Harvard Law School

Jean Monnet Chair
Professor J.H.H. Weiler

Harvard Jean Monnet Working Paper (Symposium)

This paper is a part of contributions to the Jean Monnet Working Paper 
No.7/00, Symposium: Responses to Joschka Fischer

Julio Baquero Cruz

Whither Europe… and When?
Citizen Fischer and the European Federation

Harvard Law School    Cambridge, MA 02138

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© Julio Baquero Cruz 2000
Harvard Law School
Cambridge, MA 02138 
USA

Whither Europe… and When?
Citizen Fischer and the European Federation

Julio Baquero Cruz

I

On 9 May 1950, a day before the tenth anniversary of the German invasion of the Netherlands, Belgium and France, Robert Schuman, then French foreign minister, pronounced a famous declaration inviting Germany and other European countries to join their productions of coal and steel as a first step towards the creation of a European federation which could contribute to the guarantee of peace in the continent by creating a degree of solidarity among its members. This proposal was filled with ideas that gave it strength. It is no exaggeration to call it the alpha of European integration.
	On 12 May 2000, recalling Schuman’s speech — but not the invasion — the German foreign minister has given a speech at the Humboldt University in Berlin, entitled From Confederacy to Federation — Thoughts on the Finality of European Integration. The speech was immediately published by some leading European newspapers, and before the summer came there were reactions by Jacques Chirac, in a speech at the Bundesrat, several newspaper articles, a new intervention by Fischer himself before the European Parliament, et cetera.
	The speech seemed to come at the right time, a month and some weeks before the beginning of the French presidency. Bilateral meetings between France and Germany were held at the historical château of Rambouillet. It first seemed that the Franco-German axe was beginning to work again, an impression that then gradually faded with the heat of the summer and is not likely to revive in the Fall. The intergovernmental conference will again be a diplomatic event playing with constitutional fire, but the most important questions will have to wait.
	In this pages I shall try to read Fischer’s speech and criticise it in its own terms, a modest but perhaps not totally useless exercise. Fischer’s message is ambivalent and my impression was very ambivalent as well; first positive, then sceptic, at points rather negative. Unlike Schuman’s declaration, the speech does not have — and is not having and probably will never have — much generative force. The comparison is perhaps too obvious and unfair, but there are, in addition, some substantive problems with his proposal that cannot pass unnoticed.

II

Its lack of generative force, that is the incapacity of Fischer’s political discourse to find its way into reality, is due to two main reasons. First is the current mood in European integration. Gone are the fears that stand at the root of the integration process. Of the blend of federalist ideals and mutual advantage bargains that was at the heart of European integration, the ideals fade as pragmatism increasingly pervades the whole project. Pragmatism at a great price, that of missing the spirit of the project. As if struck by collective Alzheimer, the Union loses sight of its deep meaning and ideals, of what it stands for. Forgetting is sometimes as important as remembering, as it liberates energies to go on doing things. Forgetting the essential, however, is rather unwise, for the things we go on doing may sooner or later turn against ourselves.
In European affairs, it seems to me, politicians are at present forgetting the essential, and the things they do or try to do — as unbound flexibility or the aberrant, because statutory and constitutionally blind, project for a charter of fundamental rights — may soon turn against all of us. But still, this is just the reflection of a mood, and a mood does not change by changing what we do; we do differently by changing our mood. Critically, Fischer’s speech does not change the prevailing mood in European integration. To be sure, much of the critique of his speech actually is a critique of the mood in which it finds place, not of the speech itself.
I would like to refer to a wider problem. May a single man change the mood of a continent (plus that of a rather moody island)? He may if he has enough power, mobilising ideas and persuasion. Fischer has power. It is precisely his function as German foreign minister to administer power and influence. He may have some persuasion, but sometimes seems not to want to persuade. As to his ideas, I at least am not convinced by many of them.
To begin with, Fischer embarrassingly insists in that he is not talking as foreign minister, as Shuman did, but as a common citizen: “Allow me, if you will, to cast aside for the duration of this speech the mantle of German foreign minister and member of the government — a mantle which is occasionally rather restricting when it comes to public reflection”; “allow me then, […] to really leave behind me now the German foreign minister”; “it is a personal vision for a future solution of the European problems”; “This, ladies and gentlemen, is my personal vision for the future”. We got the point…
Independently of the current mood in European integration, this fact already takes away much of the potential force in Fischer’s ideas. I may have a vision for the future of Europe, bore my friends with it, occasionally write an article and so on, but I am not the foreign minister of the German Republic. Hence my vision would normally have but little impact on reality. In contrast, the vision of the German foreign minister must have an influence in reality, if only because he was elected to give reality to political power.
Incidentally, I do not think the fact of being foreign minister should be regarded as a limitation on public reflection… On the contrary, these are the very questions that should worry Mr. Fischer, the German foreign minister that is. His whole speech is therefore built on some sort of “I say what I say, but I don’t say it; I don’t say what I say, but still I say it”. The ambiguous identity of the speaker takes away much if not all of the force that the speech could have had. As a theoretical curiosity, however, the musings of citizen Fischer deserve our attention.

