In defence of my proposed inter-pillar tie-breaker, I remarked that the Treaties have a tendency of being more integrationist – i.e. more inclined towards strengthening European integration – than the Member States, even though the Member States are supposed to be the Maîtres des Traités, the Masters of the Treaties. So I started to wonder: is there evidence for this proposition? And, if so, how did this happen?
What I was thinking of in particular was the large number of passerelles – articles that pre-authorise the Council to amend the Treaties as long as the Member States ratify the decision – that are included in the Treaties even though they are never realistically going to be used:
Of interest in recent days is art. 223(1) TFEU, which allows the Council – on a proposal from the European Parliament - to adopt a uniform election law for European Parliament elections. As with all passerelles, this law has to be ratified by all Member States before it can enter into force. As was pointed out in my Twitter timeline, the problem with such a law would be that its implementation would be difficult given all the pigs flying around blocking the sun. However, it was also pointed out to me that this competence was actually used once, in order to enact the most recent version of the Council Decision on European Parliament Elections, Decision 2002/772. Nevertheless, this Decision clearly falls well short of any kind of “uniform procedure”, as envisaged by the Masters of the Treaties in drafting art. 223 TFEU.
Another tragic story is the history of the Common Commercial Policy, i.e. the EU’s international trade legislation. The longer version of this story is discussed in my LL.M. thesis from 2005, but the gist of it is that when the World Trade Organisation was created, and put in charge of adminstering the General Agreement on Trade in Services, the European Court of Justice concluded that trade in services was not included in the EU’s Common Commercial Policy (opinion 1/94). Rather than fix this problem outright, the Treaty of Amsterdam inserted a subsection 5 into art. 133 EC, which said:
The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on services and intellectual property insofar as they are not covered by these paragraphs.
And yet, no such decision was ever taken, so the issue was taken up again at Nice:
5. Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.
By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules.
The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6.
This paragraph shall not affect the right of the Member States to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements.
6. An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community’s internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation.
In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States.
The negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and Article 300.
7. Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5.
Clearly, this solution is much less ambitious than the use of art. 133(5) EC in the Amsterdam version would have been. Instead of assigning trade in services to the EU outright, the Nice Treaty enacted a classic mish-mash solution, which didn’t really change anything about the way the Commission operated in practice: things that were mixed agreements before continued to be treated as mixed agreements after. The current art. 207 TFEU essentially maintains the same distribution of competences, except with better drafting. As a result, if the TTIP ever gets concluded, it will be a mixed agreement just like it would have been under any previous version of the Treaties.
Other passerelles currently included in the Treaties:
Art. 42(2) TEU: A Common Defence. Never going to happen.
Art. 25 TFEU: additional rights of EU citizens qua EU citizens. Never going to happen.
Art. 262 TFEU: Giving the Court of Justice jurisdiction over intellectual property rights. Might have happened. There were some problems with the European Patent Court (see opinion 1/09, for example), which is why we now have a Unified Patent Court, but the Member States do not seem to oppose the fundamental idea.
Art. 40(2) of the Statute of the ECB: Amending art. 10(2) of the Statute, which sets out the composition of the ECB’s Governing Council, which currently consists of each Member State’s Central Bank president. Never going to happen.
Even this highly incomplete survey of passerelles suggests that the drafters of the Treaties have consistently overestimated the extent to which the Member States are willing to take steps towards more integration outside the context of an Intergovernmental Conference. In fact, I am not aware of any passerelle being used ever. So the question remains: how is this possible?
The first, most obvious explanation is that passerelles are not a very good yardstick. After all, they don’t actually do anything unless the Council unanimously votes and unless the national legislature ratifies this decision – with or without a referendum in individual Member States. And so, from the point of view of the national legislature, these passerelles are arguably harmless. However, at the same time they are politically dangerous; the fact that the EU Treaty talks about an EU Common Defence can have all sorts of adverse political consequences, because politicians and political commentators don’t tend to let the facts get in the way of a good story. On balance, I think the evidence from the passerelles is consistent with the evidence from other provisions in the Treaty, like art. 83 TFEU, which also came up in my blue car post. The Union legislator may have the competence to enact criminal provisions, but it is not going to happen, or at least not except in extreme cases like terrorism.
So if we grant the premise, how can the Treaties be more integrationist than their Masters? The Treaty amendment process must be captured somehow. While I don’t have my copy of Moravcsik on hand, I can think of a few hypotheses, which share the observation that we are talking about Treaty provisions of low political salience:
1. The people that negotiate and draft the Treaties tend to be more pro-EU than the national politicians who are ultimately responsible for Treaty changes, given that they are either Member State diplomats stationed in Brussels or national capital EU-law specialists.
2. The politicians that have the most control over the outcomes of the Intergovernmental Conference tend to be executive branch officials. In that capacity, they have a clear institutional bias towards taking competences away from the national domain, where they have to deal with the legislature, and placing it under the control of the Council.
3. As the Treaty amendment process became more difficult, all actors involved have an incentive to include as many amendments as possible in any given treaty, even amendments that do not yet have the unanimous support of the Member States. This is a point specifically about passerelles: it is a way of making Treaty amendments easier, meaning that their use should have increased over time, but decreased now that the Lisbon Treaty has introduced the simplified revision procedure. However, to a lesser extent this logic applies to other competences as well, as long as their exercise requires unanimity in the Council.
The recurring theme is that the key actors in the Treaty amendment process are exposed to very little political risk as a result of including low-salience provisions that are unlikely to be used because they are too integrationist. Essentially the only problem is that someone is going to seize on such a provision during the ratification process in order to embarass the government, which is unlikely to worry those governments that don’t have a referendum campaign to fight, while in referendum countries the incremental risk of any given provision is pretty low as well. The flipside is that one never knows when it might be useful to have one additional hat to pull a Brussels rabbit out of.
From the point of view of democratic legitimacy, all of this is extremely worrying. For that reason, it is not at all inappropriate for the Court of Justice to adopt rules of interpretation that tend to construe Union competences narrowly and favour unanimity where a competence does exist. For example, the old first pillar – i.e. the Common Market and its flanking policies – should not be allowed to swallow the common foreign and security policy or the area of freedom, security and justice.