pp. 4,lO). (Wessels’ language is, it is sions for institutional reform-with the exception of an expansion of parliamen- fair to note, more loaded than his analysis. He rejects any comparisons to an tary co-decision - are modest. The division of the EU into three institutional ‘optimal model’.) Philip Allot speaks for international lawyers horrified by the ‘pillars’, the second and third of which remain mired in the grey area between legal non-uniformity of the results: ‘The Amsterdam Treaty will mean the intergovernmental decision-making under unanimity and the distinctive coexistence of dozens of different legal and economic sub-systems over the next ‘Community system’ of exclusive Commission initiative, qualified majority ten years, a sort of nightmare resurrection of the ...’ (cited voting in the Council of Ministers, amendment by the European Parliament, and

0 Blackwell Publishers Ltd 1998 0 Blackwell Publishers Ltd 1998 16 ANDREW MORAVCSIK AND KALYPSO NICOIiiDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 17 in Shaw, 1998, p. 11; also Walker 1998)A leading French federalist calls the insteada federationamong strong nation-states’(Delors, 1996). Governments outcome ‘miserable’ and ‘catastrophic’ (Bourlanges,1997). continueto move forward towardscentralized federal institutions in some areas Were currentfailures not bad enough,the so-called ‘bicycle theory’ predicts - notably EMU -but seek pragmatic,flexible solutions in areaswhere the lack that failure to restore the quickly will, as one prominent former of negativeexternalities renders decentralized policy-making a workable solu- Commissionerputs it, ‘place at seriousrisk much of what has beenachieved in tion. the last 40 years’ (Sutherland,1997, p. 31). Others predict that ‘the EU cannot This more measuredattitude is not the result of a lack of ‘political will’ or afford the repetition of a protractedprocess of intergovernmentalnegotiation ‘vision’ -vague, analytically unhelpful phrasesgenerally employedto designate followed by the anti-climax of negativepolitical conclusionsdrawn at the endof a generalmood of rising nationalism or public scepticism toward the EU, the the day’ without people losing faith in integration (EuropeanPolicy Centre, domestic political weaknessof national leaders,the disappearanceof geopolit- 1997, Conclusion;also Jorgensenand Christiansen,1997). A seasonedscholar ical threatsresulting from Germanunification and the recedingCold War, or the of EU politics assertsthat ‘it is urgentto recreatethe global political cohesionof passingof the wartime generation.It reflects insteadthe lack of compelling and the Union characterizedby fragmentedsectorial policies, vision, and powers, compatible substantivenational interestsin deeper,more uniform co-operation and by different and even incompatible decision-makingprocesses’ (Sidjanski, in areaslike social policy, cultural andeducation policy, taxation,foreign policy, forthcoming, ChapterVI, p. 11). A British federalist seeksto ‘shock the citizen and even - though here there are somewhatgreater incentives - environmental out of complacencyabout how Europe is governed’ so as to assurethat ‘the policy, consumer regulation, immigration, asylum, and policing. Moreover, Amsterdam IGC will have beenthe last of its kind’ (Duff, 1997a,p. xxxviii). governments now seek to balance decision-making efficiency with greater In this article we seekto draw a more balancedassessment of the significance accountability and expandedmembership. The problem in Europe today is not andsuccess of theAmsterdam Treaty-issues of theory andexplanation are dealt that governmentshave lost the ability to move forward strongly toward federal- with elsewhere(Moravcsik and Nicolai’dis, forthcoming). Our central conten- ism when they acknowledge clear (generally economic) objectives - say, tion is that the nearwidespread negative assessment of the outcome is mislead- construct a single market, elaboratea common agricultural policy, establish a ing, not becausethe results have beenunderestimated, but becausethe standard single currency,or participate in a multilateral trade negotiation. This is clear againstwhich they arejudged is unrealistic. Most criticisms of the Amsterdam from recentmovement towards EMU. It is insteadthe absenceof clear substan- Treaty implicitly or explicitly reflect a teleological understandingof European tive interestsin doing so in new areassufficient to justify substantialsacrifices integration as moving inexorably, if at an unevenpace, toward greatersubstan- of sovereignty. We are witnessing not a resurgenceof nationalism but a tive scope,universal participation by expandingnumbers of participants,and diminution (or levelling off) of national interest. greateruniformity in the application of institutional and legal procedures.This Judgedby the standardsof the politically possible,not the federalist ideal, the is the only future for Europe and if Europe does not maintain the momentum Amsterdam Treaty appears instead as a creative adaptation to new, more toward its, so goes the ‘bicycle theory’, it is doomed to slip back, endangering sophisticated,more differentiated and, in many areas,more modest national current achievements. demands.The ability of the Amsterdam negotiatorsto accommodate shifting This view, we argue,is dated.Europe is enteringa phasetoday (perhapsit has concernsdemonstrates the flexibility andresponsiveness of EU institutions. This beenthere for sometime) where this venerablefederalist vision of an expanding, suggeststhat in the future Europeangovernments will spendless time seeking undifferentiated,and uniform Europe - constant increasesin the substantive to expandthe traditional institutions to new substantiveareas and increasingly scopeof co-operation,adherence to a undifferentiatedinstitutional orderacross focus on determining what type of institutions and what scopeof participation issues,and co-operation only if and wheregovernments can participate uniform- areappropriate to particular issuesand circumstances. The resulting debateswill ly - seemsless compelling to Member State leaders, elites and publics. The be less substantiveand more constitutional. Governmentswill ask - and be teleological ideal - a ‘ of Europe’ characterizedby centralized, forced to justify-the preciselevel of centralization,uniformity, and scopeof co- uniform, universaland undifferentiatedinstitutions-is no longeran appropriate operation in particular issue areas. Such constitutional debateswill not be standard(if it ever was one) by which to judge further stepstoward integration. resolved by the application of a single ‘’, but instead by a Even a visionary leaderlike JacquesDelors now renouncessuch a goal: ‘There balancing of competing philosophical and pragmatic claims for the pre-emi- will neverbe a United Statesof Europe’, he statedrecently, ‘I refuseto identify nence of democracy, universality, uniformity, and efficiency. Future debates myself with thosewho promote the disappearanceof the nation-state. . . I seek will reflect supportfor a more pragmatic,balanced evolution. Far from being ‘the

8 Blackwell Publishers Ltd 1998 0 Blackwell Publishers Ltd 1998 18 ANDREW MORAVCSIK AND KALYPSO NICOLP;iDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 19 last of its kind’, the Amsterdam Treaty is the harbinger of a new, more ‘honest broker’, demandedgreater representation than Greeceand , constitutionally self-consciousfuture for Europe. eachwith a population 50 per cent smaller. A French proposalto streamline the Commission to around a dozen members was a non-starteramong the small states- who felt that their Commissioner was an indispensableconduit for II. General Institutional Reform and New Competences information. Many in any case felt that was either bluffing or sought Shifting the Balance between Large and Small: therebyto reducethe Commission to a conventional secretariat. A Reweighted Council and a Streamlined Commission Had the large states really wanted an agreement,surely they could have attainedone during the last few weeks. Yet Chancellor Kohl, concernedabout At Amsterdam, larger Member Statescalled for a re-weightingof nationalvotes domesticratification of EMU, proposedthat the statusquo be maintainedfor the in the EU’s primary legislative body, the Council of Ministers. With EU time being and, along with PresidentChirac - one former head of government enlargementssince 1957, the institutional over-representationof smaller coun- reports -quietly encouragedthe Dutch presidency to postpone agreement. tries hadgrown progressivelymore pronounced.In an EU of 26, some calculat- Despitelast-minute wrangling, theTreaty postponesreform to a subsequentIGC ed, a qualified majority could be achieved with the support of government with two caveats: first, a new comprehensivereview must take place at least one