III

Not only does Citizen Fischer not want his ideas to be mistaken for minister Fischer’s ideas. He does not want them to be taken for ideas of the present, and so they fade in temporal indeterminacy to the point of exhaustion. Again, he does not spare repetitions to make his point clear: it is a proposal intended “beyond the next decade and the intergovernmental conference”; “for the long run”; “well beyond the next decade”. According to him, “the EU will at some time within the next ten years be confronted with this alternative: will a majority of states take the leap into full integration and agree on a European constitution? Or, if that doesn’t happen, will a smaller group of states take this route as an avant-garde, i.e. will a centre of gravitation [Gravitationskern] emerge comprising a few member states which are staunchly committed to the European ideal and are in a position to push ahead with political integration? The question then would simply be: when will be the right time?”
	The right time… I have to express my utter confusion at this point. Fischer’s ideas concerning timing are indeed both confused and confusing. One thing at least is clear: they are not intended for this intergovernmental conference, which is to be confined to the then three, now four, “urgent” questions in the diplomatic agenda (composition of the Commission, vote weighing in the Council, extension of majority voting, closer cooperation). To be sure, these urgent questions are but temporary patches. Besides the reform of the procedure for establishing closer cooperation, which hovers the Community pillar with fragmentation, they are all quite trite matters in comparison with the deeper constitutional reform that Fischer proposes. It is not quite clear, however, for when is such reform due: in a decade, within a decade, in about a decade, more or less in the next decade…
As I read it, ten years is used here as a rhetorical device to mean “not yet”.
Contrariwise, the Eastern enlargement, of particular economic interest for the German economy, should be done “as quickly as possible” (“Die schnellstmögliche Erweiterung”). This quick enlargement, according to Fischer, will bring new problems of which we shall worry now, intellectually that is, but that we shall only tackle later.
The contradiction in this part of the speech is apparent. The institutional problems that justify his preference for a political union of sorts will be pressing from the very moment of the next enlargement, if they are not already so, and according to any logic they should be solved before not after the enlargement. Fischer rightly predicts that the enlargement will bring “erosion or integration”. Now, and this is the crux of the matter, are we to integrate further before or after the erosion? It seems to me that citizen Fischer puts the cart (enlargement) before the horses (constitutional deepening). The cart may not move at all or even move backwards — hence the risk of disintegration if the horses are not in the right place at the right time, and strong horses indeed. It would be better, in my view, to integrate politically before the enlargement, now that it is simpler. But perhaps citizen Fischer does not really intend to integrate politically, but only to do something politically, as it is revealed by the means he chooses for such an undertaking.
The Shuman declaration was full of will for the future, but its force depended on its reference to the realities of the day. Fischer’s speech loses force in its vague reference to a distant and indeterminate future, avoiding the urgent questions: Is it perhaps already about time? Is now the right time? Is the right time passing?