representingonly 48 per cent of the EU population; even some smaller states yearbefore EU membershipexceeds 20; and, at Spanishinsistence, there would concededthat such an outcome might be viewed as illegitimate. Yet appealsto be one Commissioner per country at the date of the first enlargement, if principle could not hide the essentiallydistributive natureof the conflict. At the agreementhad been reachedon the re-weighting of votes in the Council. Extraordinary at Noordwijk, two weeks before Amsterdam, negotia- The significance of the failure to reach agreementon institutional reform is tions on Council reform hadbecame an exercisein pure distributional bargain- easy to exaggerate.Internal Commission studies show that results in Council ing between larger and smaller states.Calculators in hand and tablesfrom the votes of the prior three yearswould have remainedunchanged under any of the Commission and the Dutch Presidencyby their side, negotiatorsassessed and reweighting formulae -though this doesnot take accountof the possibility that reassessedthe impact of competingformulae on their country’s role in potential some decisions are taken ‘in the shadow’ of the vote. As far as Commission blocking alliancesunder different enlargement scenarios. reform is concerned,internal reorganizationand consolidation appearsto be a Two proposalsfor reweightingCouncil voteswere considered:an increasein much more significant determinantof efficiency than the number of Commis- the relative weight of the five largeststates (Britain, France,Germany, , and sionersper se. After all, many national governments(not least the French), ) and a ‘dual majority’ voting system in which decisions must achieve a function coherentlywith a larger numberof ministers. It is alsounlikely-despite fixed percentageof weighted votes and votes from states representingsome Commission efforts to generatea sense of urgency with this claim - that percentage(also generally 60 per cent) of EU population. Smaller states stalematejeopardizes the timing of enlargementby requiring that yet another supportedthe dual majority system, which would increasethe ability of larger IGC would have to be held to settle institutional reform before the EU exceeds statesto block legislation without diluting their own veto, but this was rejected 20 members. As one top Commission negotiator remarked afterwards, the by theFrench, because it would for the first time grant Germanymore votes than outlines of the likely agreementwere so clear to the participants that at some France.Germany, seekingnot to embarrassitself or France,sat on the fence - a futuredate it could be negotiated‘in 24 hours’; the problem being simply to select symbolic setback- while other governmentsadvanced special demands. Since the optimal domestic political moment to do so.Finally, while governmentswere smaller stateslost out from a reweighting,no matter how it was structured,it was concernedabove all to avoid the impressionof symbolic failure, they remained proposedto offset changesin the Council by streamlining the Commission - concernedto avoid any domesticratification controversythat might threatenthe limiting the number of Commissioners to one per country. This proposalwas transition to EMU -a far more important andimmediate priority for all member presentedas a meansof renderingthe Commission more efficient after enlarge- governments,not least that of Germany. ment, when the number of Commissionerswould expandto 30 or more, but in fact was a quidpro quo to smaller states.Matters were complicatedeven further ‘Enhanced Co-operation ‘: How Flexible should the EU be ? when the Spanishannounced that if they lost a secondCommissioner, they would no longerbe willing to acceptfewer Council votes(eight ratherthan ten) thanthe If Maastricht enshrinedthe notion that reluctant states cannot be forced into other large countries, and the ,despite its presidential role as an action,Amsterdam pursuedthe allegedly complementarynotion: reluctantstates cannotstop others from employing EU institutions to pursueactions they favour.

0 Blackwell Publishers Ltd 1998 (8 Blackwell Publishers Ltd 1998 20 ANDREW MORAVCSIK AND KALYPSO NICO&DIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 21 As one participant put it, ‘In Maastricht we took careof the rights of the minority to-face over proposedparliamentary amendmentsin 15 categoriesof first pillar - to opt out; in Amsterdam, we took care of the rights of the majority’. In the legislation. At Amsterdam, Member States expanded and reformed the co- Reflection Group, all governmentsaccepted some form of ‘flexibility’ clause decisionprocess. They replacedreferences to the other major form of parliamen- permitting a majority of statesto move forward without necessarilyincluding all. tary involvement, the ‘co-operation’ procedure,in nearly all Pillar I business, The motive force behind the shift in European orthodoxy reflected not the excluding EMU -bringing to 38 (after five years 40) the total number of legal opposition of Eurosceptics,but the conversionof relatively federalist stateslike categoriessubject to co-decision. Areas like fiscal harmonization and CAP France and Germany, who sought a means of bypassing reluctant states like reform remained outside; only proceduresfor consultation applied. The co- Britain or potential laggardsin the eastand south. This idea was introduced in decision process was reformed, moreover, to remove the (negative) ‘third the CDU/CSU paper prepared by Wolfgang Schauble and Karl Lamers in reading’, which had previously given the Council a final opportunity to pass September1994, then taken up in an ambitious France-Germanproposal. legislation by QMV in the caseof a failure to reachan agreementin conciliation Broadly speaking, the Member States split into two groups - probable betweenthe Council andParliament, subjectonly to veto by an absolutemajority membersof a federalcore andprobable candidates for exclusion-each of which vote of the Parliament.At the end of the legislative process,the Parliamentwas sought an arrangementthat afforded its members the greatest freedom of now on equal footing with the Council; if agreement is not reached, the manoeuvrewhile restricting the strategic options of the others. Leaving aside legislation is dropped.The Parliamentalso gained a formal right to approvethe new specific provisions for foreign policy, governmentsconsidered three aspectsof CommissionPresident, though it remainsdifticult for theParliament to exploit veto flexibility: the procedure for invoking it, the scope of its application, and powerto compelacceptance of a particularcandidate. Finally, with the encourage- provisions for the participation of excluded states. On invoking flexibility, mentof thenew British Government,steps were taken towards a uniformproportion- Britain, supportedby ,, and Ireland (and, to a lesser al representationelectoral arrangement for parliamentaryelections. extent Spainand ) insistedon veto rights over any flexible arrangement The central issue at stake in the expansion of parliamentary powers, it is - a position Franceand Germany resisted.The resulting compromise, proposed important to remember,is not the balance betweennational and supranational by Britain and closer to its position, permitted a qualified majority to establish authority but the balanceof power among supranationalinstitutions. Leaving flexible arrangementsbut with a veto possible ‘for important . . . reasonsof asidethe surprising decision to eliminate the third reading, the preciseimplica- national policy’ - echoing the terms of the much maligned Luxembourg tions of which are disputed,the primary formal impact of expandedco-decision Compromise. On scope,there was a consensusthat the formal flexibility clause is to transfer influence from the Commission to the Parliament. Co-decision ought not to threatenthe ,with the result it can only be erodesthe Commission’s traditional control over the text of proposalsthrough- employed, among other conditions, outside areas of exclusive Community out the EU legislativeprocess. (As long asthe two institutions agreesubstantive- competence;where existing programmesare not affectedyet within currentEU ly, there may be a joint gain in influence via increaseddemocratic legitimacy powers,where it doesnot discriminate amongEU nationals,and where tradeand (No&l, 1994, pp. 22-3).) Under co-decision, the Council is able to pass any competition remainedunimpeded. Even on a narrow interpretation,these cuve- compromise emerging out of the conciliation procedurewith Parliament by a ats probably precludemuch meaningful co-operationoutside the third pillar. On qualified majority, while the Commission could no longer compel a unanimous the accessionof new participants,potential outsiders sought guarantees that they vote on changesit opposes.Whether the Commission also lost its formal right could opt in at any time, provided they undertookthe commitments. The last to withdraw a proposalafter the conciliation procedureremains a matter of legal minute replacement of a Council vote by a Commission assessmentof the dispute,but exerciseof such a prerogativein the face of a united Council and suitability of new members representeda significant victory for the potential Parliament would surely be politically costly (Nickel, 1998). ‘outs’. The Commission did manage,however, to avoid more extreme curtailment of its powers.The GermanGovernment, which had advocatedat Maastricht that Redressing the Democratic Deficit? the Parliamentshare the Commission’s power of initiative, repeatedlyproposed Parliamentary Powers and Unemployment at Amsterdam that the Council be permitted to revise Commission proposalsby Perhapsthe most surprising result of the Amsterdam IGC was an increasein qualified majority vote. This proposal,which would haveseverely curtailed the parliamentary co-decision. Maastricht had introduced a new EU legislative latter’s agendacontrol, was acceptableneither to smaller states nor to the procedure- ‘co-decision’ -in which the Parliamentand Council negotiatedface- Commission, whose representativeimmediately threatenedto recommend its 0 Blackwell Publishers Ltd 1998 0 Blackwell Publishers Ltd 1598 22 ANDREW MORAVCSIK AND KALYPSO NICOL&DIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 23

resignationen masse (Nickel, 1998).For its part, the Parliamentheld back from contemplateextension of QMV to social policy (rules of worker representation demanding the power of initiative, knowing that this would trigger similar and redundancywere proposed),but only to market liberalization. demands from the Council - perhaps to the disadvantageof supranational While an attractive idea in principle, generalQMV proved less promising in institutions asa whole (Petite, 1998).Co-decision aside (and notwithstanding the practice.Of around65 Pillar I articlesrequiring unanimity, nearly half concerned disputeover tradepolicy competence),there was greatersupport among national monetary and financial issues and would therefore become obsolete with the governmentsfor maintaining traditional Commission prerogativesat Amster- transition to EMU. An additional dozenconcerned core institutional and finan- dam than had been the caseat Maastricht. cial competences,such as structural funding and nominationsto the Commis- The increasein parliamentarypower is particularly striking given the margin- sion, on which governmentswere unlikely to favour QMV. (These issues are al role played by the Parliamentin the negotiations (Petite,1998). As in the SEA poised to become more controversial in coming years.) There remained 25 and Maastricht, parliamentaryrepresentatives were active in early meetingsbut residual regulatory and single market issues,of which over half were areasin played a marginal role in later deliberations (cf. Moravcsik, 1998c). The which governmentshad extremereservations toward extending QMV - includ- expansionof parliamentaryprerogatives was supportedinstead primarily by the ing free movement of peoples, social security, professional services, indirect successivenational presidenciesand by Germany, which kept co-decision taxation, culture, industrial policy, social policy and employment. (CEC, 1997; provisions in the negotiating text. Also important were shifts in national Petite, 1998). On some of theseissues, opposition from Britain and numerous positions.Shortly beforeAmsterdam the new FrenchSocialist government,with smaller counties might have been surmounted had it not been for German ElisabethGuigou asJustice Minister, pressedstrongly for parliamentarypowers; reticence. PresidentChirac acquiescedand was reportedto remarkto his advisersthat it was German scepticism was not new. Germany had enteredinto previous IGCs anissue of marginal importance.Moreover, the new British governmentof Tony with strongrhetoric on QMV but long lists of exceptions.In negotiatingthe SEA, Blair was lessadamantly opposed than its predecessor.Elsewhere, given that the Kohl had insisted on the insertion of Art. lOOa granting derogations to elimination of the third readingwas not seenas a major shift - given the rarity governmentswith higher standardsthan the Europeannorm - a clause strength- with which it appearedto influence actualoutcomes- it seemeda relatively easy ened in the environmental area at Amsterdam. (If backed by new scientific concessionto quell democratic sentiment. evidence,governments may derogate,regardless of their previousvoting record.) Germanyhad subsequently been outvoted in theEU Council more often than any Council Eficiency: Major&y Voting in the First Pillar other government. In the Amsterdam IGC, this reluctance took the form of The Council of Ministers remains the most powerful institution within the EU pressureagainst QMV from the Germanunder, which held exclusive or shared system of governance;hence reform of the Council through increaseduse of jurisdiction in Germany’s federal system in most of the areasunder considera- QMV was consideredby the Commission and others as the most significant tion. Third pillar issueswere especiallysensitive. Diplomats, including Germa- reform underconsideration at Amsterdam (Devuyst, 1997,p. 14; Petite, 1998). ny’s chief negotiatorin ,apparently expected Kohl to override domestic The Commission, of course,preferred a maximalist solution, namely expansion opposition at the last minute in the nameof federalism.Yet the Chancellor,surely of QMV to all areas- a proposalgenerally supportedby the Benelux countries, with one eye on the approachingtransition to EMU, surprisedall his partnersin Italy, andsome new entrantslike and . (For this, the Commission the final weeksand hours before Amsterdam by opposingcompromise proposals advancedthe superficially persuasive,if analytically fallacious, argument that for a broad extensionof QMV. Extensionof majority voting to a dozenrelatively the probability of a veto would be many millions of times greater with 30 insignificant matters- such as creation of an advisory body on data protection, members than with 15. This neglects that the probability that any single aid to the outmost regionsof the EU, and R&D, an areagoverned by voluntary governmentwill opposea measureis generally correlatedto the probability that participation and(albeit less andless over time) juste retour- fooled no one. One others will do so; Council politics are typically coalitional, not unilateral.) top Commission official termedthe outcome ‘meagre’ (Duff, 1997, pp. 155-6). France, too, came to advocateQMV in these areasafter an internal analysis revealedthat it had much lesschance of being outvotedthan of seeingdecisions New Competences: Employment it favouredovercome a potential veto by anotherMember State (Petite, 1998). Symbolically more salient, though substantivelyless significant, was the joint Neither a Conservative nor a Labour Government in Britain was willing to declaration at Amsterdam concerning unemployment in Europe. Unemploy- ment reached 11 per cent acrossEurope in 1996. Despite healthy scepticism 0 Blackwell Publishers Ud 1998 0 Blackwell Publishers Led 1998 24 ANDREW MORAVCSIK AND KALYPSO NICOLAiDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 25 concerning the ability of governmentsto do anything in this domain, publics by more centralized administration. Yet this, too, is unclear. Bureaucracies nonethelessconsidered action in this area as a test of EU relevance.The result remain insular; some governmentssee little advantagein co-operation. Still, was a chapteron employment - the only exception to the informal agreement encouragedby the Commission spokesmenand ongoing Germanconcern, these amonggovernments not to considernew substantivecompetences in theAmster- areas,particularly the third pillar, came to be viewed as natural areasin which dam Treaty. Countrieslike France and Swedenspoke of this chapteras embry- small stepstoward deeperco-operation could be takenat a modestpolitical price. onic ‘economic government’ to counterbalancethe new EuropeanCentral Bank (ECB)-e.g. the long overduespelling out of Article 103of the Maastricht EMU The Second Pillar: Common Foreign and Security Policy provisions - a position opposedby Britain, Germany and the Netherlands,who The Maastricht Treaty had provided for a Common Foreign and Security Policy watereddown the provisions.The Germansflatly refusedto considerlast-minute that functioned throughclassical intergovernmentalmeans, thus formalizing the proposalsby the new French Socialist governmentof Lionel Jospin for the use way ‘European Political Co-operation’ had functioned for two decades.At of EU fundsfor job creationor research(Duff, 1997,p. 64). The new chapterdoes Amsterdam, the