IV

In addition to the dubious identity of the speaker and the question of timing, Fischer’s vision for the future is not without substantive problems, to which I shall devote this last part of this comment.
First is his conception of the nation-State as a natural reality coupled with his fashionable defence of national traditions: “a European federal State (Europäischen Bundesstaat) replacing the old nation-states and their democracies as the new sovereign power shows itself to be an artificial construct which ignores the established realities in Europe.” Incidentally, he rejects the idea of a European federal State while he embraces the concept a European federation (Europäischen Föderation), which even appears in the title to his speech. The subtleties in the distinction between federation and federal state are beyond my understanding.
	More to the point, every time I hear the word “tradition”, and Fischer repeats it several times at crucial passages of his speech, I fear the worst. The idea of the nation-State, let us say it clearly, is as artificial or, for that matter, as natural as the idea of a federal State. The terms natural or artificial are in this context meaningless. All political realities are essentially historical and cultural, bounded by time and dependant on human will. The European Union itself has always been, from its inception in the European Coal and Steel Community (1951), outside and beyond the traditional or established “realities” of Europe. It was indeed intended to overcome those established realities. But at present the Union itself is already an established and growing reality in Europe.
The dangers involved in this nostalgic traditionalist discourse are many. To begin with, it may put irrational brakes to integration, closing doors for no good reason where doors should be open. From the cultural point of view, the traditions of the European nations are old and tired traditions. They have been quite decadent for decades now. Their democracies are not without problems themselves. To start a speech on the finality of European integration by holding that these crepuscular traditions are to be preserved at all risks seems to me to be a particularly unprincipled way of limiting from the outset what the possible renaissance of a truly European culture — and democracy — could bring in the future. Besides, who is to preserve those national traditions? How are they to be preserved?
Regarding more concrete aspects of his speech, the new Parliament Fischer proposes would have two chambers, one of them composed of representatives belonging at the same time to the national parliaments. This idea, a step back to the system that existed before 1979, seems to me to be particularly unfortunate. Who would such double representatives represent? Would they have time to simultaneously follow European and national politics? Would they contribute in any meaningful way to the shaping of a European political process and discourse?
Fischer then repeats that the nation-States “will continue to exist and at European level they will retain a much larger role than the Länder have in Germany.” But how to put a permanent brake in the federative process? The federation or, for that matter, the federal State or the confederation and all what lies in the continuum between these ideal concepts, are all instances of the federative process. This process, like any process, can hardly be conceived as a static position that should be preserved forever. It can be but a continuous movement in which centrifugal and centripetal forces are always at work, determining its political evolution and the sharing of powers and responsibilities among the various levels of government. There is no way to create a federation of whatever kind and assure beforehand that the States will always have a larger role than that of a German Land. The federative process is an open process or is not.
Only at the end of his speech does Fischer argue for the need to establish Europe anew with a constitution, perhaps by a reduced group of Member States. Such an avant-garde or centre of gravitation will be open to all, if they comply with certain requirements which are not specified. “The last step”, adds Fischer, “will then be completion of integration in a European Federation. Let’s not misunderstand each other: closer cooperation does not automatically lead to full integration, either by the centre of gravitation or straight away by the majority of members. Initially, enhanced cooperation means nothing more than increased intergovernmentalization under pressure from the facts and the shortcomings of the “Monnet Method”. The steps towards a constitutional treaty — and exactly that will be the precondition for full integration — require a deliberate political act to reestablish Europe.”
Reestablish Europe, nothing less… This passage sounds to me as expressing the will for a rearrangement of what already exists, from the point of view of a federalism that turns out not to be so federal when closely examined. Fischer would like to make tabula rasa of what already is in place to end up doing something very similar, but differently… As to the requirements to enter the said centre of gravitation, I do not really see what kind of requirements à la Maastricht could legitimately be imposed in order to proceed to political union, besides the democratically expressed will of the given State, perhaps with the necessary direct intervention of its citizens in taking such a crucial step.
Finally, the idea of an “reinforced intergovernmentalisation” (verstärkte Intergouvermentalisierung) is the most dangerous element of Fischer’s proposal. The States of the so-called gravitation centre may decide to use their political Union only to dilute the valuable achievements of the past. They may not choose to do so, but it is a daring risk to take in political terms. Incidentally, he founds the need to use intergovernmental methods (to integrate politically!) in the shortcomings of the “Monnet Method”. Any analyst would rather point to the much graver shortcomings of the intergovernmental method in the non-Community pillars of the Union. The Community method may have shortcomings, to be sure, but they are not as “short” as those persistently revealed by the intergovernmental method.
This reflection points to something which is surprisingly lacking throughout Fischer’s speech. He ignores or forgets the progressive constitutionalisation of the treaties effected by the European Court of Justice throughout the last four decades with the acquiescence, sometimes express through treaty amendments, sometimes implicit, of the States. Upgrading the treaty into the current constitution of the Community has produced a constitution by default, a provisional legal fiction in want of something better, but one that is at the same time normatively warranted, workable and advantageous to most of the actors concerned. It is a redundant waste of energy to try to strike again deals and reach constitutional agreements that are already up and running. Any constitutional project for the future of Europe must take seriously its constitutional present, building on it, not negating it.