governmentsconsidered introducing greaterQMV, flexibility, permit the EuropeanCouncil to issue annual employment policy guidelines, and better administrative support,but the gains were modest. Instead,Amster- surveillanceof the employment policies of Member States,and a pilot project of dam confirms the essentiallyintergovernmental nature of EU foreign policy, but incentive measuresto encourageintergovernmental co-operation- the latter fine-tunesprocedures in the name of efficiency. watereddown to a pilot project. An Employment Committee wascreated. While, Introducing greaterQMV was the most significant potential reform of CFSP as one commentator noted, these ‘cosmetic’ changes permit the EU to ‘do consideredat the IGC. The Treaty introduces QMV in the General Affairs nothing aboutunemployment it was not ableto do beforehand’,at most they may Council (where foreign ministers are represented)for ‘joint actions’ and provide a basis for eventual efforts to encourageco-operation by ‘shaming’ ‘common positions’ implementing ‘common strategies’previously adoptedby member governments.Modest changeswere also made in EC environment, unanimity at Europeansummits. Theseterms are not well defined and may lead consumerprotection, and public health policies. to disagreement.A truly determinedgovernment could seek to employ narrow anddetailed initial delegation-objectives, duration, andpermissible means - to III. Foreign Policy and Home Affairs Pillars Revisited restrict all de facto use of QMV. Still, the generalizedadoption of QMV for second-tier decisions on implementation shifts the implicit default in such The Maastricht Treaty had reinforced co-operation in the two major non- circumstancesand had thus long beenresisted by the UK, France, and Greece. economicareas-foreign policy (including defence)and home affairs (immigra- Howeverthe Treaty permits agovernmentto wield a ‘political’ veto by declaring tion, asylum, andpolice co-operation).Of the largecountries, such co-operation its opposition to the adoption of a decision by QMV ‘for important and stated was of primary importance to Germany,which had a far less viable unilateral reasons’of national interest.In suchcases, the ministers may refer the matter to foreign policy than Franceor Britain andwas the destinationof well over 50 per headsof stateand governmentin the EuropeanCouncil, which then decidesby cent of immigrants to the EU. In addition, immigration, justice, and policing unanimity. _ were salient and potentially popular electoral issues for Kohl’s centre-right An equally significant innovation lies in a unique flexibility clause intro- coalition. At Maastricht, France,Britain, and othershad refusedto communita- duced into CFSP. ‘Constructive abstention’ createsthe possibility for a sub- rize thesesensitive areas.Instead, member governmentsagreed to the French group of Member Statesto conductjoint actions using EU institutions with the proposalthat divided the EU into threepillars. acquiescencebut not the participation of reluctant Member States.If one-third Reform of the secondand third pillars was given a senseof urgencyby the of the Member Statesabstain, no action is possible. If a group representingless failure to achieve any significant results after the entry into force of the than one-third abstainsfrom a decision, they are not obliged to apply it but do Maastricht Treaty. This failure was much noted by commentatorsdespite the acceptthat the decision commits the EU as a whole. A subtle differencefrom the absenceof objective evidence that policies would have been different under enhancedco-operation clause of the first pillar was that statesare called upon, more centralized institutions. Some mistakenly argued that the Bosnian War thoughnot formally obliged, to refrain from any action likely to conflict with or would havebeen dealt with differently had CFSP beengiven more institutional impede EU action. If this procedure,already part of the implicit functioning of backbone- a view largely discredited by the historical record. A marginally CFSP, has any impact, it will be becauseit permits dissentingstates to register strongercase can be madethat co-operationin the third pillar would be deepened their dissentvery visibly, often necessaryfor domestic reasons,without actually 0 Blackwell Publishers Ltd 1998 B Blackwell Publishers Ltd 1998 26 ANDREW MORAVCSIK AND KALYPSO NICOLAiDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 27 blocking joint action and retaining the option to opt in later. Non-military for the pillar design and, within it, the classically intergovernmental Council actions, moreover, may be funded out of joint funds, regardlessof abstention, Secretariatover the Commission’s more centralized,administratively uniform though operationsto complete ‘Petersbergtasks’ (seebelow) must raisead hoc vision; shortof a radical changein nomination practices,no seriouscompetition levies. Constructive abstentionprovides governmentswith greater flexibility, to national foreign ministries is likely. though it should not be exaggerated.The policy tools that can be manipulatedin Turning lastly to defenceco-operation, we observeonly modestchange. The this way are limited; unless abstaining countries actually implemented EU French spoke of an independentEU defence identity, but advanced so few policy, for example, it would be difficult to impose effective sanctions or concreteproposals that otherssoon questioned their motives. Insteadthe French, embargoes. whetherout of commitment or calculation,joined Germanyin an eleventh-hour A third area of potential CFSP reform was centralized administration and plan, backedby the other four original EC membersand Spain, for a progressive leadership.Maastricht had createdan independentsecretariat to overseeCFSP, merger between the EU and WEU with an explicit timetable and flexibility but thereremained differing views concerninghow to institutionalize collective provisions. Traditional pro-NATO countries such as Britain and Portugal, political leadership.The Commission and the French Government took tradi- scepticslike Greece,and traditional neutralslike Swedenand Ireland remained tional positions. The Commission pursuedits long-standingdesire to centralize sceptical; it was an issue on which numerousgovernments seemed willing to foreign policy-making authority, like authority in so many other areas,in the impose a veto. Commission itself; it criticized the pillar design,noting that it might hamperco- The final outcomecame closestto the sceptical position held by the neutrals ordination between the EU economic and diplomatic policies. This proposal and was not far - particularly when we considerfirm commitments rather than gained little support and was never discussed seriously (Petite, 1998). The rhetoric - from the completely negativeviews advancedby Britain. A protocol French, by contrast, sought to empower a senior political figure with a high called on the EU to draw up proposalsfor closer co-operationwith the WEU degreeof independencefrom the Commission. This position, dubbed ‘Mr/Ms within a year, yet the languageis non-committal and preservesa veto; the EU CFSP’ (or ratherperhaps M/Mme PESC), cynics noted,was likely to be held by may recommendactions to the WEU. Governmentsmay discuss a three-stage a Frenchman, possibly Valery Giscard d’Estaing. President Chirac’s quixotic timetable for closer EU/WEU co-operation.EU defencepolicy may not preju- insistenceon a more political post until the very last hours of the IGC testifies dice the specific characterof NATO. The only explicit step was the incorpora- to the high priority attributedby the French side to this issue- perhapsthe only tion, following a Swedish-Finnishinitiative, of the so-called ‘Petersbergtasks’ one where a distinctively French proposalhad any chanceof acceptance. as part of CFSP. These tasks, which had became part of the WEU mission in Yet this was not to be. Most governmentssought to maintain an intergovem- 1992,include humanitarianintervention, rescue, and crisis man- mental structure.The result was a ‘lowest common denominator’ compromise agement- all issues that are increasing in importance in the post-Cold War of sorts, one that moved only modestly from the statusquo. While denying the world, as the line between ‘crisis management’ and more traditional defence French ‘Mr/Ms CFSP’, the result reinforced the Anglo-French victory at operationsis increasinglyblurred. The Nordic countries,along with Ireland and Maastricht, which had preserved Member State initiative in this area. EU Austria, were the most adamant proponentsof such inclusion, not only for representationfor CFSP would continue to be handledby the rotating presiden- positive reasonsbut also becauseit subtly disguised their opposition to further cy, but the SecretaryGeneral of the Council (SG) would centrally administer moves towards a more traditional Europeandefence. For those dedicated to CFSP and serve,alongside the national presidency,as EU envoy and represent- a European defence identity, Amsterdam was viewed as a straightforward ative of CFSP. The creation of a new Deputy SG would underscorethese new ‘failure’. responsibilities.Critics arguethat this doeslittle more than authorizea ‘bureau- Finally, while not strictly connectedwith CFSP, anotherforeign policy issue crat’ to assumethe post of ‘special envoy’ already created by the Maastricht of extreme interest to the Commission concerned the scope of ‘exclusive Treaty; defenderspoint to the potential for greater continuity. In the end, competence’ pertaining to international trade negotiations under Article 113 something approaching the French vision is possible only if a substantial (Meunier and Nicoldidis, 1997). Under the Treaty of Rome the Commission majority of governmentscease supporting the appointmentof a national civil enjoyed a monopoly over external representationin World Trade Organization servantas SG, asin the past,and turn to a major political figure. Even this might (formerly GATT) negotiations(though overseen by a Council committee), with not be enough.The Commission is to be ‘closely associated’;in other words, it governmentstaking final decisionsby QMV. With the Uruguay Round,howev- can be invited to participatein discussions.This outcome marks a clear victory er, Member States(led by France)successfully argued that new issues- services

0 Blackwell Publishers L.td 1998 0 Blackwell Publishers Ltd 1998 ANDREW MORAVCSIK AND KALYPSO NICOtiDIS 28 FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 29 trade,intellectual property, and investment-were not traditional ‘trade’ issues immigrants to Germanywho transitedthrough their territory, regardlessof their and thereforelay outside the scopeof exclusive Community competence.This countryof origin (Burrows, 1998).Even ChancellorKohl rejectedany automatic subjectedthem both to unanimous vote in the Council and to ratification by transition to QMV, however, in part because it threatenedcurrent under individual national parliaments.At Amsterdam, a majority of Members States prerogatives. led by the Commission sought to extend Community competencebut the In the run-up to Amsterdam, critics made much of the lack of substantial outcomereiterated the statusquo. Even the Germansproved cautious. The only resultsin the third pillar since the entry into force of the Maastricht Treaty. Such mitigating factor is that in the Treaty the Council can decidethe status of new critics, like those who criticize EU second pillar arrangementsfor failing to issuesby unanimity before upcoming negotiations- anotherprocedural hybrid resolve the Yugoslav crisis, seldom explained the precise nature of preferred that allows for some future extensionof Community competencewithout Treaty policies or how institutional reform would haveassured that better policy would revision. emerge.Surely the lack of policy outputsreflected substantial opposition among the Member States, as well as institutional bottlenecks. Immigration issues The Third Pillar: Justice and Home Afairs remained politically volatile in all countries, not least Germany, France, and Reform of the third pillar introducedby the Maastricht Treaty,justice and home Britain, becauseof right-wing opposition, fundamentalconcerns about institu- affairs, was the most intensely debatedissue in the negotiations.Three broad tional sovereignty,or geographicalspecificity. topics were discussedtogether: reform of the common policy toward immigra- More importantly, governments found themselves with widely disparate tion and asylum vis-8-vis third-country nationals, the integration into the EU interests.Not only were somenot membersof the SchengenAccord, but at least Treaty of the so-called ‘Schengenacquis’ (the provisions on visas, bordersand two non-membersof Schengen- Britain and Ireland, the former with only 23 proceduresnegotiated under the SchengenAgreement, which aimed to abolish ports of entry -were far better able to impose defacto control over movements checksat intra-EC ,signed on 14 June1985); and co-operation in matters acrosstheir bordersthan almost any continentalcountry. As a corollary, internal of policing andjustice. Thesethree concerns were linked not simply becausethey policing was traditionally far less intrusive than on the continent. HenceBritain all generally concern the movement of people acrossborders and becausethey and Ireland rightly perceived less benefit and considerablecost imposed by are all handled by justice and home affairs ministries, but also becauseco- international co-operation,a view that changedlittle with the election of the operationon judicial, police andimmigration mattersbecomes more imperative Labour Government.Despite the temptationto findsome areain which to declare asinternal bordersamong EU Member Statesdissolve, a single market emerges, ‘success’ in the negotiations, opposition to communitarization by the UK, and enlargementto the east draws near. Even among sceptical governments, Ireland and Denmark meant that agreementwas far from obvious until the last there was some concern about the need to pool resourcesboth to managethe weeks before Amsterdam. pressuresof migration (and domestic demandfor action associatedwith it) and The introductionof a new title in theTreaty on freemovement of persons,asylum to respondto the internationalizationof crime, not least drug trafficking. The andimmigrationandtheconcurrentshiftoftheseissuesfromthethirdtothefirstpillar third pillar was seen from the start, therefore, as the substantivearea where havebeen described as a successby manyobservers. Communitarization extends not progressat Amsterdam was most likely. only to visa, asylumand immigrationpolicy but also to somejudicial cooperation Governmentsthat favoured more intensethird-pillar co-operationcalled for in the civil matters having cross-borderimplications; police cooperation and ‘communitarization’ - the integration of the third pillar into the normal EU criminal mattersremain in the intergovernmentalthird pillar. Hencethe scope of the economic policy-making institutions, as well as an expansion of activities newly communitarizedpolicies is slightly broaderthan even the Commission already conducted by the EU. Germany, a country on the front line vis-d-vis initially sought.The Commissiongained the right of initiative, albeit sharedby the easternEurope, led by a Christian Democratic governmentfor which ‘law and Council for at least five years,which may help place on the agendapolitically order’ was an attractive and popular issue,and currently responsiblefor taking sensitiveproposals that someMember Statescould not endorsepublicly. (It will be well over half of EU asylum-seekersand immigrants, took a leadershipposition. interestingto seewhether there in fact exist viableproposals that no singleMember Communitarization of the Schengenacquis was also a particularly desirable Statewould proposebut the Commissiondoes.) strategy becauseit would automatically mean folding all current agreements The Treaty undeniably brings about gains in efficacy and accountability. underSchengen into the EU - including bilateral arrangementsbetween Germa- Control by the Court, albeit excluding matters concerning the maintenanceof ny andits easternneighbours, obliging the latter to acceptthe returnof any illegal law and order and the safeguarding of internal security, provides greater 0 Blackwell Publishers Ltd 1998 8 Blackwell Publishers Ltd 1998 30 ANDREW MORAVCSIK AND KALYPSO NICOLAiDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 31 guaranteesfor the protection of individual rights - although the Court’s rulings ly choosewhether to act underthe EU or Schengen.This raisesinteresting legal on the interpretation of the Title may not affect judgments of Member State and strategic issuesfor the future. courts which have become res jr&c&z. The replacementof the secretive ‘K4 committee’ by traditional COREPER structuresmay increasedemocratic ac- IV. Successand Failure Reconsidered: countability in this field aswell asthe coherencewith other domains.A transition J?lexibility and Differentiation as Creative Adaptation to QMV may be possible after five years without national parliamentary ratification. Finally, EU directives or regulationsneed no longer be ratified by It is traditional, at least among European federalists, to evaluate major EU national parliaments- a striking contrastto the uneven ratification of conven- agreementsteleologically. EU agreementsare successfulif governmentsem- tions under Schengenand Maastricht arrangements.Since Maastricht entered bark on new schemesfor substantiveco-operation and embedthose schemes by into force only oneconvention (actually negotiatedbefore the Treaty was signed) deepeninga uniform legal andadministrative order centralized in Brussels.Only has beenapproved by all 15 parliaments;a number of agreementsare still to be this, in the teleological view, generatesirreversible integration. This is the sort examinedby national parliaments, including on the operationsof EUROPOL, of vision that inspired the then Commission President, Jacques Delors, to customsco-operation and the fight againstfraud. proclaim in 1988that 80 per cent of national regulationswould soon be made in Still, even on the most optimistic of readings, these gains are moderate Brussels - a statementthat, while (almost) true, betrays a rather rule-bound comparedto thoseto which advocatesaspired. The transition to QMV will not perspective on what is most important about integration. The teleological occur for at least five years and only then with unanimous support. For the approachtakes for grantedthat deeperco-operation is in the fundamentalinterest moment, the Commission lacks the exclusive right of initiative, except on rules of Member States; failures to agree are therefore secondary factors: weak, governing visas, for which there had already been a partial exception under ignorant or ill-intentioned politicians, random and incidental domestic pres- Maastricht. A proposalfor automatic transition to QMV, either immediately or sures,the absenceof compelling geopolitical motivations for co-operation,or a in five years,was opposednot just by the traditional recalcitrantcountries, but general lack of ‘political will’. Evaluation is simple. Whatever deepensand by Chancellor Kohl, who was respondingto pressurefrom the finder, as well widens co-operationand, in particular, whatever pools and centralizesauthori- as other substantiveconcerns. Even in the longer run, it is hard to envisagean tative decision-making, marks .In the teleological view, finally, it is alternative to unanimity - in effect imposing new ‘potential citizens’ onto a essentialto overcome difficulties quickly not simply in order to exploit future Member State by qualified majority - occurring soon. The delicacy of the possibilities to move toward federal union, but becausecontinuous forward compromise is reflectedalso in the extremelegal complexity and ambiguity of motion - thus the ‘bicycle theory’ - is requiredto preserveexisting gains. the resulting arrangement.Some detractorssuggest that the incorporationof the From this perspectivethe Amsterdam Treaty seemsbitterly disappointing. It Schengenacquis into the Treaty will add complexity. NGOs supporting immi- maintains the ‘pillar’ logic introducedat Maastricht rather than expanding the grantrights criticize the communitarizationof bilateral arrangementsthat permit full ‘Community method’ to foreign policy. Within the first pillar, the Treaty west EuropeanMember Statesto deportimmigrants. Finally, communitarization disappointedthe Commission’s ambition to generalizeQMV, expand its own was possibleonly by granting broad opt-outsand flexibility to Britain, Ireland, participation, and extend (or retain) Community competence to new trade and Denmark. The UK and Ireland each obtained two opt-out protocols, one negotiations(Devuyst, 1997).Explicit provisions for vetoes,akin to the Luxem- regardingthe new free movementof persons,the otherrecognizing the Common bourg Compromise, and extensiveprovisions for differentiation and flexibility Travel Area betweenthe UK and Ireland. Denmark obtained a similar opt-out, are now embedded firmly in the Treaty. In striking contrast to the strategy made even broaderby the inclusion of any decisions with defenceimplication. employedin the original Treaty of Rome, in which unanimousvoting procedures The transition from Schengento the EU will take place under an ‘enhancedco- becameQMV nearly automatically, future movement after Amsterdam contin- operation’ procedurenot involving all Member States.In this area,a precedent ues to require explicit issue-specific unanimous votes of the Member States. has beenset for an extremely loose form of variable geometry, if still a bit short While somethird-pillar issuesof immigration and asylum -the one set of issues of a pure ‘Europe ct la carte’ scheme,in which recalcitrant countrieschoose the in the negotiationswhere there are clear economic or regulatory benefits from precise measureson which they would like to co-operate- though such co- co-operation- were moved into the first pillar, the maintenanceof unanimity operationwould require unanimousapproval - and governmentscan collective- voting and the lack of a unique Commission right of initiative mean that evolution toward a supranationaldecision-making system will be at best slow.

0 Blackwell Publishers Ltd 1998 0 Blackwell Publishers Ltd 1998 32 ANDREW MORAVCSIK AND KALYPSO NICOLA’iDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 33 Someflexibility provisions move close to a ‘pick andchoose’ Europe‘ci la carte’ critical of supranationalofficials, institutions, and ideology (Moravcsik, 1998c; (Shaw, 1998, p. 13). Even if the result does not, as one commentator asserts, Milward, 1993). And today, if we are to believe that the modesty of the ‘push the Union in an integovemmental direction, it does reflect a striking Amsterdam Treaty stemmed from atavistic nationalism or an extraordinary willingness on the part of member statesto eschewthe “Community method” sensitivity to sacrificesof sovereignty,how do we explain simultaneousprogress where satisfactoryhybrid dealsare possible’ (Devuyst, 1997,p. 13). No wonder toward EMU? - as we saw in the introduction to this essay-that thosewho mark the successes The failure to move forward more strongly stems,more fundamentally,from and failures of integration againstan ideal federal standardsee Amsterdam as a the lack of any compelling substantive reasonto deepenco-operation. What catastrophicfailure. At the very least, it limits the scopefor future supranational governmentsand publics seem to desire today - as they always have - is a solutions. European structure that solves practical problems while undermining state Yet this teleological mode of evaluatingprogress toward Europeanintegra- sovereigntyto the minimum extentpossible. While the needfor the EU structure tion - and the pessimistic assessmentthat follows from it - increasingly appear tradeliberalization was obvious, it is far lessclear whetherthe gains from deeper dated.Though newspapercolumnists never tire of reciting how the Europeans economic regulation fully offset the sacrificeof control over free movement of seekto form a cohesivewhole the size of the US and supranationalofficials and peoples,social security, professionalservices, indirect taxation, culture, indus- membersof federalistgroups continue to promotecentralization for its own sake, trial policy, social policy, employment, or fiscal policy - or, more precisely, national politicians, interest groups,and individual citizens increasingly doubt governmentshave far more diversepreferences concerning these forms of co- that the vision of a centralized, uniform, undifferentiatedEurope, let alone a operation.In comparisonwith previoustreaty reforms, nearly all of which were ‘United Statesof Europe,’ is either desirableor feasible. Among EU member driven by an overriding substantive,generally economic goal - the elimination governments at Amsterdam, only Belgium and Italy consistently adopted of tariffs and quotas, the construction of the common agricultural policy, anything resembling the traditional position; neither Germany nor the Nether- exchange-rateco-ordination, the completion of the single market (‘Europe lands was nearly as unambiguous,not to speakof France,Britain, and others. 1992’), andmonetary union-the AmsterdamTreaty was precededby a neartotal Even the , with the public approval even of Delors, shied lack of concretesubstantive proposals for policies that could be pursuedunder away from proposing a radical overhaul of the pillar structure(Delors, 1996). new institutional provisions. In the future, modest forward movement is likely There is an expanding consensusthat the EU properly provides a structure to in justice andhome affairs, dueto relatively clear substantivegains for a majority complement,co-ordinate, even in limited ways supplantthe policies of nation- of statesfrom co-ordinatedvisa and policing policies; elsewherethe prospects states,correcting for their manifest weaknesses;yet the EU has not, will not, and are less promising. should not replacethe nation-state(Milward, 1993; Moravcsik, 1998c;Weiler, In historical perspectivethe Amsterdam debatewas striking in its vagueness. 1996). The SEA and Maastricht were precededby detailed substantiveagendas in the Traditional federalistsattribute such caution to contingent factors: the pur- form, respectively, of the ‘White Paper’ with its almost 300 proposalsformed ported shift in public opinion away from support for Europeanintegration, for into a plan for ‘Europe 1992’ and the vision, whether technically sound or not, which there is little evidence; the decline of geopolitical pressurefor co- of a single currency and ‘Economic and Monetary Union.’ By contrast, the operationafter the Cold War, German unification, and the passingof a genera- preparationfor Amsterdam was strikingly devoid of discussion about precise tion with personalexperience of World War II; or the domestic weaknessand scenariosand concretepurposes for which secondand third pillar institutions generallack of ‘political will’ among national politicians - all of which results were to be reformed, let alone the concretebenefits of co-ordinating residual in a deficit of ‘leadership’, not least from the ‘France-Germanmotor’ (Devuyst, economic regulation,culture, education, taxation, or social policy. In short, there 1997). This both misinterpretsthe dominant motivations underlying European has beenmuch debateabout who belongsin the ‘core’ of Europeand much less integrationin the pastand misunderstandsthe currentmood. Governmentshave aboutwhat the core is. One reasonis that Europeangovernments simply do not traditionally pooled or delegatedsovereignty in order to lock in implementation agreeon overriding objectives. and compliance with agreementsthat offer clear (generally economic) gains. Peter Ludlow is therefore half right when he observes,‘The age of the Consensuson institutional form has been greatestwhere there is underlying pioneersis over. That of the system managersis alreadywith us-or ought to be. consensuson substantivegoals, even when key participants-we needthink only [Amsterdam] was boundto be different from its predecessors-forthe very good of Charles de Gaulle, Helmut Schmidt, or Margaret Thatcher - were openly reasonthat the latter had done most of the system building that was needed’. It

0 Blackwell Publishers Ltd 1998 Q Blackwell Publishers Ltd 1998 34 ANDREW MORAVCSIK AND KALYPSO NICOLAiDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 35 could only be successfulif it managed‘to show that its modesty was its glory interestto somegovernments. Despite efforts to simplify the legislative process, ratherthan its shame’ (Ludlow, 1997a,pp. 4,13). Ludlow is correct that the EU divergentinstitutional proceduresare employed and different sets of members is moving beyond an era in which the primary focus has beenon the expansion areinvolved acrossissues. Clearly, if some flanking policies becomekey to the of common policies. Far from being the last of its kind, the Amsterdam Treaty successof monetaryco-operation, laggard states cannot impose a veto; if some is the harbingerof the future. Yet we should not assume,therefore, that there Member Statesdisagree with a foreign policy action, they neednot be involved; remainsnothing fundamentalto be debatedat future IGCs.We have not reached and if countries hold to different traditions of internal and external control of the ‘end of history’ in Europe in which one can only, as did Alexandre Kojbve personalmovement, they cannotbe compelled to join a -freeEurope. In in his time, retire to Brussels and cultivate the CAP. such circumstances,‘evolutionary pragmatism’ increasingly dominates legal Europe standsinstead before a seriesof ongoing constitutional debates.The simplicity - even more so thanhas beenthe casesince the signing of the Treaty focus in the future - disguisedup to now by the increasesin the scopeof EU of Rome in 1957. Proceduresranging from no EU involvement at all to full policy-making in coreeconomic areas where a common legal orderand universal communitarization are instituted, with each designed to create a distinctive participation were and remain unquestioned- will be on the constructionof a balance between national prerogatives and community competence. Policy legitimate constitutional order for policy-making responsiveto the desiresof innovation in the years to come will be ever more focused within the grey national governmentsand their citizens. The questionfacing the EU today is no area between the classical extremes of intergovernmentaland supranational longer how to expandthe ideal of centralizedinstitutions anduniform participa- institutions. tion to new areas,but whether and when to do so. As in most constitutional This was not a novel innovation at Amsterdam, as federalists who attribute polities, fundamental issues of this kind are unlikely to be resolved by the the result to recentgeopolitical or ideological shifts would haveit. It was instead application of a single definitive principle, let alone by commitment to a the extensionof a deep,accelerating trend over decadeswithin Europe toward centralizing teleology. Constitutional bargainstend insteadto emergefrom the greaterdifferentiation acrosscountries and issues.Article 233 of the Treaty of balancesbetween different underlying principles (Shaw, 1998; Coglianeseand Rome governing the Benelux countries, the EMS and EMU, the Schengen Nicoldidis, 1998). Not since the days of Charlesde Gaulle have such questions agreement,ESPRIT, Article lOOa of the SEA, British and Danish opt-outs on been debatedas explicitly as they are today. issueslike social policy, budgetarybargains, and EuropeanPolitical Co-opera- Within the EU, tensions are emerging between fundamental principles of tion all involved de facto acknowledgementsthat not all governmentswould be democratization, uniformity, universality and efficiency (Brinkhorst, 1997). treatedthe same. Credible threatsto exclude recalcitrant Member States were Further democratization of the EU legislative process, for example, clearly critical to both the SEA and Maastricht agreements.Prospective enlargement to requires either reduction in the prerogatives of the Council of Ministers or 21 or more increasingly diverseMember Statesonly intensifies the problems. It reduction in thoseof the Commission. The former is unlikely and, accordingly, seemsclear that the CAP will not be applied to new members in the same way the Commission found itself in a defensiveposition at Maastricht and Amster- it is applied to existing members - with long transition periods serving to dam, asthe more radical proposalsfor strengtheningthe Parliament,particularly differentiatebetween the two groups to an evengreater extent than in the Iberian thoseadvanced by Germany,came at the expenseof the traditional Commission enlargementof the 1980s. monopoly on the right of initiative. How long will it be beforethe French desire The difference between Amsterdam and previous negotiations lies in the to strengthenthe Council and the German desire to strengthenthe Parliament legitimacy andopenness of suchproposals. In 1988,Margaret Thatcher’s call for come togetherin an open alliance againstthe Commission? Yet might this not a ‘multi-track’ Europe in her notorious Bruges speechwas dismissed as the undermine the record of successof the Commission-centred system more height of (Moravcsik, 1998~).Even after Maastricht, flexible insulated from specialinterests, more technocraticin its decision-making,and, arrangementswere still spokenof by most Europeansas unfortunateexceptions, therefore,more effective at promoting the common Europeaninterest? with a uniform acquis communautaire the clear ideal. In the decade that Similarly, thereis increasinglyopen tension between a universaland uniform followed, the debateover Europehas been turned on its head.Today it is the more legal order, on the one hand, and effective decision-making, on the other. At federalist countries that demand differentiation and flexibility - now termed Amsterdam the result was a greater willingness of governmentsto dilute the ‘differentiated solidarity’, ‘avant-garde’,‘ federal core’, or ‘enhancedco-oper- uniformity and universality of EU commitments (outsidecore EU issues,such ation’. In responseand over the objectionsof traditional federalists,the Amster- as market liberalization) in the interestof achieving substantiveco-operation of dam Treaty elevated ‘flexibility into one of the constitutional principles of the

0 Blackwell Publishers Ltd 1998 0 Blackwell Publishers Ltd 1998 36 ANDREW MORAVCSIK AND KALYPSO NICOLAiDIS FEDERAL IDEALS AND CONSTITUTIONAL REALITIES IN THE AMSTERDAM TREATY 37 EU’ (Ehlermann, 1997,p. 60; de La Serreand Wallace, 1997). The debatehas to the convergent economic interests of national governments and their citizens, shifted to the relative burdensto be acceptedby ‘ins’ and ‘outs’ -whether Europe are today’s true Eurosceptics. should provide choices ‘b la carte’ or be centredon ‘hard core’. Will flexibility undermine the threatsof exclusion that have forced recalcitrant statesto accept References Europeansolutions in the past - witness threatsaimed at the French in the early yearsof the EU and the British more recently-or will it offer new opportunities Ash, T.G. (1998) ‘Europe’s Endangered Liberal Order’. ForeignAf)eairs, Vol. 77, No. for governmentsto make such threats?The answerdepends on the outcome of 2, March-April, pp. 51-66. the emerging constitutional debate(Pisani-Ferry, 1998). Bertram, C. (1997) ‘Germany’. In European Policy Centre, pp. 64-5. The European project has evolved into the most successful example of Bourlanges, J.-L. (1997) ‘The Amsterdam Paradox’. In European Policy Centre, voluntary internationalco-operation in history. For its first four decades,this was Brussels p. 70. achievedthrough the progressiveextension of the scopeof co-operationamong Brinkhorst, L. J. (1997) ‘Efficiency and Democracy’. In European Policy Centre, p. 57. Member States.With EMU and intergovernmentalco-operation in the second Burrows, N. (1998) Presentation at the Conference of Europeanists, Baltimore, MD. Coglianese, C. and Nicoldidis, K. (1998) ‘Securing : Mechanisms for and third pillars, this phaseis nearing completion. Amsterdam representsthe Allocating Authority in Tiered Regimes’. In Woolcock, S. (ed.), Subsidiarity in the beginningof a new phaseof flexible, pragmaticconstitution-building in order to Governance ofthe Global Economy (Cambridge: Cambridge University Press). accommodatethe diversity of a continent-widepolity. Commission of the European Commmunities (1997) ‘Assessing the Achievements of This is not to say that the EU is dissolving. The oppositeis true. The ‘bicycle the Commission’s Objectives for the IGC (1996 IGC Task Force), Brussels MP/bw theory’, whereby integration will recedeif it does not progress,is a fetching D(97). metaphor but one without substance(Ash, 1998). The EU is proving quite Crossick, S, Kohnstamm, M. and Pinder, J. (1997) ‘The ’. In capableof moving forward where it is perceivedas necessary,as in EMU, and European Policy Centre, pp. l-4. it is proving capableof protecting the acquis communautaire. The one point of de la Serre, F. and Wallace, H. (1997) ‘Les cooperations renfordes: une fausse bonne agreementat Amsterdam, from the most Euroscepticalgovernment to the most idee?’ S&ie &des et recherches, No. 2 (: Groupement d’btudes et recherches, federalist,was the sanctity of provisions guaranteeingfree trade in goods and Notre Europe). services. Delors, J. (1996) Speech at Harvard University. Devuyst, Y. (1997) ‘The Treaty of Amsterdam: An Introductory Analysis’ . ECSA Even lessplausible is the spectreof World War III - fear that makesunlikely Review, Vol. 10, No. 3, Fall. rhetorical bedfellows of Helmut Kohl and Martin Feldstein (Feldstein, 1997). Dini, L. (1997) ‘The EuropeanUnion after Amsterdam’. In Duff 1997b, pp. xxvii-xxix. Those who assert that the failure to continue progressing towards a federal Duff, A. (1997a) ‘Supranational Institutions for Post-national Europe’ in Duff 1997b, .. . Europe (or the collapse of certain schemescurrently directed to that end) will XXX-XXXVlll. spark a geopolitical conflagration are forced to invoke historical analysis and Duff, A. (ed.) (1997b)The Treaty of Amsterdam: Text and Commentary (: political scienceover two generationsold. The primary causeof peacein postwar Federal Trust) Europe has not been , but the law-like propensity of Ehlermann, C. (1997) ‘Flexibility’. In European Policy Centre , pp. 59-60. developeddemocracies to avoid war with one another.The major geopolitical European Parliament,Committee on InstitutionalAffairs (1997)‘Report on the Treaty bargainsunderlying post-war Europe- the US commitment, the repatriationof of Amsterdam - Annex’ (Brussels: European Parliament). the Saar,the remilitarization of Germany,the formation of NATO, and the like European Policy Centre (1997) Making Sense of the Amsterdam Treaty: Challenge -were precursors,not productsof the Treaty of Rome in 1957(Moravcsik, 1996, Europe, Brussels. 199%). What hasheld Europetogether and propelled it forward hasbeen a series Feldstein, M. S. (1997) ‘EMU and International Conflict’. ForeignAA(birs, Vol. 76, No. 6, November, pp. 6&74. of mutually beneficial bargains, largely economic in nature, to promote the Hoyer, W. (1997) ‘The German Government’. In European Policy Centre, p. 41. interestsof Europeanproducers and consumers.Those who continue to believe Jorgensen, K. E. and Christiansen, T. ‘The Amsterdam Process: A Structurationist that the EU is fragile - too fragile to withstand constitutional debate- because Perspective on EU Treaty Reform’. In Edwards, G. and Philippart, E. (eds) Theo- it has been powered forward by fears of reliving World War II, dosesof federalist rising European Integrafion (forthcoming). idealism, constraintsimposed by federal institutions, andthe intermittent ‘polit- Ludlow, P. (1997a) ‘The Intergovernmental Conference: An Evaluation’ (Brussels: ical will’ of national leaders,rather than a stablepattern of co-operationtailored Centre for European Policy Studies), unpublished mimeo.

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Ludlow, P. (1997b) ‘Institutional Balance’. In European Policy Centre, p. 52. Journal of Common Market Studies Volume 36, Annual Review Meunier, S. and NicolaIdis, K. (1997) ‘National Sovereignty vs. International Efficien- September 1998 cy: The Delegation of Trade Authority in the ’. Paper presented at the Center for European Studies, Harvard University, December. Milward, A. S. (1993) The European Rescue of the Nation-State (London: Routledge). Moravcsik, A. (1996) ‘Federalism and Peace: A Structural Liberal Perspective’. Zeitschriftfir internationale Beziehungen, Vol. 2, No. 2, Spring. Moravcsik, A. (1998a) ‘European Integration in the 1990s: Meeting the Challenges of Deepening, Diversity, and Democracy’. In Moravcsik (1998b). Governance and Institutions Moravcsik, A. (ed.)( 1998b) European Integration in the 1990s: Meeting the Challenges of Deepening, Diversity, and Democracy (New York and Washington: Council on Foreign Relations and Brookings Institution). Moravcsik, A. (1998c) The Choice for Europe: Social Purpose and State Power from Messinu to Maastricht (Ithaca: Cornell University Press). Moravcsik, A. and Nicoldidis, K. (forthcoming) ‘Negotiating the Treaty of Amsterdam: Interests, Influence, Institutions’, Journal of Common Market Studies. Nickel, D. (1998) ‘European Institutions after the Amsterdam Treaty’. Paper presented Member of the European Parliament for Merseyside West at the Seminar on the EU, NAFTA, and the WTO, Harvard University. Petite, M. (1998) ‘The Commission and the Amsterdam Treaty’. Paper presented at the Seminar on the EU, NAFTA, and the WTO, Harvard University, April. Pisani-Ferry, J. (1998) Variable Geometry in Europe (Brussels: Centre for European Policy Studies). Shaw, J. (1998) ‘Constitutional Settlements and the Citizen after the Treaty of Amster- dam’. In Neunreither, K-H. and Wiener, A., Beyond Amsterdam: Znstitutional I. Introduction Dynamics and Prospects for Democracy in the EU (Oxford: ). The key institutional event in 1997 was the conclusion of the Intergovernmental Sidjanski, D. (forthcoming) TheFederalist Future ofEurope (Ann Arbor: University of Conference(IGC) and the signing of the Treaty of Amsterdam. Other develop- Michigan Press). ments took place within the context of the existing Treaties, not least the Sutherland, P. (1997) ‘Has the IGC Succeeded?‘. In European Policy Centre, pp. 29-31. preparations for the single currency and the beginning of preparations for Van Miert, K. (1998) ‘EU Institutions after the Amsterdam Treaty’. Paper presented at enlargement. Routine institutional life also continued. Harvard University, April. Walker, N. (1998) ‘Sovereignty and Differentiated Integration in the European Union’. Paper prepared for Workshop in Legal Theory and the European Union, Edinburgh, II. The Treaty of Amsterdam February. One and a half years of Intergovernmental Conference preceded by half a year Weiler, J.H.H. (1996) ‘Legitimacy and Democracy of Union Governance: The 1996 of work by the Reflection Group culminated in agreementon a Treaty which Intergovernmental Agenda and Beyond’. Oslo: Arena Working Paper, November. Wessels, W. (1997) ‘The Amsterdam Treaty in View of the Fusion Theory’. Paper many found to be disappointing in failing adequately to address a number of presented at BISA Annual Conference, , December. problems facing the Union, not least in view of its forthcoming enlargement. Nonetheless, the Treaty, if ratified, will bring in about 20 significant changes to the institutional structures and the governance of the European Union. Of particular significance are the following. 1. The UK opt-out of the Social Agreement will come to an end, thereby enabling it to be integratedinto the body of the Treaty and ending a two-tier system in this field.

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